Shivautar vs Hariom
2021 Latest Caselaw 2373 MP

                              1
         THE HIGH COURT OF MADHYA PRADESH
                      WP No.434/2009
             Shivautar & Anr. vs. Hariom & Ors.

                Heard through Video Conferencing

Gwalior, Dated : 15.06.2021

      Shri P.C. Chandil, Counsel for the petitioners.

      Shri G.S. Sharma, Counsel for the LRs of respondent No.6

Ramashankar.

This petition under Article 227 of the Constitution of India has

been filed seeking the following reliefs:

It is therefore most humbly prayed kindly allowing the petition impugned order annexure P-1 may kindly be set aside. Any other suitable relief order or direction in the facts and circumstances of the case this Hon'ble court deems fit may also be passed.

It is submitted by the counsel for the petitioners that late Jyoti

Prasad and late Ram Prasad filed a suit for declaration of title,

partition and possession against respondents No.3 to 5. The suit was

numbered as 11-A/74. During the pendency of the suit, one of the

plaintiff namely, Jyoti Prasad expired. Petitioners are the LRs of Jyoti

Prasad and they were brought on record in place of late Jyoti Prasad.

It is submitted that the Trial Court decreed the suit by judgment and

decree dated 14.7.1987 and declared that the defendant/respondent

No.3 has no right or title in the suit and it was further declared that

the plaintiff (Jyoti Prasad and Ram Prasad) and respondents No.2 and

THE HIGH COURT OF MADHYA PRADESH WP No.434/2009 Shivautar & Anr. vs. Hariom & Ors.

4 have half-half share in the suit property and are entitled for

partition and possession of the same. Thereafter the execution

proceedings were initiated. After the decree was passed, another

plaintiff Ram Prasad also died and, accordingly, his legal heirs

namely Harpyari and Hariom were brought on record. It is submitted

that during the pendency of the execution proceedings, Harpyari also

expired and, accordingly, respondent No.6 Rama Shankar Gupta filed

an application under Order 22 Rule 3 of CPC for substituting him as

legal heirs of Harpyari. Rama Shankar Gupta staked his claim on the

basis of a will purportedly registered by Harpyari on 2.8.2002. By

referring to the statement of Rama Shankar Gupta which was

recorded by the Executing Court, it is submitted that Rama Shankar

Gupta in paragraph 2 of his cross-examination has admitted that

Harpyari is survived by four sons. One son of Harpyari is residing in

Gwalior whereas three other sons are residing in Morena. He also

disclosed the names of sons of Harpyari. According to him, Vinod

Kumar, Rajendra Kumar and Vijay Kumar are residing in Morena

whereas Pramod is residing in Gwalior. It was accepted that two sons

of Harpyari are advocates. He could not clarify as to why Harpyari

was residing separately from her sons. He also admitted that he does

not know that who had performed last rites of Harpyari. He further

stated that copy of the Will was given to him by one Raju. However,

THE HIGH COURT OF MADHYA PRADESH WP No.434/2009 Shivautar & Anr. vs. Hariom & Ors.

he further clarified that Raju is also known as Rajendra who is the

son of Harpyari. He further admitted that neither the Will was written

in his presence nor the Will was got registered in his presence. It is

submitted by the counsel for the petitioners that in spite of the fact

that Harpyari was survived by four sons, the application filed by the

respondent No.6 Rama Shankar Gupta under Order 22 Rule 3 of CPC

was allowed without issuing notice to any of the sons of Harpyari. It

is further submitted that the Executing Court by the impugned order

has allowed the application filed by the respondent No.6 without

assigning any reasons. The Executing Court has merely held that

although the respondent No.6 Rama Shankar Gupta was an Advocate

of Harpyari but the parties are free to take action against him for

committing professional misconduct by obtaining a Will from his

client.

It is submitted that the impugned order is bad on account of

that the same is un-reasoned as well as on account of that the

application filed by the respondent No.6 under Order 22 Rule 3 of

CPC was allowed without giving notice to the interested parties.

Per contra, it is submitted by the counsel for the respondent

that it is true that the respondent No.6 Rama Shankar Gupta was the

Advocate of Harpyari but it was also claimed that Harpyari was his

cousin sister. However, it is fairly conceded that the application filed

THE HIGH COURT OF MADHYA PRADESH WP No.434/2009 Shivautar & Anr. vs. Hariom & Ors.

under Order 22 Rule 3 of CPC by the respondent No.6 Rama Shankar

Gupta was decided without even issuing notice to the legal heirs of

Harpyari. It is further submitted that even the legal heirs of Harpyari

were never impleaded as party.

Heard the learned counsel for the parties.

Will is a departure from the natural course of succession. The

respondent No.6 Rama Shankar Gupta was not the natural successor

of Harpyari. It is undisputed that Harpyari was survived by her four

sons and all four sons were alive. Under these circumstances, the

Executing Court should have atleast issued notices to the legal heirs

of Harpyari before deciding the application filed by the respondent

No.6 Rama Shankar Gupta for his impleadment on the basis of a will

purportedly executed by Harpyari. Furthermore, the impugned order

passed by the Trial Court is completely an unreasoned order. In the

impugned order, the Executing Court has not considered the pros and

cons of the evidence of Rama Shankar Gupta who was cross-

examined in detail. The admissions made by Rama Shankar Gupta in

his cross-examination have been conveniently ignored by the

Executing Court. The reasons are the heart beat of the order and

every judicial order is required to be supported by reasons. Only the

reasons would disclose as to why a particular order has been passed.

Furthermore, it is true that the Executing Court could not have taken

THE HIGH COURT OF MADHYA PRADESH WP No.434/2009 Shivautar & Anr. vs. Hariom & Ors.

any action against Rama Shankar Gupta for his professional

misconduct as only the Bar Council of State of M.P. is competent to

do so, but still the Executing Court should not have ignored the

aspect as to whether Rama Shankar Gupta/respondent No.6 was in a

position to win over, pressurize and persuade the testator Harpyari or

not? The basic requirement of a Will is that it should be executed by

testator without any coercion or pressure. Thus the Executing Court

should have considered the dominating position of Rama Shankar

Gupta being the lawyer of Harpyari.

Under these circumstances, this Court is of the considered

opinion that the impugned order dated 10.11.2008 passed by the

Executing Court in Execution Proceeding No. 11A/74 cannot be

given the stamp of approval.

Accordingly, order dated 10.11.2008 passed by the Civil Judge

Class-I, Ambah, District Morena is hereby set aside.

The Executing Court is directed to issue notice of application

under Order 22 Rule 3 of CPC filed by respondent No.6 Rama

Shankar Gupta to the Legal heirs of Harpyari. Since Rama Shankar

Gupta has already expired, therefore, the evidence given by him in

support of the Will can be read. Accordingly, it is directed that after

giving an opportunity of hearing to the legal heirs of Harpyari as well

as considering various admissions made by Rama Shankar Gupta in

THE HIGH COURT OF MADHYA PRADESH WP No.434/2009 Shivautar & Anr. vs. Hariom & Ors.

his evidence coupled with the dominating position of Rama Shankar

Gupta to win over the testator Harpyari, the Executing Court is

directed to decide the application filed under Order 22 Rule 3 of CPC

afresh.

Let the entire exercise be completed within a period of six

months from the date of resumption of normal Court functioning.

The petitioners are directed to submit a copy of this order

before the Executing Court within a period of 15 days from today.

With aforesaid observations, the petition is Allowed with cost

of Rs. 10,000/- to be deposited by the legal heirs of Ramakant

Gupta/respondent no.6, in the Registry of this Court, within a period

of one month from today. The petitioners shall be entitled to

withdraw the said cost.

                                                          (G.S. Ahluwalia)
 (alok)                                                       Judge




ALOK KUMAR
2021.06.16 11:05:00 +05'30'