Nanhelal Yadav vs Sakun Bai
2024 Latest Caselaw 6071 MP

Madhya Pradesh High Court

Nanhelal Yadav vs Sakun Bai on 28 February, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

1                                                     S.A. No. 1308/2023

       IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR

                          BEFORE
       HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                ON THE 28th OF FEBRUARY, 2024

                SECOND APPEAL No. 1308/2023

       BETWEEN:-
1.     NANHELAL YADAV (DEAD) THROUGH LRS

1(i)   SMT. PREMVATI YADAV W/O LATE SHRI
       NANHELAL YADAV, AGED ABOUT 65 YEARS,
       VILLAGE    PATAUWAPURA      (MADHYA
       PRADESH)

1(ii). RAJESH YADAV S/O LATE SHRI NANHELAL
       YADAV, AGED ABOUT 53 YEARS, VILLAGE
       PATAUWAPURA (MADHYA PRADESH)

1(iii). PAWAN YADAV S/O LATE SHRI NANHELAL
        YADAV, AGED ABOUT 49 YEARS, VILLAGE
        PATAUWAPURA (MADHYA PRADESH)

                                            .....APPELLANTS
       (BY SHRI SANKALP KOCHAR AND SHRI
       PRAMENDRA SINGH THAKUR, ADVOCATES)


       AND

1.     SAKUN BAI W/O LATE SHRI SHYAMLAL YAAV,
       AGED ABOUT 55 YEARS, R/O VILLAGE
       PATAUWAPURA TEHSIL SHAHPUR BETUL
       DISTRICT BETUL (MADHYA PRADESH)

2.     DEVENDRA S/O GIRI SHANKAR AWASTHI
       OCCUPATION: CASE BRAHIMIN AGED ABOUT
       52 YEARS R/O DURGA WARD KOTHI BAZAR
       BETUL TEHSIL BETUL DISTRICT-BETUL
       (MADHYA PRADESH)
 2                                                                    S.A. No. 1308/2023


3.    SMT. SARITA W/O NARENDRA KUMAR TOPRE,
      AGED ABOUT 37 YEARS, R/O MOTI WARD
      CHAKKAR ROAD, BETUL TEHSIL BETUL
      DISTRICT-BETUL (MADHYA PRADESH)

4.    MINISTER   FOR    STATE     THROUGH
      COLLECTOR   BETUL   DISTRICT   BETUL
      (MADHYA PRADESH)

                                                     .....RESPONDENTS

      (BY MS. KAMLESH TAMRAKAR, PANEL LAWYER
      FOR RESPONDENT-STATE)S


...................................................................................................................................................................

      This appeal coming on for orders, this day, the court passed the
following :
                                 ORDER

This second appeal has been preferred by defendant 1-Nanhelal Yadav (now dead, through LRs) challenging the judgment & decree dtd.12.05.2023 passed by 4th District Judge to the Court of 1st District Judge, Betul in RCA No.24/18 affirming the judgment & decree dtd. 09.02.2018 passed by 1st Civil Judge Class-1, Betul in Civil Suit No. 2100003-A/2015 whereby respondent 1/plaintiff's suit for declaration of title, for declaring Will dtd. 10.11.2010 (Ex.D/22) to be null and void and sale deed dtd. 22.11.2011 (Ex.P/12) to be not binding, has been decreed.

2. In short the facts are that the respondent 1/plaintiff instituted the suit with the allegations that the land in question belonged to husband of plaintiff and after his death, she is exclusive owner and in possession of suit land. It is also alleged that the Will dtd. 10.11.2010 allegedly executed by plaintiff's husband Sunderlal Yadav in favour of defendant 1- Nanhelal Yadav is null and void and consequent sale deed executed by

him on 22.11.2010 in favour of defendants 2-3 (Devendra and Smt. Sarita Topre) does not confer any right on them and is not binding on plaintiff. Upon contest made by the defendants, the suit filed by the plaintiff has been decreed by Courts below holding the Will dtd. 10.11.2010 (Ex. D/22) and sale deed dtd. 22.11.2011 (Ex. P/12) to be null and void

3. Learned counsel for the appellant/defendant 1 submits that undisputedly Sunderlal Yadav @ Shyamsundar Yadav was owner/ bhoomiswami of the land in question, who died on 11.02.2011. Although the plaintiff is legally wedded wife of Sunderlal Yadav, but she deserted her husband and was residing separately with her parents at Hoshangabad and did not take care of her husband Sunderlal Yadav, therefore, he executed Will on 10.11.2010 in favour of defendant 1 Nanhelal Yadav, with whom he was having affection, who is also cousin of Sunderlal Yadav. On the basis of Will, name of Nanhelal was also mutated in the revenue record and thereafter he executed sale deed in favour of defendants 2-3 in respect of part of the land in question.

4. Learned counsel submits that due execution and attestation of will has been proved by adducing evidence of the attesting witness Shiv Kumar (PW-2) and by adducing evidence of Handwriting expert, signature of the deceased Sunderlal Yadav on the will, has also been proved, but Courts below have on surmises and conjectures, committed illegality in holding the Will to be an unproven document. He further submits that no suspicious circumstance is available on record in respect of execution of Will. He also submits that because the plaintiff was not residing with Sunderlal Yadav and she filed several criminal cases against him, therefore, she has rightly been excluded from the property. By inviting attention of this Court to another Will (Ex.D/23) executed by

father-in-law of plaintiff in favour of deceased Sunderlal Yadav, learned counsel submits that her father-in-law had also expressed his annoyance not to give any property to the plaintiff. With these submissions, he submits that Courts below have committed illegality in holding the will to be an unproven document and consequently in declaring the sale deed to be a void document. In support of his submissions, he placed reliance on decisions of Hon'ble Supreme Court in the case of Dhannulal and others vs. Ganeshram and another (2015) 12 SCC 301 and Dhanpat vs. Sheo Ram (deceased) Through LRs and others (2020) 16 SCC 209 and prayed for admission of second appeal.

5. Heard learned counsel for the appellant/defendant 1 and perused the record.

6. Undisputedly, Sunderlal Yadav @ Shyamsundar Yadav was owner/bhoomiswami of the land in question and if there is no Will, his wife Shakun Bai (plaintiff), in absence of any other Class-I legal heir, would succeed the property after death of Sunderlal Yadav on 11.02.2011. So the entire burden to prove valid/due execution and attestation of the Will dtd. 10.11.2010 (Ex.D/22), is on the defendant 1-Nanhelal Yadav in whose favour the Will is said to have been executed by Sundarlal Yadav at the age of 56 years, having no ailment.

7. As has been pointed out by learned counsel for the appellants, with support of documents (Ex.D/13 & D/34 etc.) there were some disputes between husband and wife and in that regard some cases were also pending but it is undisputed fact available on record that no divorce decree was passed against the plaintiff (wife) and during lifetime of Sundarlal Yadav, marriage between Sundarlal Yadav and plaintiff

subsisted, therefore, there is no adverse effect on rights of the plaintiff to get the property after death of Sundarlal Yadav on 11.02.2011.

8. So far as the question of separate residence of the plaintiff with her husband Sundarlal Yadav is concerned, defendant 1 Nanhelal Yadav in para 34 of his testimony, has admitted that on the date of death and before starting funeral procession (shav-yatra), plaintiff was in the same house in which Sundarlal Yadav was residing. However, there is sufficient evidence available on record to show that she resided in the house of Sunderlal Yadav. Even otherwise, her non residence with Sunderlal Yadav is not sufficient to exclude her from the property left by Sunderlal Yadav.

9. So far as valid/due execution and attestation of Will in question is concerned, Courts below have, while considering the question of genuineness of unregd. Will, come to conclusion that the Will is surrounded by several suspicious circumstances and the defendant 1 has not been able to remove the same. While appreciating/discussing evidence of attesting witness Shiv Kumar, Courts below have found his testimony in respect of due execution and attestation of the Will, not reliable.

10. Further, bare reading of the Will in question, shows that there is no consideration mentioned in the Will as to why Sunderlal Yadav, aged 56 years, executed Will in favour of defendant 1, aged 58 years. Even though, the defendant 1 claims himself to be brother/cousin of Sunderlal Yadav, but nothing has been mentioned in the Will about their relation and even at the time of execution of will it was not clear as to how much of the property was in the ownership of Sunderlal Yadav. Further, on the

date of alleged execution of will, Sunderlal Yadav was 56 years of age, having no ailment, who died suddenly due to heart attack.

12. In view of the aforesaid discussion, the decisions relied upon by learned counsel for the appellant, are distinguishable on facts and do not give any help to him.

13. Upon due consideration of the aforesaid and entire evidence available on record, the findings recorded by Courts below regarding due execution and attestation of the will appear to be based on due appreciation of oral and documentary evidence and this Court does not find any illegality in the findings recorded by Courts below.

14. Resultantly, in absence of any substantial question of law, this second appeal fails and is hereby dismissed.

15. However, no order as to costs.

16. Pending application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE

KPS

Date: 2024.03.01 16:47:22 +05'30'