Madhulata wife of Shri Nandkishore Mittal, Resident of Plot v. Jhutha son of Nenu, Resident of Gram Jaisinghpura, Tehsil

plaintiff (for short ‘the plaintiff’) against the judgment and decree dated 13.05.2011 passed by the Additional District Judge No.2, Jaipur District, Jaipur (for short 'the first appellate Court') in civil regular appeal No. 7/2011 whereby the first appellate Court while allowing the appeal filed by the respondent-defendant (for short ‘the defendant’), set aside the judgment and decree dated

24.12.2010 passed by the Civil Judge (J.D.) 1st Class No.1, Jaipur District, Jaipur whereby the trial court while decreeing the suit filed by the plaintiff, declared the will dated 03.02.1994 as null and void and restrained the defendant from transferring, selling and/or alienating the disputed land on the basis of entries made in the revenue record due to purported will. Brief facts of the case are that the plaintiff filed a civil suit for declaration, cancellation of the Will dated 03.02.1994 and [2025:RJ-JP:20728] (2 of 7) [CSA-510/2011] permanent injunction against the defendant mentioning therein that disputed land bearing khasra No. 23 rakba 16 bigah was in the ownership and possession of the deceased Ram Gopal son of Bhinwa resident of Village-Jaisinghpura. It was also mentioned that plaintiff purchased the said land by way of an agreement to sell dated 26.02.1997 and since then she was having continuous possession thereof. The agreement to sell was got prepared on the basis of jamabandi from samvat 2008 to 2041 wherein the name of Ram Gopal was entered as a khatedar tenant. Deceased-Ram Gopal was issueless. So, deceased-Ram Gopal had received the sale consideration and executed the agreement to sell in favour of the plaintiff and also executed a Will dated 25.04.1997 in favour of the plaintiff, so that no one could dispossess her from the disputed land. After the death of Ram Gopal, the plaintiff could not get her name entered in the revenue records but when respondent tried to sell the land in question and to dispossess the plaintiff, the plaintiff got published a general notice in the daily newspaper on

19.07.2000 that she had purchased the disputed land and the deceased Ramgopal and defendant had knowledge with regard to the same. Since the information of death of Ramgopal could not be gathered by the plaintiff, she could not get enter her name in the revenue records on the basis of will and agreement to sell. Defendant with malafide intention, created forged Will and got entered his name in the revenue records, although, possession got remained with the plaintiff. The plaintiff came to know about the Will on 09.03.2005 when defendant tried to sell the disputed land to other persons. Then, she got the revenue records and certified copy of the Will and filed the present suit. [2025:RJ-JP:20728] (3 of 7) [CSA-510/2011] Despite giving ample opportunities to the defendant, defendant had not filed the written statement and his opportunity to file written statement was closed on 11.11.2005. To prove her case, plaintiff got examined herself as PW-1- Madhulata and got examined PW-2- Nandkishore and got exhibited certain documents. After hearing the parties, the trial Court vide its judgment and decree dated 24.12.2010 decreed the plaintiff's suit in her favour and declared the will dated 03.02.1994 as null and void and restrained the defendant from transferring, selling and/or alienating the disputed land on the basis of entries made in the revenue record due to purported will. Defendant challenged the said judgment and decree dated

24.12.2010 passed by the trial Court by way of an appeal and the first appellate Court vide judgment and decree dated 13.05.2011 allowed the appeal filed by the defendant and set aside the judgment and decree dated 24.12.2010. This court vide order dated 20.07.2011 admitted the present appeal on the following substantial question of law:- "Whether the Will executed in favour of the plaintiff by deceased-Ram Gopal would be taken as validly proved only on the proof of execution of agreement to sell or whether such Will could be proved independent of execution of agreement to sell?" Learned counsel for the plaintiff submits that deceased Ram Gopal had sold the disputed land to plaintiff on 26.02.1997 and executed an agreement to sell which is exhibited as Ex-1. That was proved by the plaintiff-Madhulata and her witness Nandkishore. Deceased-Ram Gopal also executed a Will which is [2025:RJ-JP:20728] (4 of 7) [CSA-510/2011] exhibited as Ex-2 on the same day that was proved by the plaintiff. Plaintiff had also exhibited the bank statement by which the payment was made to the deceased-Ram Gopal. Learned counsel for the plaintiff also submits that defendant had not filed the written statement, so, evidence of the plaintiff as well as her witness-Nandkishore was not controverted by the defendant but the first appellate Court had committed an error in setting aside the judgment and decree dated 24.12.2010 passed by the trial court. Learned counsel for the plaintiff also submits that when deceased Ram Gopal had received the whole amount, he had no right to execute the second Will in favour of defendant. He also submits that the first appellate Court had committed an error in giving finding that the plaintiff failed to prove the agreement to sell as well as Will executed in favour of her. Learned counsel for the plaintiff further submits that it was the duty of the defendant to prove that agreement to sell and so- called Will that was executed in favour of the plaintiff was forged one. Defendant had not filed his written statement and had not adduced any evidence to rebut the case of the plaintiff. Learned counsel for the plaintiff also submits that plaintiff proved the agreement to sell (Ex-1) and Will (Ex-2) and bank statement (Ex-8) by which the sale consideration was paid to the deceased Ram Gopal for disputed land. Defendant had to prove Will the Ex.7 that was executed in favour of him but defendant had not adduced any evidence to prove the same. So, the Will dated 03.02.1994 executed in favour of defendant was not proved. [2025:RJ-JP:20728] (5 of 7) [CSA-510/2011] Learned counsel for the plaintiff also submits that Will executed in favour of plaintiff was executed after the Will executed in favour of defendant. So, Will executed in favour of plaintiff would prevail over the Will executed in favour of defendant. It is settled proposition of law that by way of subsequent Will Ram Gopal had cancelled the previous Will executed in favour of defendant. So, plaintiff had proved the agreement to sell as well as Will executed in favour of him. So, the judgment and decree dated 13.05.2011 passed by the first appellate Court be set aside and the judgment and decree dated 24.12.2010 passed by the trial Court be restored. Learned counsel for the plaintiff has placed reliance upon the following judgments:-

1. Kamala Menon Cochran Vs. K P Ramachandra Menon & Ors. in original side appeal No. 185/2011 decided on 18.08.2009.

2. Lata Swaran Vs. Dhani Ram in regular side appeal No. 384/1994 decided on 23.08.2001.

3. Ramesh Chand Ardawatiya Vs. Anil Panjwani in civil appeal No. 7919/2001 decided on 05.05.2003.

4. Bishnupriya Mohapatra Vs. Bata Krushna Mohapatra in M.A. No. 341/1991 decided on 03.12.1993.

5. S. Kaliyammal and Ors. Vs. K. Palaniammal and Ors. in second appeal No. 1128/1984 decided on 03.04.1998.

6. Ram Lal Vs. Harikishan in second appeal No. 372/1985 decided on 08.18.1986.

7. Manorama Srivastava Vs. Saroj Srivastava in testamentary suit No. 5/1987 decided on 21.09.1988. [2025:RJ-JP:20728] (6 of 7) [CSA-510/2011]

8. Daulat Ram and Ors. Vs. Sodha and ors. in appeal (civil) No. 5032/2002 decided on 16.11.2004.

9. Beni Chand (Since Dead) now by Lrs Vs. Smt. Kamla Kunwar and Ors. in civil appeal No. 2269/1972 decided on

14.09.1976.

10. Pradip Kumar Bhowmick Vs. Basanti Dutta in suit No. 6/2001 decided on 14.08.2003.

11. Khachar Rana Laxman Vs. Dhadhal Hathiyabhai Mulubhai in AFOD No. 146/1961 decided on 28.04.1969. Learned counsel for the defendant opposed the arguments advanced by learned counsel for the plaintiff and submitted that the first appellate Court rightly came to the conclusion that plaintiff failed to prove so-called agreement (Ex-1) and Will (Ex-2) executed in her favour because so-called agreement did not bear the signature of the plaintiff. Plaintiff failed to prove these documents. Although, opportunity to file written statement by the defendant was closed but plaintiff had to prove its case. Learned trial Court wrongly decreed the suit on the weakness of the defendant. On account of registered Will, mutation was entered in the name of the defendant. Defendant had possession over the dispute land. So, the first appellate Court rightly set aside the judgment and decree dated 24.12.2010 passed by the trial Court. Therefore, the present appeal filed by the plaintiff being devoid of merit, is liable to be dismissed. I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendant. [2025:RJ-JP:20728] (7 of 7) [CSA-510/2011] It is an admitted position that deceased-Ram Gopal had executed agreement to sell of the disputed land in favour of the plaintiff and also executed a Will in favour of the plaintiff on

25.04.1997 and also gave possession of the disputed land to her. Plaintiff and her witness-Nandkishore proved the so-called agreement to sell and bank statement by which sale consideration was paid to the deceased-Ramgopal. Defendant failed to file the written statement and his opportunity of filing the written statement was closed and he had not adduced any evidence to rebut the case of the plaintiff. Will executed in favour of plaintiff was after the will executed in favour of defendant. So, it is settled proposition of the law that deceased-Ram Gopal had cancelled the previous Will executed in favour of defendant. Defendant also failed to prove will dated 03.02.1994 executed in favour of him. So-called agreement to sell and bank statement exhibited by the plaintiff were never controverted by the defendant. So, in my considered opinion, the first appellate Court had committed an error in setting aside the judgment and decree dated 24.12.2010. Plaintiff also proved the substantial question of law. So, appeal filed by the plaintiff deserves to be allowed. Accordingly, the appeal filed by the plaintiff is allowed and the judgment and decree dated 13.05.2011 passed by the first appellate Court is set aside and the judgment and decree dated

24.12.2010 passed by the trial Court is restored. Pending application(s), if any, stand(s) disposed of. Tahir/74 (NARENDRA SINGH DHADDHA),J