Ashok Kumar vs Smt Vimal Bai
2024 Latest Caselaw 5423 MP

Madhya Pradesh High Court

Ashok Kumar vs Smt Vimal Bai on 22 February, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                             1
 IN      THE     HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                         BEFORE
          HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                 ON THE 22 nd OF FEBRUARY, 2024
                 SECOND APPEAL No. 1543 of 2017

BETWEEN:-
1.    ASHOK KUMAR S/O LATE TEKCHAND JAIN, AGED
      AROUND 53 YEARS,

2.    AJEET KUMAR S/O LATE TEKCHAND JAIN, AGED
      AROUND 62 YEARS,

3.    VINOD KUMAR S/O LATE TEKCHAND JAIN, AGED
      AROUND 30 YEARS,

      APPELLANT NOS.1 TO 3 ARE R/O VILLAGE KAAPA
      INDRAANA A TEHSIL MAJHAULI, DISTRICT
      JABALPUR (MADHYA PRADESH)

4.    SMT. SUGANDHI BAI, W/O ASHOK KUMAR JAIN,
      D/O LATE TEKCHAND JAIN, AGED AROUND 45
      YE A R S , R/O SHAH GARH, DISTRICT SAGAR
      (MADHYA PRADESH)

5.    SMT. SUMANBAI, W/O SHARAD JAIN, AGED
      AROUND 32 YEARS, R/O MIDHIYADOH, TEH.
      HATA, DISTRICT DAMOH (MADHYA PRADESH)

      (ALL ARE LEGAL HEIRS OF LATE SMT. KAMLA
      BAI JAIN)

                                                   .....APPELLANTS
(BY SHRI GIRISH SHRIVASTAVA - ADVOCATE)

AND
SMT VIMAL BAI, W/O SURESH CHAND JAIN, AGED
AROUND 54 YEARS, R/O P.F 1, BAASA COLONY, TEH
BAADI, DISTRICT RAISEN (MADHYA PRADESH)

                                                   .....RESPONDENT
(NONE)

      Reserved   on : 20.02.2024
                                      2

      Pronounced on : 22.02.2024

      This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                      ORDER

In this second appeal, the judgment and decree passed on 1.9.2017 in C ivil Appeal No.2-A/2015 by Additional District Judge, Sihora, district Jabalpur, has been challenged. The said appeal was filed against the judgment and decree passed on 11.12.2014 by Civil Judge, Class I, Sihora, in Civil Suit RCSA No.22-A/07 whereby the civil suit filed by appellants for the relief of declaration and permanent injunction was dismissed and the counter-claim filed

by respondent for eviction and damages @ Rs.6,000/- per annum, including interest thereon @ 12% per annum, was partially allowed.

2. The appellants shall be hereinafter referred to as "plaintiffs" and respondent as "defendant" for the sake of convenience.

3. The admitted facts relevant for the just decision of this second appeal are that defendant Vimla Bai is the daughter of Buddhulal, who died on 5.9.1997 and admittedly the suit property was the ancestral property of Buddhulal which fell into his share upon partition. It is also admitted that plaintiffs are claiming title over the suit property on the basis of a Will allegedly executed by Buddhulal on 4.9.1997. Admittedly, the plaintiffs were in possession of suit property as on the date of institution of suit.

4 . The brief facts of the case are that plaintiffs and defendant are the relatives; the father of defendant was residing with the original plaintiff who was taking care of him and pleased by her care and service, Buddhulal executed a Will on 4.9.1997 in favour of original plaintiff Kamla Bai; the defendant, who is

the daughter of Buddhulal, was interfering with the peaceful possession of plaintiffs. It was, therefore, prayed that plaintiffs be declared owner of the suit property and permanent injunction be issued in their favour for its protection. The defendant is the sole legal heir of deceased Buddhulal for being his single child. According to her, the allegations made in plaint are false; no Will was executed by Buddhulal in favour of original plaintiff Kamla Bai; the property was originally in possession of Buddhulal and after his death, defendant came into the possession of this property; it is claimed that on 3.5.2007 the original plaintiff secretly obtained the possession of suit property and, upon the objection of defendant, she promised to vacate it but instead of vacating it, she filed the civil suit on false pleadings and documents. It is, therefore, prayed that the suit should be dismissed and a counter-claim for seeking possession and damages along with interest and litigation costs was filed by the defendant; plaintiffs contested this counter-claim.

5. The trial court framed issues and recorded the statements of both the sides; only one witness, namely Ashok Kumar Jain, was examined from plaintiffs' side and two witnesses were examined on behalf of defendant; documentary evidence of Exs.P-1, P-2 and Exs.D-1 to D-8 were produced and upon appreciation of this evidence, the civil suit as well as the appeal filed by the plaintiffs were dismissed.

6. The grounds raised in this second appeal are that the judgment and decree passed by the courts below in dismissing the civil suit and allowing the counter-claim are against law and facts; the right of plaintiffs to keep their witnesses present for cross-examination was wrongly denied; the evidence was not analyzed meticulously; the commission for local inspection was not issued; the daughter of Buddhulal, namely defendant, never took care of him and to

avoid future disputes in the family, Buddhulal, who was aged around 74 years at the time of his death, executed a Will in favour of original plaintiff Kamla Bai; had there been any intention of committing fraud on the part of Kamla Bai, she would have got the Will prepared for the entire property of Buddhulal, but Will under question is only for a limited part of his property. It is, therefore, prayed that the appeal should be allowed for all the reliefs claimed in plaint and dismissing the counter-claim with costs, the impugned judgment and decree be set aside.

7. Arguments of counsel for plaintiffs have been heard on admission and the records of the courts below have been perused.

8. Admittedly, the original plaintiff Kamla Bai, in whose favour Buddhulal allegedly executed a Will of the disputed property, was not the Class I heir of Buddhulal. It is claimed by the plaintiffs that Kamla Bai was the relative of Buddhulal but what relationship was there between the two has not been disclosed in the plaint. Statements of Ashok Kumar Jain (P.W.1) suggests that Kamla Bai was the wife of the brother of Buddhulal Jain and the name of his brother was Tek Chand Jain, therefore it can be very safely concluded that original plaintiff Kamla Bai was not the Class I heir of Buddhulal and on the basis of admitted facts between the two parties, it is established that Buddhulal was survived only by his daughter, namely defendant Vimla Bai, who upon the death of Buddhulal would be the owner of Buddhulal's property.

9. The original plaintiff Kamla Bai claimed that the ownership of disputed property did not devolve upon his daughter as a Will was executed by Buddhulal Jain during his lifetime in favour of plaintiff Kamla Bai and upon the death of Buddhulal she became the owner of this property. As the claim of title

of plaintiffs is based upon a Will, therefore it was expected of plaintiffs to prove that Will according to the provisions of law.

10. The original Will, which is the basis of ownership of plaintiffs, is filed in evidence as Ex.P-1. On examination, it is evident that the said Will is an unregistered document. It has been very aptly observed by both the courts below that the execution of a Will needs to be proved under the provision of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. The courts below have relied upon the decisions given by the Apex Court in H. Venkatchala Iyengar v. B. N. Thimmajamma and others AIR 1959 SC 443, Rani Pnrnima Debi and another v. Kumar Khagendra Narayan Deb and another AIR 1962 SC 567 and the decisions of this High Court in Shri Mahaveerdas Shastri v. Shri Sadguru Sewa and another (2004) 1 M.P.H.T. 383 and Suresh Kumar Gupta v. Babulal Gupta 2005 Revenue Nirnay 416 (Revenue Board) in which the legal propositions on proof of Will have been discussed and it is laid down that the evidence of attesting witness is essential to prove the execution of Will whether it be a registered or an unregistered Will.

11. Plaintiffs have examined only one witness in the case and he is Plaintiff No.1A impleaded in appeal as Appellant No.1 Ashok Kumar as P.W.1. Admittedly, he was not an attesting witness to the Will, therefore his testimony was never sufficient to prove the execution of Will relied upon by the plaintiffs. There is no reason given on record to explain why the attesting witnesses to the Will were not examined. This resultantly brings to the conclusion that evidence brought on record by plaintiffs to prove the execution of their title deed i.e. the Will is not law compliant and they have failed to prove the execution of said Will (Ex.P-1) on the parameters of established legal propositions.

12. In the light of above discussion, this court comes to the conclusion that plaintiffs could not have inherit the suit property or any part thereof for the simple reason of not being Class I heir of deceased Buddhulal, who had the ownership of this property. It is also not established through legal evidence that a Will was executed by owner Buddhulal in favour of original plaintiff Kamla Bai, who was his distant relative. It is an admitted fact that defendant is the single child of Buddhulal and sole Class I heir of deceased, therefore, by operation of law of intestate, she became the owner of the entire property of deceased upon his death. Accordingly, the two courts below have committed no error in dismissing the suit of plaintiffs filed for the reliefs of declaration of title and permanent injunction over the property belonging to Buddhulal and also the courts below have not committed any error in allowing the counter-claim for the reliefs of possession and damages against the plaintiffs.

13. Finding no substantial question of law involved in this second appeal, it is dismissed in limine.

14. Let the records of the courts below be sent back along with a copy of this order for information and compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.02.22 19:12:37 +05'30'