Madhya Pradesh High Court
Brij Kishore vs Mahila Sheela Bai on 22 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:15294
1 SA.No. 937 of 2006
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 22nd OF JULY, 2025
SECOND APPEAL No. 937 of 2006
BRIJ KISHORE AND OTHERS
Versus
MAHILA SHEELA BAI AND OTHERS
Appearance:
Shri Santosh Agrawal- Advocate for appellants.
Shri Aanand Vinod Bhardwaj- Advocate for respondent No.1 to 3.
JUDGMENT
At the outset, it is submitted by Shri Anand Bhardwaj that respondent No.4
has expired about 1-1/2 years ago and the appellant was aware of the death of
respondent No.4 as respondent No.4 is the father of appellant.
Faced with such a situation, counsel for appellant submits that since
respondent No.4 was a formal party, therefore, he may be permitted to delete his
name.
At the risk and cost of the appellant, verbal prayer for deleting the name of
respondent No.4-Kok Singh is hereby accepted.
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Accordingly, necessary amendment be carried out in the array of cause
title, thereby deleting the name of respondent No.4-Kok Singh.
This Second Appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 21.08.2006 passed by I Additional Judge to the Court
of I Additional District Judge, Bhind (M.P.) in Regular Civil Appeal No.5A/2006
and 8A/2006 arising out of the judgment and decree dated 13.12.2005 passed by
Civil Judge Class-I, Mehgaon, District Bhind (M.P.) in Civil Suit No.24-A/2002.
2. The facts, necessary for disposal of present appeal, in short, are that
respondents No.1 to 3 filed a suit for declaration of title and permanent
injunction. According to respondents No.1 to 3, the family tree is as under:
01st Family Tree
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Hkwjs flag ¼QkSr½ eaxy flag ¼QkSr½ y[kir flag ¼QkSr½
HkkxhjFk flag ¼QkSr½ iq= eqdqUnh flag ¼QkSr½ iq= Hkwiflag ¼QkSr½ iq=
fo/kok efg- fxjtkckbZ iq= dksd flag
¼izfr Ø 1½ ¼izfr- Ø- 3½
czTkfd'kksj ¼izfr- Ø- 2½
fo/kok iRuh efgyk ;nqohj flag lR;Hkku flag
'khyk ckbZ
¼oknh Ø-1½ ¼oknh Ø-2½ ¼oknh Ø-3½
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By order dated 14.10.2005, the plaintiff was allowed to amend the family
tree which is as under:
02nd Family Tree
ukekywe
nqxZiky flag eqjyh ¼iq=½ Hkqys ¼iq=½
y[kir flag eaxyflag ¼iq=½ Hkwjs flag ¼iq=½
Hkwi flag eqdUnh flag ¼iq=½ HkkxhjFk flag
fo/kok efgyk 'khyk ckbZ dksd flag ¼iq=½ fo/kok fxjTkk ckbZ
oknh Øekad&1 ¼izfr0 Ø0&3½ ¼izfr0 Ø0&1½
;nqohj flag lR;Hkku
oknh Ø0&2 oknh Ø0&3
However, it is made clear that relationship of parties as mentioned in the
plaint which was based on original family tree was not amended.
3. It is the case of respondents No.1 to 3 that Bhure Singh had expired around
40 years back and Mangal Singh had expired around 38 years back whereas
Lakhpat Singh expired in the month of February, 1986. Bhagirath Singh has
expired on 28.12.1998 whereas Mukundi Singh has expired about six years back
wheres Bhoop Singh (husband and father of respondents No.1 to 3) has expired
about seven years back. It is the case of plaintiffs that about 30 years back
partition had taken place amongst Bhagirath Singh, Mukundi Singh and Lakhpat
Singh and after the partition they were residing separately and were in possession
of the property which fell to their share. In the meanwhile, Mukundi Singh
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executed a sale deed in favour of Bhagirath Singh in respect of his agricultural
land and also executed a sale deed in favour of Layak Singh and Sughar Singh in
respect of residential house. Mukundi Singh thereafter shifted to village
Rawatpura. Bhagirath Singh was issueless and since there was nobody to look
after Bhagirath Singh, therefore, Bhagirath Singh was residing along with his
wife Smt. Girija Devi (defendant No.1) and Lakhpat Singh. Lakhpat Singh and
Bhoop Singh were looking after Bhagirath Singh and with the consent of
Bhagirath Singh they were also cultivating the agricultural land of Bhagirath
Singh. After the death of Bhoop Singh, plaintiff No.1 was looking after
Bhagirath Singh and defendant No.1-Smt. Girija Devi. Bhagirath Singh and
defendant No.1 had made the plaintiff owner and legal representative of their
property. The last rites of Bhagirath Singh were also performed by the plaintiff
and defendant No.1 had also relinquished her title and right in the property in
favour of plaintiff. Defendants No.2 and 3 had also shifted to Rawatpura and they
did not continue with any relationship with Bhagirath Singh and his wife Smt.
Girija Devi. Bhagirath Singh executed a Will on 05.01.1988 in favour of
Brijkishore. However, as Brijkishore and Kok Singh were not looking after
Bhagirath Singh, therefore, Will dated 05.01.1988 executed in favour of
Brijkishore was revoked by Bhagirath Singh on 27.01.1992. After the death of
Bhagirath Singh, the plaintiffs were in exclusive possession of the property in
dispute. It was further claimed that defendant No.1 Girija Devi has also
relinquished/surrendered her rights in favour of the plaintiffs. Defendants No.2
and 3 by projecting themselves to be the legal representatives of Bhagirath Singh
got their names mutated in the revenue records which came in knowledge of
plaintiffs on 07.12.1999. Against the order of mutation, the plaintiffs have
preferred an appeal which is pending before the court of SDO, Mehgaon. On
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28.03.2002, when the plaintiff went to cut the standing crop, then defendants
No.2 and 3 obstructed the plaintiff from harvesting the standing crop and started
claiming title over the land in dispute and stated that since the mutation has been
done in their favour, therefore, they would alienate the property and dispossess
the plaintiffs. Accordingly, the suit was filed for declaration that the plaintiffs are
the owner and in possession of the property which fell to the share of Bhagirath
Singh and defendants No.2 and 3 be restrained permanently from interfering with
the peaceful possession of the plaintiffs as well as from creating third party right
and interest.
4. Defendants filed their written statement and denied the plaint averments. It
was admitted that property belonged to Bhagirath and it was also admitted that
Bhagirath Singh has expired issueless. It was claimed that Girija Devi has been
wrongly projected as widow of Bhagirath Singh. It was claimed that Girija Devi
is not the widow of Bhagirath Singh. It was claimed that a wrong family tree has
been projected by the plaintiffs and Mangal Singh as well as Lakhpat Singh have
no relation with Bhagirath Singh. Mukundi had got the property from his in-laws,
therefore, he had executed a registered sale deed in favour of Bhagirath Singh but
it was denied that residential house was ever alienated by Mukundi in favour of
anybody else. It was further claimed that Bhagirath Singh was cultivating the
land on his own and defendants No.2 and 3 were helping Bhagirath Singh in
cultivating the land. Bhagirath Singh had alienated some part of his land to
Brijkishore by registered sale deed and defendant No.2-Brijkishore was kept and
looked after by Bhagirath Singh and his marriage was also performed by
Bhagirath Singh. Defendant No.2 was looking after the agricultural lands of
Bhagirath Singh and last rites of Bhagirath Singh were also performed by
defendant No.2. Bhagirath Singh had executed a Will in favour of defendant
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No.2 Brijkishore. The property in dispute is in continuous possession of
defendant No.2 from the lifetime of Bhagirath Singh.
5. The Trial Court, after framing issues and recording evidence, held that the
plaintiffs are not the legal representatives of Bhagirath. It was also held that the
Will executed by Bhagirath in favour of Brijkishore on 06.01.1988 was the
outcome of the fraud played by defendants No.2 and 3. It was also found proved
that later on Bhagirath had cancelled the Will dated 06.01.1988 which was earlier
executed in favour of defendant No.2. It was also held that Girija Devi is the
widow of Bhagirath being his second wife. It was also held that Bhagirath had
executed a sale deed in respect of same part of his land in favour of defendant
No.2-Brijkishore. It was also held that the plaintiffs are in possession of the
property in dispute and the suit was held to be maintainable.
6. Being aggrieved by judgment and decree passed by the Trial Court, Smt.
Girija Devi preferred Regular Civil Appeal No.5A/2006 whereas Kok Singh and
Brijkishore Singh preferred Regular Civil Appeal No.8A/2006. By the impugned
judgment and decree dated 21.08.2006 passed by I Additional Judge to the Court
of I Additional District Judge, Bhind (M.P.) dismissed both the appeals.
7. Present appeal has been filed by Brijkishore and Smt. Girija Devi.
8. Smt. Girija Devi has expired during pendency of this appeal. Admittedly,
Bhagirath Singh was issueless and even Smt. Girija Devi who was widow of
Bhagirath Singh was also issueless, therefore, as per the provisions of Section 15
of Hindu Succession Act, the property left by Smt. Girija Devi would devolve
upon the legal representatives of her husband. Plaintiffs as well as Brijkishore
would get the property being representatives of family of Mukundi Singh and
Lakhpat Singh who were the brothers of Bhagirath Singh.
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9. Although the courts below have given a concurrent finding of fact that the
appellants Brijkishore and Smt. Girija Devi are not in possession of the property
in dispute but on account of change in circumstances due to death of Smt. Girija
Devi, now, all the parties can be treated as co-owner having equal share by virtue
of Section 15 of Hindu Succession Act. The name of Smt. Girija Devi was
deleted by appellant on the strength of Will executed by Smt. Girija Devi.
Whether Smt. Girija Devi had executed any Will in favour of appellant No.1 or
not is yet to be proved by appellant No.1 by filing properly constituted civil suit.
If the Will is proved, then Brijkishore would get entire property left by Smt.
Girija Devi and if it is not proved then respondents No.1 to 3 as well as appellant
No.1 would get equal share in the property as per Section 15 of Hindu
Succession Act.
10. Under these circumstances, this Court is of considered opinion that in view
of changed circumstances on account of death of Smt. Girija Devi who was
admittedly the owner of the property in dispute, this Court is of considered
opinion that no useful purpose would be served by deciding this appeal on
merits.
11. Accordingly, this appeal is dismissed with liberty to appellant No.1 that if
so desires then he may file a civil suit for declaration of his title on the basis of
Will/Succession. So far as the question of possession is concerned, that is kept
open and shall be decided in the light of the rights of the parties which may
accrue to them in the light of Section 15 of Hindu Succession Act.
Without disturbing the findings which have already been recorded by the
court below with regard to possession, it is observed that in case if suit is filed by
appellant No.1- Brijkishore, then finding with regard to possession will not come
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in way of Trial Court and the rights and possession of the parties shall be decided
in accordance with provision of Section 15 of Hindu Succession Act.
12. With aforesaid observation, the appeal is finally disposed of.
(G.S. Ahluwalia)
Judge
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