IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 5^th OF JULY, 2022 WRIT PETITION No. 20142 of 2016 Between:-

BHARAT SINGH S/O LATE SHIVKARAN DHOBI, AGED ABOUT 43 YEARS, R/O VILL-SIRKAMBA TAH-RAHATGAON, DISTT. HARDA (MADHYA PRADESH)

.....PETITIONER (BY SHRI KAMAL SINGH RAJPUT, ADVOCATE)

AND

1. SMT. PUNIA (DEAD) THR. LRS BHAV SINGH S/O SHIVKARAN DHOBI , AGED ABOUT 43 YEARS, R/O VILL-SIRKAMBA TAH-RAHATGAON (MADHYA PRADESH) (DEFENDANT NO.4)

2. SUSHILA BAI D/O SHVKARAN , AGED ABOUT 55 Y E A R S , VILL. DUDHKACHHA TAH. RAHATGAON, DISTT. HARDA (MADHYA PRADESH) (DEFENDANT NO.1)

3. JAMNA PRASAD S/O SHVKARAN , AGED ABOUT

50 YEARS, VILL. SIRKAMBA TAH. RAHATGAON, DISTT. HARDA (MADHYA PRADESH)

(DEFENDANT NO.2)

4. SANTOSH S/O SHVKARAN, AGED ABOUT 41 YEARS, VILL. SIRKAMBA TAH. RAHATGAON, DISTT. HARDA (MADHYA PRADESH)

(DEFENDANT NO.5)

5. GULAB BAI D/O SHVKARAN , AGED ABOUT 40 Y E A R S , VILL. BOREKHEDA TAH. NASRULLAGANJ, DISTT. DEWAS (MADHYA PRADESH) (DEFENDANT NO.6)

6. COLLECTOR HARDA THE STATE OF MADHYA Signature Not Verified SAN PRADESH DISTT. HARDA (MADHYA PRADESH)

(DEFENDANT NO.7)

.....RESPONDENTS (BY SHRI ANIL KUMAR TIWARI, ADVOCATE FOR RESPONDENT NO.1)

(SHRI JITENDRA SHRIVASTAVA, PANEL LAWYER FOR RESPONDENT NO.6/STATE)

This petition coming on for hearing on admission. this day, the court passed the following:

ORDER

This writ petition is filed by the petitioner who is defendant before the trial Court. He is aggrieved of order dated 06/08/2016 passed by 3rd Civil Judge Class-II, Harda whereby allowing application under Order 22 Rule 3 of CPC read with Order 1 Rule 10 and Section 151 of CPC for substitution of Punia Bai with her legal heir as has been mentioned in the Will of Punia Bai to contest the suit.

2. Shri Kamal Singh Rajput, learned counsel for the petitioner submits that the Will is a doubtful document. Punia Bai herself had two sons and five daughters, therefore, leaving her property in favour of Bhav Singh is doubtful.

3. However, the fact of the matter is that on the basis of Will of Punia Bai, Bhav Singh allowed to substitute as legal heir of Punia Bai. He further submits that Bhav Singh may acquire interest in the property of Punia Bai by virtue of Will. But, as far as legal heirs are concerned, when in the Will itself it is mentioned that she has two sons and five daughters, then trial Court erred in not issuing notices to two sons and five daughters and permitting him to be substituted as legal heir.

4. The only legal issue which emerges in the case is that whether trial Court could have allowed substitution of Bhav Singh as legal heir on the basis of Will Signature Not Verified or should have permitted substitution after conducting enquiry as is SAN Digitally signed by TULSA SINGH contemplated in Order 22 Rule 5 of CPC as are mentioned in the Will.

5. Shri Anil Tiwari, learned counsel for respondent No.1, opposes prayer and submits that since there is a valid Will, therefore, no dispute can be raised.

6. Shri Jitendra Shrivastava, learned Panel Lawyer for respondent No.6/State, submits that State is is only a formal party to the controversy.

7. After hearing learned counsel for the parties and going through the record, it is evident that in the Will itself, which is part of the record, allegedly executed by Punia Bai, D/o Shivkaran, W/o Kunjilal, it is mentioned that she has two sons and five daughters. It has also come on record that present petitioner had raised an objection in regard to substitution of respondent No.1-Bhav Singh as legal heir. Thus, when twin facts namely Will itself makes a mention about two sons and five daughters of Punia Bai and objection was taken by present petitioner, then a question had arisen as to whether Bhav Singh is a legal representative of deceased plaintiff or not. Since this question had arisen, therefore, it was incumbent upon the trial Judge who has decided it, first by conducting an enquiry. It is held by Supreme Court in Nawal Kishore Patel Vs. Indrapati