Madhya Pradesh High Court
Kamal Kishore vs Smt. Maina Jharbade on 12 September, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:44390
1 SA-876-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 12th OF SEPTEMBER, 2025
SECOND APPEAL No. 876 of 2025
KAMAL KISHORE
Versus
SMT. MAINA JHARBADE AND OTHERS
Appearance:
Shri Subodh Kathar - Advocate for the appellant.
Shri Yash Nitin Nasery - Advocate for the respondent/caveator no.2
and 3.
Ms. Chandrakanta Pal - P.L. for the State/respondent no.4.
ORDER
This second appeal has been preferred by the appellant/plaintiff
challenging the judgment and decree dated 28.02.2025 passed by Addl.
Judge to the Court of 1st Addl. District Judge, Betul in RCA no.91/2023
affirming the judgment and decree dated 30.09.2023 passed by Addl. Judge
to the Court of 1st Civil Judge Class-II, Betul in RCSA no.161-A/2017
whereby both the Courts below have concurrently dismissed the
appellant/plaintiff's suit for declaration of title and permanent injunction filed
on the basis of unregistered Will dated 14.03.2014 (Ex.P/9) allegedly
executed by plaintiff's father-Sunderlal Jharbade.
2. Learned counsel for the appellant/plaintiff submits that disputed
agricultural land survey nos.124/3 area 1.363 Hectare, 124/4 area 1.604
NEUTRAL CITATION NO. 2025:MPHC-JBP:44390
2 SA-876-2025
Hectare and 124/9 area 0.202 Hectare, situated in Mouza Chikhalar, Tehsil
and District Betul, belonged to plaintiff's father Sunderlal Jharbade, who
prior to his death on 29.10.2014 executed a Will on 14.03.2014 (Ex.P/9) in
favour of the plaintiff and the same has been proved by the plaintiff by
examination of attesting witness Kashinath (PW/2), but both the Courts
below have committed an illegality in discarding the Will by holding that the
plaintiff has not been able to prove execution and attestation of the Will in
accordance with Section 63(c) of the Indian Succession Act and Section 68
of the Evidence Act. He submits that the language used while preparing the
Will and oral testimony of the attesting witness, is sufficient to hold that
deceased Sunderlal Jharbade had willingly executed the Will in favour of
plaintiff and the same is also proved in accordance with law. With these
submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondents 2-3 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, Sunderlal Jharbade was owner of the suit property,
who after his death left behind him the wife-Smt. Maina Jharbade, son Kamal
Kishore and two daughters Rekha Sonare and Priyanka @ Pinki and in
absence of any Will, all the four successors would succeed the property left
by Sunderlal Jharbade. With a view to prove the Will (Ex.P/9), although the
plaintiff has examined attesting witness Kashinath (PW/2), and in paragraph
2 of his chief-examination, he has stated about execution and attestation of
NEUTRAL CITATION NO. 2025:MPHC-JBP:44390
3 SA-876-2025
the Will but, in later paragraphs 10 to 14 he has not been able to support his
statement made in chief-examination and taking into consideration the oral
testimony of the plaintiff and attesting witness (PW-2), both the Courts
below have held that Will in question is not proved in accordance with the
provisions of Section 63(c) of the Indian Succession Act and Section 68 of
the Evidence Act.
6. After arguing at length, learned counsel for the appellant has not
been able to point out any illegality or perversity in the concurrent findings
recorded by Courts below regarding proof of Will (Ex.P/9).
7. Upon perusal of the entire record, this Court also does not find any
illegality or perversity in the findings recorded by Courts below.
8. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
9. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
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