Madhya Pradesh High Court
Smt.Shantidevi vs Smt.Shanti Devi on 2 May, 2023
Author: Sunita Yadav
1 SECOND APPEAL No. 96/2010
IN THE HIGH COURTOF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
SECOND APPEAL No. 96 of 2010
BETWEEN:-
SMT.SHANTIDEVIW/O SHANKAR SINGH , AGED
ABOUT 65 YEARS, OCCUPATION: R/O VILLAGE
1. KARVAS, AT PRESENTLY SHIDHESHWAR
NAGAR, MORAR, GWALIOR (MADHYA
PRADESH)
RANVIJAY SINGH @ CHARAN SINGH S/O S/O
SHRI SHANKAR SINGH , AGED ABOUT 25
2. YEARS, OCCUPATION: R/O VILLAGE KARVAS,
AT PRESENTLY SHIDHESHWAR NAGAR,
MORAR, GWALIOR (MADHYA PRADESH)
BHURA @ RAVINDRA SINGH S/O S/O SHRI
SHANKAR SINGH , AGED ABOUT 30 YEARS,
3. OCCUPATION: R/O VILLAGE KARVAS, AT
PRESENTLY SHIDHESHWAR NAGAR, MORAR,
GWALIOR (MADHYA PRADESH)
SMT. URMILA D/O SHANKAR SINGHW/O
SHARNAM SINGH , AGED ABOUT 45 YEARS,
4. OCCUPATION: R/O VILLAGE NIBROL, TEHSIL
GOHAD, DISTRICT BHIND M.P. (MADHYA
PRADESH)
SMT. GUDDI BAID/O SHANKAR SINGH W/O
GANDHARV SINGH , AGED ABOUT 35 YEARS,
5.
R/O VILLAGE SIMARIYA, TEHSIL DABRA,
DISTRICT GWALIOR (MADHYA PRADESH)
6. SMT. NEELAM D/O SHANKAR SINGH W/O
BHAJAN SINGH, AGED ABOUT 33 YEARS, R/O
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
2:41:41 PM
2 SECOND APPEAL No. 96/2010
VILLAGE JIGNIYA, THANA HASTINAPUR, DISTT.
GWALIOR (MADHYA PRADESH)
SMT. AARTI D/O SHANKAR SINGH W/O BANTI
SINGH, AGED ABOUT 30 YEARS, OCCUPATION:
7. R/O VILLAGE GUDI THANA, PICHHORE, TEHSIL
DABRA, DISTRICT GWALIOR (MADHYA
PRADESH)
BAHADUR SINGH S/O S/O SHRI AJMER SINGH,
AGED ABOUT 65 YEARS, R/O VILLAGE KARVAS,
8.
TEHSIL GOHAD, DISTRICT BHIND (MADHYA
PRADESH)
RAJENDRA SINGH S/O S/O PULLANDER SINGH ,
AGED ABOUT 43 YEARS, R/O VILLAGE KARVAS,
9.
TEHSIL GOHAD, DISTRICT BHIND (MADHYA
PRADESH)
TILAK SINGH S/O S/O PULLANDER SINGH ,
AGED ABOUT 41 YEARS, R/O VILLAGE KARVAS,
10.
TEHSIL GOHAD, DISTRICT BHIND (MADHYA
PRADESH)
KALYAN SINGH S/O S/O PULLANDER SINGH ,
AGED ABOUT 38 YEARS, R/O VILLAGE KARVAS,
11.
TEHSIL GOHAD, DISTRICT BHIND (MADHYA
PRADESH)
BHURE SINGH S/O S/O PULLANDER SINGH ,
AGED ABOUT 35 YEARS, R/O VILLAGE KARVAS,
12.
TEHSIL GOHAD, DISTRICT BHIND (MADHYA
PRADESH)
NARENDRA SINGH S/O S/O PULLANDER SINGH ,
AGED ABOUT 31 YEARS, R/O VILLAGE KARVAS,
13.
TEHSIL GOHAD, DISTRICT BHIND (MADHYA
PRADESH)
RAMAVATAR SINGH S/O S/O OMKAR SINGH ,
AGED ABOUT 35 YEARS, R/O VILLAGE
14.
KARVAS, TEHSIL GOHAD, DISTRICT BHIND
(MADHYA PRADESH)
.....APPELLANTS
(MR. JITENDRA SHARMA - ADVOCATE FOR THE APPELLANTS)
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
2:41:41 PM
3 SECOND APPEAL No. 96/2010
AND
SMT.SHANTI DEVIW/O HUKUM SINGH , AGED
ABOUT 69 YEARS, OCCUPATION: R/O GALI
1.
NO.2,KAYASTHAPADA,TEH.&DISTT. DHOLPUR
(RAJASTHAN)
ASHOK RANA S/O S/O SHRI JAI SINGH, , AGED
ABOUT 43 YEARS, OCCUPATION: R/O GALI NO.2
2.
KAYASTHAPADA, TEHSIL AND DISTT. DHOLPUR,
RAJASTHAN (RAJASTHAN)
STATE OF MADHYA PRADESH THROUGH (MADHYA
3.
PRADESH)
.....RESPONDENTS
(MR. AMIT BANSAL - ADVOCATE FOR THE RESPONDENT NO. 1
AND 2 & MR. MR. RAMADHAR CHOBEY - GOVERNMENT
ADVOCATE FOR RESPONDENT NO.3)
Reserved on : 26.04.2023
Whether approved for reporting :
This appeal coming on for pronouncement of judgment on
this day, the court passed the following:
JUDGMENT
(Passed on 02/05/2023)
Present second appeal under Section 100 of CPC has been
filed against the judgment and decree dated 19.01.2010 passed by
Additional District Judge, Gohad, District Bhind (M.P.) in Civil
Appeal No. 12/2009 affirming the judgment and decree dated
30.01.2009 passed by the Civil Judge, Class-I, Gohad, District
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Signed by: LOKENDRA JAIN
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Bhind in Civil Suit No.40-A/2007 by which the suit of appellants
was dismissed and counter claim of the respondent/defendant was
allowed.
2. Factual matrix of the case, in brief, are that
appellants/plaintiffs had filed a Civil Suit No.40-A/2007 for
declaration of Will dated 29.12.2004 to be forged and void ab-initio
and permanent injunction before the Court of Civil Judge, Class-I,
Gwalior, stating therein that the disputed land bearing survey
numbers as described in the plaint are situated at Village Karvas,
Tahsil Gohad, District Bhind. It is further submitted that apart from
the aforesaid survey numbers, some rooms and one hall has been
constructed adjoining the land thereof some open space/land which
was remained in title and possession of Smt. Durgadevi W/o
Udaibhan Shigh, R/o Karvas, who was issueless and had been
expired on 14.12.2005. It was further pleaded that
plaintiffs/appellants are family member of deceased-Durgadevi and
Udaibhan Singh. As deceased late Smt. Durgadevi had expired left
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behind the disputed land, as such being family
members/successors/blood relatives, they are in possession of the
disputed land and are entitled to be declared as owner of the
disputed land. The appellants/plaintiffs further pleaded in the plaint
that the ancestor of the plaintiffs and ancestor of Udaibhan Singh
were same and whose name was Ranchhor Singh. As per Plaintiffs
the family tree to show the relationship between ancestor of
plaintiffs and Udaybhan Shigh is as below :
Ancestor of Ranchhor Singh and his sons
Plaintiffs and Fateh Singh Gulab Singh Jalim Singh
Udaybhan Singh
(husband of Dariyab Singh S/o Issueless Nirbhay Singh S/o
deceased Durga Fateh Singh Jalim Singh
Devi) Khalak Singh S/o Sukhpal Singh,
Dariyab Singh Jodharam and
Balaji S/o Nirbhay
Singh
Gambhir Singh Tej Singh S/o
S/o Khalak Singh Sukhpal Singh
Udaybhan Singh Bhawani Singh
S/o Gambhir S/o Tej Singh
Singh who was
the husband of
deceased Durga
Bai who has been
expired issueless.
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Signed by: LOKENDRA JAIN
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Ram Singh S/o
Bhawani Singh
Pulandar Singh
S/o Ram Singh
Plaintiffs No. 3 to
7 are the sons of
Pulandar Singh
2. Jodhram S/o Nirbhay Singh 3. Balaji S/o Nirbhay Singh
Pyareraja S/o Jodhram Randhir Singh S/o Balaji
Hem Singh S/o Pyareraja Ajmer Singh S/o Randhir Singh
Hukum Singh S/o Hem Singh Plaintiffs No.1 and 2 S/o Ajmer Singh
Onkar Singh S/o Hukum Singh
Ramaavtar Singh (Plaintiff No.8) S/o
Onkar Singh
3. It is further pleaded that on the basis of above family they are
legal heirs and blood relatives of late Smt. Durgadevi. It was further
stated in the plaint that the aforesaid disputed land was received by
Smt. Durgadevi from her husband. Hence, it is an ancestral property
of the appellants/plaintiffs and in view thereof they are in
possession of the disputed property since the life time of Smt.
Durgadevi. After death of Smt. Durgadevi, they started proceedings
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for mutation before the Tahsil Court, thereupon, the defendants
came in the village on 02.01.2006 and tried to disposes the
plaintiffs/appellants from disputed land and stated that they have
started proceedings of mutation of disputed land by their names on
the basis of so called Will, whereas, late Smt. Durgadevi has never
executed any Will in favour of any person. The defendants
themselves have prepared forged so-called Will. In such
circumstances, it was prayed that the plaintiffs no. 1 and 2 be
declared as owner of 1/3rd, plaintiffs No. 3 to 7 be declared as
owner of 1/3rd and plaintiff no.5 be declared as owner of 1/3rd of
the disputed land and the so called Will be declared forged and void,
ab-initio against the rights of the plaintiffs.
4. The defendants no. 1 and 2 have filed written Statement
along with the counter claim in the matter and denied the
allegations of the plaint and inter-alia contended that they are sons
of late Smt. Durgadevi's sister who duly executed Will dated
19.02.2004 in their favour and registered the same in the Office of
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the Dy. Registrar, Registration, and claimed to be owner on the
basis of the aforesaid Will and the defendants prayed for declaration
of title and permanent injunction in their favour.
5. On the basis of the aforesaid pleadings, the learned Trial
Court framed as many as seven issues in the matter and parties lead
evidence to prove the said issues in their favour. The plaintiffs
examined eight witnesses in their favour, whereas the defendants
examined five witnesses to prove their case. The learned Trial Court
after appreciation of the evidence made available on record, vide its
judgment and decree dated 30.01.2009 dismissed the Suit filed by
the appellants/plaintiffs and decreed the counter claim of the
defendants in their favour.
6. Being aggrieved by the aforesaid judgment of the trial court,
the appellants/plaintiffs preferred First Civil Appeal No. 12/09
before the Lower Appellate Court who also dismissed the First
appeal preferred by the appellants and has affirmed the judgment
and decree passed by the Trial Court, therefore, appellants/plaintiffs
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has occasion to file this second appeal under Section 100 of C.P.C.
7. Assailing the findings recorded by the learned courts below,
learned counsel for appellants/defendants submits that the learned
first appellate Court has committed grave error in disbelieving the
the evidence lead by the appellants/plaintiffs with regard to family
backgrounds of the parties and they have declined to believe on the
evidence lead by the plaintiffs only on the basis that the plaintiffs
have not examined any old aged persons of the village. The courts
below have failed to consider the fact that the
respondents/defendants have totally failed to discard the evidence
lead by the appellants with regard to their family back grounds. It is
not matter that who much witnesses have been examined. It was
duty of the courts below to appreciate the evidence properly which
has not been done. Hence, the findings recorded by both the courts
below are no finding in the eye of law.
8. It is further argued that both the Courts below have further
committed serious error in law in granting approval to the so-called
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Will and have failed to consider the fact that the property in
question is an ancestral property, hence late Smt. Durgadevi was
having no right to execute the Will in favour of the third person,
whereas, it is undisputed fact that the property in question was an
ancestral property received to the Smt Durgadevi from her husband.
Hence, the findings recorded by both the courts below are perverse,
illegal and bad in law.
9. It is further argued that it is an undisputed fact that the
property in question is an ancestral property and there is no iota of
evidence on record to prove that the property in question was self
acquired property of Smt. Durgadevi. Hence Smt Durgadevi had no
right to execute the Will in favour of the defendants. As such the
Will in question was void ab-initio. The findings recorded by the
courts below are totally illegal and perverse as the same have been
recorded without appreciating the material available on record
properly. Hence the impugned judgment and decree are not liable to
be quashed.
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
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10. On the other hand, learned counsel for the respondents
submits that the order impugned is in accordance with law and no
interference is warranted in the same and prayed to dismiss the
present second appeal.
11. Heard the parties and perused the record.
12. The present second appeal has been admitted by the Court on
following substantial questions of law:-
"i- Whether the Courts below have erred in law
in devolving the interest of Udaybhan Singh
through testamentary or intestate whereas the
amendment in Section 6 of Hindu Succession Act,
1956 has come into force w.e.f. 09-09-05 while the
so called Will is purported to have been executed
on 19-02-2004 ?
ii- Whether the Courts below have erred in law
in holding the Will (Ex-D/1) to be legal and valid
whereas it is an admitted fact that the property in
question was ancestral property, inherited by Smt.
Durgadevi from her husband Udaybhan Singh?
iii- Whether the Courts below have erred in
law in decreeing the counter claim of
respondents/defendants on the basis of Will (Ex-
D/1) whereas Smt. Durgadevi had no power to
execute the Will as property in question was
ancestral property?"
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Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
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13. It is not in dispute that the property in dispute was in the
ownership and possession of Smt. Durgadevi W/o Udaibhan Shigh,
R/o Karvas, who was issueless and had expired on 14.12.2005. The
appellants/defendants at para one of their written statements
categorically admitted that Smt. Durgadevi was the sole owner of
the disputed property. There is no evidence on record to prove that
the property in question is an ancestral property. Hence, Smt
Durgadevi had every right to execute the Will on 19-02-2004 in
favour of the defendants. Thus, the learned courts below have not
erred in dismissing the suit of appellants and decreeing the counter
claim of respondents. Consequently, the substantial questions of law
are answered as below;
i). The Courts below have not erred in law in
devolving the interest of Udaybhan Singh through
testamentary or intestate whereas, the amendment in
Section 6 of Hindu Succession Act, 1956 has come
into force w.e.f. 09-09-05 while the Will is purported
to have been executed on 19-02-2004.
ii- The Courts below have not erred in law in
holding the Will (Ex-D/1) to be legal and valid
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because it is not proved that the property in question
was ancestral property.
iii- The Courts below have not erred in law in
decreeing the counter claim of respondents/defendants
on the basis of Will (Ex-D/1), as Smt. Durgadevi was
the sole owner of the disputed property and had the
power to execute the Will of her property.
14. Consequently, the present appeal sans merits and is hereby
dismissed.
(Sunita Yadav)
Judge
LJ*
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 5/3/2023
2:41:41 PM
