Madhya Pradesh High Court
Dulichand @ Dilip vs Badrilal on 2 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 2 nd OF APRIL, 2025
SECOND APPEAL No. 1590 of 2021
DULICHAND @ DILIP AND OTHERS
Versus
BADRILAL AND OTHERS
Appearance:
Shri Shyam Singh Tanwar - Advocate for the appellants.
Shri Mangesh Bhachawat, Advocate (through VC) and Sajid Iqbal
Ansari - Advocate for respondent No.1.
JUDGMENT
This second appeal has been filed by the appellants i.e. plaintiff
No.1/Dulichand and defendant No.4/Shantibai against the judgment dated
17.08.2021 passed by the Second District Judge, Garoth, District Mandsaur
whereby the findings recorded by the Civil Judge Class - I, Garoth, District
Mandsaru in Civil Suit No. 24A/2014 in judgment and decree dated 31.08.2015
in respect of issue No. 2 has been reversed.
Facts of the case in brief are as under :
2. Dulichand & Nandkishor (plaintiffs) and Badrilal, Indarmal,
Satyanarayan and Shantibai (defendants No.1 to 4) are real brothers and sister.
Till 1983-84 during the lifetime of their father Surajmal, there family was a Joint
Hindu Family. From the joint family income, defendants No. 1 to 3 purchased
land bearing Survey Nos. 590/1/2 and 504 situated at Shamgarh, District
Mandsaur in the name of their mother Nandubai vide registered sale deed dated
29.07.1982. When Surajmal fell ill, part of the house was sold to Rajkumari by
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Nandubai-mother of the plaintiffs and defendants to meet the medical expenses.
According to the plaintiffs, defendant No. 1 with an intention of seizing the suit
property, prepared forged Will dated 08.03.2010 which gave rise to cause of
action for the plaintiffs to file a civil suit. In the said civil suit, only Badrilal was
served and contested. Remaining three defendants - Indarmal, Satyanarayan and
Shantibai remained ex-parte. Vide judgment dated 31.08.2015, only the issue No.
2 has been answered in favour of the plaintiffs that the sale deed dated 08.03.2010
is forged and illegal.
3. Being aggrieved by the aforesaid judgment and decree, Badrilal
(defendant No.1) preferred a first appeal (Civil Appeal No. 49-A/2018). In the
said first appeal only Dulichand (plaintiff No.1) was served and the remaining
defendants were proceeded ex-parte. However, they were served by way of
publication in the newspaper. Vide impugned judgment dated 17.08.2021,
learned Second District Judge has reversed the finding on Issue No.2 and held that
the sale deed dated 08.03.2010 is valid and upheld the remaining part of the
judgment and decree dated 31.08.2015. Hence, this second appeal before this
Court.
4. The appellants have preferred this second appeal inter alia challenging
the judgment dated 17.08.2021 on the ground that Nandkishor (plaintiff No. 2)
had expired on 07.05.2021 and Indarmal (defendant No.2) had expired on
22.10.2020. Therefore, the judgment dated 17.08.2021 which has been passed
after their death and without bringing their legal heirs on record, is a nullity.
5. Vide order dated 21.04.2022, this appeal has been admitted on the
following substantial question of law :
''(1) या अ पलीय यायालय ारा पा रत आदे श जो क ितवाद मांक २ एवम ४ क मृ यु
पशचात मृत य पर पा रत ड होकर थर रखने यो य है ?
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(2) या, अ वभ जत स प क विसयत स प के अ य हकदरो पर बंधनकार है ?
(3) या, स प क ोत बताये बगैर अ जत स प क वसीयत विध स मत है एवम उ
वसीयत स प के अ य हकदारो पर भी बंधनकार है ? ''
6. This Court is required to firstly deal with question of law No.1 and if
this question is answered in favour of the appellant, then the appeal is liable to be
allowed and matter be remanded back to the first appellate Court for fresh
adjudication.
7. Shri Bachawat, learned counsel appearing for respondent No.1-Badrilal
submits that even if Nandkishor (plaintiff No. 2) had expired during pendency of
the first appeal, his legal heirs were not required to be brought on record as per
provisions of sub-rule (4) of Order 22 of Rule 44, as he was proceeded ex-parte.
Similarly, legal heirs of Indarmal were not liable to be brought on record he was
also ex-parte before the civil court as well as the first appellate court.
8. In support of his contention, Shri Bachawat, learned counsel for
respondent No.1 has placed reliance on the judgment passed by the Madras High
Court in case of Thamarapalli Suryanarayana Rao vs. Gopavajihala Joga Rao,
reported in AIR 1930 Madras 719 wherein it has been held that the appellant is
not entitled to claim rehearing of the appeal on the account of death of
respondent/plaintiff.
9. I have heard learned counsel for the parties and perused the record of
first appellate court wherein the notices were issued to respondents No. 1 to 5 out
of which respondents No. 1 and 2 are the plaintiffs. Badrilal filed first appeal by
impleading his own brothers and sister as respondents. Notices were issued but
returned unserved with the noting that they are not available in the given address.
Therefore, respondents were served by way of paper publication. Thereafter,
respondents No. 2 to 5 in the first appeal were proceeded ex-parte. It is pertinent
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to note that all the parties are real brothers and sister. Even if the respondents were
not served, appellant must have knowledge about the death of his own brothers
and the names of their legal heirs. Therefore, he ought to have informed the court
in that regard. Defendant No.1-Badrilal, due to malafide did not inform the court
about death of his brothers and also did not to bring LRs on record. Out of two
plaintiffs, only one was served before the first appellate court. Consequently, the
decree in favour of plaintiff No.2-Nandkishor has been set aside without
impleading his legal heirs. Hence, the impugned judgment dated 17.08.2021,
being null and void is liable to be set aside.
10. So far as the judgment in case of Thamarapalli Suryanarayan (supra)
is concerned on which Shri Bachawat, learned counsel has placed heavy reliance,
the facts of the case are entirely different from that of the present case. In the
aforesaid case, the appellant argued before the Madras High Court that the
impugned judgment passed by the District Judge be set aside on the ground that
when the judgment was passed, the plaintiff had already expired. The High Court
has rejected such plea by observing that the appellant before the High Court was
appellant before the District Court in first appeal and whose appeal was dismissed
despite the fact that the plaintiff was no more. Hence, the Court observed that at
the instance of the appellant matter cannot be remanded back to the first appellate
court as no prejudice was caused to the legal heirs of the deceased.
11. Contrary to the aforesaid, in the present case prejudice has been
caused to the legal heirs of deceased Nandkishor as the decree in his favour has
been set aside without bringing them on record of first appeal. He was not served
since he had expired, therefore, the provisions of sub-rule (4) of Order 22 Rule 4
of the CPC will also not apply, dead person cannot be proceeded ex-parte.
11. Considering the aforesaid facts and circumstances, the question of law
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No.1 is answered in favour of the appellant. The other two question of law are not
liable to be answered at this stage. The judgment dated 17.08.2021 passed by the
Second District Judge, Garoth, District Mandsaur is hereby set aside. Civil
Appeal No. 49-A/2018 is restored to its original number with cost of Rs. 10,000/-
on the respondent-Badrilal which shall be payable to the present appellants. The
civil appeal shall be proceed with only after deposit of cost of Rs. 10,000/- by
respondent-Badrilal before the first appellate court.
With the aforesaid direction, the second appeal stands disposed of.
(VIVEK RUSIA)
JUDGE
vidya
