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2026:CGHC:6134

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

SA No. 32 of 2013

Reserved on: 14.10.2025

Delivered on: 03.02.2026

Uploaded on : 03.02.2026

•Smt. Laxmi Yadav W/o Shatrughan Yadav Aged About 54 Years

Occupation House Wife, R/o Shanker Nagar, Bilaspur, Tah. And Distt.

Bilaspur (C.G.)

--- Appellant/Plaintiff

versus

1.(Died and Deleted) Smt. Urmila Yadav

2.(Deleted) Umesh Yadav (Died)

2.1 Smt. Urmila Yadav W/o Late Umesh Aged About 57 Years R/o Qtr.

No. 56, Palash, Rajkishore Nagar, Devika Vihar, Bilaspur, Tehsil

Bilaspur, District Bilaspur (C.G.)

2.2 Santosh Yadav S/o Late Umesh Aged About 38 Years R/o Qtr. No.

56 Palash Rajkishore Nagar, Devika Vihar, Bilaspur Tehsil Bilaspur,

District Bilaspur (C.G.)

2.3 Rajeshwari D/o Late Umesh Aged About 28 Years R/o Qtr. No. 56,

Palash Rajkishore Nagar, Devika Vihar, Bilaspur, Tehsil Bilaspur,

District Bilaspur (C.G.)

3.Deepak Yadav S/o Late Rama Yadav Aged About 50 Years Occupation

Property Dealer, R/o Shanker Nagar, Bilaspur (C.G.)

4.Smt. Indrawati W/o Faguram Aged About 48 Years Occupation - House

Wife, R/o Rayees Banger Store, Baaji Gali, Infront Of S.K. Two

Wheeler Workshop, Near Balmukund School, Talapara, Bilaspur (C.G.)

5.Smt. Vrindavati W/o Sunder @ Sundaru Yadav Aged About 46 Years

Occupation House Wife, (Posted As Peon In Government High School

Dayalband), Behind Govt. High School, Dayalband, Bilaspur (C.G.)

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6.Smt. Jamuna Bai W/o Jagdish @ Jaggu Yadav (Plumber) Aged About

46 Years Occupation - House Wife, Near Rao Electrical Gali, Infront Of

Shiv Shanker Singhs House, 27 Kholi, Bilaspur (C.G.)

7.Smt. Kapura Yadav W/o Late Ram Khilawan Yadav Aged About 62

Years Occupation Service, Office- P.W.I. Railway Inspection Office,

Bhilai-3, Distt. Durg (C.G.)

8.State Of Chhttisgarh Thru- Collector, Bilaspur (C.G.)

---Respondents

____________________________________________________________

For Appellant : Mr. Surfaraj Khan, Advocate

For Respondents No. 2.1 to 2.3 &

3 to 7 : Mr. Aishwarya Pandey, Advocate

with Mr. P.K. Tulsyan, Advocate

For Respondent No. 8-State : Mr. Aman Tamboli, Panel Lawyer

Hon'ble Shri Justice Parth Prateem Sahu

C.A.V. Judgment

1.Appellant-plaintiff has filed this second appeal under Section 100 CPC

challenging the legality and sustainability of impugned judgment and

decree dated 08.10.2012 passed by learned 5

th

Additional District

Judge, Bilaspur, District Bilaspur in Civil Appeal No. 22-A/2011,

whereby learned First Appellate Court dismissed the appeal filed under

Section 96 of CPC affirming the judgment and decree dated

29.03.2011 passed by learned 8

th

Civil Judge, Class-II, Bilaspur, in Civil

Suit No. 65-A/2010 dismissing the suit filed by plaintiff.

2.For the sake of convenience, parties shall be referred to in terms of

their status shown in Civil Suit No. 65-A/2010 before the Trial Court.

3.Brief facts of the case necessary for disposal of this appeal are that

plaintiff filed a civil suit before the trial court seeking declaration of title

and permanent injunction pleading therein that the property situated at

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village Torwa Tehsil and District Bilaspur bearing Khasra Nos. 840,

889/3, and 895, admeasuring 0.47, 0.82, and 0.55 acres respectively

(total 1.84 acres) (hereinafter referred to as “the suit land”) was initially

owned by Dhaniram Yadav. Dhaniram purchased the land bearing

khasra no. 840 measuring 0.47 acres from Udiya son of Manohar for

consideration of Rs. 500/- on 02.07.1961. Land bearing khasra No.

889/3 and 895 measuring 0.82 acre and 0.55 acre was purchased by

Dhaniram from Smt. Sukhmat Yadav for consideration of Rs. 1,000/- on

15.05.1970 and came in possession of aforementioned lands. Name of

Dhaniram was also mutated in the revenue records vide mutation

orders No. 1429 and 1430 dated 30.01.1976. Dhaniram was issue-less

and therefore he had kept and brought up plaintiff, daughter of his

brother, as his own and continued to live with her along with his wife as

family after his retirement from Railways. During lifetime, Dhaniram

executed Will on 28.05.2001 bequeathing the suit land to the plaintiff. It

is pleaded that defendant No. 1 in greed of property on false and

fabricated grounds questioned the mutation order dated 30.01.1976 in

favour of Dhaniram in an appeal before the Sub-Divisional Officer,

Bilaspur which was allowed without giving proper opportunity of

hearing to Dhaniram. The order passed by SDO(R.) was put to

challenge before the Additional Commissioner Bilaspur, Division

Bilaspur, which was also dismissed. Aggrieved by which, the order of

Commissioner was put to challenge before the Board of Revenue,

Gwalior, which, upon reorganization of the State of Madhya Pradesh,

was transferred to the Board of Revenue, Bilaspur. During pendency of

said revision before the Board of Revenue, Bilaspur, Dhaniram died on

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14.03.2002. Plaintiff submitted an application for substitution of her

name, which remained pending. It was also pleaded that defendant No.

1 also filed an appeal against the order of mutation in favour of

Dhaniram which came to be dismissed. Defendants No. 1 to 3

thereafter influencing Smt. Milapa Bai and Sheela Bai submitted an

application in the pending proceeding before the Board of Revenue in a

revision filed by Dhaniram (since deceased) on 28.03.2005. The Board

of Revenue thereafter dismissed the revision vide order dated

14.09.2005. Application for restoration of revision was filed and also an

application claiming herself to be legal heir of late Dhaniram which also

came to be dismissed on the ground that plaintiff could seek

appropriate relief from the competent civil court. Name of plaintiff

continuously recorded based on the registered Will executed in her

favour, however, defendants therein were making all attempts to sale

the property, subject matter of suit, and also being threat to dispossess

her. Plaintiff in the suit has prayed for relief of declaration that the

plaintiff become owner and possessor of the suit property based on

the Will dated 28.05.2001. The order passed by Board of Revenue

dated 10.07.2009 to be contrary to law. Defendants be restrained from

interfering with the title and possession of plaintiff either themselves or

through other persons.

4.Defendants Nos. 1 to 7 filed a written statement, denying pleadings

made therein. They have specifically denied the pleading with regard to

purchase of property, subject matter of the suit by Dhaniram from Udiya

and Smt. Sukhmat. In fact, they have denied entire pleadings made in

the plaint. It is also pleaded that the alleged sale deed dated

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02.07.1961 is an unregistered sale-deed and therefore it is void and

does not confer any right to Dhaniram and consequently the mutation

order passed based on the unregistered sale-deed, also to be void.

The property, subject matter of sale deed dated 15.05.1970 was

ancestral property of Udiya S/o Manohar (husband of Sukhmat). As

there was no partition, Sukhmat Bai did not have any right or title on

the said property bearing Khasra No. 889/3 and 895. She was illiterate

lady i.e., mother of Dhaniram (so called purchaser). It is forged and

fabricated document. The property, subject matter of the suit, was

ancestral property of Udiya son of Manohar who died in the year 1968.

Udiya was having four sons namely Fudku, Rambharos, Dhaniram and

Goverdhan and a wife ie., Sukhmat Bai. After death of Udiya name of

four sons and his widow was to be substituted in revenue records.

There was no partition of the ancestral property between Dhaniram and

his other three brothers and mother. It is also pleaded that as Fudku

and Dhaniram sons of Sukhmat were in railway service, Sukhmat was

not having any need of money. Dhanriram being literate person, playing

cunningly got his name mutated in the entire ancestral property based

on alleged sale deed, one unregistered and another registered stated

to be executed by his mother. The order of mutation dated 30.01.1976

in favour of Dhaniram is also illegal and void. The order of mutation in

favour of Dhaniram was challenged in appeal and it was set aside. In

reply, defendants have pleaded that Dhaniram was issue-less and had

kept his two niece, plaintiff and one Sheela Bai, with him and after their

marriage, they started living in their matrimonial home. Dhaniram has

not executed any Will on 28.05.2001, it is forged and fabricated. On the

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alleged date of execution of Will, Dhaniram was very old, his mental

status was not good and further that on the date of execution of Will no

property was recorded in name of Dhaniram and therefore the plaintiff

could not got any right and title based on the Will. It is also pleaded that

Dhaniram died on 14.03.2002 but the suit is not filed within three years

of the death of Dhaniram but is only filed on 28.06.2009 and therefore

the civil suit is barred by limitation as it was not filed within three years.

In additional pleadings, defendants have also pleaded that the property,

subject matter of the suit, is owned by Udiya son of Manohar. Udiya

died in the year 1968 leaving behind four sons namely Fudku,

Rambharos, Dhaniram and Goverdhan, he has also survived by his

widow Smt. Sukhmat Bai who died in the year 1970. There was no

partition of the property between sons and widow of Udiya. Out of four

brothers, Dhaniram was the only person who was more educated. He,

behind the back of other brothers, got his name alone recorded in

revenue records. Mutation of name of Dhaniram alone in ancestral

property came to their knowledge in the year 1997 and thereafter an

appeal was filed challenging the order of mutation which was allowed

and the appeal and revision preferred by plaintiff came to be dismissed.

It is also pleaded that the land transferred through sale deed in favour

of one S.C. Das vide sale deed dated 20.02.1995 was questioned in a

separate civil suit pending before the 9

th

Civil Judge, Class-II, Bilaspur

by defendant No. 1 and others. The property, subject matter of the suit,

is a joint hindu family property, it was not partitioned and therefore

Dhaniram was not having any right and title to execute the Will.

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5.Learned trial Court considering the pleadings made by the respective

parties has formulated five issues for consideration. Upon appreciation

of pleadings and evidence of respective parties, dismissed the suit

recording a finding that Ext. P-2 is an unregistered sale deed said to be

executed by Udiya in favour of Dhaniram. It does not confer any title on

the purchaser in view of provision of Section 17 read with Section 49 of

the Registration Act 1908. It is also observed that the sale deed dated

15.06.1970 said to be executed by Sukhmat (mother of Dhaniram) in

favour of Dhaniram to be without any authority of law as name of

Sukhmat was not recorded in revenue record as owner of the property

and further considering that there was no partition of the property of

Udiya between his legal heirs/ legal representatives ie., four sons and

widow. The Will could not be proved in accordance with Section 63 of

the Indian Succession Act readwith Section 68 of the Evidence Act and

held that it could not be proved that the plaintiff is owner and possessor

of the land, subject matter of the suit, to be not proved. Other issues

No. 2 and 3 were also not found to be proved, decided against plaintiff

and dismissed the suit.

6.Learned First appellate court upon appreciating the evidence as

brought by the respective parties has affirmed the finding recorded by

the trial court that the Dhaniram has not accrued any right and title over

the land, subject matter of the suit, pursuant to the sale deeds Ext. P-1

& P-2, further recorded a finding that plaintiff could not able to prove

valid execution of Will Ext. P-3 dated 28.05.2001 in accordance with

law and could not able to succeed in removing the shadow of clouds

over her title based on Will. Learned first appellate court also made an

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observation that the plaintiff could not able to prove that she is

successor of late Dhaniram and accordingly dismissed the appeal by

impugned judgment and decree.

7.Learned counsel for plaintiff would submit that both the courts below

erred in recording a finding that Dhaniram was not conferred with any

right or title over the suit property based on the sale deed Ext. P-1 & P-

2. Finding recorded by both the courts below that the Will dated

28.05.2001, Ext. P-3, to be not proved in accordance with the

provisions under Section 63 of the Indian Succession Act, 1925

readwith Section 68 of the Evidence Act to be perverse to the evidence

of PW-3, Dileep Kumar (attesting witness). In support of his

contention, he places reliance upon the decision in case of

Dayashankar and others v. Jaishankar (since deceased) through

his L.Rs. and others reported in 2012 (2) CGLJ 518; and Rajni v.

Basudev Narayan Singh (Smt. Gyaneshwari Devi and Others)

reported in 2013 (2) CGLJ 280.

8.Learned counsel for Defendants No. 1 to 7 would oppose the

submission of learned counsel for plaintiff and would submit that

learned both the courts below upon appreciation of pleadings and

evidence brought on record have rightly recorded a finding and

concluded that Dhaniram, testator of Ext. P-3, was not having any right

and title to bequeath the property as mentioned therein. Dhaniram was

not conferred with any right or title based on unregistered sale deed

Ext. P-2 dated 02.07.1961 executed by Udiya (his father) in his favour

and further that on the date of execution of registered sale deed Ext. P-

1 dated 15.05.1970 the executant/ seller Sukhmat Bai, mother of

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Dhaniram and therefore the sale deed executed is null and void.

Partition of ancestral property recorded in the name of Udiya was not

proved and all the four brothers ie., Fudku, Rambharos, Goverdhan

and Dhaniram along with Sukhmat, widow of Dhaniram, were the joint

owner of the property. There is concurrent finding fo the facts recorded

by both the courts below.

9.This second appeal was admitted on 11.02.2015 on the following

substantial questions of law:-

“1. Whether the Revenue Court, SDO

Bilaspur has the power to declare the

registered sale deed as null and void?

2. Whether mutation done on the basis of

the sale deed the mutation could have been

challenged to annul the sale deed 20 years

back?”

10. On 29.08.2025, in exercise of power under Section 105 of CPC,

another question of law has been formulated as under:

“3. Whether both the courts below were

justified in recording its finding that the Will

has not been duly executed, is legal and

justified?”

11.I have heard learned counsel for the parties and also perused the

record of both the courts below.

12.Undisputedly the suit filed by plaintiff seeking declaration of title that

plaintiff has acquired title and is in possession of the suit property

based on Will dated 28.05.2001 and to declare the order dated

10.07.2009 passed by Board of Revenue, Bilaspur, Chhattisgarh to be

contrary to law.

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13.Will is filed as Ext. P-3 in which name of testator is mentioned as

Dhaniram son of Udiya aged about 74 years, it was executed in favour

of six persons named therein. In the body of Will, it is mentioned that

the land of his ownership, title and his possession situated at village

Torwa including the property bearing Khasra Nos. 889/3 895 and 840

(subject matter of the Will deed Ext. P-1 and P-2 along with other

property) to have been willed in their favour.

14.According to the provision of law, any person claiming title over any

property based on the Will executed in his/ her favour then even if the

Will is registered it is to be proved before the court in accordance with

the provisions under Section 63 of the Indian Succession Act, 1925

readwith Section 68 of the Evidence Act. Section 63(c) of the Act of

1925 which is relevant in the facts of the case is extracted below for

ready reference:

“Section 63.   Execution of unprivileged

wills.-- Every testator, not being a soldier

employed in an expedition or engaged in actual

warfare,

1

[or an airman so employed or

engaged,] or a mariner at sea, shall execute his

will according to the following rules:--

(a) x x x x

(b) x x x x

(c) The will shall be attested by two or more

witnesses, each of whom has seen the testator

sign or affix his mark to the will or has seen

some other person sign the will, in the presence

and by the direction of the testator, or has

received from the testator a personal

acknowledgment of his signature or mark, or of

the signature of such other person; and each of

the witnesses shall sign the will in the presence

of the testator, but it shall not be necessary that

more than one witness be present at the same

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time, and no particular form of attestation shall

be necessary.

15.Section 68 of the Evidence Act is also relevant to the facts of the cse,

which is also extracted below B. Venkatamuni v. C.J. Ayodhya Ram

Singh.

“68. Proof of execution of document required

by law to be attested.––If a document is

required by law to be attested, it shall not be

used as evidence until one attesting witness at

least has been called for the purpose of proving

its execution, if there be an attesting witness

alive, and subject to the process of the Court

and capable of giving evidence: 3[Provided that

it shall not be necessary to call an attesting

witness in proof of the execution of any

document, not being a will, which has been

registered in accordance with the provisions of

the Indian Registration Act, 1908 (16 of 1908),

unless its execution by the person by whom it

purports to have been executed is specifically

denied.]”

16.The requirement to prove a valid execution of any privileged Will is that

it shall be attested by two or more witnesses and each of whom has

seen the testator sign or affix his mark to the will or has seen some

other person sign the will, in the presence and by the direction of the

testator, or has received from the testator a personal acknowledgment

of his signature or mark, or of the signature of such other person; and

each of the witnesses shall sign the will in the presence of the testator.

17.Plaintiff to prove pleadings in the plaint had examined herself as PW-1

and Dileep Kumar as PW-3, the attesting witness. PW-1 in her

examination-in-chief had stated that the testator Dhaniram was issue-

less who after retirement from service from Railways started living

along with his wife and with plaintiff. He executed his last Will on

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28.05.2001 (registered Will). It is also pleaded that he died on

14.03.2002. In cross-examination, it is admitted that she was having

knowledge of execution of Will by Dhaniram of the property of his

share. Before death of Dhaniram, she became aware of execution of

will. She has not made any statement as to whether the Will was

executed in her presence or not and therefore she is not the witness to

the execution of Will.

18.PW-3, Dileep Kumar, in his examination-in-chief has stated that

Dhaniram prior to the date before 28.05.2001 (date of execution of Will)

called him and expressed his view that he wanted to execute Will and

he had to come to witness the Will. He also stated that on asking of

Dhaniram, he along with Dhaniram and Santosh Yadav came to the

Registrar Office at Bilaspur and have put signature on the Will. In

cross-examination, he stated that at the time of execution of Will, he

was being with Dhaniram,Santosh Yadav and Shatrughan Yadav. He is

not aware as to how many property, and which property to whom,

Dhaniram bequeathed in his Will. In para-8, this witness admitted that

the Will deed was typed prior to 28.05.2001. He also made statement

that he is not aware as to how many days before 28.05.2001 Will was

typed. He has not come when the Will deed was typed. In his presence

Will was not prepared and he has only put his signature over it. In

earlier paragraph, this witness has stated that the Will was typed in

Registrar Office and thereafter he changed his statement and stated

that the Will was typed in District Court where Advocate C.L. Yadav

used to sit.

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19.From the aforementioned statement of this witness, it is prima facie

appearing that he made contradictory statement with regard to

preparation of Will due to which testimony of this witness cannot be

accepted as reliable evidence.

20.The law with regard to prove of Will is no longer res integra. Section 63

of the Indian Succession Act, 1925 and Section 68 of the Evidence Act,

1872 are relevant in this regard. Propounder of a Will must examine

one or more attesting witnesses to prove the valid execution of Will and

under the aforementioned provision of law the onus is placed on the

propounder to remove all suspicious circumstances, of valid execution

of Will.

21.In the case of Jaswant Kaur v. Amrit Kaur, reported in (1977) 1 SCC

369 Hon’ble Supreme Court had observed that when a Will is allegedly

shrouded in suspicion, its proof ceases to be a simple lis between the

plaintiff and the defendant. What, generally, is an adversary proceeding

becomes in such cases a matter of the court's conscience and then the

true question which arises for consideration is whether the evidence

led by the propounder of the Will is such, as to satisfy the conscience

of the court that the will was duly executed by the testator. It is

impossible to reach such satisfaction unless the party which sets up

the Will offers a cogent and convincing explanation of the suspicious

circumstances surrounding the making of the Will.

22.In case of Bharpur Singh v. Shamsher Singh, reported in (2009) 3

SCC 687 hon’ble Supreme Court has narrated few suspicious

circumstances being illustrative but not exhaustive as under:

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“23. Suspicious circumstances like the following

may be found to be surrounded in the execution

of the will:

(i) The signature of the testator may be very

shaky and doubtful or not appear to be his usual

signature.

(ii) The condition of the testator's mind may be

very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural,

improbable or unfair in the light of relevant

circumstances like exclusion of or absence of

adequate provisions for the natural heirs without

any reason.

(iv) The dispositions may not appear to be the

result of the testator's free will and mind.

(v) The propounder takes a prominent part in the

execution of the will.

(vi) The testator used to sign blank papers.

(vii) The will did not see the light of the day for

long.

(viii) Incorrect recitals of essential facts.”

23.In the aforementioned case, Hon’ble Supreme Court further observed

that the circumstances narrated as above are not exhaustive subject to

offering of reasonable explanation, existence thereof must be taken

into consideration for the purpose of arriving at a finding as to whether

the execution of the will had been duly proved or not. It may be true

that the will was a registered one, but the same by itself would not

mean that the statutory requirements of proving the will need not be

complied with.

24.In case of B. Venkatamuni v. C.J. Ayodhya Ram Singh, reported in

(2006) 13 SCC 449 Hon’ble Supreme Court has held that the court

must satisfy its conscience as regards due execution of the Will by the

testator and the court would not refuse to probe deeper into the matter

only because the signature of propounder on the Will is otherwise

proved.

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25.In the light of above decisions of Hon’ble Supreme Court, if the facts of

the case in hand is taken into consideration would show that the

document Will Ext. P-3 has been stated to be forged and fabricated

document by the defendants. The attesting witness Dilip Kumar, PW-3,

though had made an attempt to state that the Will was typed in the

Registrar office, thereafter correct it to say that it is typed in civil court

and he thereafter in his cross-examination stated that it was typed prior

to 28.05.2001 (on the date of execution of Will). In his evidence, he

clearly stated that he is not aware as to what and which property is

given to whom. The Will is executed in favour of six persons, out of

which suit was filed by only one, ie., Laxmi Yadav. W/o Shatruhan

Yadav. On the date of execution of Will, Shatruhan Yadav was present

in the Registrar office as stated by attesting witness PW-3.

26.Husband of beneficiary of the Will ie., Shatruhan Yadav husband of

Laxmi Yadav (PW-1) has got prepared the document Ext. P-3 Will prior

to coming in picture of attesting witness. This attesting witness has

further admitted in evidence that he has not read the Will.

27.In the above facts of the case, it appears to be suspicious as to

whether the testator was aware about contents and the properties,

subject matter of disposition mentioned in the Will. The beneficiary of

the Will actively participated in preparation of the Will through her

husband.

28.In the aforementioned facts of the case, even if the evidence of PW-3

to the extent that signing of the Will by testator to be proved will not

prove that the testator had understood the nature of effect of

disposition as mentioned on the Will, more so when in the facts of the

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attesting witness PW-3 had made statement that he is not aware as to

where the Will was typed which is brought for registration in the

Registrar office and which property is given to whom.

29.From the aforementioned evidence of PW-3, Dileep Kumar, the clouds

on the valid execution of Will could not be removed as the testimony of

this witness appears to be not reliable. Apart from the above, a person

can execute the Will of the property of which he is having right and title.

From the evidence of plaintiff, PW-1, it is appearing that the property

bearing Khasra No. 840, subject matter of the Will deed, Ext. P-2,

dated 02.07.1961 and the land bearing Khasra No. 889/3 and 895

measuring 0.82 and 0.55 acres respectively of the sale deed dated

15.05.1970 was ancestral property (as admitted in para-12 of her

deposition). He also stated that she is grand-daughter of Udiya and

Sukhmat and they were having four sons namely Fudku, Rambharos,

Dhaniram and Goverdhan. Though she made statement that there was

partition between all the four brothers of his father, however, she made

further statement that she is not aware as to which brother out of four

received which property and where. She also stated that she was not

aware about when partition took place between four brothers. In para-

13, she admitted that all the brothers were cultivating agricultural lands

jointly.

30.In the aforementioned facts of the case, evidence of plaintiff herself, it

is apparent that the property, subject matter of the sale deed Ext. P-1

and P-2 was co-parcenary property being ancestral property of late

Udiya. Sale deed said to be executed by Udiya, original owner of the

ancestral property, was an unregistered sale deed (Ext. P-2). Perusal

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of sale deed Ext. P-2 would reflect that it mentions that it is to be

executed by Udiya son of Manohar, in favour of Dhaniram son of Udiya

on 02.07.1961.

31.The value of the property/ sale consideration is mentioned as Rs. 500.

However, the sale deed is not registered in accordance with the

Registration Act, 1908. Section 17 of the Registration Act mandates

that non-testamentary instruments which purport or operate to create,

declare, assign, limit or extinguish, any right, title or interest to be

registered. Section 49 of this Act talks of effect of non-registration of

documents required to be registered. It mentions that no document

required by section 17 [or by any provision of the Transfer of Property

Act, 1882 (4 of 1882),] to be registered to affect any immovable

property comprised therein, or confer any power to adopt, or be

received as evidence of any transaction affecting such property or

conferring such power.

32.In the case at hand, admittedly, Ext. P-2 is an unregistered document

and therefore it does not affect any immovable property comprised

therein and therefore Dhaniram has not acquired any title of property

mentioned in Ext. P-2 which mentions transfer of property bearing

Khasra No. 840 measuring 0.47 acre.

33.In the aforementioned facts of the case, as no right or tile of Dhaniram

was created on land bearing Khasra No. 840 based on the sale deed

Ext. P-2, Dhaniram was not having any right or title to execute the Will

of the aforementioned land in favor of others. It is settled law that a

person cannot transfer better title than what he possessed.

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34.So far as the sale deed Ext. P-1 is concerned, it is executed by Smt.

Sukhmat Bai widow of Udiya on 15.05.1970 in favour of his son

Dhaniram. As discussed in preceding paragraphs, the property, subject

matter of the sale deed bearing Khasra No.. 889/3 and 895 as admitted

by plaintiff was ancestral property of Udiya, he was having four sons

namely Fudku, Rambharos, Dhaniram and Goverdhan. Partition

between four sons and widow of Udiya is not proved in accordance

with law. Defendants have denied the fact of partition between four

brothers. Ext. D-1 is the copy of Adhikar Abhilesh in which name of

Rama son of Fudku and others legal heirs of Fudku is also recorded

along with others in revenue records against the land bearing Khasra

No. 840, 889/3 and 895.

35.It is admitted case of plaintiff that the property, subject matter of sale

deed, Ext. P-1, is the ancestral property of Udiya and not of Sukhmat.

In the ancestral property of husband, his widow can acquire separate

right and title over the joint property after partition between the co-

owners of the property. Plaintiff could not proved the fact that after

death of Udiya there was partition between her and her four sons and

she received the property bearing Khasra No. 889/3 and 895, subject

matter of sale deed Ext. P-1 in her share. According to the provision

under Section 101 of the Evidence Act, it is burden upon the plaintiff to

prove the facts pleaded of partition in which plaintiff utterly failed and

therefore plaintiff failed to prove that the seller of land, subject matter of

Ext. P-1 was having right and title over the property, subject matter of

sale deed for valid transfer of immovable property bearing Khasra Nos.

889/3 and 895 through registered sale deed. Mere registration of sale

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deed will not in itself be sufficient to prove that the sale deed executed

transferring the immovable property in favour of purchaser is valid in

law. As discussed above that for transfer of right and title, even

through registered sale deed, the seller is required to first have the title

and right over the property in accordance with law. If the seller himself

is not having the right and title over the property, the purchaser would

not confer any right and title over such property as mentioned in sale

deed.

36.Even if the submission made by learned counsel for appellant or case

set up by the plaintiff is considered that Sukhmat Bai executed the

registered Will deed, Ext. P-1, in favour of Dhaniram, her son, then also

apart from the above discussions, entitlement of the Sukhmat Bai to be

owner of the property, subject matter of sale-deed Ext. P-1, if registered

sale deed is to be taken into consideration looking to the relationship

between the two being mother and son, the question arises for

consideration whether the sale deed is a nominal sale deed and

therefore it is a sham document. Hon’ble Supreme Court in the case of

Shanti Devi (since deceased) through LRs. Goran vs. Jagan Devi

and others reported in 2025 SCC OnLine SC 1961 referring decision

of Kewal Krishnan v. Rajesh Kumar and others, reported in (2022)

18 SCC 489 while considering the fact that whether the defendants

have paid any sale consideration to the plaintiff while purchasing the

plaintiff’s share in the property, in para 34, has observed thus:

“i. First, that the sale of an immovable property

would have to be for a price and such a

payment of price is essential, even if it is

payable in the future. If a sale deed is executed

without the payment of price, it is not a sale at

all in the eyes of law, specifically under Section

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54 of the Transfer of Property Act, 1882. Such

a sale without consideration would be void and

would not affect the transfer of the immovable

property.

ii. Secondly, that, in the said case, the

defendants could not rebut the allegation of the

plaintiff that no sale consideration was paid as

no evidence was adduced to indicate - (a) the

actual payment of the price mentioned in the

sale deeds and, (b) that the defendants had any

earning capacity at the time of the transaction

such that the sale consideration could have

been paid. As such the sale deed being void for

want of valid consideration, could not be said

to have affected the one-half share of the

plaintiff in the suit properties nor have

conferred any right of title on the defendants. In

fact, it was held that the sale deeds were a sham

and must be ignored.

iii. Lastly, it was reiterated that a document that

is void need not be challenged by seeking a

declaration as the said pleas can be set up and

proved even in collateral proceedings.

The relevant observations are thus:

“18. Section 54 of the Transfer of Property Act,

1882 (for short “the TP Act”) reads thus:

“54. “Sale” defined.—“Sale” is a transfer of

ownership in exchange for a price paid or

promised or part-paid and part-promised.

Sale how made.—Such transfer, in the case of

tangible immovable property of the value of

one hundred rupees and upwards, or in the

case of a reversion or other intangible thing,

can be made only by a registered instrument.

In the case of tangible immovable property of a

value less than one hundred rupees, such

transfer may be made either by a registered

instrument or by delivery of the property.

Delivery of tangible immovable property takes

place when the seller places the buyer, or such

person as he directs, in possession of the

property.

Contract for sale.—A contract for the sale of

immovable property is a contract that a sale of

such property shall take place on terms settled

between the parties.

It does not, of itself, create any interest in or

charge on such property.”

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Hence, a sale of an immovable property has to

be for a price. The price may be payable in

future. It may be partly paid and the remaining

part can be made payable in future. The

payment of price is an essential part of a sale

covered by Section 54 of the TP Act. If a sale

deed in respect of an immovable property is

executed without payment of price and if it

does not provide for the payment of price at a

future date, it is not a sale at all in the eye of

the law. It is of no legal effect. Therefore, such

a sale will be void. It will not effect the transfer

of the immovable property.

19. Now, coming back to the case in hand, both

the sale deeds record that the consideration has

been paid. That is the specific case of the

respondents. It is the specific case made out in

the plaints as originally filed that the sale

deeds are void as the same are without

consideration. It is pleaded that the same are

sham as the purchasers who were minor sons

and wife of Sudarshan Kumar had no earning

capacity. No evidence was adduced by

Sudarshan Kumar about the payment of the

price mentioned in the sale deeds as well as the

earning capacity at the relevant time, of his

wife and minor sons. Hence, the sale deeds will

have to be held as void being executed without

consideration. Hence, the sale deeds did not

affect in any manner one half-share of the

appellant in the suit properties. In fact, such a

transaction made by Sudarshan Kumar of

selling the suit properties on the basis of the

power of attorney of the appellant to his own

wife and minor sons is a sham transaction.

Thus, the sale deeds of 10-4-1981 will not

confer any right, title and interest on

Sudarshan Kumar's wife and children as the

sale deeds will have to be ignored being void. It

was not necessary for the appellant to

specifically claim a declaration as regards the

sale deeds by way of amendment to the plaint.

The reason being that there were specific

pleadings in the plaints as originally filed that

the sale deeds were void. A document which is

void need not be challenged by claiming a

declaration as the said plea can be set up and

proved even in collateral proceedings.

20. Hence, the issue of bar of limitation of the

prayers for declaration incorporated by way of

an amendment does not arise at all. The

additional submissions made by the

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respondents on 16-11-2021 have no relevance

at all.

21. As no title was transferred under the said

sale deeds, the appellant continues to have

undivided half-share in the suit properties. That

is how the District Court passed the decree

holding that the appellant is entitled to joint

possession of the suit properties along with

Sudarshan Kumar. Therefore, for the reasons

recorded above, by setting aside the impugned

judgment and order [Rajesh Kumar v. Kewal

Krishan, 2015 SCC OnLine P&H 20782] of the

High Court, the decree passed by the District

Court deserves to be restored.”

(Emphasis supplied)

37.In the case at hand also, firstly title of Sukhmat Bai, of the land subject

matter of Ext. P-1 and its valid execution is not proved. The purchaser

will not get any right or title on suit property of Ext. P-1.

38.In case of Bharpur Singh (supra), Hon’ble Supreme Court has held

that registration of the Will by itself would not amount that the statutory

requirement of proving the Will need not be complied with.

39.Learned Trial Court upon appreciation of the evidence on Will had

taken note of evidence of PW-3, attesting witness, that he admitted that

Will was not prepared in front of him. He also admitted that prior to

28.05.2001, document Will was prepared and further in the ‘Will’ space

is left vacant at C to C ie., mentioning of date. Learned Trial court taken

note of the fact that this witness admitted that he is not aware of the

fact that by Will which beneficiary getting what share of the property.

Trial Court has further considered that out of six beneficiaries, only one

has filed the suit and other beneficiaries of the Will have not been

arrayed as defendants to the civil suit and has taken into consideration

it also to be one of the suspicious circumstances and held that not

giving any explanation of not impleading other beneficiaries of the Will

23 / 25

to be party to the suit to be one of the grounds for drawing adverse

inference. Trial court in fact has disbelieved the testimony of attesting

witness PW-3. The finding of the Trial court was affirmed by the first

appellate court on the proof that the plaintiff failed to prove the due

execution of Will meeting with the requirement under Section 63 of the

Indian Succession Act, 1925. There is concurrent finding fo the facts of

both the courts below. Hon’ble Supreme Court in the case of State of

Haryana v. Harnam Singh, reported in (2022) 2 SCC 238 has

observed thus:

“9. The opinion of the High Court was that the

will was proved in terms of Section 63 of the

Succession Act, 1925 and while coming to such

finding the High Court went deep into factual

inquiry. It is evident from the judgment under

appeal that the formulation of the question of

law was on question of fact only. Moreover, in

formulating the question on the basis of which

the appeal was admitted, the High Court

proceeded on the basis that the will was proved

in terms of Section 63 of the Succession Act,

1925. The person claiming to be scribe of the

will as well as the two attesting witnesses

deposed to support the case of the original

plaintiff, but both the trial court and the first

appellate court disbelieved their testimony. The

thumb impression of Kishan Singh was not

matched. There was contradiction in the

evidence of attesting witnesses as regards the

place of execution. The requirement of Section

63 of the Succession Act, 1925 cannot be said to

have been fulfilled by mechanical compliance of

the stipulations therein. Evidence of meeting the

requirement of the said provision must be

reliable. The fact-finding courts did not find

such evidence to be reliable.”

40.Hon’ble Supreme Court in the aforementioned case further considering

the fact that when there is concurrent finding of fact recorded by both

the courts below, the finding made by the High Court has held that the

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factual enquiry by the High Court in second appeal to be not

permissible in exercise of jurisdiction of Section 100 of CPC has

observed thus:

“11. Thus, the High Court erred in formulating

the question of law on the basis that the will

was proved in terms of Section 63 of the

Succession Act, 1925. In fact, both the fact-

finding courts—the trial court and the first

appellate court, had found that the will was not

proved. The evidence of the witnesses was

disbelieved as they failed to inspire the

confidence of fact-finding courts. The High

Court, however, went into a detailed factual

enquiry to come to its finding. We are of the

opinion that an enquiry of such nature was

impermissible while hearing an appeal under

Section 100 of the Civil Procedure Code, 1908.

12. In our opinion the finding of the trial court

and the first appellate court ought not to have

been interfered with by the High Court. We do

not find any perversity in the judgment of the

first two courts of facts.”

41.This court while admitting the appeal on 11.02.2015 has formulated two

questions of law as extracted in preceding paragraph. However, the

question of law formulated was not the issue considered by the trial

court or the first appellate court. The first appellate court considered the

above based on the grounds raised therein on the formulated

questions of law; “Whether the property, subject matter of suit was

ancestral property of the parties?; Whether the suit property was

partitioned?’ Whether the original owner of the land, Udiya, has

partitioned the property to his legal heirs? and; whether the residential

accommodation was partitioned? The said question has been

formulated based on the grounds raised by the appellant therein and

the submission of learned counsel for the parties. The material issue

involved in the facts of the case whether due execution of the Will has

25 / 25

not found proved but then in the facts of the case and the pleadings

made therein as discussed, as also the veracity of sale deeds Ext. P-1

and P-2, additional substantial question of law formulated under

Section 105 of CPC was deemed in the facts of the case and it has

also been decided as above.

42.In the aforementioned facts of the case and decisions of Hon’ble

Supreme Court, in the considered opinion of this Court, appeal being

devoid of substance is liable to be and is hereby dismissed

accordingly.

43.Decree be drawn up accordingly.

Sd/-

(Parth Prateem Sahu)

Judge

pwn