Madhya Pradesh High Court
Laxmibai vs Shantibai on 27 October, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:30845
IN THE HIGH COURT OF MADHYA PRADESH
AT Indore
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 27th OF OCTOBER, 2025
SECOND APPEAL No. 1408 of 2023
LAXMIBAI AND OTHERS
Versus
SHANTIBAI AND OTHERS
Appearance:
Shri Yashpal Rathore - Advocate for the appellants.
Shri Pourush Ranka - Advocate for the respondent no.1.
Shri Apoorv Joshi - Govt. Advocate for the respondent/State.
ORDER
This second appeal under Section 100 of Code of Civil Procedure, 1908
(for short referred to as 'CPC' hereinafter) being aggrieved by common
Judgement dated 14.03.2023 passed by the Principal District Judge, Mandsaur
Distt. Mandsaur in Civil Appeal No. 41/2022, Civil Appeal No. 45/2022 and
Civil Appeal No. 52/2022 whereby the Appellate Court affirmed the
Judgement dated 27.01.2022 passed by 2nd Civil Judge Sr. Division, Mandsaur
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in Civil Suit No. 1100073/2014 wherein the suit was decreed in favour of the
respondent no.1(the original plaintiff).
2. It is an admitted fact that the plaintiff-Shantibai, defendant No.1-
Laxmibai and defendant No.2-Premlatabai are real sisters. The disputed
agricultural land bearing Survey No.4 ad-measuring 2.350 hectare, Survey
No.10 ad-measuring 0.810 hectare and Survey No.1974 ad-measuring 2.300
hectare, total ad-measuring 5.460 hectare situated at Village-Bani, Tehsil-
Daloda, District-Mandsaur was the property of Badambai. Badambai expired
on 14/08/2009 at Village-Bani. Badambai was recorded Bhumiswami of the
suit property until her death. During pendency of the civil suit, defendants No.1
and 2 executed the registered sale-deed dated 10/11/2014 in favour of
defendant No.3-Manoharlal and executed another registered sale-deed dated
18/11/2014 in favour of defendant-Madhubala.
3. The plaintiff (respondent herein) - Shantibai had filed a suit for
declaration of title and permanent injunction initially against her sisters
Laxmibai and Premlatabai claiming that their mother Badambai had executed
registered Will dated 12/12/2002 in her favour. Further, Badambai had
executed a consent-deed in her favour for revenue mutation. The plaintiff is the
sole Bhumiswami, title holder and possessor of the suit property after demise
of Badambai on 14/08/2009. Defendants No.1-Laxmibai and No.2-Premlatabai
had filed civil suit No.12-A/2009 before the District Judge, Mandsaur with
regard to the disputed property but later had withdrawn the suit on 15/10/2012,
they did not file any civil suit thereafter. Defendants No.1-Laxmibai and No.2-
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Premlatabai applied for mutation of their names on the disputed property and
despite the stay order dated 07/07/2014 passed by SDM, Mandsaur. The
Revenue Officer recorded the name of defendants No.1-Laxmibai and No.2-
Premlatabai on the suit property. Defendants are trying to dispose of their share
in the suit property on the basis of mutation, therefore, plaintiff has prayed for
declaration and permanent injunction.
4. The defendants No.1-Laxmibai and No.2-Premlatabai in their
written statement challenged the execution of Will in favour of the plaintiff-
Badambai as illegal and forged document prepared by the plaintiff. It is
claimed that after demise of Badambai, they are in joint possession of the suit
property and joint title-holder by succession. They had earlier filed suit for
partition. The Tehsildar - Dahod had granted joint mutation to the defendants
vide order dated 30/06/2014 denying the Will in favour of the plaintiff.
5. During pendency of the suit, Manoharlal and Madhubala were
impleaded as defendants and Manoharlal and Madhubala in their separate
written statements have assailed the Will executed in favour of the plaintiff and
claimed possession over the part of the suit property. The plaintiff amended the
plaint and incorporated the relief of possession against the defendants No.3 and
4 and challenged the registered sale-deed executed in favour of the defendants
No.3 and 4.
The Court of first instance vide judgment dated 27/01/2022 passed in
RCS-A 1100073/2014 decreed the suit in favour of the plaintiff Shanti Bai and
granted relief to declaration of title, mutation and right to possession over the
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suit land. It was further declared that the registered sale-deeds dated
10/11/2014 and 18/11/2014 are void and not binding on the plaintiff.
6. Being aggrieved by the judgment and decree of the Court of first
instance, Madhubala, Manoharlal, Laxmibai and Premlatabai had filed three
separate appeals, which were heard together by the District Judge, Mandsaur.
The learned first Appellate Court vide judgment dated 14/03/2023 rejected all
the three appeals RCS-A Nos.316/2022, 317/2022 and 388/2022, while
affirming the judgment and decree dated 27/01/2022 passed by the Court of
first instance.
7. The Second Appeal No.1408/2023 is filed by original defendants-
Laxmibai and Premlatabai, whereas the Second Appeal No. 1170/2023 is filed
on behalf of defendants-Madhubala and Manoharlal .
8. Heard on admission and proposed substantial question of law.
9. In the matter of Chandrabhan v. Saraswati, reported in (2022) 20
SCC 199, the Apex Court held as under:-
22. It is well settled that a second appeal under Section 100 of the Civil Procedure
Code, 1908 ("CPC") can only be entertained on a substantial question of law. In
H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496, this Court held :
"16. In our opinion, therefore, the judgment of the High Court suffers from
serious infirmities. It suffers from the vice of exercise of jurisdiction
which did not vest in the High Court under the law. Under Section 100 of
the Code (as amended in 1976) the jurisdiction of the High Court to
interfere with the judgments of the courts below is confined to hearing on
substantial questions of law. Interference with finding of fact by the High
Court is not warranted if it involves re-appreciation of evidence
(see Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713
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and Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC
438). The High Court has not even discussed any evidence. No basic
finding of fact recorded by the courts below has been reversed much less
any reason assigned for taking a view contrary to that taken by the courts
below. The finding on the question of readiness and willingness to perform
the contract which is a mixed question of law and fact has been upset. It is
statutorily provided by Section 16(1)(c) of the Act that to succeed in a suit
for specific performance of a contract the plaintiff shall aver and prove
that he has performed and has always been ready and willing to perform
the essential terms of the contract which were to be performed by him
other than the terms the performance of which has been prevented or
waived by the defendant."
23. In Ram Prasad Rajak v. Nand Kumar & Bros. [Ram Prasad Rajak v. Nand
Kumar & Bros., (1998) 6 SCC 748], this Court held that : (SCC p. 751, para 7)
"7. ... Once the proceeding in the High Court is treated as a second appeal
under Section 100CPC, the restrictions prescribed in the said Section
would come into play. The High Court could and ought to have dealt with
the matter as a second appeal and found out whether a substantial question
of law arose for consideration. Unless there was a substantial question of
law, the High Court had no jurisdiction to entertain the second appeal and
consider the merits."
24. In Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, this
Court held that existence of substantial question of law was the sine qua non for the
exercise of jurisdiction under Section 100CPC.
*******
32. The principles relating to Section 100 CPC relevant for this case may be
summarised thus:
32.1. An inference of fact from the recitals or contents of a document is a
question of fact. But the legal effect of the terms of a document is a
question of law. Construction of a document involving the application of
any principle of law, is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a principle of law
in construing a document, it gives rise to a question of law.
32.2. The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A question of
law having a material bearing on the decision of the case (that is, a
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question, answer to which affects the rights of parties to the suit) will be
a substantial question of law, if it is not covered by any specific
provisions of law or settled legal principle emerging from binding
precedents and involves a debatable legal issue. A substantial question of
law will also arise in a contrary situation, where the legal position is
clear, either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either ignoring or
acting contrary to such legal principle. In the second type of cases, the
substantial question of law arises not because the law is still debatable,
but because the decision rendered on a material question, violates the
settled position of law.
32.3. The general rule is that the High Court will not interfere with
findings of facts arrived at by the courts below. But it is not an absolute
rule. Some of the well-recognised exceptions are where (i) the courts
below have ignored material evidence or acted on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by applying the
law erroneously; or (iii) the courts have wrongly cast the burden of proof.
When we refer to "decision based on no evidence", it not only refers to
cases where there is a total dearth of evidence, but also refers to any case,
where the evidence, taken as a whole, is not reasonably capable of
supporting the finding.
10. The Supreme Court in case of Naresh and others Vs. Hemant and
others reported in (2022) SCC 802 held as under:-
11. The High Court invoked the presumption without proper consideration and
appreciation of the facts considered and dealt with by two courts holding by reasoned
conclusions why the presumption stood rebutted on the facts. The High Court also
committed an error of record by holding that there was no evidence that Trimbakrao
Ingole alone had constructed the house, a finding patently contrary to the admission of
PW1 in his evidence. The fact that mutation also was done in the name of Trimbakrao
Ingole alone which remain unchallenged at any time was also not noticed. The
conclusion of the High Court that improper appreciation of evidence amounted to
perversity is completely unsustainable. No finding has been arrived at that any
evidence had been admitted contrary to the law or that a finding was based on no
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evidence only in which circumstance the High Court could have interfered in the
second appeal.
12. The High Court therefore manifestly erred by interfering with the concurrent
findings on facts by two courts below in exercise of powers under Section 100, Civil
Procedure Code, a jurisdiction confined to substantial questions of law only. Merely
because the High Court may have been of the opinion that the inferences and
conclusions on the evidence were erroneous, and that another conclusion to its
satisfaction could be drawn, cannot be justification for the High Court to have
interfered.
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673, this court
with regard to the scope for interference in a second appeal with facts under Section
100 of the Civil Procedure Code observed as follows:
"12. ....The admissibility of evidence is no doubt a point of law, but once
it is shown that the evidence on which courts of fact have acted was
admissible and relevant, it is not open to a party feeling aggrieved by the
findings recorded by the courts of fact to contend before the High Court
in second appeal that the said evidence is not sufficient to justify the
findings of fact in question. It has been always recognised that the
sufficiency or adequacy of evidence to support a finding of fact is a
matter for decision of the court of facts and cannot be agitated in a
second appeal. Sometimes, this position is expressed by saying that like
all questions of fact, sufficiency or adequacy of evidence in support of a
case is also left to the jury for its verdict. This position has always been
accepted without dissent and it can be stated without any doubt that it
enunciates what can be properly characterised as an elementary
proposition. Therefore, whenever this Court is satisfied that in dealing
with a second appeal, the High Court has, either unwittingly and in a
casual manner, or deliberately as in this case, contravened the limits
prescribed by s. 100, it becomes the duty of this Court to intervene and
give effect to the said provisions. It may be that in some cases, the High
Court dealing with the second appeal is inclined to take the view that
what it regards to be justice or equity of the case has not been served by
the findings of fact recorded by courts of fact; but on such occasions it is
necessary to remember that what is administered in courts is justice
according to law and considerations of fair play and equity however
important they may be, must yield to clear and express provisions of the
law. If in reaching its decisions in second appeals, the High Court
contravenes the express provisions of section 100, it would inevitably
introduce in such decisions an element of disconcerting unpredictability
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which is usually associated with gambling; and that is a reproach which
judicial process must constantly and scrupulously endeavour to avoid."
11. The material on record is examined in the light of aforestated
proposition of law. Learned counsel for the appellants in addition to the facts
and grounds stated in the appeal memo contended that the Court of first
instance and the first appellate Court did not consider the question of
limitation, the suit was barred by limitation. Learned counsel for the appellant,
referring to the judgments in cases of Secretary, Ministry of Works, Housing
and Supply, New Delhi Vs. Mohinder Singh reported in 1996 (6) SCC 229;
Nikhila Divyang Mehta Vs. Hitesh P. Sanghavi reported in 2025 SCC Online
SC 779 and Pramila Das v. Jagma Parva Mohanty reported in 2012 SCC
Online Orissa 295, submitted that in view of the Section 3 of the Limitation
Act, legal plea of limitation can be raised at any stage of the trial including the
second appeal. Lakshmibai and Premlata had filed a suit for partition before the
Court of District Judge, Mandsore in year 2009. The respondent Shanti Bai was
defendant in the suit. The plaintiff-Shantibai had pleaded in para 10 of the
plaint about the previous challenge to her title in civil suit No.12-A/2009.
Shanti Bai could have filed counter claim to establish her title on the basis of
Will. Therefore, right to sue first accrued to Shantibai in year 2009. Present suit
was filed in 2014. Therefore, it was barred by limitation as provided under
Article 58 of the Limitation Act. The Court of first instance and the first
appellate court committed error in entertaining the time-barred suit.
12. Per contra, learned counsel for the respondent submitted that
Shanti Bai, in her written statement filed in the earlier suit No.12-A/2009, had
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claimed the possession over disputed property on the basis of Will, which was
suppressed by the defendants in their pleadings and evidence. The plaintiff had
become sole title-holder of disputed property on the date of death of testator-
Badambai. When the defendants interfered in her title by applying for joint
mutation, the present suit for declaration of title was filed.
13. Admittedly, the civil suit 12-A of 2009 was dismissed as
withdrawn by the plaintiff Lakshmi bai and Premlata. Shanti Bai had attempted
to defend her title on the basis of Will in the written statement. The withdrawal
of civil suit signifies that Lakshmi bai and Premlata did not pursue the
challenge to the title of Shanti Bai. Therefore, the previous suit cannot be
treated as giving cause of action to Shanti Bai to file suit for declaration of her
title. The present suit is within limitation from the cause of action pleaded by
Shanti bai in her plaint. The benefit of precedents relied upon by the appellant
is not available in view of aforestated facts.
14. Learned counsel for the appellants in both the appeals further
referring to the evidence on record contended that the registered Will dated
12/12/2002 propounded by Shanti Bai was surrounded by many suspicious
circumstances. The plaintiff had failed to explain the circumstance, which
make the Will suspicious. Learned counsel for the appellant relying on the
judgments in case of Smt. Jaswant Kaur v. Smt. Amrit Kaur and others
reported in (1977) 1 SCC 369 and Sitaram Dubey Vs. Manaklal reported in
2013 (3) MPLJ 114 contended that where the execution of a Will is shrouded
in suspicion, the propounder of Will must adduce evidence to satisfy the
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conscience of Court. The Registering Officer was not examined to show that
executant was of sound mind and the Will was read out and was understood by
her. The suspicious circumstances with regard to execution and registration of
the Will were not satisfactorily explained by the propounder. The Court of first
instance as well as the first Appellate Court committed manifest error in
granting relief of declaration in favour of the plaintiff, based on a suspicious
Will.
15. Learned counsel for the respondents submitted that the defendants
did not raise any suspicious circumstance in their pleadings or during evidence
before the Court of first instance, therefore, they cannot create new grounds of
challenge to the Will for the first time in the second appeals.
16. Both the Courts have held that Kishanlal PW2 has proved the
execution of the registered Will dated 12.12.2002 by Badambai, in accordance
with the provisions of Sections 59 and 63 of the Succession Act and Section 68
of the Evidence Act. The Court of first instance in para 17 to 29 of the
Judgment and the first Appellate Court in para 22 to 28 of the Judgment, have
extensively dealt with all the circumstances contended by the
defendants/appellants as suspicious circumstances regarding execution of
registered Will by Badambai and concluded that no suspicious circumstance is
available to doubt the veracity of proposed Will. Rather, adequate explanations
are available from the evidence and circumstances regarding execution of the
Will. The reasons for conclusion given by the Court of first instance and the
first Appellate Court are appropriate and based on material on record.
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Therefore, no interference in the concurrent findings or re-appreciation of
evidence regarding execution of Will is called for.
17. Learned counsel for the appellants further contended that plaintiff
was not in possession of the entire suit property, therefore, in view of proviso
of Section 34 of the Specific Relief Act, the plaintiff ought to have claimed the
relief of possession. Mere suit for declaration without asking for the relief of
possession was not maintainable. The Court of first instance and the first
appellate Court committed error of law in ignoring this legal aspect of the
matter.
18. The record of Court of first instance reveals that Manohar Lal and
Madhubala were impleaded as defendants vide Order dated 14.05.2015 and
25.02.2016 respectively. The plaint was amended to incorporate the pleadings
regarding transfer of property in favour of defendant number 3 and 4 vide order
dated 23.06.2016 and the relief of recovery of possession was incorporated
vide order dated 11.02.2019 in view of the subsequent cause of action based on
dispossession of the plaintiff in July 2017 by defendant number 3 and 4. Thus,
the relief of possession was pleaded by the plaintiff by amending the plaint
before the trial Court itself. The Court of first instance and the first Appellate
Court granted relief of possession in favour of plaintiff Shanti Bai considering
the evidence on record establishing the cause of action. Therefore, the
contention raised by appellants with regard to non-maintainability of the relief
of declaration of title is meritless.
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19. The concurrent findings of the Court of first instance and the first
appellate Court are based on proper appreciation of evidence on record. The
findings of the Court of first instance and first Appellate Court cannot be said
to be against the weight of evidence on record or in ignorance of any material
evidence on record. There is neither impropriety nor perversity in the
concurrent findings. Therefore, no case is made out to interfere in concurrent
finding of facts.
20. In view of the above discussion, this Court is of the considered
opinion that the appellants have failed to make out any perversity and
substantial reason for admission of present second appeal. No substantial
question of law is made out for consideration. Therefore, present second appeal
is dismissed.
21. Both the parties shall bear their own cost.
22. Record of the Court of first instance as well as first Appellate
Court be remitted alongwith copy of this order after necessary formalities.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
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Date: 2025.10.27 19:29:38
+05'30'
