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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 NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 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 NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 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 NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 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 NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 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.

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 NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 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.

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 NEUTRAL CITATION NO. 2025:MPHC-GWL:30713 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.