Baburao vs Smt. Aasha
2023 Latest Caselaw 13453 MP

                                                       1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 18 th OF AUGUST, 2023
                                          SECOND APPEAL No. 2105 of 2022

                          BETWEEN:-
                          1.    BABURAO S/O LATE BAIYALAL BAANDHE, AGED
                                ABOUT 64 YEARS, OCCUPATION: KASHTKAR
                                VILLAGE KHAJRI (JAAMUNJHIREE) TEHSIL AND
                                DISTRICT  CHHINDWARA (M.P.)     (MADHYA
                                PRADESH)

                          2.    NAAGORAO S/O LATE BHAIYALAL BAANDHE,
                                AGED   ABOUT      62  YEARS, OCCUPATION:
                                KASHTKAR      R/O     VILLAGE     KHAJRI
                                (JAAMUNJHIREE)   TAHSAL AND     DISTRICT
                                CHHINDWARA M.P. (MADHYA PRADESH)

                          3.    KISHOR S/O LATE BHAIYALAL BAANDHE, AGED
                                ABOUT    58  YEARS, R/O VILLAGE KHAJRI
                                (JAAMUNJHIREE)   TAHSAL AND    DISTRICT
                                CHHINDWARA M.P. (MADHYA PRADESH)

                                ASHOK S/O LATE BHAIYALAL BAANDHE, AGED
                          4.    ABOUT   54   YEARS, R/O VILLAGE KHAJRI
                                (JAAMUNJHIREE)   TAHSAL AND    DISTRICT
                                CHHINDWARA M.P. (MADHYA PRADESH)

                                                                              .....APPELLANTS
                          (BY SHRI BALRAM KOSHTA-ADVOCATE)

                          AND
                          1.    SMT. AASHA W/O AJABRAO LAADE, AGED ABOUT
                                51 YEARS, OCCUPATION: HOUSE WIFE M.P.S.E.B.
                                COLONY RAMPUR TEHSIL AND DISTRICT
                                JABALPUR (M.P.) (MADHYA PRADESH)

                          2.    SMT. SHAKUNTALA (DIED) THR LRS:
                          2.A   SHAANOO D/O LATE VIJAY KUMAR INGOLE,
                                AGED ABOUT 38 YEARS, OCCUPATION: LOCAL
                                WORK R/O BHARTADEO ROAD, CHANDANGAON
                                TAHSIL AND DISTRICT CHHINDWARA, M.P.
                                (MADHYA PRADESH)
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 8/21/2023
6:19:45 PM
                                                      2
                          2.B   HARSHIKA D/O LATE VIJAY KUMAR INGOLE,
                                AGED ABOUT 33 YEARS, OCCUPATION: HANDY
                                WORKS R/O BHARTADEO ROAD, CHANDANGAON
                                TAHSIL AND DISTRICT CHHINDWARA, M.P.
                                (MADHYA PRADESH)

                          2.C   REETESH S/O LATE VIJAY KUMAR INGOLE, AGED
                                ABOUT 31 YEARS, OCCUPATION: PRIVATE JOBS
                                R/O BHARTADEO ROAD, CHANDANGAON TAHSIL
                                AND DISTRICT CHHINDWARA, M.P. (MADHYA
                                PRADESH)

                          3.    STATE    OF   M.P.  THROUGH   DISTRICT
                                MAGISTRATE,     CHHINDWARA TAHSIL AND
                                DISTRICT    CHHINDWARA  M.P.  (MADHYA
                                PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI RAMJI PANDEY-GOVERNMENT ADVOCATE)

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

This second appeal has been preferred by the appellants/plaintiffs challenging the judgment and decree dtd. 06.08.2022, passed by 5th District Judge, Chhindwara in civil appeal No.22/19 affirming the judgment and decree dtd. 29.10.2018 passed by 5th Civil Judge Class-II, Chhindwara in civil suit No.65-A/2015, whereby learned courts below have dismissed the plaintiffs' suit filed for declaration of title, permanent injunction and partition claiming themselves to be exclusive owners/bhoomiswami on the basis of Will dtd. 23.03.2011 (Ex. P/2) allegedly executed by their father-Bhaiyalal excluding the sisters Smt. Asha (defendant 1) and Smt. Shakuntala (defendant 2).

2. Learned counsel for the appellants submits that the suit property belonged to father-Bhaiyalal who died on 01.11.2011 and before his death, he executed a notarized Will dtd. 23.03.2011 (Ex. P/2) in favour of the plaintiffs, excluding the sisters/defendants 1-2. He submits that the plaintiffs by examining Signature Not Verified Signed by: SWETA SAHU Signing time: 8/21/2023 6:19:45 PM

both the attesting witnesses namely Moreshwar Hivse (PW-3) and Padmakar Thakre (PW-2) and other witnesses, have proved due execution of Will in accordance with Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 but learned courts below on the basis of minor discrepancies in the testimony of the witnesses have held the Will to be not proved and surrounded by suspicious circumstances, whereas the evidence adduced by the plaintiffs is sufficient to hold that the Will was validly executed by Bhaiyalal in favour of the plaintiffs and Will is not surrounded by suspicious circumstances. With these submissions, he prays for admission of the second appeal.

3. Heard learned counsel for the appellants and perused the record.

4. Undisputedly, the property in question belonged to Bhaiyalal and after his death, it was to devolve upon all the six successors i.e. four sons and two daughters. Learned first appellate court vide paragraphs 36 to 40, has taken into consideration one important circumstance to hold the Will suspicious viz. that after death of Bhaiyalal, the plaintiff 1-Baburao himself moved an application (Ex. D/6) on 14.05.2012 before revenue court for mutation of all the legal heirs without making mention of the Will, thereupon, the names of plaintiffs and defendants were ordered to be mutated vide order dtd. 30.06.2012 (Ex. D/3). On the basis of said mutation proceedings, learned courts below

have held that had there been any Will in favour of plaintiffs, there was no question not to place the same before the revenue authorities at the time of mutation, after death of father-Bhaiyalal.

5. Learned courts below have upon due consideration of the evidence of the attesting witnesses as well as the other witnesses, held that the Will is not proved to have been executed by Bhaiyalal but it is surrounded by Signature Not Verified Signed by: SWETA SAHU Signing time: 8/21/2023 6:19:45 PM

several suspicious circumstances and the same have not been removed by the plaintiffs.

6. Upon perusal of the entire record available, this Court does not find any illegality or perversity in the findings recorded by learned courts below.

7. Resultantly, having found no substantial question of law involved, this second appeal fails and is hereby dismissed.

8. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE ss

Signature Not Verified Signed by: SWETA SAHU Signing time: 8/21/2023 6:19:45 PM