C/SA/67/2005 CAV JUDGMENT DATED: 06/02/2026

Reserved On : 21/01/2026

Pronounced On : 06/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SECOND APPEAL NO. 67 of 2005

With

CIVIL APPLICATION (FOR STAY) NO. 2 of 2005

In R/SECOND APPEAL NO. 67 of 2005

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI

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Approved for Reporting Yes No

✔

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MAHESH NATUBHAI GAMIT & ORS.

Versus

CHHAGANBHAI RESHIABHAI THROUGH HEIRS AND L.R. & ORS.

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Appearance:

MR NIRAV R MISHRA(6140) for the Appellant(s) No. 1,2,3,4,5

MR RK MISHRA(482) for the Appellant(s) No. 1,2,3,4,5

MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6

RULE SERVED for the Respondent(s) No. 3.1,3.2

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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1.The present second appeal is filed under Section 100 of the

Code of Civil Procedure (for short, The code) challenges the

judgment and decree passed by the Principal District Judge, Navsari

in Regular Civil Appeal No. 47 of 1996, by which order dated

21.09.2004, the appeal was allowed and the judgment and decree

passed in Regular Civil Suit No. 13 of 1988 by the learned Civil

Judge, Junior Division, Vansda dated 29.02.1996, was reversed and

consequently the suit was dismissed.

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BRIEF FACTS:-

2.The subject matter of the present Second Appeal arises from

the judgment and decree dated 21.09.2004 passed by the learned

District Judge, Navsari, in Regular Civil Appeal No. 47 of 1996,

whereby the learned Appellate Court reversed the findings of the

Trial Court and dismissed the suit of the present appellants. The

litigation concerns the validity of a Will dated 15.04.1986 allegedly

executed by one Reshiabhai, who was the grandfather of appellant

Nos. 1 to 4 and father-in-law of appellant No. 5.

2.1.Shorn of non-essential details, the relevant factual matrix of

the lis in hand is adumbrated thus: The appellants (original

plaintiffs) instituted Regular Civil Suit No. 13 of 1988 before the

learned Civil Judge (J.D.), Vansda, seeking a declaration that the

aforesaid Will was null and void, contending that the properties

bequeathed thereunder were ancestral in nature and that the plaintiffs

possessed an undivided share therein. It was their case that the

testator, being about 90 years of age and in a feeble mental

condition, lacked testamentary capacity, and that the Will had been

procured by respondent No. 1 through fraud and undue influence.

Consequential relief of partition, possession of 1/3rd share, mesne

profits, and permanent injunction were also prayed for.

2.2.The Trial Court, by judgment dated 29.02.1996, partly decreed

the suit, holding that the Will was vitiated by fraud and undue

influence and therefore void, and that the plaintiffs had a 1/3rd share

in the suit properties; however, it further held that the suit was barred

under Order II Rule 2 CPC and that it lacked jurisdiction to entertain

the same. Aggrieved thereby, respondent No. 1 preferred Regular

Civil Appeal No. 47 of 1996. The learned District Judge allowed the

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appeal on 21.09.2004, setting aside the findings regarding the Will

and dismissing the suit, though holding that the suit was not barred

under Order II Rule 2 CPC and that the Trial Court did possess

jurisdiction. It is this appellate judgment which is assailed in the

present Second Appeal, wherein substantial questions of law are

stated to arise.

3. The parties are relegated to their original status as obtaining

before the learned Trial Court.

4. On 26.04.2025, this Court was pleased to formulate the

following substantial questions of law for consideration:–

“a) Having regard to conflicting finding of courts below on

the truth and genuineness of Will dated 15.4.1986 at Exh.

49, whether Will at Exh. 49 genuine and whether its

execution is in accordance with law?

b)Having regard to Entry No.47 dated 19.6.57 at Exh.42

that properties are ancestral and, along with Ranchhodbhai

name of Reshiabhai has been mutated and even if there is

partition between Ranchhodbhai and Reshiabhai, share

obtained by Reshiabhai on partition is ancestral property as

regards to his male issue and as per Hindu Succession Act

since Appellant Nos. 1 and 2 being male heirs are entitled to

have share by birth in said properties, whether Courts below

have erred in law in not holding that Reshiabhai had no right

to make will (i.e., Exh.49)?

c)Having regard to Exh.42 being Entry No.47 dated

19.6.1957 indicating that properties comprised by said entry

are ancestral properties in respect of which by Exh.45 being

Entry No.533 (dated 17.4.1982) of partition has been

mutated and all the contents of Exh.45 have been admitted

as correct by respondent No.1 in his evidence, whether lower

appellate court has erred in law in not holding that suit

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properties are Ancestral Properties?”

SUBMISSIONS OF THE APPELLANTS:-

5.Learned Advocate Mr. Nirav R. Mishra, adverting to the

substantial questions of law framed by the Coordinate Bench, has

principally contended that the suit properties, particulars whereof are

delineated in para 2 of the plaint, are ancestral in character. The

relief sought by the plaintiff is one for partition by metes and

bounds, coupled with mesne profits, declaration, and permanent

injunction. It is urged that the parties trace their lineage to deceased

Agharabhai, and that the immovable properties in question originally

belonged to him. According to the learned Advocate, the said

properties were not the self-acquired assets of his sons, Reshiabhai

and Ranchhodbhai, but retained their ancestral character. In that

factual milieu, the plaintiff, being a Class-I heir of deceased

Natubhai, who was a predecessor of Reshiabhai, acquired a share by

birth in the suit properties. Ergo, any testamentary disposition sought

to be made by Reshiabhai through a Will would be wholly

impermissible in law. The Will dated 15.04.1986, produced at

Exhibit 46, is therefore assailed as having been executed without

lawful authority and in the teeth of Section 30 of the Hindu

Succession Act. Reliance is further placed on Entry No. 47 dated

19.06.1957 (Exh. 42), which records that the agricultural lands

forming the subject matter of the suit were ancestral and were

merely held by deceased Reshiabhai.

5.1. It is further submitted that the learned Trial Court, upon a

comprehensive rumination over the revenue record and documentary

evidence, rightly decreed the suit, the said revenue entries having

remained unchallenged for decades. However, the learned First

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Appellate Court, in reversing the well-reasoned decree, is alleged to

have fallen into a manifest error by misreading and misconstruing

material documentary evidence, particularly Exhs. 42, 45, 49, and 79

to 83. On this score, it is contended that the appellate findings suffer

from perversity, inasmuch as the ancestral nature of the properties

stood established from unimpeached revenue entries which were

never disputed by Reshiabhai or Ranchhodbhai during their lifetime.

5.3. In light of the prevenient ratiocination, learned Advocate for

the appellants has thus entreated that the appeal be allowed, the

impugned judgment and decree of the First Appellate Court be set

aside, and the decree passed by the learned Trial Court be restored.

SUBMISSIONS OF THE RESPONDENTS:-

6. E converso, learned Advocate Mr. Zubin Bharda appearing for

the respondents has supported the impugned judgment and decree,

contending that the learned First Appellate Court has, upon a re-

appreciation and independent reassessment of the entire evidentiary

record, rightly concluded that deceased Reshiabhai possessed full

legal authority and unfettered proprietary rights to dispose of the suit

properties. It is submitted that the properties in question had

assumed the character of self-acquired assets pursuant to a prior

partition between the two brothers, Reshiabhai and Ranchhodbhai,

and thus ceased to retain any ancestral imprimatur.

6.1. Learned Advocate further contended that the plaintiff, who

asserts the properties to be ancestral and claims a share therein by

birth, has failed to discharge the burden of proof cast upon him in

law. No cogent, convincing, or legally admissible documentary

evidence, it is urged, has been adduced to substantiate the plea that

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the suit properties formed part of any coparcenary or joint family

estate. In absence whereof, the very foundation of the plaintiff’s

claim stands eroded.

6.2. On the strength of the aforesaid submissions, learned Advocate

for the respondents has thus entreated that the present Second

Appeal, being devoid of merit and raising no substantial question of

law warranting interference, deserves to be dismissed.

FINDINGS, ANALYSIS AND CONCLUSION OF THE

COURT:-

7.I have heard the learned advocates appearing for the respective

sides at length. I have also meticulously perused the judgments and

decrees rendered by the Courts below, in tandem with the entire

record and proceedings of the case.

RELEVANT CASE LAW:-

8.The precedents, apropos, to the matter in issue, are as follows:-

8.1.In Nazir Mohamed v. J. Kamala and Others, Civil Appeal

Nos. 2843–2844 of 2010, wherein, in Para 37, the Apex Court has

lucidly and categorically enunciated the legal position in the

following terms:-

“37. The principles relating to Section 100 CPC relevant for

this case may be summarised thus:

(i)An inference of fact from the recitals or contents of a

document is a question of fact, but the legal effect of the

terms of a document is a question of law. Construction of a

document, involving the application of any principle of law,

is also a question of law. Therefore, when there is

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misconstruction of a document or wrong application of a

principle of law in construing a document, it gives rise to a

question of law.

(ii) The High Court should be satisfied that the case involves

a substantial question of law, and not a mere question of law.

A question of law having a material bearing on the decision

of the case (that is, a question, answer to which affects the

rights of parties to the suit) will be a substantial question of

law, if it is not covered by any specific provisions of law or

settled legal principle emerging from binding precedents,

and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a

contrary situation, where the legal position is clear, either on

account of express provisions of law or binding precedents,

but the Court below has decided the mat-ter, either ignoring

or acting contrary to such legal principle. In the second type

of cases, the substantial question of law arises not because

the law is still debatable, but because the decision rendered

on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not

interfere with the concurrent findings of the Courts

below. But it is not an absolute rule. Some of the well-

recognised exceptions are where i) the courts below have

ignored material evidence or acted on no evidence; ii)

the courts have drawn wrong inferences from proved

facts by applying the law erroneously; or (iii) the courts

have wrongly cast the burden of proof. A decision based

on no evidence, does not refer only to cases where there

is a total dearth of evidence, but also refers to case,

where the evidence, taken as a whole, is not reasonably

capable of supporting the finding.”

8.2.Reference is also profitably required to be made to the

celebrated decision of the Hon’ble Supreme Court in Hero Vinoth v.

Seshammal [(2006) 5 SCC 545], wherein, in Para 21, the Apex

Court has authoritatively delineated and explicated the contours of

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the expression “substantial question of law” in the following terms:-

“21. The phrase "substantial question of law", as occurring

in the amended Section 100 CPC is not defined in the Code.

The word substantial, as qualifying "question of law", means

of having substance, essential, real, of sound worth,

important or considerable. It is to be understood as

something in contradistinction with technical, of no

substance or consequence, or academic merely. However, it

is clear that the legislature has chosen not to qualify the

scope of "substantial question of law" by suffixing the words

"of general impor-tance" as has been done in many other

provisions such as Section 109 of the Code or Article 133(1)

(a) of the Constitution. The substantial question of law on

which a second appeal shall be heard need not necessarily be

a substantial question of law of general importance. In Guran

Ditta v. Ram Ditta (1927-28) 55 IA 235, AIR 1928 PC 172

the phrase "substantial question of law" as it was employed

in the last clause of the then existing Section 100 CPC (since

omitted by the Amendment Act, 1973) came up for

consideration and their Lordships held that it did not mean a

substantial question of general importance but a substantial

question of law which was involved in the case. In Sir

Chunilal case 1962 Supp (3) SCR 549, AIR 1962 SC 1314

the Constitution Bench expressed agreement with the

following view taken by a Full Bench of the Madras High

Court in Rimmalapudi Subba Rao v. Noony Veeraju AIR

1951 Mad 969, (1951) 2 MLJ 222 (FB): (Sir Chunilal case

1962 Supp (3) SCR 549, AIR 1962 SC 1314, SCR p. 557)

"[When a question of law is fairly arguable, where there is

room for difference of opinion on it or where the Court

thought it necessary to deal with that question at some length

and discuss alternative views, then the question would be a

substantial question of law. On the other hand if the question

was practically covered by the decision of the highest court

or if the general principles to be applied in determining the

question are well settled and the only question was of

applying those principles to the particular fact of the case it

would not be a substantial question of law."

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This Court laid down the following test as proper test, for

determining whether a question of law raised in the case is

substantial: (Sir Chunilal case 1962 Supp (3) SCR 549, AIR

1962 SC 1314, SCR pp. 557-58)

"The proper test for determining whether a question of

law raised in the case is substantial would, in our

opinion. be whether it is of general public importance or

whether it directly and substantially affects the rights of

the paretics and if so whether it is either an open

question in the sense that it is not finally settled by this

Court or by the Privy Council or by the Federal Court or

is not free from difficulty or calls for discussion of

alternative views. If the question is settled by the highest

court or the general principles to be applied in

determining the question are well settled and there is a

mere question of applying those principles or that the

plea raised is palpably absurd the question would not be

a substantial question of law."

8.3.In the case of Jaichand (Dead) through Lrs and Other v.

Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the

Hon’ble Apex Court has observed as under:-

“28. It is thus clear that under Section 100 CPC, the High

Court cannot interfere with the findings of fact arrived at by

the first Appellate Court which is the final Court of facts

except in such cases where such findings were erroneous

being contrary to the mandatory provisions of law, or its

settled position on the basis of the pronouncement made by

the Apex Court or based upon inadmissible evidence or

without evidence.”

9.Before adverting to the rival submissions canvassed by the

learned Advocates appearing for the respective sides, it would be

apposite to delineate the inter se relationship between the parties,

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which forms the foundational backdrop of the lis in question:-

10. Having thus adverted to the inter se relationship between the

parties, this Court proceeds to examine whether the evidence

adduced during the trial, more particularly the revenue entries,

including Entry No. 47 at Exhibit 42, establishes that the suit

properties were ancestral in character and that deceased Reshiabhai,

upon an alleged partition with Ranchhodbhai, merely received his

share therein. Put differently, the seminal issue is whether the

plaintiff has succeeded in demonstrating that the disputed properties

originally belonged to Agharabhai and, by virtue of such lineage,

devolved first upon deceased Natubhai by birth and thereafter upon

plaintiff Nos. 1 to 4 as coparceners acquiring an interest by birth.

10.1. The documentary evidence commencing from Exhibit 42

onwards depicts the status of the agricultural lands in the names of

deceased Reshiabhai and Ranchhodbhai. Significantly, Entry No. 47

dated 13.06.1957 reveals that Ranchhodbhai’s name was initially

mutated in the revenue record in the capacity of a tenant.

Subsequently, upon statements of both brothers being recorded by

the revenue authorities, the lands came to be mutated jointly in their

names. Though the entry employs the nomenclature “ancestral

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property,” such description, in the absence of antecedent revenue

records demonstrating title in the name of their father Agharabhai,

cannot ipso facto be treated as conclusive proof of ancestral

character.

10.2. Furthermore, the recitals in the revenue record indicating

Ranchhodbhai’s status as a tenant lend credence to the inference that

the lands were originally held under a tenancy regime, presumably

governed by the Bombay Tenancy and Agricultural Lands Act. It

appears that although both brothers were cultivating the lands,

statutory recognition as a tenant could be accorded to only one

individual, whereafter the mutation came to reflect joint names.

Ergo, the subsequent entry does not, in itself, elevate the character of

the property to that of coparcenary or ancestral property in the strict

legal sense, nor does it conclusively establish inheritance through

Agharabhai.

10.3. The plaintiff remains conspicuously silent on this crucial

aspect. There is no explanation whatsoever as to how the name of

Ranchhodbhai, the brother of Reshiabhai continued to appear in the

revenue record in the capacity of a tenant prior to Entry No. 47. In

the absence of cogent evidence elucidating this circumstance, the

plaintiff cannot successfully contend that the suit properties are

ancestral merely on the strength of the solitary expression

“ancestral” employed in Entry No. 47 at Exh. 42. It is trite, nay

axiomatic, that a revenue entry neither creates nor extinguishes title;

its utility is primarily fiscal and administrative. This well-settled

proposition stands fortified upon a conjoint reading of Revenue

Entry No. 535 (Exh.43) and Entry No. 533 (Exh.45), the latter

unequivocally recording that Reshiabhai and Ranchhodbhai were

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holding the properties as co-owners and that a family arrangement

had been effected whereby their respective shares came to be

demarcated.

10.4. The cumulative effect of these entries indubitably establishes

that the brothers were dealing with the properties in their

independent rights and not as coparceners inheriting from their

predecessor, Agharabhai. The record further reveals that several

registered sale deeds were executed by them from their own funds,

the properties so acquired being subsequently treated as part of a

common pool and thereafter partitioned under Entry No. 533

(Exh.45). Such conduct is wholly inconsistent with the theory of

coparcenary property devolving by birth. At this juncture, it would

be apposite to advert to the recent pronouncement of the Hon’ble

Supreme Court in Angadi Chandranna v. Shankar & Ors., 2025

LiveLaw (SC) 494, wherein, upon an illuminating survey of the

earlier decision in Govindbhai Chhotabhai Patel & Ors. v. Patel

Ramanbhai Mathurbhai, (2020) 16 SCC 255, the distinction

between ancestral property and self-acquired property has been

pellucidly delineated:-

"18. The learned counsel for the appellants has referred to

Shyam Narayan Prasad [Shyam Narayan Prasad v. Krishna

Prasad, (2018) 7 SCC 646 : (2018) 3 SCC (Civ) 702]. That is

a case in which the property in question was held to be

ancestral property by the trial court. The plaintiffs therein

being sons and grandson of one of the sons of Gopal Prasad,

the last male holder was found to have equal share in the

property. The question examined was whether the property

allotted to one of the sons of Gopal Prasad in partition

retains the character of coparcenary property. It was the said

finding which was affirmed by this Court. This Court held as

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under: (SCC P. 651, para 12)

"12. It is settled that the property inherited by a male Hindu

from his father, father's father or father's father's father is an

ancestral property. The essential feature of ancestral

property, according to Mitakshara law, is that the sons,

grandsons, and great grandsons of the person who inherits it,

acquire an interest and the rights attached to such property at

the moment of their birth. The share which a coparcener

obtains on partition of ancestral property is ancestral

property as regards his male issue. After partition, the

property in the hands of the son will continue to be the

ancestral property and the natural or adopted son of that son

will take interest in it and is entitled to it by survivorship."

… … … …

20. In view of the undisputed fact, that Ashabhai Patel

purchased the property, therefore, he was competent to

execute the will in favour of any person. Since the

beneficiary of the will was his son and in the absence of any

intention in the will, beneficiary would acquire the property

as self-acquired property in terms of C.N. Arunachala

Mudaliar case [C.N. Arunachala Mudaliar v. C.A.

Muruganatha Mudaliar, (1953) 2 SCC 362: 1954 SCR 243:

AIR 1953 SC 495]. The burden of proof that the property

was ancestral was on the plaintiffs alone. It was for them to

prove that the will of Ashabhai intended to convey the

property for the benefit of the family so as to be treated as

ancestral property. In the absence of any such averment or

proof, the property in the hands of donor has to be treated as

self-acquired property. Once the property in the hands of

donor is held to be self-acquired property, he was competent

to deal with his property in such a manner he considers as

proper including by executing a gift deed in favour of a

stranger to the family.”

11. The second contention canvassed by learned Advocate Mr.

Mishra pertains to the Will dated 15.04.1996, allegedly executed by

deceased Reshiabhai, which is assailed as forged and beyond his

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authority to execute. This Court, for reasons already recorded

hereinabove, has unequivocally held that the properties bequeathed

under the testamentary disposition were the self-acquired properties

of Reshiabhai. Ergo, the embargo contemplated under Section 30 of

the Hindu Succession Act would not operate as a fetter upon his

testamentary competence.

11.1. Turning, therefore, to the issue of genuineness, the Will in

question is produced at Exhibit 49. At the outset, it merits notice that

the instrument is a registered Will, having been duly registered

before the Sub-Registrar, Chikhli on 17.04.1996, who has also

appended his official endorsement and signature thereon. Although

the Will has been propounded by the defendants, its legality and

validity have been put in issue by the plaintiff. In this context, it

would be apposite to advert to the recent pronouncement of the

Hon’ble Supreme Court in Metpalli Lasum Bai (Since Dead) &

Ors. v. Metapalli Muthiah (D) by Lrs., 2025 LiveLaw (SC) 734,

wherein the principles governing proof of a Will and the burden

resting upon the propounder, particularly in the face of allegations of

suspicious circumstances, have been authoritatively expounded:-

“ XXX XXX XXX

The Will, is a registered document and thus there is a

presumption regarding genuineness thereof. The trial Court

accepted the execution of the Will based on the evidence led

before it. As the Will is a registered document, the burden

would lie on the party who disputed its existence thereof,

who would be defendant-Muthaiah in this case, to establish

that it was not executed in the manner as alleged or that there

were suspicious circumstances which made the same

doubtful.

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XXX XXX XXX ”

12. If the oral evidence on this aspect is scrutinized, the plaintiff,

Kantaben Gamit, examined at Exhibit 30, has in her deposition

unequivocally admitted that deceased Reshiabhai executed the Will

dated 15.04.1986 and that the same came to be registered on

17.04.1986. Though she subsequently attempted to dispute the

signature of Reshiabhai on the Will, no cogent material or expert

evidence has been adduced in support of such bald assertion. Her

statement, therefore, remains a mere ipsi dixit devoid of probative

worth.

12.1. One of the attesting witnesses, Ranchhodbhai, was examined

by the plaintiff himself at Exh. 67. The learned Trial Court discarded

his testimony solely on the ground that he was serving as a clerk

with the advocate representing the defendants. The learned Appellate

Court, however, rightly found such reasoning to be wholly

untenable. Merely because a witness is employed as a clerk by an

advocate appearing in the matter cannot, in vacuo, render his

testimony suspect or inadmissible, particularly when he has been

examined by the plaintiff to assail the Will. In his cross-examination,

he categorically admitted that Reshiabhai had executed the Will

while being in a sound and disposing state of mind and that the

execution and registration were carried out in his presence. He

further admitted that, at the time of registration, even the learned

Advocate for the plaintiff was present. These admissions indubitably

lend assurance to the due execution of the testamentary instrument.

12.2. Section 63 of the Indian Succession Act, read with Section 68

of the Indian Evidence Act (now substantially embodied in the

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Bharatiya Sakshya Adhiniyam, 2023), mandates examination of at

least one attesting witness to prove a Will. The law is equally

pellucid that, where an attesting witness either denies or fails to

recollect execution, recourse may be had to Sections 69 and 70 of

the Evidence Act to prove handwriting and attestation through other

permissible modes. In this regard, reference may be made to

Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC

4362, wherein the Hon’ble Supreme Court has observed that an

endorsement by the Sub-Registrar to the effect that the executant

acknowledged execution before him carries significant evidentiary

value and may, in appropriate circumstances, amount to attestation.

On a cumulative appreciation of the oral and documentary evidence,

the execution of the Will at Exh. 49 stands duly proved in

accordance with law.

13. In view of the aforesaid discussion and the prevenient

ratiocination, this Court finds no merit whatsoever in the present

Second Appeal. The appeal is utterly devoid of substance, bereft of

any sustainable ground warranting interference within the limited

scope of Section 100 of the Code of Civil Procedure. Ergo, the

Second Appeal fails and stands dismissed.

13.1. Interim relief, if any, stands vacated forthwith. The Record

and Proceedings shall be transmitted back to the Court concerned

without delay.

(J. C. DOSHI,J)

14. After pronouncement of the judgment, learned advocate Mr.

Mishra has sought a stay on the implementation of the present order

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for a period of four weeks so as to enable the plaintiff to avail

appropriate remedies before the higher forum.

14.1. Having regard to the fact that interim relief has been operating

since the admission of the present Second Appeal, the same shall

continue to operate for a further period of four weeks from today,

and shall stand vacated automatically thereafter without further

reference to this Court.

(J. C. DOSHI,J)

MANISH MISHRA

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