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2023 DIGILAW 237 (MP)

Subhash Sharma v. Sahrda Bai

2023-02-07

SUNITA YADAV

body2023
JUDGMENT Sunita Yadav, J. - The present appeal has been preferred by the appellant/defendants under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 06-02-2014 passed by the First Additional District Judge, Bhind in Civil Appeal No.1-A/2014 whereby the judgment and decree dated 18-12-2013 passed by the Civil Judge Class -I, Mehgoan District Bhind in Civil Suit No.80-A/2012 has been reversed. 2. Factual matrix of the case are in brief are that respondent No. 1/plaintiff- Smt. Saharda Bai W/o Ram Naresh filed a civil suit for declaration and permanent injunction before the Civil Court, Mehgaon and pleaded that Smt. Ram Katori Bai who is her mother-in-law and mother of appellants executed a Will dated 22.07.2008 in favour of plaintiff /respondent No. 1 and got it registered in the Office of Sub Registrar, Mehgaon and the same was duly attested by two witnesses namely Ram Sevak S/o Kashiram Gupta and Satendra Sharma S/o of Lajja Ram Sharma. She has also pleaded that property which was subject matter of Will was inherited by Smt. Ram Katori from her ancesters. 3. The appellants/defendants appeared before the trial Court and filed their written statement and denied the claim of the plaintiff and further submitted counter claim in their written statement that their mother- Smt. Ram Katori Bai also executed a Will dated 23.07.2008 which is the last Will of the testator and the same was also duly attested. Issues were framed and evidence was led by the parties. After considering the submissions and evidence of parties, the learned trial Court dismissed the suit as well as counter claim of the defendants holding that both the Wills are found to be suspicious because the statements made by the witnesses are contradictory and doubtful regarding the execution of aforesaid Wills. 4. Being aggrieved against the judgment and decree passed by the Trial Court, plaintiff preferred first appeal before first Appellate Court and defendants filed cross appeal. The first appellate Court after considering the submissions/arguments of the parties has rejected the cross appeal filed by the defendants and allowed the appeal preferred by the plaintiff and set aside the judgment and decree passed by learned trial Court, therefore, appellants/defendants has occasion to file this second appeal under Section 100 of C.P.C. 5. The first appellate Court after considering the submissions/arguments of the parties has rejected the cross appeal filed by the defendants and allowed the appeal preferred by the plaintiff and set aside the judgment and decree passed by learned trial Court, therefore, appellants/defendants has occasion to file this second appeal under Section 100 of C.P.C. 5. Assailing the findings recorded by the learned first Appellate Court, learned counsel for appellants/defendants submits that the learned first appellate Court has committed grave error in disbelieving the Will dated 23.07.2008 executed by Smt. Ram Katori Bai in favour of appellants/defendants and further submits that in the present case, First Appellate Court was bound to see whether Smt. Ram Katori Bai has any legal right to execute the Will dated 22.07.2008 as plaintiff/respondent No.1 and Smt. Ram Katori Bai have admitted the fact that the property for which the Will was executed was ancestral property and as per provision of Section 6 of Hindu Succession Act and as per provision of Hindu law, the property was co-parcenary property and after the death of mother-Smt. Ram Katori Bai all sons became owner of the property. In such circumstances, Smt. Ram Katori Bai has no right to execute the Will in favour of respondent No.1 and she could only execute the Will only for her share. It is further argued that appellants and husband of respondent No. 1 namely Ram Naresh are sons of Smt. Ram Katori Bai and after death of their mother, all three sons became owner of the property as per Hindu Law. Learned Counsel for the appellants has placed reliance upon the judgment passed by Hon'ble Supreme Court in the case of Bhagat Ram and Another Vs. Suresh and Ors. reported in (2003) 12 SCC 35 and prayed to quash the impugned judgment. 6. Relying the case of Jagannath Vs. Arulappa and Anr. reported in (2005) 12 SCC 303 and Murthy and Ors. Vs. C. Saradambal and ors. reported in 2021 Legal Eagle (SC) 892, learned counsel for appellant has further argued that the learned first appellate court failed to discharge its duty properly as the impugned judgment lacks to reflect conscious application of mind on the findings recorded, supported by reasons, on all issues dealt with, while reversing the judgment of trial court. 7. Learned counsel for appellant has further argued that in the light of cases of Pradumn Singh and Ors. 7. Learned counsel for appellant has further argued that in the light of cases of Pradumn Singh and Ors. Vs. Shiv Raj Singh and Ors. reported in (2014) 1 MPLJ 203 and Ramnarayana Tiwari and ors. Vs. Uma Shanker Pacholi and another reported in (2013) 1 MPLJ 701 , learned counsel for appellant has argued that the learned trial court erred in holding that will dated 22.07.2008 has been duly proved. 8. In present case First Appellate court's findings of facts regarding execution of Will dated 22/07/08 are based on detailed consideration of evidence of both parties on record. Findings on the genuineness of said Will (Exhibit P-2) as per provisions of Section 59 and 63 of Indian Succession Act and Section 68 of Indian Evidence Act are not based only on its registration but is based on the evidence of the attesting witnesses namely Ram Sewak (PW-4) and Satendra Sharma (PW-5) as well as Ram Niwas (PW-2) and Ram Roop (PW-3) who were examined to prove the execution of said will. The learned first appellate court has also discussed about the Will Exhibit D-11,dated 23/07/2008, produced by the appellants/defendants by detailed appreciation of evidence in paragraphs no. 18 to 21 of the impugned judgment. 9. As discussed above, in this case since a definite finding has been arrived at by the first appellate court after appreciating evidence on record and learned counsel for the appellant has failed to show that the vital evidence was omitted or inadmissible evidence is relied upon by the first appellate court, the impugned judgment also reflects conscious application of mind on the findings recorded, supported by reasons, on all issues dealt with; therefore, no substantial question of law arose. Questions proposed by the appellant also involve appreciation of evidence. The right of testator for execution of will has also been challenged in proposed questions by the appellants, however, the same was not challenged by the appellants before both the courts below and on the contrary they also pleaded that the testator had executed a will dated 23/07/2008 in their favour. Hence, appellant is not allowed to set up a new case or raise a new issue in second appeal. 10. In view of the above discussion, no question of law much less substantial question of law arises warranting interference under Section 100 of CPC. Hence, appellant is not allowed to set up a new case or raise a new issue in second appeal. 10. In view of the above discussion, no question of law much less substantial question of law arises warranting interference under Section 100 of CPC. Consequently, this second appeal sans merit and is hereby dismissed at admission stage.