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Smt. Sarju Bai W/O Bihari … vs Smt. Sitabai on 17 April, 2017

HIGH COURT OF MADHYA PRADESH : JABALPUR

S.A. No.136/2017

Smt. Sarjubai (deceased) through LR
-Versus-
Smt. Sitabai and another

CORAM :

Hon’ble Shri Justice Vijay Kumar Shukla

Shri Pranay Verma, Advocate for the appellant.
Shri Avinash Zargar, Advocate for the respondent No.1.
Shri Ashutosh Tiwari, Panel Lawyer for the respondent No.2.

ORDER

(17.04.2017)

Heard on admission.

2. The instant appeal has been preferred under Section 100
of the Code of Civil Procedure [for brevity `the CP’] challenging the
judgment decree, dated 7-01-2017 passed in Civil Appeal
No.2A/2012, affirming the judgment decree, dated 30-11-2011
passed in Civil Suit No.61-A/2002 by the learned First Civil Judge,
Class-I, Harda, District Harda, whereby the appeal filed by the
appellant has been dismissed affirming the judgment and decree
passed by the learned Civil Judge whereby the suit filed by the
respondent No.1-plaintiff has been allowed.

2

3. As the facts would unveil, the respondent No.1-plaintiff
filed a civil suit for possession of the properties situated at Khasra
No.2/1, admeasuring 20.5, Khasra No.10, admeasuring 2.40 acres
and Khasra No.14, admeasuring 2.21 acres and also prayed for relief
of declaration as an absolute owner of the said property. Before
taking consideration the facts of the present case, it is appropriate to
mention genealogy of the present case :

mejko¼e`r½
A——————————————————————A—————————————————A
dqathyky¼e`r½ fcgkjh yky ¼e`r½ rqylhjke¼e`r½
A A A
jkedqoj ckbZ¼iRuh½ fo/kok ljtwckbZ rkjkckbZ¼e`r½
¼e`r½ ykvkSykn mRrjkf/kdkjh iqh lhrkckbZ
ukjk;.k

4. The plaintiff submitted that the property in question was
her ancestral property. It is not in dispute that the property was
belonging to Umrao, as he had got the said property in partition took
place long back in the family. Umrao had three sons, namely,
Kunjilal, Biharilal and Tulsiram. His brother Kunjilal died issue-
less. The plaintiff is the daughter of Tulsiram and after death of her
mother – Tarabai, she is the sole successor of the property of
Tulsiram. It is submitted that the name of Biharilal, her uncle of
the plaintiff was recorded in the disputed property, being `Karta’ of
the Joint Hindu Family. After death of her father – Tulsiram, she
continued to cultivate the land in question along with her mother. It
is further submitted that Biharilal during his lifetime had sold his
share of about 10 acres of the land. He had no issue and after his
death name of the original defendant – Smt. Sarjubai was recorded
in the revenue record in respect of entire suit land erroneously. It is
further submitted that Sarjubai had never adopted the appellant –
Narayan. It was also further denied that she had executed any
3

adoption deed, on 24-01-1997 or any Will in favour of Narayan.
On the basis of a forged and fictitious Will the defendant No.3 had
illegally obtained possession of the suit land. It is further pleaded
that the defendant No.3 Narayan being stranger and not a member of
the family, therefore, he has no right to inherit the property of rthe
family of Umrao.

5. The defendant No.1, Sarjubai, died during the pendency
of the suit. A written statement was filed on her behalf with the
verification of the defendant No.3, Narayan. It is also seen from the
record that the defendant No.3/appellant, Narayan filed his separate
written statement in the matter. In the written statement which was
filed by Narayan, submitted that since Biharilal had no issue,
therefore, he was adopted by executing an adoption deed on 24-01-
1997. It was also claimed that on the same date, i.e. 24-01-1997 a
Will was also executed in favour of the defendant No.3 – Narayan.
It is also to be noted that the present appeal is filed on behalf of Smt.
Sarjubai who is dead, showing the defendant No.3, Narayan as her
legal representative on the basis of adoption and Will alleged to be
executed by original defendant Sarjubai.

6. On the basis of the aforesaid pleadings, the trial Court
framed Issues No.1 to 9 and two additional issues in respect of the
adoption and Will deed. The trial Court considered first, the issues
No.10 and 11 regarding adoption and Will deed. The defendant
No.3 – appellant, who has been substituted as a legal heir of the
defendant No.3 is not found to be entitled to get the property of
Biharilal on the basis of the adoption and Will deed executed by his
wife, Smt. Sarjubai. The other issues had become secondary as the
defendant No.3 would not have any title in the property of Biharilal,
4

as he is not a member of the Joint Hindu Family. The trial Court
recorded a specific finding that the adoption deed is not proved and
the Will executed in favour of the defendant – Narayan by Smt.
Sarjubai was found to be suspicious and surreptitious, as the
adoption and Will deed were executed on the same date taking into
other suspicious circumstances. The Courts have also taken into
consideration that if the defendant No.3 was an adopted son of the
original defendant No.1, Smt. Sarjubai, then there was no occasion
to execute the Will that too on the same date.

7. After considering the aforesaid issues the trial Court
also considered the Issue Nos.1 to 9 and held that after death of
Kunjilal, brothers Biharilal and Tulsiram continued to cultivate the
suit land jointly. The trial Court further held that the name of
Biharilal was recorded in the revenue records being the `Karta’ of
the Joint Hindu Family and, therefore, Tulsiram, his brother was
entitled for half share on the said property. It was further held by
the trial Court that after death of Tulsiram, the plaintiff and her
mother continued in the Joint Hindu Family and Biharilal had sold
more than his share in the suit land, therefore, they have got title of
ownership on the suit land and are entitled for the possession of the
suit land from the defendant – Narayan, within a period of three
months and they will also be entitled to get their names mutated in
the revenue records.

8. The trial Court after extensive deliberation and
consideration of the entire evidence in proper perspective, in paras
21 and onwards found that the Will was not proved to be beyond
suspicion and the defendant could not discharge his burden, as
required to prove execution of a Will by virtue of Section 63 of the
5

Succession Act, 1925 read with Section 68 of the Evidence Act,
1872. Besides, the trial Court has taken into consideration the
testimony of Ramnarayan (DW-2), who is said to be the attesting
witness and also the evidence of Balakdas (DW-3), who is said to
have written the Will in question. In this regard paras 30 to 33
being relevant, are extracted hereunder:

^^30- jkeukjk;.k iz-lk02 us vius dFku esa ,slk dksbZ dFku ugha
fd;k gS fd olh;rukesa dks fy[kus ds i’pkr~ ljtwckbZ dks
i+dj lquk;k ,oa lek;k x;kA i+dj] ledj olh;rukes
ij esjs le{k ljtwckbZ us gLrk{kj fd, vkSj mlds ckn eSaus
olh;rus ij gLrk{kj fd, gSaA ,slh n’kk esa mDr vuqizek.ku
lk{kh }kjk olh;rukes iz-Mh-2 dk fof/kor~ ljtwckbZ us fu”ikfnr
fd;k gS] ;g izekf.kr ugha ekuk tk ldrk gSA olh;rukek iz-
Mh-2 ds fu”iknu ds le; ljtwckbZ oknxzLr Hkwfe ds laca/k esa
nLrkost ysdj mifLFkr gqbZ Fkh] ,slk mDr lk{kh dk ugha dguk
gSA ljtwckbZ fu’kkuh vaxwBk djrh gS] blls Li”V gS fd og
vui+ Fkh vkSj vui+ gksus ds ckotwn Hkh olh;rukes esa Hkwfe ds
losZ uacj ,oa fn’kkvksa dk tks o.kZu fd;k gS] og fdlh vkSj
tkudkj O;fDr ds }kjk mYysf[kr djok;k x;k gSa ,slh fLFkfr
esa Hkh olh;rukek lansgkLin gSA Qyr% jkeukjk;.k izfroknh
lk{kh dzekad 2 ds dFku ls olh;rukek fl) ugha ekuk tk
ldrk gSA

31 ckydnkl izfr-lk-3 us izfrijh{k.k dh df.Mdk dzekad 17 esa
;g dFku fd;k gS fd olh;rukes ij mlds dgh gLrk{kj ugha
gSA rhuksa nLrkostksa esa ls igys xksnukek fy[kk x;k Fkk] mlds
ckn odhy lkgc us olh;rukek Vkbi djok;k ;k ugha] eqs
ugha ekyweA olh;rukek esjs lkeus Vkbi ugha gqvkA xksnukek
gksus ds ckn eSa pyk x;k FkkA rhuksa nLrkost fdlds ikl jgs
eqs ugha ekyweA xksnukek iz-Mh-1] olh;rukek iz-Mh-2]
ikfjokfjd O;oLFkk i iz-Mh-6 ;s rhuksa nLrkost ,d gh fnu
fu”ikfnr fd, x, gSA ckydnkl izfroknh ukjk;.k dk tUetkr
firk gSA ukjk;.k dk fgrc) lk{kh gS vkSj iq ds fgr esa
nLrkost fu”ikfnr gks jgs gSa] ogka firk mifLFkr ugha jgsA
ek ,d nLrkost fu”ikfnr gks tkus ds rqjar ckn ogka ls py
nsa] ;g laHko ugha gSA mDr dFku ckydnkl dk ekuo LoHkko
ds foijhr gSA Qyr% ckydnkl ds dFku ls iz-Mh- 2 dk
olh;rukek izekf.kr ugha ekuk tk ldrk gSA

32- ukjk;.k izfr-lk-01 us izfrijh{k.k dh df.Mdk dzekad 16 esa
dFku fd;k gS fd ljtwckbZ us mlds i{k esa olh;rukek Hkh
6

fy[kk gS] ,slk jk/ks’;ke vkSj ukjk;.k us mls crk;k Fkk vkSj
mlh fnu olh;rukek Hkh crk fn;k FkkA iwoZ fo’ys”k.k esa
olh;rukek iz-Mh-2 dk vuqizek.ku lk{kh jkeukjk;.k izfr-lk-2
ds dFku iz-Mh-2 dk olh;rukek mlds le{k ljtwckbZ us
i+dj ledj ,oa i+okdj] ledj fcuk dksbZ ncko ds iw.kZ
gks’kksgokl esa fu”ikfnr dj] gLrk{kj dj] esjs lkeus fd, vkSj
eSaus ml ij xokg crkSj gLrk{kj fd,] ;g izekf.kr ugha gSA
lkFk gh olh;rukes iz-Mh-2 esa laifRr ds [kljs uacj dk tks
mYys[k gS] og ljtwckZ us fy[kok;k Fkk] ;g Hkh izekf.kr ugha gSA
iz-Mh-2 ds olh;rukes dk M~kQ~V fdlh vf/koDrk ds }kjk rS;kj
fd;k tkuk dfFkr gS] ijarq jkeukjk;.k izfroknh lk{kh dzekad 2
us vf/koDrk ds ek/;e ls olh;rukes dk M~kQ~V rS;kj djokus
ls badkj fd;k gSA olh;ruk iz-Mh-2 ds ys[kd ,oa vf/koDrk ds
dFku ugha djok, gSaA mDr laiw.kZ ifjfLFkfr;ksa ij fopkj djus
ls] izfroknh olh;rukek iz-Mh-2 dk izekf.kr djus esa vlQy
jgk gSA ,slh n’kk esa ukjk;.k izfroknh lk{kh dzekad 1 ds
olh;rukes ds laca/k esa tks dFku fd, gSa] mlls mls dksbZ ykHk
ugha feyrk gSA Qyr% olh;rukek iz-Mh-2] ljtwckbZ ds }kjk
izfroknh ukjk;.k ds i{k esa fu”ikfnr fd;k gS] ;g ‘kadk ls ijs
izekf.kr ugha gSA

33- mijksDr laiw.kZ fo’ys”k.k ls LoxhZ; ljtwckbZ ds }kj
izfroknh ukjk;.k dks rhu o”kZ dh mez esa xksn ys fy;k Fkk] rHkh
ls xksnh iq pyk vk jgk Fkk vkSj mlh dh ;knnk’r Lo:i iz-

Mh-1 dk xksnhukek fu”ikfnr fd;k vkSj mlh fnu iz-Mh-2 dk
olh;rukek fu”ikfnr fd;k] ;g izekf.k ugha gS vkSj ,slk izrhr
gksrk gS fd mijksDr nksuksa nLrkost izfroknhx.k us oknxzLr
laifRr dks ikus ds nq:n~ns’; ls rS;kj fd, x, gSaA Qyr%
mijksDr okniz’uksa dk fujkdj.k izfroknh ds i{k esa
udkjkRed :i ls ugha esa fujkd`r :i ls ugha esa fujkd`r fd,
tkrs gSaA^^

These findings have been further affirmed by the lower
appellate Court while evaluating the oral and documentary evidence
in proper perspective. Counsel for the appellant could not point out
any illegality or perversity in the findings recorded by both the
Courts.

9. Being aggrieved by the said judgment and decree passed
by both the Courts, the present appeal has been preferred and the
7

appellant seeks to overturn the concurrent findings of the Courts
below.

10. Counsel appearing for the appellant canvassed the sole
contention that both the Courts below have erred in holding that the
‘Will’ executed by Smt. Sarjubai in favour of Narayan was
suspicious because the adoption deed and the Will deed were
executed on the same date, i.e. 24-01-1997. No other point was
canvassed by the counsel for the appellant.

11. So far as the finding as regards adoption deed found to
be forged and fabricated and not in accordance with the provisions
envisaged under under Section 11 of Hindu Adoptions and
Maintenance Act, 1956 [for short `the 1956 Act’] is concerned, they
have not been challenged by the counsel for the appellant.
However, both the courts have recorded concurrent findings in
respect of adoption deed that it was not as per requirements of
Section 11 of the 1956 Act. Even otherwise, the said view is in
conformity with the provisions of Section 11 of the 1956 Act which
has been held to be mandatory by the Apex Court and onus of proof
lies on the person who is claiming right on the basis of an adoption
or Will deed in the cases of Harnek Singh vs. Pritam Singh and
others, (2013) 4 SCC 458 and Pentakota Satyanarayana and others
vs. Pentakota Seetharatnam and others, (2005) 8 SCC 67 .

12. So far as the contention of the appellant that the Courts
below ought to have not held that the Will was suspicious, merely
because the adoption deed was executed on the same date sans
merit. It is seen from the records that the courts have not only
disbelieved the “Will” solely on the ground that the adoption deed
8

was executed on the same date, but also have taken into
consideration the oral and documentary evidence. The burden was
on the appellant to prove execution of the Will to dispel suspicious
circumstances under which the Will was executed. This view of
mine is further fortified by the judgments of the Apex Court
rendered in the case of Mahesh Kumar (dead) by LRs vs. Vinod
Kumar and others, (2012) 4 SCC 387 as well law Pentakota
Satyanarayana and others (supra). Regarding burden of proof in
respect of a Will validly executed and claiming genuine document,
is on the propounder. In the case of Niranjan Umeshchandra Joshi
vs. Mrudula Jyoti Rao, AIR 2007 SC 614 [para 17], it has been
held that there are several circumstances which have to be described
as suspicious circumstances; (i) when a doubt is created in regard to
the condition of mind of the testator despite his signature on the
Will; (ii) when the disposition appears to be unnatural or wholly
unfair in the light of the relevant circumstances; and (iii) where
propounder himself takes prominent part in the execution of Will
which confers on him substantial benefit. The same view has been
reiterated by the Supreme Court in the case of Mahesh Kumar
(Dead) by LRs vs. Vinod Kumar and others, (2012) 4 SCC 387.

13. Both the courts have rightly held in the present case on
extensive evaluation of facts and evidence that the Will was highly
suspicious as on the same date, the adoption deed and the `Will’ in
favour of the appellant was executed who is beneficiary of both,
which clearly falls within the circumstances described by the Apex
Court, as discussed hereinabove. In addition to the same filing of
the written statement by the appellant on behalf of original
defendant, Smt. Sarjubai and separate written statement for himself
and now presenting the present appeal on behalf of original
9

defendant as her legal representative are certainly strong suspicious
circumstances which the appellant/defendant No.3 failed to dispel.

14. Thus, in view of the aforesaid discussion and
enunciation of law discussed in preceding paragraphs, I do not find
any illegality in respect of the findings ascribed by the Courts
below and this Court is of the considered opinion, that the
arguments advanced by the counsel for the appellant cannot be
countenanced in exercise of jurisdiction under Section 100 of the
Code of Civil Procedure. Entire gamut of matter is in the realm of
facts. The findings ascribed by the Courts below are impregnable in
nature and no question of law, much less substantial question of law
arises warranting interference under Section 100 of the CPC.

15. Resultantly, the appeal stands dismissed. No order as
to costs.

(Vijay Kumar Shukla)
Judge

ac.

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