Ku. Seema Bairagi (Deleted) vs Ku. Rupa Bairagi

Page 1 of 22
(FA No.74/2016)

CGHC010015972016 2026:CGHC:46932-DB
NAFR
Digitally
signed by
SISTA
SOMAYAJULU
Date:
2026.11.05
13:35:20
+0530
SISTA
SOMAYAJULU
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA No. 74 of 2016
{Arising out of judgment and decree dated 28-1-2016 in Civil Suit No.27-
rd
A/2015 of the 3 Additional District Judge, Bilaspur}
Judgment reserved on: 6-10-2026
Judgment delivered on: 5-11-2026
Judgment (Full) uploaded on: 5-11-2026
1. Ku. Seema Bairagi ( Died & Deleted )
2. Smt. Madhuri Pramanik, W/o Shri Devdas, D/o late Shri Kenaram
Bairagi, aged about 53 years
Both R/o Sagardeep Enclave, Plot No.57, Ameri, Distt. Bilaspur,
Chhattisgarh
(Defendants)
... Appellants
versus
1.
Ku. Rupa Bairagi, D/o late Shri Sanjay Bairagi, aged about 15 years.
2.
Ku. Ratna Bairagi, D/o late Shri Sanjay Bairagi, aged about 13 years.
3. Ku. Ankita Bairagi, D/o late Shri Sanjay Bairagi, aged about 11 years.
4. Ku. Simran Bairagi, D/o late Shri Sanjay Bairagi, aged about 8 years.
5. Ku. Naina Bairagi, D/o late Shri Sanjay Bairagi, aged about 4 years.
Resp. No.1 to 5 minor through Mama Shri Vishaldhar, S/o Shri
Tapandhar, R/o Dabripara, Bilaspur, Tah. & Distt. Bilaspur,
Chhattisgarh
(Plaintiffs)

Page 2 of 22
(FA No.74/2016)
6. Smt. Laxmi Roy, W/o Shri Dev Ashish Roy, D/o late Shri Kenaram
Bairagi, aged about 43 years, R/o Navjiwan Society, Plot No.31,
Pachpedi, Raipur, Distt. Raipur, Chhattisgarh
(Defendant No.3)
7. Smt. Mina Ghosh, W/o Shri Subir Ghosh, D/o late Kenaram Bairagi,
aged about 50 years, R/o Napear Town, Hyderabad, Andhra Pradesh
(now Telangana)
(Defendant No.4)
8.
State of Chhattisgarh, Through Collector, Bilaspur, Distt. Bilaspur,
Chhattisgarh
(Defendant No.5)
... Respondents
For Appellant : Mr. B.P. Gupta, Advocate.
For Respondents No.1 to 5 : Mr. Ratnesh Kumar Agrawal and Mr. Sourabh
Agrawal, Advocates.
For Respondents No.6 & 7 : None present.
For Respondent No.8/State : Mr. Anant Bajpai, Panel Lawyer.
Division Bench: -
Hon'ble Shri Parth Prateem Sahu and
Hon'ble Smt. Sushma Sawant, JJ.
C.A.V. Judgment
Sushma Sawant, J.
1. Invoking the appellate jurisdiction of this Court under Section 96 of
the Code of Civil Procedure, 1908, the appellants herein/defendants
No.1 & 2 have preferred this appeal questioning the illegality,
validity and correctness of the impugned judgment dated 28-1-
rd
2016 passed by the 3 Additional District Judge, Bilaspur
(Presiding Officer Smt. Swarnalata Toppo) in Civil Suit No.27-A/
2015, Ku. Rupa Bairagi & four others v. Ku. Seema Bairagi
& four others, whereby the suit filed by respondents No.1 to 5
herein/plaintiffs, for declaration of title and permanent injunction,
has been decreed.

Page 3 of 22
(FA No.74/2016)
2. The aforesaid challenge has been made on the following factual
backdrop: -
(For the sake of convenience, parties hereinafter will be referred
as per their status shown and ranking given in the civil suit before the
trial Court.)
-:Factual Matrix:-
- :Admitted Facts:-
3. Parties are descendants of Kenaram Bairagi , who had one son,
namely, late Sanjay Bairagi, and four daughters. The family
particulars are set out below:-
Kenaram (Father)
Son-Late Sanjay Bairagi
1.Ku. Rupa Bairagi
2.Ku. Ratna Bairagi
3.Ku. Ankita Bairagi
4.Ku. Simran Bairagi
5.Ku. Naina Bairagi
(Plaintiffs through-
maternal uncle
Vishaldhar)
Daughter-Ku. Seema Bairagi Defendant No.1
Daughter-Smt. Madhuri Pramanik Defendant No.2
Daughter-Smt. Laxmi Roy Defendant No.3
Daughter-Smt. Meena Ghosh Defendant No.4
The appellants/plaintiffs are the children of late Sanjay Bairagi.
Their mother also passed away and, following the death of their
parents, they have been residing at the house of their maternal
grandparents. Their maternal uncle, Vishaldhar, is their guardian.

Page 4 of 22
(FA No.74/2016)
-:Description of suit property: -
4. The agricultural land bearing Khasra No. 1141, admeasuring 13.40
acres , situated at Village Nawagaon , Patwari Halka No .7,
Revenue Inspector Circle Kota, Tahsil Kota, District Bilaspur,
Chhattisgarh (hereinafter referred to as the “ suit property ”).
-: Case of Respondents No.1 to 5 herein/Plaintiffs before
the Trial Court :-
5. The plaintiffs’ case , in brief, is that the suit property originally
belonged to late Kenaram Bairagi , who had executed a registered
Will dated 25-1-2003 in favour of his son, late Sanjay Bairagi,
bequeathing his movable and immovable properties to him. After
the death of late Kenaram Bairagi on 26-5-2010, proceedings for
mutation of the suit land were initiated before the Tahsildar, Kota.
The daughters of late Kenaram Bairagi sought mutation of the land
in their favour and in favour of late Sanjay Bairagi. However, late
Sanjay Bairagi objected to the proposed mutation, asserting that the
suit property was his father’s self-acquired property and that, by
virtue of the aforesaid registered Will, he alone was entitled to
succeed to it. By order dated 27-11-2010, the Tahsildar, Kota,
directed mutation of the suit land in the names of late Sanjay Bairagi
and the four daughters of late Kenaram Bairagi. Aggrieved thereby,
late Sanjay Bairagi preferred an appeal before the Sub-Divisional
Officer, Kota, which remained pending at the time of his death on
30-1-2011.

Page 5 of 22
(FA No.74/2016)
6. The plaintiffs further pleaded that, thereafter, the appellants
herein/defendants No.1 & 2 (Ku. Seema Bairagi & Smt.
Madhuri Pramanik) initiated partition proceedings in respect of
the suit land under Section 178 of the Chhattisgarh Land Revenue
Code, 1959, before the Tahsildar, Kota. In view of the rival claims
concerning ownership and succession to the suit property and the
effect of the registered Will dated 25-1-2003, a dispute arose
regarding its title. The plaintiffs, being the daughters of late Sanjay
Bairagi, claimed their rights in the suit property through their father
under the aforesaid Will and, accordingly, instituted the present suit
seeking declaration of title and permanent injunction. As their
mother had predeceased their father, the plaintiffs, who were
minors at the relevant time, were residing with their maternal uncle,
Vishaldhar, who was looking after their welfare and representing
their interests as their guardian.
-:Written Statement of the Appellants herein/Defendants
No.1 & 2 before the Trial Court:-
7. The appellants herein/defendants No.1 & 2 (Ku. Seema Bairagi &
Smt. Madhuri Pramanik) by filing joint written statement have
set up the defence that late Kenaram Bairagi and his family
members had constituted a joint family and that the disputed suit
property was not his separate, self-acquired property. It was
contended that the suit property had been purchased from the
income derived from the family business, including the hotel
business, and that the registered Will dated 25-1-2003 did not

Page 6 of 22
(FA No.74/2016)
confer any exclusive right upon Sanjay Bairagi. Defendants No.1 & 2
also relied upon the revenue proceedings and the subsequent
partition of the revenue accounts to contend that the parties had
been recognised as separate holders of their respective shares. It
was also contended that after the mutation proceedings and the
division of the revenue accounts, the respective recorded holders
were in possession of their allotted portions and were entitled to
enjoy their properties in accordance with law. Defendants No.1 & 2
have disputed the allegation of unlawful interference or attempted
forcible dispossession and opposed the claim for declaration of
exclusive ownership and permanent injunction.
8. Defendant No.4 (Smt. Meena Ghosh) has filed separate written
statement opposing the averments made in the plaint, however,
defendant No.3 (Smt. Laxmi Roy) & defendant No.5 (State of
Chhattisgarh) were ex parte before the Trial Court and they have
not filed any written statement.
-: Proceedings before the Trial Court :-
9. The Trial Court after appreciating oral and documentary evidence
available on record, framed following issues and answered the issues
as under:-
S.No. Questions for Consideration Finding
0 &
1. क्यावादग्रस्तभूमि स्व केनारामबैरागीकीस्व अर्जित भूमि
" l"
हां
?
है

2. क्या स्व०केनारामकेद्वारा पुत्रसंजयबैरागी केपक्षमें
25@01@2003 ]
निष्पादित वसीयतनामा दिनांक प्रभावी
27
कण्डि का के
अनुसार ।
?
व्यवहारिकएवंस्वभाविकनहींहै

Page 7 of 22
(FA No.74/2016)
&1 4
क्याप्रतिवादीक्रमाकं से कोउत्तराधिकारकेआधारपर
3.
" नहीं "
?
वादग्रस्तभूमि मेंहकप्राप्तहै
1 4
4. क्या प्रतिवादीक्रमांक से केद्वारा वादग्रस्तभूमि पर
29
कण्डि का के
अनुसार ।
?
जबरनआधिपत्यकियेजानेकाप्रयासकियाजारहाहै
¡] ?
अगरहा तोप्रभाव
निर्णय की कंडिका के
5. ?
सहायताएवंवादव्यय
31
अनुसार ।

6. क्यावादिनीगणद्वाराअपनेवादकाउचितमूल्यांकनकरते
" l"
हां
] ?
हुए उसपरउचितन्यायशुल्कचस्पाकियागयाहै
-: Evidence adduced before the Trial Court:-
Evidence led by the Pl aintiffs:-
10. Before the learned Trial Court, the plaintiffs have examined
Madhukar Chorwandre (PW-1), Vishaldhar (PW-2),
Radheshyam Soni (PW-3), Lalaram @ Shaniram (PW-4),
Ashok Giri (PW-5) and Dr. Kumari Sunanda Dhenge (PW-
6) in support of their case. In support of their oral testimony, they
have produced and exhibited five documents, which were marked as
Exhibits P-1 to P-5.
Evidence led by Defendants No.1 & 2 :-
11. Defendants No.1 & 2 in support of their case have examined
defendant No.2 herself as Smt. Madhuri Pramanik (DW-1) and
Meena Ghosh (DW-2) . In support of their oral testimony, they
have produced and exhibited three documents, which were marked
as Exhibits D-1 to D-3 .
-:Judgment of the Trial Court:-
12. After hearing learned counsel for the parties, the learned Trial Court
decreed the suit holding that the suit property was the self-acquired

Page 8 of 22
(FA No.74/2016)
property of late Kenaram Bairagi and he had executed Will deed in
favour of Sanjay Bairagi, as such, Sanjay Bairagi is the only owner of
the suit property. Aggrieved by the said judgment & decree, the
appellants herein/defendants No.1 & 2 filed the present appeal on
the following grounds :-
(i) The impugned judgment and decree is bad in law and facts
also.
(ii) The Trial Court has totally overlooked the fact that the Will
is describing the property at Village Pipartarai, whereas the suit
property is situated at Village Navagaon. These two villages are
totally separate and are situated at distant places.
(iii) The Will, which is not related to the suit property, cannot
be given effect, but the Trial Court has illegally accepted the
Will assuming that the Will is for suit property.
(iv) The Trial Court has totally overlooked the settled principle
of law that the Will is only for the immovable property and it is
not valid for the bank accounts, but the Trial Court has illegally
held that it is valid for bank account also.
(v) The Trial Court without jurisdiction accepted the Will as
proof ignoring the settled principles of law.
(vi) The Trial Court has totally overlooked the law of succession
after amendment in succession law in 2005 giving equal right
and share to the daughters along with the brother in the
ancestral property.

Page 9 of 22
(FA No.74/2016)
(vii) The Trial Court has illegally held that the suit property was
self-acquired property of late Kenaram.
(viii) The Trial Court has totally overlooked Exhibit D-3,
statement of Sanjay Bairagi before the Tahsildar during the
mutation proceeding in which he has admitted the fact that at
Dhamtari they have an ancestral property and were running
hotel business jointly and after selling the property of
Dhamtari, ultimately, the suit property was purchased. On the
basis of admission of Sanjay Bairagi in Exhibit D-3, the Trial
Court should have held that the suit property is the ancestral
property and daughters have equal share along with father and
brother in the ancestral property.
(ix) The Trial Court has failed to appreciate the law that the
whole ancestral property cannot be alienated by father alone.
(x) The impugned judgment and decree are totally illegal,
unjust and is passed beyond jurisdiction and is liable to be
quashed.
-:Proceedings before the Appellate Court:-
13.
Both the parties were heard on this appeal. The evidence and
documents available in the record of the trial Court have been
perused.
-:Questions to be considered in this Appeal:-
1. Whether the learned Trial Court was justified in holding
that the plaintiffs acquired title over the suit property through
their father, Late Sanjay Bairagi, on the basis of the registered

Page 10 of 22
(FA No.74/2016)
Will dated 25-01-2003 executed by Late Kenaram Bairagi,
and in decreeing the suit for declaration of title and
permanent injunction?
2. Whether the judgment and decree passed by the learned
Trial Court warrant interference in the present appeal?
-:Arguments of the Appellant/Defendant No.2:-
14. Mr. B.P. Gupta, learned counsel for the appellant herein/defendant
No.2, submits that the suit property is owned and possessed and
recorded in all the revenue records in the name of the appellant after
due mutation and partition and the appellant is in physical
possession of the suit property fallen and recorded in her share.
Learned counsel further submits that the suit property is not the
self-acquired property of late Kenaram Bairagi. The finding of the
learned Trial Court to that extent and to the extent of upholding the
due execution of Will is apparently contrary to law and it deserves to
be set-aside. In support of his contention, Mr. Gupta, learned
counsel, has placed reliance on the decisions of the Supreme Court
in the matters of Ravi Kala and another v. Casablanca Estate
1
and others and Sanjay Paliwal and another v. Bharat
2
Heavy Electricals Limited Through its Executive Director
and that of this Court in the matter of Satyaprakash Saraf v.
3
Smt. Asha Saraf and others .
1 (2026) 6 SCC 208
2 (2026) 7 SCC 614
3 2026:CGHC:11562-DB

Page 11 of 22
(FA No.74/2016)
-:Arguments of Respondents No.1 to 5 herein/Plaintiffs:-
15. On the other hand, Mr. Ratnesh Kumar Agrawal, learned counsel for
respondents No.1 to 5 herein/plaintiffs, submits that the learned
Trial Court has rightly decreed the suit of the plaintiffs vide the
impugned judgment & decree which call for no interference by this
Court. It was, therefore, contended that the learned Trial Court was
justified in decreeing the suit and the impugned judgment & decree
do not warrant any interference in the present appeal.
-:Analysis of the Appellate Court :-
Points for determination No.(1) to (3)
16.
All three questions are interconnected and, therefore, they are taken
up together for consideration.
17. The arguments advanced by both parties and the evidence adduced
on record indicate that the entire dispute arises out of the Will
(Ex.P-1) executed by Kenaram in favour of his son, late Sanjay
Bairagi. In this regard, his daughters (defendants) have raised the
following principal objections:
(i) The aforesaid Will is forged.
(ii) The property in respect of which the relief of
declaration has been sought does not find mention in
the Will.
(iii) Kenaram had no right to execute the Will, as it
refers to property purchased out of the income
derived from ancestral property.

Page 12 of 22
(FA No.74/2016)
18. The Will is being examined in the context of the aforesaid
objections.
19.
At the outset, it is necessary to refer to the legal requirements for
proving a Will. Section 63 of the Indian Succession Act, 1925 ,
prescribes the manner in which a Will is required to be executed and
attested, whereas Section 68 of the Indian Evidence Act, 1872,
provides for the mode of proving a document required by law to be
attested. Accordingly, a Will must be proved in accordance with the
aforesaid statutory provisions.
20. Section 63 of the Indian Succession Act, 1925, provides as follows:
“63. Execution of unprivileged Wills.— Every testator,
not being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or a
mariner at sea, shall execute his Will according to the
following rules:—
(a) The testator shall sign or shall affix his mark to the
Will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it
shall appear that it was intended thereby to give effect to
the writing as a Will.
(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 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 time, and no
particular form of attestation shall be necessary.”

Page 13 of 22
(FA No.74/2016)
21. Further, Section 68 of the Indian Evidence Act, 1872, provides as
follows:
“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:
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.”
22. Thus, a Will is required to be proved in accordance with the
aforesaid statutory provisions, including proof of its due execution
and attestation as prescribed by law. The judgment of this Court in
Satyaprakash Saraf (supra), relied upon by the learned counsel
for the appellant, also lays down the same principle.
23. Upon examination of the evidence available on record in the light of
the aforesaid statutory provisions, it appears that the Will (Ex.P.-1)
was duly registered. In this regard, Madhukar Chorwande (PW-
1) , who appeared from the office of the Sub-Registrar, has
confirmed that, as per Register No.3 (Will/Year 2003) maintained
in his office, the Will dated 25-1-2003 was registered on the said
date. He has further stated that R.A. Soni {The name has been
wrongly typed as “R.A. Soni”; the correct name is “R.S. Soni”} and
Jaleshwar were present at the time of registration. Radheshyam

Page 14 of 22
(FA No.74/2016)
Soni (PW-3) , an attesting witness to the Will, has also
corroborated this fact.
24.
It is true that mere registration of a Will is not sufficient to prove its
due execution in accordance with law. However, registration may
constitute an additional circumstance lending support to the
genuineness of the Will. Therefore, it is necessary to examine the
other evidence available on record.
25. Vishaldhar (PW-2) , the maternal uncle of the plaintiffs, is not an
attesting witness to the execution of the Will; however, he has been
appointed as the guardian of the plaintiffs by a competent court, in
support of which Ex.P-4 is relevant.
26. Both parties have produced certain documents relating to the
mutation and partition proceedings. On behalf of the plaintiffs,
Sunanda Dhenge (PW-6) , a handwriting expert, has been
examined to establish that the written statement and other
documents submitted during the mutation proceedings bear the
signatures of defendant No.4, Meena Ghosh. Her report has also
been exhibited as Ex.P-5 . However, an elaborate discussion of this
evidence is not warranted, as the question whether Kenaram
executed the Will Ex.P-1 in favour of his son late Sanjay Bairagi is
required to be determined on the basis of the evidence available on
record in the present case.
27. Ex.P-1 is a registered Will attested by Radheshyam Soni and
Jaleshwar . In compliance with the legal requirement, one of the

Page 15 of 22
(FA No.74/2016)
attesting witnesses, namely, Radheshyam Soni , has been
examined as PW-3 . He has categorically deposed that Kenaram
himself got the Will written by document writer Ramkishore
Pandey and, after reading its contents, signed the same. He has
further stated that he signed the document as the first attesting
witness. Nothing material has emerged from his cross-examination
to discredit his testimony or to warrant any adverse inference
against him.
28. Another significant aspect of the matter is that the
daughter of Kenaram i.e. defendant No.4, Meena Ghosh,
was examined as DW-2 before the learned Trial Court and, in the
last line of paragraph 24 of her cross-examination , she has
admitted that her father, Kenaram , had got the Will written.
29.
In view of the foregoing evidence, the execution of the Will Ex.P-1
stands proved through the testimony of an attesting witness, while
the admission made by defendant No.4 Smt. Meena Ghosh
(DW2) , a family member of the testator, lends further support to
the case of the propounder. Accordingly, the learned Trial Court
committed no error in holding the Will Ex.P-1 to be proved.
30. In the present case, the Will has been duly proved by the
propounder in accordance with law. The defendants have alleged
that the Will is forged; however, it is pertinent to note that the
burden of proving such an allegation lies upon the party making it.
In the matter of Daulat Ram and others v. Sodha and

Page 16 of 22
(FA No.74/2016)
4
others , the Supreme Court has held that the burden of proving
that a Will is forged, or that it was obtained by fraud, undue
influence or coercion, lies upon the person alleging the same.
Therefore, unless the defendants establish the alleged forgery by
cogent evidence, their mere allegation cannot be a ground for
discarding an otherwise duly proved Will.
31. The defendants have not adduced any evidence to establish that the
Will is forged or that it was executed under undue influence.
Further, one of the circumstances that may give rise to suspicion
regarding a Will is the exclusion of other rightful heirs without any
apparent basis. However, the facts of the present case do not
indicate any such unusual circumstance. Out of the four daughters,
three were married, while the fourth daughter, who remained
unmarried, had also attained an advanced age. The plaintiffs are
five minor daughters who had lost their mother. In such
circumstances, it is quite natural that their grandfather, Kenaram,
might have been concerned about their future welfare. The present
case is not one in which the Will was executed, in an apparently
inexplicable manner, in favour of a third party to the exclusion of
the natural heirs.
32. Further, the execution and attestation of the Will, as well as its
registration, have all been duly proved by the evidence on record.
33.
The second objection raised by the defendants is that the
property in question has not been specifically mentioned in the Will.
4 (2005) 1 SCC 40

Page 17 of 22
(FA No.74/2016)
34. The Supreme Court, in the matters of Gnambal Ammal v. T.
5
Raju Ayyar and Sadaram Suryanarayana and another v.
6
Kalla Surya Kantham and another , has explained that the
intention of the testator is of paramount importance in construing a
Will and must be ascertained by reading the Will as a whole, rather
than by considering any particular expression or clause in isolation.
35. In the light of the aforesaid legal principle, a perusal of the Will
Ex.P-1 reveals that Kenaram intended to bequeath to his son all his
properties, including those that he might acquire in future. It is
particularly significant that the Will refers to lands situated in two
different Revenue Circles, which indicates that the testator intended
to bequeath his properties without restricting the bequest to any
single locality.
36.
In these circumstances, the contention that the suit property does
not form part of the Will cannot be accepted merely because it has
not been individually described therein. Had Kenaram intended to
exclude the suit property from the bequest, he could have expressly
provided for such exclusion in the Will. No such intention is
discernible from the document when read as a whole. Accordingly,
the learned Trial Court committed no error in holding that the suit
property is covered by the Will Ex.P-1. The appellants have relied
upon the judgments of the Supreme Court in Ravi Kala (supra) and
Sanjay Paliwal (supra) concerning the identification of property.
5 AIR 1951 SC 103
6 (2010) 13 SCC 147

Page 18 of 22
(FA No.74/2016)
However, in view of the facts and circumstances discussed herein-
above, the said judgments are distinguishable and, therefore, do not
inure to the benefit of the appellants.
37.
The third objection raised by the defendants is that Kenaram
had purchased the suit property from the sale proceeds of ancestral
property and, therefore, being not its exclusive owner, he was not
competent to bequeath the same under the Will. Although the
aforesaid t wo objections raised by the defendants have been
decided in favour of the plaintiffs , the third objection raised by
the defendants still requires consideration.
38. The said third objection is that the suit property was purchased by
Kenaram out of the sale proceeds of 9.54 acres of land situated at
Village Newra , which had been purchased from the income of the
joint family hotel situated at Dhamtari.
39. The fact that the suit property was purchased from the sale proceeds
of the land situated at Village Newra is stated by the plaintiffs'
maternal uncle, Vishaldhar (PW-2) , in paragraph 1 of his
examination, as well as by their witnesses, Lala alias Shani (PW-
4) , in paragraph 2 and Ashok Giri (PW-5) , in paragraph 3 of their
respective examinations. Thus, to this extent, even the plaintiffs'
own evidence supports the fact that the suit property was
purchased out of the sale proceeds of 9.54 acres of land
situated at Village Newra .

Page 19 of 22
(FA No.74/2016)
40. The learned Trial Court rejected this objection of the defendants
solely on the ground that the defendants had not adduced any
evidence to establish that the house, hotel and other properties
situated at Dhamtari were ancestral properties.
41.
However, it is particularly noteworthy that the plaintiffs have
instituted the suit seeking relief on the basis of the Will; therefore,
the burden lies upon them to establish that the suit property was the
self-acquired property of Kenaram from his separate income.
However, they have not produced any documentary evidence
concerning the land situated at Village Newra or the business of the
house, hotel and other properties situated at Dhamtari.
Furthermore, Vishaldhar (PW-2), in paragraph 11 of his cross-
examination, has admitted that the house situated at Dhamtari was
ancestral property. In paragraph 10, he has admitted that the
double-storey house at Dhamtari was sold by Kenaram.
42. Late Sanjay Bairagi could have been the best witness on this point;
however, he could not be examined as he had passed away.
43. Although the mutation proceedings between the parties are
undisputed, a certified copy of the statement of Sanjay Bairagi
recorded in those proceedings has been produced by Meena
Ghosh (DW-2) as Ex.D-3 . In the said statement, Sanjay Bairagi
has categorically admitted that all the brothers and sisters used to
sit together at the hotel and that the land situated at Village Newra
had been purchased out of the income of the said hotel. Ex.D-3,

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(FA No.74/2016)
produced by Meena Ghosh (DW-2) , is a copy of the statement
recorded during proceedings before a competent court. Its
authenticity was not challenged during the cross-examination of the
witness; therefore, its veracity cannot be disregarded.
44.
Thus, an analysis of the evidence available on record establishes that
the plaintiffs have failed to prove that the suit property is the
self-acquired property of Kenaram , in absence of which it will
be presumed that it was purchased from the income of the ancestral
property.
45. In the aforesaid background, it would be necessary to determine the
respective shares of the appellants/defendants (daughters of
Kenaram) and the other coparceners in the suit property. It is
pertinent to mention that Kenaram Bairagi died on 25-5-2010 ,
leaving behind his son Sanjay Bairagi and four daughters Seema
Bairagi, Madhuri Pramanik, Laxmi Roy & Mina Ghosh
(defendants) . Since the suit property has been found to be
ancestral coparcenary property, the respective shares are required to
be determined in accordance with the provisions of Section 6 of
the Hindu Succession Act, 1956 , as amended by the Hindu
Succession (Amendment) Act, 2005.
46.
In view of the amended provisions of Section 6 of the Hindu
Succession Act , the daughters of a coparcener acquire the status
of coparceners in their own right and are entitled to the same rights
and liabilities in the coparcenary property as a son. Accordingly, the

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(FA No.74/2016)
four daughters of Kenaram Bairagi were also entitled to
equal shares in the coparcenary property. For the purpose of
determining the share of Kenaram Bairagi upon his death, a
notional partition is required to be assumed immediately before his
death, in accordance with Section 6(3) of the Act.
47.
On such notional partition , the suit property would be divided
into six equal shares, namely, one share each for Kenaram Bairagi,
his son Sanjay Bairagi and his four daughters. Consequently,
Kenaram Bairagi was entitled to only one-sixth share in the suit
property.
48. In these circumstances, even accepting Will Ex.P-1 to be valid and
duly proved, Kenaram Bairagi could have bequeathed only the share
which belonged to him and not the entire suit property. Therefore,
under Will Ex.P-1, late Sanjay Bairagi acquired only the one-sixth
share of Kenaram Bairagi. Apart from the aforesaid testamentary
acquisition, late Sanjay Bairagi was independently entitled to his
own one-sixth share as a coparcener. Thus, upon the death of
Kenaram Bairagi, the total share acquired by Sanjay Bairagi in the
suit property would be one-third, i.e., 1/6 + 1/6 = 2/6 (one-third
share) .
49.
Subsequently, Sanjay Bairagi also died on 30-1-2011. Consequently,
his one-third share in the suit property devolved upon his legal
heirs in accordance with the provisions of the Hindu Succession Act.
The plaintiffs, being his daughters, are, therefore, entitled to succeed

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(FA No.74/2016)
to his aforesaid one-third share in the suit property, in accordance
with the applicable rules of succession. The remaining shares of the
four daughters of Kenaram Bairagi, being their independent
coparcenary shares, remain unaffected by the bequest made under
Will Ex.P-1 .
50.
Thus, the plaintiffs cannot claim title over the entire suit property
merely on the basis of Will Ex.P-1 . Their entitlement under the said
Will, read with the independent share of Sanjay Bairagi, is confined
to his one-third share in the suit property. The learned Trial
Court, therefore, committed an error in declaring the plaintiffs to be
owners of the entire suit property. The decree to that extent is liable
to be modified, and the plaintiffs are entitled to a declaration of their
title only in respect of the one-third share of late Sanjay Bairagi,
to be shared amongst them in accordance with law.
Final Conclusion:- -:
51. In view of the foregoing discussion, the appeal deserves to be and is
hereby partly allowed. The judgment and decree passed by the
learned Trial Court are modified to the extent that the declaration
granted in favour of respondents No.1 to 5 herein/plaintiffs on the
basis of the Will executed by Kenaram Bairagi shall be confined to
one-sixth of the share in the suit property being the extent of share
which Kenaram Bairagi had bequeathed. Parties shall bear their
own costs.
52.
Decree shall be drawn up accordingly.
Sd/- Sd/-
(Parth Prateem Sahu) (Sushma Sawant)
JUDGE JUDGE
Soma