Madhya Pradesh High Court
Ramesh Dubey vs Smt Siya Bai ( Dead) W/O Late Shri Ayodhya … on 9 June, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:25445
1 SA-1436-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 9 th OF JUNE, 2025
SECOND APPEAL No. 1436 of 2024
RAMESH DUBEY
Versus
SMT SIYA BAI ( DEAD) W/O LATE SHRI AYODHYA PRASAD GARD
THROUGH LRS RAGHURAJ GARG AND OTHERS
Appearance:
Shri Shashank Shekhar - Senior Advocate assisted by Shri Vikalp Soni, Advocate
for the appellant.
JUDGMENT
This appeal was heard and reserved for orders on admission on
12/03/2025.
2. This second appeal under Section 100 of Code of Civil
Procedure is filed by the appellant/plaintiff being aggrieved by the
judgment and decree dated 08/04/2024 passed b y the learned
Principal District Judge, Jabalpur in Regular Civil Appeal
No.139/2022 (Ramesh Dubey vs. Smt. Siya Bai and others), whereby
the appeal filed by the appellants/plaintiff has been rejected affirming
the judgment and decree dated 30/06/2022 passed by the 24th Civil
Judge, Senior Division, Jabalpur in Civil Suit No.7000104-A/2015.
Hence, this appeal before this Court.
3. At the time of hearing, learned senior counsel for the
appellant submitted that the appellant has lost in both the court. It is
further stated that the Will was proved by the plaintiff in the trial
Court but wrongly held that the Will dated 30/06/2006 is not proved.
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MAMTANI
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It is also submitted that possession of the plaintiff was also proved
but both the courts gave erroneous finding. It is further stated that a
peculiar situation took place in the trial Court. There are three
defendants and defendant No.1’s written statement was filed by
Brijmohan Garg but statement was made by Raghuraj Garg, who was
not signatory to the written statement and who did not file written
statement. All defendants have admitted possession of the plaintiff. It
was further stated that will was in two pages. First page of the same
was purchased by Executor of the Will but the second page was
purchased by typist for Testator of the Will but this situation is not
suspicious and it has been held as suspicious by both the Courts.
4. Considered the arguments and perused the record.
5. The 24th Civil Judge Senior Division, Jabalpur in Civil Suit
No.7000104-A/2015 vide judgment and decree dated 30/06/2022 has
dismissed the suit of the plaintiff for the suit property situated in
village Tewar, Bhedaghat Road, District Jabalpur for the agricultural
land bearing Khasra No.340 area 1.41 hectare, Patwari Halka No.34,
Bandobast No.229, Jabalpur along with a Kachha house for
declaration of title, permanent injunction and for declaration of sale
deed dated 21/02/2012 by defendants No. a, b and c in favour of
defendant No.3 Chandrabhan Lodhi as null and void.
6. It was admitted fact that late Sukhrani @ Phulabai was the
aunt (chachi) of the plaintiff while Siyabai was only daughter of
Sukhrani and Sukhrani had expired on 23/08/2006 in village Tewar.
7. One of the arguments made by learned senior counsel Shri
Shashank Shekhar assisted by Shri Vikalp Soni is that Will was
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MAMTANI
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NEUTRAL CITATION NO. 2025:MPHC-JBP:25445
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genuine and proved in accordance with law but wrongly held that it is
suspicious.
8. In this regard, looking to the pleadings, documentary and oral
evidence off the parties, it is seen that plaintiff/Rameh Dubey (PW-1)
in his cross-examination in Para-7 has admitted that at the time of
death, Sukhrani was about 85 years old, she was weak in her old age.
In Para-12, he further stated that Will was not written before him,
therefore he cannot say that who brought the stamp paper for typing
the Will. He also does not know who took her photo and annexed on
the Will. He was not present at the time of Will, therefore he did not
know who typed the Will. In Para-16 he further stated that if in the
stamp, it is mentioned that stamp was purchased by Ramesh Dubey
(plaintiff) then it is wrong. Looking to the cross-examination of
plaintiff Ramesh Dubey, Will become doubtful because the stamp
paper has been purchased in his name but Ramesh Dubey is denying
the presence at the time of writing the Will. Therefore, the burden
was on plaintiff-Ramesh Dubey to call the entire record of purchase
of stamp paper and Notary to remove the suspicious about execution
of Will (Ex.P/1) which has not been done and Sukhrani is stated to
have died within two months of Will (Ex.P/1), therefore her mental
and physcial condition was well at the time of execution of Will was
required to be proved whichi has not been done.
9. Bal Govind Dubey (PW-2) in his cross-examination in Para-8
has stated that he has not given any affidavit regarding evidence in
this case and if it is filed then he does not know, therefore this witness
turned hostile but not re-examined by plaintif.
10. Madan Gopal Dubey (PW-3) in his cross-examination in
Signature Not Verified
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MAMTANI
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Para-6 stated that no proceedings regarding execution of Will before
him. In Para-7 he stated that Will was not written before him.,
therefore, he cannot say that who signed the Will and where and who
affixed the thumb impression at which place.
11. Looking to the statement of plaintiff, Will has become
suspicious. When it is under challenge whether Sukhrani affixed her
thumb impression on the Will and understood the content of the Will
or not, the least requirement was that thumb impression should have
b e e n examined by Ha n d Writing/Th u m b Impression
Examiner/Document Examiner for comparing the thumb impression
with other undisputed documents having her thumb impression but
the same was not done.
12. Learned senior counsel for the appellant relied on the
judgment of Meena Pradhan and others vs. Kamla Pradhan and
another, AIR 2023 SC 4680, wherein relevant part of para 10 reads as
under :-
“10. X X X X X
ix. The test of judicial conscience has been evolved
for dealing with those cases where the execution of the
Will is surrounded by suspicious circumstances. It requires
to consider factors such as awareness of the testator as to
the content as well as the consequences, nature and effect
of the dispositions in the Will; sound, certain and
disposing state of mind and memory of the testator at the
time of execution; testator executed the Will while acting
on his own free Will;
x. One who alleges fraud, fabrication, undue
influence et cetera has to prove the same. However, even
in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes theSignature Not Verified
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MAMTANI
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NEUTRAL CITATION NO. 2025:MPHC-JBP:254455 SA-1436-2024
duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
xi. Suspicious circumstances must be ‘real, germane
and valid’ and not merely ‘the fantasy of the doubting
mind’ 1. Whether a particular feature would qualify as
‘suspicious’ would depend on the facts and circumstances
of each case. Any circumstance raising suspicion
legitimate in nature would qualify as a suspicious
circumstance for example, a shaky signature, a feeble
mind, an unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of
the Will under which he receives a substantial benefit,
etc..”
(Emphasis supplied)
13. The learned senior counsel has also relied on Saroop Singh
vs. Banto and others, (2005) 8 SCC 330, in which the facts were
regarding presumption of death of a person who was not heard for the
stipulated period of seven years as per Section 107 and 108 of the
Evidence Act, 1872. In the case Saroop Singh (supra), the question
regarding limitation was there but in the present cases, there is no
issue of limitation. In the case of Saroop Singh (supra), the widow on
the death of her husband on 07/01/1955 donated the suit property to
the appellant by a gift deed, therefore the question was whether it was
with limited rights. However, in the present case, neither there are
pleadings nor mentioned in Will dated 30/06/2006 whether property
was in the name of Sukhrani as complete owner or daughter Siyarani
had a birth right or not? because in view of Section 6 of the Hindu
Succession Act, 1956, as amended by the Hindu Succession
(Amendment) Act, 2005 (amendment dated 09/09/2005) devolution
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MAMTANI
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of interest in coparcenary property on daughters is there at par with
sons. It ensures that a daughter becomes a coparcener in her own
right from birth for inheritence and have same rights and liabilities as
a son in the coparcenary property. In the present case, the Will is
dated 30/06/2006 (Ex.P/1) after the amendment in Section 6 of the
Hindu Succession Act on 09/09/2005.
14. Regarding the fact that there are three defendants out of
which one defendant Brijmohan Garg has filed written statement but
statement in Court is made by other i.e. defendant No.2. This would
not be of any advantage of the appellant/plaintiff as even if nobody
had appeared to contest the suit, even then plaintiff was bound to
prove his case as per law.
15. Both the courts have considered all the factual and legal
aspects as per pleadings of both the parties, therefore there is nothing
by way of substantial question of law on which this second appeal
can be admitted.
16. Even otherwise, the jurisdiction of this Court to interfere
with the findings of fact under Section 100 of the Code of Civil
Procedure is well defined by catena of decisions of the Supreme
Court. This Court cannot interfere with the finding of fact until or
unless the same is perverse or contrary to material on record. [See:
Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009)
5 SCC 264, Hafazat Hussain v. Abdul Majeed and Others, (2001) 7
SCC 189, Union of India v. Ibrahim Uddin and Antoher, (2012) 8
SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC 158
Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288,
Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare,
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MAMTANI
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(2013) 7 SCC 173 and Laxmidevamma and Others v. Ranganath and
Others, (2015) 4 SCC 264].
17. Thus, in view above analysis, no substantial question of
law arises in this appeal on which it can be admitted. In the result, the
appeal stands dismissed at admission stage itself.
(AVANINDRA KUMAR SINGH)
V. JUDGE
RM
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 11-06-2025
13:13:54
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