Madhya Pradesh High Court
Swami Datt Pyasi vs Smt. Vidya Bai on 17 June, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
FA.No.468/2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 17th OF JUNE, 2025
FIRST APPEAL NO.468/2014
SWAMI DATT PYASI AND OTHERS
VS.
SMT.VIDYA BAI AND OTHERS
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Appearance:
Shri Anuj Agrawal - Advocate and Ms. Ankita Singh Parihar - Advocate for the
appellants.
Shri R.P. Khare - Advocate for respondent No.7.
None for respondent Nos. 1 to 6.
................................................................................................................................................
Reserved on : 23.04.2025
Pronounced on : 17.06.2025
ORDER
On 08.02.2023, at the request of counsel for the parties, this case
was listed for final hearing under the caption 'Top of the List' on
16.02.2023. On 16.02.2023, nobody appeared for the parties and,
therefore, the case was adjourned for 22.02.2023 for final hearing.
Again on 27.07.2023, the matter was taken up for hearing but it got
adjourned on the request made by counsel for the appellant and
thereafter the Court, considering the fact that the appeal is nine years
old, adjourned the case with a direction that on the next date, it would be
argued finally. On 17.08.2023, on behalf of the respondents, an
application was filed for change of counsel and Shri Shriniwas Tiwari
appeared on behalf of the respondents as the changed counsel and the
case was fixed for 20.12.2023. On 21.09.2024, an application for urgent
hearing was considered and the Court was pleased to direct for listing
the case in the following week. On 28.02.2025, at the request of counsel
for the appellants, the case was directed to be listed for final hearing on
05.03.2025 under the caption 'Top of List' and finally on 23.04.2025,
with the consent of counsel for the parties, the case was finally heard.
2. This first appeal under Section 96 of the Code of Civil Procedure
has been filed by the plaintiffs/appellants challenging the impugned
judgment and decree dated 17.04.2014 passed by the Third Additional
District Judge, Jabalpur in Civil Suit No.84/09 (Swami Datt Pyasi and
others Vs. Smt.Vidya Bai and others) whereby the trial Court had
dismissed the suit.
3. As per facts of the case, the plaintiffs/appellants filed a suit for
declaration of title on the basis of 'Will' dated 28.10.1987 (Exhibit P/1)
and also seeking permanent injunction and removal of encroachment
over the suit land. However, the plaintiffs had also sought a declaration
that the settlement-deed dated 21.08.2007 was executed by Smt. Vidya
Bai (defendant No.1) in favour of her son namely Praveen Pyasi in
respect of land ad-measuring 800 sq. ft. and marked as 'A', 'B', 'C' and
'D' with red colour in the plaint map be declared as null and void. As
per the plaintiffs, this land in fact belonged to Dinesh Datt Pyasi.
4. As per the averments made in the plaint, late Bhaiyalal Pyasi had
three sons namely Chhedilal Pyasi, Ram Datt Pyasi and Sarmanlal
Pyasi. Bhaiyalal and his wife Smt. Meera Bai @ Revti Bai died in the
year 1962 and 1972 respectively. Upon their demise, an oral partition
took place amongst their sons in the year 1980 and each son took
possession over their respective share. The genealogy of late Bhaiyalal
Pyasi so as to make further facts convenient is as under:-
Bhiayalal Pyasi (Dead)
= Smt. Meerabai alias Revti Bai (Dead)
Chedilal Ram Datt Pyasi (Dead) Sharmanlal Pyasi (Dead)
(Died 1988) = Sukhrani Pyasi (Dead) = Rajkumari Bai (Dead)==
=Todalbai (Dead)
(Issueless)
Brahma Datt Pyasi Ravishankar Pyasi
(Died 20.02.2001) (Defendant No.7)
=Smt. Vidhya Bai
(Defendant No.1)
Praveen Kumar Sudhir Kumar Harish Kumar Ashish Pyasi Sourabh Pyasi
(Defendant No.2) (Defendant No.3) (Defendant No.4) (Defendant No.5) (Defendant No.6)
Rudra Datt Swami Datt Pyasi Dinesh Datt Pyasi Umesh Datt Vishnu Datt Umakant Rajendra
(Missing) (Plaintiff No.1) (Plaintiff No.2) (Dead) (Plaintiff No.3) (Plaintiff No.4) (Dead)
5. Chhedilal Pyasi, the eldest son of Bhaiyalal Pyasi married with
Todal Bai in the year 1987 and both died issueless. During his lifetime
Chhedilal Pyasi executed a Will on 28.10.1987 in favour of children of
Sarmanlal Pyasi in presence of Shiv Kumar Choubey and Pramod
Kumar Shukla who were the attesting witnesses of the Will dated
28.10.1987. Chhedilal died in the year 1988.
6. On 21.08.2007, Smt. Vidya Bai (defendant No.1) executed a
settlement-deed in favour of her sons purporting to convey more
property than she was entitled to under the partition. On the basis of the
said partition and settlement-deed dated 21.08.2007, the defendants
raised construction over the said land and, therefore, the plaintiffs filed
the instant suit.
7. Defendant No.7 Ravi Shankar Pyasi and his legal heirs supported
the claim of the plaintiffs and admitted their claim. Although,
defendants No.1 to 6 who were the attesting witnesses filed their
written-statement denying the claim of the plaintiffs and also stated that
no partition ever took place among Chhedilal Pyasi, Ram Datt Pyasi and
Sarmanlal Pyasi. It was also denied that Ram Datt Pyasi separated
himself with Chhedilal Pyasi and Sarmanlal Pyasi by taking 1/3 rd share
in the property. It was also denied that Chhedilal Pyasi ever resided with
his brother Sarmanlal Pyasi but sons of Sarmanlal Pyasi tried to grab the
property of Chhedilal Pyasi claiming themselves to be the adopted sons
and also claimed that Chhedilal Pyasi was their guardian. It is also stated
in the written-statement that sons of Sarmanlal Pyasi with their power
forcibly possessed the property of Chhedilal Pyasi and also of the
defendants. It is also stated that the plaintiffs have filed a suit with
collusion of defendant No.7. The Will dated 28.10.2007 was never
executed and it is a fabricated one.
8. The trial Court after considering the pleadings made by counsel
for the parties framed as many as 12 issues but the basic issue which
was framed by the trial Court i.e. issue No.3 is relating to execution of
the Will dated 28.10.1987 on the basis of which plaintiffs claimed their
title. The other issue is with regard to the fact whether any partition took
place among Chhedilal Pyasi, Ram Datt Pyasi and Sarmanlal Pyasi.
9. I have perused the impugned judgment and also the record of the
trial Court.
10. Although, the suit has been dismissed by the trial Court holding
the issue No.3 in negative manner and observed that the Will dated
28.10.1987 was not executed and the plaintiffs have failed to prove the
Will (Exhibit P/1) as per the requirement of Section 63 of the Indian
Succession Act.
11. In my opinion, the remaining facts and issues are related to the
Will and based upon the recital of the Will and if it is found that the Will
has been executed and validly proved by the plaintiffs, then remaining
issues based upon the said fact can be decided accordingly. Thus, this
Court is required to see as to whether the trial Court's finding with
regard to issue No.3 and about validity of Will as also its execution, are
proper or not.
12. The trial Court has dealt with the issue with regard to validity of
the Will (issue no.3) in paragraph 16 onward. The trial Court in
paragraph-17 of its judgment had considered the recital of the Will and
also considered the statement of Swami Datt Pyasi (PW-1), who has
stated that his father namely Chhedilal Pyasi, in his life time, has
executed a Will dated 28.10.1987 (Exhibit P/1) before the witnesses
namely Shiv Kumar Choubey and Pramod Kumar Shukla and after his
death, the property of Chhedilal Pyasi came in favour of his nephew
Rudra Datt, Swami Datt, Umesh, Dinesh, Vishnu, Umakant and
Rajendra. In paragraph- 20, it has been further observed by the trial
Court that the requirement of Section 63 of the Indian Succession Act,
1925 has to be seen and if it is fulfilled then only the document can be
considered to be a Will. In paragraph-23 of the impugned judgment, it is
observed by the trial Court that the Will is required to be proved by a
person claiming right by virtue of the same and onus lies upon him to
prove the same whereas in paragraph-24, the trial Court has discussed
the statement of witnesses came in the witness box during the trial but in
paragraph-27 finally it is observed that the procedure prescribed under
Section 63 of the Indian Succession Act and its requirement for proving
the Will have not been fulfilled and, therefore, it is observed by the trial
Court that the plaintiffs by adducing evidence, failed to prove that any
Will was executed by Chhedilal Pyasi on 28.10.1987.
13. Now, this Court is required to see whether on the basis of material
available and evidence adduced by the parties, the finding given by the
trial Court can be given a seal of approval or not.
14. On perusal of statement of Swami Datt Pyasi (PW-1), it is clear
that he has stated everything in his statement and also about execution
of Will by Chhedilal Pyasi. As per the genealogy of Bhaiyal Pyasi,
Swami Datt Pyasi was the son of Sarmanlal Pyasi, who in turn was the
brother of Chhedilal. Swami Datt Pyasi even in his cross-examination
has identified the signature of his uncle Chhedilal Pyasi and Exhibit P/1
contained his signature and also produced other documents i.e Exhibit
P/4, the joint account which was jointly in the name of Chhedilal Pyasi
and Swami Datt Pyasi. Other documents i.e. Exhibit P/2 and P/3 are the
revenue records in which Chhedilal Pyasi was shown to be a bali of his
own property as well as the property belonging to Sarmanlal Pyasi and
as such, their stand was that Chhedilal Pyasi was the 'Karta' of the
property belonging to him and Sarmanlal Pyasi because after the death
of Bhaiyalal Pyasi, Ram Datt Pyasi had taken his share and separated
himself from Chhedilal Pyasi and Sarmanlal Pyasi. In the cross-
examination, he has also identified the signatures of Shiv Kumar
Choubey and Pramod Kumar Shukla who were the attesting witnesses
of Exhibit P/1. He has also stated that one of the witnesses namely Shiv
Kumar Choubey died 10 to 12 years back and the witness namely
Pramod Kumar Shukla was alive but he lost his eye sight and he was
consistent with regard to the statement made in examination-in-chief
also in regard to the documents produced. From the cross-examination
of PW-1, it is clear that there was no effective cross-examination with
regard to the document (Exhibit P/1) the Will dated 28.10.1987.
15. I have also seen the cross-examination. Even no suggestion was
made by counsel for the defendants that the Will dated 28.10.1987
(Exhibit P/1) is a fabricated document and it is also not suggested that
the said document was never executed by Chhedilal.
16. Likewise, Shailesh Choubey (PW-2) the son of Shiv Kumar
Choubey who was one of the witnesses of Exhibit P/1 got examined. In
his affidavit filed under Order 8 rule 4 of CPC, he has very categorically
stated that he could identify the signature of his father and after
examining Exhibit P/1 when it was asked whether the signature of Shiv
Kumar Choubey at page 3 of Exhibit P/1 from 'B to B' is the signature
of his father then he approved that it was his father's signature. In the
cross-examination, he has never suggested that he could not identify the
signature of his father. It is also not suggested that Exhibit P/1 did not
contain the signature of Shiv Kumar Choubey, the father of the witness.
Thus, I am sure that there was no effective cross-examination on behalf
of the defendants with regard to validity of Exhibit P/1.
17. Thereafter, Pramod Kumar Shukla has also given an affidavit
under Order 18 Rule 16 of CPC in which he has stated that the Will
dated 28.10.1987 was prepared before him and Chhedilal Pyasi signed
the same in his presence. He was one of the witnesses of Exhibit P/1 and
that Will was handed over to his nephew Rudra Datt Pyasi. It is also
stated in the affidavit that at the time of execution of the Will, Chhedial
Pyasi was physically and mentally sound. He has also stated that on
31.12.1991 the said Will got registered in the office of Sub-Registrar,
Jabalpur after verifying his signature and also the signature of Shiv
Kumar Choubey.
18. The defendants never asked for any cross-examination and as
such, no cross-examination was done but in view of the provisions of
Order 18 Rule 6 of CPC, that statement can be considered. Looking to
the statement of witnesses and as per the requirement of Section 63 of
the Indian Succession Act, 1923, it is relevant to quote Section 63 which
reads as under:-
"63. Execution of unprivileged Wills.--
Every testator, not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed or engaged, or a
mariner at sea, shall execute his Will according to the following rules:
--
(a)The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
(b)The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a
Will.
(c)The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or the
signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary.
In view of the aforesaid requirement, I am surprised as to why and how
the trial Court had not considered Exhibit P/1 as a Will. The same has
been signed by two witnesses. Shri Pramod Kumar Choubey was alive
and in his affidavit under Order 18 Rule 16 of CPC, he has very
categorically stated that Chhedilal Pyasi has signed the Will before him
and also before Shiv Kumar Choubey and the said Will got registered in
the office of Sub-Registrar, Jabalpur after verifying their signatures over
the said document by the Registrar and, therefore, the observation made
by the trial Court and the finding given thereof in respect of not signing
the document (Exhibit P/1), in my opinion, is illegal, contrary to law and
not sustainable and as such deserves to be set aside.
19. The Supreme Court in case of Muddasani Venkata Narsaiah
(Dead) through legal representatives Vs. Muddasani Sarojana
reported in 2016(12) SCC 288 has considered the fact in respect of a
registered document and observed as under:-
"15. Moreover, there was no effective cross-examination made on the
plaintiff's witnesses with respect to factum of execution of sale deed,
PW 1 and PW 2 have not been cross-examined as to factum of
execution of sale deed. The cross-examination is a matter of
substance not of procedure one is required to put one's own version in
cross-examination of opponent. The effect of non-cross-examination
is that the statement of witness has not been disputed. The effect of
not cross-examining the witnesses has been considered by this Court
in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath
Bhagat, AIR 1963 SC 1906]. This Court repelled a submission on the
ground that the same was not put either to the witnesses or suggested
before the courts below. Party is required to put his version to the
witness. If no such questions are put the Court would presume that the
witness account has been accepted as held in Chuni Lal Dwarka Nath
v. Hartford Fire Insurance Co. Ltd. [Chuni Lal Dwarka Nath v.
Hartford Fire Insurance Co. Ltd., 1957 SCC OnLine P&H 177 : AIR
1958 P&H 440]"
20. Further, in case of Kuwarlal Amritlal Vs. Rekhlal Koduram
and others reported in 1949 SCC OnLine MP 35, the Division Bench
of Nagpur High Court has considered when execution of document was
specifically denied in the written-statement, then, it was necessary in the
case to call one of the attesting witnesses to prove the execution but in
cross-examination if attestation is not specifically challenged then it
would be presumed that the document has been proved. The observation
made by the Division Bench in the said case reads as under:-
"6. The execution of the document was specifically denied in the
written statement, therefore it was necessary in this case to call one of
the attesting witnesses to prove the execution. But that has been done.
P.W. 1 is one of those witnesses. He has been called and he states that
the document was attested by Suganmal and himself and that the
mortgagor was present when they both attested the deed. It was
argued that this is not sufficient to prove execution as required by S.
68 because when a witness is required to prove due execution he must
set forth each of the details of attestation as required by Section 3 of
the Transfer of Property Act. It is not enough to say that the document
was attested and executed. With this we cannot agree.
7. When attestation is not specifically challenged and when a witness
is not cross-examined regarding the details of the attestation it is
sufficient for him to say that it was attested by the other witness and
himself. That is enough to prove the attestation. The law will then,
assume that when the witness swears that it was attested the witness
means by that 'attested according to the forms required by law.' If the
other side wants to challenge that statement it is their duty, quite apart
from raising it in the pleadings, to cross-examine the witness along
those lines. As that was not done here the plaintiffs were entitled to
assume that the mode of attestation was not being attacked and there,
fore that it was enough for their witness merely formally to prove
attestation. Sarkar in his Law of Evidence (Edn. 7, p. 651) quotes
Brahmadat Tewari v. Chaudan Bibi, 20 C.W.N. 192 : (A.I.R. (3) 1916
Cal. 374) where it is said that when a will has been proved to have
been duly executed in the presence of witnesses the presumption is
that the requirements of the law of attestation were satisfied. Later he
refers to a Privy Council ruling in Kundan Lal v. Mt. Musharrafi
Begam, 63 I.A. 326 : (A.I.R. (23) 1936 P.C. 207) in support of the
view that;
"Where execution was admitted but it was never suggested at
the trial Court that the attesting witnesses had not signed in the
presence of the executant, such a contention cannot be
reasonably raised before the appellate Court."
8. Of course execution was not admitted in the written statement but it
was proved and, as we have Slid, the fact of execution, meaning
thereby the signing of the document by the mortgagor, has not been
challenged before us. The only point argued is that it was not duly
attested. In the circumstances set out above and on the evidence of
P.W. 1, particularly as he says that the mortgagor was present when
both he and the other attesting witness attested the deed, we agree
with the lower Court and hold that the document was validly
attested."
21. In view of the aforesaid enunciation of law, it is clear that the trial
Court has given an erroneous finding in respect of execution of Will
(Exhibit P/1) dated 28.10.1987 and the said finding is not only contrary
to law but also perverse. Therefore, the said finding is set aside.
Accordingly, the other claim of the plaintiffs which is based upon the
document (Exhibit P/1) are also sustained and as such, the suit deserves
to be decreed accordingly. From the recital of Exhibit P/1, it is clear that
Chhedilal Pyasi has clarified the-then status of the property and also
clarified that the property after the death of his father Bhaiyalal Pyasi
has been devolved in three brothers but Ram Datt Pyasi has taken his
share and separated himself and, therefore, share of Chhedilal Pyasi and
Sarmanlal Pyasi, who were residing together, after the death of issueless
Chhedilal Pyasi, the Will executed by him in his lifetime shall be
inherited by the son of Sarmanlal Pyasi in whose favour the Will was
executed.
22. Resultantly, the appeal is allowed. The impugned judgment and
decree passed by the trial Court is hereby set aside. The suit is decreed
in toto. Let a decree be drawn accordingly.
(SANJAY DWIVEDI)
JUDGE
rao
SATYA SAI RAO
2025.06.18
15:36:45 +05'30'
