Madhya Pradesh High Court
Dr. Jaykumar Jain vs Shiv Kumar Jain (Died) Through Lrs ... on 10 October, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:51337
1 SA-1818-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 10 th OF OCTOBER, 2025
SECOND APPEAL No. 1818 of 2025
DR. JAYKUMAR JAIN
Versus
SHIV KUMAR JAIN (DIED) THROUGH LRS PUSHPA BAI AND OTHERS
Appearance:
Dr. Anuvad Shrivastava, Advocate for appellant.
Shri Shyam Yadav, Advocate for respondents 1(a) to 1(g).
Shri Sandeep Vyas, Panel Lawyer for respondent 1(l).
ORDER
This second appeal has been preferred by the appellant/plaintiff challenging
the judgment and decree dtd. 30.6.2025 passed by 1st District Judge, Hata,
District Damoh in RCA No. 6/2023 reversing the judgment and decree dtd.
25.1.2023 passed by 1st Civil Judge Junior Division, Hata, District Damoh in
RCSA No.216/2013, whereby Trial Court decreed the plaintiff's suit for
declaration of title and permanent injunction filed on the basis of registered Will
dtd. 7/12/2006 (Ex.P/1) and in civil appeal preferred by the defendants 1-2, First
Appellate Court reversed the judgment and decree passed by Trial Court and
dismissed the suit by holding that the Will in question is not a validly executed
document.
2. Learned counsel for the appellant submits that the suit property belonged
to plaintiff's brother-Kapoorchand Jain, who prior to his death on 24.12.2012,
executed a registered Will dtd. 7.12.2006 in favour of the plaintiff, on the basis of
which his name was mutated timely and the plaintiff has proved valid execution of
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the Will in accordance with the provisions of Section 68 of the Indian Evidence
Act and Section 63(c) of the Indian Succession Act and taking into consideration
the registered Will as well as oral testimony of attesting witnesses namely
Rajendra (PW/4) and Neeraj (PW/5), Trial Court rightly decreed the suit, but First
Appellate Court has committed an illegality in reversing the well reasoned
judgment and decree passed by Trial Court taking into consideration the evidence
of the Handwriting Expert-Awadhesh Namdeo (DW/5) and on the premise that the
plaintiff did not implead necessary parties to the suit. He submits that looking to
the nature of suit and claim of the plaintiff, his sisters namely Mula Bai, Maan Bai
and Anguri Bai were not necessary parties to the suit. With these submissions, he
prays for admission of the second appeal.
3. Learned counsel appearing for the respondents 1(a) to 1(g) supports the
impugned judgment and decree and prays for dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. Undisputedly, the suit property (agricultural land) belonged to
Kapoorchand Jain, who died on 24.12.2012, whose wife Genda Bai had died on
5.5.1995, mother-Tulsa Bai died on 1.12.1964 and father-Barelal died on
13.12.1973. Since, Kapoorchand Jain had no issue, so his brothers namely, Jay
Kumar Jain (plaintiff); Gyanchand (died on 22.8.1998), whose LRs are Shiv
Kumar (son)-defendant 1 and Shanti Bai (wife)-defendant 2, succeeded the
property. Undisputedly, he had also three sisters namely Mula Bai, Maan Bai and
Anguri Bari, who were not made parties to the suit. The defendants 1-2 through
Gyanchand claimed equal share in the suit property but the plaintiff claims
himself exclusive owner/bhoomiswami of the suit land on the basis of registered
Will dtd. 7/12/2006 (Ex.P/1) allegedly executed by Kapoorchand Jain in favour of
plaintiff-Jay Kumar Jain.
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6. The defendants disputed the Will as well as signatures of Kapoorchand
Jain affixed on the Will (Ex.P/1), therefore, on the prayer made by them
Handwriting Expert (Awadhesh Namdeo) was also directed to examine the
signatures of Kapoorchand Jain, who submitted its report (Ex.D/22) stating
therein that the signatures of Kapoorchand Jain do not tally with the standard
signatures and in support of the report he was also examined as DW/5. For the
reasons best known to the plaintiff, in rebuttal to the expert evidence, no other
expert was examined with a view to prove the signatures of Kapoorchand Jain
affixed on the Will. In my considered opinion if the Handwriting expert's report
came against the plaintiff, he was also required to get the signatures of
Kapoorchand Jain examined through another Handwriting Expert, which is
permissible in the eyes of law.
7. Although, upon consideration of the oral testimony of attesting witnesses
namely Rajendra and Neeraj (PW/4 and PW/5) Trial Court held the Will to be
a proven document, but First Appellate Court has in detail considered the oral
testimony of the attesting witnesses as well as the testimony of Handwriting
Expert with the support of the report (Ex.D/22) submitted by the Handwriting
Expert and come to conclusion that the plaintiff has not been able to prove due
and valid execution and attestation of the Will in accordance with Section 63(c) of
the Indian Succession Act and Section 68 of the Indian Evidence Act.
8. In the light of findings recorded by First Appellate Court in the
impugned judgment and upon perusal of the Will itself, it is clear that there is
clear difference in the signatures allegedly affixed by Kapoorchand Jain on first
and second page of the Will as well as on overleaf of first page. As such, this
Court also does not find any illegality in the judgment and decree passed by First
Appellate Court as regards proof of Will.
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9. It is also clear from the record that upon filing written statement, the
defendants took objection regarding non joinder of necessary parties i.e. the
aforesaid three sisters of plaintiff and in spite of the objection, the plaintiff did not
take care of the same and proceeded with the trial. Although, even in absence of
sisters and upon finding the Will to be a proven document, Trial Court decreed the
suit, but as the plaintiff was claiming exclusive ownership on the basis of Will,
therefore, all the three sisters, who are class-II successors of Kapoorchand Jain
were also necessary parties and as such, First Appellate Court has rightly
dismissed the suit on that ground also.
10. Even after arguing at length, learned counsel for the appellant has not
been able to point out any illegality or perversity in the impugned judgment and
decree passed by First Appellate Court.
11. In view of the aforesaid discussion and in absence of any substantial
question of law, this second appeal fails and is hereby dismissed.
12. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
KPS
