Madhya Pradesh High Court
Chhakodi vs Bahorilal on 9 February, 2023
Author: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 9th OF FEBRUARY, 2023
SECOND APPEAL NO.711 OF 2021
BETWEEN:-
1. CHHAKODI S/O LATE MULAIRAM
KACHER, AGED ABOUT 52 YEARS,
OCCUPATION: AGRICULTURIST VILL.
KACHI MOHALLA P.S. DHANPRI TEH.
SOHAGPUR DIST. SHAHDOL (M.P.)
2. BILOO PRASAD @ VIMAL KUMAR S/O
LATE MULAIRAM KACHER, AGED
ABOUT 50 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE KACHHI
MOHALLA, P.S. DHANPURI, TEH.
SOHAGPUR, DISTT. SHAHDOL (M.P.)
3. BIHARILAL S/O LATE MULAIRAM
KACHER, AGED ABOUT 40 YEARS,
OCCUPATION: AGRICULTURIST
VILLAGE KACHHI MOHALLA, P.S.
DHANPURI, TEH. SOHAGPUR, DISTT.
SHAHDOL (M.P.)
4. JAGDEO PRASAD S/O LATE
CHHAKODILAL KACHER, AGED ABOUT
40 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE KACHHI
MOHALLA, P.S. DHANPURI, TEH.
SOHAGPUR, DISTT. SHAHDOL (M.P.)
.....APPELLANTS
(BY SHRI SHARAD GUPTA- ADVOCATE)
AND
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
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1. BAHORILAL S/O LATE NANDA KACHER,
AGED ABOUT 49 YEARS, VILL. ROHANIYA
TEH. BADWARA DIST. KATNI (M.P.)
2. SUKHWATI BAI D/O LATE NANDA
PRASAD KACHER, AGED ABOUT 76
YEARS, OCCUPATION: NOT MENTION
VILL. ROHANIYA TEH. BADWARA DIST.
KATNI (M.P.)
3. MEERA BAI D/O LATE NANDA PRASAD
KACHER W/O RAMNATH, AGED ABOUT
56 YEARS, R/O VILL. SOHAGI, P.S.
PANAGAR, DISTT. JABALPUR (M.P.)
4. NANKU BAI D/O LATE NANDA PRASAD
KACHER W/O MUNNALAL, AGED ABOUT
54 YEARS, R/O VILL. LODHA, TEH.
AND DISTT. UMARIA (M.P.)
5. OMTA BAI D/O LATE NANDA PRASAD
KACHER W/O RAJU KACHER, AGED
ABOUT 48 YEARS, R/O VILL. LODHA, TEH.
AND DISTT. UMARIA (M.P.)
6. CHOTUA BAI D/O LATE NANDA PRASAD
KACHER W/O LALWA OCCUPATION: NOT
MENTION VILL. KHAIRTA, TEH AND
DISTT. UMARIA (M.P.)
7. USHA BAI D/O LATE SHYAMLAL W/O
KALLU PRASAD KACHER, AGED ABOUT
63 YEARS, R/O VILL. AZADNAGAR,
TEH. AND DISTT. BANDA, U.P.
8. BANGA BAI D/O LATE SHYAMLAL W/O
BACHCHA PRASAD KACHER, AGED
ABOUT 58 YEARS, R/O VILL. BABERU,
TEH. AND DISTT. BANDA, U.P.
9. MADHURI BAI D/O SHYAMLAL W/O
MAHESH PRASAD KACHER, AGED
ABOUT 43 YEARS, OCCUPATION: NOT
MENTION VILL. CHINNODI, TEH.
SOHAGPUR , DISTT. SHAHDOL (M.P.)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
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10(1). RAMWATI BAI W/O LT. GOVIND PRASAD
KACHER, AGED ABOUT 70 YEARS,
OCCUPATION: NOT MENTION VILL. DHANPUR,
TEH. SOHAGPUR, DISTT. SHAHDOL (MADHYA
PRADESH)
10(2). MANOJ KACHER S/O LATE GOVIND
PRASAD KACHER, AGED ABOUT 48 YEARS,
OCCUPATION: NOT MENTION VILL. DHANPUR,
TEH. SOHAGPUR, DISTT. SHAHDOL (MADHYA
PRADESH)
10(3). MEENA KACHER D/O LATE GOVIND
PRASAD KACHER W/O RASARAMAN KACHER,
AGED ABOUT 55 YEARS, OCCUPATION: NOT
MENTION VILL. PIPARIYA, P.S. BARHI, DISTT.
KATNI (MADHYA PRADESH)
10(4). REENA KACHER D/O LATE GOVIND
PRASAD KACHER W/O RAKESH TOMERE,
AGED ABOUT 45 YEARS, OCCUPATION: NOT
MENTION VILL. BAILATOLA, TEH. KOTMA,
DISTT. ANUPPUR (MADHYA PRADESH)
10(5). SUMAN KACHER D/O LATE GOVIND
PRASAD KACHER W/O DEVENDRA BARMAN,
AGED ABOUT 41 YEARS, OCCUPATION: NOT
MENTION VILL. NIPANIYA, WARD NO. 1, TEH.
AND DISTT. REWA (MADHYA PRADESH)
11. RAGHUNATH PRASAD S/O LATE SHYAMLAL
KACHER, AGED ABOUT 56 YEARS,
12. BRIJNANDAN S/O SHRI SHYAMLAL
KACHER, AGED ABOUT 56 YEARS,
13. SUKHNANDAN S/O LATE SHYAMLAL
KACHER, AGED ABOUT 49 YEARS,
RESPONDENTS 11 TO 13 R/O VILLAGE
ROHANIYA, TAHSIL - BADWARA
DISTRICT KATNI, (M.P.) PRESENT
ADDRESS- KACHI MOHALLA, DHANPRI,
P.S. SOHAGPUR, DISTRICT SHAHDOL
(M.P.)
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
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14. DINESH KACHER S/O LATE NANDA
KACHER R/O VILLAGE ROHANIYA, TEH.
BADWARA, DISTT. KATNI (M. P.)
15. THE STATE OF M.P. THROUGH DISTRICT
COLLECTOR KATNI KATNI (M. P.)
(BY MISS. VASUNDHARA SHUKLA- ADVOCATE)
....RESPONDENTS
This appeal coming on for admission this day, the Court
passed the following:
ORDER
This second appeal has been preferred by the defendants (LRs. of
original defendant Mulairam Kacher) challenging the judgment and
decree dated 08.03.2021 passed by 5th Additional District Judge, Katni in
RCA no.136/18, reversing the judgment and decree dated 29.09.2018
passed by 3rd Additional Judge to the Court of 1st Civil Judge Class-II,
Katni in Civil Suit no.184-A/15, whereby suit for declaration of the
unregd. Will dtd. 30.05.2001 (Ex.D/5) null and void and for declaring the
plaintiffs to be bhoomiswami and in possession as well as for the relief of
permanent injunction, was dismissed by learned trial Court which has
been decreed by learned first appellate Court.
2. In short the facts are that the suit property belonged to Kodu and
after his death in the year 1940, came to his wife Rampyari Bai who died
on 07.11.2002. The original plaintiff 1 Nanda Prasad (died now L.Rs) and
plaintiffs 2-5 (who are legal heirs of Shyamlal Kacher) instituted the suit.
Shyamlal and Nanda Prasad were real brothers of Kodu, as such after
death of Kodu as well as Rampyari Bai w/o Kodu, they are entitled for
the property left by Rampyari Bai. As the defendant 1 Mulairam was
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
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claiming himself to be bhoomiswami of the suit land left by Rampyari
Bai on the basis of an unregistered Will dated 30.05.2001 allegedly
executed by Rampyari Bai, therefore, the suit was filed for the aforesaid
reliefs.
3. The defendants 1 and 8 filed written statement denying the plaint
allegations and placing reliance on the Will dated 30.05.2001 claimed
themselves to be bhoomiswami of the land in question. It is contended
that Mulairam was residing with Rampyari Bai and he took care of her
and also performed her last rites, therefore, Will was executed by her in
favour of Mulairam. On inter alia contentions, the suit was prayed to be
dismissed.
4. The defendants 3-7 filed written statement admitting the plaint
allegations and prayed for passing appropriate judgment and decree.
5. Learned trial Court after framing issues, recorded evidence of the
parties and after considering the evidence available on record, held that
the Will dated 30.05.2001 has been proved by defendant in accordance
with the provisions of Section 63 of the Indian Succession Act and
Section 68 of the Evidence Act and in presence of the Will, the plaintiffs
are not entitled for any declaration of their ownership and consequently
dismissed the suit in toto.
6. Upon filing appeal by the plaintiffs, learned first appellate Court
vide judgment and decree dated 08.03.2021 considered the evidence in
detail and holding the Will in question dated 30.05.2001 to be an
unproven document and surrounded by several suspicious circumstances,
allowed the appeal and by reversing the judgment and decree of trial
Court, decreed the suit in toto.
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
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7. Learned counsel for the appellants submits that learned first
appellate Court has erred in holding the Will dated 30.05.2001 to be an
unproven document, certainly without considering the cogent and reliable
evidence adduced by the defendants in proof of the Will. He submits that
the suspicious circumstances narrated by learned first appellate Court
vide para 45 to 61, cannot be considered to be suspicious circumstances.
He further submits that learned first appellate Court has erred in reversing
the well reasoned judgment and decree of trial Court and by placing
reliance on the decision of Supreme Court in the case of Ganesan (D)
Through Lrs. vs. Kalanjiam and others AIR 2019 SC 5682 (para 6-7)
submits that the second appeal deserves to be admitted.
8. Heard learned counsel for the parties and perused the record.
9. In the present case, only dispute is about the Will dated 30.05.2001
allegedly executed by Rampyari Bai in favour of original defendant
Mulairam Kacher and if there is no Will, then there is no dispute about
ownership of the plaintiffs over the land in question, because the
plaintiffs are nearest successors of Kodu and Rampyari Bai.
10. Record shows that the Will bears signature of Rampyari Bai, who
is an illiterate lady, but the documents available on record show that she
was not in habit of doing signature but used to affix thumb impression.
The defendants have totally failed to establish that Rampyari Bai was so
much literate so that she could sign the Will. In presence of several public
documents (P/9 to P/12 & P/15) bearing her thumb impressions, it cannot
be said that Rampyari Bai could sign the Will.
11. As a result thereof, the Will becomes suspicious only on this
ground. In addition to this suspicion, learned first appellate Court has also
considered the evidence of the witnesses in detail from para 45 to 60 of
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
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its judgement, in respect of execution and attestation of the Will and held
contrary to the Will highlighting the suspicious circumstances (a) to (m)
mentioned in para 59 of the judgement, which have not been removed by
the defendants. After perusal of the record available, the impugned
judgement and findings recorded therein, do not appear to be illegal or
perverse.
12. The decision of Supreme Court in the case of Ganesan (D)
Through Lrs. vs. Kalanjiam and others AIR 2019 SC 5682 is
distinguishable on facts because in this decision, signature of testator on
the Will in question was not in dispute. Even otherwise, the finding in
respect of proof of execution and attestation based on proper appreciation
of oral and documentary evidence, is pure finding of fact and is not liable
to be interfered with in the limited scope of Section 100 CPC.
13. Resultantly, second appeal fails and is hereby dismissed in limine
under Order 41 rule 11 CPC. However, no order as to the costs.
14. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
pb
Signature Not Verified
Signed by: PRASHANT
BAGJILEWALE
Signing time: 2/13/2023
1:12:21 PM
