Back
2024 Supreme(Online)(MP) 20235
HIGH COURT OF MADHYA PRADESH
JUSTICE AVANINDRA KUMAR SINGH
Naresh – Appellant
Versus
Smt. Sapna – Respondent
SA 2575/2018
Ashish Shroti,
The High Court's power to interfere with concurrent findings of fact under Section 100 of the Code of Civil Procedure is limited, and such findings can only be interfered with if they are perverse or based on no evidence.
Headnote:
Civil Procedure - Code of Civil Procedure - Sections 100, 96 - Summary
Fact of the Case:
The case involves a dispute over a property that was allegedly willed by the plaintiff's deceased brother to the plaintiff. The plaintiff filed a suit for declaration of title and permanent injunction over the suit property. The trial court and the first appellate court dismissed the plaintiff's suit and appeal, respectively. The plaintiff has now filed a second appeal challenging the lower courts' decisions.
Finding of the Court:
The High Court found that there is no substantial question of law in the second appeal. The Will relied upon by the plaintiff is highly suspicious as it is an unregistered document and the signature of the deceased is not proved. Further, the conduct of the deceased in giving all his retiral benefits to his wife, the defendant, contradicts the plaintiff's claim of bad relations between the deceased and his wife. The concurrent findings of fact by the lower courts are based on a proper appreciation of the evidence on record and cannot be said to be perverse or based on no evidence.
Issues: Whether the Will relied upon by the plaintiff is valid and genuine, and whether the lower courts' findings on the facts of the case are perverse or based on no evidence.
Ratio Decidendi: The High Court held that the Will is highly suspicious and the plaintiff has failed to remove the thorns/suspicions surrounding the Will. The concurrent findings of fact by the lower courts are based on a proper appreciation of the evidence and cannot be interfered with under Section 100 of the Code of Civil Procedure.
Final Decision: The second appeal is dismissed at the admission stage itself.
ORDER
This Second Appeal has been filed by the appellant being aggrieved by the judgment dated 26.9.2018 passed by the first Appellate Court, i.e. Additional District Judge, Harda in RCA No.53/2017 (Naresh Vs. Sapna and others), whereby the judgment and decree dated 26.9.2018 of appeal court learned First Appellate Court has dismissed the appeal of the plaintiff and has affirmed the judgment of the learned Trial Court, i.e. Additional Civil Judge, Class-I, Harda in Civil Suit No. 41-A/13, vide judgment and decree dated 29.04.2017 for declaration of title and permanent injunction regarding suit property situated in village Kolwa, Tahsil Handiya, district Harda. Khasra No. 80/4, Khasra No. 36 areas 4.22 acres, Khasra No. 80/1 area 1 acre.
2. In very brief the case of the plaintiff before the Trial Court was that originally the suit property situated in village Kolwa, Tahsil Handiya, district Harda belongs to one Kishan Parashar (grand father) and the suit property is ancestral property. It is submitted by the plaintiff that his deceased brother Satish Parashar had willed the immovable property to him as he was not happy with his wife - Sapna and children Swati, Smariti, who were parties in the suit.
The other defendant was his brother- Sharad and sister Manju.
3. The case of the plaintiff was based on an unregistered Will on a plain paper.
4 . The trial court dismissed the suit as well as first Appellate Court dismissed the appeal, on which this Second Appeal has been filed on the ground that Will was valid and a genuine document but unnecessarily disbelieved by both the courts. Will was executed made because brother of the plaintiff did not have good relations with his wife- defendant no.1, who was living separately. Evidence of both the parties have not been properly evaluated. It is submitted that calling of scriber of the Will not was required and one attesting witness was examined and, therefore, prayer is made to admit this second appeal for final hearing.
5. This Court has perused the record of both the courts below as well pleadings, evidence on which judgement was passed. In the considered view of this court there is no substantial question of law on which this Second Appeal of the appellant - plaintiff can be admitted. The Will Ex. P-3 is highly suspicious in the sense that it is not a registered document. It is a plain piece of paper. Infact on perusal of the evidence, it is not proved that signature of late Satish Kumar Parashar are on the Will. One of the witness, Rajesh Patel has allegedly signed the Will but below his signature, there is a date, which has been corrected by overwriting and there are no initial of correction therefore, date of signature is doubtful. Therefore, in the facts and circumstances of the case, if the Trial Court has held that the scriber of the Will should have been called, then it cannot be held to be wrong. Law on the point of the Will is that a Will which gives right to other party excluding right of natural heir, which in this case would be wife and children, then the Will has to be taken as full of thorns and the person who relies on Will and seeking to get benefit from will, then he has to remove all thorns/suspicion in the will.
6. It is further seen that the deceased was a Government Servant and all his retiral Government service benefit have been given to his wife. If theory of his bad relation is accepted, then there was no reason as to why the self earned property, i.e. salary and other money in lieu of service during lifetime of deceased was given to his wife. The deceased was always free change the nomination which he did not do. On this aspect, the plaintiff- Naresh in Para -17 in cross-examination in court stated that regarding retiral/pension benefits as under :-
- ÞLor% dgk fd eSa vkifRr yxkus okyk Fkk ysfdu liuk us eq>ls ;kpuk dh fd eq>s vkSj esjs cPpksa ds ikyu ds fy;s isa'ku eq>s fey tk;s rks eSaus vkifRr ugha yxkbZ vkSj tks nLr
