Madhya Pradesh High Court
Mahila Sukhdevi vs Somota on 15 May, 2019
Equivalent citations: AIRONLINE 2019 MP 569
1
THE HIGH COURT OF MADHYA PRADESH
S.A. No.1596/2018
(Mahila Sukhdevi & Ors. vs. Somota & Ors.)
Gwalior, Dated : 15.05.2019
Shri D.D. Bansal, Counsel for the appellants.
Shri Vijay Sundaram, Panel Lawyer for the respondent
No.4/State.
Heard on the question of admission.
2. This Second Appeal has been filed against the judgment and decree dated 15-5-2018 passed by Vth Additional District Judge, Bhind in Civil Appeal No. 44/2015, thereby modifying the judgment and decree dated 9-2-2015 passed by 1 st Additional Judge to the Court of 1 st Civil Judge Class-I, Bhind in Civil Suit No. 15-A/2014.
3. The appellants/plaintiffs had filed a suit for declaration that they have 1/2 share in the agricultural land situated in Mauja Vikrampura and Rampura as well as in the Golden Hamel. Declaration was also sought that the "Will" dated 23-8-1993, Ex. P.9 and "Will" dated 6-8-2002, Ex. P.10, purportedly executed by defendant no.1 Smt. Somota are null, void and ineffective. Permanent injunction was also sought for restraining the defendant no.1 from making alienation of the property in favor of the defendant no.2 or any other person. It was also prayed that the sale 2 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 deeds dated 13-7-2000, 23-12-2002, Ex. P.5, executed during the pendency of the suit and further sale deeds dated 13-7-2004, Ex. P.6 and 7-2-2005, Ex. P.7 be also declared null and void. It was also prayed that the order dated 16-8-2007, Ex. P.11 and 20-3- 2008, Ex. P.12 as well as the sale deed dated 25-8-2011, Ex. P.8 and 3-9-2011 be also declared as null, void and ineffective.
4. The appellants/plaintiffs claimed 1/2 share in the entire property left by their grand mother Smt. Somota (Def. No.1). It is the case of the appellants/plaintiffs that Bhajanlal was the owner of the property in dispute, and he was survived by his wife Smt. Somota, sons Mahavir and Rajaram. The defendant No. 2 by putting pressure on defendant No. 1 wants to grab the property which has fallen to the share of defendant No. 1. The plaintiffs have the right of preemption. After the death of defendant No. 1, the plaint was amended and it was pleaded that after the death of Smt. Somota, Mahavir and plaintiffs have 1/2 share, accordingly, the appellants/plaintiffs are entitled to be declared as Bhumiswami of 1/2 of the property of Smt. Somota.
5. Initially, the suit was filed against Smt. Somota (Def. No.1) and Mahavir (Def. No.2). It appears that during the pendency of the suit, Smt. Somota sold a part of the property to Smt. Meena and 3 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 accordingly, by order dated 8-1-2002, the appellants/plaintiffs were permitted to implead Meena as defendant No.3.
6. The defendants no. 1 and 2, filed a written statement, and it was pleaded by Smt. Somota (Defendant No.1) that She had executed a "Will" on 23-8-1993 in favor of her three grand sons namely Shyamvir, Giriraj and Ramvir and prayed that the suit be dismissed and the plaintiffs be directed not to interfere with the peaceful possession of the defendants No.1 and 2.
7. The suit filed by the appellants/plaintiffs was dismissed by the Trial Court by Judgment and decree dated 5-1-2004, mainly on the ground, that during the life time of Smt. Somota (Def No.1), she cannot be deprived of her property and therefore, it was held that the appellants/plaintiffs have not approached the Court with clean hands.
8. The appellants/plaintiffs filed an appeal which was registered as C.A. No. 4-A/2004 and during the pendency of the said appeal, Smt. Somota expired. Her daughter Rambeti was substituted as her Legal Representative, but Vidhyavati filed an application under Order 1 Rule 10 C.P.C. on the ground that She is the necessary party as Smt. Somota had executed a "Will"dated 6-8-2002 in her favor. Accordingly, by order dated 18-2-2005, the appellate Court 4 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 came to a conclusion that Vidhyavati is a necessary party, therefore, the matter was remanded with a direction to the implead Vidhyavati as a defendant and after obtaining her written statement, the matter be decided afresh.
9. Accordingly, by order dated 29-4-2005, the Trial Court directed that the name of Rambeti be substituted as legal representative of Late Somota, and Vidhyavati be impleaded as defendant no.5, accordingly, the amendment was carried out.
10. The defendant no. 5 filed a separate Written Statement and submitted that Rajaram has executed a "Will" in the year 1992 and by virtue ot that "Will", She has become the owner of the property belonging to Rajaram, and it was denied that plaintiffs, are the wife and children of Rajaram. Smt. Somota has executed a "Will" dated 6-8-2002 in her favor, therefore, She is the owner of the property falling to the share of Smt. Somota. She also filed a Counterclaim for declaration of her title over the lands situated in Pargana Mehgaon, Village Kheria Bag Rampura District Bhind and entire land situated in Vikrampura.
11. Thereafter it appears that some of the property in dispute was sold, therefore, the purchasers were also impleaded as defendants.
12. It appears that after recording evidence and hearing both the 5 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 parties, the Trial Court by Judgment and Decree dated 9-2-2015 dismissed the suit, by holding that the appellants/plaintiffs are not in possession of the property in dispute, whereas they have approached the Court with a pleading that they are in possession of the land and thus they have not approached the Court with clean hands. Further in absence of consequential relief for possession, the suit is not maintainable. It was also held that Vidhyavati has failed to prove that Smt. Somota had executed a "Will" in her favor on 6-8-2002.
13. It appears, that being aggrieved by the Judgment and decree passed by the Trial Court on 9-12-2015, the appellants/plaintiffs filed an appeal which was registered as C.A. No.44/2015. During the pendency of the said appeal, an application under Order 41 Rule 27 CPC was filed, which was allowed by the Appellate Court. The said appeal was allowed and by order dated 17-10-2016, the case was remanded back in the light of the additional evidence which was taken on record by the Appellate Court as well as on the ground that Shyamvir, Giriraj and Ramvir are necessary party as "Will" dated 23-8-1993 was executed in their favor, however, they were not impleaded as defendants.
14. It appears that being aggrieved by the order dated 17-10- 6 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 2016, the defendants no.2 and 5 filed a Misc. Appeal before this Court which was registered as M.A. No. 80/2017 and this Court by order dated 21-11-2017, set aside the order of the Appellate Court, and the appellate Court was directed to decide the appeal after framing additional issues in the light of the documents allowed by it and after taking evidence of the parties after giving opportunity of rebuttal to the opposite party.
15. After remand, the Appellate Court by order dated 28-3-2018, held that it is not necessary to frame additional issue in the light of the Issue No.1, and the parties were directed to keep their witnesses present. The witnesses were examined and by impugned Judgment and Decree dated 15-5-2018, the suit has been partially decreed.
16. Challenging the judgment and decree passed by the Appellate Court, it is submitted by the Counsel for the appellants/plaintiffs, that the Appellate Court should not have considered the "Will" dated 23-8-1993 which was executed by Smt. Somota in favor of Shyamvir, Giriraj and Ramvir because no attesting witness has been examined and the said "Will" has not been proved in accordance with Section 63(c) of Succession Act and Section 68 of Evidence Act. It is further submitted, after the 7 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 remand, Shyamvir, Giriraj and Ramvir were impleaded as defendant in the suit, however, they did not appear before the Trial Court. Further it is submitted by the Counsel for the appellants/plaintiffs, that Rambeti is the daughter of Late Smt. Somota but she has not been given her share.
17. Heard the learned Counsel for the appellants/plaintiffs.
18. So far as the contention of the appellants/plaintiffs that after the remand, the Trial Court had directed for impleading Shyamvir, Giriraj and Ramvir and in spite of the notices they did not appear before the Trial Court is concerned, no adverse inference can be drawn against Shyamvir, Giriraj and Ramvir, for the simple reason, that the order of remand was set aside by this Court by order dated 21-11-2017. Thus, any proceedings which had taken before the Trial Court in pursuance of the remand order automatically became non-est.
19. So far as the contention of the Counsel for the appellants/plaintiffs that the defendants have failed to prove the "Will" dated 23-8-1993 executed by Smt. Somota in favor of Shyamvir, Giriraj and Ramvir is concerned, in the considered opinion of this Court, the provisions of Section 63(c) of Succession Act, and Section 68 of Evidence Act would not apply, for the 8 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 simple reason, that the testator of the "Will" dated 23-8-1993, herself had pleaded in her written statement that She has executed a "Will" dated 23-8-1993 in favor of Shyamvir, Giriraj and Ramvir. Once, the execution of "Will" is admitted by the testator herself, then nothing more was required to be done, in absence of challenge to the said "Will". It appears that the appellants/plaintiffs had amended their plaint and had also prayed that the "Will" dated 23-8-1993 be declared as Null and Void, however, the beneficiaries of the said "Will" i.e., Shyamvir, Giriraj and Ramvir were not impleaded in the suit. Thus, in absence of the beneficiaries i.e., Shyamvir, Giriraj and Ramvir, the Courts below could not have considered the authenticity of genuineness of the "Will" dated 23- 8-1993. Thus, where the testator herself had admitted in her written statement, that she has executed a "Will" dated 23-8-1993 in favor of Shyamvir, Giriraj and Ramvir, then it was not required for any party to prove the said "Will" in accordance with the provisions of Section 63(c) of Succession Act or Section 68 of Evidence Act.
20. It is further submitted by the Counsel for the appellants/plaintiffs, that by considering the "Will" dated 23-8- 1993, the Appellate Court should not have passed a decree in favor of Shyamvir, Giriraj and Ramvir, for the simple reason, that they 9 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 are not party to the suit.
21. Considered the submission made by the Counsel for the appellants/plaintiffs. In the judgment, the Appellate Court has considered the admission made by Somota (Def.No.1) with regard to execution of "Will" dated 23-8-1993 in favor of Shyamvir, Giriraj and Ramvir for the purposes of ascertaining the extent of share of each party. Thus, it cannot be said that the Appellate Court, by considering the effect of "Will" dated 23-8-1993 in para 33 of the impugned judgment has passed a decree in favor of persons who are not party to the suit.
22. It is next contended by the Counsel for the appellants/plaintiffs, that Rambeti is also the daughter of Bhajanlal/Somota (Def no.1) and She is the real sister of Rajaram and Def. no.2. Since, no share has been given to her, therefore, the judgment passed by the Appellate Court is bad.
23. The submission made by the Counsel for the appellants/plaintiffs has no force. The suit was filed by the appellants, however, they deliberately did not implead Rambeti as defendants. The appellants/plaintiff themselves had tried to deprive Rambeti from her share. Rambeti was impleaded as a party to the suit, in the capacity of Legal Representative of Smt. Somota and 10 THE HIGH COURT OF MADHYA PRADESH S.A. No.1596/2018 She would be bound by the acts of Smt. Somota. At this stage, it is contended by the Counsel for the appellants/plaintiffs that if the suit filed by the appellants/plaintiffs was bad because of non- joinder of necessary party, then the entire suit should be dismissed and the relief granted to the appellants/plaintiffs by the Appellate Court is bad.
24. Considered the submissions made by the Counsel for the appellants/plaintiffs. This Court is of the considered opinion, that in an appeal filed by the appellants/plaintiff, no order adverse to their interest can be passed. Therefore, the submission made by the Counsel for the appellants/plaintiffs regarding dismissal of the suit cannot be considered. However, the contention of the appellants/plaintiffs is kept open for consideration in case any appeal is filed by the respondents/defendants.
25. No other argument was advanced by the Counsel for the appellants/plaintiffs.
26. Accordingly, this Court is of the considered opinion, that no Substantial Question of Law arises in the present appeal.
27. Accordingly, the appeal is dismissed in limine.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2019.05.17
17:28:54 +05'30'