Kashiram Kushwaha vs Raju Kushwaha
2023 Latest Caselaw 7114 MP

                          1




            IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPURBEFORE
        HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                    ON THE 2ND OF MAY, 2023
                 SECOND APPEAL NO.1732 OF 2021

Between:-

KASHIRAM KUSHWAHA S/O LATE JAWAHAR
KUSHWAHA, AGED ABOUT 58 YEARS,
VILLAGE KESHIOAN TEHSIL BEGUMAGANJ
DISTT. (MADHYA PRADESH)

                                              ..............APPELLANT
(BY SHRI AMAN CHOURASIA, ADVOCATE)

AND

1.    RAJU KUSHWAHA S/O SHRI JAGDISH
      KUSHWAHA VILLAGE KESHLOAN
      TEHSIL BEGUMGANJ DISTT. (MADHYA
      PRADESH)
2.    PRETAM   KUSHWAHA S/O    LATE
      JAGDISH   KUSHWAHA    VILLAGE
      KESHLOAN   TEHSIL  BEGUMGANJ
      RAISEN
      ALTERNATIVE ADDRESS: PREETAM
      KUSHWAHA S/O LATE JAGDISH
      KUSHWAHA R/O CHURAMAN MALI KA
      BAGICHA      BILAHARA    TEHSIL
      JAISINAGAR (MADHYA PRADESH)
3.    SMT. MALTI KUSHWAHA D/O LATE
      JAGDISH KUSHWAHA W/O MUKESH
      KUSHWAHA     VILLAGE   BILAHARA
      TEHSIL AND DISTT.SAGAR (MADHYA
      PRADESH)4. RAMA    DHAR    AGED
      ABOUT 63 YEARS S/O BOLEY KOLE
4.    SMT. SHASHI KUSHWAHA D/O LATE
      JAGDISH KUSHWAHA W/O SHEVU
      KUSHWAHA     VILLAGE  AGARIYA
                                        2




       TEHSIL   GAIRATGANJ                 (MADHYA
       PRADESH)
5.     HALLO    KUSHWAHA   S/O   LATE
       JAGDISH   KUSHWAHA     VILLAGE
       MADNAI     TEHSIL  BEGUMGANJ
       (MADHYA PRADESH)
6.     PREMRANI KUSHWAHA W/O LATE
       JAGDISH    KUSHWAHA     VILLAGE
       KESHLOAN     TEHSIL  BEGUMGANJ
       DISTT. (MADHYA PRADESH)
7.     MOHAN    KUSHWAHA    S/O   LATE
       JAWAHAR KUSHWAHA AGED ABOUT
       54 YEARS, VILLAGE KESHLOAN
       TEHSIL BEGUMGANJ DISTT. (MADHYA
       PRADESH)
8.     SMT. DHANBAI KUSHWAHA D/O LATE
       JAWAHAR      KUSHWAHA      W/O
       BALKISHAN KUSHWAHA VILLAGE
       DUDHWADA    TAH.TADA  (MADHYA
       PRADESH)
9.     STATE    OF    MADHYA   PRADESH
       THROUGH               COLLECTOR
       DISTT.RAISEN (MADHYA PRADESH)
                                                               ............RESPONDENTS

(BY SHRI PRAMOD GAUTAM, PANEL LAWYER FOR RESPONDENT/STATE)
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        This appeal coming on for admission this day, the Court passed the
following:
                               ORDER

This second appeal has been preferred by defendant 1-Kashiram Kushwaha challenging the judgment and decree dated 27/07/2021 passed by Additional Judge to the Court of 1st Additional District Judge, Begumganj, District Raisen in Civil Appeal No.100017/2014, affirming the judgment and decree dated 26/07/2014 passed by Civil Judge Class-II, Begumganj, District Raisen in Civil Suit No.13-A/2013, whereby suit filed by the plaintiffs Jagdish

(since died now LRs.) & Mohan for declaration of title and partition of the lands total area 17.40 acres situated in Village Keslon, Tahsil Begumganj, has been decreed.

2. Learned counsel for the appellant/defendant 1 submits that the land in question belonged to Jawahar Kushwaha, who died in the year 2008 leaving behind him the plaintiffs Jagdish, Mohan and defendants 1-2 Kashiram and Dhanbai i.e. 3 sons and 1 daughter. The plaintiffs have claimed themselves to be shareholder of the land over 1/4-1/4 share each but in his lifetime, father Jawahar Kushwaha had executed a Will on 12/03/2008 (Ex.D/6) in favour of the defendant 1/appellant- Kashiram Kushwaha, therefore, he is exclusive owner/bhumiswami and in possession of the suit land and there is no question of any share of the plaintiffs in the land. He further submits that learned Courts below have on the basis of minor discrepancies in the statements of the witnesses especially in the statement of attesting witness Rajkumar (DW/2), held the Will to be surrounded by several suspicious circumstances, whereas the Will in question has been duly proved by the plaintiffs as per Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. By placing reliance on the decision of co-ordinate Bench of this Court in the case of Ganga Prasad Vs. Nand Kumar 2013 MPRN 25, he submits that learned Courts below have erred in taking into consideration the testimony of Kashiram and Rajkumar in piece meal and if the entire statements of these witnesses are considered, then the Will being a proven document, the suit filed by the plaintiffs deserves to be dismissed. Accordingly, he prays for admission of the second appeal.

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

4. Undisputedly, the land in question belonged to Jawahar Kushwaha, who was father of original plaintiffs and defendants 1-2. Admittedly, if there is no Will, allegedly executed in favour of defendant 1, then all the four successors

would succeed the property having 1/4 share each, which has also been held by learned Courts below while decreeing the suit.

5. While considering the issue No.3 framed in respect of execution of Will by Jawahar Kushwaha in favour of defendant 1 Kashiram, learned trial Court from Paragraph 7 to 14 of its judgment, has taken into consideration the evidence of Kashiram (DW/1) and attesting witness Rajkumar (DW/2) in detail and has held that the defendant 1 has failed to prove due execution and attestation of the Will as per law and the Will is surrounded by several suspicious circumstances.

6. Learned appellate Court has also discussed the evidence in detail in respect of execution and attestation of the Will from paragraph 9 to 18 of its judgment and affirmed the findings recorded by learned trial Court.

7. Learned Courts below have rightly observed in their judgment that there are 3 attesting witnesses of the Will but the attesting witness Rajkumar (DW/2) has in his statement clearly states that there were only 2 witnesses and no other witness signed the Will. He further states that he does not know as to who drafted the Will, although, he states that the Will was prepared by one Massaab but he does not know whereabouts of that person. Taking into consideration entire statement of Kashiram (DW/1) and attesting witness Rajkumar (DW/2), learned Courts below have held that the Will is surrounded by several suspicious circumstances, which have not been removed by defendant 1.

8. After perusal of entire record including the statements of defendant's witnesses, the findings recorded by learned Courts below do not appear to be perverse or illegal, which are pure findings of facts.

9. Resultantly, having no involvement of substantial question of law the second appeal fails and is hereby dismissed in limine under Order 41 Rule 11 CPC. However, no order as to costs.

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

(DWARKA DHISH BANSAL) JUDGE RS

RASHMI Digitally signed by RASHMI RONALD VICTOR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya

RONALD Pradesh, 2.5.4.20=dcca7715f3f684c24752dbb505e5b1 86c02289cadaa753ee20545e7ad1b52d64, pseudonym=625746E87FF4AC3C6DB695A8A AC47B69FE61026F,

VICTOR serialNumber=9EBC5CA1D2C50306E16173EA 7E3552F54DAFD50DD81AA3585D181CA585 85377A, cn=RASHMI RONALD VICTOR Date: 2023.05.03 17:17:37 +05'30'