Madhya Pradesh High Court
Jitendra Esai vs Anupam Esai on 12 June, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1 SA-532-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
SA No. 532 of 2025
(JITENDRA ESAI AND OTHERS Vs ANUPAM ESAI AND OTHERS )
Dated : 12-06-2025
Shri Ashish Vishwakarma - Advocate for the appellants.
Shri Anupam Chaturvedi - Advocate for the respondent No.3.
This appeal is filed by the appellants/ defendants. In
R.C.S./A/1200101/2016 (Anupam Esai and another Vs. Jitendra Esai and
others), learned Civil Judge (Junior Division) vide judgment and decree
dated 30.06.2022 for the suit property situated in village Bagthari Patti,
Tahsil Khurai, District Sagar as mentioned in detail in paragraph 1 of the
judgment for declaration of title and for getting name recorded in revenue
record on the basis of Will dated 29.12.2008 was decreed in favour of the
plaintiffs/ respondents.
On an appeal by the defendants, learned First Appellate Court in
Regular Civil Appeal No. 17/2022 vide judgment and decree dated
13.12.2024 dismissed the appeal.
It was submitted that Will Ex. P/2 is not proved on the basis of
evidence of P.W.2 Raghunath and P.W.4 Bhavsingh who did not support the
Will. It was further contended that late Johnson Esai could not have executed
the Will because the disputed land was ancestral land and not self earned
property.
Considered the arguments and perused the record.
After considering the arguments as mentioned above and looking to
2 SA-532-2025
the fact that prima facie it is not disputed by any party that the parties are
Christians but the learned trial Court has mentioned in paragraph 19 of
judgment that plaintiffs have not pleaded that they are not Muslim, Christian,
Parsi or Jew, therefore, they would be governed by Section 2 of the Hindu
Succession Act, 1956 as held in the judgment of Shyamlal Vs. Sanjiv
Kumar; (2009) 12 S.C.C. 454 but each case has its own set of facts and slight
change in fact changes the precedent value of a case. In this case, while
plaintiff in the cause-title have declared themselves as Christian and even in
Will Ex. P/1 exhibited by P.W.2 on 22.03.2024 names are of Christian origin
and religion has been mentioned as Esai (Christain), therefore, prima-facie it
cannot be said that they are governed by Hindu Law because in the Hindu
Succession Act, 1956, Sections 2(b) and 2(c) it is mentioned that this Act
applied to any person who is a Hindu, Buddhist, Jain or Sikh but not to any
person who is a Muslim, Christian, Parsi or Jew and in Indian Succession
Act,1925 there are provisions regarding the Will.
Sections 2(b) and 2(c) of the Hindu Succession Act are reproduced below
:-
" 2 Application of Act - (1) This Act applies -
(a) ***
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by
religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been
3 SA-532-2025
passed."
In view of the aforesaid and the fact that facts in the case of Shyamlal
(Supra) are different, this appeal is admitted on the following substantial
questions of law :-
" (1) Whether the parties to the Will regarding Will would be
governed by Hindu Succession Act, 1956 or by the Indian Succession Act,
1925 ?
(2) Whether the Will dated 29.12.2008 is proved as genuine Will as
per law applicable to the parties ?"
On payment of P.F. within 7 working days, issue notice to respondents
No. 1 and 2.
Till the next date of hearing both the parties shall maintain status quo as
on today in respect of the suit property.
List the case for final hearing in due course.
(AVANINDRA KUMAR SINGH)
V. JUDGE
VSG
