IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA

th

ON THE 14 OF JANUARY, 2026 SECOND APPEAL No. 635 of 2021 SMT LATA MODI AND OTHERS Versus HARIKISHAN MODI AND OTHERS Appearance:

Shri Upendra Yadav - Advocate for the appellants.

Shri C.P. Singh - Government Advocate for the State. Shri Somnath Seth- Advocate for the respondent No.2.

ORDER This second appeal under Section 100 CPC has been filed against judgment and decree dated 14/01/2021 passed by First Additional District Judge Dabra, District Gwalior in Regular Civil Appeal No. 35/2018 as well as judgment and decree dated 31/08/2018 passed by First Civil Judge, Class-

I, Dabra, District Gwalior in RCS No.3-A/2016 B.

2. Appellants are the plaintiffs who have lost their case from both the Courts below. In order to understand the real controversy involved in the present case, it would be appropriate to refer to pedigree:-

Kalla -------------------------------------------------------------------------- | | | | | |

Ramnath Kailash Harikishan Balvendra Rameshwar Anita |

---------------------------------------------------------- | | | | |

Smt. Lata Neelam Gaurav Ranjana Ganesh

3. Thus, it is clear that plaintiffs are the children of Harikishan. It is their case that the property originally belonged to Kalla and after his death, it was partitioned amongst his legal representatives, namely Rajeshwari, Anita, Kailash, Harikishan, Balbindar. Harikishan was not keeping well, and he was in need of money for his treatment, therefore, he prayed for some money from the respondents. It was replied by respondents that unless and until Harikishan alienates his property, they would not give money. However, Harikishan was not ready to alienate the property because otherwise he would not be able to financially support his children. Since respondents gave an amount of Rs.1,000/-, therefore, they took Harikishan to office of Sub- Registrar to execute a document by way of security of loan, but by playing fraud on him, got a sale-deed executed, and accordingly, a suit was filed by plaintiffs claiming that defendant No.1 has 1/6th share in the property whereas plaintiffs have 5/6th share in the property and the sale-deed dated 31/12/2013, executed by defendant No.1, is null and void to the extent of 5/6th share of plaintiffs and a permanent injunction was also sought against defendant No.2 to the effect that he should not interfere with peaceful possession of plaintiffs.

4. Defendant No.1 filed his written statement and admitted the plaint averments.

5. Defendant No.2 filed a separate written statement and claimed that plaintiffs had no locus standi to file the suit during the lifetime of defendant No.1. It was further pleaded that plaintiffs have not produced any document to show that the disputed property, i.e. survey Nos.11, 80, 139 Min, 352/1 and 352/3, total area 3.408 hectares, was of Kalla, and after his death, any partition had taken place. It was claimed that the contention of plaintiffs that after the death of his wife, defendant No.1 had went in depression and became mentally ill is false. In fact, defendant No.1 has executed a sale-deed in favour of defendant No.2.

6. The Trial Court, after framing issues and recorded evidence, dismissed the suit filed by plaintiffs by holding that plaintiffs have failed to prove that they have a right in the property in dispute from their birth, or they have 5/6th share in the property and also dismissed the suit on other issues. It was also held that plaintiffs have failed to prove that any partition have taken place amongst the legal representatives of Kalla. It was also held that none of the plaintiffs was born on the date of death of Kalla.

7. Being aggrieved by judgment and decree passed by the Trial Court, appellants preferred an appeal, which too has been dismissed by the lower Appellate Court.

8. This appeal was admitted on the following substantial question of law:-

"(i) Whether, appellants/plaintiffs are the Coparceners