X. ^. HIGH COURT OF CHHATTISGARH. BILASPUR SECOND APPEAL No. 129 OF 2007 APPELLANT Dhannaram PLAINTIFF RESPONDENTS DEFENDANTS Versus Mohanram and others JUDGMBNT Post for 19-6-2009 Sd/- N. K. Agarwal Judge ^•''.. (P:' 1) ^.....••" HIGH COURT OF CHHATTISGARH, BILASPUR SBCOND APPEAL No. 129 OF 2W7 APPELLANT PLAINTIFF RESPONDENTS DBJ@BNDA;NTS Dhannaram, S/o. Late Baijuram, aged about 47 years, occupation Agriculture, R/o village Chakdai, TehsU Sonhat, Distt. Korea (CG) Versus MohanraDi, son of Late Baijuram, aged about 42 years, occupation Agriculture Rekharam, son of Mohanram, aged about 27 years, Occupation Agricillture Heerasai, son of Late Baijuram, aged not known, occupatiion Agriculture No. 1 to 3 are R/o. viUage ^*<ti i i • rrt i **t rx i -• T"^.* ^ ^ Govt. of Chhattisgarh, through Collector, Korea (Baikunthpur) Chhattisarh ^r Shri H.S. Ahluwalia, Adv. for the appellant. Ku. Sangeeta Mishra, P.L., for the State. SBi HON*BLB SHRI JUSTICE N,K. AGARWAL JUDGMBNT (1^-6-2009) Heard on admission. 2. The instant appeal is dtrected against the judgment and decree passed by the District Judge, Korea dated 19- 1-2007 in CivU Appeal No. 67A/2006, whereby fhe judgment and decree dated 21-11-2003 passed by Civil Judge Class 1, Baikunthpur.in CivU Suit No. 46-A/99 was affirmed and fhe smt ofthe plaintiffhas been dismissed. n 9IP J9AO 9RFt AUB Qjm-bOB 0^ p9ppU9 10U 3JB g RWS I 'OjsI s^uepuajsp sip pue ijBMqsainiid jo ajn^uS^s / uo^ssajdmr qmnip aip ure^uoo ^ou op pue pna^ Aq poure^qo 9JB 'g 'OJ^ l.UBpU9J3p 31^ jo jnoABj ui UBMqsapiqcI ^q pa^noaxa oq o^ pres 9je ipTqM 'S6-9-CS pu®56-S-95 pa^P p83p ni^ 3i^ ^q^ pire A^iadojd ^TCIS ai^ jo JOUMO 9Aisnpxa 910. 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In reply, defendants No. 1 and 2 filed their separate written statement and pleaded that Phuleshwari, i.e. mother was being looked after by defendants No. 1 and 2 and was living with them and she vaMdly executed a registered Will deed and pursuant to fhe said WiU deed, the defendant No. 2 became owner of fhe suit property and since then the defendants are in possession of fhe suit property. AU other allegations regarding fraud etc. are denied by the said defendants. The defendant No. 3 filed separate written statement supporting fhe case of fhe plaintifi'. 6. The plaintiff only exaDimed himself. In his statement, he did not say anything regarding Will obtained by practicing fraud or that fhe Will does not contain signature of Phuleshwari, on the conti-ary, in para 17 aad 18 of his statement, he said fhat he did not know whether fhe registered WU1 deed was executed by Phuleshwaii in favour of the defendant No. 2 and also he did not know whether the said Will deed was attested by Jailal and Ahibaran. The defendants examined 3 witnesses including attesting witness Jailal, duly proved fhe WiU. v 7. The trial Court after appreciating fhe pleading of the parties, evidence led oral as well as documentaiy, held that the WiU deed was validly executed in favour of the defendant No.2 by Phuleshwari and dismissed the suit fUed by the plaintiff. The above finding has been afiirmed by the first Appellant Court. 8. The main contentions raised by Shri Ahluwalia, leamed counsel for the appeUant, are fhat there is contradiction in statement of the defendant aad attesting witness Jailal inasmuch as the defendant says that fhe WiU deed was first signed by Phuleshwari, then by attesting witness, whereas the attesting witness says that the WiU deed was signed by witaesses and then by Phuleshwari, and fherefore, W1U is suspicious and both fhe Courts below have erred in holding the said Will deed as genutne. 9. I heard the contentions raised by fhe appeUant and also perused fhe record with utmost circumspection. A bare perusal of para 1 1 of cross-exaniination D.W. 1 Mohanram i.e. the defendant No. 1 would clearly reveal that it was plainttfifs suggestion fhat Phuleshwari first signed fhe WiU deed and fhen witness singed over it, which was admitted by the defendant, fhus, the Wffl has been proved by the defendant in terms of Section 63 of the ^."^^*^ T^'% ^^^ I '^b, 1 ^] ^- Indian Succession Act, 1925. The attesting witoaess had clearly deposed that the Will was signed by Phuleshwari as well as by both fhe attesting witnesses in front of each other and, fherefore, the reqiiirement of Section 63 of fhe Indian Succession Act, 1925 was complied wifh, though in fact, not chaUenged by the plaintiff. It is well settled fhat the onus to prove the due execution of Will is on propounder of fhe WU1 and onus to prove fraud, coercion and undue influence is on the caveator. tn this case, the Will was proved by the defendants by examining witnesses in terms of Section 63 offhe Indian Successions Act, 1925 read with Section 68 ofthe Evidence Act, 1872. More over, fhe WU1 was adndttedly regjistered, fhe testator lived for 6 years after execution of fhe WUl. She could change her mind; she did not. The veiy fact (hat she did not take any step for cancellation of her Will, is itself a factor which fhe Court may take into consideration for fhe purpose of upholding the same. The appeUant failed to pouit out any illegality, perversity or infirmity in the finding arrived at by both the Courts below. Ttie finding regarding due execution of the Will is essentially a finding of fact, the Courts below have reached to the said finding concurrenfly based on oral as well as documentary evidence and, fherefore, I acQ of the considered opinion that no •^, /€^\ 1 v';?'%% j "^ "'•»' 6 substantial question of law arises for determination of fhis appeal. 10. Appeal is therefore, liable to be dismissed and is accordingly dismissed at admission stage. Consequently, I,A. No. 1 also stands dismissed. Sd/- N. K, Agarwal Judge