Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 301 (MP)

Mahila Geeta Bai v. Ramhet

2015-03-13

ROHIT ARYA

body2015
JUDGMENT : Rohit Arya, J. 1. This appeal under Section 100 CPC by defendant is directed against the judgment and decree dated 7/7/2006 in civil appeal No. 23A/2006. The first appellate court has confirmed the judgment and decree dated 31/1/2006 passed in civil suit No. 247A/2000. Plaintiff's suit for declaration and permanent injunction has been partly decreed to the effect that suit land detailed in para 28(ka) of the trial court's judgment is decreed to be of the ownership and possession of plaintiff. The mutation in favour of defendants No. 1 and 3 in respect of aforesaid land is held to be null and void. Defendants No. 1 and 3 have been restrained from transferring the land described in paragraph 28(ga). 2. Facts necessary and relevant for the disposal of this appeal, as pleaded in the plaint are to the effect that suit land, an agricultural land admeasuring 10 bigha 4 biswa, was of the ownership and possession of his maternal grandmother-Kasobai, which she had inherited from her father-Biharilal, as he had no son. Kasobai had three daughters, namely, Geetabai-defendant No. 1, Kanyabai-defendant No. 3 and Rampyari who had two sons, namely, Ramhet-plaintiff and Siyaram. As Rampyari had died in early age, therefore, plaintiff and his brother-Siyaram were brought up by maternal grandmother-Kasobai. It is submitted that by a Will, the suit land was bequeathed in favour of plaintiff by Kasobai during her lifetime. As Siyaram had died leaving behind no successor, the suit land is of exclusive ownership and possession of plaintiff. After death of Kasobai, the suit land has been recorded in the name of plaintiff and since then the suit land continues to be of the ownership and possession of the plaintiff. As defendants No. 1 and 3 attempted to seek mutation of the suit land in their name in the revenue records, therefore, with the apprehension that the suit land may be transferred by defendants No. 1 and 3, the instant suit was filed for declaration and permanent injunction. 3. Defendants No. 1 and 3 filed written statement denying the plaint allegations. It is denied that the plaintiff is in possession of the suit land. It is denied that the plaintiff was ploughing the field and harvesting crops thereupon. The alleged Will is false and fabricated. No right, title and interest has devolved upon the plaintiff by virtue of alleged Will. It is denied that the plaintiff is in possession of the suit land. It is denied that the plaintiff was ploughing the field and harvesting crops thereupon. The alleged Will is false and fabricated. No right, title and interest has devolved upon the plaintiff by virtue of alleged Will. With the aforesaid pleadings, it was prayed that the suit be dismissed. 4. The trial court on aforesaid pleadings, framed issues and allowed the parties to lead evidence. Upon appreciation of evidence on record, suit was decreed with the finding that execution of Will was proved in accordance with Section 63 of the Indian Succession Act and, therefore, the suit land stood devolved upon the plaintiff by virtue of the Will. On appeal, the first appellate court has reconsidered the entire evidence on record and concurred with the findings of facts recorded by the trial court particularly as regards factum of execution of Will. The attesting witness to the Will namely Mathura (PW-2) in para 1 of his deposition has stated that Kasobai on each page of the Will had put her thumb impression in front of him and thereafter as a witness to the said document he has put his thumb impression. In view of the aforesaid categorical statement made by the attesting witness as regards factum of execution of Will, in the opinion of this Court, challenge to the Will as forged document has rightly been rejected by the courts below. Section 63 of the Hindu Succession Act for ready reference is quoted below:-- "63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." The aforesaid requirement is duly proved by the attesting witness. No other allegation is made against execution of Will. 5. In view of the aforesaid facts and circumstances, in the opinion of this Court, both the courts below have recorded pure findings of facts, which are legally sustainable and do not warrant interference. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference under Section 100 CPC. The second appeal sans merits. Dismissed.