Dismissed

Premsheela v. Prasanna Kumari and Others

Chhattisgarh HC4 Jan 2021SA/388/2008

Case brief

AI extract

What is this about?

In a second appeal regarding a dispute over inheritance, the High Court of Chhattisgarh dismissed the appeal. The court held that objections regarding the mode of proof of a Will (lack of original document and secondary evidence) must be raised at the trial stage. Since no such objection was raised earlier, it was waived. Additionally, the court found no specific denial of execution or attestation

What did the court decide?

The second appeal is dismissed. The finding of the courts below that the Will is duly executed and valid is affirmed.

Premsheela Vs Prasanna Kumari and Others — Succession and Inheritance | Chhattisgarh HC (2021)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

Second Appeal No. 388 of 2008

¶5

Judgment reserved on 04.11.2020

¶6

Judgment delivered on 04.01.2021

¶7

Premsheela, D/o Man Sai, aged about 39 years, R/o
village Sanna, Tahsil Bagicha, District Jashpur (C.G.)

¶8

 ---- Appellant/Plaintiff
Versus

¶9

1. Prasanna Kumari (since deceased) through LRs:-

¶10

A. Sunil Minj, aged about 45 years,

¶11

B. Sandeep Minj, son of Sunil Minj, aged about 24 years,

¶12

C. Vimla Minj, daughter of Sunil Ming, aged about 22 years,

¶13

D. Vimita Minj, daughter of Sunil Minj, aged about 20 years,

¶14

E. Manisha Minj, daughter of Sunil Minj, aged about 18 years,

¶15

All are resident of at & Post Sanna, Tehsil
Bagicha, District Jashpur, Chhattisgarh

¶16

2. Jatro, D/o late Bandhan, aged about 39 years, R/o village -Sanna, (Saranatoli), Tahsil Bagicha, District Jashpur (C.G.)

¶17

3. Khrist Pyari, D/o Admon, mother Fabiyola, R/o village – Saraitoli, at present residing at village – Aasta (Khedar), Post Champa, Tahsil - Bagicha, District Jashpur (C.G.)

¶18

4. State of Chhattisgarh, through Collector, Jashpur Nagar, District Jashpur (C.G.)

¶19

---- Respondents/defendants

¶20

For Appellant : Mr. J.K. Shastri, Advocate.

¶21

¶22

For LR's of respondent No. 1

¶23

 : Ms. Binu Sharma, Advocate.
For Respondent No. 3 : Ms. Sareena Khan, Advocate.

¶24

Hon'ble Shri Justice Sanjay K. Agrawal

¶25

Judgment [C.A.V.]

¶26

(1)The appellant's/plaintiff second appeal was admitted
for hearing on 6.3.2020 by formulating two substantial
questions of law :-

¶27

“1. Whether both the courts below were justified
in holding that Will (Ex.D-2) has been proved in
accordance with law without there being any
foundation laid for adducing secondary evidence
under Section 65 of the Indian Evidence Act,
1872 ?

¶28

“2. Whether both the courts below were justified
in holding that Will (Ex.D-2) dated 16.06.1992
executed by late Dasri in favour of defendants
No. 1 & 2 namely Tarshila & Prasanna Kumar,
respectively has been proved in accordance with
law, by recording finding which is perverse and
contrary to the record ?

¶29

(For the sake of convenience, parties would be referred
hereinafter as per their status shown and ranking given in
the plaint before the trial Court.)

¶30

(2)The suit property was held by one Mansai. He had
four daughters namely Phabialo, Premsheela, Tarsheela &
Prasannkumari. Plaintiff No. 1- Khistpyari is the
daughter of Phabialo whereas plaintiff No. 2- Premsheela
is the daughter of Mansai and defendants No. 1 and 2
namely Tarsheela & Prasanna Kumari are also the daughters
of Mansai. The dispute relates to the property left by

¶31

wife of Mansai namely Dasri. It is a case of the

¶32

¶33

plaintiffs that mother of plaintiffs namely Dashri
allegedly executed a Will dated 16.6.1992 (Ex.D-2) in
favour of defendants No. 1 & 2, which is a forged Will
and they have also right, title and interest in the suit
property mentioned in Schedule 'A' & 'B' of the plaint,
being the daughters of Dashri, therefore, their title be
declared in the suit property and they also be declared
to be the joint possession holder of the suit land.

¶34

(3)Defendants No. 1 & 2 filed their written statement
and denied the fact that Will (Ex.D-2) is forged. It was
further pleaded that on the basis of the Will, their
lands have also been recorded in the revenue records, as
such, they are title holder of the suit land, as such,
suit is liable to be dismissed.

¶35

(4)The trial Court, after appreciation of oral &
documentary evidence available on record, dismissed the
suit holding that Will (Ex.D-2) is not forged and
fabricated document. On appeal being preferred by the
plaintiffs, first appellate Court has affirmed the
judgment & decree of the trial Court and dismissed the
appeal of the plaintiffs, resulting into filing of the
second appeal, in which two substantial questions of law
have been formulated and set out in the opening
paragraphs of the judgment for the sake of completeness.

¶36

(5)Mr. J.K. Shastri, learned counsel appearing for the

¶37

¶38

appellants/plaintiffs would submit that plaintiffs have
not laid secondary evidence for not filing the original
copy of the Will (Ex.D-2) and in absence of original copy
of the Will/in absence of laying foundation for leading
secondary evidence under Section 65 of the Evidence Act,
Will (Ex.D-2) is not admissible in evidence. He would
further submit that the execution and attestation of the
Will (Ex.D-2) has not been proved in accordance with
Section 68 of the Indian Evidence Act read with 63 of the
Succession Act, 1923. He would rely upon the decision of
the Supreme Court in the matter of Roman Catholic Mission
v. State of Madras and another1 in support of his case.

¶39

(6)Ms. Binu Sharma, Advocate appearing on behalf of
respondents No. 1 & 2 would submit that the plaintiffs
did not raise any question when the Will(Ex.D-2) was
sought to the marked as exhibit and, therefore, no
objection could be taken later on, that too, at this
stage i.e appellate stage. She would rely upon decision
of the Supreme Court in the matter of Dayamathi Bai v.

¶40

K.M. Shaffi2 in support of her case. She would further
submit that though the Will (Ex.D-2) was branded as a
forged Will but in express terms neither its execution
was denied nor the attestation of Will (Ex.D-2) was
successfully questioned and, therefore, Section 68 of the

¶41

1 AIR 1966 SC 1457 2 AIR 2004 SC 4082

¶42

¶43

Evidence Act would not attract as the defendants
No. 1 & 2 have examined one of the attesting witnesses
namely Devchand (DW-2), who has proved the execution and
attestation of the Will (Ex.D-2), as such, second appeal
deserves to be dismissed.

¶44

(7)I have heard learned counsel appearing for the
parties, considered theri rival submissions made
hereinabove and went through the record with utmost
circumspection.

¶45

 Answer to substantial question of Law No. 1

¶46

(8) Defendants have filed certified copy of the Will,

¶47

which has been marked as Ex.D-2 dated 16.06.1992.

¶48

(9)True it is that the original Will (Ex.D-2) has not
been filed and no foundation has been laid for leading
the secondary evidence. But the fact remains that at the
time when certified copy of the Will (Ex.D-2) was marked
as an exhibit, no objection was raised by the plaintiffs
before the trial Court and the said Will was also not
challenged on that score before the first appellate Court
by taking this plea.

¶49

(10) Now, before this Court the plea has been raised
that since no foundation has been laid for secondary
evidence, therefore, Will (Ex.D-2) is inadmissible in
evidence and it has to be excluded from consideration.

¶50

¶51

(11)It is well settled law that any objection as to the
proof of document has to be taken at the stage of marking
of the documents before the trial Court under Order 13
Rule 4 of the Code of Civil Procedure, 1973, if no
objection is raised, it cannot be permitted to be raised
at any stage subsequently at the same court or before the
appellate Court.

¶52

(12)In the matter of Dayamathi Bai(Supra), their
Lordships of the Supreme Court has held that objection as
to the mode of proof alleging same to be irregular or
insufficient has to be taken at the time of marking the
said document as an exhibit and the objection taken by
the party as to the mode of proof before the lower
appellate court is not sustainable holding that certified
copy of the sale deed is admissible in evidence. Relevant
paragraph of the report states as under :-

¶53

“13. We do not find merit in this civil
appeal. In the present case the objection
was not that the certified copy of Ex.P-1
is in itself inadmissible, but that the
mode of proof was irregular and
insufficient. Objection as to the mode of
proof falls within procedural law.
Therefore, such objections could be
waived. They have to be taken before the
document is marked as an exhibit and
admitted to the record (See: Order XIII

¶54

¶55

Rule 3 of Code of Civil Procedure). This
aspect has been brought out succinctly in
the judgment of this Court in R.V.E.
VenkatachalaGounderv.Arulmigu
Viswesaraswami & V.P. Temple & Another3 to
which one of us, Bhan, J., was a party
vide para 20.

¶56

(13) Since in the instant case, when the certified copy
of the Will was marked an an Exhibit D-2 during course of
trial and evidence, the plaintiff/appellant did not raise
any objection and allowed the certified copy to be marked
as exhibit before the trial Court and no question was
raised before the first appellate Court regarding non
production of original copy of Will. Now, before the
second appellate Court, this point cannot be permitted to
be raised as the plaintiffs failed to raise the said plea
either at the stage of marking the said document before
the trial Court under Order 13 Rule 4 of the CPC or
before the first appellate court, as such, the
substantial question of law No. 1 is answered against the
plaintiffs and in favour of the defendants.

¶57

Answer to substantial Question of law No. 2

¶58

(14) The Will (Ex.D-2) has been executed by Dasri in
favour of his two daughters (defendants No. 1 & 2)
excluding her other two daughters i.e. mother of

¶59

3 (2003) 8 SCC 752

¶60

¶61

plaintiff No. 1 and mother of plaintiff No. 2, which was
sought to be challenged by these two plaintiffs branding
the Will as forged Will. The plaintiffs, apart from
branding the Will as a forged will, simply pleaded in
paragraph 8 of the plaint that defendants No. 1 & 2 got
executed the forged Will in their favour and thereafter
got the revenue records mutated in their names, except
this, there is no pleading in the entire plaint
specifically denying the execution or attestation of the
Will. In the affidavit filed under Order 18 Rule 4 CPC,
the plaintiff No. 2 has stated that her mother was very
old and she was unable to move and defendants No. 1 & 2
got the forged Will executed in their favour. She has
admitted in the cross-examination that mutation
proceedings, the names of defendant No. 1 & 2 have been
recorded and appeal filed by them has been dismissed.

¶62

(15) Plaintiffs' witness – Jogiram Nageshia (PW-2) in
paragraph 5 of his statement has clearly admitted that
the Dasri had given the entire land to defendants No. 1
and 2 and has not given any of the land to mother of
plaintiff No. 1 and plaintiff No.2 and they are in
possession over the suit land by cultivating the same.
Except this, there is no evidence brought on record on
behalf of the plaintiffs to question the execution and
attestation of the Will.

¶63

¶64

(16) Defendant No. 1- Prasanna Kumari, who was examined
as DW-1, no question was suggested to her regarding
execution and attestation of the Will (Ex.D-2) except in
paragraph 4, suggestion was put to her that the forged
Will has been got executed by her, which she has denied.

¶65

(17)Likewise, attesting witness – Devchand (DW-2) has
clearly stated that he has seen the attesting witness of
the Will and the Will was signed by Dashri Bai in his
presence and the second witness Iliyas. In his cross-
examination, the only suggestion put to this attesting
witness is that Dasri Bai has not executed the Will and
some other woman has made thumb impression on the Will
(Ex.D-2), which is said to be the Will executed by Dasri
Bai, which has been refuted by attesting witness -
Devchand, as such, there is absolutely no evidence to
invalidate the execution and attestation of Will (Ex.D-2)
by Dasri Bai in favour of defendants No. 1 & 2.

¶66

(18) The Supreme Court in the matter of H.H. Maharaja
Bhanu Prakash Singh v. Tika Yogendra Chandra4has held
that when no specific denial as to genuineness or of
signature of testatrix or of the attesting witness, Will
cannot be held to be the suspicious document.

¶67

(19) The Supreme Court in the matter of Muddasani
Venkata Narsaiah (Dead) through legal representatives v.

¶68

4 1989 Supp (1) SCC 16

¶69

¶70

Muddasani Sarojana5has considered the decision of Nagpur

¶71

High Court in the matter of Kuwarlal Amritlal v. Rekhlal
Koduram6and has held that when attestation is not
specifically challenged and the witness is not cross-
examined regarding details of the attestation, it is
sufficient for him to say that document was attested. It
was further held that if other side wants to challenge
that statement, it is duty quite apart from raising a
pleading to cross-examine the witness along those lines.

¶72

(20) Reverting to the facts of the case in light of principles of law laid down by the Supreme Court in afore-cited cases (supra), it is quite vivid that in the present case firstly plaintiffs did not specifically deny the execution of the Will by Dashri Bai in favour of defendants No. 1 & 2 except vague assertion that Will executed is a forged document and further even the attestation was not specifically challenged in pleading by the plaintiffs, which is apparent from the fact that no cross-examination was made on behalf of the plaintiffs, defendants and their witnesses qua

¶73

attestation of Will. It was imperative on the part of the plaintiffs/appellants to specifically deny the execution and attestation of Will and to shift burden on propounder of the Will to establish that Will was duly executed and duly attested in accordance with Section 68 of the Indian 5 (2016) 12 SCC 288

¶74

6 AIR 1950 Nag 60

¶75

¶76

Evidence Act read with Section 63 of the Succession Act,
1923, as such, both the courts below have concurrently
and rightly held that plaintiffs are not entitled for the
reliefs claimed in the plaint and the Will (Ex.D-2)
executed by Dashri in favour of defendants No. 1 & 2 is a
duly executed Will in accordance with law.

¶77

(21) The last submission of learned counsel appearing for the plaintiffs would be that that there is no reason for Dashri Bai to bequeath the entire property in favour her two daughters (defendants No. 1 & 2) and deprive her two daughters i.e. mother of plaintiff No.1 and plaintiff No. 2 to the ancestral property, as such, that makes the Will (Ex.D-2) suspicious. This issue is no longer res integra, it has been held by Supreme Court in the matter of Rabindra Nath Mukherjee and another v. Panchanan Banerjee (Dead)7 that deprivation of the natural heirs by the testatrix should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession and natural heirs would be debarred in every case of will; of course, it may be in some cases they are fully debarred and in others only partially.

¶78

(22) Considering the submissions made by learned counsel

¶79

for the appellants from either of the angles, the irresistible and inescapable conclusion would be that 7 AIR 1995 SC 1684

¶80

¶81

there is no illegality or perversity in the findings recorded by two courts below qua the execution and attestation of the Will (Ex.D-2), as such, the first appellate Court is absolutely justified in affirming the judgment & decree of the trial Court dismissing the suit.

¶82

(23) Resultantly, the second appeal, being devoid of
merit, is liable to be and is hereby dismissed leaving
the parties to bear their own costs.

¶83

(24) Appellate decree be drawn-up accordingly.

¶84

Sd/-
 (Sanjay K. Agrawal)
Judge

¶85

D/-

¶86

Premsheela v. Prasanna Kumari and Others

Case brief

What is this about?

What did the court decide?

Premsheela v. Prasanna Kumari and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Siyaram and Others Vs Prakashchandra and Others

Mohan Lal Vs V.P. Kesharwani and Ors.

Panna Lal Vs State of Chhattisgarh

Khurshida Bano Vs Mu.Imtiyaz Bee and Others

Ram Prasad Yadav and Anr. Vs Smt.Shanti Agrawal and Others

Vedanti Tiwari Vs State Of Chhattisgarh And Ors.