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SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
Badrilal - Appellant
Versus
Suresh & Ors. - Respondents
Civil Appeal No. 6524 of 2021 (Arising out of SLP (Civil) No.24886 of 2019)
Decided On : 28-10-2021
(A) Indian Succession Act, 1925 – Section 70 – Revocation of Will – Revocation can be made only by execution of another Will or Codicil; A writing executed by testator declaring intention to revoke the Will and executed in the manner in which an unprivileged Will is required to be executed ; By burning, tearing or otherwise destroying the same by testator or by some person in his presence and by his direction with intention of revoking the same. (Para 10)
(B) Agreement to Sell – Suit for Perpetual Injunction as well as invalidation of sale-deed – Suit decreed by Courts below in favour of respondent-plaintiff on the basis of Will – It is not the case of appellant that Will was revoked by Testator by executing a new Will or a Codicil – It is not his case that Will was either destroyed or burnt by Testator or by someone else as per his express instructions – Will was not revoked during lifetime of Testator – Sale deed was executed after death of Testator – Therefore, sale deed executed by original first defendant on Will be valid only to the extent of area which she acquired under Will of Testator – As the land held by Testator was not partitioned, either appellant or first respondent will have to file a suit for partition – Decree passed by District Court needs modification to that extent. (Paras 11 and 14)
Facts of the case:
Appellant Badrilal who is the third defendant has taken an exception to the Judgment and Order dated 3rd May 2019 passed by Single Judge in Second Appeal preferred by him. The first respondent Suresh is the original plaintiff, the second respondent Ramkanya is the original first defendant and the third respondent State of Madhya Pradesh is the original second defendant.
Findings of Court:
Sale deed executed by Ramkanya on 21st February 2011 will be valid only to the extent of the area which she acquired under the Will of Mangilal. As the land held by Mangilal was not partitioned, either the appellant Badrilal or first respondent Suresh will have to file a suit for partition. Therefore, the decree passed by District Court needs modification to that extent.
Result : Appeal disposed of.
JUDGMENT :
ABHAY S. OKA, J.
Leave granted.
1. The appellant Badrilal who is the third defendant has taken an exception to the Judgment and Order dated 3rd May 2019 passed by the learned Single Judge in Second Appeal preferred by him. The first respondent Suresh is the original plaintiff, the second respondent Ramkanya is the original first defendant and the third respondent State of Madhya Pradesh is the original second defendant.
2. Mangilal and Bhuwan Ji were real brothers. Ramkanyabai is the daughter of Mangilal. The first respondent Suresh along with Prakash and Dilip are the sons of Bhuwan Ji. Mangilal was the owner of the lands bearing Survey Nos. 37/03 and 109/01 admeasuring 1.30 Hectare and 0.130 Hectare respectively at village Jalod, Ratlam, Madhya Pradesh. The total area of the lands held by Mangilal was 1.430 Hectare i.e. 6 Bigha and 10 Biswa. According to the case of first respondent Suresh, Mangilal executed Will dated 6th May 2009. Mangilal died on 26th June 2009. Under the said Will, a bequest was made by the said Mangilal of an area of 3 Bigha and 10 Biswa to Ramkanya. The first defendant Suresh and his two brothers Dilip and Prakash were granted lands admeasuring 1 Bigha each under the said Will. Suresh and Ramkanya entered into a compromise deed/ agreement which recorded that Ramkanya will be entitled to 5 Bigha of land held by Mangilal and Suresh will be entitled 2 Bigha and 3 Biswa of land held by Mangilal. The said agreement was entered into on 12th May 2009. On 22nd February 2011, Ramkanya executed a sale deed by which she sold a land measuring 5 Bigha to appellant Badrilal.
3. Suresh filed a suit claiming that he was in possession of land admeasuring 2 Bigha and 3 Biswa out of land bearing Survey No. 37/03. Therefore, Suresh claimed perpetual injunction restraining the appellant -third defendant from interfering with his possession. A sale deed was executed by Ramkanya by which she sold land admeasuring 1.30 Hectare bearing Survey No.37/03 to the appellant Badrilal. Apart from claiming perpetual injunction, Suresh also prayed for a declaration that the sale deed dated 21st February 2011 is null and void as against him. The prayer regarding declaration in respect of the sale deed was added during the pendency of the suit as the sale deed dated 21st February 2011 was executed 7 days after the institution of the suit.
4. After a contest, the suit was decreed by the learned Trial Judge. He held that the Will dated 6th May 2009 executed by Mangilal was duly proved and was enforceable. The learned Trial Judge held that the agreement dated 12th May 2009 was illegal. He held that Ramkanyabai had no authority to sell the land admeasuring 2 Bigha and 3 Biswa out of the land bearing Survey No.37/03.
5. The learned Trial Judge declared Suresh as the owner of the land measuring 1 Bigha pursuant to the Will dated 6th May 2009. He held that the sale deed dated 21st February 2011 is void and not binding on Suresh. An appeal preferred by petitioner to the District Court against the said decree was dismissed. However, while dismissing the appeal, the District Court modified the decree by holding that as the Will dated 6th May 2009 was binding, Ramkanya was not entitled to sell her share to appellant Badrilal without getting her share separated by effecting a partition. The District Court held that the sale deed dated 21st February 2011 was void in respect of the right and title of Suresh. The District Court restrained the appellant Badrilal from interfering with the use and possession of Suresh over the part of land bearing Survey No. 37/03 possessed by him.
6. Second Appeal preferred by the appellant has been dismissed by the impugned Judgment and Order of the learned Single Judge of Madhya Pradesh High Court.
7. The learned Senior Counsel Shri N.K. Mody appearing for the appellant submitted that the Trial Court granted relief to Suresh which was not claimed by him. He submitted that the District Court after dismissing the appeal
Will can be revoked only by execution of another Will or Codicil.
The burden of proof lies on the party alleging ancestral or joint property, and without evidence to support the claim, the Courts may reject the suit.
Admissibility of documents as evidence and burden of proof in partition cases.
The court reaffirmed that a sale deed executed for family and legal necessity by a joint family member is binding, barring challenge by family members after significant delay without sufficient cause....
The principle of feeding the grant by estoppel allows a subsequent acquisition of title to validate an earlier transfer made by a person who lacked title at the time of the transfer, thereby protecti....
The burden of proof of due execution rests with those who found upon the deed as its beneficiary, and the proof must affirmatively and conclusively show that the deed was executed by a free agent who....
Registered wills are presumed valid unless substantial evidence proves otherwise; the burden lies on contesting parties to show defects in execution or suspicious circumstances.
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