Madhya Pradesh High Court
Savitri Bai(Dead) Through Legal ... vs Umashankar on 11 March, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
FIRST APPEAL No. 318 of 2000
BETWEEN:-
SMT. SAVITRI BAI (DEAD) THR. LRs:
(a) SHARAD CHANDRA MALVIYA (DEAD)
THROUGH LRS:
(a)i. MANORAMA MALVIYA W/O LATE SHARAD
CHANDRA MALVIYA, AGED ABOUT 65 YEARS,
R/O WARD NO. 9, HIRANIYA, OPPOSITE
RAILWAY STATION, OBEDULLAGANJ,
DISTRICT RAISEN (MADHYA PRADESH)
(a)ii. BHAVNA MALVIYA W/O LATE DEVESH
MALVIYA, AGED ABOUT 42 YEARS, C/O
MANORAMA MALVIYA, R/O WARD NO. 9,
HIRANIYA, OPPOSITE RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(a)iii. NEELAM MALVIYA W/O RISHI SHARMA,
AGED ABOUT 40 YEARS, C/O MANORAMA
MALVIYA, R/O WARD NO. 9, HIRANIYA,
OPPOSITE RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN MP
(MADHYA PRADESH)
(a)iv. NEHA MALVIYA W/O SUNIL MALVIYA, AGED
ABOUT 37 YEARS, C/O MANORAMA MALVIYA,
R/O WARD NO. 9, HIRANIYA, OPPOSITE
RAILWAY STATION, OBEDULLAGANJ,
DISTRICT RAISEN (MADHYA PRADESH)
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(b) SHRI OMPRAKASH MALVIYA (DEAD)
THROUGH LRs :
(b)i. SMT. SUSHMA MALVIYA W/O LATE SHRI
OMPRAKASH MALVIYA, AGED ABOUT 55
YEARS, R/O WARD NO. 9, HIRANIYA,
OPPOSITE RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(b)ii. SHRI VISHAL MALVIYA S/O LATE SHRI
OMPRAKASH MALVIYA, AGED ABOUT 37
YEARS, R/O WARD NO. 9, HIRANIYA,
OPPOSITE RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(b)iii. SHRI VIKAS MALVIYA S/O LATE SHRI
OMPRAKASH MALVIYA, AGED ABOUT 35
YEARS, R/O WARD NO. 9, HIRANIYA,
OPPOSITE RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(b)iv. SHRI ANKIT MALVIYA S/O LATE SHRI
OMPRAKASH MALVIYA, AGED ABOUT 32
YEARS, R/O OBEDULLAGANJ, DISTRICT
RAISEN (MADHYA PRADESH)
(c) SHRI MAHENDRA KUMAR MALVIYA S/O LATE
SHRI HEERALAL MALVIYA, AGED ABOUT 60
YEARS, R/O HOUSE NO. 109, C.L. NAGAR ,
MAHAVIR COLONY, OBEDULLAGANJ,
DISTRICT RAISEN (MADHYA PRADESH)
(d) SHRI RAJESH MALVIYA (DEAD) THR. LRs:
(d)i. SMT. VANDANA MALVIYA W/O LATE RAJESH
MALVIYA, AGED ABOUT 56 YEARS, R/O WARD
NO. 9, NEAR RAILWAY STATION,
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OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(d)ii. APURVA MALVIYA D/O LATE RAJESH
MALVIYA, AGED ABOUT 23 YEARS, R/O WARD
NO. 9, NEAR RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(d)iii. ARYANSH MALVIYA S/O LATE RAJESH
MALVIYA, AGED ABOUT 17 YEARS (MINOR)
THROUGH NATURAL GUARDIAN MOTHER
NAMELY SMT. VANDANA MALVIYA R/O WARD
NO. 9, NEAR RAILWAY STATION,
OBEDULLAGANJ, DISTRICT RAISEN
(MADHYA PRADESH)
(e) SMT. PUSHPA MALVIYA W/O LATE
MANOHARLAL MALVIYA D/O LATE SMT.
SAVITRI BAI MALVIYA, AGED ABOUT 74
YEARS, R/O LIG-31/2-C, SAKET NAGAR
BHOPAL (MADHYA PRADESH)
(f) SMT. SARIA MALVIYA (DEAD) THR LRs:
(f)i. SMT. SUNIT MALVIYA S/O SHRI P.C. MALVIYA,
AGED ABOUT 35 YEARS, R/O C-15, SHRI RAM
KUNJ, SHRI RAM COLONY, BHOPAL (MADHYA
PRADESH)
(g) SMT. MANORAMA SHASTRI W/O LATE
CHANDRASHEKHAR SHAHTRI D/O LATE SMT.
SAVITRI BAI, AGED ABOUT 63 YEARS, R/O
CHINAR FORTUNER CITY, HOSHANGABAD
ROAD, BHOPAL (MADHYA PRADESH)
(h) SMT. ANITA DIXIT W/O SHRI RAJESH DIXIT
D/O LATE SMT. SAVITRI BAI, AGED ABOUT 58
YEARS, R/O HOUSE NO. 11, SECTOR 5, PARK
CITY, KATARA HILLS, BHOPAL (MADHYA
PRADESH)
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(i) SMT. SAVITA SHARMA W/O SHRI VISHNU
SHARMA D/O LATE SMT. SAVITRI BAI, AGED
ABOUT 56 YEARS, R/O 203, AMALTAS HOMES,
KATARA HILLS, BHOPAL (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI VIJAY NAYAK, SHRI ANAND NAYAK AND SHRI HEMANT KUMAR
CHOUHAN- ADVOCATES)
AND
UMASHANKAR S/O MADANLAL MALVIYA,
AGED ABOUT 47 YEARS, OCCUPATION:
AGRICULTURE BANAPURA, TEHSIL SEONI
MALWA, DISTT. HOSHANGABAD (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI ASHISH SHROTI - ADVOCATE)
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Reserved on : 29.02.2024
Pronounced on : 11.03.2024
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This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the Court pronounced the following :
JUDGMENT
This first appeal has been preferred by the appellant/defendant-Savitribai (now dead, through LRs) challenging judgment and decree dtd.10.03.2000 passed by Second Additional District Judge, Hoshangabad in civil suit No.54- 5 A/1999, whereby respondent/plaintiff's suit for declaration of title and permanent injunction in respect of house in question, has been decreed.
2. Facts in short are that the respondent/plaintiff instituted the suit claiming himself to be exclusive owner of the house situated at Village Banapura, Tahsil Seoni Malwa, Distt. Hoshangabad with the allegations that Hazarilal (died on 18.12.1987) was owner of the house, who was survived by his wife Ramkunwar Bai (died on 25.12.1993) and two daughters Shanti Bai and Savitri Bai. The plaintiff is son of Shanti Bai, who filed suit on the strength of Will dtd. 05.11.1987 (Ex.P/2) allegedly executed by Hazarilal and claimed himself to be in exclusive possession of the house and appurtenant open land. It is also alleged that wife of Hazarilal namely Ramkunwar Bai also executed a registered Will in favour of the plaintiff on 20.04.1990. It is alleged that on the basis of Will executed by Hazarilal and Ramkunwar Bai, the plaintiff got his name mutated in the municipality and is exclusive owner, with these allegations the suit was filed.
3. The defendant-Savitri Bai appeared and filed written statement denying the plaint averments and alleging the Will(s) to be forged and fabricated documents, prayed for dismissal of the suit.
4. On the basis of pleadings of the parties trial court framed as many as 13 issues and recorded evidence of the parties. The plaintiff examined himself- Umashankar (PW-1), Radheyshyam (PW-2), Harishankar (PW-3), 6 Satyanarayan (PW-4) and Gaya Prasad (PW-5) and produced documentary evidence (Ex.P/1 and P/2). Similarly, the defendant examined herself-Savitri Bai (DW-1), Kanhaiyalal (DW-2) and Rajesh Malviya (DW-3) and produced documentary evidence (Ex.D/1 to D/6). The defendant also examined handwriting expert namely Chandra Shekhar Sarwate, who also produced his report (Ex.C/1).
5. After hearing the parties and upon due consideration of material available on record, trial court found execution of Will dtd. 05.11.1987 (Ex.P/2) proved, executed by Hazarilal in favour of plaintiff-Uma Shankar and holding him to be owner of the suit house, decreed the suit vide judgment and decree dtd. 10.03.2000.
6. Learned counsel for the appellant/defendant submits that the Will propounded by the plaintiff is a false and fabricated document, which has also not been proved by plaintiff in accordance with the provisions contained in Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, in absence of which the Will cannot be said to be a proven document. He submits that Hazarilal was suffering from several ailments for last one year prior to his death and was not in a position to execute the Will and even otherwise the Will is surrounded by several suspicious circumstances, which has not been considered by the trial court in real perspective. He submits that by examination of handwriting expert namely Chandra Shekhar Sarwate, the defendant has 7 proved that the Will does not bear signature of Hazarilal and in rebuttal to the expert evidence, no evidence has been adduced by the plaintiff, therefore, there was no reason to disbelieve expert evidence. He also submits that just contrary to recital made in the Will (Ex.P/2) regarding nature of the suit property, trial court has held it to be a self-acquired property. He also submits that previously a succession case was filed jointly by Ramkunwar Bai, Savitri Bai and Umashankar, in which there was no mention of the Will (Ex. P/2), which itself is sufficient to hold that it was a fabricated document. He submits that cause of action accrued to the plaintiff on 18.12.1987 immediately after death of Hazarilal but the suit was filed in the year 1997, which is clearly barred by limitation. With the aforesaid submissions learned counsel prays for allowing the appeal and for setting aside judgment and decree of trial court. In support of his submissions learned counsel for the appellants placed reliance on a decision of Hon'ble Supreme Court in the case of Shyam Lal @ Kuldeep vs. Sanjeev Kumar & Ors. AIR 2009 SC 3115.
7. Learned counsel appearing for the respondent/plaintiff supports the impugned judgment and decree passed by trial court and prays for dismissal thereof with the submissions that the plaintiff resided with Hazarilal and Ramkunwar Bai from the age of his child hood (about 2½ years) because his mother Shantibai died and he took care of Hazarilal and Ramkunwar Bai (Nana- Nani) and only because of this, Hazarilal and Ramkunwar Bai executed Will(s) 8 (Ex.P/2 & P/1). He further submits that undisputedly entire agricultural land area 4 acres was already given by Hazarilal to appellant/defendant vide registered gift deed dtd.30.05.1983 (Ex.D/2), therefore, she was rightly not given any share in the house, in which the plaintiff is residing exclusively. He also submits that till today no proceeding for partition or possession of house has been initiated by defendant. With these submissions he prays for dismissal of the first appeal.
8. Heard learned counsel for the parties and perused the record.
9. In the instant first appeal following points for determination are arising;
a. Whether the Will in execution has not been proved by plaintiff in accordance with law, which is also surrounded by suspicious circumstances ?
b. Whether, the suit is barred by limitation ?
c. Whether trial Court has rightly discarded expert evidence ?
10. Ownership of Hazarilal over the suit house and exclusive possession of the plaintiff-Umashankar over the suit house, is not in dispute. It is also not in dispute that Hazarilal in his life time gave 4 acres land to his daughter Savitri Bai (defendant) vide registered gift deed dtd. 30.05.1983 (Ex.D/2). There is nothing on record to show that after death of Hazarilal on 18.12.1987, the defendant has ever initiated any proceeding for partition, claiming her right in the house till date.
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11. With a view to prove the Will dtd.05.11.1987 (Ex. P/2) the plaintiff has examined Satyanarayan (PW-4) scribe of the Will and also examined attesting witness of the Will namely Ganga Prasad (PW-5). While appreciating evidence of scribe of the Will and attesting witness to the Will, trial Court in paragraphs 7 to 10 of its judgment, has come to conclusion that valid/due execution and attestation of the Will, is clearly proved.
12. While taking into consideration the evidence in the light of objection of the defendant with regard to Will to be a false and fabricated document, trial court has considered evidence of the parties from paragraph 12 to 16 of its judgment and has held that Will is a genuine document and negatived the plea taken by the defendant, regarding Will to be a false and fabricated document. In the present case it is clear from the record that Hazarilal was survived by his wife Ramkunwar Bai, two daughters Shanti Bai and Savitri Bai. After her marriage, defendant-Savtri Bai shifted to her matrimonial house at Raisen, whereas due to death of Shanti Bai (second daughter of Hazarilal), the plaintiff- Umashankar from the age of about 2½ years, resided with his maternal grandfather and grandmother (Nana-Nani) namely Hazarilal and Ramkunwar Bai. Except plaintiff-Umashankar and defendant-Savitri Bai there was no other legal heir.
13. It is also apparent that with a view to maintain the balance, Hazarlilal gifted 4 acres of land to defendant-Savitri Bai vide registered gift deed dtd. 10 30.05.1983 (Ex.D/2) and after gifting this land, only property remained in ownership and possession of Hazarilal, was the suit house. Although, Ramkunwar Bai also executed a Will dtd. 20.04.1990 (Ex.P/1) in favour of plaintiff, and the same has not been found proved by trial court, but the circumstances themselves depict that there was sufficient reason available with Hazarilal and Ramkunwar Bai to execute Will in favour of plaintiff- Umashankar, who took care of Hazarilal and Ramkunwar Bai, having resided with them from his childhood. Trial court had taken into consideration the aforesaid aspect of the matter and held the Will in question to be a proven document.
14. So far as argument raised by the counsel for the appellant in respect of recording of finding by trial court that the house property is self-acquired property of Hazarilal, where as in the Will (Ex.P-2) the suit property is mentioned belonging to the ancestors, is concerned, in my considered opinion such contradiction in respect of the nature of property, does not make any difference and in both the cases Hazarilal was competent to execute the Will, he being owner/bhoomiswami of it.
15. Undoubtedly, Will was not disclosed in the proceeding of succession certificate (Ex.P/4), but it is very much probable that just with a view to give entire rent of the property in the hands of Ramkunwar Bai, especially after death of Hazarilal, the Will might not have been disclosed and this fact has also been 11 admitted by the defendant in para 7 of her oral testimony and has also been considered by trial court in its judgment. In the present case undisputedly the plaintiff is in exclusive possession of the house since after death of Hazarilal on 18.12.1987 and Ramkunwar Bai on 25.12.1993 and has also got his name mutated in the Municipality on the basis of Will. The suit has been filed alleging cause of action to have accrued after mutation of the name of plaintiff and upon making interference by defendant in title of the plaintiff, therefore, the suit filed in the year 1997 cannot be said to be barred by limitation.
16. It is also pertinent to mention here that expert evidence is a piece of evidence and while considering the evidence of expert-Chandra Shekhar in detail in para 13 of judgment, trial court has discarded evidence of expert Chandra Shekhar on the ground that he did not examine the signature of Hazarilal by taking photographs of the original Will Ex.P/2 and the expert was not provided admitted signature for examination and that he examined the signature from the photocopy of the document. It is also evident on record that no application under Section 45 of the Evidence Act was filed before trial court for permission of examination of handwriting by expert and the expert report was filed directly by the defendant. Upon due consideration of testimony of handwriting expert including the findings recorded by trial court, this Court does not find any illegality in discarding the expert evidence adduced by the defendant.
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17. In view of the aforesaid discussion and upon due consideration of the entire material available on record, this Court does not find any illegality in the judgment and decree passed by trial court.
18. Resultantly, the first appeal fails and is hereby dismissed.
19. Pending application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL) JUDGE ss Digitally signed by SWETA SAHU Date: 2024.03.18 14:51:21 +05'30'