Madhya Pradesh High Court
Dilip vs Smt.Urmila on 5 September, 2019
Author: Rohit Arya
Bench: Rohit Arya
1
The High Court Of Madhya Pradesh
SA-649-2016
(DILIP & ANOTHER Vs. SMT URMILA )
Indore; Dated: 05.09.2019
Shri Vinay Saraf, Sr. learned counsel with Shri Rizwan
Khan, learned counsel for the appellants.
Shri Kuldeep Pathak, learned counsel for the
respondent no.1.
JUDGMENT
This appeal by defendants u/S 100 CPC is directed against the judgment and decree dated 09.09.0216 passed by 2nd Additional District Judge, Khargone in Civil Appeal No. 2- A/2016 confirming the judgment and decree dated 30.09.2013 passed by 2nd Civil Judge Class II Khargone in Civil Suit No. 29A/2012 decreeing plaintiff's suit for declaration and possession.
2. Facts relevant for disposal of appeal in nutshell are to the effect that one Mangilal had two wives; namely ,Devkunwar Bai and Anu Bai. He had agricultural land. During his lifetime, he had partitioned the agricultural land between both the wives. The suit land admeasuring 7.13 acres in survey no. 65 situated in Village Aasangaon, Tehsil and District Khargone had fallen to the share of Devkunwar Bai. Plaintiff Urmila is the daughter of Devkunwar Bai and her sole heir. Defendants no.1 and 2 are the step sons of Devkunwar Bai(children borne out of cohabitation of late Mangilal and Anu Bai). After solemnization of marriage, plaintiff since had shifted to her in-laws place to a different village permitted defendants to plough the suit land and harvest crops, as she herself was not able to do so. Devkunwar Bai died on 15.09.2004 at Khandwa at the residence of plaintiff. Plaintiff and her son had performed her last rites and also organized other death ceremonies.
In the year 2012, on an inquiry from the Court of Tehsildar, the plaintiff came to know that suit land has already been mutated in the name of defendants no.1 and 2 way back 2 The High Court Of Madhya Pradesh SA-649-2016 (DILIP & ANOTHER Vs. SMT URMILA ) in the year 2010 on the basis of the order of Tehsildar dated 31.05.2010; an order passed u/S 178 of the M.P. Land Revenue Code(for short 'the Code') whereunder late Devkunwar Bai widow of late Mangilal was shown as applicant and the defendants Dilip and Bhagwan sons of late Mangilal are shown as non-applicants. Further, the applicant therein late Devkunwar Bai was shown to have no objection for partition of suit land in favour of the defendants and accordingly, the Tehsildar has passed an order declaring the suit land in the name of the defendants. The document is on record as Exhibit P-1. She was taken by surprise as late Dev Kunwar Bai had already passed away as far back as on 15.09.2004 whereas in her name, the Tehsildar has passed the aforesaid order on the alleged consent shown by her in the year 2010. It was a case of fraud, forgery and misrepresentation on the part of defendants no.1 and 2 showing a dead person as an applicant. Under such circumstances, the plaintiff has filed the suit for declaration and possession on 21.12.2012.
3. Defendants filed written statements and denied plaint allegations with the submission that as late Devkunwar Bai lived with them and was looked after by them, therefore, out of love and affection, she has bequeathed the suit property by propounding the 'will' dated 11.02.1994 and registered on 23.02.1994 (Exhibit D-1). As such, they acquired title to the suit land through testamentary succession.
4. The trial Court has framed seven issues. The first three issues relevant for disposal of the appeal are quoted below:
daz Okkn iz'u
1 D;k oknh oknxzLr Hkwfe ds laca/k esa LoRo ?kks"k.kk djkus dh ik=k gS\
2 D;k izfroknh dz-1 o 2 olh;r ds vk/kkj ij oknxzLr Hkwfe ds Lokeh o vkf/kiR;/kkjh gS\
3
The High Court Of Madhya Pradesh
SA-649-2016
(DILIP & ANOTHER Vs. SMT URMILA )
3 D;k oknh jktLo iz-d- 146v@27@09&10 vkns'k fnukad 01-05-2010 dk fujLr djkus dh
ik=k gksdj izfr-dz-a 1 o 2 dk ukke jktLo fjdkMZ esa de djkus dh vf/kdkjh gS\ Both the parties were allowed to lead evidence. Upon appreciation of the evidence placed on record, the trial Court reached the conclusion that the 'will' though alleged to have been attested and registered, but since is found to be shrouded with suspicion, hence the same cannot be acted upon to claim title over the suit land. Accordingly, declared it to be 'suspicious document' and consequently decreed the suit.
5. The first Appellate Court upon re-appreciation of the evidence placed on record found no reason to disagree with the findings recorded by the trial Court and thereby confirmed the judgment and decree so passed.
6. Shri Saraf, learned Sr. counsel criticizes the impugned judgments and decrees with following submissions;
i) since the 'will' is duly attested and registered, the prima- facie factum of execution of 'will' and its existence cannot be doubted;
ii) though late Devkunwar Bai was the step mother of the defendants but resided with them for years together eversince the death of Mangilal and after the marriage of plaintiff, she was looked after by them, therefore, with the consent of Devkunwar Bai, defendants have been in possession, ploughing the field and harvesting the crops on the land in question. Under such circumstances, out of love and affection, late Devkunwar Bai has bequeathed the suit property in favour of the defendants to the exclusion of her daughter living with her in-laws;
iii) late Devkunwar Bai has inherited about 30 acres of land in the partition between her and late Anu Bai, but only 7 acres of land in question has been bequeathed in favour of the defendants. Remaining land is already been in possession of the plaintiff, Urmila by way of natural 4 The High Court Of Madhya Pradesh SA-649-2016 (DILIP & ANOTHER Vs. SMT URMILA ) succession.
Under such circumstances, once the 'will' is found to be attested and registered, the same could not have been found to be 'suspicious document'. Both the Courts below have committed grave illegality while decreeing the suit and, therefore impugned judgments and decrees deserve to be set aside.
7. Per contra, Shri Kuldeep Pathak, learned counsel for the plaintiff has made the following submissions:
i) defendants as a matter of fact have committed fraud, misrepresentation and forgery in the matter of seeking alleged partition of suit land in their favour in the Court of Tehsildar u/S 178 of the Code. It is submitted that admittedly, late Devkunwar Bai passed away on 15.09.2004 whereas defendants no.1 and 2 forged an application in the name of late Devkunwar Bai as applicant and themselves as non-
applicants u/S 178 of the Code filed in the year 2010. Thereafter obtained an order from the Court of Tehsildar based on the alleged consent declaring the suit land in the name of defendants no.1 and 2 for revenue purposes. It is submitted that name of a dead person is used with the ulterior motive for oblique purpose and fraud vitiates everything. Therefore, such apparent fraud on the part of defendants did not entitle them for any relief, much less, audience before any Court of law.
(ii) Plaintiff is the sole natural heir of Devkunwar Bai. She has looked after her mother when she was on deathbed and performed her last rites. The relationship between the plaintiff and her mother was cordial. Hence, the alleged 'will' dated 23.02.1994 is forged and fabricated document cannot be relied upon.
(iii) There is no explanation forthcoming as to under what circumstances the alleged 'will' ever since 1994 till its 5 The High Court Of Madhya Pradesh SA-649-2016 (DILIP & ANOTHER Vs. SMT URMILA ) submission before the trial Court as Exhibit D-1 had never seen the light of day or disclosed, so much so, even before the Tehsildar as well while seeking the alleged partition u/S 178 of the Code the will was not disclosed.
(iv) it is an uncanny situation that the 'will' does not even mention the name of the plaintiff, much less; the justification for excluding her from the right of succession in preference to the defendants.
(v) the 'will' speaks after death of the propounder. It is a solemn document and, therefore, has to be read bearing in mind the facts and circumstances preceding the death of testator. There is no such circumstance either existing or referred to in the 'will' necessitating the execution thereof by late Devkunwar Bai in favour of defendants to the exclusion of plaintiff;
(vi) both the Courts below have meticulously examined oral and documentary evidence placed on record and reached the conclusion that will is 'suspicious document'.
To bolster his submission learned counsel for the plaintiff relied upon the judgments of Hon'ble Supreme Court in the case of Mahesh Kumar (dead) By LR's Vs. Vinod Kumar and Others [2012 AIR (SC)(Civ)1302], in the case of Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others [1977 AIR(SC) 74 and in the case of H.V. Nirmala & Anr Vs. R. Sharmila[2018 AIR (SC) 1264] to contend that under similar facts and circumstances, the Hon'ble Supreme Court has declared the 'will' as 'suspicious document' and recorded concurrent findings of facts.
The declaration by both the Courts below that will dated 23.02.1994 (Ex. D-1) is a suspicious document, is not open for further examination in second appeal as it is essentially a pure question of fact. The findings so recorded are impeccable in nature. No question of law, much less 6 The High Court Of Madhya Pradesh SA-649-2016 (DILIP & ANOTHER Vs. SMT URMILA ) substantial question of law arises. Therefore appeal sans merit deserves to be dismissed.
8. Heard.
9. Upon hearing the counsel for the parties, considering judgments and decrees of Courts below and after carefully going through the evidence placed on record, this Court is of the view that both the Courts below did not commit either any illegality or perversity while recording concurrent findings of fact. This Court find substantial force in the submission advanced by learned counsel for the respondent/plaintiff that conduct of defendants in the context of procurement of an order from the Court of Tehsildar on 31.05.2010 shocks the conscious of the Court that a person died in the year 2004 was shown as an applicant in an application u/S 178 of the Code and defendants as non-applicant filed in the year 2010 seeking partition of the suit land in their favour showing her consent in the application, a glaring forged and fabricated document and without even notice to the plaintiff, a natural heir of late Devkunwar Bai, based whereupon the order was passed by Tehsildar vide Exhibit P-1 dated 31.05.2010.
10. That apart, there is nothing on record to suggest the circumstances, late Devkunwar Bai excluded the plaintiff name from her estate. Moreso, the relationship between plaintiff and her mother was cordial and she had breathed last living with the plaintiff at her house. Plaintiff and her son had performed last rites and organized customary death ceremonies. The 'will' is alleged to be of the year 1994 and does not finds mention the name of plaintiff. Further, it was never disclosed till submission before the trial Court i.e. for over the period of 15 years. Even before the Tehsildar, the same was not disclosed while seeking partition under Section 178 of the Code. Under such circumstances, the finding of both the Courts below that 'will' is a 'suspicious document' is 7 The High Court Of Madhya Pradesh SA-649-2016 (DILIP & ANOTHER Vs. SMT URMILA ) not open for judicial review only for the reason that attestation of 'will' is proved and 'will' is a registered document.
11. The aforesaid view of this Court finds support from the judgment of the Hon'ble Supreme Court in the case of H.V. Nirmala & Anr (supra).
12. In the obtaining facts and circumstances, in the opinion of this Court, the trial Court and the first appellate Court have applied correct principle of law in the matter of consideration of 'will' while declaring the same as 'suspicious document'. Consequently, this Court sees no reason to interfere with the findings of fact so recorded by the Courts below. The entire gamut of matter is in the realm of concurrent findings of fact. No question of law, much less substantial question of law arises warranting interference by this Court u/S 100 CP.C.
13. Appeal sans merit and is hereby dismissed.
(Rohit Arya) Judge sh/-
Digitally signed by SEHAR HASEEN Date: 2019.09.14 16:37:41 +05'30'