1. Suit for declaration of will as void, partition of ancestral land, permanent injunction — concurrent decrees challenged. (Para 2 , 3 )
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2025 Supreme(Online)(MP) 9912
HIGH COURT OF MADHYA PRADESH
Govind through LR – Appellant
Versus
Sayarbai – Respondent
S.A. No.2217/2025
Advocates:
For the Appellants/Petitioners: Sulabh Samaiya
For the Appellants/Petitioners: Sulabh Samaiya
A Will must be proved in accordance with Section 68 of the Indian Evidence Act, 1872, including production of an attesting witness; a compromise under Order XXIII Rule 3 CPC must be signed by all affected parties to be valid; interference with concurrent findings of fact is limited to cases of perversity.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68 - Second Appeal - Substantial question of law - Interference with concurrent findings of fact - High Court's jurisdiction under Section 100 CPC is limited to cases involving a substantial question of law; such a question must be one not previously settled or material to the decision. (Para 11)
(B) Will - Proof of - Execution - Attesting witness - Burden of proof - For a Will to be validly proved, the mandatory requirements under Section 68 of the Indian Evidence Act must be fulfilled, including production of an attesting witness to testify that the testator executed the Will in sound state of mind, voluntarily and with knowledge of its contents; the beneficiary bears the heavy burden of proof. (Paras 14, 17)
(C) Compromise - Requirement under Order XXIII Rule 3 CPC - A compromise must be in writing, signed by all parties whose rights are affected, and reflect voluntary and informed consent; a compromise lacking the participation and signature of any necessary party is incomplete and legally unenforceable. (Paras 15, 16)
Facts of the case:
The respondents/plaintiffs filed a suit for declaration of title, partition, permanent injunction, and declaration that a Will dated 07/06/2018 executed by Ambaram in favour of defendant No.1 (Govind) was void. The plaintiffs claimed the land was ancestral, Ambaram had no authority to bequeath it unilaterally, and the Will was obtained fraudulently during Ambaram's illness. The Trial Court decreed the suit, declaring the Will void and awarding each plaintiff a 1/5 share. The First Appellate Court affirmed the decree. The appellants/defendants filed a second appeal, raising substantial questions of law regarding proof of the Will, the effect of an alleged compromise, and evidentiary issues.
Findings of Court:
The High Court held that the Will (Exhibit P-12) was not legally proved as no attesting witness was produced, the original Will was not produced, and defendant No.1 failed to discharge the burden of proof. The alleged compromise was incomplete as one co-defendant (Mangilal) was not a party and did not sign it, thus lacking legal sanctity. The concurrent findings of fact by the courts below were based on proper appreciation of evidence and were not perverse.
Issues: Whether the Will was validly proved in accordance with law; whether the alleged compromise was legally binding; and whether the second appeal involved a substantial question of law.
Ratio Decidendi: The court ruled that the Will was not proved as per the mandatory requirements of Section 68 of the Indian Evidence Act; the compromise was incomplete and unenforceable because a necessary party was excluded; and in the absence of any perversity or illegality, the concurrent findings of fact cannot be interfered with under Section 100 CPC. Result : Second Appeal dismissed.
Legal Category Hierarchy
- practice and procedure
- property law
- succession
- evidence
Table of Contents
2. Appellants challenged concurrent findings on will validity, claiming compromise and acceptance of will by parties. (Para 4 , 7 , 8 , 9 )
3. Second Appeal dismissed — no substantial question of law — concurrent findings of fact affirmed. (Para 19 , 20 , 21 )
4. What constitutes a substantial question of law under Section 100 CPC?
A substantial question of law is sine qua non for second appeal jurisdiction; it must be not previously settled and material to the decision. (Para 11 )
5. What are the requirements for proving a will under Section 68 of the Indian Evidence Act?
At least one attesting witness must be produced; the beneficiary must prove voluntary execution with sound mind; burden of proof is on the propounder. (Para 12 , 13 , 14 , 17 )
6. What is required for a valid compromise under Order 23 Rule 3 CPC?
Compromise must be in writing, signed by all parties whose rights are affected; partial compromise without all consenting parties is not enforceable. (Para 15 , 16 )
7. When can a High Court interfere with concurrent findings of fact in second appeal?
Only if findings are perverse or manifestly contrary to evidence; mere disagreement or different view is insufficient to justify interference. (Para 18 )
J U D G M E N T
Heard on the question of admission.
This Second Appeal under Section 100 of CPC has been filed by the appellants/defendants being aggrieved by the judgment and decree dated 12/08/2025 passed by Principal District Judge, Dhar, District-Dhar (M.P.) in RCA No.70/2023, whereby the judgment and decree dated
30/10/2023 passed by IInd Additional Civil Judge, Senior Division, Dhar, District-Dhar (M.P.) in RCS-A No.54/2020, was affirmed.
Facts of the case, in short are as under :-
2. The respondents/plaintiffs have presented this suit regarding declaration of title, partition, permanent injunction and declaration of will No. MP119002018A3396478 dated 07/06/2018 regarding the land survey Nos.37/1/1, 37/2/3, 38/2, 38/3, area 1.077, 1.517, 0.778, 1.025, total plot 04, total area 4.397 hectare (hereinafter referred as the disputed land) situated in Village-Nipawali, Tehsil-Dhar, declaring void/ineffective in respect of the respondents/plaintiffs.
3. Respondents/plaintiffs case before the Trial Court was that Defendant No.1 - Govind, fraudulently obtained a bogus Will for the disputed ancestral land (Survey No.37/1/1, measuring 1.077 hectares) by taking advantage of Ambaram’s poor health and diminished capacity and had it registered without Ambaram’s or the plaintiffs’ knowledge on 07/06/2018. Relying on this Will, mutation proceedings were initiated after Ambaram’s death without notice to the plaintiffs, who only became aware of the Will during Tehsildar proceedings on 04/06/2019. Despite their objections, the mutation was approved without a proper hearing. The plaintiffs contended that the land was ancestral and Ambaram had no
legal authority to bequeath it unilaterally in the presence of his wife and other heirs. They further claimed that Ambaram had already partitioned the property among all heirs during his lifetime and each party had been in separate possession of their share. Following threats by the defendants to dispossess them in June 2020, the plaintiffs sought a declaration that the will was void, recognition of their 1/5 share each, partition by metes and bounds, and a permanent injunction restraining interference. No relief was sought against Defendant No.4, the State of Madhya Pradesh, which remained a formal party without filing a reply or written statement.
4. The appellants/defendants submitted that Defendant No.4, the State of Madhya Pradesh, was made a formal party against whom no relief was sought. Defendant Nos.2 and 3, represented by Advocate Mr. Ashok Chauhan had attempted to file a written statement however, it was not properly signed or verified in compliance with Order 6, Rule 14 and rule 15 of the Civil Procedure Code (CPC). The written statement lacked the signatures of the defendants and was not supported by an affidavit, as required. Consequently, the Court held that the submission could not be treated as a valid reply, effectively considering that no reply had been filed by these defendants. Furthermore, they had failed to cross-examine the plaintiffs nor present their own evidence, resulting in ex parte proceedings being initiated against them from 14/06/2023. Defendant No.1 - Govind, in his written statement, had denied the plaintiffs’
allegations and claimed that their father, Ambaram, had executed a valid will in his favor in the presence of witnesses, including the plaintiffs. He contended that Ambaram had already distributed shares among all legal heirs during his lifetime and, in appreciation of Govind’s service, had granted him the remaining land, which he possessed and cultivated as owner. Govind maintained that he had not interfered with the plaintiffs’ enjoyment of their respective portions and argued that they were not entitled to claim a 1/5 share each or seek further partition. He therefore requested that the plaintiffs' claim to be dismissed.
5. The learned Trial Court after considering the material placed on record and evaluating the evidence of both parties allowed the suit filed by the
