Dismissed

Reshamlal v. Mu. Radhabai Bhaina and Anr.

Chhattisgarh HC10 May 2023SA/545/2013

Case brief

AI extract

What is this about?

In this second appeal challenging a lower appellate court's refusal to validate a registered deed of Will, the High Court of Chhattisgarh held that the appeal was devoid of merits. The Court affirmed that the failure to examine an attesting witness renders the execution of the Will unproven under Section 68 of the Evidence Act, upholding the trial court's decision.

What did the court decide?

The appeal was dismissed in limine because the execution of the Will was not proved by examining at least one attesting witness as mandated by law.

Reshamlal Vs Mu. Radhabai Bhaina and Anr. — Succession and Inheritance | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No. 545 of 2013

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Reshamlal S/o Gadha Bhaina Aged About 54 Years, Occupation Agriculturist, R/o village Dumarpali, Tah. Pussor, P.S. Pussor, Raigarh, District Raigarh, Civil and Revenue District Raigarh Chhattisgarh

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---- Appellant

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Versus

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Mu. Radhabai Bhaina D/o Late Ramcharan Bhaina Aged About 50 Years Wd/o Late Motilal, Occupation Labour, R/o Dumarpali, Tah. Pussor, Distt. Raigarh Civil and Revenue District Raigarh and Present Address- Village- Tadola, Tah. And Distt. Raigarh C.G., Chhattisgarh

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State Of Chhattisgarh Thru- The Collector, Raigarh, District : Raigarh, Chhattisgarh

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---- Respondents

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For Appellant :Shri Vivek Kumar Tripathi, Advocate For Respondent No.2/State :Shri Raghvendra Verma, Govt. Advocate

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Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment/Order on Board

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10.05.2023

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Heard on admission.

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1. This appeal has been preferred by Defendant- Reshamlal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'), questioning the legality and propriety of the judgment and decree dated 05.10.2013 passed in Civil Appeal No.61-A/2013, whereby, the lower appellate court while affirming the judgment and decree dated 03.08.2012 passed by the Second Civil Judge Class-I, Raigarh has disbelieved the validity of the registered deed of Will, dated 18.11.2002(Ex.P-8). The parties to this appeal shall be referred hereinafter as per their description before the trial Court.

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2. From perusal of the record, it appears that a suit was instituted by the Plaintiff- Mu. Radha Bai D/o Ramcharan seeking declaration to the effect that the registered deed of sale dated 20.06.1988 (Ex.P-4) and registered deed of Will dated 18.11.2002(Ex.P-8), said to have been executed by her father, Ramcharan in favour of Defendant No.1Reshamlal, be declared as null and void. According to the Plaintiff, the suit property described in Serial No. 1 of plaint Schedule ‘A’ and the property described in plaint Scheduled ‘B’ are her ancestral properties and since it was sold under the registered deed of sale(Ex.P-4) by her father in favour of Defendant No.1 who has not paid the entire sale consideration to him, therefore, it requires to be declared as null and void. It was pleaded further that the alleged registered deed of Will, dated 18.11.2002(Ex.P-8) as executed by her father in respect of the property mentioned in Serial No.2 of the plaint Schedule ‘A’ was a forged one, therefore, no right, title or interest would confer upon the said Defendant, the legattee.

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3. The aforesaid claim was contested by Defendant No.1-Reshamlal and, the trial Court after considering the evidence led by the parties, vide its judgment and decree dated 03.08.2012 arrived at a conclusion that the alleged registered deed of sale dated 20.06.1988(Ex.P-4) was duly executed by Plaintiff’s father in favour of the said Defendant, therefore, it cannot be held to be null and void. It held further with regard to the alleged Will(Ex.P-8) that since the Defendant, the propounder of it, has failed to establish the same by examining the attesting witnesses, therefore, it cannot be held to be a valid one and, accordingly, the Plaintiff’s claim has been decreed in part only.

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4. Being aggrieved with the aforesaid judgment and decree, the Plaintiff

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has preferred an appeal with regard to the refusal of her part claim, which was registered as Civil Appeal No.63-A/2014, while the appeal, being Civil Appeal No.61-A/2013, was preferred by Defendant No.1 with regard to the decree wherein the validity of the alleged Will(Ex.P-8) was held to be null and void by the concerned trial Court.

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5. Both the aforesaid appeals were dismissed by the lower appellate court by way of its common impugned judgment and decree and, being aggrieved, the instant appeal has been preferred by Defendant No.1, therefore, I am, concerned only with regard to the judgment and decree passed by the lower appellate court in Civil Appeal No.61-A/2013, whereby the due execution, attestation and validity of the alleged Will has been disbelieved.

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6. A bare perusal of the alleged deed of Will executed on 18.02.2011 (Ex.P-8), it appears that it was executed by Plaintiff’s father, Ramcharan in favour of the said Defendant- Reshamlal in relation to the property described in Serial No.2 of plaint Schedule ‘A’. Since the said defendant is trying to set up his interest over the property in question by virtue of the alleged deed of Will (Ex.P-8), the burden is therefore, upon him to establish the due execution, attestation and validity of it by way of examining at least one of its attesting witnesses as required under Section 68 of the Indian Evidence Act, 1872. The said provision is relevant for the purpose, which reads as under :

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68 . Proof of execution of document required by law to be attested .—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to

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the process of the Court and capable of giving evidence:

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[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

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7. The aforesaid provision speaks of as to how a document required by law to be attested can be proved. According to the said provision, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if their be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. On a combined reading of Section 63 of the Indian Succession Act, 1925 with Section 68 of the Evidence Act, 1872, it appears that a person propounding the Will has to prove that the Will was duly and validly executed and for which at least one attesting witness has to be called for proving its due execution as envisaged under Section 68 of the Indian Evidence Act, 1872.

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8. Here in the instant matter, it appears that none of the attesting witnesses were examined by its propounder, namely, Reshamlal in order to prove its due execution. In view thereof, the execution of it cannot be upheld. Since the alleged deed of Will(Ex.P-8) has not been proved as required to be proved mandatorily under Section 68 of the Indian Evidence Act, 1872, as observed herein above, therefore, it cannot be said that he(Reshamlal) acquired any interest whatsoever over the property in question based upon the alleged Will(Ex.P-8).

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Consequently, the Courts below have rightly disbelieved the same while decreeing the plaintiff's claim in this regard and, I do not find any question of law, much less the substantial questions of law, which arise for determination in this appeal. The appeal being devoid of merits, is accordingly dismissed at the admission stage itself.

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(Sanjay S. Agrawal) JUDGE

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sunita

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Reshamlal v. Mu. Radhabai Bhaina and Anr.

Case brief

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Reshamlal v. Mu. Radhabai Bhaina and Anr.

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