Madhya Pradesh High Court
Smt. Vimlabai vs Smt. Fhula Bai on 20 June, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:26721
1 SA-1175-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 20th OF JUNE, 2025
SECOND APPEAL No. 1175 of 2023
SMT. VIMLABAI AND OTHERS
Versus
SMT. FHULA BAI AND OTHERS
Appearance:
Shri Pravesh Naveriya - Advocate for the appellants.
Shri Anuvad Shrivastava - Advocate for respondents 1 and 2.
Shri Reji Mathai - Panel Lawyer for respondent 3/State.
ORDER
This second appeal has been preferred by the appellants/defendants 1
and 3 challenging the judgment and decree dated 19/4/2023 passed by
Additional Judge to the Court of District Judge, Deori, District Sagar in
RCA No.32/2022 affirming the judgment and decree dated 14/11/2022
passed by Civil Judge Junior Division, Kesli, District Sagar in RCSA
No.49/2019, whereby Courts below have concurrently decreed respondents
1-2/plaintiffs' suit for declaration of 1/3rd-1/3rd share of the plaintiffs as well
as of defendant 1 in the suit property and that the defendant 3 has no right to
make interference in the possession on the basis of Will allegedly executed
by Harprasad.
2. Learned counsel for the appellants submits that undisputedly the suit
land including temple constructed thereon belonged to father of the plaintiffs
and defendant 1, namely, Harprasad, who had executed a registered Will
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dated 6/8/2004 (Ex.D/10) in favour of defendant 1-Vimlabai's husband-
Ramesh Prasad Shukla (defendant 3) in respect of part of the suit property
over which a temple is constructed and the appellants have categorically
proved execution of Will, but Courts below have committed an illegality in
decreeing the suit ignoring the Will, holding it to be not a proven document
in accordance with law. Taking this Court to the certified copy of Will
(Ex.D/10) learned counsel for the appellants submits that the same has been
proved by examination of attesting witness-Prasanna Mishra and it being a
registered Will, ought to have been accepted and in not doing so, Courts
below have committed an illegality in decreeing the suit. With these
submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for respondents 1-2/plaintiffs supports
the impugned judgment and decree passed by Courts below and prays for
dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, the suit land alongwith temple constructed thereon
belonged to father of the plaintiffs and defendant 1, namely, Harprasad,
therefore, all the three daughters are equally entitled to succeed the property
left by Harprasad as per Section 8 of the Hindu Succession Act, 1956.
6. So far as proof of execution and attestation of Will dated 6/8/2004
(Ex.D/10), which is said to have been executed in respect of part of the
property over which a temple is constructed, is concerned, the defendant
3/appellant 2, who is the beneficiary under the Will, for the reasons best
known to him has not brought the original Will on record and a certified
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copy of Will has been placed on record as Ex.D/10 and as has been observed
by Trial Court in paragraphs 21 and 22 of its judgment and by First
Appellate Court in para 23 of its judgment, appellants have not led any
evidence with a view to satisfy the conditions of leading secondary evidence
as per Section 65 of the Evidence Act. Both the Courts below have also
taken into consideration the testimony of attesting witness-Prasanna Bihari
Mishra (DW-5) and found the same to be insufficient to prove due execution
and attestation of the Will. Although affidavit of another attesting witness
Devendra Singh, under Order XVIII Rule 4 of C.P.C. has been placed on
record, but this witness was not kept present for cross-examination by the
plaintiffs. Accordingly, Courts below have concurrently held that the Will in
question is not a proven document.
7. Upon due consideration of the material available on record, this
Court does not find any illegality in the judgment and decree passed by
Courts below.
8. Resultantly, for want of any substantial question of law, this second
appeal fails and is hereby dismissed.
9. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
