Madhya Pradesh High Court
Kasturi Bai (Dead) Through Lrs. Korelal ... vs Manohar Lal (Dead) Through Lrs. ... on 16 October, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA-1030 of 1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 16th OF OCTOBER, 2025
SECOND APPEAL No. 1030 of 1998
KASTURI BAI (DEAD) THROUGH LRS. KORELAL GOUR AND OTHERS
Versus
MANOHAR LAL (DEAD) THROUGH LRS. OMPRAKASH PATEL AND
OTHERS
Appearance:
Shri Aayush Choubey - Advocate for the appellants.
Shri Ishteyaq Hussain - Advocate for the respondents.
JUDGMENT
This second appeal has been preferred by the original
plaintiffs/appellants-Kasturi Bai and Dulari Bai (now dead) through LRs
challenging the judgment and decree dated 19.08.1998 passed by 1 st Addl.
District Judge, Hoshangabad in regular civil appeal no.10A/1998 affirming
the judgment and decree dated 26.02.1998 passed by Addl. Civil Judge to
the Court of 1st Civil Judge Class-II, Hoshangabad in civil suit
no.33A/1997, whereby both the Courts below partially decreed the
plaintiffs' suit for declaration of title, permanent injunction and restoration
of possession in respect of 1/2 share in the agricultural land and at the same
time, decreed the defendant 1-Manohar Lal's counter claim for declaration
of title, permanent injunction and for restoration of possession in respect of
half portion of the agricultural land as well as for mesne profit.
2. In short, the facts are that the plaintiffs had instituted the suit for
declaration of title, permanent injunction and for restoration of house with
SA-1030 of 1998
the allegations that the plaintiffs are real sisters and their other sister
Chhoti Bai has already died. It is alleged that late Biharilal was their father
and was owner of the agricultural land having an area 4.05 acres as well as
dwelling house and due to death of sister Chhoti Bai and father Biharilal as
well as mother, the plaintiffs are exclusive owners of the suit property i.e.
agricultural land and house. It is alleged that the defendant 1 on the basis
of Will dated 30.03.1970 allegedly executed by Biharilal got his name
mutated over agricultural land having 1/2 share and after death of Chhoti
Bai has also taken possession over the house. It is alleged that on the basis
of order dated 19.12.1991 passed by Tahsildar, the defendant 1 wants to
take possession after getting the land partitioned, whereas the plaintiffs are
still in possession of the agricultural land. On inter alia allegations the suit
was filed.
3. The defendant 1 appeared and filed written statement denying the
plaint allegations and also filed counter claim with the contentions that
deceased Biharilal executed a Will on 30.03.1970 in favour of defendant 1
and on that basis the defendant 1 is owner and in possession of the house
and half area of the agricultural land and he has not taken illegal possession
over the house because he was residing along with Biharilal since prior to
3 years of his death and Chhoti Bai never resided in the house. It is
contended that there being no son, the defendant 1 himself was taking care
of Biharilal. It is contended that by executing the Will on 30.03.1970,
Biharilal divided the agricultural land in four shares i.e. one was given to
the defendant 1 and three shares were given to three daughters. As per the
Will, the share given to Chhoti Bai has also been succeeded by defendant
1. It is contended that on the basis of Will, the name of defendant 1 was
rightly mutated and on that basis, he demanded half share in the land from
SA-1030 of 1998
the plaintiffs, but they refused. On inter alia contentions, the defendant
prayed for relief of permanent injunction as well as for restoration of
possession along with the mesne profit of Rs.1,000/- per annum and also
prayed for dismissal of the suit and for decreeing the counter claim.
4. The plaintiffs filed written statement to the counter claim and
denying the averments made therein, reiterated the averments made in the
plaint and prayed for dismissal of the counter claim.
5. On the basis of pleadings of the parties, Trial Court framed as
many as 11 issues and recorded evidence of the parties. The plaintiffs in
support of their case examined plaintiff 1-Kasturi Bai (PW/1), Badamilal
(PW/2) and Raghvendra Kumar Dubey (PW/3) and also produced
documentary evidence (Ex.P/1 and P/2). Similarly, in support of his case,
the defendant 1 examined himself-Manohar (DW/1) as well as one
attesting witness-Laxminarayan (DW/2) and in documentary evidence
produced only Will dated 30.03.1970 (Ex.D/1).
6. After hearing the parties, Trial Court came to conclusion that prior
to his death in the year 1972, Biharilal executed the Will on 30.03.1970
(Ex.D/1) in favour of defendant 1 and there being no dispute of title of
Biharilal, Trial Court dismissed the suit in respect of house and decreed the
suit in the light of Will, in respect of half share of the plaintiffs in
agricultural land and at the same time, decreed the counter claim vide
impugned judgment and decree dated 26.02.1998.
7. Against the aforesaid judgment and decree passed by Trial Court,
the plaintiffs preferred regular civil appeal, which was dismissed by the
impugned judgment and decree dated 19.08.1998 affirming the judgment
and decree of Trial Court.
SA-1030 of 1998
8. Against the aforesaid judgment and decree passed by Courts
below, plaintiffs preferred second appeal which was admitted for final
hearing on 02.05.2012 on the following substantial questions of law:-
"1. Whether the Courts below were right in holding that the Will Ex.D/1 was proved
as per the provisions of law ?
2. Whether on the basis of such unproved Will, the right could be granted to the
respondents/defendants on their counter claim ?"
9. Learned counsel for the appellants/plaintiffs submits that it is not
in dispute that the suit property belonged to Biharilal and he was survived
by three daughters i.e. plaintiffs-Kasturibai, Dularibai and Chhoti Bai, who
had died in the year 1986 i.e. even prior to filing of the suit on 19.07.1992.
He submits that if there is no Will, allegedly executed by Biharilal in
favour of defendant 1, only the plaintiffs are entitled to succeed the
property left by Biharilal. He submits that both the Courts below have
without taking into consideration the testimony of defendant 1 himself as
well as the testimony of attesting witness-Laxminarayan in real
perspective, committed grave illegality in holding the Will to be a proven
document. He submits that until and unless due execution and attestation of
the Will is proved that too in accordance with the provisions of Section 68
of the Indian Evidence Act, 1872 and Section 63(c) of the Indian
Succession Act, 1925, the same cannot be held to be a proven document. In
support of his submissions, he places reliance on the decision of Hon'ble
Supreme Court in the case of Yumnam Ongbi Tampha Ibema Devi vs.
Yumnam Joykumar Singh and others, (2009) 4 SCC 780 and prays for
allowing the second appeal.
10. Learned counsel appearing for the respondent 1 supports the
impugned judgment and decree passed by Courts below and submits that
SA-1030 of 1998
both the Courts below have upon due consideration of the entire material
available on record rightly decreed the suit partially and decreed the
counter claim filed by defendant 1 in its entirety. He submits that re-
appreciation of oral evidence is not permissible within the limited scope of
second appeal provided under Section 100 CPC. He also submits that since
no son was born to Biharilal and his daughters i.e. the plaintiffs, were
residing in their matrimonial houses, therefore, the defendant being
nephew (Biharilal's brother's son) and was taking care of Biharilal,
therefore, he rightly executed the Will. He submits that at the time of
execution of Will, Biharilal also took care of his three daughters and
against the area 4.05 acre, only one acre land was given to the defendant 1
and one acre given to Chhoti Bai was to succeed by defendant 1 only after
death of Chhotibai. Accordingly, he submits that both the Courts below
have not committed any illegality in passing the impugned judgment and
decree. In support of his submissions, he places reliance on the decisions in
the case of Naresh Charan Das Gupta vs. Paresh Charan Das Gupta and
another, AIR 1955 SC 363; Mallo Bai vs. Bandan Yadav, 2013 SCC
Online MP 10490; and Ganesan (Dead) through legal representatives vs.
Kalanjiam and others, (2020) 11 SCC 715; and prays for dismissal of the
second appeal.
11. Heard learned counsel for the parties and perused the record.
12. In view of the aforesaid factual scenario, in the present case only
question involved is about due execution and attestation of the Will
(Ex.D/1). In that regard, Trial Court framed issue no.2 and has considered
and appreciated the evidence available on record from paragraph 12 to 20
of its judgment, and similarly, the First Appellate Court has taken into
consideration the evidence with respect to due execution and attestation of
SA-1030 of 1998
Will from paragraph 10 to 20 and found execution and attestation of Will
by Biharilal in favour of defendant 1 as well as plaintiffs and Chhoti Bai to
have been proved.
13. Perusal of Will shows that it is on a stamp paper of Rs.2/- and on
its overleaf, no clear endorsement is there about sale of stamp paper by any
stamp vendor, purpose of purchase of stamp and name of person who sold
the stamp and surprisingly, there is no explanation on record about these
important aspects. There is clear overwriting on reverse of the stamp paper
and in place of some other serial number and date, the number 28 and date
30.3.70 has been written along with name of Biharilal, which has not been
given any weightage by the Court below, as is clear from paragraph 16 of
the impugned judgment. More so, while considering this aspect, First
Appellate Court has placed entire burden on the shoulders of the plaintiffs
with the observation that with a view to remove the doubt, the plaintiffs
could have examined the stamp vendor, identity of whom is not clear from
the stamp paper. Even though, the Will is not required to be written on a
stamp paper, but the aforesaid lack creates doubt on execution of the Will.
14. It is apparent that beneficiary under the Will is the defendant 1-
Manohar, who has been examined as DW/1. From perusal of oral
testimony of defendant 1-Manohar (DW/1) made in paragraph 9 of his
statement, it is clear that Will was executed during winter season, whereas
the Will is dated 30.03.1970. Further in paragraph 10 of his statement, he
has stated that at the time of execution of Will, wife of Biharilal was alive
and he was told by Biharilal that during lifetime of his wife, she shall
remain owner of the entire property and only after her death, the property
would be divided according to the Will, however nothing is mentioned in
the Will, as has been stated by defendant 1 himself.
SA-1030 of 1998
15. Further, the Will is allegedly signed by five witnesses namely,
Chhote Ram, Gorelal, Laxminarayan Jaswal, Kishorilal Malviya & Suresh
Chandra Jaiswal, out of them only one attesting witness-Laxminarayan
(DW/2) has been examined, who in paragraph 2 of his testimony states that
attesting witnesses affixed their thumb impression and after that he signed
the Will. The statement of attesting witness is contrary to the Will itself,
because none of the attesting witnesses has affixed his thumb impression
on the Will. It is also apparent that nobody has proved the signatures of the
attesting witnesses and even the defendant 1 or the attesting witness-
Laxminarayan (DW/2) has not proved the signatures of other four
witnesses, who have allegedly signed the Will. Even in its absence, First
Appellate Court has, in paragraph 18 of its judgment placed burden on the
shoulders of the plaintiffs, to disprove the same.
16. It is stated by defendant 1 as well as by attesting witness-
Laxminarayan that the Will was written by one Vishnu Prasad, but for the
reasons not available on record, there is no mention in the Will about
writing of the same by Vishnu Prasad and the Will also does not contain
signature of Vishnu Prasad, which in view of the fact that Biharilal was
illiterate person, was necessary. Although, the Will contains the thumb
impression of Biharilal as well as of the plaintiffs and Chhoti Bai, as
consenters, on reverse side of the stamp paper, but all the thumb
impressions are also not properly/clearly affixed and nobody has proved
them as required under Section 47 and 67 of the Evidence Act. It is also
pertinent to mention here that Kasturibai has been examined as PW/1,
whose thumb impression is said to have been affixed on the Will by
Kasturibai herself, but surprisingly, during her cross examination no
SA-1030 of 1998
suggestion has been given to her regarding her thumb impression on the
Will.
17. The aforesaid are the clear discrepancies in the testimony of
the defendant 1 as well as the attesting witness and it is clear as a daylight
that even the attesting witness-Laxminarayan has not supported the Will,
but both the Courts below have without taking into consideration the
aforesaid material piece of evidence, come to conclusion that Will has been
proved in accordance with law.
18. In the case of Yumnam Ongbi Tampha Ibema Devi vs.
Yumnam Joykumar Singh and others, (2009) 4 SCC 780, Hon'ble
Supreme Court has held as under :-
"11. As per provisions of Section 63 of the Succession Act, for the due execution of a Will
(1) the testator should sign or affix his mark to the Will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was
intended thereby to give effect to the writing as a Will;
(3) the Will should be attested by two or more witnesses, and
(4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will
and each of them should sign the Will in presence of the testator.
12. The attestation of the Will in the manner stated above is not an empty formality. It means
signing a document for the purpose of testifying of the signatures of the executant. The attested
witness should put his signature on the Will animo attestandi. It is not necessary that more than
one witness be present at the same time and no particular form of attestation is necessary. Since a
Will is required by law to be attested, execution has to be proved in the manner laid down in
section and the Evidence Act which requires that at least one attesting witness has to be
examined for the purpose of proving the execution of such a document.
13. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63
of the Succession Act, a Will to be valid should be attested by two or more witnesses in the
manner provided therein and the propounder thereof should examine one attesting witness to
prove the will. The attesting witness should speak not only about the testator's signature or
affixing his mark to the will but also that each of the witnesses had signed the will in the
presence of the testator."
19. If the aforesaid including other oral testimony of the plaintiffs
and defendant 1 is taken into consideration, then in my considered opinion,
SA-1030 of 1998
due execution and attestation of the Will (Ex.D/1), cannot be said to have
been proved in accordance with the provisions of Section 68 of the Indian
Evidence Act and Section 63(c) of the Indian Succession Act, 1925.
20. In the light of aforesaid factual scenario and evidence available
on record in respect of proof of the Will, the decisions relied upon by
learned counsel for the respondent 1, do not provide any help to the case of
respondent 1. Consequently, both the substantial questions of law deserve
to be and are hereby decided in favour of the appellants/plaintiffs and
against the defendant 1.
21. Resultantly, second appeal succeeds and by setting aside the
judgment and decree dtd.19.08.1998 and 26.02.1998 passed by Courts
below, the suit stands decreed and counter claim stands dismissed. It is
held that the plaintiffs are owners and in possession of the disputed
agricultural land. Further, it is held that the plaintiffs are owners of the
house and are entitled to get possession of the house from defendant 1. It is
also ordered that after restoration of possession to the plaintiffs, the
defendant 1 shall not interfere with possession of the plaintiffs.
22. Pending application(s), if any, shall also stand disposed of.
23. However, no order as to the costs.
24. Registry is directed to draw the decree accordingly.
(DWARKA DHISH BANSAL)
JUDGE
pb
