Madhya Pradesh High Court
Dhirendrasingh vs Haresingh on 4 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:3355
1 SA-1010-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4 th OF FEBRUARY, 2025
SECOND APPEAL No. 1010 of 2022
DHIRENDRASINGH
Versus
HARESINGH AND OTHERS
Appearance:
Shri Rajeev Bhatjiwale, learned counsel for the appellant.
Shri J.B. Mehta, learned counsel for respondents.
ORDER
1. Learned counsel for the appellant is heard on the question of
admission.
2. This appeal under Section 100 of the CPC has been preferred by
the plaintiff/appellant being aggrieved by the judgment and decree passed by
the Courts below whereby his claim for declaration of title and permanent
injunction with respect to the suit lands has been dismissed.
3. As per the plaintiff, Bhanwarsingh was the owner of the suit
lands. By a registered will dated 18.06.2009 he bequeathed a substantial part
of the same in his favour. Under the will the suit lands were also given to the
other defendants. However after death of Bhanwarsingh his mutation over
the suit lands was denied on the basis of objection raised by the defendants
which has necessitated filing of the suit.
4. The defence of the defendants was that Bhanwarsingh had no right
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to execute any will with respect to the suit lands. In any case no such will
was executed by him. The will as set up by the plaintiff is forged and
fabricated.
5. The Courts below have dismissed the plaintiff's claim by holding
that due execution and attestation of the will dated 18.06.2009 allegedly
executed by Bhanwarsingh in his favour has not been proved as required
under Section 63 (c) of the Indian Succession Act. No attesting witness to
the will has been examined by the plaintiff. Since the will had been disputed
by the defendants it was imperative for the plaintiff to have examined its
attesting witnesses in absence of which the same cannot be held proved.
6. Learned counsel for the plaintiff has submitted that the Courts
below have erred in dismissing the plaintiff's claim by holding that the will
has not been proved. Before the trial Court affidavit in evidence of witness
Goresingh was filed on 28.10.2015. However, he was won over by the
defendants and did not appear to give his evidence. The other witness
Sohanlal had already died in the year 2013, hence could not have appeared.
Before the lower appellate Court an application under Order 41 Rule 27 of
the CPC was preferred for taking on record the affidavit in evidence of
Jitendra son of Sohanlal for the purpose of proving his handwriting. Another
application under Order 41 Rule 27 of the CPC was filed for taking on
record the Death Certificate of Goresingh to show that he has expired on
28.01.2022. Both the aforesaid applications have been illegally rejected by
the lower appellate Court. The same in the facts and circumstances of the
case deserved to be allowed. In rejecting the same great prejudice has been
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caused to the plaintiff in view of which the judgment and decree passed by
the Courts below deserve to be set aside.
7. I have considered the submissions of the learned counsel for the
plaintiff and have perused the record.
8. Will is required to be proved in accordance with the provisions of
Section 63 (c) of the Indian Succession Act by examination of at least one of
its attesting witness. If the witnesses are no more then their handwriting on
the will can be proved in accordance with the provisions of the Indian
Evidence Act. As per the plaintiff himself, Sohanlal had died in the year
2013 i.e. much prior to the date of institution of the suit itself. However no
steps were taken by plaintiff during the trial for the purpose of proving that
the signatures on the will dated 18.06.2009 are of Sohanlal. It was very well
open for the plaintiff to have adopted such a course but the same was not
done. It is not the case where plaintiff was not aware of his death as in the
application under Order 41 Rule 27 of the CPC filed before the appellate
Court he has not stated that he was not so aware. Having failed to prove
handwriting of Sohanlal on the will, by merely filing of application under
Order 41 Rule 27 of the CPC before the appellate Court the said defect could
not have been cured. The appellate Court has hence rightly rejected the said
application.
9. Before the trial Court affidavit in evidence of Goresingh was filed
by the plaintiff on 28.10.2015. However he did not appear for the purpose of
his cross-examination. The said affidavit is hence meaningless. Though it is
contended by the plaintiff that Goresingh was won over by the defendants
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but from a perusal of the entire order-sheets of the trial Court it is seen that
no steps were ever taken by the plaintiff for issuance of any summons to him
to appear in the Court and tender his evidence. Such a course was very well
available with the plaintiff but he did not choose to adopt the same. Thus for
non-appearance of Goresingh during trial and plaintiff not taking any steps
for summoning him, it cannot be held that the trial Court in any manner erred
in disbelieving the will. In such circumstances the appellate Court has not
committed any error in rejecting the application under Order 41 Rule 27 of
the CPC filed by the plaintiff for taking the death certificate of Goresingh on
record which was in any case hardly of any significance.
10. From the entire evidence available on record it is evident that
plaintiff has failed to prove the due execution and attestation of the will
dated 18.06.2009 allegedly executed by Bhanwarsingh in accordance with
law. The Courts below have hence not committed any error of law in not
acting upon the will and finding the same not to have been proved. No
illegality has been committed by the Courts below in dismissing the claim of
plaintiff. No illegality or perversity has been pointed out in their judgments.
Thus affirming the judgment and decree passed by the Courts below the
appeal stands dismissed in limine.
(PRANAY VERMA)
JUDGE
ns
