Chattisgarh High Court
Nilu Bai vs Smt. Ramkunwar Bai on 31 July, 2025
1
2025:CGHC:37425
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 317 of 2024
Judgment Reserved on 21.07.2025
Judgment Pronounced on 31.07.2025
1 - Nilu Bai W/o Jagat Ram Sahu, Aged About 48 Years R/o Village-
Pendri, P.H. No. 4, Thana Lalgabh, Tahsil And District Rajnandgaon (C.G.)
2 - Sudarshan S/o Anand Ram Sahu, Aged About 33 Years R/o Village-
Pendri, P.H. No. 4, Thana Lalgabh, Tahsil And District Rajnandgaon (C.G.)
.. Appellants / defendants
versus
1 - Smt. Ramkunwar Bai W/o Late Santu Ram Sahu, Aged About 65 Years
R/o Village Pendri, P.H. No.4, Thana Lalbagh, Tahsil And District
Rajnandgaon (C.G.)
2 - Nirbhay Ram Sahu, S/o Santu Ram Sahu, Aged About 44 Years R/o
Village Pendri, P.H. No.4, Thana Lalbagh, Tahsil And District Rajnandgaon
(C.G.)
3 - Puranlal Sahu S/o Santu Ram Sahu, Aged About 42 Years R/o Village
Pendri, P.H. No.4, Thana Lalbagh, Tahsil And District Rajnandgaon (C.G.)
4 - Mahesh Sahu S/o Santu Ram Sahu, Aged About 40 Years R/o Village
Pendri, P.H. No.4, Thana Lalbagh, Tahsil And District Rajnandgaon (C.G.)
2
5 - Narendra Sahu S/o Santu Ram Sahu, Aged About 38 Years R/o Village
Pendri, P.H. No.4, Thana Lalbagh, Tahsil And District Rajnandgaon (C.G.)
[Plaintiffs]
6 - Smt. Budhiyarin Bai W/o Late Anand Ram, Aged About 65 Years R/o
Village Pendri, P.H. No.4, Thana Lalbagh, Tahsil And District Rajnandgaon
(C.G.)
7 - Jagat Ram S/o Anand Ram, Aged About 53 Years R/o Village Pendri,
P.H. No.4, Thana Lalbagh, Tahsil and District Rajnandgaon (C.G.)
8 - Bhaktu S/o Anand Ram, Aged About 49 Years R/o Village Pendri, P.H.
No.4, Thana Lalbagh, Tahsil And District Rajnandgaon (C.G.)
9 - Gopal Ram S/o Anand Ram, Aged About 47 Years R/o Village Pendri,
P.H. No.4, Thana Lalbagh, Tahsil And District Rajnandgaon (C.G.)
10 - Rukmani Bai D/o Anand Ram, R/o Village Pendri, P.H. No.4, Thana
Lalbagh, Tahsil And District Rajnandgaon (C.G.)
11 - Smt. Gomati Bai D/o Anand Ram, R/o Bhedi Bhantagaon, Tahsil And
District Rajnandgaon (C.G.)
[Defendants]
12 - State Of Chhattisgarh Through Collector, District Rajnandgaon (C.G.)
... Respondents
(Cause title is taken from Case Information System)
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For Appellant : Ms. Priyanka Rai, Advocate. For Respondents No. 1 to 5 : Mr. Aditya Bhardwaj, Advocate. For respondents No. 6 to 11 : Ms. Pooja Loniya, Advocate. For Respondent No. 12 : Ms. Mandvi Bhardwaj, Panel Lawyer
—————————————————————————————————
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Hon’ble Mr. Justice Naresh Kumar Chandravanshi
CAV Judgment
1. This is defendants’ Second Appeal filed under Section 100 of
CPC against the judgment and decree dated 04.08.2012, passed by 3 rd
Upper District Judge, Rajnandgaon (C.G.), in Civil Appeal No. 46-A /21
affirming the judgment and decree dated 24.09.2021 passed by 1 st Civil
Judge, Class-I, Rajnandgaon, in Civil Suit No. 311-A/2009, whereby civil
suit filed by original plaintiff – Santu Ram Sahu (now dead), predecessor
of respondent No. 1 to 5, for declaration of his title by declaring not binding
of Will executed by his mother Fulo Bai upon him, partition and permanent
injunction has been allowed in his favour.
[For the sake of convenience, parties would be referred to as
per their status shown in the plaint]
2. Imperative facts, as projected by original plaintiff in his plaint
are that original plaintiff late Santu Ram Sahu and original defendant No. 1
late Anandram were real brothers. Defendants No. 2 & defendant
No. 3 /appellants No. 1 & 2 herein are daughter-in-law ( cgw) and son,
respectively, of original defendant No. 1- Anandram. Suit land mentioned
in Schedule ‘A’, suit house mentioned in Schedule ‘B’ and Schedule “C”
attached with the plaint were inherited by Fulobai [mother of original
plaintiff – Santu Ram Yadav and original defendant – Anandram] from her
father – Hirdyeram. Fulo Bai expired on 06.01.2006, but before her death,
on 19.12.2003 she had executed registered Will (Ex.P-1) in respect of suit
land & suit house mentioned in Schedule “A”, “B” & “C” in favour for
defendant No. 2 / appellant No. 1 – Neelu Bai and defendant No. 3/
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appellant No. 2 – Sudarshan, who was grand-daughter in law and grand
son of late Fulo Bai. After death of Fulo Bai, the plaintiff filed an
application before Revenue Authority seeking partition of suit land and suit
house, the same was rejected and suit house & suit land was recorded in
the name of defendants No. 2 & 3 on the basis of Will dated 19.12.2003
executed by Fulo Bai in their favour, which give rise to file civil suit by
original plaintiff – Santu Ram Sahu. After death of original plaintiff- Santu
Ram Sahu & defendant – Anandram, names of their legal heirs have been
impleaded in cause title of the civil suit.
3. Defendants No. 1, 2 & 3 filed their joint written statement
stating inter alia that suit land & suit house was inherited by mother of
plaintiff and defendant No. 1, namely Late Fulo Bai from her father –
Hirderam, therefore, it was absolute property of Fulo Bai and the same
was not ancestral property of plaintiff and defendant No.1, as such, Fulo
Bai was having absolute right to alienate the same. It has further been
averred by defendants that Fulo Bai had executed registered Will dated
19.12.2003 in favour of defendants No. 2 & 3 with her free Will in presence
of witnesses, therefore, Will is absolutely binding upon the plaintiffs.
Hence, plaintiff (s) is not entitled relief sought for by them.
4. Based on pleading of both the parties, learned trial Court
framed as many as 4 issues, recorded evidence of both the parties and
after appreciation of the same, allowed the suit filed by the plaintiffs on the
ground that alleged Will (Ex. P-1) executed by Fulo Bai is surrounded with
grave suspicion circumstances, therefore, it cannot be held to be valid Will.
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5. Being aggrieved & dissatisfied with the judgment & decree of
the trial Court, defendants No. 2 & 3 preferred first appeal, which was
dismissed by first appellate Court upholding the judgment & decree
passed by the trial Court. Against which, instant second appeal has been
preferred by the appellants/defendants No. 2 & 3 challenging the same.
6. This second appeal has been admitted for hearing on the
following substantial question of law :-
“Whether, both the Courts below were justified
in holding that the Will (Ex.P-1) dated
19.12.2003 executed by Late Fulo Bai in
favour of Nilu Bai and Sudarshan is not
reliable, as such, it is not valid Will ?
7. Learned counsel appearing for the appellants / defendants No.
2 & 3 would submit that Will (Ex.P-1) was executed by Fulo Bai on
19.12.2003 in their favour and the same was got registered also, therefore,
its genuineness cannot be doubted only on the basis of imaginary
situations. Though, Fulo Bai was suffering from paralysis, but she was
mentally fit to execute Will, therefore, merely on the ground that she was
suffering from paralysis, genuineness of Will cannot be doubted. She
further submits that at a time person may think to distribute his / her
property to various persons, but subsequently, he / she can change his
mind and it can be given to few persons only. Further, it is clearly
mentioned in the Will that grand daughter-in-law Smt. Neelu Bai had
served and taken care of Fulo Bai (Testator of the Will) and she has a lot
of affection with her minor grandson – Sudarshan Kumar Sahu, hence, she
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is bequeathing the disputed property in their favour. He further submits
that Will is considered to be the last wish of the testator, therefore, it ought
not to have been disregarded on trivial grounds. She further submits that
alleged active role played by Anandram [father-in-law of defendant No. 2
& father of defendant No. 3] in execution of alleged Will and not disclosing
about the Will before the death of Fulo Bai are also not valid ground to
disbelieve the genuineness of the Will. To buttress her submissions, she
placed reliance upon the judgment of Rabindranath Mukherjee and
another vs. Panchanan Banerjee reported in AIR 1995 SC 1684, Shashi
Banarjee sons Vs. Subodh Kumar Banerjee & others reported in AIR
1964 SCC 529, Sita Ram Vs. R.D. Gupta & others reported in AIR 1982
P & H 83 and Palaniswami Vs. Ramayammal Sathers reported in 2006
(1) Civil C 518 (Mad).
8. Per contra, learned counsel for respondents No. 1 to 5 / legal
heirs of original plaintiff – Santu Ram Sahu would submit that concurrent
finding recorded by both the courts below is based on well appreciation of
evidence, and reasoned judgment has been passed, which does not call
for any interference in the instant appeal, hence, the second appeal is
liable to be dismissed.
9. I have heard learned counsel appearing for the parties and
perused the record of trial Court as well as first appellate court with utmost
circumspection.
10. Undisputedly, suit land and suit house was inherited by late
Fulo Bai, who was mother of original plaintiff late Santu Ram Sahu and
original defendant No.1 – Anandram, from her father Hridyeram, as such, it
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was absolute property of Fulo Bai. Since it was received by her from her
father, therefore, she was absolute owner of the same and it was not an
ancestral property of plaintiffs & defendant No. 1. Original plaintiff late
Santu Ram Sahu and original defendant No. 1 – Anandram were son of
late Fulo Bai, therefore, they are legal heirs of first category of late Fulo
Bai as per provisions contained in Sections 15 & 16 of the Hindu
Succession Act, 1956, but she had bequeathed the suit land and suit
house vide registered Will dated 19.12.2003 (Ex.P-1) in favour of
defendants No. 2 & 3, who are her grand-daughter in law and grand son.
11. It is trite law that, if any person claimed his title over the land /
immovable property on the basis of Will, then it is liability of such person /
propounder to prove that alleged Will was executed by testator with his /
her free Will, fit state of mind and it was last Will executed by the testator.
It is also incumbent upon the beneficiary / propounder to remove all
legitimate suspicion (s).
12. In the matter Murthy & Ors. v. C. Saradambal & Ors. 1, their
Lordships of the Supreme Court while considering one of the celebrated
decision in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma2
has observed as under :-
“32. In fact, the legal principles with regard to the proof of
a will are no longer res integra. Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Evidence Act,
1872, are relevant in this regard. The propounder of the
will must examine one or more attesting witnesses and the
onus is placed on the propounder to remove all suspicious
circumstances with regard to the execution of the will.
1 (2022) 3 SCC 290
2 AIR 1959 SC 443
8
33. In the above noted case, this Court has stated that the
following three aspects must be proved by a propounder:
(Bharpur Singh case [Bharpur Singh v. Shamsher Singh,
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696,
para 16)
“16. … (i) that the will was signed by the testator in a
sound and disposing state of mind duly understanding
the nature and effect of disposition and he put his
signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator’s mind and
his signature as required by law, courts would be
justified in making a finding in favour of propounder,
and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be
removed by cogent, satisfactory and sufficient
evidence to dispel suspicion. In other words, the onus
on the propounder can be taken to be discharged on
proof of the essential facts indicated therein.”
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit
Kaur, (1977) 1 SCC 369] , this Court pointed out that when
a will is allegedly shrouded in suspicion, its proof ceases to
be a simple lis between the plaintiff and the defendant.
What generally is an adversarial proceeding, becomes in
such cases, a matter of the court’s conscience and then,
the true question which arises for consideration is,
whether, the evidence let in by the propounder of the will is
such as would satisfy the conscience of the court that the
will was duly executed by the testator. It is impossible to
reach such a satisfaction unless the party which sets up
the will offers cogent and convincing explanation with
regard to any suspicious circumstance surrounding the
making of the will.
9
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v.
Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ)
934] , this Court has narrated a few suspicious
circumstance, as being illustrative but not exhaustive, in
the following manner: (SCC p. 699, para 23)
“23. Suspicious circumstances like the following may
be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky
and doubtful or not appear to be his usual signature.
(ii) The condition of the testator’s mind may be very
feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for the
natural heirs without any reason.
(iv) The dispositions may not appear to be the result
of the testator’s free will and mind.
(v) The propounder takes a prominent part in the
execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
36. It was further observed in Shamsher Singh case
[Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 :
(2009) 1 SCC (Civ) 934] that the circumstances narrated
hereinbefore are not exhaustive. Subject to offering of a
reasonable explanation, existence thereof must be taken
into consideration for the purpose of arriving at a finding as
to whether the execution of the will had been duly proved
or not. It may be true that the will was a registered one, but
the same by itself would not mean that the statutory
requirements of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao
[Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao,
10
(2006) 13 SCC 433] , in paras 34 to 37, this Court has
observed as under: (SCC pp. 447-48)
“34. There are several circumstances which would
have been held to be described by this Court as
suspicious circumstances:
(i) when a doubt is created in regard to the condition
of mind of the testator despite his signature on the
will;
(ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in
the execution of will which confers on him substantial
benefit.
***
35. We may not delve deep into the decisions cited at
the Bar as the question has recently been considered
by this Court in B. Venkatamuni v. C.J. Ayodhya Ram
Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh,
(2006) 13 SCC 449] , wherein this Court has held that
the court must satisfy its conscience as regards due
execution of the will by the testator and the court
would not refuse to probe deeper into the matter only
because the signature of the propounder on the will is
otherwise proved.
36. The proof of a will is required not as a ground of
reading the document but to afford the Judge
reasonable assurance of it as being what it purports to
be.
37 [Ed.: Para 37 corrected vide Official Corrigendum
No. F.3/Ed.B.J./86/2007 dated 5-12-2007.] . We may,
however, hasten to add that there exists a distinction
where suspicions are well founded and the cases
where there are only suspicions alone. Existence of
suspicious circumstances alone may not be sufficient.
The court may not start with a suspicion and it should
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not close its mind to find the truth. A resolute and
impenetrable incredulity is not demanded from the
Judge even if there exist circumstances of grave
suspicion.”
39. Similarly, in Leela Rajagopal v. Kamala Menon
Cocharan [Leela Rajagopal v. Kamala Menon Cocharan,
(2014) 15 SCC 570 : (2015) 4 SCC (Civ) 267] , this Court
opined as under: (SCC p. 576, para 13)
“13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will definitely
justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on
the basis of such scrutiny; the cumulative effect of the
unusual features and circumstances which would
weigh with the court in the determination required to
be made by it. The judicial verdict, in the last resort,
will be on the basis of a consideration of all the
unusual features and suspicious circumstances put
together and not on the impact of any single feature
that may be found in a will or a singular circumstance
that may appear from the process leading to its
execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the
subject including the decisions referred to and relied
upon before us.”
13. In the case of Meena Pradhan & others v. Kamla Pradhan &
Another3, Hon’ble Supreme Court, considering its various judgments on
3 (2023) 9 SCC 734
12
the principles required to be proved with regard to the validity of execution
of Will, has observed in para 10 & 11 as under;-
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp (1)
SCR 426 : AIR 1959 SC 443] (three-Judge Bench),
Bhagwan Kaur v. Kartar Kaur [Bhagwan Kaur v. Kartar
Kaur, (1994) 5 SCC 135] (three-Judge Bench), Janki
Narayan Bhoir v. Narayan Namdeo Kadam [Janki Narayan
Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] (two-
Judge Bench), Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh [Yumnam Ongbi Tampha Ibema
Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 :
(2009) 2 SCC (Civ) 348] (three-Judge Bench) and
Shivakumar v. Sharanabasappa [Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277] (three-Judge
Bench), we can deduce/infer the following principles
required for proving the validity and execution of the will:
10.1. The court has to consider two aspects : firstly, that
the will is executed by the testator, and secondly, that it
was the last will executed by him;
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent mind
has to be applied.
10.3. A will is required to fulfil all the formalities required
under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence and
by his direction and the said signature or affixation shall
show that it was intended to give effect to the writing as a
will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
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(c) Each of the attesting witnesses 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 the testator, or has received from the testator a
personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in the
presence of the testator, however, the presence of all
witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the will,
at least one of the attesting witnesses, who is alive,
subject to the process of court, and capable of giving
evidence, shall be examined;
10.5. The attesting witness should speak not only about
the testator’s signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
10.6. If one attesting witness can prove the execution of
the will, the examination of other attesting witnesses can
be dispensed with;
10.7. Where one attesting witness examined to prove the
will fails to prove its due execution, then the other
available attesting witness has to be called to supplement
his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before it
can be accepted as the testator’s last will. In such cases,
the initial onus on the propounder becomes heavier.
10.9. The test of judicial conscience has been evolved for
dealing with those cases where the execution of the will is
surrounded by suspicious circumstances. It requires to
consider factors such as awareness of the testator as to
the content as well as the consequences, nature and
effect of the dispositions in the will; sound, certain and
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disposing state of mind and memory of the testator at the
time of execution; testator executed the will while acting
on his own free will;
10.10. One who alleges fraud, fabrication, undue influence
et cetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
10.11. Suspicious circumstances must be “real, germane
and valid” and not merely “the fantasy of the doubting
mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC
277] “. Whether a particular feature would qualify as
“suspicious” would depend on the facts and circumstances
of each case. Any circumstance raising suspicion
legitimate in nature would qualify as a suspicious
circumstance, for example, a shaky signature, a feeble
mind, an unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of
the will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it
has to be proved that : (a) the testator signed the will out
of his own free will, (b) at the time of execution he had a
sound state of mind, (c) he was aware of the nature and
effect thereof and (d) the will was not executed under any
suspicious circumstances.
14. In view of aforesaid law laid down by Hon’ble Apex Court in the
afore-cited cases, if facts of the instant case is examined, then it is found
that defendants No. 2 & 3 are claiming their absolute right over the suit
land and suit house on the basis of Will (Ex.P-1) executed by Fulo Bai in
their favour, which has not been accepted as genuine Will by both the
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Courts below on following suspicious circumstances :-
(A) At the time of execution of Will, late Fulo Bai
was suffering from paralysis, therefore, she was
not in a fit state of mind.
(B) Late Fulo Bai herself wanted to partition suit
property in three shares, but vide alleged Will, it
was given only to defendants No. 2 & 3.
(C) Defendant No. 1 late Anandram, who was
father-in-law of defendant No. 2 and father of
defendant No. 3 who are beneficiaries /
propounder of the Will, had played active role in
execution of Will.
(D) The will did not see the light of the day for long.
15. Very recently, in the matter of Metpalli Lasum Bai (since
dead) and others Vs. Metapalli Muthaith (D) by legal representatives 4,
their Lordships of the Supreme Court has held that Will is a registered
document and, thus, there is presumption regarding genuineness thereof.
Therefore, burden would lie on the party, who disputed its existence to
establish that it was not executed in the manner as alleged or that there
were suspicious circumstances, which made the same doubtful.
16. Prior to raising such presumption, propounder of the Will is
prima facie bound to prove genuineness of the Will in the manner as has
been provided in Section 63 of the Hindu Succession Act, 1925 read with
Section 68 of the Evidence Act, as has been observed in the case of
Murthy & others (supra) and Meena Pradhan & others (supra).
17. In the instant case, to prove the alleged Will (Ex.P-1),
4 Civil Appeal (S) No. 5921 of 2015 & Civil Appeal (S) 5922 of 2015, decided on 21st July, 2025
16
defendant No. 2 – Nilu Bai examined herself as DW-1 and one attesting
witness Shravan Yadav as DW-2. As per their deposition, while execution
of Will, apart from them, Fulo Bai, Anand Ram & Sawat Ram (second
attesting witness) had also gone with them, but as per Nilu Bai (DW-1),
Will was got written by her father-in-law – Anand Ram, whereas, attesting
witness Shrawan Yadav (DW-2) had deposed that it was got written by
testator – Fulo Bai. None of these witnesses have stated in their
deposition that while execution of the will (Ex.P-1) testator Fulo Bai was of
sound mind whereas Smt. Neelu Bai (D.W-1) herself has admitted in her
cross-examination that Fulo Bai was suffering from paralysis. As per Will
(Ex.P-1), while execution of Will, age of Fulo Bai was 70 years and she
was suffering from paralysis, therefore, defendants ought to have proved
the fact that while execution of Will, she had a sound state of mind and
she was aware of the nature and effect thereof, but complete lack of
evidence in this regard clearly show grave suspicious circumstances
surrounded the will.
18. Contradictory statement of Nilu Bai (DW-1) and attesting
witness Shravan Yadav (DW-2), as to who got written the Will also raised
grave suspicion upon the Will. The Will is an instrument of testamentary
disposition of property. It is a legally acknowledged mode of bequeathing a
testator’s property during his life time to be acted upon on his / her death
and carries with it an element of sanctity. It speaks from the death of
testator. Since the testator / testatrix, at the time of testing the documents
for its validity, would not be available for deposing as to the circumstances,
in which, the Will came to be executed, stringent requisites for the proof
thereof have been statutorily enjoined to rule out the possibility of any
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manipulation. In such circumstances, it ought to have been proved by the
propounder / attesting witness of the Will that, who got written the Will. But
contradictory statement in this regard in the deposition of propounder i.e.
Nilu Bai (DW-1) in the instant case and attesting witness Shravan Yadav
(DW-2) creates doubt about the genuineness of the Will to hold that it was
written as per the instructions of late Fulo Bai.
19. Aforesaid fact also found to be surrounded from doubt, because
as per deposition of Nilu Bai Sahu (DW-1), testator /testatrix – Late Fulo
Bai herself wanted to partition her property in three shares between Late
Fulo Bai, Anandram (DW-1) and late Santu Ram Sahu (plaintiff), but in the
alleged Will, no share was given by late Fulo Bai to both her sons i.e.
original plaintiff – Santu Ram Sahu and defendant No. 1 – Anand Ram
Sahu. It is also apparent from the evidence of Nilu Bai (DW-1) that her
father-in-law Anand Ram Sahu had played active role in execution of said
Will. All these facts raised doubt that only to deprive plaintiff from getting
share, Anand Ram got written Will (Ex. P-1) keeping in dark testator – Fulo
Bai, only in favour of his daughter-in-law (defendant No. 2) and his son
(defendant No. 3), else why testator Fulo Bai, who wanted to give share to
the plaintiff, would have deprived him. Aforesaid suspicious circumstances
became more grave because defendants brought the Will in the light /
knowledge of plaintiff and other persons only after death of Fulo Bai i.e.
after more than two years from its execution. Whereas, if a Will (Ex.P-1)
would have got executed by its testator – Fulo Bai with her free will and
she was intended to give her property to defendants No. 2 & 3 only, by
excluding her both the sons, then it would have brought in the knowledge
of plaintiff and other persons, but the Will was kept in dark for more than
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two years, which also creates doubt about the genuineness of the Will
(Ex.P-1).
20. In view of foregoing discussion, it is found that learned trial Court
as well as First Appellate Court has not erred in law in not relying upon the
genuineness of Will (Ex.P-1). Consequently, judgment & decree passed
by the trial Court as well as first appellate Court is upheld and the second
appeal filed by the appellants/defendants deserves to be dismissed.
21. Accordingly, substantial question of law is answered in favour of
plaintiffs and against the defendants. Consequently, second appeal is
dismissed. No order as to cost (s).
22. A decree be drawn up accordingly.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
amit
Digitally signed
AMIT by AMIT
KUMAR DUBEY
KUMAR Date:
DUBEY 2025.08.01
16:55:57 +0530
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