Madhya Pradesh High Court
Syed Habib Shah Alias Nawab Miyan (Died) ... vs Mst. Mumtaz Jahan Begum on 27 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:30713
1 F.A. No.5 of 1976
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
FIRST APPEAL No. 5 of 1976
SYED HABIB SHAH ALIAS NAWAB MIYAN (DIED) THROUGH LRS
SYED IRFAN
Versus
MST. MUMTAZ JAHAN BEGUM AND OTHERS
Appearance:
Shri Anil Kumar Mishra and Shri Sanjay Kumar Sharma - Advocate
for the appellants.
Shri Santosh Agrawal - Advocate for respondent No.2(i).
Shri B.D. Jain and Shri Tej Singh Mahdik - Advocate for respondent
No.2(ii).
Shri Prakhar Dhengula- Advocate for LRs of respondent No.7, who
have been transposed as co-appellants
_____________________________________________________________
Reserved on : 13.11.2025
Pronounced on : 27.11.2025
_____________________________________________________________
JUDGMENT
1. This First Appeal under Section 96 of CPC has been filed against the Judgment and Decree dated 6-1-1973 passed by Additional District Judge, Gwalior in C.S. No. 3-A/1971.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 2 F.A. No.5 of 1976
2. The appellants are the legal representatives of the plaintiff who have lost their case from the Trial Court.
3. Before considering the merits of the case, this Court would like to mention certain facts which are necessary to be discussed in the light of I.A. No. 8240 of 2025 filed by respondents for dismissal of this appeal on the ground of non-availability of original record. Although this application was dismissed by this Court by order dated 6-11-2025, but the Counsel for respondent no. 2(i) once again raised the question of non-availability of original record during the course of final arguments. Although the objection raised by Counsel for respondent no. 2(i) shall be considered in detail in the later part of this judgment, but this Court would like to mention about the non-cooperation on the part of the respondents in reconstruction of original record.
4. This First Appeal was filed on 7-3-1973. Thereafter, on 28-7-1989, this appeal was dismissed for want of prosecution. Thereafter, this appeal was restored to original file. Thereafter, multiple round of litigations took place in the form of review etc. against the order of restoration/readmission, but ultimately, the Supreme Court by order dated 23-8-2024 passed in SLP (Civil) No. ...... 2024 (Diary No. 2967 of 2019), remanded the matter back to the High Court for judgment on merits.
5. Although, the Counsel for the parties continued to appear after remand, but later on, they started pleading no instructions, as a result fresh notices were issued to the parties. When all the respondents were not being served, then the notices were served by substituted mode by publication. It appears that all the facts were not being disclosed during the consideration of interlocutory applications, therefore, on 24-7-2025 it was observed by this Court, that "With heavy heart, it is being observed that all these facts were Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 3 F.A. No.5 of 1976 initially suppressed by the Lawyers, and only when this court was hearing MCC No. 4122 of 2025, then it came to know about the fact that certain other S.L.P.S were also filed before the Supreme Court." Thereafter, when the arguments began on 31-7-2025, it was found that the entire record of the Trial Court has not been received and accordingly, the Principal District and Sessions Judge, Gwalior was directed to ensure that the entire record is sent. Thereafter, a memo was received from the office of Principal District and Sessions Judge, Gwalior that by retaining some of the original documents, the remaining record of the Trial Court has already been destroyed in the year 2006. In order dated 6-8-2025, it was observed by this Court that the record was destroyed in the year 2006 as this appeal was dismissed for want of prosecution on 28-7-1989 and the appeal was readmitted for hearing by order dated 6-11-2012. Accordingly, this Court was left with no other option, but to request the Counsel for the parties, to file all the self attested documents which are in their possession, so that the record can be reconstructed. Although the Appellants filed some of the documents which according to them were in their possession, but inspite of assurance, the respondents made a specific statement, that they are not in possession of any document. Further more, in order dated 20-8-2025, this Court once again observed, that the respondents are creating all sorts of obstructions in hearing of this appeal. On 3-9-2025, although Shri B.D. Jain, Advocate, made a statement, that he will be filing all the documents (whether relevant or not) which are in his possession, but later on a somersault was taken by respondents by claiming that they are not in possession of any document. Accordingly, this fact was also mentioned elaborately in order sheet dated 10-9-2025. Even an attempt was made by Shri B.D. Jain, Advocate, to further delay the hearing of this Case, by submitting that if this Court is aggrieved by his conduct, then he is Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 4 F.A. No.5 of 1976 ready to withdraw himself. However, all the attempts by the respondents were foiled by this Court and ultimately, the final hearing started on 12-11- 2025 which was concluded on 13-11-2025. Thus, it is observed that there was every attempt on the part of the respondents to avoid hearing on one ground or the other. Inspite of the fact that every opportunity was given to respondents to file all the documents which were in their possession but they did not avail that opportunity and now, it was once contended by Counsel for respondent no.2 (i), that since, the entire record is not available, therefore, the appeal should be dismissed and the decree passed by the Trial Court be affirmed. However, the aforesaid objection with regard to hearing raised by Counsel for respondent no. 2(i) shall be considered in later part of this Judgment.
Facts of the case
6. The Undisputed fact is that Malka Begum (Def. No. 6) who was the sister of Saiyad Habib Shah and Saiyad Mansoor Shah, had filed a Civil Suit No. 7-A/1964 for partition. The Said suit was allowed by Trial Court and it was held that Malka Begum (Def. No. 6) has 1/5th share whereas Saiyad Mansoor Shah and Plaintiff Habib Shah has 2/5 th share each. The said Judgment and Decree was also affirmed by High Court and Supreme Court. The original record of C.S. No. 7-A/1964 is available and is attached with the record of this case.
7. The suit was filed by original plaintiff Saiyad Habib Shah for a declaration that the document titled as Dastbardari (nLrcjnkjh) dated 23-2- 1966 be declared as null and void and information be given to Registrar, Sub- District Gwalior and cost of the suit be also awarded. The suit was filed against the legal representatives of his elder brother Saiyad Mansoor Shah Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 5 F.A. No.5 of 1976 (Def. No. 1 to 5), his sister Ms. Malka Begum (Def. No. 6) and his own wife Ms. Shahzadi Begum (Def. No.7).
8. According to the plaintiff, the pedigree is as under :
Kadar Shah | Smt. Sugra Begum (Wd/o Kadar Shah) ____________________ __________|_____________________ | | | Saiyad Mansoor Shah Saiyad Habib Shah @ Malka Begum @ Badshah Miyan Nawab Miyan (Plaintiff) (Defendant No.6) |______________________________________________________ | | | | | Mst. Mumtaz Mohd. Khusro Koshar Shah Rais Miyan Ku. Budrunisha Jehan Begum (Def.No. 1) (Def No. 2) (Def No. 3) (Def No. 4) (Def. No.5)
9. The aforesaid pedigree is undisputed. Saiyad Mansoor Shah @ Badshah Miyan had already expired prior to filing of suit, therefore, his legal representatives were made party to the suit as defendants no. 1 to 5, whereas Malka Begum was impleaded as defendant no. 6 and Sahjadi Begum, wife of plaintiff, was impleaded as defendant no. 7. In para 5 of the plaint, the details of the property of plaintiff and his predecessors was mentioned which reads as under :
a. Kothi with land and double story house, Municipal Corporation No. 3, Halka Number 14, Madhavganj, Gwalior;
b. Kothi Shivpuri House No. 805, Halka No. 2 ( as it was in the year 1955) in which Kothi, Quarters, platform, garden etc. courtyard 400, situated in mohalla Saeespura, Shivpuri;
c. Bag Gendewali Sadak, Lashkar, Gwalior, total 45 survey numbers, area 18 bigha 4 biswa, land revenue Rs. 141.15 including trees, well, houses etc.;
d. Kothi Motijheel ;
e. Kothi Bahadurpur, Pargana Mungawali, Distt. Guna ;
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 6 F.A. No.5 of 1976 f. Kothi with garden Bahadurpur where the Suba of earlier Zamindar was situated and which is being used for personal residence ; g. House Bahadurpur ;
h. Quarters total 10 in number ;
i. Jewelry and gems worth Rs. 50,000/-.
10. It was pleaded that the aforesaid property belonged to Late Kadar Shah and at the time of death of Kadar Shah, his widow Sugra begum, plaintiff Habib Shah, Saiyad Mansoor Shah and Malka Begum (Defendant no.6) were alive and were residing jointly in Madhavganj, Lashkar, Gwalior and were the joint owner and in possession of the same. Sugra begum expired in the year 1943 and the plaintiff Habib Shah, Saiyad Mansoor Shah and Smt. Malka Begum (Def. No. 6) were the legal representatives of Sugra Begum also. Accordingly, it was pleaded that plaintiff had 2:5th share whereas the defendants no. 1 to 6 had 3:5th share in the property. The property was not partitioned and was joint. For the convenience, some times, the plaintiff and his elder brother Saiyad Mansoor Shah used to live at different places. Since, Saiyad Mansoor Shah was the elder brother of the plaintiff, therefore, plaintiff had faith on him. Smt Malka Begum (Def. No. 6) who was the real sister of Saiyad Mansoor Shah and the plaintiff, had already instituted a suit against plaintiff and Saiyad Mansoor Shah which was registered as C.S. No. 7A/1964. Saiyad Mansoor Shah assured the plaintiff, that he would contest the suit, therefore, directed him to execute Dastbardari (nLrcjnkjh) and accordingly got a document executed on 23-2-1966 in his favor. It was claimed that the aforesaid document is null and void to the share of the plaintiff on the grounds that :
a. There is nothing like Dastbardari (nLrcjnkjh) in muslim law and even if it can be done, still the legal representatives of the plaintiff Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 7 F.A. No.5 of 1976 should have given their consent, and preference cannot be given to any one;
b. The plaintiff had blind faith on Saiyad Mansoor Shah and Dastbardari (nLrcjnkjh) was obtained under undue influence as well as also on account of fiduciary relationship and the plaintiff was not in a position to understand the same and accordingly by taking advantage of faith of plaintiff on Saiyad Mansoor Shah, the aforesaid document was obtained;
c. Since, the document was without consideration and there was no occasion for the plaintiff to surrender property worth Rs. One lakh and since, his wife Shahzadi Begum and her children are minor therefore, it would have adverse effect on their rights; d. Only the property belonging to person can be surrendered and undefined share cannot be surrendered and the possession of the property is still with plaintiff;
e. That the relationship of plaintiff with Saiyad Mansoor Shah were not cordial and there were differences between them; f. Since, the property was uncertain therefore, the document is null and void;
g. The document is ineffective as it is contrary to the provisions of Stamp Act and Registration Act;
h. The aforesaid document was executed with an intention to defeat the claim of Malka Begum, therefore, it is null and void.
11. It was further pleaded that Saiyad Mansoor Shah has expired and the defendants no. 1 to 5 are his legal representatives.
12. As evident from the judgment passed by the Trial Court, the legal representatives of Late Saiyad Mansoor Shah/defendants no. 1 to 5 filed a joint written statement, claiming that Saiyad Mansoor Shah had one more widow with 5 daughters from him. The entire disputed property was not ancestral property and some of the property was acquired by Saiyad Mansoor Shah and some has been sold. It was contended that the suit property was Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 8 F.A. No.5 of 1976 otherwise Jagir property and therefore, after the demise of Kadar Shah, Saiyad Mansoor Shah inherited the entire property under the rule of primogeniture to exclusive possession thereof and the plaintiff lived away in Chhinde Ki Chhavani during the life of Saiyad Mansoor Shah. The pleading that the document dated 23-2-1966 is null and void was also denied. It was pleaded that in fact two documents were executed on 23-3-1966 i.e., Dastbardari (nLrcjnkjh) and another was a receipt of Rs. 10000/-, which was by way of consideration for the first document. Therefore, it was pleaded that the document Dastbardari (nLrcjnkjh) was not without consideration.
13. The defendant no. 6 Malka Begum who is the real sister of Late Saiyad Mansoor Shah and the plaintiff, admitted the share of the plaintiff to the extent of 2/5th in the property left by Kadar Shah. She contended that her suit has also been decreed.
14. It was observed by the Trial Court that defendant no. 7 Shahzadi Begum was the colluding defendant.
15. The Trial Court after framing issues and recording evidence dismissed the suit.
16. Challenging the judgment and decree passed by the Trial Court, it is submitted by Counsel for the appellant, that if Dastbardari (nLrcjnkjh) is read as a whole, then it would be clear that it was not a surrender deed, but it was a declaration that the entire property belongs to Saiyad Mansoor Shah and he and Malka Begum (Def. No. 6) has no right in the property. In order to surrender the right or title, the person surrendering his title, must be having his right, but if Dastbardari (nLrcjnkjh) is read in whole, then it is clear that the share of original plaintiff was never recognized, therefore, the Trial Court has wrongly held that it was a relinquishment deed. It is further submitted that the Dastbardari (nLrjcjnkjh) was got executed in order to frustrate the suit of Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 9 F.A. No.5 of 1976 Malka Begum (Def. No. 6). Further more, the Dastbardari (nLrcjnkjh) was got executed under undue influence. In Dastbardari (nLrcjnkjh) Ex. D.2, it has been specifically mentioned that this document is being executed without consideration and therefore, receipt Ex. D.1 cannot be read to hold that Dastbardari (nLrcjnkjh) Ex. D.2, was executed for consideration amount. It is further submitted that in a proceedings initiated by one Parvez, the legal representatives of Saiyad Mansoor Shah had filed the copy of Dastbardari (nLrcjnkjh) Ex. D.2, but the same was rejected by the Court. It is further submitted that no occasion had arisen for Habib Shah to execute Dastbardari (nLrcjnkjh) Ex. D.2, as succession had not opened by that time. It is further submitted that I.A. No. 3603 of 2015 has been filed along with copy of Will executed by Kadar Shah, which clearly show that the share of the plaintiff was protected by Late Kadar Shah. Similarly, I.A. No. 3807 of 15 has been filed under Order 41 Rule 27 CPC along with the certified copy of order dated 17-10-2008 passed by 1st Additional District Judge, Gwalior in M.C.C. No. 21/08, by which the Court had rejected the Dastbardari (nLrjcjnkjh). The Counsel for the Appellants have relied upon the judgments passed by Supreme Court in the case of Kamal Kishore Sehgal (D) Thr. LR.s and Ors. Vs. Murti Devi (Dead) Thr. LRs. Decided on 19-9-2024 in C.A. No. 9482 of 2013 and Ramcharan Das Vs. Girjanandini Devi and other reported in AIR 1966 SC 323.
17. Per contra, the appeal is vehemently opposed by Counsel for respondents no. 2(i) and 2(ii). It is submitted that intention behind Dastbardari (nLrjcjnkjh), Ex. D.2 should be considered and by reading in between the lines, this Court must hold that the basic intention behind executing Dastbardari (nLrcjnkjh) Ex. D.2 was to surrender his share in favor of Saiyad Mansoor Shah. The plaintiff has failed to prove that the Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 10 F.A. No.5 of 1976 Dastbardari (nLrcjnkjh) Ex. D.2 was got executed under any undue influence or fraud or misrepresentation. It was never the intention of Saiyad Mansoor Shah to utilize the said Dastbardari (nLrcjnkjh) Ex. D.2 in the suit filed by Malka Begum (Def. No. 6), therefore, it was not filed either in the suit nor during the pendency of drawing final decree. It is further submitted that although no written reply has been filed to I.A. No. 3603 of 2015, but Will filed along with aforesaid application is contrary to the pleadings of the plaintiff himself. It is further submitted that although the answering respondents have not denied the genuineness of the Will by filing written reply, but it may not be relied upon. Dastbardari (nLrcjnkjh) Ex. D.2 was not executed with an intention to frustrate the suit filed by Malka Begum (Def. No. 6), the sister of Saiyad Mansoor Shah and Habib Shah. It is further submitted that succession was already opened at the time of execution of Dastbardari (nLrcjnkjh) Ex. D.2. It is further submitted that although in the Preliminary Decree passed in the suit filed by Malka Begum, it was held that Saiyad Mansoor Shah and plaintiff Habib Shah have 2/5th share each, but the said Preliminary Decree is not correct because plaintiff Habib Shah had already relinquished his share in the year 1966, i.e., much prior to passing of Preliminary Decree. However, it was fairly submitted that legal heirs of Saiyad Mansoor Shah never produced Dastbardari (nLrcjnkjh) Ex. D.2 at any point of time in the suit filed by Malka Begum (Def. No. 6) specifically at the time of drawing of Final Decree also. In the alternative, it is submitted that the use of word " Defendants No. 1 and 2" as mentioned in Final Decree means "Malka Begum" and "Gaus Mohd" because in the cause title, the defendant no.1 is Malka Begum (Wd/o of Saiyad Mansoor Shah) and defendant no.2 is Gaus Mohd. (son of Saiyad Mansoor Shah). It is further submitted that the legal representatives of Habib Shah cannot claim any Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 11 F.A. No.5 of 1976 independent right and as per the provisions of Order 22 Rule 3 and 4 of CPC, they can only claim the rights of their predecessor. It is submitted that since Habib Shah had executed Dastbardari (nLrcjnkjh) Ex. D.2, therefore, inspite of the Final Decree passed in the Civil Suit instituted by Malka Begum (Sister of Saiyad Mansoor Shah and Habib Shah), the legal representatives of Habib Shah are bound by Dastbardari (nLrcjnkjh) Ex. D.2. In order to prove undue influence, a party is required to prove domination, but in the plaint itself, it has been mentioned that relationship between Saiyad Mansoor Shah and plaintiff Habib Shah are not cordial. It is further submitted that Habib Shah had executed Dastbardari (nLrcjnkjh) Ex. D.2, after understanding the same, because P.W.3 has stated specifically that although he tried to persuade Habib Shah not to execute Dastbardari (nLrcjnkjh) Ex. D.2, but inspite of that he executed the same. It is further submitted that although this Court has allowed the legal representatives of Shahzadi Begum to be transposed as appellants, but in fact Shahzadi Begum who was the Widow of Habib Shah was consciously made defendant in the plaint, therefore, they should not have been transposed as Appellants being legal heirs of Habib Shah. It is further submitted that although this Court has already rejected his application to dismiss the appeal on the ground of non-availability of original record, but since, the order sheets, written statement of the defendants/respondents could not be reconstituted, therefore, the appeal should be dismissed. It is further submitted that the findings of facts recorded by the Trial Court should not be disturbed unless it is materially erroneous. The Counsel for the respondents no. 2(i) relied upon the judgments passed by Supreme Court in the cases of Ram Charan Das (Supra), Shehammal v. Hassan Khani Rawther reported in (2011) 9 SCC 223, Gulam Abbas v. Haji Kayyum Ali reported in (1973) 1 SCC 1, Bhagwan Krishan Gupta (2) v. Prabha Gupta, reported Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 12 F.A. No.5 of 1976 in AIR 2009 SC 1631, Gulabrao Balwantrao Shinde v. Chhabubai Balwantrao Shinde, reported in AIR 2003 SC 160, Siddu Venkappa Devadiga v. Rangu S. Devadiga, reported in AIR 1977 SC 890, Madhusudan Das v. Narayanibai reported in AIR 1983 SC 114, Shyam Deo Pandey and others Vs. State of Bihar reported in AIR 1971 SC 1606 and Raja Ram v. Jai Prakash Singh reported in (2019) 8 SCC 701.
18. Heard the learned Counsel for the parties.
Whether the Legal Heirs of Shahzadi (Def. No. 7) should not have been transposed by this Court as Co-Appellants being legal heirs of original plaintiff Hahib Shah
19. Undisputedly Shahzadi Begum is the widow of plaintiff Habib Shah. Although no relief was claimed by plaintiff against Shahzadi Begum, but still She was impleaded as defendant in the suit and therefore, the Trial Court has held that Shahzadi Begum is a colluding defendant. Further more, the legal representatives of Shahzadi Begum are also the legal representatives of plaintiff Habib Shah, being his children, therefore, even otherwise, they cannot be deprived of any right which would accrue to them on the death of their father Habib Shah/plaintiff and their non-impleadment as co-appellants would not adversely effect their rights. Therefore, on that ground also, the transposition of Legal Heirs of Shahzadi Begum as co-appellant would not make any difference. Further more, I.A. No. 7786 of 2025 has already been allowed by this Court, and principle of res-judicata is applicable to the same proceedings. The Supreme Court in the case of Ajay Mohan Vs. H.N. Rai reported in (2008) 2 SCC 507 has held as under :
19. It is a trite law that the principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi, Arjun Singh v. Mohindra Kumar, C.V. Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 13 F.A. No.5 of 1976 Rajendran v. N.M. Muhammed Kunhi, Ishwar Dutt v. Land Acquisition Collector and Bhanu Kumar Jain v. Archana Kumar.)
20. Therefore, the objection raised by Counsel for respondent no. 2(i) with regard to transposition of legal heirs of Shahzadi Begum as co-appellants is hereby rejected.
Whether this appeal cannot be heard in absence of complete record of the Trial Court?
21. It is next contended by Counsel for respondent no. 2(i), that since, the entire original record of the Trial Court could not be reconstituted and the order sheets of the Trial Court as well as written statement of defendants are not on record, therefore, the appeal cannot be heard and should be dismissed. He relied upon judgment passed by Supreme Court in the case of Shyam Deo Pandey (Supra) and submitted that the Judgment passed by the Trial Court be maintained.
22. Heard the learned Counsel.
23. At the cost of repetition, it is not out of place to mention here that by order dated 28-7-1989, this Appeal was dismissed for want of prosecution. Thereafter, an application for readmission of this appeal was filed and after multiple rounds of litigation before this Court, this appeal was restored to its original file by order dated 23-8-2024 passed in SLP (Civil) No. ...... 2024 (Diary No. 2967 of 2019). However, in the meanwhile the record of the Trial Court was destroyed in the year 2006 by retaining certain original documents. Accordingly, this Court had directed for reconstruction of record and the Counsel for the parties were directed to file all the documents which are in their possession. The Counsel for the respondents did not file any document and by way of camaflouge they filed the documents after downloading from the ERP, but they did not file any additional document. This Court had also Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 14 F.A. No.5 of 1976 expressed displeasure over non-cooperation extended by the respondents and accordingly, an application was also filed by respondents for expunging the displeasure which was rejected by this Court by order dated 8-10-2025, which reads as under :
"The suit in question was filed in the year 1969 and even after expiry of 56 long years, a situation is being created where this Court is unable to hear this appeal finally. This observation is being made in view of I.A. No.7714/2025.
2. Earlier, the appeal was dismissed in default and, ultimately, the matter went to the Supreme Court and the Supreme Court, vide order dated 23/8/2024 passed in SLP Civil No. ___/2024 (Diary No. 2967/19) directed that there should be an adjudication on merits. Accordingly, the matter was taken up for the first time on 22/11/2024. Initially the case was adjourned at the request of counsel for the parties on the ground that parties have already taken back the files. Then time was consumed for service of notice on all the parties. However, it appears that every attempt is being made to ensure that the case is not heard by this Court. Even on certain occasions, it was found by this Court that all facts are not being disclosed completely.
3. MCC No.4122/2024 filed by one of the co-defendants Smt. Farida Khusro for restoration of R.P. No.427/2024 was decided by this Court by order dated 2/7/2025, which reads as under:-
"This application has been filed for restoration of R.P. No.427/2024.
2. It is submitted by counsel for applicant that Shri B.D.Jain, who was counsel for applicant in R.P. No.427/2024 was on adjustment and, accordingly, he could not appear on 1/10/2024 when the case was called. It is further submitted that the co-ordinate Bench of this Court, while dismissing the review petition, has taken note of order dated 23/8/2024 passed by Supreme Court in Diary No.2967/2019, whereas plaintiff had already withdrawn his Special Leave to Appeal (Civil) No.12062/2018 and, thus, it is prayed that Review Petition No.427/2024 be restored to its original file.Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 15 F.A. No.5 of 1976
3. Considered the submissions made by counsel for applicant.
4. This case has an ex-chequered history which has not been given in detail in the application for restoration of R.P. No.427/2024.
5. It appears that respondent Syed Habib Shah filed a suit for partition which was dismissed, against which F.A. No.5/1976 was filed. The said first appeal was dismissed for want of prosecution by order dated 28/7/1989. Accordingly, MCC No.491/2010 was filed for restoration of F.A. No.5/1976 and the same was allowed by order dated 6/11/2012 and F.A. No.5/1976 was restored to its original file. Thereafter, R.P. No.2/2016 was filed for review of order dated 6/11/2012 passed in M.C.C. No.491/2010. The said review petition was allowed and order dated 6/11/2012 passed in MCC No. 491/2010 was recalled and MCC No.491/2010 was restored to its original file. As F.A. No.5/1976 was already restored in the light of order dated 6/11/2012 passed in MCC No. 491/2010 and since the said order was recalled by order dated 4/1/2018 passed in R.P. No.2/2016, therefore, F.A. No.5/1976 was dismissed by order dated 4/1/2018 in terms of order dated 28/7/1989.
6. It appears that plaintiff/respondent filed Special Leave to Appeal (Civil) No.12062/2018 against the order dated 4/1/2018 passed in F.A. No.5/1976 by which which F.A. No.5/1976 was dismissed. The plaintiff withdrew the Special Leave to Appeal (Civil) No.12062/2018 by making a submission that out of Court settlement has taken place and, accordingly, by order dated 25/3/2019, Special Leave to Appeal (Civil) No.12062/2018 was dismissed as withdrawn.
7. It appears that before Special Leave to Appeal (Civil) No.12062/2018 could be withdrawn, some of the defendants namely Badshah Miya and Sayed Babar Shah filed SLP (Civil) Diary No.2967/2019 against the order dated 4/1/2018 passed by Division Bench of this Court in R.P. No.2/2016 and by order dated 23/8/2024, Supreme Court held - "to ensure that the litigation, which is pending for more than fifty years, is decided, Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 16 F.A. No.5 of 1976 this Court is of the opinion that there should be an adjudication on merits" and, accordingly, the appeal was allowed and order dated 4/1/2018 passed in R.P.No.2/2016 was set aside and the order dated 6/11/2012 passed by this Court in MCC No.491/2010 was restored. Thus, F.A. No.5/1976 stood restored and is also listed in this month for final hearing at motion stage.
8. It is the contention of applicant that since the aforesaid defendants have suppressed the fact that plaintiff/respondent had already withdrawn his Special Leave to Appeal (Civil) No.12062/2018, therefore, the reliance placed by co-ordinate Bench of this Court on order dated 23/8/2024 passed in SLP (Civil) Diary No.2967/2019 is misconceived.
9. In the considered opinion of this Court, if applicant is of the view that order dated 23/8/2024 passed in SLP (Civil) Diary No.2967/2019 was obtained by suppressing material fact, then the only remedy available to applicant is to approach the Supreme Court. This Court cannot adjudicate as to whether order dated 23/8/2024 passed by Supreme Court in SLP (Civil) Diary No.2967/2019 is correct or not.
10. From the plain reading of order dated 23/8/2024 passed in SLP (Civil) Diary No.2967/2019, it is clear that Supreme Court has made it clear that as the litigation is pending for last more than fifty years, therefore, the same should be decided on merits.
11. Under these circumstances, this Court is of considered opinion that no useful purpose would be served by restoring R.P. No.427/2024.
12. Accordingly, with liberty to the applicant to take legal recourse which may be available to her, this application for restoration of R.P. No.427/2024 is hereby dismissed."
In this order, this Court had specifically mentioned that this case has an ex-chequered history and details of same have not been given by Smt. Farida Khusro in her MCC No.4122/2024. Even during the course of arguments in MCC Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 17 F.A. No.5 of 1976 No.4122/2024, the Counsel for Smt. Farida Khusro had levelled allegations against plaintiff and co-defendants of suppression of material facts.
4. Be that whatever it may be.
5. Right from very beginning, parties were alleging against each other about suppression of material facts. Thereafter, this case was taken up on 16/7/2025 and the following order was passed:-
"It appears that multiple S.L.Ps. were filed by different parties, but the details of the same are not being disclosed by counsel for parties, thereby creating lot of confusion. Nobody has pointed out the details of various litigations done by them after dismissal of this appeal for want of prosecution.
Accordingly, counsel for parties are directed to file details of all the litigations done by them before the Supreme Court, or before this Court, as well as before any other Court or forum, and effect of said litigations. At this stage, it is submitted by Shri Anil Mishra that some more judgments were passed by the Civil Court in which important facts were suppressed by the parties. Accordingly, counsel for parties are directed to file tabular sheet pointing out the details of litigation which took place either before the Supreme Court, or before this Court, or before the trial Court.
Call on 17.07.2025."
6. Accordingly, counsel for the parties were directed to file details of litigation in tabular form. On 24/7/2025, an observation was made that facts are being suppressed from this Court by the lawyers. Ultimately, it was found that record of the trial Court has already been destroyed in the year 2006 and, accordingly, by order dated 6/8/2025, counsel for the parties were directed to file self attested copy of documents so that the file can be reconstructed. Thereafter, on 20/8/2025, counsel for respondents tried to divert the case by alleging that certain documents have been filed with forged signatures of counsel for the respondents to show that copy has been supplied. Although, counsel for respondents were continuously insisting for enquiry, but this Court by order dated 20/8/2025, had observed that the conduct of counsel for respondents is indicative of the fact that Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 18 F.A. No.5 of 1976 they are trying to create all sorts of obstructions in hearing of this case.
7. Be that whatever it may be.
8. On 3/9/2025, it was expressed by Shri B.D.Jain, Advocate that he is ready and willing to file all the documents which are in his possession and, accordingly, the case was adjourned for 10/9/2025. Later on, it appears that Shri Santosh Agrawal, counsel for respondent No.2 provided copies of documents which have already been uploaded by the High Court on ERP to Shri B.D.Jain and Shri B.D.Jain filed the same. All these aspects have been taken note of by this Court in different ordersheets including order dated 10/9/2025.
9. It is really unfortunate that although the suit was filed in the year 1969, the suit was dismissed on 6/1/1973 and the appeal is pending since then and the Supreme Court has already observed that there should be an adjudication on merits, but still all sorts of hindrances are being caused in hearing of this case.
10. The aforesaid observation is only with an intention to point out that in spite of best efforts, this Court is unable to take up the matter for hearing.
11. Now I.A. No.7714/2025 has been filed for expunging displeasure shown by this Court in order dated 10/9/2025.
12. It was submitted by Shri Santosh Agrawal that in fact this Court has commented upon his conduct which may cause trouble for him in future and, therefore, the displeasure shown by this Court in order dated 10/9/2025 may be expunged.
13. Accordingly, Shri Santosh Agrawal was directed to read out the order dated 10/9/2025 and to point out the specific line in which this Court has expressed displeasure about the conduct of Shri Santosh Agrawal. Shri Santosh Agrawal, after going through the order twice, fairly conceded that there is no personal comment about his conduct.
14. At this stage, it is submitted by Shri B.D.Jain that in case if this Court is aggrieved by his conduct, then he is ready to withdraw himself.
15. It is already pointed out that the civil suit was filed in the year 1969 and the appeal has been restored by the Supreme Court with a specific observation that the rights should be adjudicated on merits and approximately one year has passed from the date of restoration of this appeal by the Supreme Court, Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 19 F.A. No.5 of 1976 still, on one pretext or the other, all sorts of hindrances are being caused. At the cost of repetition, it is once again clarified that the aforesaid observation is only to show that this Court is unable to take up this matter for final hearing in spite of its best efforts.
16. Be that whatever it may be.
17. Since I.A. No.7714/2025 has also been signed by Shri B.D.Jain, Advocate, therefore, he was also directed to point out as to whether any personal comment has been made about his conduct or not. He also could not point out any personal observation about his conduct. Although Shri Santosh Agrawal and Shri B.D.Jain submitted that from order dated 10/9/2025 it appears that this Court has passed certain comments upon them, but personal understanding of an order by lawyers is not crucial, specifically when in spite of repeated requests by this Court, they could not point out any observation about their conduct in the order dated 10/9/2025.
18. Further more, once the record of the Trial Court has already been destroyed, therefore, this Court was trying very hard to ensure the complete reconstruction of file, but ultimately did not get the co-operation in that regard, which was expected from the parties.
19. By way of last resort to support I.A. No.7714/2025, Shri Santosh Agrawal referred to order dated 24/7/2025 and submitted that in the said order, this Court had observed that certain facts were suppressed by lawyers while this Court was hearing MCC No.4122/2024.
20. This Court has already reproduced the order dated 2/7/2025 passed in MCC No.4122/2024. During the course of arguments in MCC No.4122/2024, even counsel for respondents had levelled allegations against various parties. They had also levelled allegation that order of restoration has been obtained by one of the parties by suppressing facts. Therefore, any observation which has been made by this Court in the order dated 24/7/2025 was in respect of stand taken by counsel themselves. Furthermore, MCC No.4122/2024 was argued by Shri Tej Singh Mahadik, Advocate. During the course of arguments, he never disclosed that F.A. No.5/1976 had already been restored by the Supreme Court. Further more, when Shri T.K. Mahadik, Advocate who is an associate counsel of Shri B.D. Jain, was aware of the fact that this case has already been restored by Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 20 F.A. No.5 of 1976 Supreme Court, then he should not have pressed the MCC No. 4122/2024, but even that was not done, and the fact that this appeal has already been restored by Supreme Court was not voluntarily disclosed by Shri Mahadik.
21. Be that whatever it may be.
22. In order to avoid any confusion in the mind of lawyers, it is once again clarified that the conduct is being mentioned in orders, only in order to show the hindrances which are being created in the hearing of this case and any observation made in the previous orders has nothing to do with final disposal of appeal. The appeal shall be decided on its own merits without getting influenced or prejudiced by any of the observations made in the previous orders with regard to the conduct of parties in creating hurdles.
23. Again Shri B.D.Jain submitted that he is ready to withdraw himself.
24. This Court is unable to understand the conduct of Shri B.D.Jain. It is the prerogative of his litigant and not for the Court to take a decision in that regard.
25. The manner in which the case is being argued and the manner in which it was argued today, it appeared to this Court that respondents do not want hearing in this Court. Therefore, this Court voluntarily offered that in case if any of the party has any reservations about this Court, then this Court can recuse itself because not only justice should be done, but it should also seen to have been done. However, none of the parties requested for recusal by this Court.
26. Be that whatever it may be.
27. This Court would also like to refer to some of the applications filed in the present appeal and the orders passed by this Court.
28. The appellant, Irfan filed an application for change of Counsel which was registered as I.A. No. 14903 of 2017, which reads as under :
आवेदन प वा ते अ य अ भभाषक नयु त कये जाने वावत
अपीलांट/ ाथ क ओर से आवेदन प न नानुसार तुत है -
1-यह क, अपीलांट/ ाथ वारा तुत कये गये उपरो त र यू आवेदन प म अपनी ओर से अ भभाषक ी डी०डी०
बंसल एवम समीर ीवा तव एडवोकेट को पैरवी करने हे तु अपना अ भभाषक नयु त कया गया है । अपीलांट/ ाथ ने
अपने उपरो त अ भभाषक से यि तगत प से संपक कये जाने पर, करण से संबं धत जानकार लये जाने का
यास कया, तो उपरो त ाथ के अ भभाषक वारा उसको सह जानकार दाय नह क ।
2-यह क, अपीलांट/ ाथ का अपने वारा नयु त उपरो त अ भभाषक का यवहार अपीलांट / ाथ के त उ चत एवम
संतोष जनक नह ं रहा, इस कारण अपीलांट / ाथ ने अपने उपरो त अ भभाषक से उपरो त करण मे अ य
अ भभाषक नयु त कये जाने के लये अनाप माण प चाहा गया, तो उपरो त अ भभाषक वारा अपीलांट / ाथ
Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 27-11-2025
08:36:13 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:30713
21 F.A. No.5 of 1976
को अनाप माण प दये जाने से मना कर दया, इससे अपीलांट/ ाथ अब अपने उपरो त अ भभाषक को उपरो त
करण मे अपना अ भभाषक पैरवी हेतु नह रखना चाहता है । इस कारण अपीलांट/ ाथ को उपरो त अ भभाषक से अनाप माण प दलाया जावे, अथवा करण म अपनी ओर से उनके थान पर अ य अ भभाषक नयु त कये जाने क अनुम त दान क जाय।
3-यह क, माननीय यायालय के सम संचा लत करण म अ य अ भभाषक का वकालतनामा पूव से नयु त अ भभाषक से अनाप माण प ा त कये बना तुत नह ं कया जा सकता, इस कारण अपीलांट/ ाथ वारा यह आवेदन प माननीय यायालय के सम तुत कया जाना आव यक हुआ है ।
अतएव आवेदन प वीकार कया जाकर अपीलांट / ाथ को उसके वारा वतमान करण मे नयु त अ भभाषक से अनाप माण प व उनके पास अपीलांट / ाथ क करण प का वा पस दलाये जाने हे तु नद शत करना व करण म अपीलांट/ ाथ को अपनी ओर से अ य अ भभाषक नयु त कये जाने क अनुम त दान करने क कृपा कर।
दनांक 6-10-17 ाथ (सह /-) इरफान
संल नः वकालतनामा इरफान खां पु व० सैययद जहागीर शाह,
नवासी एफ-216 मयूर वहार कालोनी अशोका गाडन
हुजूर भोपाल म० ०
- अपीलांट / ाथ
29. On 20-11-2017, a statement was made by appellant Irfan that he had not voluntarily filed IA. No. 14903 of 2017 and accordingly, following order was passed "Gwalior Dt. 20/11/17 Appellant is present in person and submits that though he had signed the application for change of counsel being I.A.No.14903/17 but the same was not done voluntarily.
The appellant may file appropriate application in that regard.
Let the same be done within two days.
List thereafter."
Thereafter, I.A. No. 15907 of 2017 was filed by appellant Irfan which reads as under :
आवेदन प वा ते पूव के अ भभाषक नयु त कये जाने बावत ्।
आवेदन प न नानुसार तुत है :-
अपीलांट वारा तुत कये गये उपरो त र यू म मने अपनी ओर से डी.डी. बंसल एवं समीर ीवा तव वक ल साहब
को पैरवी करने के लये नयु त कया हुआ है।
2-मेरे वक ल डी.डी. बंसल व समीर ीवा तव वक ल साहब से शु से ह मधुर संबंध रहे ह, और आज भी ह। मुझ े
दोनो वक ल साहब ने शु से ह केस क पूर व सह जानकार हमेशा द है । मेरे साथ कभी भी गलत यवहार नह ं
कया है । मुझे मेरे वरोधी प ा केवक ल क बी.डी. जैन ने गलत जानकार दे कर व पैस का लालच दे कर गुमराह कर मुझसे गलत व फज कागज तैयार कर साईन करवा लये व कोट म तुत कर दये ह। मुझे अभी 02/11/17 को तार ख पर मालूम पड़ा क बी.डी. जैन वक ल साहब ने मेरे साथ धोखा कया है। मेरे पुराने वक ल डी.डी. बंसल व समीर ीवा तव को केस से हटवा दया व अपना वक ल वजय सु दरम रखवा दया क जानकार होने पर म यह आवेदन यायालय के सम वयं उपि थत होकर शपथ प के साथ दे रहा हूँ। म अब वजय सु दरम वक ल साहब से पैरवी नह ं करवाना चाहता हूँ य क ये वरोधी प के वक ल बी. डी. जैन से मले हुये ह, म अपने केस म पूव से नयु त डी.डी. बंसल व समीर ीवा तव वक ल साहब को ह अपना वक ल रखना चाहता हूँ।
दनांक 08.11.2017 आवेदक/अपीलांट
थान वा लयर सैयद हबीव शाह मत
ृ
वाह वा रस इरफान
पु व. जहांग ीर
30. On 27-11-2017, the following order was passed :
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 22 F.A. No.5 of 1976 "GWALIOR : 27.11.2017 Shri Vijay Sundaram, Advocate with appellant in person.
I.A. No.14903/2017, an application for engaging the counsel, whereby the appellant seeks permission to change the counsel.
When the application is taken up today, the appellant appearing in person prays for permission to withdraw such application and submits that he was continued with the counsel engaged by him earlier.
Permission granted.
I.A. No.14903/2017 stands dismissed as withdrawn. In view whereof no further order is warranted in I.A. No.15907/2017, which was disposed of.
List the matter alongwith Review Petition No.2/2016 on 29.11.2017."
31. Thus, it appears that earlier also, serious allegations were made by the appellant against Shri B.D. Jain and Shri Jain had not filed any reply in rebuttal of such allegations. The aforesaid fact has been mentioned in order to point out that every thing is not smooth in the present case.
32. Under the hope and belief that no further hindrance will be created in hearing of this appeal which has arisen out of civil suit filed in the year 1969, I.A. No.7714/2025 is hereby dismissed and it is held that no observation is liable to be expunged from any of the orders.
33. Considered I.A. No.7786/2025, which is an application under Order 1 Rule 10, CPC for transposition of legal heirs of deceased respondent No.7 as plaintiffs.
34. It is the case of legal heirs of respondent No.7 that deceased respondent No.7 was the legally wedded wife of plaintiff Syed Habib Shah. Respondent No.7 has also expired and after her death, all her rights and interests have devolved upon her legal heirs, who are applicants namely Syed Tajibar, Badshah Miyan and Mst. Nujjat Begum and, accordingly, it was prayed that these three persons may be permitted to be transposed as appellants being legal representatives of plaintiff Syed Habib Shah.
35. Shri B.D.Jain prayed for four days' time to file reply.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 23 F.A. No.5 of 1976
36. Although the question of transposition could have been a contested question in case, if these applicants had sought transposition in their independent rights, but when they are seeking transposition only being legal representatives of Habib shah, then the only question for consideration is as to whether the legal representatives of plaintiff who are respondents in the present case can be transposed as appellants in the capacity of legal representatives of plaintiff or not ?
37. Shri B.D.Jain adopted an adamant attitude that he would not be able to file his reply and he would not be able to prepare his case from aforesaid aspect by tomorrow and he insisted that the case may be taken up only on the next hearing party day.
38. It is further submitted by Shri B.D.Jain that respondent No.1 has expired.
39. Counsel for appellant has prayed for a day's time for filing necessary application, but in view of repeated requests of Shri B.D.Jain that he would not be able to file his reply to I.A. No.7786/2025 by tomorrow, this Court is left with no other option but to adjourn the case.
40. With a solitary intention to give sufficiently long time to the parties to prepare the case as well as to file all the applications which may be necessary for final disposal of this appeal, the case is adjourned for three weeks. It is not out of place to mention here that one complete week is holiday on account of Diwali and other festivals.
41. Accordingly, list this case on 6/11/2025 i.e. hearing party day available in the week commencing 3/11/2025."
24. Thus, it is clear that the respondents did not file any document inspite of multiple requests and opportunities by this Court. Further more, it is the submission of the Counsel for the respondents that the written statement of the defendants could not be reconstituted therefore, the appeal should be dismissed.
25. Written Statements are the documents of the respondents, but they did not co-operate with the Court in reconstruction of the record. Therefore, they Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 24 F.A. No.5 of 1976 cannot be allowed to take advantage of their own wrong, specifically when the stand taken by the defendants in their written statement has been elaborately mentioned by the Trial Court in its impugned judgment. Therefore, it is held that even if the written statement of the defendants/respondents could not be reconstituted, still it would not jeopardize the interest of any one. So far as the non-reconstruction of order sheets of the Trial Court is concerned, the same also would not have any adverse effect, because during the course of arguments, it was not contended by any of the party that any application was wrongly rejected or allowed by the Trial Court. However, it is made clear that the record of C.S. No. 7- A/1964 (Suit filed by Malka Begum (Def. No.6)) is also attached with this appeal.
26. So far as the judgment passed by Supreme Court in the case of Shyam Deo Pandey (Supra) relied by the Counsel for respondents is concerned, the same is not applicable to Civil Cases. The judgment in the case of Shyam Deo Pandey (Supra) has been passed in criminal case. The Supreme Court after emphasizing the importance of Article 21 of Constitution and after considering the judgment passed in the case of Shyam Deo Pandey (Supra) has held in Jitendra Kumar Rode Vs. Union of India decided on 24-4-2023 in S.L.P. (Cri) No. 2063 of 2023 as under :
35. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the Trial Court. The same can only be done with the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that non compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 25 F.A. No.5 of 1976 result in a violation of Article 21 of Constitution of India, which we find it to be so in the instant case.
27. Further more, the Supreme Court in the case of State of U.P. Vs. Abhai Raj Singh and another reported in (2004) 4 SCC 6 has held that if record has been destroyed then every effort should be made to reconstruct the same and acquittal of accused merely on the ground of non-availability of record would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti-social elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. It has been held as under :
7. A question would further arise as to what happens when reconstruction is not possible. Section 386 empowers the appellate court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Session. (See State of U.P. v. Shankar.) (Underline supplied)
8. It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. In Queen Empress v. Khimat Singh the view taken was that the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short "the old Code") made it obligatory for the court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for reconstruction. The said view was reiterated more than six decades back in Sevugaperumal, Re. The view has been reiterated by several High Courts as well, even thereafter.
9. The High Court did not keep the relevant aspects and considerations in view and came to the abrupt conclusion that reconstruction was not possible merely because there was no response from the Sessions Judge. The order for reconstruction was on 1-11-1993 and the judgment of the High Court is in Criminal Appeal No. 1970 of 1979 dated 25-2-1994. The order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16-8-1995. It Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 26 F.A. No.5 of 1976 is not clear as to why the High Court did not require the Sessions Court to furnish the information about reconstruction of records;
and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard; particularly when no action was taken by the High Court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the High Court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti-social elements coming to hold sway, behind the screen, in the ordinary and normal course of justice.
28. In the present case, there is no question of violation of Article 21 of Constitution of India. Furthermore, on number of times, this Court has already expressed its displeasure with regard to non-cooperation of the respondents in reconstruction of the record. Further more, the only objection of the respondents is with regard to non-availability of order sheets of the Trial Court and the written statement and the Trial Court has already mentioned about the written statement in detail in its impugned judgment. Further more, this Court has already rejected the application for dismissal of appeal by order dated 6-11-2025 and as already pointed out the principle of Res-judicata is applicable to the same proceedings also.
29. Accordingly, prayer for dismissal of appeal on the ground of non- availability of order sheets of the Trial Court and Written Statement of defendants is hereby rejected.
Whether the First Appellate Court should be slow in interfering with the Judgment passed by Trial Court?
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30. Before considering the aforesaid aspect, this Court would like to consider the law pertaining to the powers of First Appellate Court.
31. The Supreme Court in the case of Shasidhar v. Ashwini Uma Mathad, reported in (2015) 11 SCC 269 has held as under :
10. The powers of the first appellate court, while deciding the first appeal under Section 96 read with Order 41 Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
11. As far back in 1969, the learned Judge -- V.R. Krishna Iyer, J.
(as His Lordship then was the Judge of the Kerala High Court) while deciding the first appeal under Section 96 CPC in Kurian Chacko v. Varkey Ouseph, reminded the first appellate court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned Judge held as under: (SCC OnLine Ker paras 1-3) "1. The plaintiff, unsuccessful in two courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate court.
3. Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation."
(emphasis supplied)
12. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate court under Section 96 of the Code. We Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 28 F.A. No.5 of 1976 consider it apposite to refer to some of the decisions.
13. In Santosh Hazari v. Purushottam Tiwari, this Court held as under: (SCC pp. 188-89, para 15) "15. ... the appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
14. In H.K.N. Swami v. Irshad Basith, this Court stated as under:
(SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
15. Again in Jagannath v. Arulappa, while considering the scope of Section 96 of the Code this Court observed as follows: (SCC p. 303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion."
16. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, this Court taking note of all the earlier judgments of this Court reiterated the Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 29 F.A. No.5 of 1976 aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.)
32. The Supreme Court in the case of Murthy v. C. Saradambal, reported in (2022) 3 SCC 209 has held as under :
59. In the circumstances, we hold that the learned trial Judge was right in dismissing the suit. However, the appellate court being the Division Bench has reversed the judgment and decree passed by the trial court and has decreed the suit. On extracting the relevant portions of the judgment of the appellate court, which consists of eleven paragraphs, it is found that the same has been written in a Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 30 F.A. No.5 of 1976 cryptic manner. It is observed that the judgment could be brief and succinct if the appellate court is to dismiss an appeal and affirm the judgment and decree of the trial court. But when the judgment and decree of the trial court is to be reversed then it is incumbent upon the appellate court to dwell into the matter in detail and to give reasons for reversing the same. Assigning reasons not only makes the judgment wholesome, but is also necessary in order to deduce and lead to just conclusions.
60. Before parting with this case, we would like to reiterate that in this case, the High Court has dealt with the judgment of the learned trial Judge in a shortcut method, bereft of all reasoning while reversing the judgment of the trial court both on facts as well as law. It is trite that the appellate court has jurisdiction to reverse, affirm or modify the findings and the judgment of the trial court.
However, while reversing or modifying the judgment of a trial court, it is the duty of the appellate court to reflect in its judgment, conscious application of mind on the findings recorded supported by reasons, on all issues dealt with, as well as the contentions put forth, and pressed by the parties for decision of the appellate court. No doubt, when the appellate court affirms the judgment of a trial court, the reasoning need not to be elaborate although reappreciation of the evidence and reconsideration of the judgment of the trial court are necessary concomitants. But while reversing a judgment of a trial court, the appellate court must be more conscious of its duty in assigning the reasons for doing so.
61. In this regard, we may usefully rely upon a judgment of this Court in Santosh Hazari v. Purushottam Tiwari, wherein it has been observed that while writing a judgment of reversal, an appellate court must remain conscious of two principles. Firstly, the findings of facts based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. If, on an appraisal of the evidence, it is found that the judgment of the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact but by assigning cogent reasons for doing so. Otherwise, the findings of the trial court should not be interfered with lightly on a question of fact. Secondly, while reversing a Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 31 F.A. No.5 of 1976 finding of fact, it is necessary that the appellate court assigns its own reasons for doing so. This is especially so in case there are further appeals under Section 100 of the Civil Procedure Code, 1908, as the first appellate court is the final court of facts and the said findings are immune from challenge in a second appeal.
62. In B.V. Nagesh v. H.V. Sreenivasa Murthy this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle in these words : (SCC pp. 530-31, paras 3-4) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.)"
63. To a similar effect, are the observations of this Court in Vinod Kumar v. Gangadhar, wherein it has been observed that in a first appeal under Section 96 of the Civil Procedure Code, 1908, the scope and powers conferred on the first appellate court are Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 32 F.A. No.5 of 1976 delineated in Order 41 of the Code and grounds raised in the appeal, reappreciation of evidence adduced by the parties and application of the relevant legal principles and decided case law have to be considered while deciding whether the judgment of the trial court can be sustained or not.
64. It is also necessary to observe that the right to appeal is a creature of statute. The right to file an appeal by an unsuccessful party assailing the judgment of the original court is a valuable right and hence a duty is cast on the appellate court to adjudicate a first appeal both on questions of fact and applicable law. Hence, the reappreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with.
33. The First Appellate Court is the last Court of Facts and therefore, it is required to consider each and every argument advanced by the parties and to elaborately deal with the same. The only rider is that if the First Appellate Court is intending to interfere with the Judgment passed by the Trial Court, then reasons in detail should be given. The First Appellate Court has jurisdiction to reverse or vary the Judgment passed by the Trial Court. Accordingly, the facts of this case would be considered in the light of the powers of First Appellate Court.
Whether Plaintiff Habib Shah had relinquished his Share by executing Dastbardari ( ) Ex. D.2?
Whether Habib Shah had executed the Dastbardari (nLrcjnkjh) Ex. D.2 on account of undue influence?
34. It is undisputed fact that Dastbardari (nLrcjnkjh) Ex. D.2 was executed by Habib Shah, but his pleadings and contentions are that the said document was obtained by Saiyad Mansoor Shah by putting undue influence on him.
35. In Black's Dictionary, the word undue influence has been defined as "The improper use of power or trust in away that deprives a person of free Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 33 F.A. No.5 of 1976 will and substitutes another's objective". The undue influence is "an unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that the person will not act in a manner inconsistent with his welfare." Similarly coercion destroys a testator's free will and substitutes another's objectives in its place.
36. Thus, it can be said that undue influence can be inferred where a stronger party has used physical or mental pressure to subvert the victim's free will to achieve an unfair benefit.
37. Section 16 of Contract Act defines "Undue Influence" which reads as under :
"Undue influence" defined.--(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
Nothing in this sub-section shall affect the provision of Section 111 of the Indian Evidence Act, 1872 (I of 1872).
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38. The first question for consideration is whether the burden to prove that Dastbardari (nLrcjnkjh) Ex. D.2 was got executed by inducing undue influence is on the plaintiff, or the burden to prove that Dastbardari (nLrcjnkjh) Ex. D.2 was not executed by inducing undue influence is on a person who is in a dominating position?
39. The Supreme Court in the case of Krishna Mohan Kul Vs. Pratima Maity reported in (2004) 9 SCC 468 has held as under :
13. In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donee/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before the court.
14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly stated in Ashburner's Principles of Equity, 2nd Edn., p. 229, thus:
"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will."
15. The corollary to that principle is contained in sub-section (3) of Section 16 of the Indian Contract Act, 1872 (in short "the Contract Act").
16*. At this juncture, a classic proposition of law by this Court in Kharbuja Kuer v. Jang Bahadur Rai needs to be noted : (AIR p. 1205, para 5) Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 35 F.A. No.5 of 1976 "It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not."
17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of a pardahnashin lady in Kharbuja Kuer v. Jang Bahadur Rai are logically applicable to the case of old, invalid, infirm (physically and mentally) and illiterate persons.
40. The Supreme Court in the case of Joseph John Peter Sandy v. Veronica Thomas Rajkumar, reported in (2013) 3 SCC 801 has held as under :
"16. 'Undue influence' defined.--(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other."
13. In Bishundeo Narain v. Seogeni Rai while dealing with the issue, this Court held : (AIR p. 283, para 25) "25. ... in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion."
14. The Privy Council in Poosathurai v. Kannappa Chettiar reasoned that : (IA pp. 3-4) "It is a mistake ... to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point 'influence' alone has been made out. Such influence may be used wisely, judiciously and helpfully. But, Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 36 F.A. No.5 of 1976 whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'."
15. In Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd. this Court held : (AIR p. 1290, para 25) "25. The doctrine of undue influence under the common law was evolved by the courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of Section 16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub- section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence."
16. In Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib this Court held that : (AIR p. 878) "The Court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these [two] issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other."
(emphasis supplied) It was further said that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 37 F.A. No.5 of 1976 patient, parent and child are those in which such a presumption arises." (AIR p. 881, para 9)
17. In Afsar Sheikh v. Soleman Bibi this Court held : (SCC pp. 148- 50, paras 22 & 25-27) "22. The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. ...
***
25. Sub-section (3) [of Section 16] contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves--
(a) that the party who had obtained the benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and
(b) that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established and consequently, the burden never shifted on the defendant.
26. ... the Privy Council in Raghunath Prasad v. Sarju Prasad which expounded three stages for consideration of a case of undue influence. It was pointed out that the first thing to be considered is, whether the plaintiff or the party seeking relief on the ground of undue influence has proved that the relations between the parties to each other are such that one is in a position to dominate the will of the other. Up to this point, 'influence' alone has been made out. Once that position is substantiated, the second stage has been reached--namely, the issue whether the transaction has been induced by undue influence. That is to say, it is not sufficient for the person seeking the relief to show that the relations of the parties have been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. ... Upon a determination of the issue at the second stage, a third point emerges, which is of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 38 F.A. No.5 of 1976
27. 'Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. Were they such as to put one in a position to dominate the will of the other.' (Raghunath Prasad case, IA pp. 105-106)"
(emphasis supplied)
18. If there are facts on the record to justify the inference of undue influence, the omission to make an allegation of undue influence specifically, is not fatal to the plaintiff being entitled to relief on that ground; all that the court has to see is that there is no surprise to the defendant. In Hari Singh v. Kanhaiya Lal it was held that mere lack of details in the pleadings cannot be a ground to reject a case for the reason that it can be supplemented through evidence by the parties.
(Underline supplied)
41. There is a difference between burden of proof and onus of proof. Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts.
42. Section 16(3) of Contract Act throws sufficient light that on whom the onus lies to prove that the transaction was not the outcome of undue influence. Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.
43. Therefore, the initial burden would be on the person who has alleged undue influence and he will be required to prove three ingredients i.e., another was in a position to dominate his will and (ii) there was a fiduciary relationship between them and (iii) the transaction appears to be unconscionable. Once the aforesaid three conditions are proved, the onus Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 39 F.A. No.5 of 1976 would shift to the person who was in a dominating position to prove that contract was not induced by undue influence.
Whether elder brother Saiyad Mansoor Shah was in a fiduciary relationship with Plaintiff Habib Shah?
44. The Supreme Court in the case of Marcel Martins v. M. Printer, reported in (2012) 5 SCC 342 has held as under :
31. The expression "fiduciary capacity" has not been defined in the 1988 Act or any other statute for that matter. And yet there is no gainsaying that the same is an expression of known legal significance, the import whereof may be briefly examined at this stage.
32. The term "fiduciary" has been explained by Corpus Juris Secundum as under:
"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from the civil or Roman law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.
The word 'fiduciary', as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and condor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."
33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as under:
"There is a technical distinction between a 'fiducial relation' which is more correctly applicable to legal relationships between parties, Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 40 F.A. No.5 of 1976 such as guardian and ward, administrator and heirs, and other similar relationships, and 'confidential relation' which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised. Generally, the term 'fiduciary' applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations."
34. Black's Law Dictionary (7th Edn., p. 640) defines "fiduciary relationship" thus:
"Fiduciary relationship.--A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships--such as trustee- beneficiary, guardian-ward, agent-principal, and attorney-client-- require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."
35. Stroud's Judicial Dictionary explains the expression "fiduciary capacity" as under:
"Fiduciary capacity.--An administrator who [had] received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it 'in a fiduciary capacity' within the Debtors Act, 1869 so, of the debt due from an executor who is indebted to his testator's estate which he is able to pay but will not, so of moneys in the hands of a receiver, or agent, or manager, or moneys due on an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or moneys which in the compromise of an action have been ordered to be held on certain trusts or partnership moneys received by a partner."
36. Bouvier's Law Dictionary defines "fiduciary capacity" as under:
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 41 F.A. No.5 of 1976 "What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation or society, medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases debt has been held to be not a fiduciary one:
a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."
37. We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay, wherein Raveendran, J. speaking for the Court in that case explained the terms "fiduciary" and "fiduciary relationship" in the following words: (SCC pp. 524-25, para 39) "39. The term 'fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party."
It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 42 F.A. No.5 of 1976
38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-à-vis the respondent- plaintiffs.
45. Although the term "Fiduciary Relationship" may not be capable of precise definition, but if the relationship is founded on confidence and trust on one part and good faith on another part, then fiduciary relationship can be presumed.
46. In the present case, the undisputed fact is that Saiyad Mansoor Shah was the elder brother of plaintiff Habib Shah. Therefore, he was expected to act in confidence and for the benefit and advantage of his younger brother Habib Shah, and use good faith and fairness in dealing with his younger brother Habib Shah or the things belonging to Habib Shah. Thus, it is held that "Fiduciary Relationship" existed between Saiyad Mansoor Shah and his younger brother Habib Shah.
Whether Dastbardari (nLrcjnkjh) Ex. D.2 can be termed as unconscionable?
47. The plaintiff has specifically pleaded in his plaint, that Saiyad Mansoor Shah was in a dominating position being his elder brother. Further the relationship of Saiyad Mansoor Shah and the plaintiff Habib Shah is also undisputed. Further more, by executing Dastbardari (nLrcjnkjh) Ex. D.2, it was projected that plaintiff Habib Shah has admitted the title of Saiyad Mansoor Shah specifically when a civil suit for partition filed their sister Malka Begum (Def. No. 6) was pending. What was the need for Habib Shah to execute Dastbardari (nLrcjnkjh) Ex. D.2 in favor of his elder brother Saiyad Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 43 F.A. No.5 of 1976 Mansoor Shah, specifically when Habib Shah had already filed his written statement in the suit filed by his sister Malka Begum (Def. No. 6), thereby admitting her share in the property? Thus, the explanation given by Habib Shah that he was persuaded by his elder brother Saiyad Mansoor Shah by saying that since, Habib Shah has filed his written statement thereby admitting the claim of his sister Malka Begum (Def. No. 6), therefore, the family would get defamed in the Society, accordingly he should execute Dastbardari (nLrcjnkjh) Ex. D.2 with an assurance that later on both of them would settle the case, appears to be plausible and reasonable. Habib Shah (P.W. 6) has also specifically stated that he did not get anything in lieu of Dastbardari (nLrcjnkjh) Ex. D.2.
48. It is not out of place to mention here that Dastbardari (nLrcjnkjh) Ex. D.2, did not see the light of the day in the Civil Suit filed by Malka Begum (Def. No. 6) (Sister of Saiyad Mansoor Shah and Habib Shah). If Dastbardari (nLrcjnkjh) Ex. D.2, was voluntarily executed by Habib Shah, then Saiyad Mansoor Shah or his legal representatives should have filed the same in the suit filed by their sister Malka Begum (Def. No. 6). Non-filing of Dastbardari (nLrcjnkjh) Ex. D.2 in the civil suit filed by Malka Begum (Def. No. 6), appears to be conscious decision of Saiyad Mansoor Shah, because otherwise, Habib Shah could have disputed the same in the suit filed by his sister Malka Begum (Def. No. 6). Therefore, in order to avoid any challenge to the Dastbardari (nLrcjnkjh) Ex. D.2, it appears that Saiyad Mansoor Shah did not file the same in the civil suit filed by his sister Malka Begum (Def. No.
6).
49. It is not out of place to mention here that a compromise application was filed at the time of passing of Final Decree and in that application also, there was no reference of Dastbardari (nLrcjnkjh) Ex. D.2. The Final Decree in the Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 44 F.A. No.5 of 1976 suit filed by Malka Begum was drawn and after mentioning that which property would go to Malka Begum, it was decreed as under :
6- ;g fd fooknxzLr lEifr;ksa ds uD'kksa es tks okfnuh dk fgLlk yky L;kgh ls n'kkZ;k x;k gS ml fgLls dh lEifr dk i`Fkd caVokjk fd;k tkdj mldk dCtk okfnuh dks fnyk;k tkos] lEifr dk 'ks"k Hkkx izfroknh dzekad 1 ,oa 2 dks okfil fd;k tkos ckx xasMs okyh lMd y'dj ,oa dksBh lbZliqjk f'koiqjh ds fjlhoj Jh vkj ,l lDlsuk vfHkHkk"kd gS rFkk okMk Jh lkgc okds ek/kksxt a ds fjlhoj izfroknh dzekad 1 Jhefr efydk csxe gS vr% nksuksa fjlhojksa dks okfnuh dk 1@5 fgLlk rFkk 'ks"k Hkkx izfroknh dzekad 1 ,oa 2 dks lqiqnZ djus gssrq vkns'k fn;k tkrk gSA xsaMs okyh lMd dh [ksrh dh Hkwfe 18 ch/kk 4 fcLok tks U;k;ky; ds vkns'k ls fjlhoj ds dCts es gS] mldks ekSds ij fgLls eqrkfcd i{kdkjksa ds fjlhoj dCtk nsA
50. Thus, it is clear from the Final Decree which was passed in the suit filed by Malka Begum, it was specifically observed that after giving 1/5th share to Malka Begum, the remaining property be returned back to the defendant no. 1 and 2. In the plaint which was filed by Malka Begum, Saiyad Mansoor Shah was defendant no. 1 and Habib Shah was defendant no.2. Since, Saiyad Mansoor Shah had expired during the pendency of suit filed by Malka Begum, therefore, his legal representatives were brought on record, and they have been shown as defendants no. 1 to 17 in Final Decree and Habib Shah has been shown at serial no. 18. Although the Counsel for the respondent no. 2(i) tried to convince this Court, that defendants no. 1 and 2, as mentioned in the Final Decree indicates Malka Begum Wd/o Saiyad Mansoor Shah and Gaus Ahmed Shah Khusro, because their names are mentioned as defendants no. 1 and 2 in the cause title of the Final Decree but that argument cannot be accepted. If the suggestion given by Shri Santosh Agrawal, Advocate is accepted, then it would mean that the Trial Court had deprived all other legal representatives of Saiyad Mansoor Shah from the Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 45 F.A. No.5 of 1976 property of Saiyad Mansoor Shah. It is not the case of any body. Thus, the defendants no. 1 and 2 as mentioned in the Final Decree has to be interpreted as original Defendants no. 1 and 2 namely Saiyad Mansoor Shah and Habib Shah.
51. There is another aspect of the matter which would negate the contention of the Counsel for the respondent no. 2(i). A preliminary decree was passed in the C.S. No. 7-A/1964 which was filed by Malka Begum (Def. No. 6) against Saiyad Mansoor Shah and Habib Shah. In the preliminary decree it was specifically mentioned as under :
The Plaintiff, Malka Begum being the daughter of Late Kadar Shah is entitled to 1/5th share in the property in suit i.e., Bada, Kampoo Road, Garden, Gendewali Sadak and Shivpuri-kothi as detailed in the plaint maps, and the share of late Mansoor Shah/defendants no. 1 to 17 is 2/5, and that of Habib Shah defendant no. 18 is 2/5 in these properties.
52. Once, it was already held by the Trial Court while passing preliminary decree that Habib Shah has 2/5th share in the properties in dispute, then without there being any subsequent change in law or factual position, the preliminary decree cannot be amended while passing Final Decree. Preliminary Decree is a declaration of rights of the parties and thereafter proceedings are undertaken to actually effect the partition. Since, the Dastbardari (nLrcjnkjh) Ex. D.2 is not subsequent to passing of Preliminary Decree, therefore, if the suggestion given by Counsel for respondent no. 2(i) is accepted then it would amount to amending the Preliminary Decree which cannot be done.
53. Therefore, it is clear that neither at the time of Preliminary Decree nor at the time of passing of Final Decree dated 14-7-1983, the legal Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 46 F.A. No.5 of 1976 representatives of Saiyad Mansoor Shah ever disclosed Dastbardari (nLrcjnkjh) Ex. D.2. If Habib Shah had already admitted the ownership of Saiyad Mansoor Shah over the entire land, then atleast in respect of share of Habib Shah, the legal representatives of Saiyad Mansoor Shah should have pleaded that the remaining property should be returned back to the legal representatives of defendant no.1/Saiyad Mansoor Shah and nothing should be given to defendant no.2/Habib Shah.
54. Thus, it is held that the explanation given by Habib Shah, that Dastbardari (nLrcjnkjh) Ex. D.2 was got executed by Saiyad Mansoor Shah by projecting that since, Habib Shah has admitted the share of Malka Begum by filing his written statement in her favor, therefore, the family would get defamed in the society clearly shows that Saiyad Mansoor Shah was not only in a dominating position but also induced undue influence on Habib Shah to execute Dastbardari (nLrcjnkjh) Ex. D.2.
55. It is next contended by Counsel for respondent no. 2(i) that since Mohd. (P.W.3) who is the husband of Malka Begum (Brother-in-law) of Habib Shah has stated that he had tried to pursue Habib Shah, not to execute Dastbardari (nLrcjnkjh) Ex. D.2, but Habib Shah did not listen to him, clearly show that Dastbardari (nLrcjnkjh) Ex. D.2 was voluntarily executed by Habib Shah after understanding the same.
56. Considered the aforesaid submissions.
57. At the cost of repetition, it is made clear that Habib Shah had already filed his written statement in the suit filed by his sister Malka Begum (Def. No. 6) and had admitted the share of his sister Malka Begum. Mohd. (P.W.3) is the husband of Malka Begum. It is true that this witness has specifically stated that he tried to convince Habib Shah not to execute Dastbardari (nLrcjnkjh) Ex. D.2, but he did not listen to him.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 47 F.A. No.5 of 1976
58. Mohd. (P.W.3) was trying very hard to persuade Habib Shah not to execute Dastbardari (nLrcjnkjh) Ex. D.2 as he had already admitted the share of his sister, but it appears that Saiyad Mansoor Shah pressurized Habib Shah by alleging that since, he has filed a written statement thereby admitting the share of his sister Malka Begum, therefore, that would bring disrepute to the family therefore, he should execute Dastbardari (nLrcjnkjh) Ex. D.2. As Saiyad Mansoor Shah had done brain wash of Habib Shah that his act would bring disrepute to the family, therefore, if Habib Shah did not listen to Mohd. (P.W.3), then it cannot be said that Dastbardari (nLrcjnkjh) Ex. D.2 was executed by Habib Shah in full senses and voluntarily.
59. The aforesaid findings recorded by this Court is further fortified by the contents of Dastbardari (nLrcjnkjh) Ex. D.2. In internal page 4 of Dastbardari (nLrcjnkjh) Ex. D.2, it is mentioned as under :
eS bl izdkj ;g Lohdkj djrk gwa fd eS fdlh Hkh tkxhj vFkok laLFkku dh dSlh Hkh py ;k vpy laifr es 'kjhd Hkkxhnkj ;k nkosnkj ugh gS vkSj u gh esjh cfgu efydk csxe mQZ dejtgkacsxe gh fdlh izdkj mles 'kjhd Hkkxhnkj ;k nkosnkj gSA ge dksbZ Hkh jV~k >xMksa eqdnek djus ds gdnkj ugh gSA eSus viuh cgu dejtgka ds cgdkos o cjxykus ls iwoZ es izdj.kksa es tks c;kukr fn;s ;k ys[kh lcwr o'kDy tokc nkok ;k vU; fdlh Hkh izdkj ls fn;s og egt eqdnekr es ,d fo'ks"k urhtk ikus ds bjkns ls fn;s FksA vr% mudk nq:Ik;ksx Hkfo"; es u fd;k tk;s bl mn~n's ; ls eS lgh gkyr Lohdkj djus es dksbZ fgpd vius eu es ugh j[krk gwa o lgh gkykr o ckd;kr dk btgkj mij dj jgk gawA vrg~ eS Li"V r;g~ Lohdkj dj jgk gwa fd tk;nkn er:dk okfyn lkgc gj fdeh es eq>s efgyk efydk csxe mQZ djtgkacsxe dks dksbZ fgLlk ;k vU; dksbZ vf/kdkj 'kghe ;k 'kjhd gksus dk izkIr ugh gSA vkt ls eS dksbZ Hkh jde crkSj eSufVusUl ;k {kfriwfrZ oxSjk ikus dk vf/kdkjh ugh jgk gwa eSa Hkfo"; es Jhefr efydk csxe iRuh ckn'kkg fea;k ;k ckn'kkg fea;k ds fo:} dksbZ ukfy'k cxSjk fdlh er:dk okfyn lkgc ds ckjs es ugh d:axk vkSj u gh ujds fo:} dksbZ vU; dk;Zokgh es Hkkx ywaxk Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 48 F.A. No.5 of 1976 vkSj u gh dksbZ tokcfngh gh fdlh izdkj d:axk ;k fdlh fdLe ls bLk nLrkost ds f[kykQ dksbZ fdlh vU; dks lg;ksx d:axk A vxj lg;ksx d:a ;s >xMk d:a rks bl nLrkost ds f[kykQ leLr dk;Zokgh xyr le>h tkosxhA tk;nkn yxHkx ,d yk[k dh gksxh A
60. From plain reading of aforesaid part of Dastbardari (nLrcjnkjh) Ex. D.2, it is clear that Saiyad Mansoor Shah was interested in making an attempt to wriggle out of the written statement which was filed by Habib Shah in favor of his sister Malka Begum (Def. No. 6). Why Saiyad Mansoor Shah also took declaration from Habib Shah to the effect that even their sister Malka Begum (Def. No. 6) has no share in the property? Thus, the explanation given by Habib Shah that the Dastbardari (nLrcjnkjh) Ex. D.2 was obtained only because he had given a written statement in favor of his sister Malka Begum is correct. Thus, it is held that Habib Shah has discharged his initial burden that not only Saiyad Mansoor Shah was in a dominating position but was also in fiduciary relationship and had obtained the Dastbardari (nLrcjnkjh) Ex. D.2 by putting undue influence with an intention to frustrate the suit filed their sister Malka Begum (Def. No. 6).
61. Thus, it can be said that undue influence was applied to subvert the free will of Habib Shah, in order to achieve an unfair benefit i.e., dismissal of suit of his sister Malka Begum. As the plaintiff Habib Shah has discharged his initial burden, therefore, the burden thereafter shifted on to the legal representatives of Saiyad Mansoor Shah to prove that no undue influence was applied in order to take undue advantage.
62. Malka Begum Wd/o Saiyad Mansoor Shah (D.W.1) has stated that Habib Shah had executed the Dastbardari (nLrcjnkjh) Ex. D.2. She has stated in her cross examination that the draft of Dastbardari (nLrcjnkjh) Ex. D.2 was prepared by Advocate Mittal. She has further stated that Advocate Mittal was Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 49 F.A. No.5 of 1976 known to her as he was junior to Shri Jagannath Gupta who was her counsel. She further stated in her cross examination that She cannot say as to whether the draft of Dastbardari (nLrcjnkjh) Ex. D.2 was read over or not, because She was not present at that time. She further admitted that Dastbardari (nLrcjnkjh) Ex. D.2 was written when Malka Begum w/o Yasin Khan had already filed a suit for partition. She had further admitted that Habib Shah was also party to the said suit. She further stated that they were not interested in getting the Dastbardari (nLrcjnkjh) Ex. D.2 executed. She further stated that they were only interested in receipt of Rs. 10,000/-. It was further stated that Habib Shah was in need of money as he was interested to purchase a tempo. She further stated that prior to registration of Dastbardari (nLrcjnkjh) Ex. D.2, She had seen the document, and it was containing all the corrections which were done in handwriting. She further stated that they were not interested in producing this document before the Court.
63. Thus, it is clear that Malka Begum (D.W.1) has specifically stated that the draft of Dastbardari (nLrcjnkjh) Ex. D.2 was prepared by Advocate Mittal, who was known to her being Junior to Shri Jagannath Gupta, who was Counsel for Malka Begum (D.W.1) but has also stated that whether the said draft was read out to Habib Shah or not is not known to her because she was not present. This witness was also not present at the time of registration of Dastbardari (nLrcjnkjh) Ex. D.2 as it doesnot contain her signatures and She has stated that after the registration of Ex. D.2, her husband, Habib Shah, Mittal Advocate and Naseer Ahmad had come to her house. Thus, it is clear that Dastbardari (nLrcjnkjh) Ex. D.2 was not executed in her presence. Although, this witness has stated that they were not interested in getting Dastbardari (nLrcjnkjh) Ex. D.2 executed, but then why it was got executed has not been explained by her. Thus, it is clear that Malka Begum (D.W.1) Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 50 F.A. No.5 of 1976 was trying hard to show that they had no role to play in execution of Dastbardari (nLrcjnkjh) Ex. D.2. She has also not explained that when the suit filed by the sister of Saiyad Mansoor Shah and Habib Shah was pending, then why a declaration was taken from Habib Shah to the effect that their Sister Malka Begum has no share in the property, specifically when Habib Shah had already filed his written statement in her suit, thereby admitting the right of his sister Malka Begum.
64. Further more, what was the need for Habib Shah to give a declaration in favour of his brother Saiyad Mansoor Shah thereby accepting the title of Saiyad Mansoor Shah on the entire property? This unusual aspect has not been explained by Malka Begum (D.W.1). Thus, by Dastbardari (nLrcjnkjh) Ex. D.2, Saiyad Mansoor Shah not only took declaration from Habib Shah that he has no share in the property but also took a declaration that even their sister Malka Begum has no share. Thereafter, Dastbardari (nLrcjnkjh) Ex. D.2 never saw the light of the day. Even at the time of drawing of Final Decree in the suit filed by Malka Begum, Dastbardari (nLrcjnkjh) Ex. D.2 was not filed and as per Final Decree, it was agreed upon by the parties, that after separating the share of Malka Begum, the remaining property would go back to Saiyad Mansoor Shah and Habib Shah (Defendants no. 1 and 2).
65. Thus, it is clear that Dastbardari (nLrcjnkjh) Ex. D.2 was got executed by Saiyad Mansoor Shah with a solitary intention to frustrate the suit filed by his sister Malka Begum and therefore, it was only a sham document with no intention to get it enforced and was obtained with an intention to take unfair advantage.
66. Thus, it is held that Dastbardari (nLrcjnkjh) Ex. D.2 was got executed by Saiyad Mansoor Shah by putting undue influence on Habib Shah in order to achieve an unfair benefit.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 51 F.A. No.5 of 1976 Whether Dastbardari (nLrcjnkjh) Ex. D.2 is a relinquishment or surrender deed?
67. The Trial Court has held that Dastbardari (nLrcjnkjh) Ex. D.2 is a deed of relinquishment executed by Habib Shah.
68. In order to execute a deed of relinquishment, the parties must admit that the person intending to relinquish his share has a right in the property. A stranger having no right cannot relinquish his right in the property of third person.
69. Admittedly, Saiyad Mansoor Shah did not admit that Habib Shah or his sister has any share in the property. On the contrary, he had persuaded Habib Shah to give a declaration that Habib Shah has no right or share in the property. By no stretch of imagination, the Dastbardari (nLrcjnkjh) Ex. D.2, can be treated as a relinquishment or surrender deed.
70. It is submitted by Counsel for the respondent no. 2(i) that this Court should read in between the lines to ascertain the real intentions of the parties and therefore, it should be held that the Dastbardari (nLrcjnkjh) Ex. D.2 is a relinquishment deed.
71. Considered the submissions.
72. Section 92 of Evidence Act reads as under :
92. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 52 F.A. No.5 of 1976 of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law. Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts.
73. Thus, it is clear that where the terms of a contract have been reduced in writing then no oral evidence can be led for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
74. The Supreme Court in the case of Kamal Kishore Sehgal (Supra) has held as under :
18. It is a cardinal principle of interpretation that where the language employed in the instrument is clear and unambiguous, the common literary meaning ought to be assigned in interpreting the same and one should not fall back on any other inference. Only the expression in clear words contained in the instrument/document must be considered and not the surrounding circumstances. In Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 53 F.A. No.5 of 1976 short, literal construction must be considered first, rather than going into the intention behind what is said in the instrument/document if the language of the instrument is clear and unambiguous.
75. The Supreme Court in the case of S. Saktivel v. M. Venugopal Pillai, reported in (2000) 7 SCC 104 has held as under :
6. In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible.
Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral, in such situations it is always open to the parties to the contract to modify its terms and even substitute by a new oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by a new oral agreement. Where under law a contract or disposition is required to be in writing and the same has been reduced to writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant-appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant, is allowed to be substantiated by parol evidence, it would mean rewriting of Ext. A-1 and, therefore, no parol evidence is permissible.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 54 F.A. No.5 of 1976
76. Section 92 of Evidence Act would not apply only when a party doesnot rely on the term of written document and leads an oral evidence to show that it was a sham document. The Supreme Court in the case of Gangabai v. Chhabubai, reported in (1982) 1 SCC 4 has held as under :
11. The next contention on behalf of the appellant is that sub-
section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 55 F.A. No.5 of 1976 document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties (Tyagaraja Mudaliyar v. Vedathanni). The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.
77. Therefore, the contention of the Counsel for respondent no. 2 (i) that this Court should read in between the lines to ascertain the real intentions of the parties cannot be accepted and hence, it is hereby rejected.
78. It was next contended by Counsel for the respondent no. 2(i) that since, in the plaint it was pleaded by Habib Shah that Dastbardari (nLrcjnkjh) Ex. D.2, is a surrender deed, therefore, now he cannot be allowed to take a somersault to submit that Dastbardari (nLrcjnkjh) Ex. D.2 was neither a surrender deed nor relinquishment deed.
79. Considered the submissions.
80. If the plaint is read as a whole, then it is clear that Habib Shah had challenged Dastbardari (nLrcjnkjh) Ex. D.2, by pleading that it cannot be treated as Surrender Deed on the grounds mentioned in the plaint. Habib Shah never admitted that Dastbardari (nLrcjnkjh) Ex. D.2 is a Surrender Deed. Therefore, the Counsel for the respondent no. 2(i) is incorrect in submitting, that plaintiff Habib Shah had claimed that Dastbardari (nLrcjnkjh) Ex. D.2 is a Surrender Deed. The Trial Court has taken the said document to be a relinquishment deed, but failed to consider that Saiyad Mansoor Shah had Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 56 F.A. No.5 of 1976 never admitted that either Habib Shah or his sister have any share in the property.
Whether chance of succession can be renunciated
81. Article 54 of Mahomedan Law by Sir Dinshaw Fardunji Mulla reads as under :
54. Transfer of spes succession is: Renunciation of chance of succession. The chance of a Mahomedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer or release.
82. Section 6(a) of Transfer of Property reads as under :
6. What may be transferred.--Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
(b).............
83. The Supreme Court in the case of Shehammal v. Hassan Khani Rawther, reported in (2011) 9 SCC 223 has held as under :
26. Chapter VI of Mulla's Principles of Mahomedan Law deals with the general rules of inheritance under Mohammedan Law. Section 54 which falls within the said chapter relates to the concept of transfer of spes successionis which has also been termed as "renunciation of chance of succession". The said section provides that the chance of a Mohammedan heir apparent succeeding to an estate cannot be said to be the subject of a valid transfer or release.
The same is included in Section 6 of the Transfer of Property Act and the relevant portion thereof, namely, clause (a) is extracted below:
"6. What may be transferred.--Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.
(a) The chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred."Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 57 F.A. No.5 of 1976 The provisions of Section 6(a) have to be read along with Section 2 of the Act, which provides for repeal of Acts and saving of certain enactments, incidents, rights, liabilities, etc. It specifically provides that nothing in Chapter II, in which Section 6 finds place, shall be deemed to affect any rule of Mohammedan Law.
27. In spite of the aforesaid provisions, both of the general law and the personal law, the courts have held that the fetters imposed under the aforesaid provisions are capable of being removed in certain situations. Two examples in this regard are--
(i) When an expectant heir wilfully does something which has the effect of attracting the provisions of Section 115 of the Evidence Act, is he estopped from claiming the benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in Section 54 of Mulla's Principles of Mahomedan Law?
(ii) When a Mohammedan becomes a party to a family arrangement, does it also entail that he gives up his right of spes successionis? The answer to the said two propositions is also the answer to the questions formulated hereinbefore in para 25.
28. The Mohammedan Law enjoins in clear and unequivocal terms that a chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer or release. Section 6(a) of the Transfer of Property Act was enacted in deference to the customary law and law of inheritance prevailing among Mohammedans.
29. As opposed to the above, are the general principles of estoppel as contained in Section 115 of the Evidence Act and the doctrine of relinquishment in respect of a future share in property. Both the said principles contemplated a situation where an expectant heir conducts himself and/or performs certain acts which makes the two aforesaid principles applicable in spite of the clear concept of relinquishment as far as Mohammedan Law is concerned, as incorporated in Section 54 of Mulla's Principles of Mahomedan Law.
30. Great reliance has been placed by both the parties on the decision in Gulam Abbas case. While dealing with a similar situation, this Court watered down the concept that the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer on lease and held that renunciation of an expectancy in respect of a future share in a property in a case where Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 58 F.A. No.5 of 1976 the party concerned himself chose to depart from the earlier views, was not only possible, but legally valid. Referring to various authorities, including Ameer Ali's Mohammedan Law, this Court observed that "renunciation implies the yielding up of a right already vested".
31. It was observed in the facts of Gulam Abbas case that during the lifetime of the mother, the daughters had no right of inheritance. Citing the decision in Khanum Jan v. Jan Beebee it was held that renunciation implies the yielding up of a right already vested. Accordingly, renunciation during the mother's lifetime of the daughters' shares would be null and void on the ground that an inchoate right is not capable of being transferred as such right was yet to crystallise. This Court also held that "under the Muslim Law an expectant heir may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued". It was observed by the learned Judges that the Contract Act and the Evidence Act would not strictly apply since they did not involve questions arising out of Mohammedan Law. This Court accordingly held that the renunciation of a supposed right, based upon an expectancy, could not, by any test be considered "prohibited".
32. This Court ultimately held that the binding force of the renunciation of a supposed right, would depend upon the attendant circumstances and the whole course of conduct of which it formed a part. In other words, the principle of an equitable estoppel far from being opposed to any principle of Mohammedan Law, is really in complete harmony with it.
33. On the question of family arrangement, this Court observed that though arrangements arrived at in order to avoid future disputes in the family may not technically be a settlement, a broad concept of a family settlement could not be the answer to the doctrine of spes successionis.
34. There is little doubt that ordinarily there cannot be a transfer of spes successionis, but in the exceptions pointed out by this Court in Gulam Abbas case, the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share. It could then operate as estoppel against the expectant heir to claim any share in the estate of the deceased on account of the doctrine of spes successionis. While dealing with the various decisions on the subject, which all seem to support the view taken Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 59 F.A. No.5 of 1976 by the learned Judges, reference was made to the decision of Suleman, C.J. of the Allahabad High Court in Latafat Husain v. Hidayat Husain, where the question of arrangement between the husband and wife in the nature of a family settlement, which was binding on the parties, was held to be correct in view of the fact that a presumption would have to be drawn that if such a family arrangement had not been made, the husband could not have executed a deed of wakf if the wife had not relinquished her claim to inheritance. It is true that in Khanum Jan, it had been held by this Court (sic) that renunciation implied the yielding up of a right already vested or desisting from prosecuting a claim maintainable against another, and such renunciation during the lifetime of the mother of the shares of the daughters was null and void since it entailed the giving up of something which had not yet come into existence.
84. "Family settlement" would necessarily mean where a joint decision is taken by all family members. However, if Dastbardari (nLrcjnkjh) Ex. D.2 is considered then it is clear that it is an unilateral declaration by Habib Shah that the entire property belongs to Saiyad Mansoor Shah and neither he nor his sister Malka Begum have any share. Since, this Dastbardari (nLrcjnkjh) Ex. D.2 has not been signed by Malka Begum, therefore, it cannot be said to be a family settlement.
85. Further more, this Court has already held that since, Saiyad Mansoor Shah had never recognized/accepted that Habib Shah and their sister Malka Begum have any share therefore there was no question of relinquishment of share by Habib Shah.
86. As already pointed out, Dastbardari (nLrcjnkjh) Ex. D.2, was without any consideration amount. Even payment of Rs. 10,000/- as evident from receipt Ex. D.1, was not in lieu of relinquishment, but it was paid because Habib Shah was intending to purchase a Tempo. The Supreme Court in the Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 60 F.A. No.5 of 1976 case of Gulam Abbas v. Haji Kayyum Ali, reported in (1973) 1 SCC 1 has held as under :
6. We have also examined the earlier decisions of the Madras High Court in Asa Beevi v. Karuppan, where Macnaghtan's "Principles and Precedents of Moohumudan Law", Sir Roland Wilson Digest of "Anglo Mohhamadan Law" p. 260, and Ameer Ali "Mohammedan Law" have been referred to in support of the conclusion that "there is a large preponderance of authority in favour of the view that a transfer or renunciation of the right of inheritance before that right vests is prohibited under the Mohamadan Law". The whole discussion of the principle in the body of the judgment, however, brings out the real reason is not a prohibition but that there cannot be a renunciation of a right which is incohate or incomplete so long as it remains in that state. In fact, it is not correct to speak of any right of inheritance before it arises by the death of the predecessor who could have, during his lifetime, deprived the prospective heir of his expectation entirely by dispositions inter vivos.
7. Sir Roland Wilson, in his "Anglo Mohamadan Law" (p. 260, para
208) states the position thus:
"For the sake of those readers who are familiar with the joint ownership of father and son according to the most widely prevelant school of Hindu Law, it is perhaps desirable to state explicitly that in Mohammedan, as in Roman and English Law, nemo est heres viventis.........a living person has no heir. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession; See Abdul Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885) which was followed in Hasan Ali, 11 All 456, (1889). The converse is also true: a renunciation by an exepectant heir in the lifetime of his ancestor is not valid, or enforceable against him after the vesting of the inheritance."
This is a correct statement, so far as it goes, of the law, because a bare renunciation of expectation to inherit cannot bind the expectant heir's conduct in future. But, if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 61 F.A. No.5 of 1976
87. As Dastbardari (nLrcjnkjh) Ex. D.2 was without any consideration, therefore, it would not debar the expectant heir from setting up his right when it does unquestionably vest in him.
Whether Habib Shah or his Legal Heirs are Estopped from claiming their share in the light of Dastbardari (nLrcjnkjh) Ex. D.2 ?
88. It was contended by Counsel for Respondent No. 2(i) that since, Habib Shah had executed Dastbardari (nLrcjnkjh) Ex. D.2, therefore, now he is estopped from claiming any share in the property.
89. Considered the submissions.
90. This Court has already come to a conclusion that Dastbardari (nLrcjnkjh) Ex. D.2 was not executed by Habib Shah out of his own volition but it was obtained by Saiyad Mansoor Shah by inducing Undue Influence, with an ill intention to frustrate the suit filed by his sister Malka Begum. Therefore, there is no question of Estoppel against Habib Shah and his Legal representatives. Further more, the Dastbardari (nLrcjnkjh) Ex. D.2, which was allegedly executed in the year 1966 and was not filed in C.S. No. 7-A/1964 (Malka Begum Vs. Saiyad Mansoor Shah) cannot override the Decree passed in C.S. No. 7-A/1964 (Malka Begum Vs. Saiyad Mansoor Shah and others).
91. Therefore, the contention of Counsel for respondent no. 2(i) that Habib Shah and his Legal Representatives are estopped from claiming their share is misconceived and is hereby rejected.
I.A. No. 3807 of 2015, an application under Order 41 Rule 27 CPC for taking additional document on record
92. It is fairly conceded by Counsel for respondents that no reply to this application has been filed. Along with this application, the appellant has filed a certified copy of order dated 17-10-2008 passed by 1st Additional District Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 62 F.A. No.5 of 1976 Judge, Gwalior in M.C.C. No. 21/08. This application was filed under Order 20 Rule 18 CPC by Parvesh @ Kaushar Shah son of Late Saiyad Mansoor Shah against other legal heirs of Late Saiyad Mansoor Shah, for seeking possession of his share in the light of preliminary decree drawn up by the Court of 1st Additional District Judge, Gwalior in C.S. No. 7A/1964 (Malka Begum vs. Saiyad Mansoor Shah and other). In the said proceedings, it was pleaded for the first time that Habib Shah had relinquished his share.
93. Before proceeding further, this Court would like to consider as to whether I.A. No. 3807 of 2015 is liable to be allowed or not?
94. Order 41 Rule 27 CPC provides that if the Appellate Court comes to a conclusion that additional evidence is necessary for just decision of the case, then the additional evidence can be taken on record. However, after taking additional evidence on record, the Appellate Court is required to follow the procedure as laid down under Order 41 Rule 23, 23-A and 28 of CPC.
95. The Supreme Court in the case of G. Shashikala v. G. Kalawati Bai, reported in (2019) 15 SCC 201 has held as under :
11. The question as to how the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the appellate court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Admn. v.
Bhagwan Das (see paras 13-17), Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills (see para 16) and Corpn. of Madras v. M. Parthasarathy (see paras 11-15).
96. Order 41 Rule 28 CPC reads as under :
28. Mode of taking additional evidence.-- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the Appellate Court.Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 63 F.A. No.5 of 1976
97. As already pointed out, the respondents have not claimed that the certified copy of the order dated 17-10-2008 passed by 1 st Additional District Judge, Gwalior in M.C.C. No. 21/08 which had arisen out of C.S. No. 7-A/64 is not the correct copy. Even during the course of arguments, the Counsel for the respondents did not dispute the aforesaid document. Since, order dated 17-10-2008 passed by 1st Additional District Judge, Gwalior in M.C.C. No. 21/08 is the certified copy of the order passed in a case in which the respondents were also party, therefore, no oral evidence is required to be taken. Therefore, neither it is necessary for this Court to remand the matter back to the Trial Court for taking further evidence with regard to 17-10-2008 passed by 1st Additional District Judge, Gwalior in M.C.C. No. 21/08, nor any such oral evidence is required to be taken by this Court.
98. Thus, I.A. No. 3807 of 2015 is allowed and order dated 17-10-2008 passed by 1st Additional District Judge, Gwalior in M.C.C. No. 21/08 is taken on record as additional evidence.
99. From the plain reading of this order, it is clear that the Court below had not relied upon the Dastbardari (nLrcjnkjh) Ex. D.2 by holding as under :
(11) In the series of litigation before various courts, the factum of relinquishment deed has not been brought to light; hence where such facts have been concealed, 44 years later the deed becomes ineffectual. Hence, the share of Habib Shah or heirs is 2/5 which should be partitioned in accordance with the preliminary Decree 7A/64.
100. Thus, in an application filed under Order 20 Rule 18 CPC., when Dastbardari (nLrcjnkjh) Ex. D.2 was filed before the Court for the first time, the Court refused to act upon such document and held that now it has become ineffective and the preliminary decree has to be executed by giving 2/5th share to Habib Shah.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 64 F.A. No.5 of 1976
101. Thus, it is clear that even otherwise, Dastbardari (nLrcjnkjh) Ex. D.2 cannot be relied upon by the respondents.
I.A. No. 3603 of 2015, another application under Order 41 Rule 27 CPC filed by Appellants thereby filing Will executed by Late Kadar Shah
102. Multiple documents have been filed along with I.A. No. 3603 of 2015, but the Counsel for the appellants relied upon the Will executed by Late Kadar Shah in which he had protected the share of Habib Shah.
103. In order to rely upon a Will, the propounder of the Will is required to remove all the suspicious circumstances attached to a Will. However, the respondents have not filed any reply to this application, and did not dispute the genuineness of this Will.
104. In the present case, a preliminary decree was already passed in C.S. No. 7-A/1964 (Malka Begum Vs. Saiyad Mansoor Shah and others) and in the said preliminary decree it was held that Habib Shah has 2/5th share. Thereafter, Parvez filed an application under Order 20 Rule 18 of CPC, in which the Dastbardari (nLrcjnkjh) Ex. D.2 saw the light of the day for the first time, but the Court held that in view of the Preliminary Decree, the Dastbardari (nLrcjnkjh) Ex. D.2 which has been brought on record for the first time after 44 years has become ineffective.
105. In the light of the Preliminary Decree and Final Decree passed in the C.S. No. 7-A/1964, this Court is of considered opinion, that it is no more required to adjudicate as to whether Late Kadar Shah had executed any Will in favor of Habib Shah.
106. Under these circumstances, I.A. No. 3603/2015 is rejected as not required.
107. No other argument is advanced by any of the parties.
Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:30713 65 F.A. No.5 of 1976
108. For the reasons mentioned above, this Court is of the considered opinion that the Trial Court committed a material illegality by holding that Habib Shah had executed a relinquishment deed in the nature of Dastbardari (nLrcjnkjh) Ex. D.2. Accordingly, said finding is hereby set aside.
109. Ex consequenti, the Judgment and Decree dated 6-1-1973 passed by Additional District Judge, Gwalior in C.S. No. 3-A/1971 is hereby set aside. The suit filed by the plaintiff Habib Shah who is being represented by his Legal Representatives is hereby decreed and it is held as under :
(i) The document titled as Dastbardari (nLrcjnkjh) dated 23-2-1966, Ex. D.2 is hereby declared as null and void;
(ii) As already held by a Court of competent jurisdiction in C.S. No. 7-
A/1964 (Malka Begum Vs. Saiyad Mansoor Shah and others) which was affirmed by Supreme Court also, the appellants (Legal Heirs of Habib Shah) as well as legal representatives of Saiyad Mansoor Shah (Defendants) shall have 2/5th share each whereas Malka Begum, the sister of Saiyad Mansoor Shah and Habib Shah is having 1/5th share in the property left by Late Kadar Shah.
110. The appeal is allowed accordingly.
111. Decree be drawn.
112. No order as to costs.
(G.S. Ahluwalia) Judge Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 27-11-2025 08:36:13 PM