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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Narendra Kumar Vyas, J.
Balram, S/o Mohar - Appellant
Vs.
Nawaso @ Kushwanti, W/o Lalsai - Respondent
SA No. 117 of 2011
Decided On : 08-09-2022
Will - Declaration of Title and Possession - Land Revenue Code - Indian Succession Act, 1925 & Indian Evidence Act, 1872 - [KEYWORD] - [SUBJECT] - [Section 63 of Indian Succession Act, 1925, Section 68 of Indian Evidence Act, 1872] - The court discussed the validity of the Will dated 05.07.1998 and the execution and attestation of the Will by Siyani in favor of the plaintiff. The court highlighted the failure of the plaintiff to establish the execution and attestation of the Will, the doubts raised over the existence of the Will, and the lack of proof of the custom regarding the examination of the first menstruation period of a newly wedded wife. The court emphasized the burden of proof on the plaintiff and the legal principles related to the validity of the Will, attestation, and proof of execution. The court's decision was influenced by the lack of evidence to prove the custom and the failure to meet the legal requirements for the validity of the Will.
Fact of the Case:
The plaintiff filed a civil suit for declaration of Will dated 05.07.1998 to be valid and effective, declaration of title and possession of a property received through partition from his brother. The defendant contested the validity of the Will and the plaintiff's entitlement to the property, claiming to be the daughter of the deceased and the rightful heir.
Finding of the Court:
The court found that the plaintiff failed to establish the execution and attestation of the Will, and the doubts raised over the existence of the Will were not cleared. The court also noted the lack of proof of the custom regarding the examination of the first menstruation period of a newly wedded wife. The court dismissed the appeal and affirmed the lower court's decision, ruling against the plaintiff.
Issues: The issues included the validity of the Will, the plaintiff's title over the property, and the intention of the parties in executing the Will with the alleged intention to grab the property.
Ratio Decidendi: The burden of proof was on the plaintiff to establish the execution and attestation of the Will, and the court emphasized the lack of evidence to prove the custom and meet the legal requirements for the validity of the Will.
Final Decision: The court dismissed the second appeal, ruling against the plaintiff and affirming the lower court's decision.
JUDGMENT :
1. This second appeal has been filed by the appellant/plaintiff under Section 100 of the C.P.C. against judgment and decree dated 07.02.2011 passed by District Judge, Jashpur (C.G.) in Civil Appeal No. 24-A/2010 (Balram Vs. Nawaso @ Kushwanti & others) affirming the judgment and decree dated 08.02.2006 passed by Second Civil Judge Class-I, Jashpur Nagar, District- Jashpur (C.G.) in Civil Suit No. 58A/06 old Civil Suit No. 37A/2001.
2. For the sake of convenience, the parties shall be referred to in terms of their status mentioned in Civil Suit No. 58A/06 which was filed for declaration of title and possession.
3. The instant Second Appeal is admitted for hearing by this Court vide its order dated 01.03.2021 on the following substantial question of law:-
"Whether both the Courts below were justified in holding that the plaintiff has failed to establish the execution and attestation of the Will dated 25.07.1998 (Ex. P/1) by Siyani in favour of the plaintiff by recording a finding which is perverse to the record?
4. The brief facts, as reflected from the plaint averments, are that the plaintiff has filed the civil suit for declaration of Will dated 05.07.1998 to be valid and effective, declaration of title and possession mainly contending that the suit property is situated at Village- Tangargaon, Patwari Halka No. 40, Revenue Circle-Kansabel, Sub-Tahsil- Kansabel, Tahsil- Bagicha, District-Jashpur (C.G.) total 4 nos. khasra area admeasuring 0.268 Hectare, which has been described in Schedule-A of the plaint was received by one Siyani through partition from his brother and his name was recorded in the revenue record in the year 1984. It has been contended that marriage of Siyani was solemnized on 06.04.1969 with one Baghen Bai, who was R/o Village- Ghicha. Since Siyani was ill and suffering from epilepsy and weak person, therefore, his wife was resided with him for eight days and no relationship of husband and wife was established between them. It has been further contended that as per custom of community unless married woman’s first menstruation period is occurred in the matrimonial house till then no relationship is developed between husband and wife.
5. It has been further contended that after eight days, wife of Siyani Ram left matrimonial house, went to her parental house and she has refused to come back to her matrimonial house. Siyani's father with consent of Siyani with two persons moved to Village-Ghicha and got divorced with Baghen Bai in front of parents of Siyani and two persons of society. It has been further contended that after divorce between Baghen Bai and Siyani, Baghen Bai married with one Arjun, who was resident of Khuntgaon and thereafter defendant No. 1- Nawaso @ Kushwanti was borne with their wedlock. It has been further contended that after sometime, Siyani became ill and he was under impression that he may be expired soon, therefore, he executed a Will on 05.07.1998 wherein property owned and in possession of Siyani was given to the plaintiff. Siyani expired on 08.12.1998.
6. It has been further contended that the plaintiff has moved an application before Tahsildar, Jashpur for recording his name as per provision of Section 109 of the Land Revenue Code, but Nawaso @ Kushwanti raised objection treating her to be daughter of Siyani, as such, the application was rejected vide order dated 16.05.2000 on the ground that the Will is forged one. Against that order, he has preferred an appeal which was one day time barred before Sub-Divisional Officer, Jashpur and the same has been dismissed as barred by limitation, which has necessitated the plaintiff to file the present suit.
7. It has been further contended that defendant No. 1 is not daughter of Siyani and her father is Arjun Ram, therefore, she is not entitled to get the suit property and since the plaintiff being brother of Siyani has taken care for entire life of his brother and he was satisfied with the care taken by him, he has executed Will on 05.07.19
AI
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