Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Online)(Chh) 18825

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Ravindra Kumar Agrawal, J
Harish Vachhani – Appellant
Versus
Jamunadas Vachhani – Respondent
SA No. 333 of 2018

Advocates:
For the Appellants/Petitioners: Amrito Das
For the Respondents: Sunil Otwani, Shobhit Kosta, Sanjay Patel

In a second appeal, the High Court cannot interfere with concurrent findings of fact unless they are perverse or lack material evidence. Furthermore, a will is not validly proved unless the propounder strictly satisfies the mandatory requirements of attestation by at least one witness capable of proving the document.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Indian Evidence Act, 1872 - Section 68 - Indian Succession Act, 1925 - Section 63(c) - Will - Proof of execution - Burden of proof on propounder of will to remove all suspicious circumstances - Strict compliance with attestation requirements - Mere proof of testator's signature is insufficient - Requirement for examination of at least one attesting witness who can testify to the valid attestation by others - Appellate interference - Concurrent findings of fact - Limitation of High Court to interfere in pure findings of fact unless finding is perverse or not based on material on record. (Paras 15, 16, 17, 20, 25, 28, 31)

(B) Appellate Jurisdiction - Scope and ambit - High Court in second appeal is not to re-appreciate evidence to replace findings of trial and appellate courts - Findings of fact reached by courts below should not be interfered with unless warranting compelling reasons or if findings are found to be illegal, perverse, or based on no material. (Paras 30, 31, 32)

Facts of the case:
Plaintiff filed a suit for declaration of title and permanent injunction over a residential property claiming ownership based on a will executed by his late mother. Defendants disputed the claim, alleging the will was forged, that the mother was not competent to execute it, and that the property was either inherited or acquired differently. Both the trial court and the first appellate court concurrently held that the plaintiff failed to prove the due execution of the will and dismissed the suit.

Findings of Court:
The court held that the propounder failed to prove the will was attested in accordance with the mandatory requirements of the applicable succession and evidence laws. Evidence of the examined attesting witness was found insufficient as it failed to demonstrate that the witness saw the testator sign or that the witness signed in the presence of the testator alongside another attesting witness. Concurrent findings of the lower courts were based on a proper appreciation of evidence.

Issues: The main issues were whether the testator was competent to execute the will and whether the plaintiff proved the due execution of the will as required by law.

Ratio Decidendi: A will must be proven like any other document but with additional satisfaction of mandatory attestation requirements under the law. The propounder bears the heavy burden of removing all suspicious circumstances. Mere signature of the testator is not sufficient; there must be proof of due attestation by at least two witnesses. Where concurrent findings of fact are reached by lower courts, intervention in second appeal is impermissible unless such findings are perverse or devoid of legal basis.

Result: Second appeal dismissed.

Table of Content
1. summary of trial facts, pleadings, and procedural history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10)
2. arguments challenging trial findings regarding will validity. (Para 11)
3. strict evidentiary requirements for proving will execution and attestation. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29)
4. limitation of second appeal in re-appreciating concurrent factual findings. (Para 30 , 31 , 32 , 33)

Judgment on Board

1. This Second Appeal under Section 100 of Code of Civil Procedure, 1908 has been filed by the plaintiff against the impugned judgment and decree dated 16.01.2018 passed by the First Additional Judge to the court of First Additional District Judge, Raipur, Civil Appeal No.61-A/2017 whereby the Appeal filed by the appellant against the judgment and decree dated 26.04.2017 passed by VIth Civil Judge Class-I Raipur in Civil Suit No.76-A/2013 has been dismissed and the judgment and decree of trial court has been affirmed.

2. For the sake of convenience, the status of parties shown in the Civil Suit are being taken in the present Second Appeal.

3. The plaintiff filed a suit for declaration of title and permanent injunction over the suit property of House No.MIG-48, situated at Shankar Nagar, Sector-1, Raipur with the pleading that plaintiff, defendant No.1 and defendant No.4 are real brothers. The suit property was acquired in the name of their mother late Deviji Vachhani through registered sale deed dated 23.11.1994 purchased from defendants No.2&3. Late Deviji Vachhani was residing with the plaintiff and while residing with the plaintiff, she died on 23.12.2009. During her lifetime she executed a will in favour of plaintiff with respect to suit property. On 04.09.2010 the plaintiff made an applications for mutation of his name in the revenue records and also in the records of defendants No.2&3 then he came to know that the defendant No.1 has got mutated his name over the suit property by producing a forged sale deed allegedly executed by his mother. The plaintiff incurred expenditure over the suit property in its maintenance as he is residing there since 30 years and his mother has executed a will in his favour therefore he may be declared the title holder of suit property and permanent injunction may be granted in his favour.

4. The defendant No.1 contested the claim of plaintiff; filed his written statement and denied the plaint averment with the pleading that their father Govardhan Das purchased the suit property from defendants No.2&3 in the year 1979 on hire-purchase scheme and during his lifetime he paid the installments. Thereafter, from the pension amount of their mother the installments were paid. After completion of the installments, the transfer deed was registered in the name of their mother late Devi Vachhani on 23.07.1994. All her children were given consent to mutate the name of late Deviji Vachhani over the suit property alone and her name was recorded. He denied that his mother late Deviji Vachhani had executed any will on 22.09.2005 in favour of plaintiff, however, he claimed that in the year, 2004 late Deviji Vachhani was residing at Nagpur along with her two sons. In the year, 2005 she was aged about 83 years and suffering from various ailments and for her treatment, the plaintiff took her to Raipur and got a forged will deed executed in his own name. He would also submit that on 04.12.2004 his mother has executed a will in favour of defendant No.1 at Nagpur and based on which his name was mutated in the revenue records of the suit property. The market value of suit property is about 30-32 Lakhs and suit is not valued properly and thus claimed for dismissal of suit.

5. The defendant No.2&3 also contested the claim of the plaintiff and submitted that the suit property was allotted to Smt. Devi Vachhani under Hire-Purchase scheme and after death of allottee, on the basis of will deed produced by her elder son Jamunada

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2025 Supreme(Online)(Chh) 18825

IN THE HIGH COURT OF CHHATTISGARH AT BILASPURRavindra Kumar Agrawal, JHarish Vachhani – AppellantVersusJamunadas Vachhani – RespondentSA No. 333 of 2018

Cases Referred (3)

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Ravindra Kumar Agrawal, J
Harish Vachhani – Appellant
Versus
Jamunadas Vachhani – Respondent
SA No. 333 of 2018