Satyaprakash Saraf Vs Smt. Asha Saraf

Satyaprakash Saraf, S/o Late Khatanand @ K. Anand Saraf, Aged About 51 Years, R/o House No.M./1174, Adarsh Nagar, Kushmunda, Tahsil Katghora, District Korba (C.G.)

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... Appellant/Plaintiff

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versus

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1 - Smt. Asha Saraf W/o Dharamprakash Saraf Aged 41 Years R/o House No. I/22, 15 Block Colony, S.E.C.L. Korba (C.G.)

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2 - Daramprakash Saraf S/o Late Khatanand @ K. Anand Saraf, Aged 56 Years, R/o House No. I /22, 15 Block Colony, S.E.C.L. Korba (C.G.)

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3 - State Of Chhattisgarh Through Collector, Bilaspur (C.G.)

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... Respondents/Defendants

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For Appellant	: Shri B. P. Gupta, Advocate
For Respondent No.1	: Shri Arvind Shrivastava, Advocate
For Respondent No.2	: Shri Dharam Prakash Saraf appears in person
For Respondent No.3/State	: Shri Kanwaljeet Singh Saini, Dy.GA

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D.B.: Hon’ble Shri Justice Sanjay S. Agrawal Hon’ble Shri Justice Amitendra Kishore Prasad

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C A V Judgment

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Per Sanjay S. Agrawal, J.

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1) This appeal has been preferred by the plaintiff under Section 96 of the Code of Civil Procedure, 1908, questioning the legality and propriety of the judgment and decree dated 29/11/2019 passed by the Additional District Judge, Bilaspur (C.G.) in Civil Suit No.55-A/2014, whereby, his

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claim has been refused. The parties shall be referred hereinafter as per their description before the trial Court.

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2) The facts, which are essential for adjudication of this appeal, are that the plaintiff instituted a suit claiming declaration to the effect that a registered deed of Will, dated 05/09/2007 executed by his father, namely, Khatanand in favour of his sister-in-law (Bhabhi), the defendant No.1-Smt. Asha Saraf, with regard to the land in question bearing Khasra No.748/2 admeasuring 0.38 decimal situated at Village Tifra, Tehsil and District Bilaspur, be declared as null and void and, praying further for issuance of injunction restraining her from creating any third party interest over the alleged suit land.

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3) According to the plaintiff, the alleged suit land was recorded in his father’s name in revenue papers, while the land adjoining to it, i.e., land bearing Khasra No.748/5 admeasuring 0.38 acres was recorded jointly in his name as well as of his brother’s name, namely, Dharam Prakash Saraf, the defendant No.2, who is the husband of said Smt. Asha Saraf. It is pleaded further by the plaintiff that initially both these lands were leased out to the Bharat Petroleum Corporation Limited for running a Petrol Pump and, the possession of it was thereafter obtained by them jointly in execution of a decree drawn on 01/12/1998 passed in Civil Suit No.69-A/1998 “Khatanand and another vs. Bharat Petroleum Corporation Limited”. It is pleaded further that after the death of his father, he came to know regarding the execution of the alleged registered deed of Will, dated 05/09/2007, when a closed envelop was opened in his presence that it was bequeathed by his father to the defendant No.1, who got the revenue papers mutated in

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his absence based upon it vide order dated 25/07/2012 passed by the Tehsildar, Bilaspur in Revenue Case No.155/A-6/2010-11.

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4) Further of his plea is that he came to know, later on, in the month of October, 2013, regarding the execution of the registered deed of Will, dated 15/08/2008 and also the deed of arrangement made by his father, whereby, the alleged lands were bequeathed by him in his favour as well as of his brother-Dharam Prakash Saraf, the defendant No.2 and, it was pleaded further that because of its execution, the earlier Will has come to an end, but when it was not given effect to, he was, therefore, constrained to institute a suit in the instant nature, instituted on 11/03/2014.

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5) While contesting the aforesaid claim, it was pleaded by the defendants in their separate written statements that the total area of the land bearing Khasra No.748/2 was 0.76 acres and, was initially owned in equal share by their father-Khatanand and one Harish Chandra Saraf, from whom, he purchased his share, while mentioning the name of his bother nominally as well, which was re-numbered as Khasra No.748/5 admeasuring 0.38 acres adjoining to the suit land bearing Khasra No.748/2 acres. It is contested further on the ground that the land in question was bequeathed by his father in the name of his daughter-inlaw-Smt. Asha Saraf by executing a registered deed of Will dated 05/09/2007, who got the revenue papers recorded in her name well within the knowledge of the plaintiff. It was contested further on the ground that the alleged registered deed of Will produced by the plaintiff, was executed by his father in the year 2003-04, but subsequently, got it cancelled and the plaintiff while fabricating the

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same in presence of two witnesses, has given the shape of it as a Will dated 15/08/2008, wherein, the signature of his father was not there. The plaintiff’s claim, thus, deserves to be dismissed.

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6) The trial Court, after considering the evidence led by the parties, held that the registered deed of Will, dated 05/09/2007 (Ex.D-1) has been executed by said Khatanad in favour of his daughter-in-law, i.e.,the defendant No.1 as its execution was not denied by the plaintiff ; and held further that the registered deed of Will, dated 15/08/2008 (Ex.P-1) and the deed of arrangement made by said Khatanand, the father of the plaintiff and defendant No.2 in their favour, is a fictitious one as neither the date was mentioned near the signature of him, nor the pages of it are in proper sequence and, while observing as such, has dismissed the plaintiff’s claim, while upholding the order dated 25/07/2012 passed by the Tehsildar, Bilaspur in Revenue Case No.155/A-6/2010-11 recording the name of defendant No.1 in revenue papers based upon the alleged registered deed of Will dated 05/09/2007 (Ex.D-1).

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7) Shri B.P. Gupta, learned counsel appearing for the appellant/plaintiff submits that the finding recorded by the trial Court upholding the due execution, attestation and validity of the registered deed of Will dated 05/09/2007 (Ex.D-1), is apparently contrary to law, as its attesting witnesses, namely, A.K. Tiwari and M.Y. Raje, have failed to prove its due execution as required under Section 63 of the Indian Succession Act, 1925 and, thereby erred further in upholding the order dated 25/07/2012 passed by the Tehsildar, Bilaspur in Revenue Case No.155/A-6/2010-11, directing for the correction of revenue papers in

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the name of defendant No.1-Smt. Asha Saraf based upon it. It is contented further that the registered deed of Will dated 15/08/2008 (Ex.P-1) executed in favour of him and his brother, namely, Dharam Prakash Saraf by his father Khatanand was duly proved by the witnesses, therefore, its execution ought not to have been disbelieved.

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8) On the other hand, learned counsel appearing for the respondent No.1 and, the respondent No.2-Dharam Prakash Saraf, who appeared in person, submits that since the execution of the registered deed of Will dated 05/09/2007 (Ex.D-1) was admitted by the plaintiff, therefore, its execution was rightly upheld by the trial Court. While referring to the registered deed of Will dated 15/08/2008 (Ex.P-1), it is contended further that since the “date” near the signature of its executant, namely, Khatanand was not there, nor its pages are in a proper manner, therefore, its authenticity has rightly been held to be doubtful by the trial Court. The respondent No.2, who appeared in person, has placed his reliance upon the decisions rendered by the Supreme Court in the matter of Bachhaj Nahar Vs. Nilima Mandal & Others, reported in AIR 2009 SC 1103, Gopal Krishan and Others Vs. Daulat Ram and Others, reported in (2025) 2 SCC 804, Metpalli Lasum Bai (Since Dead) and Others Vs. Metapalli Muthaih (D) By LRs., reported in 2025 Live Law (SC) 734 and Nikhila Divyang Mehta vs. Hitesh P. Sanghvi , reported in (2025) INSC 485.

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9) We have heard learned counsel appearing for the parties and perused the entire record.

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10) The main questions which arise for determination in this appeal are :-

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(a) Whether due execution, attestation and validity of the registered deed of Will dated 05/09/2007 (Ex.D-1), purported to have been executed by said Khatanand in favour of his daughter-in-law (Bhabhi), namely, Smt. Asha Saraf, was duly established by its propounder?

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(b) Whether the registered deed of Will dated 15/08/2008 (Ex.P-1) has duly been executed by said Khatanand in favour of his sons, i.e., plaintiff and defendant No.2 ?

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11) Ex.D-1 is the registered deed of Will dated 05/09/2007 executed by said Khatanand in respect of his land bearing Khasra No.748/2, admeasuring 0.38 decimal in favour of his daughter-in-law, namely, Smt. Asha Saraf, the defendant No.1, in presence of two witnesses namely, A.K. Tiwari (DW-3) and M.Y. Raje (DW-5) and, a deed of ‘ Khulasanama’ is the part of it. According to the statement of attesting witness, namely, A.K. Tiwari (DW-3), it appears that he signed the alleged document Ex.D-1 after its reading, but was not aware whether he signed any other document apart from it or not. Further of his testimony would show that since ‘decimal’ was mentioned therein, instead of ‘acres’, therefore, for its clarification, a deed of ‘ Khulasanama ’ was prepared, but, which was not signed by him.

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12) According to M.Y. Raje (PW-5), the another attesting witness, it appears that the alleged Will (Ex.D-1) was typed at the Registration Office, Korba, where, he put his signature and it was deposed further suo moto that he signed a correction deed, i.e., ‘ Khulasanama’ as well.

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13) What is, therefore, reveals from their testimonies that the alleged registered deed of Will (Ex.D-1) was signed by them, but none of them have, however, stated that the alleged Will was read over to its

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executor, namely, Khatanand or he signed on it, after its reading, so as to hold that it was duly executed in accordance with Section 63 of the Indian Succession Act, 1925. The said provision, which is relevant for the purpose, provides as under :

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63. Execution of unprivileged Wills .--”Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

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(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

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(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form attestation shall be necessary”.

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14) A bare perusal of clause (c) of the aforesaid provision would show that

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the Will shall be attested by two or more witnesses and, each of whom must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of him (testator), or has received from the testator a personal acknowledgment of his signature or mark, or the signature of some other person.

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15) Since both the attesting witnesses, as revealed from their testimonies, have failed to state that before its execution, it was either read over to said Khatanand, or he signed after its reading, therefore, the due execution and attestation of the alleged Will (Ex.D-1) cannot be held to be executed in accordance with law. The said observation is fortified by the principles laid down by the Supreme Court in the matter of Daulat Ram and Others Vs. Sodha and Others, reported in (2005) 1 SCC 40, wherein it has been held at para 10 as under:-

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“10. Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other……..”

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16) It is to be seen further that the deed of ‘ Khulasanama’ was the part of it and according to the statement of A.K. Tiwari (DW-3), it was not signed by him, while according to M.Y. Raje (DW-5), it was signed by him. However, a bare perusal of the alleged ‘ Khulasanama’ would reveal the fact that none of them have, in fact, signed the same. Their testimonies

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are, thus, not reliable, therefore, it cannot be said that the alleged clarification deed ‘ Khulasanama’ forming part of the registered deed of Will dated 05/09/2007 was signed by them, or based upon their testimonies, the due execution, attestation and validity of the Will (Ex.D-1) could be held to be executed in accordance with law in favour of defendant No.1-Smt. Asha Saraf, in view of the provisions prescribed under Section 63 of the Indian Succession Act, 1925.

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17) (i) Now, insofar as the principles laid down by the Supreme Court in the matter of Gopal Krishan and others (supra), as relied upon by the respondent No.2, is concerned, the same is, however, noted to be distinguishable from the facts involved herein. As in the said matter, the attesting witness of the Will had seen the deceased affixed his mark on the Will and, therefore, it was held therein that the compliance of Section 63 (c) of the Indian Succession Act, 1925 has duly been complied with. However, in the instant matter, as observed hereinabove, none of the attesting witnesses to the alleged registered deed of Will dated 05/09/2007 (Ex.D-1) had seen the testator signed the same. No reliance, therefore, could be placed upon it.

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(ii) As far as the principles laid down in the matter of Metpalli Lasum Bai (Since Dead) and Others (supra), is concerned, the same is also distinguishable as in the said matter, the legatee was found to be in possession of the land acquired under the registered deed of Will and subsequently, the legatee’s purchaser under the registered deed of sale executed in pursuance thereof and which was not found to be questioned. The said Will was, thus, found to be acted upon and in view of the said factual scenario, a presumption was drawn regarding

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due execution of the registered Will as signature of the testator was found to be accepted by him, i.e. the testator’s son. However, such a position is not here, so as to place reliance upon it.

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(iii) Likewise, the principles laid down in the matter of Nikhila Divyang Mehta (supra), is of no use as that is the case where a suit questioning the validity of the registered Will was held to be barred by time as it was instituted much beyond the period of three years provided under Article 58 of the Indian Limitation Act, 1963 from the date of its knowledge. Insofar as the principles laid down in the matter of Bachhaj Nahar (supra), is concerned, the same is, however, made entirely on different footings, as such, no reliance could be placed upon it.

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18) Now, insofar as the registered deed of Will dated 15/08/2008 (Ex.P-1) executed by Khatanand in favour of his sons, i.e.,the plaintiff and defendant No.2, is concerned, the same, however, appears from its bare perusal that one of its page was not signed by him. Therefore, its authenticity cannot be upheld as well.

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19) In view of the aforesaid background, the due execution, attestation and validity of both the registered deed of Will dated 05/09/2007 (Ex.D-1) as well as, the Will dated 15/08/2008 (Ex.P-1), thus cannot be upheld.

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20) Consequently, the appeal preferred by the plaintiff against the impugned judgment and decree, dated 29/11/2019 passed by the Additional District Judge, Bilaspur (C.G.) in Civil Suit No.55-A/2014, is allowed in part and, the execution of the registered deed of Will dated 05/09/2007 (Ex.D-1) executed by Khatanand in favour of the defendant

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No.1 and the order dated 25/07/2012 passed by the Tehsildar, Bilaspur in Revenue Case No.155/A-6/2010-11 are held to be invalid; and, the execution of the registered deed of Will dated 15/08/2008 (Ex.P-1) executed by the said Khatanand in favour of his sons i.e. plaintiff and defendant No.2 is also held to be invalid.

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No order as to cost.

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A decree be drawn accordingly.

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SD/SD/- (Sanjay S. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Tumane

Satyaprakash Saraf v. Smt. Asha Saraf

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Satyaprakash Saraf v. Smt. Asha Saraf

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