Madhya Pradesh High Court
Smt.Chandra Kala(Dead) Through Legal ... vs Sanmat Kumar Saravgi(Dead) Through ... on 24 January, 2023
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
FIRST APPEAL No. 430 of 2005
BETWEEN:-
1. SMT.CHANDRA KALA (DEAD) THROUGH
LEGAL REPRESENTATIVES HARIHAR
PRASAD AGRAWAL H/O LATE SMT.
CHANDRAKALA, AGED ABOUT 90 YEARS,
BAIDYANATH CHOWK, B.N. LAL HOUSE,
CHHOTI SADAK, SAMBALPUR (ODISHA)
(ORISSA).
2. ASHOK AGRAWAL S/O LATE SMT.
CHANDAKALA, AGED ABOUT 64 YEARS,
R/O BAIDYANATHCHOWK, B.N. LAL
HOUSE,CHHOTI SADAK, SAMBALPUR
(ORISHA) (ORISSA).
3. RAJENDRA PRASAD AGRAWAL S/O LATE
SMT. CHANDAKALA, AGED ABOUT 62
YEARS, R/O BAIDYANATHCHOWK, B.N.
LAL HOUSE,CHHOTI SADAK, SAMBALPUR
(ORISHA) (ORISSA).
4. MAHESH KUMAR AGRAWAL S/O LATE
SMT. CHANDAKALA, AGED ABOUT 58
YEARS, R/O BAIDYANATHCHOWK, B.N.
LAL HOUS E,CHHOTI SADAK, SAMBALPUR
(ORISHA) (ORISSA).
5. SUBHASH KUMAR AGRAWAL S/O LATE
SMT. CHANDAKALA, AGED ABOUT 55
YEARS, R/O BAIDYANATHCHOWK, B.N.
LAL HOUSE, CHHOTI SADAK, SAMBALPUR
(ORISHA) (ORISSA).
6. SHYAMA SANGANERIA W/O SHASHIKANT
SANGANERIA R/O PL OT NO 1303/1304, JAI
DURGA NAGAR, CUTTACK ROAD, KHURDA
BHUBHANESHWAR (ORISSA).
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 1/25/2023
1:13:55 PM
2
.....APPELLANTS
(BY SHRIABHIJEET A. AWASTHI - ADVOCATE)
AND
1. SANMAT KUMAR SARAVGI(DEAD)
THROUGH LEGAL REPRESENTATIVES
MAMTA D/O SHRI SANMAT KUMAR
SARAOGI R/O SARA FA BAZAR, KATNI
(MADHYA PRADESH).
2. SMT. ANITA W/O VINOD KUMAR C/O REKH
CHAND JI SURAMA, CLOTH DEALER, NEAR
BUS STAND PO NEVAPURA, RAJIM,
DISTRICT GARIABAND, CHHATTISGARH
(CHHATTISGARH).
3. KAVITA D/O LATE SHRI SANMAT KUMAR
SARAOGI R/O SARAFA BAZA R, KATNI
(MADHYA PRADESH).
4. SMT. RANJANA W/O ARUN KUMAR
AGRAWAL R/O SHRI RANI SATI STORE,
BAKRI BAZAR ROAD, UPPER BAZAR,
RANCHI, JHARKHAND (JHARKHAND).
5. SMT. KANCHAN W/O SHRI MURLIDHAR
R/O DURGA KIRANA STORE, HIGH
SCHOOL ROAD, BELGHANA, DISTRIC T
BILASPUR (CHHATTISGARH).
6. PARVATI DEVI D/O LATE SANMAT KUMAR
SARAOGI R/O SARAFA BAZAR, KATNI
(MADHYA PRADESH).
7. JITENDRA KUMAR ALIAS DEEPAK
SARAOGI S/O LATE SANMAT KUMAR
SARAOGI R/O SARAFA BAZAR, KATNI
(MADHYA PRADESH).
8. MAHENDRA SARAOG I S/O LATE SANMAT
KUMAR SARAOGI R/O SARAFA BAZAR,
KATNI (MADHYA PRADESH).
9. SURENDRA SARAOGI S/O LATE SANMAT
KUMAR SARAOGI R/O SARAFA BAZAR,
KATNI (MADHYA PRADESH).
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 1/25/2023
1:13:55 PM
3
10. PADAM KUMAR SARAOGI(DEAD)
HROUGH LEGAL REPRESENTATIVES
SHRI DEVENDRA SARAOGI S /O PADAM
KUMAR, AGED ABOUT 35 YEARS, R/O
RAGHUNATH GANJ, KATNI (MADHYA
PRADESH).
11. SMT. NARBADI BAI(DEAD) W/O SHRI
GOPAL LAL SHAH(DEAD) THROUGH
LEGAL REPRESENTATIVES PRAMOD
KUMAR SHAH S/O LATE SHRI GOPAL LAL
SHAH R/O NEAR SAJAN TAKIES ABOVE
ANAMIKA , INDIARA COMPLEX VANARAS
(UTTAR PRADESH).
.....RESPONDENTS
(SHRI SATYAM AGRAWAL - ADVOCATE FOR RESPONDENT NO.
1 / Lrs AND SHRI A. K. JAIN - ADVOCATE FOR RESPONDENT
NO.2 / Lrs. AND SHRI SANJAY K. AGRAWAL - ADVOCATE WITH
MS. ANKITA KHARE - ADVOCATE AND SHRI SARTHAK NEMA -
ADVOCATE FOR RESPONDENT NOS. 2 (a) AND 1.8)
Reserved on : 28-09-2022
Pronounced on : 24-01-2023.
------------------------------------------------------------------------------------------------
This appeal h aving been heard and reserved for order, coming
on for pronouncement this day, the court pronounced the following:
JUDGMENT
This first appeal under Section 96 of Code of Civil Procedure has been preferred by the appellant challenging the judgment an d decree dated 14.03.2005 passed by First Additional District Judge, Katni in Civil Suit No. 25A/02, whereby learned trial Court decreed the suit in favour of the plaintiffs and declared the plaintiffs Sammat Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 4 Kumar Saravgi and Padam Kumar Sara wagi, owner o f the disputed house and restrained the defendants from alienating / selling the house in question.
2. It is important to mention here that during pendency of this appeal, both the rival parties have expired and now the appeal is being prosecuted by the respective legal representatives of the parties concerned.
3. Undisputed and admitted facts of the case are that late Shivbux Rai was earlier owner of the house no. 145 situated at Raghunath Ganj Ward, Katni. After his death, Durga Prasad and Loonkaran became owner and occupants of equal part in the disputed house. After the death of Durga Prasad, plaintiff Sammat Kumar; and Kishni Bai, mother of the defendants, were the partners / share holder in the Firm Trilokchand Shivbux Rai and the said Firm took loan from Central India Bankers and in regard to it, a civil suit no.16B/78 was instituted and the house in dispute was auctioned in the proceedings of the said suit.
4. Briefly stated facts of the case are that the plaintiffs - respondents no. 1 and 2 herein instituted a civil suit no. 25A/05 against the appellant herein Smt. Chandrakala Bai and respondent no. 3 herein Smt. Narbadi Bai / defendants for declaration of title and permanent injunction with regard to the house no. 145 situated at Raghunath G anj Ward, Katni, contending therein that Shivbux Rai, father of Durga Prasad and Loonkaran, during his life time had partitioned the house equally between Durga Prasad and Loonkaran on 28.4.1948. Firm Trilokchand Shivbux was the firm of joint Hindu family. After death of Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 5 Durga Prasad, his sons Sammat Kumar and Padam Kumar took the half share and half share of Loomkaran which also devolved upon his death to his widow Smt. Kishni Bai being a partner in the firm. Smt. Kishni Bai remained partner in the firm up to the year 1977 -78. The firm was dissolved due to outgoing of Kishni Bai on 10.11.1977, eventually; Smt. Kishni Bai expired on 29.12.1987 leaving behind her daughters - Narbadi Bai and Chandrakala as her legal heirs. The main reason behind filing of the c ivil suit was that they filed the said suit on the basis of the Will dated 18.10.1968 (Ex.P/1) alleged to have been executed by Loomkaran, owner of the house in question, in his life time, in favour of his wife Smt. Kishni Bai and made his daughters devoid of any title and interest in the property and after the death of Loomkaran, his wife Smt. Kishni Bai became absolute owner and by Will dated 12.11.1987 (Ex.P/2 5) executed by Smt. Kishni Bai, the plaintiffs / respondents herein, become title holders of the house situated at Raghunath Ganj Ward, Katni.
5. On notice being served, the defendants / appellant herein and respondent no. 3 herein, filed their written statements denying the averments alleged in the suit and contended that Loomkaran had not bequeathed the disputed property to the plaintiffs and alleged Will dated 18.10.1968 (Ex.P/1) is false and fabricated documents. The Will dated 12.11.1987 (Ex.P/2 5) alleged to have been executed by Smt. Kishni Bai is also forged and fabricated document. It is averred that on being examined written statement alleged to have been signed and verified by this appellant, it is found that the signature of the appellant Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 6 showing the written statement furnished by Shri R. K. Nigam, Advocate on 28.10.2002 was forged.
6. The trial Court on the basis of the pleadings of the parties, framed as many as eight issues, recorded the evidence of the parties and finally decreed the suit in favour of the plaintiffs vide impugned judgment and decree dated 14.03.2005.
7. Learned c ounsel for the appellants averred that learned trial Court has failed to provide an opportunity of hearing as per law to the appellant by refusing to take her written statement dated 19 -06-2004 on record and further trial Court has not permitted the appell ant to call Shri S. K. Kelkar, hand writing expert to prove that signature of the appellant showing it Ex. P (Sahmatipatra) is forged. Learned trial Court has also failed to appreciate the evidence adduced on behalf of the appellant whereby the appellant h as successfully proved that Late Loomkaran and Smt. Kishni Bai were mentally and physically unfit to execute alleged Will at the relevant period. In MJC No.14/93 parties being Smt. Narbadi Bai and another vs. M/s. Trilok Chand and others, the existence of the Will was not disclosed by the plaintiff (Sanmat). This clearly shows non -existence of the Will on 18.1.2001 when Sanmat Kumar was examined. Further contended that learned trial Court has failed to see that the counsel appearing on behalf of the respondents no. 1 and 2 / plaintiffs is the same who was appeared in M.J.C. No.14/93 on behalf of the appellant as well as respondent no. 3 / defendants. It is further pleaded that plaintiffs have got prepared forged and false Wills (dated 18.10.1968 and 12.11.19 87) said to have been executed by late Shri Loonkaran S/o. Shivbux Rai and another by Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 7 Smt. Kishni Bai W/o. Loonkaran in their favour. On the basis of these Wills, they claimed the ownership in respect of the house no. 145 shown as A, B, C and D in the map attached with the plaint. In fact, they had never executed any Will in favour of the plaintiffs. On the alleged date of Will, Loonkaran and Smt. Kishni Bai were seriously ill and not in a mental and physical stage to execute the Wills. To buttress his contentions, learned counsel has placed reliance on Janki narayan Bhoir v. Narayan Namdeo Kadam 2003 (I) W.N. 130 (SC); Basantlal v. Shusheela Devi 2007 (3) MPLJ 296; and S. R. Srinivasa and others v. S. Padmavathamma (2010) 5 SCC 274.
8. Per contra , l earned counsel for the respondents / plaintiffs supported the judgment and decree passed by the trial Court. It is averred that the execution of the wills ha s been proved in accordance with Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925. The trial Court was convinced about the factum of the execution of the will s by the concerned testator s and the fact that there were no suspicious circumstances surrounding the execution of the wills by the testators.
9. Heard the rival submissions made by learned counsel for the parties and also perused the impugned judgment and record. I have given my thoughtful consideration to the rival submissions made by the parties.
10. The relationship between the parties is not in dispu te. It is also undisputed and admitted that Shiv Bux Rai was the sole owner of the disputed building 145 situated at Raghunath Ganj Ward, Katni. After his death, Durga Prasad and Loomkaran became owner and Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 8 occupants of equal part in the disputed building. After the death of Durga Prasad, Loomkaran and Sammat Kumar became partners of equal share (1/2) and again after the death of Loom Karan, Kishani Bai and sammat Kumar became partners of equal share (1/2). Plaintiffs are the sons of Durga Prasad and Kishani Bai had two daughters namely Narbadi Bai and Chandra Kala Bai. Narbadi Bai got married in 1942 and Chandra Kala Bai in 1945 or 46. Thereafter, they both began to live in their in -laws house happily. It is also exhibited that after the death of Durga Prasa d, Sammat Kumar (plaintiff) and Kishani Devi (mother of the defendants) were the partners in the firm "Trilok Chandra, Shivbus Rai", which was a firm of joint Hindu Family and the said firm had taken loan from "Central India Bankers" and in regard to it, a civil suit no. 16B/78 was instituted and the disputed building was auctioned in the proceedings of the said suit. But, Kishani Bai, mother of the defendants preferred an appeal bearing no. 65/83 in the High Court against the said Sale Certificate but allo wing the appeal, High Court transferred the case to the Ist Additional District Judge to re -decide the case on merits. Thereafter, considering the st matter on merits on 14.3.2001 the 1 Additional District Judge cancelled the sale certificate issued in favo ur of Pramod Kumar Suhane who was declared purchaser of the said building. To run the firm properly, the firm took loan from Central India B ankers, Katni and in lieu of it, mortgaged the said building 145 situated at Raghunath Ganj, on which, Central India Bankers, Katni instituted a civil suit no. 610/83 against the firm Sammat Kumar, Kishani Bai and Badami Bai. Kishani Bai died on 26.7.2004 so her name was struck off from the case and Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 9 after the death of Badami Bai, the suit against her heirs was restricte d as they were not made party. Only the plaintiffs remained in the established suit up to finality and they paid the entire loan amount as alleged against the firms and got ended the matter. Furthermore, they redeemed the mortgaged building which was mort gaged to Central India Bankers. Having paid all the amounts to the plaintiffs, the plaintiffs became the owner of the disputed property.
11. Late Loomkaran had no son but two daughters who were the defendants before the trial court and are living happily in their in -laws houses. The plaintiffs served and be loyal to Loomkaran as he had no son and Loomkaran also treated them affectionately as their sons. Being satisfied with the services and loyalty of the plaintiffs, Loomkaran executed a Will before Notar y on 18.10.19 68 of his movable and immovable property during his lifetime. According to it, appointed his wife as the owner of the property only for her life time and forbade her to give the said property to his daughters or anyone else. He entitled the pl aintiffs that after his death as well as his wife, the plaintiffs would perform final rituals according to the caste. There was none else to serve Kishani Bai W/o. Loomkaran except plaintiffs. Hence, the plaintiffs served their aunt. Being satisfied with t he services of the plaintiffs, Kishani Bai also executed a Will before notary on 12.11.1987 and appointed the plaintiffs as the owner of the disputed building and the plaintiffs followed the conditions mentioned in the will deed. Thus, the plaintiffs becam e sole owner of the property of Loomkaran and they are entitled to use the disputed property freely.
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 1012. From written statement dated 28.10.2002 filed by the defendants before the trial Court, it is apparently clear that the defendants accepted in their w ritten statement that Shivbux Rai was the land owner of the disputed building situated at Raghunath Ganj, Katni. On 28.04.2004, Shivbux Rai got written a registered partition deed and made his sons Durga Prasad and Loomkaran the owner of equal shares. After death of Shivbux Rai, Durga Prasad and Loomkaran became owner / occupants on equal shares and denied that in 1977 the said firm " Trilok Chandra Shivbux Rai" was ended due to loss in business and the said firm was indebted Rs.10,00,000/ - (Ten Lacs) in 19 77 and accepted that a civil suit no.16B/78 dated 6.5.1980 under Order 21 Rule 58 was instituted by Kishani Bai and Badam Bai for objection.
13. In the life time of Shivbux Rai, forefather of plaintiff Sammat Kumar, the firm named Trilok Chandra Shivbux R ai was in existence. Shivbux Rai and his sons Durga Prasad and Loom Karan were its partners. After the death of Durga Prasad , Plaintiff Sammat Kumar and Loom Karan became the partners of the firm and after Loom Karan's death, his wife Kishani Bai remained the partner in firm along with plaintiff Sammat Kumar looking after and dealing properly. Plaintiffs served and be loyal to Loom Karan in his lifetime. Being satisfied with the services and loyalty of plaintiffs Loom Karan executed a Will dated 18.10.1968 exhibit P /1 directing his wife to be the owner of the disputed building after his death provided she (Kishani Bai) would not have any right to dispose or sell or to give anyone else and after the death of Kishani Bai, Padma Kumar and Sammat Kumar would be Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 11 owner of the said property. On the said Will exhibit P /1, Hari Shankar Agrawal and Kedar Prasad Marbadi signed as witnesses.
14. Hari Sankar (PW1) states that he had family relations with Loom Karan Sarawagi. Loom Karan lived in his home situated at Sarafa Bazar Raghunath Ganj Katni and he got written Will by Loo m Karan in the month of October 1968 as exhibit P /1. In the said deed he wrote as Loom Karan himself desired. As Loom Karan dictated so he went on writing. He made written about Sarafa Bazar buildi ng that during his time he would be owner of the said property and after his death his wife Kishani Bai would become the owner. Kishani Bai would have no right to sell or give anyone else. Having written the said Will, Loom Karan signed on page first , second and third. A to A, B to B and C to C respectively after reading exhibit P /1 and he (Harisjhankar) himself signed exhibit P /1 from A to A, B to B and C to C as writer and witness. This witness also contended that when the said Will was written, one Kedar Prasad from Anooppur was also present there. He signed on exhibit P /1 as a witness. Thereafter for attestation of the said document he went to Garh a Jabalpur Notary Gautamji. Having read the document, he asked Loom Karan about the document. Loom Karan told that he had executed Will about his building directing that during the lifetime of his wife Kishan Bai, she would be owner/occupant but could not sell or give to anyone else and after her death Sammat Kumar and Padam Kumar would be owners. Thereafter notary attested the said document.
15. Kedar Prasad (PW-2) witness of exhibit P /1 affirming his signature on exhibit P /1 averred that the Will was written about the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 12 property situated at Raghunath Ganj Katni. He bequeathed his building situated at Raghunath G anj to his wife and after her death Sammat Kumar and Padam Kumar. Hari Shankar read over the said Will to Loom Karan. Thereafter Loom Karan, Hari Shankar and he himself signed it. Then Loom Karan himself and Hari Shankar both went to Garha in Jabalpur to n otary Gautam ji. Gautamji Notary also read over the said Will to Loom Karan. Then Loom Karan deposed that he got written the said Will being in sound mind. Thus both attestors witness of the said Will exhibit P /1 Hari Shankar (PW-1) and Kedar Prasad (PW-2) attested exhibit P/1 properly.
16. Defendant Narbadi Bai admitted that Loom Karan treated Sammat Kumar and Padam Kumar as his sons. They obeyed him. Loom Karan arranged the marriage of Sammat Kumar. Even defendant Chandra Kala Bai also admitted that Samma t Kumar performed final rituals of Loom Karan. Sammat Kumar was very affectionate to Loom Karan like his own son. Loom Karan arranged the marriage of Sammat Kumar. Hence proved that plaintiffs served Loom Karan and being pleased with the services of plaint iffs Loom Karan executed the said Will exhibit P/1.
17. It is candidly evident from Will exhibit P /1 that Loom Karan appointed his wife Kishani Bai sole owner of the said building to sell or give anyone else and after her death Sammat Kumar and Padam will be sole owner and none would have any right/title. On the basis of the said Will Kishani Bai became owner of the building in place of Loom Karan and plaintiff Sammat Kumar became partner of equal shares in renowned firm Trilok Chand Shiv Bux Rai. Even def endants Narbadi Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 13 Bai and Chandra Kala Bai admitted that after the death of Loom Karan, Kishani Bai was the partner of equal share with plaintiff Sammat Kumar in the said firm.
18. Plaintiff Sammat Kumar admitted that after the death of Loom Karan he served and look after Kishani Bai and she gave motherly affection to plaintiff. Plaintiff Sammat Kumar dealt on behalf of Kishani Bai. Being satisfied with the services of plaintiffs, she executed Will exhibit P -25. After her death, Sammat Kumar performed her final rituals even defendant Narbadi has admitted in her statement that after the death of Loom Karan, Sammat Kumar served and looked after Kishani Bai. Other defendant Chandra Kala Bai has also admitted in para 8 of her cross-examination that Kishani Bai an d Sammat Kumar were partners and she Kishani Bai lived with Sammat Kumar.
19. Murali Manohar Sarawage, witness of the will Ex.P/25 confirming his signature on the said Will exhibit P -25, B to B verified that Kishani Bai got written a Will in 1987 regarding her property according to her husband's Will. The Will was executed in favour of Sammat Kumar and Padam Kumar about the building situated at Sarafa Bazar, Raghu Nath Ganj, Katni provided that they would get ended the pending firm and redeemed the house mortgaged to the banker, thereafter they would be sole owner. The said witness stated that Sammat Kumar and Padam Kumar is the nephew of Kishani Bai. They served and look after her. Being pleased with their services, she bequeathed in favour of them. On th e instruction of Kishani Bai , one Shuklaji, resident of Jabalpur got written the bequest and Kishani Bai himself read it. Thereafter affirming it to be right, she signed on the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 14 bequest and being witness Abdul Rashid also signed on the said bequest. Then the bequest was verified by notary Gautam.
20. Abdul Rashid in the examination contended that he worked in house of Kishani bai and she lived in the house situated at Sarafa Bazar Raghunath Ganj. He himself and Murli Manohar along with Kishani Bai went to J abalpur to see her doctor. She expressed her desire for bequest there. Thus they went to Collectorate office with Kishani Bai where they met with Shuklaji Advocate and Kishani Bai herself asked Shuklaji Advocate for bequest. According to the instructions of Kishani Bai , the advocate wrote bequest. Being pleased with services of Sammat Kumar and Padam Kumar she executed bequest in favour of them provided Sammat Kumar would run the running suit to save the property and pay market debt. Thereafter, he would b e owner. Then Will exhibit P/25 was written and Kishani Bai signed it after reading. Thereafter, Murali Manohar and he himself signed in capacity of witness and then said Shukla Advocate. Furthermore, they went to Notary Gautam for attestation. He read the bequest and read over to Kishani Bai. After understanding the bequest Kishani Bai signed. Thus Murali Manohar Saraswati and Abdul Rashid attested the said bequest .
21. Though, i n their examination, defendants called said bequest exhibit P1 and P2 5 absolutely forged and fabricated but they have not filed any proof in this regard. According to the witnesses of the said bequest, Hari Shankar witness no.1, Kedar Prasad witness no.2 and Murli Manohar Sarawagi witness no.4 and Abdul Rashid witness no.5, respectively have attested the said bequest. The signature s of the testators have been certified under Section 63 of Succession Act and 68 Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 15 of Evidence Act. On the said bequest exhibit P1 and P25 which has clearly been certified witnesses.
22. So far as the cont ention regarding Prem Narayan Gautam, Advocate is not legally appointed Notary is concerned, in this regard Hon'ble High Court in Petition No.2827/2003 by order dated 15.01.2004 confirm ed the order dated 26.10.2003 holding that appointment of Prem Narayan Gautam as notary is irrelevant in this matter. In view of the above mentioned circumstances, the objection raised by defendants regarding notary Prem Narayan Gautam is totally irrelevant and on the basis of above mentioned ground bequest exhibit P1 and P25 can't be regarded as forged and fabricated.
23. So far as attestor of the bequest is concerned, Section 68 of the Evidence Act provides that only evidence of the witness is sufficient to prove bequest. Attestors witnesses Murali Manohar Sarawagi witness no.4 and Abdul Rashid witness no.5 have attested the said bequest exhibit P25 properly. From exhibit P/25 it is crystal clear that there is signature of executor Kishni Bai marked as A to A and Mutli Manohar Sarawagi and Abdul Rashid were the witnesses of the said will before whom the said will was signed by Kishni Bai and notarized. Hence, it does not create any doubt about the document whether C.L. Shukla, Advocate was examined or not in regard to the said document.
24. From the aforesaid discussion, it is proved that Loomkaran executed bequest Ex.P/1 dated 18.10.1968, thereafter, Kishani Bai executed bequest Ex.P/25 dated 12.11.1987 in favour of the plaintiffs. The appeal has no merit. The judgments on which reliance have been Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM 16 placed do not help the appe llant. Accordingly, this appeal is dismissed and the judgment and decree dated 14 -03-2005 passed by First Additional District Judge, Katni in Civil Suit No.25A/02 is hereby affirmed. Decree be drawn accordingly. Needless to say that the parties shall bear their own costs.
25. A copy of this judgment along with record be sent back to the concerned trial Court for information and its compliance.
(ARUN KUMAR SHARMA) JUDGE JP/-
Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 1/25/2023 1:13:55 PM