ORDER
1) This second appeal has been filed by the appellant/ defendant against the judgment and decree dated 15.4.2000 passed by the learned Fourth Civil Judge, Class I, Jabalpur in Civil Suit No. 792A/1998 whereby the suit of the plaintiff for declaring the Will in favour of defendant dated 6.8.1990 is declared as void.
2) On an appeal by the defendant, learned First Appellate Court in Civil Appeal No. 72A/2000, vide judgment and decree dated 24.09.2001 dismissed the appeal.
3) This Second Appeal was admitted on 21.06.2007 on the following three substantial questions of law :-
" 1 Whether plaintiff Pyarelal (since deceased) was having any right to challenge the Will (Ex. P-6) executed in favour of defendant/ appellant when he is not the heir of testator Lallu Bhai ?
2. Whether the suit property which was purchased vide Ex. P/4 by Lallu Bhai and plaintiff Pyarelal
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jointly, Pyarelal was having any right in the share of Lallu Bhai and whether after the death of Lallu Bhai under the law, plaintiff Pyarelal can succeed on his share ?
3. Whether the reqlinquishment deed (Ex.P/5) which is an unregistered document is inadmissible in evidence and, therefore, whether the learned Courts below erred in law by placing reliance on the said document ?"
4) During the course of arguments, learned counsel for the appellants submitted that the Will in favour of appellant/ defendant was declared as null and void whereas this power is vested with Probate Court only.
5) On the day of arguments i.e. 29.01.2024, none appeared for the respondents to advance arguments, therefore, their right was closed.
6) This Court perused the record of the trial Court.
7) Regarding the first substantial question of law, it is seen that plaintiff is entitled to challenge the Will Ex. P/6 on the ground that appellant Nandkishore who is defendant was challenging the right of the plaintiff, therefore, as a natural corollary, plaintiff was entitled to challenge the Will Ex. P/6. It is seen that Ex. P/6 is an unregistered Will, therefore, substantial question No.1 is answered against appellant/ defendant No.2.
8) Ex. P/5 is " दस्त बरादरी " (document for relinquishment of right). Since on the basis of evidence Ex. P/5 is proved, therefore, this document can be challenged because this document is not registered and this document shall come into operation only when it is registered but unregistered
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document Ex. P/5 for relinquishment of right can be used for collateral purpose, therefore, it shall come into force only when it is registered.
9) Furthermore on perusal of record of the learned First Appellate Court, it is seen that earlier Nandkishore who is appellant herein had filed Civil Suit No. 80-A/97 in the Court of learned 15thCivil Judge, Class II, Jabalpur against Jeewan and others and by judgment dated 4.9.2001 the suit of the plaintiff was dismissed and amongst the defendants in earlier suit No. 80A/97 the parties were Jeewan S/o Pyarelal, Gopal S/o Pyarelal, Suresh S/o Pyarelal, Rajesh / Raja S/o Prayelal, Nimmibai W/o Pyarelal. Only missing name is that of Murari S/o Pyarelal, therefore, when Nandkishore could challenge / claim title on the basis of Will dated 6.8.90, therefore, there is no reason as to why the other parties cannot do the same, who are also challenging the Will dated 6.8.90 between the parties. It is to be noted that in Civil Suit No. 80-A/97, learned trial Court had given a finding in paragraphs 35 and 36 that it is not the law that no suit can be filed on the basis of Will unless probate certificate is not filed.
10) Regarding substantial question No.3 it is seen that the Court can place reliance on Ex. P/5 for collateral purpose, therefore, the finding is in affirmation. Accordingly, all the three substantial questions of law are decided against the appellants/ defendants. Hence, the appeal fails and decree of the trial Court as affirmed by the learned First Appellate Court is confirmed.
Accordingly, the Second Appeal is dismissed.
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Let copy of this order be sent to the concerned Court along with the record.
(AVANINDRA KUMAR SINGH)
JUDGE
VSG