Kedar Singh vs Mahila Geeta Bai - 1996 Supreme(MP) 1161

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : R.A. Roman
For the Respondent: Sunil Soni

Headnote:(1) Will – – claim under – – can be considered on proof thereof.
       (2) Civil Procedure Code, 1908 – – O.39 R.1 & 2 – – interim injunction – – cannot be granted in favour of a trespasser.
       (3) Will – – alleged to have been executed on date of death – – neither registered nor on stamp paper – – cannot be acted upon unless proved.
       (4) Civil Procedure Code, 1908 – – O.39 R.1 & 2 – – transferee – – may be restrained from further transfer.
       (5) Land Revenue Code, 1959 (M.P.) – – S.117 – – mutation of heir's name took place – – mutation of holder of will rejected – – possession cannot be presumed in favour of holder of Will.
        Short Note
       1. This appeal is filed against – the order dated 30.1.1995 passed by the District Judge, Shivpuri, refusing to grant interim injunction to the plaintiff – appellant in the suit filed by him.
       2. The plaintiff – appellant had filed a civil suit No. 18 – A/94 for declaration and injunction. The dispute was in respect of certain survey plots situate in village Sargur, pargana Kolaras, district Shivpuri.
       3. It is admitted that these plots originally belonged one Chintulal. Chintulal had died leaving the sole surviving heir his daughter Mahila Geeta Bai, the defendant No.1. She transferred some of the plots to defendant No.2 Neelam Singh by a registered sale – deed dated 19.4.1994. The plaintiff was claiming title through a will said to have been executed by Chintulal in his favour on 14.4.89. Chintulal had died on the same date. The Will was hot registered and was prepared on a plain paper. The trial Court found that since no probate was obtained, no injunction could be granted on the basis of such a Will which is challenged by the plaintiff to have been forged and fabricated.
       4. After hearing the learned counsel for the parties, and on perusal of the papers, the first point on the claim of the plaintiff was based on the basis of the Will. The Will is not registered. It was said to have been executed by Chintulal on plain paper on the date of his death and requires proof. Unless the Will is proved on record, the plaintiff could not claim any title through this Will. Further, it has come on record that the plaintiff had tried to get his name mutated on the basis of the Will which has been rejected by the revenue Court. The plaintiff s name had not yet been mutated over the said plots. Further, some disputed plots had already been transferred by Mahila Geetabai to Neelam Singh putting in his possession. Also on the point of possession, the plaintiff claims that he was put in possession by Chintulal and continued to be so and he had prima facie case.
       5. The trial Court considered this point and found that the sole surviving heir was Mahila Geetabai who was a daughter of deceased Chintulal. She was actually in possession and had transferred some plots to Neelam Singh and even if on some part of the land the plaintiff had any possession, his case is of trespasser and no injunction could be granted in his favour.
       6. Counsel for the respondents placed reliance on the case of Dhaniram v. Ayodhya Prasad [1985 MPWN 695 and Note 552], in which it was held that prima facie the khasra entries are presumed to be correct unless proved otherwise. After the death of Chintulal, the name of Mahila Geetabai was mutated. The claim for mutation of the plaintiff was rejected by the revenue Court and as such the presumption of possession of the plaintiff could not be raised on the basis of the Will. When the Will is executed on the date of death of the executor and the sole heir is excluded, the Will is not free from suspicion. More so, it is neither registered nor executed on any stamp paper. It was so held in the case of Ram Piari v. Bhagwant [1996(2) MPWN 235, Note 141]. Reference was also made to the case of T. Venkata Narayana v. Smt. Venkata Subhamma [1996(2) MPWN 121, Note 83], in which the Supreme Court held that the right under the Will cannot be claimed in a suit for injunction unless the Will is proved before the probate Court. Learned counsel for the appellant argued that no probate was necessary for agricultural plots and the Will could be accepted as such. Even if no probate is required. the Will said to have been forged and fabricated as the Will was said to have been executed on the date of death of the executor on a plain paper.
       7. A reference was also made to the case of Hemraj v. Bal Bhadra [1994(1) MPWN 293 and Note 186] and Smt. Pushpa Bai v. Smt. Ashasingh [1993(2) MPWN 152 and Note 93]. The Apex Court in case of Shiv Kumar Chaddha v. Municipal Corporation [1993 (2) MPWN 122 and Note 73] held that for getting temporary injunction, the Court must be satisfied that the plaintiff had a strong prima facie case and balance of convenience is also in his favour.
       8. After examining the facts and circumstances of the case, the title through will claimed by the plaintiff is yet to be established in the suit. The plaintiff in such a situation could not get any injunction against the sole surviving heir of the deceased.
       9. At this stage, learned counsel for the appellant argued that Mahila Geeta Bai had transferred the disputed plots within a short period of death of her father and the claim of the plaintiff is that atleast Neelam Singh to whom the said plots were transferred be restrained from transferring the said plots further. This plea has substance. It is therefore, simply directed that defendant No.2 Neelam Singh is restrained from further transferring the property to any third person which were transferred by Mahila Geeta Bai to him.
       10. The claim for injunction against Mahila Geeta Bai is rejected. Except the modification in the order of the trial Court in respect of restraining the defendant No.2 from further transferring the property to third person as indicated above, this appeal had no force and is hereby dismissed.