Madhya Pradesh High Court
Kanhaiya Lal Agrawal vs Smt. Radharani @ Radhabai Sunarin on 3 July, 2023
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
FIRST APPEAL No. 102 of 2009
BETWEEN:-
1. KANHAIYA LAL AGRAWAL (DEAD) THROUGH LEGAL
REPRESENTATIVES :-
1(A) GANESH AGRAWAL, AGED ABOUT 71 YEARS S/O.
LATE KANHAIYALAL AGRAWAL, THROUGH LEGAL
REPRESENTATIVES :-
1(A) (I) MEERA AGRAWAL WD/OF LATE GANESH
AGRAWAL.
(II) DEEPAK AGRAWAL S/O LATE GANESH AGRAWAL.
BOTH R/O C/O ABHIKALP ARCHITECTURE, 62/3
MANORAMA GANJ, INDORE (MADHYA PRADESH)
(B) RAMESH AGRAWAL, AGED ABOUT 66 YEARS, LATE
KANHAIYA LAL AGRAWAL.
(C) PUSHPLATA AGRAWAL WD/O LATE MAHESH
AGRAWAL, AGED ABOUT 54 YEARS.
(D) MIKKI AGRAWAL D/O LATE MAHESH AGRAWAL,
AGED ABOUT 35 YEARS
(E) SHILPA AGRAWAL, D/O MAHESH AGRAWAL W/O
SHRI SHYAM AGRAWAL, AGED ABOUT 33 YEARS
(F) SAURABH AGRAWAL S/O LATE MAHESH
AGRAWAL, AGED ABOUT 32 YEARS
(B) TO (F) ARE R/O GALLA MANDI, SARAFA WARD,
CHHATARPUR (MADHYA PRADESH).
2
(G) SURESH AGRAWAL, AGED ABOUT 58 YEARS, R/O.
D-II/A-73, SOUTH MOTI BAGH, NANAKPURA, NEW
DELHI.
(H) INDU AGRAWAL, AGED ABOUT 52 YEARS R/O
GALLA MANDI, SARAFA WARD, CHHATARPUR
(MADHYA PRADESH).
2. BAL KISHAN SARRAF, AGED ABOUT 73 YEARS, S/O
CHOUDHARY KUNJ BIHARI SARRAF, R/O. GALLA
MANDI, SARRAFA MARG, CHHATARPUR (DEAD)-
THROUGH LEGAL REPRESENTATIVES :-
(A) SMT. SHAKUNTALA DEVI, W/O SHRI BALKISHAN
SARRAF, AGED ABOUT 73 YEARS
(B) KISHAN KUMAR, S/O SHRI BALKISHAN SARRAF,
AGED ABOUT 50 YEARS
(C) SHIVKUMAR S/O BALKISHAN SARRAF, (DEAD)
THROUGH LRS :-
(C) (I) SMT. NEETA WD/O LATE SHIVKUMAR ADULT
(C) (II) VIVEK S/O LATE SHIVKUMAR ADULT
(C)(III) VAIBHAV S/O LATE SHIVKUMAR, ADULT
(D) PRABHAT KUMAR S/O SHRI BALKISHAN SARRAF
AGED ABOUT 39 YEARS.
RESPONDENT NOS. 2(A) TO 2 (D) ARE R/O GALLA
MANDI, CHHATARPUR (MADHYA PRADESH)
(E) SMT. KAMLA AGRAWAL, D/O LATE SHRI
BALKISHAN SARRAF, W/O SHRI DR. VINOD CHANDRA
AGRAWAL, AGED ABOUT 54 YEARS, R/O 156/3
JHOKANBAGH, JHANSI (U.P.).
(F) SMT. DEEPATI AGRAWAL, D/O LATE SHRI
BALKISHAN SARRAF W/O PRAMOD AGRAWAL AGED
ABOUT 44 YEARS, R/O JUMRATI MOHALLA, BHOPAL
(MADHYA PRADESH ).
3
(G) SMT. MEETA AGRAWAL, D/O LATE BALKISHAN
AGRAWAL, W/O MUKESH AGRAWAL AGED ABOUT 35
YEARS, R/O HANUMANGANJ, JABALPUR (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. SMT. RADHA RANI @ RADHABAI SUNARIN, (SINCE
DEAD) DELETED THROUGH LRS. :-
2. CHATURBHUJ S/O RADHARANI SUNARIN, AGED
ABOUT 29 YEARS, R/O BADI KUNJREHTI, WARD NO. 23,
CHHATARPUR (MADHYA PRADESH).
3. RAJENDRA KUMAR, S/O RADHARANI @ RADHABAI
SUNARIN AGED ABOUT 26 YEARS R/O BADI
KUNJREHTI, WARD NO. 23 CHHATARPUR (MADHYA
PRADESH).
RESPONDENT NOS. 1 TO 3 ARE PRESENTLY R/O
FAULADI KALAM MARG, WARD NO. 1, CHHATARPUR
(MADHYA PRADESH).
4. VEERENDRA SINGH @ VANSI GHOSH, (DEAD)
THROUGH LRS. :-
(A) MAYA DEVI WD/O LATE VEERENDRA SINGH,
ADULT
(B) NEELAM SINGH D/O LATE VEERENDRA SINGH W/O
LOKENDRA SINGH, ADULT.
BOTH ARE R/O WARD NO. 12, CHHATTARPUR
(MADHYA PRADESH).
5. ARVIND KUMAR SINHA (DEAD) THROUGH LRS. :-
(A) ANJALI SINHA WD/OF LATE ARVIND KUMAR
SINHA, ADULT
4
(B) SWEETI SINHA D/O LATE ARVIND KUMAR SINHA,
ADULT
(C) SUMIT SINHA S/O LATE ARVIND KUMAR SINHA,
ADULT
ALL R/O WARD NO. 12, CHANDSI DAVAKHANA,
CHHATARPUR (M.P.)
6. AKHILESH KUMAR SHUKLA S/O. DEENDAYAL
SHUKLA, AGED ABOUT 33 YEARS VILLAGE - ALIPUR,
TAHSIL - MAHOBA, HAMIRPUR (U.P.).
7. SMT. CHANDRAPRABHA DEVI (DEAD) THROUGH
LEGAL REPRESENTATIVES :-
(A) KISHUNLAL H/O LATE CHANDRAPRABHA, ADULT
(B) SUSHIL S/O LATE CHANDRAPRABHA, ADULT
(C) PRABHUDAYAL S/O LATE CHANDRAPRABHA,
ADULT
(D) DEENDAYAL S/O LATE CHANDRAPRABHA, ADULT
(E) ARVIND S/O LATE CHANDRAPRABHA, ADULT
(F) MANJULATA D/O LATE CHANDRAPRABHA, ADULT
ALL C/O FIRM CHAUDHARY PANNALAL SITARAM
AGRAWAL, AANAJ KE VYAPARI, SUBHASH GANJ,
JHANSI (U.P.).
8. SUNDERLAL SARRAF (DEAD) THROUGH - LEGAL
REPRESENTATIVES: -
(A) SMT. CHAMPA DEVI @ SIYA DULARI ( DEAD)
(B) RAJENDRA KUMAR AGRAWAL S/O SUNDERLAL
AGRAWAL AGED ABOUT 35 YEARS (DEAD) THROUGH
- LEGAL REPRESENTATIVES :- -
8(B) (I) SMT. SUNITA AGRAWAL W/O RAJENDRA
KUMAR AGRAWAL, AGED ABOUT 36 YEARS
5
8(B)(II) ANKIT S/O RAJENDRA KUMAR AGRAWAL,
AGED ABOUT 19 YEARS
8(B) (III) CHIRAG S/O RAJENDRA KUMAR AGRAWAL,
AGED ABOUT 16 YEARS
8(B) (IV) KU. POSHITA D/O RAJENDRA KUMAR
AGRAWAL, AGED ABOUT 14 YEARS.
RESPONDENTS NOS. 8(B) (2) TO 8(B)(4) THROUGH -
GUARDIAN AND MOTHER - SMT. SUNITA AGRAWAL
W/O RAJENDRA AGRAWAL.
RESPONDENTS NOS. 8(B) (1) TO 8 (B) (4) ARE R/O
BEHIND HIGHER SECONDARY SCHOOL,
CHHATARPUR (MADHYA PRADESH).
8(C) MAHENDRA KUMAR S/O SUNDERLAL, AGED
ABOUT 32 YEARS
(D) DEVENDRA KUMAR S/O SUNDERLAL AGRAWAL,
AGED ABOUT 28 YEARS.
RESPONDENTS NOS. 8 (C) AND (D) ARE R/O GALLA
MANDI, CHHATARPUR (MADHYA PRADESH).
(E) SMT. REKHA W/O PIYUSH AGRAWAL, AGED
ABOUT 34 YEARS R/O 522/1A, MEERPUR, PATEL
NAGAR, ALLAHABAD (U.P.).
(F) SMT. RASHMI AGRAWAL (DELETED.
8 (G) SMT. MEENA AGRAWAL, W/O ANOOP AGRAWAL,
AGED ABOUT 38 YEARS, K.B. JEWELERS, 129
MEERGANJ, ALLAHABAD (U.P.).
9. PARMANAND AGRAWAL S/O BADARI PRASAD SARRAF
AGED ABOUT 45 YEARS.
10. OM PRAKASH AGRAWAL S/O BADARI PRASAD
SARRAF, AGED ABOUT 30 YEARS.
11. JAI PRAKASH AGRAWAL S/O BADARI PRASAD
SARRAT AGED 28 YEARS.
6
12. PRAMOD KUMAR AGRAWAL (DELETED).
13. ASHOK KUMAR AGRAWAL S/O CHOTELAL SARRAF,
AGED ABOUT 30 YEARS
14. VIJAY KUMAR AGRAWAL S/O CHOTELAL SARRAF,
AGED ABOUT 28 YEARS
15. ANAND KUMAR AGRAWAL S/O CHOTELAL SARRAF,
AGED ABOUT 26 YEARS
16. AJAY KUMAR AGRAWAL S/O CHOTELAL SARRAF,
AGED ABOUT 24 YEARS
RESPONDENT NOS. 9 TO 16 ARE R/O GALLA MANDI,
CHHATTARPUR (MADHYA PRADESH )
17. ROOPCHAND S/O BHOJRAJ LALVANI, AGED ABOUT 26
YEARS, R/O GALLA MANDI, CHHATARPUR (MADHYA
PRADESH).
.....RESPONDENTS
(BY MS. C. V. RAO - ADVOCATE)
------------------------------------------------------------------------------------------------
Reserved on : 27-06-2023
Pronounced on : 03-07-2023
------------------------------------------------------------------------------------------------
This appeal having been heard and reserved for order, coming on for
pronouncement this day, the court pronounced the following:
JUDGMENT
This appeal under Section 96 of the Civil Procedure Code has been filed
by the appellants / plaintiffs being aggrieved and dissatisfied by the impugned
judgment and decree dated 28.01.2009 passed by the First Additional District
Judge, Chhatarpur in Civil Suit No.11-A/2008, whereby the plaintiffs' suit has
been dismissed.
2. Briefly stated facts of the case as projected in the plaint by the plaintiffs
are that Chaudhari Laxman Das and Kunj Bihari were real brothers and they
lived together during their life time. After the death of Laxman Das and Kunj
Bihari, the legal heirs of both the brothers i.e. the plaintiffs and defendant No.7
to 14 remained joint members of the Hindu family. Several properties were
purchased during the subsistence of the joint Hindu family property which also
included an old house with Shop No.64 (New No.47), situated in Katra Ward,
Chhatarpur. This property was purchased from nucleus of the joint Hindu
family property on 01.08.1966 from Ramdas Kediya for Rs.15,000/-. The said
house was mutated in Nagar Palika record in the name of Gouri Shankar and
Chhote Lal. The brothers of plaintiff namely Gouri Shankar got married to Smt.
Durga Devi according to Hindu rites and rituals at Basari. Out of this wedlock,
one daughter namely Smt. Chandra Prabha was begotten who is defendant No.7
in the present case. Chandra Prabha was only legal heir of Gouri Shankar.
Durga Devi wife of Gouri Shankar died in the year 1974. After the death of
Durga Devi, Gouri Shankar did not get married again. Gouri Shankar also died
on 15.01.1978. After the death of Gouri Shankar, his daughter Smt. Chandra
Prabha became the sole heir of Gouri Shankar and she obtained a succession
certificate regarding the moveable property, which was deposited in the bank by
virtue of succession certificate issued in her favour in Case No.03/1980.
3. The joint Hindu Family Property was orally partitioned in the year 1981.
In the partition, the disputed shop including house which is marked in the map
annexed to the plaint by red ink fell in the share of the plaintiffs. The disputed
house was never in occupation of the defendants No.1 to 6. Defendant no.1 is a
goldsmith by caste whose husband died earlier. The defendants No.2 and 3 were
born out of that relationship. Therefore, according to the plaintiffs, the
defendants No.2 and 3 have no blood relations with Gouri Shankar. The
defendant No.1 is not wife of Gouri Shankar. The defendant No.1 was never
married to Gouri Shankar. The defendant No.1 had only a residential house
situated in Kunjrehti in which she lived in that house with her sons i.e. the
defendants No.2 and 3 since last 50 years. The disputed house is mutated in the
name of Radha Rani in the municipal record since 1973-74. In the year 1995-
96, Radha Bai /defendant No.1 wrongly got mutated in the disputed house in the
name of Radha Bai wife of Gouri Shankar. This mutation was never in the
knowledge of plaintiffs. During the pendency of the case, the defendants No.4,
5 and 6 got registered a sale deed executed in their favour of the disputed land
on 09.07.1997 without the knowledge of plaintiffs. The defendant No.17 is not
in possession of the disputed land. Therefore, the registered sale deed dated
09.07.1997 is null and void against the plaintiffs. Hence, the suit was filed when
on 23.04.1995 the defendants No.4, 5 and 6 tried to occupy in the disputed land.
4. In turn, defendants No.1 to 6 and 17 in their written statements denied the
plaint averments by contending that. Durga Devi was not the wife of Gouri
Shankar and she never married to Gouri Shankar. Chandra Prabha was not
daughter of Gouri Shankar. In fact, defendant No.1 is widow of Gouri Shankar.
The defendants No.2 and 3 are the sons of Gouri Shankar. The defendants have
also denied that the plaintiffs are in occupation of the disputed land. According
to the defendants No.4, 5 and 6, they are real owners of the disputed land and
they are in actual possession of the disputed land. The defendants have further
pleaded that there is no share of the plaintiffs in the disputed land.
5. The trial court on the basis of the pleadings of the parties framed as many
as 10 issues and recorded the evidence. On the basis of the material came on
record, the trial court dismissed the suit of the plaintiffs.
6. Learned counsel for the appellants has contended that the impugned
judgment and decree is patently illegal, erroneous and contrary to law. Learned
trial Court has committed error in drawing adverse inference for non-
examination of Kanhaiyalal who was eldest living member of the family and
also non-examination of defendant no. 7. Trial court has also committed error in
not taking into consideration the voter list and the documents produced by the
plaintiffs to the effect that Gourishankar was son of Kunjbihari Lal and his wife
was Durga Devi. Gourishankar was the member of joint Hindu family and in
whose name the joint family properties were purchased. Trial Court further
erred in disbelieving the succession certificate Ex.P/3 produced by the plaintiffs.
Learned counsel has submitted that the findings recorded by the trial court are
perverse and the same are based on mis-appreciation of the evidence on record
and the same are vitiated in law. Hence, the impugned judgment and decree
being patently illegal, erroneous and contrary to law, is liable to be set-aside.
7. Per contra, learned counsel for the respondents has opposed the aforesaid
contentions and argued that the learned trial Court has rightly passed the
judgment and decree. Hence, prayer is made to dismiss the appeal.
8. I have heard the rival submissions made by learned counsel for the parties
at great length and also perused the impugned judgment and record. I have also
given my thoughtful consideration to the rival submissions made by the parties.
9. No doubts, the appellants / plaintiffs had filed the suit for declaration and
permanent injunction before the trial Court to the effect that the disputed house
no. 4 situated in Katra Ward, Chhatarpur is of the ownership of the plaintiffs
and also for declaring the sale deed dated 3.7.1991 and amended sale deed dated
16.7.1991 as null and void against the plaintiffs. As per the plaint averments,
Laxman Das and Kunj Bihari were real brothers and after their death, their legal
heirs i.e. plaintiffs and defendants no. 7 to 14 remained joint members of the
Hindu Family and several properties including the disputed house were
purchased during the subsistence of the joint Hindu family property. The
brother of plaintiffs namely Gouri Shankar got married to Smt. Durga Devi
according to Hindu rites and rituals at Basari and out of their wedlock, one
Daughter Smt. Chandra Prabha i.e. defendant no. 7 was born and Smt. Chandra
Prabha was only legal heir of Gouri Shankar. After the death of his wife Smt.
Durga Devi, Gouri Shankar did not get married again. Defendant no. 1 Smt.
Radharani @ Radhabai was never wife of Gouri Shankar and defendants no. 2
and 3 had no blood relation with Gouri Shankar and they are not the children of
Gouri Shankar. A sole legal representative of Gouri Shankar was Smt.
Chandraprabha namely defendant no. 7 who after the death of Gouri Shankar
got succession certificate from the court of law.
10. On plain reading of the plaint as well as the first appeal, it is found that
the plaintiffs have nowhere divulged the date and name of the properties alleged
to have been purchased by the plaintiffs being member of the joint Hindu family
and so also from the fund of joint Hindu family property. It is simply written in
the plaint that the disputed property was purchased from ancestral nucleus of
joint Hindu property. The plaintiffs have also failed to produce the documents
to fortify the contention that the disputed property was purchased from the fund
of joint Hindu family property. None of the witnesses of the plaintiffs have
stated that the disputed property was purchased from the income of the joint
Hindu family property. Star witness of the plaintiffs is Prabhat Kumar (PW-4)
who is son of late Bal Kishan / plaintiff no.2. This witness in para 57 of his
deposition has stated that attesting witnesses of Ex.P/2 are still alive but they
have not been examined by the plaintiffs. It is also evident from the evidence
available on record that after the death of Gouri Shankar and Chhotelal, the
property was mutated only in the name of heirs of Chhotelal and the plaintiffs
have not explained and shown the reason as to why the property was not
mutated in the name of Smt. Chandraprabha who is said to be only daughter of
late Gouri Shankar according to the plaintiffs and as to why the property was
mutated in the name of heirs of Chhotelal only. The plaintiffs have also failed to
produce document in support of their contention that the family was undivided
Hindu family. Moreover, from the evidence of Nathu Ram Rawat (PW-2) it is
evident that Gouri Shankar and Chhotelal were having two shops of gold
separately and thus, it can be very well presumed that the disputed property was
purchased from the income of their own income and as such, it is clear that the
disputed property was not purchased from the income of joint Hindu family
property. Moreover, the plaintiffs have also failed to file any account book of
firm, family business or agriculture income to substantiate the fact that disputed
property Ex.P/2 was purchased from the fund of joint Hindu family property.
From the plaint averments it is evident that after the death of Chhotelal, the
disputed property was inherited by the sons of Chhotelal only. Thus, it is crystal
clear that the property was not joint Hindu Family property.
11. On perusal of the evidence available on record it is found that the
plaintiffs have not mentioned complete genealogical tree in the plaint and
except Smt. Chandraprabha, no other name of female members have been
shown. Thus, incomplete genealogical tree has been described which itself
creates doubt regarding the correctness and conduct of the plaintiffs.
12. Learned counsel for the appellants has contended that the trial Court
ought to have considered the succession certificate in regard to the fact that Smt.
Chandraprabha was the daughter of Gouri Shankar and Smt. Durga Devi. In
fact, grant of succession certificate merely identifies the hands in which death
benefits (etc) be given and it does not entitle such person to appropriate such
benefits to himself. Grant of succession certificate will not determine the rights
of parties in any way. To prove the fact that Smt. Chandraprabha was born out
of wedlock of Gouri Shankar and Smt. Durga Devi, the plaintiffs have not
produced any documentary evidence. By way of succession certificate, the
person applied for is entitled to collect the assets. It is only for the purpose of
collection the certificate is issued. The title is not decided. Surprisingly, the star
witness Kanhaiyalal who was the oldest person in the family, has not been
examined on behalf of the plaintiff by saying that Kanhaiyalal being an old and
infirm person is unable to come to Court. However, no such documents in this
regard have been furnished before the court below. Moreover, there is no
documentary evidence that Gori Shankar was ever married to Durga Devi.
There is no document available on record pertaining to marriage of Durga Devi
with Gori Shankar. Even the witnesses appeared in the court on behalf of the
plaintiffs were hearsay witnesses and, therefore, their testimony having no
evidentiary value, cannot be relied upon. Smt. Chandraprabha who is alleged to
have the only daughter of Gori Shankar even after notice did not turn up in the
court below to depose in the matter even the plaintiffs have not made any
concrete efforts to bring Smt. Chandraprabha in the court and she did not file
any written statement in the matter to fortify the contentions of the plaintiffs. No
reason has been assigned why she did not appear. Whereas, on behalf of the
defendants no. 1 to 3, documents of revenue records have been filed, in which,
the name of Gori Shankar is mentioned as husband of Smt. Radharani @
Radhabai, even in the school certificate / documents, the name of Gouri Shankar
is mentioned as father of defendants no. 2 and 3 right from primary school to
graduation. It is not out of record to mention here that Prabhat Kumar Agarwal
in para 60 of the cross-examination stated that it is true that the disputed
property was in the name of Radha Rani in the year 1991, therefore, she
deposited municipal tax of the disputed property. The trial court has given well
sounded reasoning while deciding the issues.
13. From the aforesaid discussion, this court is of the opinion that the
plaintiffs have no legs to stands on its own. They cannot take advantage of
weakness of the defendants. It is the duty of the plaintiffs to prove their case by
leading cogent and reliable evidence even though defendants lead or do not
lead. This Court affirms the findings of the trial court. The trial Court while
deciding the issues framed in the suit has taken into consideration oral as well as
documentary evidence on record and has rightly came to the conclusion that the
plaintiffs have failed to prove their case. The findings given by the trial Court
are based on proper appreciation of evidence and well sounded.
14. Ex consequenti, the first appeal fails and is hereby dismissed. The
judgment and decree dated 28.01.2009 passed in C.S. No.11-A/2008 by learned
First Additional District Judge, Chhatarpur, is hereby confirmed. Needless to
say that interim order, if any granted earlier, stands vacated. However, in the
facts and circumstances of the case, there shall be no order as to costs. Decree
be drawn accordingly.
15. A copy of this judgment along with records be sent back to the trial court
for information and its compliance.
(ARUN KUMAR SHARMA)
JUDGE
JP/-
Digitally signed by JITENDRA KUMAR PAROUHA
JITENDRA KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF
MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,
2.5.4.20=0c76d8cd3eed9f0bfc9372066154c43b04cb33ec9fb039c178a4c87
2407e4a59,
PAROUHA
pseudonym=3A15DD73B45A940A855AD2007687F58346C21760,
serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5F
F10402B19143AD99, cn=JITENDRA KUMAR PAROUHA
Date: 2023.07.04 12:33:22 +05'30'
