C A V Judgment

1. The present Second Appeal has been filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 28.01.2016 passed by the learned Second Additional District Judge, Korba (C.G.) in Civil Appeal No. 12-A/2015 (Smt. Jaibun Nisha vs. Mohd. Sikandar & Anr.), whereby the judgment and decree dated 07.02.2015 passed by the learned Civil Judge, Class-II, Korba (C.G.), in Civil Suit No. 20-A/2014 (Smt. Jaibun Nisha vs. Mohd. Sikandar & Anr.) has been affirmed. For the sake of convenience, the parties are referred to as per their status before the Trial Court.

2. The instant appeal was admitted by this Court on 17.08.2023 on the following substantial questions of law:

“(i) Whether both the Courts below were justified in shifting the burden of proof on the appellant/ plaintiff to establish the fact of genuineness of Will and consent given in respect to Will?

(ii) Whether in the facts and circumstances of the case, Courts below were justified in dismissing the suit in toto instead of specific share of the plaintiff as per Section 117 and 118 of the Muslim Law?”

3. The plaintiff preferred the suit seeking declaration