Madhya Pradesh High Court
Smt.Phulmani vs Smt.Suraj Rani & Ors. on 17 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 17th OF NOVEMBER, 2022
MISCELLANEOUS APPEAL No. 1983 of 1999
BETWEEN:-
SMT.PHULMANI (DEAD), THROUGH LEGAL
HEIRS -
1A. TARACHAND JAIN, SON OF LATE GULAB
CHAND JAIN, AGED ABOUT 75 YEARS;
RESIDENT OF IN FRONT OF LAL JAIN MANDIR,
CHOWK BAZAR GAIRAT GANJ, TEHSIL AND
DISTRICT RAISEN (MADHYA PRADESH).
1B. VIJAL KUMAR JAIN SON OF TARACHAND
JAIN, AGED ABOUT 40 YEARS, RESIDENT OF IN
FRONT OF LAL JAIN MANDIR, CHOWK BAZAR
GAIRAT GANJ, TEHSIL AND DISTRICT RAISEN
(MADHYA PRADESH).
1C. SMT. ANITA JAIN, WIFE OF SHRI
CHAKRESH JAIN, AGED ABOUT 50 YEARS,
RESIDENT OF KHAI ROAD VIDISHA, TEHSIL
AND DISTRICT VIDISHA (MADHYA PRADESH).
.....APPELLANTS
(NONE PRESENT)
AND
1. SMT.SURAJ RANI ALIAS SHAKUNTALA, WIFE
OF RAJABABU ALIAS RAJENDRA KUMAR JAIN,
RESIDENT OF NEAR SINGHAIJI KE MANDIR,
CHAKRAGHAT, SAGAR (MADHYA PRADESH)
2. BUNTY ALIAS RAJIV S/O RAJENDRA KUMAR
JAIN, AGED ABOUT 23 YEARS, NEAR SINGHAJI
KE MANDIR, CHAKRAGHAT, SAGAR, DISTRICT
SAGAR (MADHYA PRADESH)
3. DABOO ALIAS DILIP S/O RAJENDRA KUMAR
Signature Not Verified
JAIN, AGED ABOUT 19 YEARS, NEAR SINGHAJI
SAN
KE MANDIR, CHAKRAGHAT, SAGAR, DISTRICT
SAGAR (MADHYA PRADESH)
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Date: 2022.11.23 19:28:34 IST
4. RAJENDRA PRASAD S/O SINGHAI KEDARNATH
2
ADDRESS RADHA VALLABH WARD, KARELI,
TAH. KARELI, DISTT. NARSINGHPUR (M.P.)
(MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This miscellaneous appeal under Section 299 of the Indian Succession
Act, 1925 is filed by the plaintiff and her legal heirs being aggrieved of judgment
dated 21.09.1999 passed in Civil Suit No.11-A/1999 by the Court of learned
District Judge, Sagar, rejecting the suit filed by the plaintiff Phulmani W/o
Tarachand Jain, seeking probate and letters of administration on the Will of her
father Late Shri Nihal Chand Jain in terms of the provisions contained in
Sections 276 and 278 of the Indian Succession Act, claiming that the Will dated
08.11.1984 (Ex.P-1) is the last and final Will of Shri Nihal Chand Jain and
therefore, probate and letters of administration be granted in her favour. This
suit was dismissed by the learned District Judge, Sagar, hence, this
miscellaneous appeal.
2. The main ground to challenge the impugned judgment is that Court
below has wrongly held that Will dated 08.11.1984 (Ex.P-1) is not the last Will
of Late Shri Nihal Chand Jain. It is also averred that learned District Judge erred
in considering Document (Ex.P-1) to be not a genuine document and reached to
incongruent findings.
3. It is also mentioned that subsequent execution of sale-deeds will not be
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sufficient to held that Will (Ex.P-1) is not the last Will. It is also mentioned in
SAN
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the grounds of appeal that since Will dated 08.11.1984 is a registered Will.
Date: 2022.11.23 19:28:34 IST
Therefore, second Will dated 12.03.1991 which is an unregistered document
will not supersede the registered Will and therefore, it is prayed that impugned
judgement and decree be set aside and it be declared that Will (Ex.P-1) is the
last Will of Late Nihal Chand Jain and it is to be given effect to in letter and
spirit.
4. A perusal of the record reveals that trial Court framed as many as 7
issues. It recorded a finding that Will dated 08.11.1984 in its original was never
produced before the Court. It also recorded a finding that there were peculiar
facts and circumstances of the case like deceased Nihal Chand Jain on being
tortured at Sagar, had moved with the defendants to Kareli, District Narsinghpur
and was not under the care and supervision of the plaintiff. It has also come on
record that Phulmani (PW-3) has not denied signatures of her father on Ex.D-1,
Ex.D-2 and Ex.D-3, sale-deeds executed by Shri Nihal Chand Jain.
5. It has also recorded a finding that execution of Ex.D-1, Ex.D-2, Ex.D-3
and Ex.D-4 agreement and Ex.D-5 affidavit were admittedly executed at Sagar,
therefore, though it is proved that Nihal Chand Jain had left Sagar for Kareli but,
it is not proved that he never returned to Sagar to execute the aforesaid
documents. It has also recorded a finding that merely proving the Will dated
08.11.1984 through attesting witnesses is only one of the circumstance but, that
will not lead to a conclusion that no other Will was executed by Late Shri Nihal
Chand Jain subsequently.
6. In fact evidence of witnesses is discussed on record and it is pointed
out that though Ravindra Kumar Jain, Record-keeper, Narsinghpur, from the
office of Registrar, Narsinghpur, had brought record of the entries of the
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register dated 09.11.1984 and similarly, deed writer Ramesh Kumar Shrivastava
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S/o Prem Narayan Shrivastava proved that he had typed the Will (Ex.P-1) dated
08.11.1984 and had obtained signatures thereon.
7. Phulmani (PW-3) admitted that she is the only daughter of Nihal Chand
Jain. Her mother Chaina Bai died 10-12 years earlier. Suraj Rani is not related to
her but, was residing in her neighbourhood. But admitted that since she was an
orphan, her marriage was performed by Nihal Chand Jain and he had in fact
nourished and groomed her.
8. In para 6, she has admitted that since her father was harassed by his
family members, therefore, his father had migrated to Kareli where in-laws of
her father's elder brother were residing. Nihal Chand Jain was residing at Kareli
in a separate house. But in cross-examination, she admitted that she is not
knowing how Suraj Rani is residing in the disputed house. She never sought any
information nor lodged any report.
9. Defendants had examined Munna Lal Panda, who deposed that he was
knowing Nihal Chand Jain personally. He had prepared Documents Ex.D-1,
Ex.D-2 and Ex.D-3, sale-deeds at the instance of Nihal Chand Jain and had
obtained signatures of Nihal Chand Jain, which was made by Nihal Chand Jain
in front of him after reading the documents. Witnesses were G.P. Shrivastava
and Rajendra Kumar Jain. Thus, this witness proved not only presence of Nihal
Chand Jain at Sagar but, also proved Documents Ex.D-1, Ex.D-2 and Ex.D-3,
sale-deals which were executed at Sagar.
10. DW-2 Rajendra Kumar Jain also admitted that Nihal Chand Jain sold
his house at Sagar vide Ex.D-1, Ex.D-2 and Ex.D-3. He identified signatures of
Nihal Chand Jain. He also identified signatures of Nihal Chand Jain on the Will
(Ex.D-6). He is one of the attesting witnesses to the Will and admitted his
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signatures on Ex.D-6 from 'B' to 'B' part. This witness, thus, proved
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Date: 2022.11.23 19:28:34 IST
subsequent Will of 1991 in terms of the provisions contained in Section 63(c)
of the Indian Evidence Act and therefore, in view of law laid down by this High
Court in Sundariya Bai Choudhary Vs. Union of India and others, 2008
(3) MPHT 315 (DB) subsequent Will as contained in Ex.D-6 dated 12.03.1991
was proved by one of the attesting witnesses Rajendra Kumar Jain. Original
signatures of Nihal Chand Jain are available on Ex.D-7.
11. A perusal of the record reveals that no application was moved by the
plaintiff to obtain report of the handwriting expert in terms of the provisions
contained in Section 45 of the Indian Evidence Act. Thus, plaintiff having failed
to dispute signatures of Nihal Chand Jain on sale deeds and subsequent Will,
have been rightly non suited by the trial Court. There is no material on record to
demonstrate that a registered Will cannot be superseded by an unregistered
Will.
12. In fact there is no requirement of registration of a Will under law. Trial
Court has appreciated all these facts and evidence in an exhaustive manner. No
illegality can be attributed to the appreciation of the evidence of the facts of the
case, calling for interference.
13. Accordingly, appeal fails and is dismissed.
14. Let record of the Court below be sent back.
(VIVEK AGARWAL)
JUDGE
pp.
Signature Not Verified
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Date: 2022.11.23 19:28:34 IST
