Gordhan v. Jamna Bai & Ors., whereby the court below dismissed the application filed by the

Judgment

1. Gordhan S/o Kesri Lal Khateek, R/o Gothra Tehsil Hindoli Dist. Bundi (Raj) ...Respondent/Applicant

2. Jamna Bai D/o Chittar Lal W/o Ramdev Khateek, R/o Indra Colony, Nainwa Road, Bundi

3. Kamla Devi D/o Chittar Lal W/o Moti Lal Khateek, R/o Khyawda Tehsil And District Bundi

4. Mor Bai D/o Chittar Lal W/o Moti Lal Khateek, R/o Kagdi Devra Khateeko Ki Gali, Bundi

5. Manbhar Bai D/o Chittar Lal W/o Durga Lal Khateek, R/o Bapu Colony Kunhadi, Kota

6. Chota Bai D/o Chittar Lal W/o Nemi Chand Khateek, R/o Khyawda Tehsil And District Bundi

7. Bank Of Baroda, Branch Gothra Through Branch Manager Tehsil Hindoli

8. All The General Public ….Respondents/ non-applicants For Appellant(s)

: Mr. Deepak Pareek For Respondent(s) : None present HON'BLE MR. JUSTICE GANESH RAM MEENA 29/07/2025 Judgment

1. In the instant misc. appeal filed by the appellant/ non-applicant No.6 (for short ‘the appellant’) under section 384 of the Indian Succession Act, 1925 (for short ‘the Act of [2025:RJ-JP:28803] (2 of 8) [CMA-1353/2019] 1925’) challenge has been made to the order dated

31.01.2019 passed by the Court of learned District Judge, Bundi (for short ‘the court below’) in Civil Misc. (Succession) Application No. 03/2013, Gordhan v. Jamna Bai & Ors., whereby the court below dismissed the application filed by the appellant under section 372 of the Act of 1925 and allowed the application separately filed by the respondent/ applicant- Gordhan (for short ‘the respondent No.1-Gordhan’) for the aforesaid provision and issued the succession certificate in his favour.

2. The facts emerge from the pleadings are that the respondent No.1 and the present appellant filed separate applications under section 372 of the Act of 1925 for granting succession certificate with regard to getting the amount of Rs.50,313/- along-with due payable interest which is of the deceased Chhitar Lal, lying in Saving Bank Account No. 16190100002530 of the Bank of Baroda, Branch Gothada, Tehsil Hindauli, District Bundi.

3. Since both the applications filed by the present appellant and the respondent No.1 relate to same estate of deceased Chhitar Lal Khatik, hence, vide order dated

23.07.2013 same were consolidated and have been decided by this impugned order.

4. After issuing notices on the applications, the respondent Nos. 2 to 6 filed written statement of denial to [2025:RJ-JP:28803] (3 of 8) [CMA-1353/2019] the application filed by respondent No.1-Gordhan and submitted that during the course of unwell of deceased Chhitar Lal, if silently any document has been executed by the respondent No.1- Gordhan then same is forged and fabricated. It has also been stated in the reply that during the service tenure of Chhitar Lal, the present appellant looked after him.

5. On the basis of pleadings of both the parties, the court below framed three issues, which are as under:- “1- vk;k izkFkhZ xksj/ku e`rd Jh Nhrj yky dh olh;r ds vk/kkj ij mldk mRrjkf/kdkjh gksus dh gSfl;r ls cSad vkWQ cM+kSnk] “kk[kk xksBM+k rglhy fg.Mksyh ds [kkrk la[;k 16190100002530 esa tek 50]313@& :i;ks dh izkfIr dk vf/kdkjh gS \ 2- vk;k vizkFkhZ dze la[;k&6 y{eh e`rd Jh Nhrj yky dh lcls NksVh iq=h gksdj mlus gh Nhrj yky dh lsok lqJq’kk dh gSA ogh e`rd dh oS/k mRrjkf/kdkjh gksus ds vk/kkj ij tek “kqnk jkf”k izkIr djus dh vf/kdkjh gS \ 3- vuqrks’k \“ The respondent No.1 in support of his case

6. examined himself as AW1, Shivraj as AW2, Mashuk as AW3 and Prabhu Lal as AW4. The appellant examined herself as NAW1, Morbai as NAW2 and Durgalal as NAW3. Both the parties also placed reliance upon documentary evidence.

7. The court below vide impugned order allowed the application filed by the respondent No.1-Gordhan and directed to issue succession certificate in his favour and [2025:RJ-JP:28803] (4 of 8) [CMA-1353/2019] dismissed the application filed by the present appellant. Hence, the present civil misc. appeal.

8. Mr. Deepak Pareek, counsel for the appellant/ non- applicant No.6 submits that the impugned order is contrary to law and the facts on record. The court below failed to consider that the appellant is the daughter of the deceased Chittar Lal and all the properties either movable or immovable vest in her after death of Chittar Lal and respondent No. 1 had no right over the properties left by the deceased Chittar Lal and therefore no right can devolve upon the respondent No. 1. The court below was unnecessarily swayed by the alleged will which too is not proved and therefore the impugned order granting succession certificate in favor of respondent no. 1 deserves to be quashed and set aside to meet the ends of justice. Counsel also submits that the court below failed to consider that the appellant is class I heir of the deceased Chittar Lal and she is entitled for the amount in respect of which the succession certificate was sought by the appellant. The respondent no. 1 is not the class I heir as per the Hindu Succession Act and therefore the learned court below ought to have rejected the application of respondent no. 1. Counsel also submits that learned court below failed to consider the provisions of Hindu Succession Act particularly section 8 of the Act which clearly mandates that [2025:RJ-JP:28803] (5 of 8) [CMA-1353/2019] the property of a Hindu dying intestate shall devolve firstly upon the class I heirs and if there is no class I heir then upon the class II heir. He also submits that the court below passed the impugned order in a cursory manner and the findings and reasonings are bad in law and the impugned order suffers from serious perversity of reasoning and is also against the material evidence on record. Counsel further submits that the court below failed to consider that the suit with respect to the will is pending before the competent court and the learned court below committed serious error of law in relying upon the will which is under challenge before the competent court and therefore the impugned judgment and order is vitiated and deserves to be quashed and set aside. Counsel further submits that the court below totally failed to consider that the respondent No.1 Gordhan completely failed to prove the will in his favour and even the witnesses produced by him could not stand to the test of corroboration.

9. No-one has put in appearance despite service of notice effected upon the respondent No.1. Vide order dated

18.02.2025 the service of notice upon the respondents No.2 to 8 was dispensed with.

10. Considered the submissions made by the counsel appearing for the appellant and gone through the entire [2025:RJ-JP:28803] (6 of 8) [CMA-1353/2019] material made available to the Court including the record of the case.

11. It is not in dispute that respondent No.1- Gordhan is nephew of deceased Chhitar Lal and the respondents namely; Smt. Jamna Bai, Smt. Kamla Bai, Smt. Mor Bai, Smt. Manbhar Bhai, Smt. Chota Bai and Smt. Laxmi, who are daughters of the deceased, are his first class heirs and for getting the amount deposited in the Bank. The deceased Chhitar Lal has also executed the Will (Ex.05) in the name of Gordhan, for which Gordhan sought the succession certificate.

12. The respondent No.1-Gordhan to support the averments made in the application, submitted an affidavit stating therein that on 17.06.2009 deceased Chhitar Lal executed a will (Ex.05) in his favour in presence of two witnesses namely; Shivraj Singh and Masuq Ali, who have been examined as AW2 and AW3, by which Gordhan Lal was declared as an absolute owner of the complete movable and immovable properties. Both the witnesses in their testimonies have corroborated in regard to execution of will (Ex.05) by deceased Chhitar Lal in favour of Gordhan. The court below taking into consideration all these aspects of the matter, decided issues No.1 and 2 in favour of respondent No.1- Gordhan and against the present appellant. [2025:RJ-JP:28803] (7 of 8) [CMA-1353/2019]

13. Every person holding any immovable property including the funds in his Bank account may execute a Will as regards such an amount that who would be entitled to receive the same after his death, though he may be having other lawful successor/s. In the present case, it is not in dispute that a Will (Ex.5) was executed by deceased Chhitar Lal in favour of respondent No.1-Gordhan, though the appellant is one of the legal heir of the deceased Chhitar Lal. The said Will (Ex.5) is in existence and whatever the rights which accrue from the said Will, the respondent No.1- Gordhan is entitled to receive the same on behalf of the Will (Ex.5). It has also come on record that the present appellant herself has made a challenge to the Will (Ex.5) and so also the sale deed made by the respondent No.1- Gordhan after having accrued the rights arising from the Will (Ex.5). There is no interim order by the Court as regards the execution of the Will (Ex.5). Whatever issues raised by the appellant as regards the genuineness of the Will (Ex.5) are concerned, they could only be considered by the Competent Court before whom the appellant has preferred the suit for cancellation of the Will (Ex.5). The Court below before whom an application under section 372 of the Act of 1925 has been filed, has a limited scope for consideration i.e. he has to go by the succession of the deceased and so also the documents executed by the deceased during his life time and in the present case the Will [2025:RJ-JP:28803] (8 of 8) [CMA-1353/2019] (Ex.5) has been executed by the deceased Chhitar Lal in favour of respondent No.1- Gordhan. Since the deceased Chhitar Lal during his life time has executed a Will (Ex.5) in favour of respondent No.1- Gordhan, the respondent No.1- Gordhan has the best rights over the movable or immovable properties, which is the subject matter of the Will (Ex.5).

14. After making an extensive scrutiny of the evidence available on the record and the findings arrived at by the Court below, this Court finds no error or perversity in the findings recorded by the Court below and there is no scope of interference in the impugned order passed by the Court below.

15. Accordingly, the misc. appeal filed by the appellant is dismissed.

16. Since the main appeal has been dismissed, the stay application and pending application/s, if any, also stand dismissed.

17. The Registry is directed to send back the record of the case to the Court concerned forthwith. Sharma NK/Dy. Registrar/72 (GANESH RAM MEENA),J