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2011 DIGILAW 789 (MP)

Asharfi Devi (Smt. ) v. Hari Prasad

2011-07-20

ANIL SHARMA

body2011
JUDGMENT : Anil Sharma, J.:- The brief facts giving rise to the appeal are that plaintiff -respondent No.1 Hari Prasad has filed a suit for declaration of title and mutation of his name in the revenue record against the agriculture land bearing survey Nos. 473, 474, 475, 476, 477, 478, 480, 481, and 482 having an area of 1.254 hectare (hereinafter shall be referred to as "suit property") situated at village Badaudi Road, Tahsil and District Shivpuri on the ground that the aforesaid property was self acquired property of his father Prabhu Dayal who died on 31/12/1995. Prabhu Dayal executed a Will on 19/9/1995 in favour of plaintiff declaring that after his death the suit property shall be bequeathed in the name of his son Hari Prasad. But the Patwari of the area, without giving any notice, mutated the name of mother and four sisters of plaintiff alongwith plaintiff in the revenue record on the basis of succession. After getting knowledge of mutation, plaintiff has filed objections on 2/81 2000 which were dismissed and appeal filed by the plaintiff before the Court Tahsil has also been dismissed by order dated 31/102001. Therefore, plaintiff filed a suit for declaration of his title and mutation of his name in the revenue records. Defendants-respondents No.2, 3, 4 admitted the suit of the plaintiff and defendant-respondent No.5 was ex parte before the trial court. Defendant No.1- appellant in her written statement before the trial Court pleaded that suit property is ancestral property and her father Prabhu Dayal never executed any Will in favour of his son Hari Prasad. Since the suit property is property of Hindu Undivided Family, therefore, the mutation in revenue records done by the Patwari was in accordance with law. Plaintiff has prepared a forged Will on the basis of which no title is vested in him. Learned trial Court decreed the suit of the Hari Prasad agsint which civil appeal No. 49-A/04 was filed by the appellant, which was dismissed as time barred by judgment dated 26/10/2004. Plaintiff has prepared a forged Will on the basis of which no title is vested in him. Learned trial Court decreed the suit of the Hari Prasad agsint which civil appeal No. 49-A/04 was filed by the appellant, which was dismissed as time barred by judgment dated 26/10/2004. Against the order of dismissal of appeal, appellant Smt. Asharfi Devi has preferred Second Appeal bearing No. 401/05 and this Court vide order dated 7/8/2009 remanded thae matter back to the learned lower appellate court for deciding the appeal preferred by appellant on merits and learned lower appellant Court again by impugned judgment and decree dismissed the appeal of appellant on merits by holding that Prabhu Dayal executed a Will in favour of his son Hari Prasad and suit property which was his self acquired property has been given to Hari Prasad. Learned lower appellate Court has also dismissed the application of the appellant filed under Order 41 Rule 27 CPC which was filed for calling the expert's opinion regarding signature of Prabhu Dayal. Both the Courts below have held that execution of Will by Prabhu Dayal has been proved by plaintiff Hari Prasad. Hence, aggrieved by the judgment of learned lower appellate Court, this second appeal is being preferred. Learned counsel for the respondent No.1 has further submitted that Will (Ex. P/1) not only bear the signature of executant attesting witnesses but also it bears the signature of brother of Prabhu Dayal, Shri Devilal Shastri whose signature has been proved by his grandson Vivek Sharma. All the plaintiff-witnesses have established the fact that Prabhu Dayal Sharma executed the Will in a position of sound mind and given all his immovable property to his son Hari Parasad Sharma, therefore, looking to the fact and circumstances of the execution of Will and admission of wife and daughters of Prabhu Dayal, the finding of both the Courts below regarding execution of Will cannot be said to be perverse. Therefore, according to learned counsel for the respondent No.1, the judgments cited by learned counsel for the appellant cannot be applied in the facts and circumstances of this case. Both the courts below have considered the fact that except appellant-defendant Asharfi Devi, wife and all other daughters of Prabhu Dayal have admitted the execution of Will and further that the Will bears the signature of brother of Prabhu Dayal. Both the courts below have considered the fact that except appellant-defendant Asharfi Devi, wife and all other daughters of Prabhu Dayal have admitted the execution of Will and further that the Will bears the signature of brother of Prabhu Dayal. Further looking to the facts, when there is no evidence that Prabhu Dayal was of unsound mind due to ill health or old age at the time of execution of Will, it cannot be said that findings arrived at by both the Courts below are against the provisions of law. The judgments cited by learned counsel for the appellant are to be applied to the cases where execution of Will has not been admitted by any of the persons adversely affected by Will. The mother and other sisters of plaintiff Hari Prasad have admitted the execution of Will by Prabhui Dayal. Their admission cannot be considered as simple admission because they are also deprived of their valuable property of Prabhu Dayal by making the admission. In the above circumstances, both the Courts below have not committed any error in holding that Will has been proved as required by law and the finding regarding Will dated 19/9/1995 arrived at by both the Courts below are not perverse. Hence, both the substantial questions of law are decided in favour of respondent No.1 and appeal is dismissed being bereft of merits. Appellant is directed to bear her cost of appeal alongwith the cost of respondent No.1. Counsel fee as per schedule, if certified.