•S&K^ 'w <a IN THE HON'BLE HIGE COORT OF 'igHHA^TTSGABH AT BIL.ASPUR SECONE^ APPEAL N0s^ of2006 APPECLANTS: 1 ^DEFENDENTS ^' ffl *s/^\1^' /.^\/ * :'-."<^. Sint. Kuraari bai, ageci about 65 yeasfs, Wiidow of Latetplindlpra.sad Shari'Fta, R/o. j BraUma.npara, Raipur (C.G.) Tarun Sharma 3. Chandramani Sharma 4. Rakesh Sharma ; 5.^ Sanjay Sharma ^ • •" •• !: : • . •'.' : . . Appellahts No. 2 to 5-S/p. Late Ghiandi Prasad Sharina, R/o. near Sdhaga ^ Mandir, Rakesh Printing Press, Brahmanpara, Raipur (C.G.) Rajni Jha, wife of Shri Sh.yam Jha, R/o. Kushalpur, Raipur. gmt. Sandhya, wife of Shri Rajeelv: iBubey, R^o. Bhainsthan, Samtgl :CoIo3:>y,:Rai:pur.: :•;'',, ,.' ::.z' Smt. Archana, wife of Shri Anil Pandey, R/0. Dhamtiri (C.G.) ; -VERSUS- \ .••••"'. . :'.' • "•" • ' '/ •• " ::' '"'•'.^ '"-. : ' • ."''::".::- ": '• ••" RBSPOND^TS l^^mt. SaMyya^Bai^a^ ^ ' •^ ':;..;:':.::. :: ;',: ygaTs,:jJwMi&'&f,H'a.rishairl£ar,.'i' Devaiigan, R/o. GudKiyari, ^-Ra.tpur': ; -. : ' ^ ! • :,". .:•—» ^•r. :.t?:t. ^ z, 8 DEa'ENDENT No.3. ^. Smt. Taratiai, aged about 74 years, 'Wiiiow^of Late SMFI Jagannatli Prasad Deyangan, R/o Bralinla::trpara;,Raipur (£;.©.) s-*'" SECONI»APPE&I,tJNl>ERSECTION1000FCIVIL PRdCEBinlE CODE Plni+ t7a1n(=><^ a+ T?o Asnnn/- ll:B XI-HC-78 HIHWI Sh*1|cb 3^ '•iww^, wKww, Ricii+iy ^^:^^^\.l^,^ 3TT^?TV^K (':S^3^ET) 3n^T^>TR-li+ trarsn^Tshtiiti ^ ^ciTWofsdsn^r 05.09.2006 Dr. N.K. Shukla, tearned Sr[ counsel for the appellants/defenda|nts Shri Vishnu Koshta, leamec) Heard on admission. The appellants/defendants Section 100 of the Code of Civij decree dated 28th February 20061 learned 9th Additional District Additional District Judge dismi^s appellants/defendants has furthe) dated 30 September 2004 pass^d Raipur in Civil Suit No. 20-A/04. RespondentNo. 1/piaintiff Smt. Tarabai (defendant No. 3) foi| partition, mesne profit and posses^ house situated in Raipur. Rampyari Bai (respondent No. Jagannath through his first wife'v( first wife late Jagannath marriecj 'wrfepft^ WRrf if fei^t t^nzn; ^srf^rrsn^r Advocate with Shri A.K.Yadav, learned counsel for the caveator. |iave preferred the second appeal under Procfedure against the judgment and Ipassed in Civil Appeai No. 26-A/04 by |Judge, Raipur whereby the; fearned i^sing the appeal preferred by the confirmed the judgment and decree by 3rd Additional Civil Judge, Class-1, flled a civil suit against respondent No. 2 I declaration of title, perpetua! injunction, »onwith respect to the suit land being a Acct>rding to the plaint the plaintiff Smt. |1 herein) was the daughter of late 1'ho died long back. After the death of Tarabai, howev.er, Tarabai remained. -ff- 1 XI-HC-78 3n^r?iTf?iiN? <T8(T3n^Tsh>l +11*fni Stvqicti 3^ -^MW^, »T(1+t'l<c,?fs|C1ltiy ^^:.M^.. TR; 200 3TT^?TV^K (1^3^8f) ^nwdfiffsn^r - ^— issueless. Jagannath owned ^ which is the suit house obtain^d effected in the year 1949 and pieaded that after the death of owners of the property. Howe^er sold bydefendant No. 1 Tarabai (o Prasad Sharma and Smt. Kil permission from the plaintiff ancj 10.9.1973 of Ex.D/1 purportedly| defendant No. 1 Tarabaijointly is| house situated at Brahmanpara, Raipur by deceased Jagannath on partition lon the basis of aforesaid facts it was J|agannath, plantiff and Tarabai were joint ', the said property was subsequently defendants No. 2 and 3 namely Chandi |mari Bai respectively, without taking without informing her. TheWil! dated executed by deceased Jaganriath and lafalse document. • : to The suit was filed on 5.9. suit defendant No. 1 sold the arfd whereupon defendants No. 2 death of defendant No. 2 his teg^ were also added as defendants. stated that the Will in question v^. voluntarily. The defendants in defendant No. 1 has sold the hotjse which belonged to Jagannath] Dossession. Jaaannath obtainedl ^rafeftr iTTqcff ffts'-S TfeKre ^sif^irsn^r 1985. However, during pendency of the suit house to defendants No. 2 and 3 3 were added subsequently. After the heirs being appellants No. 2 to 8 herein Defendant No. 1 in her written statement as executed by her husband and herself their written statement'have stated that in question to defendants No. 2 and 3 and Tarabai and remained in their the suit house on partition and thereafter fe ~y~ ^ XI-HC-78 *TFq^lT <3WT<»i 3?g'"iii<<icii, 9Tfl+)'i$, Roiuy s^:^^/'^ w^ ^oo 3fl^(l 4^w> (yiI^si^sT) 3I1^?T qiT R-liit) (raTsn^raCTiR; ?¥(frW^(T3RT^T constructed the house over it fron- the /sfrjyftan of defendant No. 1. No. 1 became the exclusive ownen dated 10.9.1973 who soldthe sarrl and delivered the possession. On the basis of pleadings| farmed and suit was decreed witK of Ex.D/1 is not a validly executec| to transfer only upto % share. Th] is tegal, however, the sale deed iliegal and void. In appea) the iearned first the tria! Court so far as yalidity o\ appeal was partly altowedwith ^ entitled for % share of the suit h\ separate possession of % shar^ partitioned. Hence, the instant aj|)peal judgment. qiTqfep^T WWff ^ fe'^l'1(^reZTC %3ri^IIT3(T^r the income of his tailor-shop and from Afterthe death ofJagannath, defendant of the suit house on the strength of Will le on 9.9.1985 to defendants No. 2 & 3 of the respective parties, issues were a finding that the Will dated 10.9.1973 document and Tarabai was competent e saie deed in favour of Chandi Prasad in favour of Kumari Bai was declared ippetiate Court confirmed the finding of the Will was concerned, however, the modification that plaintiff Rampyari is ?use and she is also entitled to obtain of the suit property after getting it has been filed against the above P.T.O. ^sr XI-HC-78 sn^T^rK-iiti crarsnq^rsnHiqi HI*1WI 9itTT^l 3^''<<l<IICl'i),8iTn<1'16, R(-11U^< ^.^^^^^^^n; 200 311^!?1 4^* ('^3^^') ?T(TraTH)5(T3TI^T counse Dr. Shukla, learned challenged the findings of bottl validity of the Will of Ex.D/1. H( a suspicious document by bot|i upon the statement of defendafit cross examination that she dot Jagannath and she also statec) executed, therefore, she prevaf Ex.D/1 executed against his wi; contrary to her pleadings as al^ wherein she has stated that voluntarily without any pressure] circumstances, the finding of question was executed under uijidue the following substantial questj second appeal: 'Whether the Courts belc^w that there is no pleadingl undue influence and the (p( on the ground that the l^w pleading and proof? <*i^f<-i-ift-< ^i4ciT^'tei^l'<.Ri<^i< ^srf^TTan^T appearing for the appellants has the Courts below so far as it relates to argued that the Will has been held to be the Courts below by selectively relying No. 1 Tarabai who has deposed in her the Wilt executed in her favour by that she was young when the Will was led upon Jagannath and got the Will of hes. This statement of defendarit No. 1 is o contrary to earlier part of her statement agannath and herself executed the Will on their own free will and in the aforesaid both the Courts below that the Will in influence, is erroneous and therefore, on of law arises for adjydication of this were justified by ignoring the fact that the Will had been obtained by tourts betow rejected the Wi!l. mainly relating to variance between the XI-HC-78 SfT^Tqirf^IT?? gwsns^Tstiii'* c<x' * 1^2. *41*1<^1 Sh+lich 3^? •^i'iiici^, WTn<i'i6, Ricii+fy . ^^.^lt/f.( W^ 200 3TI^?T4a<»)(l^3^ET) ?T(TRRHf?a'3TI^T .1 have heard learned co the documents on record and th Voluntarily execution of a| below have recorded a concurrtnt to prove that Jagannath execul influehce on their, own free wii proper appreciation of evidence based on a very natural statem that she got the Will executed fr time and by the said Will the property. ^^ ., Taking into consideratior recorded by both the Courts executed by defendant No. 1 wishes, 1 am of the opinion that by the appellant is made out for being devoid of substance des< itself and is accordingly dismissf «t)l<<I<1<l1-f 1|t1c1]'^''tel^tl'a|<'<il< ^3Tl^IT3TI^T ^insel for the appeilant and have perused evidence recorded during trial. Will is a question offact. Both the Courts ^ntfinding thatthe defendants have failed ed the Will voluntarilv without anv undue The above finding of fact is based on avaitable on record and the same is also ent of defendant No. 1 who has admitted sm her husband as she was young at that plaintiff has been disinherited from the that there is a concurrent finding of fact tielow that the Will in question was got from her husband Jagannath against his \\o substantial question of law as proposed |adjudication of this appeal and the appeal |rves to be dismissed at the motion stage ' °-£""' P.T.O.