Madhya Pradesh High Court
Nirbhay Singh (Deleted) Dharm Singh … vs Kesri Singh @ Kishore Singh And Ors. on 19 February, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:7704
1 SA-564-2002
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF FEBRUARY, 2026
SECOND APPEAL No. 564 of 2002
NIRBHAY SINGH (DEAD) THROUGH LRS. DHARM SINGH (DEAD)
THROUGH LRS SMT SAMANDAR BAI AND OTHERS
Versus
KESRI SINGH @ KISHORE SINGH (DEAD) THROUGH LRS. SMT.
MORE BAI AND OTHERS
Appearance:
Shri Faiz Ahmad Qureshi and Shri Madhur Bhargava - Advocates for
appellants.
Shri Pawan Singh Raghuvanshi - Advocate for LRs of respondents
No.1 & 2.
JUDGMENT
1. Heard on I.A. No.1243/2026 , an application under Order 22 Rule 4
of CPC, I.A. No.1244/2026, an application under Order 22 Rule 9 CPC and
I.A. No.1245/2026, an application under Section 5 of Limitation Act.
2. For the reasons mentioned in the applications, same are allowed and
delay in filing the application for setting aside abatement qua respondent
No.2(a) – Toran Singh is hereby condoned. The abatement of appeal qua
respondent No.2(a) is hereby set-aside and legal representatives of
respondent No.2(a) are taken on record.
3. Let necessary amendment be carried out during the course of the
day.
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4. Heard on merits.
5. The second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 16.11.2002 passed by First Additional Judge
to the Court of First Additional District and Sessions Judge, Vidisha, in Civil
Appeal No.6A/2002, as well as the judgment and decree dated 2.04.2002
passed by First Civil Judge Class II, Vidisha, in Civil Suit No. 65A/1988.
6. The undisputed fact is that Nirbhay Singh had instituted the suit on
behalf of plaintiff/Gumani Bai by claiming himself to be her power of
attorney holder. It appears that Gumani Bai died during the pendency of the
civil appeal and, accordingly, Nirbhay Singh was substituted as her legal
representative on the basis of one Will.
7. The original plaintiff, Gumani Bai, filed a suit for declaration of
title and partition claiming that her husband were five brothers, namely Prem
Singh, Sumer Singh, Keshari Singh alias Kishore Singh, Khuman Singh and
Vijay Singh. Prem Singh and his wife have died and he was issueless and left
no legal representatives. The husband of the original plaintiff-Gumani Bai,
namely, Sumer Singh has also expired and therefore it was claimed that she
is entitled for his share after the death of her husband. The case of the
plaintiff was that Khasra Nos. 378, 379, 380, 637, total area 4.767 hectares,
situated in village Saleya, and Khasra Nos. 144, 145, 299, 303, 647, 648,
650, total area 10.619 hectares, also situated in village Saleya, Khasra Nos.
643, 665/1, total area 5.260 hectares, situated in village Thanner, similarly
Khasra No. 654, area 3.533 hectares, also situated in village Thanner, are the
disputed property. It was submitted that since Prem Singh had died without
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leaving his legal representative, therefore the original plaintiff has 1/4th
share in the property in dispute. The original plaintiff was an illiterate lady
and, taking advantage of her illiteracy, her name was not mutated in the
revenue records, whereas the property in dispute is a joint Hindu family
property. Just a few days prior to institution of suit, when the plaintiff
requested the defendants No. 1, 2 and 3 to partition the land, then not only
they refused to get the land partitioned but they also denied the title of the
original plaintiff, whereas it is claimed that the original plaintiff is in
possession of the property in dispute through the son of defendant No.1,
Nirbhay Singh. Since the defendants No. 1, 2 and 3 had denied the title of the
original plaintiff on 17.4.1988, then she obtained the revenue records and
came to know that the defendants No.1 and 2 have not got her name mutated
in the revenue records. Accordingly, the suit was filed for declaration of title
as well as for partition.
8. It is not out of place to mention here that the plaintiff had filed the
suit through her power of attorney holder, Nirbhay Singh, who was the son
of defendant No. 1, Keshari Singh.
9. The defendants No. 1 and 2 filed their written statement and
admitted the claim of the plaintiff made in paragraphs 1 to 8. In paragraph 9,
it was claimed that the property in dispute was not ancestral property but it
w a s Gair Maurusi a n d Sikmi property. After the death of the father of
defendants No. 1 and 2, there was no law in existence giving right to the
others in respect of Gair Maurusi a n d Sikmi accounts. The father of
defendants No. 1, and 2, as well as the father-in-law of the original plaintiff,
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had expired in samvat 2002, i.e. year 1945. The husband of the plaintiff had
also expired in the samvat 2002 i.e. year 1945, therefore she was not entitled
for any share in the property. It was further submitted that the mutation has
been done in accordance with law. There is no question of any partition
because her husband had no right in the property. In special plea, it was
claimed that since the disputed property was Gair Maurusi and Sikmi
property and, after the abolition of zamindari rights, the names of defendants
No. 1, 2 and the husband of defendant No.3 were recorded as co-sharers in
respect of the land situated in Saleya, and so far as the land situated in
village Thanner is concerned, it is recorded in the name of defendants No. 1
and 2. It was further claimed that, in fact, the land situated in Thaner was
obtained by defendant No.1 and since the son of defendant No.1 was
intending to grab the entire property, therefore the defendant No.1 also got
the name of defendant No.2 recorded in the revenue records. It was claimed
that neither the plaintiff nor her husband had any right or title, nor they were
ever in possession of the property in dispute. The defendant No.1 had given
11 bighas of land to his son, Nirbhay Singh, but Nirbhay Singh wants to grab
the entire property of defendant No.1 and, accordingly, he has got the suit
instituted from the original plaintiff, Gumani Bai.
10. The trial Court, after framing issues and recording evidence,
dismissed the suit.
11. Being aggrieved by the judgment and decree passed by the trial
Court, the appellant preferred an appeal which too has been dismissed.
12. Challenging the judgment and decree passed by the Courts below,
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NEUTRAL CITATION NO. 2026:MPHC-GWL:7704
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it is submitted by counsel for appellants that Gumani Bai had 1/4th share in
the property in dispute and therefore, the Courts below have committed a
material illegality by denying her share in the property.
13. Per contra, the appeal is vehemently opposed by counsel for LRs
of respondents No.1 & 2. It is submitted that the original plaintiff did not
enter in the witness box and, therefore, the power of attorney holder cannot
depose for and on behalf of the principal. The husband of the plaintiff as well
as the father-in-law of the original plaintiff had died much prior to
introduction of the amendment in Section 6 of the Hindu Succession Act
and, therefore, she had no right or title in the property in dispute, and both
the Courts below have rightly dismissed the suit as well as the appeal.
14. Considered the submissions made by counsel for the parties.
15. The second appeal was admitted by order dated 25/6/2007 on the
following substantial questions of law:
“(i) Whether, the widow who is continuing in
possession till coming into force of the land revenue
code, will have no right in the property if the husband
died when the Land Revenue and Tenancy Act, was in
force ?
(ii) Whether, the widow has no right to execute the will
of the property and the dismissal of the suit that the will
holder of the widow has no right to continue the suit, is
sustainable in law ?.”
16. Before considering the merits of the case, this Court would like to
consider as to whether Nirbhay Singh had proved that the Will was executed
by Gumani Bai in his favour or not?
17. It appears that Gumani Bai died during the pendency of the
appeal, i.e. on 25/7/2001. On 30/8/2001, the counsel for the original
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appellant Gumani Bai filed an application under Order 22 Rule 3 CPC along
with a photocopy of the Will purportedly executed by the original plaintiff
Gumani Bai in favour of her power of attorney holder Nirbhay Singh.
18. Although the respondents had objected to the Will, but from the
order dated 26/9/2001, it appears that when the original copy of the Will
dated 29/4/1988 was shown by the appellant to the counsel for the
respondents, then he expressed his satisfaction that since the Will is
registered, therefore the power of attorney holder, namely Nirbhay Singh,
may be substituted in place of the original plaintiff Gumani Bai on the
strength of the Will.
19. It is not out of place to mention here that the original Will was
never produced by Nirbhay Singh in support of his right to continue the suit.
Any satisfaction expressed by counsel for respondents cannot be a ground to
hold that the Will was duly proved by Nirbhay Singh. As already pointed
out, only a photocopy of the Will was filed.
20. Merely because the Will is a registered one is not a guarantee that
it was rightly executed by the testator without any pressure or coercion or in
a fit state of mind. The Will has to be proved in accordance with Sections 63
and 68 of the Indian Succession Act.
21. The Supreme Court in the case of Leela and Others v.
Muruganantham and Others, reported in (2025) 4 SCC 289 , has held as
under:
“22. There can be no doubt with respect to the manner in which execution
of a will is to be proved. In the light of plethora of decisions including the
decisions in Moturu Nalini Kanth v. Gainedi Kaliprasad [Moturu Nalini
Kanth v. Gainedi Kaliprasad, (2024) 16 SCC 78 : 2023 SCC OnLine SC
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NEUTRAL CITATION NO. 2026:MPHC-GWL:7704
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1488 : 2023 INSC 1004] and in Derek A.C. Lobo case [Derek A.C. Lobo
v. Ulric M.A. Lobo, (2024) 15 SCC 202 : 2023 SCC OnLine SC 1893 :
2023 INSC 1093] this position is well settled that mere registration of a
will would not attach to it a stamp of validity and it must still be proved in
terms of the legal mandates under the provisions of Section 63 of the
Succession Act and Section 68 of the Evidence Act. It is not the case of
the appellant that the will dated 6-4-1990 is a registered one.
23. Now, Section 63 of the Succession Act reads thus:
“63. Execution of unprivileged wills.–Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, [or
an airman so employed or engaged], or a mariner at sea, shall
execute his will according to the following rules–
(a) The testator shall sign or shall affix his mark to the will,
or it shall be signed by some other person in his presence and
by his direction.
(b) The signature or mark of the testator, or the signature of
the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the writing
as a will.
(c) The will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the will
or has seen some other person sign the will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark,
or of the signature of such other person; and each of the
witnesses shall sign the will in the presence of the testator, but
it shall not be necessary that more than one witness be present
at the same time, and no particular form of attestation shall be
necessary.”
24. Section 68 of the Evidence Act makes it clear that at least one attesting
witness has to be examined to prove execution of a will. It is true that in
the case at hand DW 2 was the attesting witness who was examined in
Court. Therefore, the question is whether they had deposed to the effect
that the will in question was executed in accordance with sub-rules (a) to
(c) thereunder.
25. The trial court rightly held that the propounder of the will has to
establish by satisfactory evidence that the will was signed by the testator,
that the testator at the relevant time was in a sound disposing state of mind
and that he understood the nature and effect of the dispositions and put his
signature out of his own free will.”
22. Thus, it is clear that Nirbhay Singh, who was substituted as legal
representative in place of the original plaintiff Gumani Bai, had failed to
prove that the Will was duly executed by her because neither he produced the
original copy of the Will nor he prayed for remand of the case to adjudicate
as to whether the Will was executed by Gumani Bai in his favour or not. He
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also did not pray for a summary inquiry to look into the correctness of the
Will.
23. Under these circumstances, this Court is of the considered opinion
that Nirbhay Singh has failed to prove that Gumani Bai had executed a Will
in his favour in respect of the property in dispute.
24. Under these circumstances, once Nirbhay Singh has failed to
prove that he has a right to continue the suit on the strength of the Will, no
useful purpose would be served by adjudicating the facts on the merits of the
case.
25. Since Nirbhay Singh has failed to prove that any Will was
executed by Gumani Bai, therefore it is clear that after the death of Gumani
Bai, as she had died issueless, therefore the property would go back to the
heirs of her husband as per the provisions of section 15 of Hindu Succession
Act. Since defendants No.1 and 2 are the brothers of the husband of the
deceased Gumani Bai, and defendant No.3, who was the wife of Vijay Singh,
is reported to be dead without leaving any L.R., and accordingly her name
was also deleted from the array of cause title, therefore, they would inherit
the share of Gumani Bai, if any.
26. Under these circumstances, this Court is of the considered opinion
that no useful purpose would be served by answering any of the substantial
questions of law which have been framed in the present case.
27. No other argument is advanced by counsel for the parties.
28. Accordingly, the judgment and decree dated 16.11.2002 passed by
First Additional Judge to the Court of First Additional District and Sessions
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Judge, Vidisha, in Civil Appeal No.6A/2002, as well as the judgment and
decree dated 2.04.2002 passed by First Civil Judge Class II, Vidisha, in Civil
Suit No. 65A/1988 is hereby affirmed.
29. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Aman
Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 10-03-2026
06:26:04 PM
