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 against the defendants in respect of land bearing Khasra No. 1045/3 admeasuring 0.004 Acre (eight dismil) along with the house constructed thereon, situated at Village Korba, Patwari Halka No. 4, Tahsil and District Korba (Chhattisgarh), pleading inter alia that the appellant is the wife of Abdul Sattar Lodhiya, resident of Rani Road, Korba, who died on 19.05.2004, and she is entitled to acquire the suit property, over which her husband remained in possession as owner throughout his lifetime. In November 2007, when the plaintiff came to know that in the revenue records, along with her name, the name of defendant No.1, who is the son of brother of her husband namely; Abdul Sattar, had also been entered, she learned that on 17.12.2007, defendant No.1 had submitted an application for recording his name along with the plaintiff’s name in the revenue records, wherein he described himself as the son of Abdul Sattar. In fact, he is not the son of Abdul Sattar but is the son of Ghulam Mustafa, who is the brother of Abdul Sattar. Defendant No.1 has stated before the revenue Court that he is the adopted (foster) son of Abdul Sattar, whereas during his lifetime, Abdul Sattar never recognized him as his adopted son. The Will dated 27.04.2004 was not voluntarily executed by Abdul Sattar, and he had no authority to execute a Will in respect of the suit property without the consent of the plaintiff. The said document is forged and fabricated. Therefore, this suit has been filed for a declaration that the plaintiff alone is the exclusive owner of the suit property.

4. Defendant No.1 filed the written statement, wherein it was pleaded that Abdul Sattar, being issueless, had brought up Defendant No.1 since childhood as his own son, and after Abdul Sattar’s death, Defendant No.1 continued to reside with the plaintiff and remained in possession of the suit property. With the plaintiff’s knowledge, the Tahsildar, Korba, by order dated 07.12.2004, directed joint recording of the names of the plaintiff and Defendant No.1 in the revenue records. The plaintiff’s claim of gaining knowledge only in November 2007 was found to be incorrect, and her appeal was dismissed by the Sub-Divisional Officer, Korba. It was further pleaded that Abdul Sattar always projected Defendant No.1 as his son in society, and in the year 1998, the Bilaspur Young Memon Association recorded Defendant No.1 as his son in its publication “Naya Daur”. The suit property being the self-acquired property of Abdul Sattar, he voluntarily executed a Will dated 27.04.2004 in the presence of witnesses. Defendant No.1 further pleaded that he continued to take care of the plaintiff, and that the present suit has been filed at the instance of certain members of the Korba Memon community by misleading the plaintiff, a