JUDGMENT : RAJANI DUBEY, J. 1. The defendant No. 1/appellant herein has filed this appeal being aggrieved by judgment and decree dated 08.10.2021 (Annexure A-1) passed by 1st Additional District Judge, Janjgir, District Janjgir-Champa (C.G.) in Civil Appeal No. 06-A/18, whereby the suit filed by the plaintiffs/respondent Nos. 1 to 3 herein for declaration of title, partition and permanent injunction was partly decreed. 2. Brief facts of the case, as per the plaint averments, are that the plaintiffs Jaiswal Hindu, to whom provision of mitakshar law of Hindu Succession Act, 1956 were applicable to the parties for succession. The suit property bearing Khasra No. 640/5, area 0.08 acres and Khasra No. 640/7 area 0.03 acre situated in village Champa, Near Hasdev River Barrier, is self acquired property of late Rangilal Jaiswal. A three storey house was constructed on the suit land and there were 07 shops built on the ground floor, which were given on rent to various people and the ATM of the State Bank of India, Branch Champa, was installed in a shop. The monthly rent of the seven shops was Rs.41,700/- and rent from various property was Rs.1,10,000/-. It was pleaded in the plaint that on 14.04.2013, Rangilal Jaiswal left for heavenly abode on whose name the suit property bearing Kh. No. 640/5 area 0.08 acre was registered and suit property bearing Kh. No. 640/7 are 0.03 acre was recorded in the revenue record in the name of plaintiff Mohanmati and defendant No. 1 Rajeev. The suit property was purchased out of the income of the joint family for the benefit of the joint family/parties. After the death of Rangilal, the plaintiffs and defendant No. 1 being the legal heirs of late Rangilal, were in possession of the suit property. It was further pleaded in the plaint that the defendant No. 1, after the death fo Rangilal, started harassing the plaintiff No. 1 with an intention to evict him from the suit property. The defendant No. 1 was in possession of all the movable property of the suit property. The plaintiff No. 1, being tired of harassment of defendant No. 1, filed a complaint before police station under the Domestic Violence Act. The defendant No. 1 was in possession of all the movable property of the suit property. The plaintiff No. 1, being tired of harassment of defendant No. 1, filed a complaint before police station under the Domestic Violence Act. It has also been pleaded that plaintiff No. 1 resides in the second floor of the suit property and defendant No. 1 has put a lock in the kitchen of said portion and had broken the door of the bedroom of the plaintiff No. 1. The plaintiff No. 1 was in possession of the suit property. The defendant No. 1, after the death of late Rangilal, continuously harass the plaintiff No. 1 just to evict her from suit property, due to which the need arose to file the suit. Thus, the plaintiffs filed the suit for declaration of title, partition and permanent injunction. 3. The appellant/defendant No. 1 filed his written statement and denied the averment of plaintiffs only having left the admitted fact. It was stated in the written statement that the suit was not maintainable as no map of Kh. No. 640/5, area 0.08 acres had been submitted by the plaintiffs as there are three storey house constructed in which 10 blocks are there and the defendant No. 1 and plaintiff No. 1 were residing in 6 blocks. It was further stated that the Khasra No. 640/7 Rakba 0.03 acres was purchased by the advance amount paid by the defendant No. 1’s income and the house constructed over it had been made by the income of the appellant. As such, the plaintiffs had no legal right over the suit property of Khasra No. 640/7 area 0.03 acres. The plaintiffs did not invet any amount in constructed house over the suit property of the said khasra. Therefore, no partition may be granted in Khasra No. 640/7 area 0.03 acres. It was also stated that the suit property on which 3 storey house and 10 blocks had been constructed by the father of the defendant No. 1. The Shop in which the State Bank Branch office, is in Khasra No. 640/3 area 0.02 acres. Therefore, no partition may be granted in Khasra No. 640/7 area 0.03 acres. It was also stated that the suit property on which 3 storey house and 10 blocks had been constructed by the father of the defendant No. 1. The Shop in which the State Bank Branch office, is in Khasra No. 640/3 area 0.02 acres. After mutation, the survey No. 640/12 area 0.02 acres which have been purchased by the defendant No. 1 by way of registered sale deed from the registered owner and he has exclusive title and possession over the suit property and the plaintiffs have no legal right over the suit property. It was also stated that the plaintiffs had not included the entire property of ancestral property and no description was given in the plaint and therefore, the plaint is not maintainable. It was stated that the Khasra No. 640/7 Area 0.03 on which the houses had been constructed with the income of the defendant No. 1 and there is no share of the plaintiffs in the suit property. It was also stated that on 21.12.2011, the father of the defendant No. 1 late Rangilal executed a Will Deed in favour of the defendant No. 1 in which the plaintiff No. 1 had right to live in the suit property. The property which are situated in the village Chingaripali bearing Khasra No. 122/3, 172/2, 173/1, 159/1, Rakba 0.162, 0.837, 0.048, 0.226 total area 1.273 hectare and the land of village Kharri Tahsil-Sarangarh Distt. Raigarh bearing total Khasra No. 30 Rakba 4.185 hectare and other land had been given to the defendant No. 1 by way of Will. Thus, the suit was liable to be dismissed. 4. The learned trial court on the basis of plaint averments and written statement, vide judgment and decree dated 08.10.2021 partly allowed the suit filed by the plaintiffs holding that the plaintiffs and defendant No. 1 are the owner in possession of 1/4th share each in khasra No. 640/5, admeasuring 0.08 acres and house constructed over it, situated at village Champa, Tahsil Champa. It was also decreed that the plaintiff No. 1 and defendant No. 1 are owner in possession of ½ share each in khasra No. 640/7, land measuring 0.03 acre and house constructed over it, situated at village Champa, Tahsil Champa and restrained the defendant No. 1 from dispossessing the plaintiffs from their share in the suit properties. 5. Learned counsel for the appellant/defendant No. 1 submits that the impugned judgment and decree passed by the learned trial Court is contrary to law and facts and circumstances of the case. The suit property was self acquired property of Rangilal Jaiswal, father of appellant/defendant No. 1, plaintiff Nos. 2, 3 and husband of plaintiff No. 1, which the learned trial Court has failed to consider while passing the impugned judgment. Learned counsel further submits that defendant No. 1 had purchased the suit property of Khasra No. 640/7 area on which 3 storey building has been constructed with the income of the defendant No. 1 and it has been purchased by him by way of registered sale deed and he is in possession of the same and residing with family. The said fact has been proved by the defendant No. 1 by submitting income tax return of his own but the learned trial Court did not consider this aspect of the matter and passed the impugned order. The learned trial Court did not consider the fact that title has to be proved before the court of law by adducing cogent and strong evidence and documents by the plaintiffs, which was not done and therefore the judgment and decree passed by the trial court is illegal and against the law. The learned trial Court ought to have considered that the plaintiff No. 1 has not proved the facts that the suit property has been purchased by the income of joint Hindu Family. Placing reliance on the decision of Hon’ble Apex Court in the matter of Surjit Lal Chhabda vs. Commissioner of Income Tax Bombay, 1976 SCC 93 , it was submitted that the plaintiff Nos. 2 & 3 were married daughters and they were residing in their in-law house, as such, they cannot be considered as member of joint family and thus, not entitled for share in the suit property. 6. Learned counsel also submits that the suit property bearing Kh. 2 & 3 were married daughters and they were residing in their in-law house, as such, they cannot be considered as member of joint family and thus, not entitled for share in the suit property. 6. Learned counsel also submits that the suit property bearing Kh. No. 640/7 area 0.03 acre was purchased by the defendant No. 1 and merely recording the name of plaintiffs in the revenue record does not confer any right and title over the suit property and the same has to be proved by leading cogent evidence. Learned counsel also submits that the Will Deed (Ex.D/1) though was not found to be proved but the evidence has been adduced by the defendant No. 1 and his witnesses of Will Yogesh Banerjee who stated that Will has been executed in his presence and the suit property has been given to the defendant No. 1/appellant by his father late Rangilal Jaiswal. As such, the plaintiffs have no legal right in the suit properties which has been given to the appellant by way of Will by his father. Learned counsel also submits that the finding of the learned trial Court with regard to the genuineness of Will is not sustainable on the ground that opinion of finger print expert was not called and therefore, no doubt can be created on the Will. Thus, considering all the aforesaid aspects of the matter, the judgment and decree passed by the trial court giving 1/4th share in the suit property is illegal and against the law and the same deserves to be set aside. 7. On the other hand, learned counsel for the respondents/plaintiffs supporting the impugned judgment and decree submits that the learned trial Court minutely appreciated the oral and documentary evidence and decreed the suit in favour of plaintiffs/respondents. 8. I have heard learned counsel for the parties at length and perused the material available on record. 9. It is evident from the record of the learned trial Court that plaintiff No. 1-Mohanmati is wife of late Rangilal Jaiswal and mother of defendant No. 1-Rajiv Kumar, plaintiff No. 2- Smt. Menka Devi and plaintiff No. 3-Smt. Ramita Devi. 10. Defendant No. 1-Rajiv Kumar has stated that on 21.12.2011, his father late Rangilal Jaiswal had executed a Will in his favour with regard to his self acquired land of Khasra Nos. 10. Defendant No. 1-Rajiv Kumar has stated that on 21.12.2011, his father late Rangilal Jaiswal had executed a Will in his favour with regard to his self acquired land of Khasra Nos. 70/4, 137/5, 141/4, total land admeasuring 0.463 hectare situated at village Chingripali, Tahsil Sarangarh, District Raigarh and regarding his share in ancestral property of Khasra No. 122/3, 172/2, 173/1, 159/1, total land admeasuring 4.185 situated at village Khari. Similarly, Late Rangilal had also executed a Will in his favour with regard to his self acquired property comprised in total 4 khasra numbers, land admeasuring 1.11 acre, situated at village Dauguddi, Tahsil Saraipali, District mahasamund and with regard to his ancestral property of total Khasra No. 7, admeasuring 6.083 hectare situated at village Sarangarh, District Raigarh. 11. The learned trial Court on the basis of pleadings of the parties framed as many as 05 issues for disposal of the suit, which are reproduced herein as under: S. No. Issues Result 1. Whether ownership of ¼ - ¼ share of plaintiffs and defendant No. 1 exists in the land situated at village Champa, Tahsil Champa, District Janjgir-Champa, comprised in Khasra No. 640/5 land measuring 0.08 acre and Khasra No. 640/7 land measuring 0.03 acre and house constructed over it? “Partly proved” 2. Whether the plaintiffs are entitled to get ¼ share each after partition of suit land? “Partly proved” 3. Whether father of defendant No. 1 Rangilal has executed a Will on dated 21.12.2011 in favour of defendant No. 1 regarding suit property and other properties? “Not proved” 4. Whether suit of plaintiffs is maintainable? “Proved” 5. Relief? “Para No. 30” 12. Issue No. 3 was framed by the learned trial Court on the basis of objection of appellant/defendant No. 1, who has stated that his father late Rangilal had purchased land of Khasra No. 640/5 admeasuring 0.08 acre from Shankar Lal Agrawal on 29.10.1986 and constructed a multi storey house on it with the income of his salary and plaintiffs did not rebut this fact by oral or documentary evidence & not rebutted this fact in cross-examination of defendant Rajiv Kumar. As per the plaintiffs, land of Khasra No. 640/5 was purchased by late Rangilal whereas, appellant/defendant No. 1 has pleaded that he had purchased the property with his own income and he filed sale deed (Ex.D-7), but in sale deed (Ex.D-7) the name of purchaser is written as Rajiv Kumar Jaiswal S/o Rangilal Jaiswal. Thus, it is clear that at the time of execution of sale deed dated 31.03.2000 (Ex.D-7), the age of defendant No. 1-Rajiv Kumar was 20 years. The learned trial Court also finds that both the purchasers will have equal right in the aforesaid property. Moreover, who has purchased the aforesaid land in Kh. No. 640/5 either by Rangilal or by defendant No. 1 has no effect because as per Section 4 of the Prohibition of Benami Property Transactions Act, 1988 no claim or defence is permissible against the person in whose name the property is held and the appellant also did not prove this fact that this property was purchased by him with his own income. 13. The legal question which arise in this case is whether the Will has been properly proved by legally acceptable evidence. In this context, the learned counsel for both sides have examined their witnesses in support of their respective contentions. The Hon’ble Supreme Court in the matter of Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346 , wherein in Para Nos. 14 and 15, it was held as follows: “14. It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of Section 63 of the Indian Succession Act. Section 63 prescribes that: (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....In order to prove the due attestation of the will Ex. A.36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves. If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have been duly executed and attested. (Emphasis supplied) 15. When this position was realised the learned counsel for Gangotri fell back on an alternative argument and it was that the deceased admitted execution and completion of the will Ex. A-36 and acknowledged his signature thereto before the Sub-Registrar at Tarabganj and this acknowledgment of his signature was in the presence of the two persons who identified him before the Sub-Registrar viz. Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement by the Sub-Registrar. These signatures it was contended were enough to prove the due attestation of the will Ex. A-36. Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement by the Sub-Registrar. These signatures it was contended were enough to prove the due attestation of the will Ex. A-36. This argument would have availed Gangotri if Mahadeo Pershad and Nageshur had appended their signatures at the foot of the endorsement of registration animo attestandi. But even apart from this circumstance it is significant that neither Mahadeo Pershad nor Nageshur was called as a witness to depose to the fact of such attestation if any. One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68 of the Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri.” 14. Further, three Judges of Hon’ble Supreme Court in the matter of H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 it was held in Para No. 18 as under: “18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Section 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Section 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Section 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Section 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression a person of sound mind in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” (Emphasis supplied) 15. Further, four Judges of the Hon’ble Supreme Court in the matter of Rani Purnima Debi and Another vs. Kumar Khagendra Narayan Deb and Another, AIR 1962 SC 567 reiterated the special requirement of attestation prescribed in the case of proving the Will by Section 63 of the Indian Succession Act and also refers to the decision reported in Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346 . 16. Further five Judges of the Hon’ble Supreme Court (a constitution Bench) in Shashi Kumar Banerjee and Others vs. Subodh Kumar Banerjee (Since Deceased and after him his Legal Representatives and Others), AIR 1967 SC 529, referring the judgment of the Supreme Court reported in H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 and Rani Purnima Debi and Another vs. Kumar Khagendra Narayan Deb and Another, AIR 1962 SC 567 , held in 15 as under: “15.......We propose therefore to take the evidence of the two attesting witnesses first to see whether in the circumstances of this case when we are dealing with a holograph will and when there are practically no suspicious circumstances and the intrinsic evidence in the will itself points to its execution when it purports to have been executed we can rely on that evidence. The two attesting witnesses are Manmathanath Mookerjee and Sambhunath Munshi. Manmathanath Mookerjee is the father-in-law of Sunil, one of the propounders and to that extent he is certainly interested in supporting the propounders case. It may also be conceded that in certain respects he has not been as straight forward as he should have been, particularly with respect to his dealings with his son-in-law. Manmathanath Mookerjee is the father-in-law of Sunil, one of the propounders and to that extent he is certainly interested in supporting the propounders case. It may also be conceded that in certain respects he has not been as straight forward as he should have been, particularly with respect to his dealings with his son-in-law. But he is a respectable man and his son-in-law was not in any way concerned with the execution of this will and did not get any great advantage out of it except that one of the sons Sukumar was disinherited by this will and this had increased his share a little; but that was also the case with the shares of the other descendants of the testator. Manmathanath was examined on commission and was cross-examined at inordinate length, sometimes on matters which were not very relevant to the point on which was giving evidence, namely, the attestation of the will in dispute. But in spite of the interest he has in his son-in-law, Sunil and in spite of his unsatisfactory replies with respect to his dealings with Sunil, it seems to us that there is really no sufficient reason to disbelieve him when he says that he attested this will at the instance and in the presence of the testator and that the testator signed it in his presence and that of Sambhunath Munshi and that they signed it in his presence and in each other's presence.” (Emphasis supplied) 17. As per the decision of the Constitution Bench of the Supreme Court, the requirement to examine the attesting witness has been insisted in accordance with Section 63 of the Indian Succession Act. It is very clearly stated that it should be proved that the testator signs in the presence of the attesting witnesses and the attesting witnesses signs before the testator. This requirement is mandatory. 18. The appellant has filed Will dated 21.12.2011 (Ex.D-1) and it is clear that burden of proof is on appellant/defendant No. 1 to prove the execution of Will as per Section 68 of the Evidence Act and Section 63 (c) of Indian Succession Act. In cross-examination, Yogesh Banerjee (DW-2) stated that he does not know that late Rangilal suffered paralytic attack in jail and after release from jail he was paralyzed and ill. In cross-examination, Yogesh Banerjee (DW-2) stated that he does not know that late Rangilal suffered paralytic attack in jail and after release from jail he was paralyzed and ill. The ignorance of Yogesh Banerjee (DW-2) of deceased being paralysed in jail shows that the deceased had not signed the Will in his presence. Had Yogesh Banerjee (DW-2) seen the deceased while signing the Will, he would have definetly replied either in negative or in affirmative about the paralysis of deceased Rangilal. The learned trial Court also after minute appreciation of cross-examination of Yogesh Banerjee (DW-2) finds that he is not reliable witness and also find that signature in Will in question is different than that of the other admitted signature of Rangilal. 19. It is also apparent from the pleading of the parties that the burden of proof to prove the Will of late Rangilal is on appellant/defendant No. 1 but the appellant has failed to prove this fact that late Rangilal had executed the Will (Ex.D-1) in his favour. So, on the basis of said Will, appellant did not get any title in property shown in Ex.D-1. In this case, mandatory procedure of attesting witnesses seeing the testor signing the Will or the testor seeing the attesting witnesses signing the Will has not at all been proved. The learned trial Court minutely appreciated oral and documentary evidence and rightly recorded the finding that issue Nos. 1 and 2 were partly proved and Issued No. 3 related to Will is not proved. 20. The finding recorded by the learned trial Court is based on proper appreciation of oral and documentary evidence and this Court does not find any illegality or infirmity in the impugned judgment and decree passed by the learned trial Court warranting any interference by this Court. 21. The appeal is thus dismissed. Let a decree be drawn up accordingly. There shall be no order as to costs.