Supreme Court of India
Badrilal vs Suresh on 28 October, 2021Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6524 OF 2021
(Arising out of SLP (Civil) No.24886 of 2019)
BADRILAL ..… APPELLANT
SURESH & ORS ….. RESPONDENTS
J U D G M E N T
ABHAY S. OKA, J.
1. The appellant Badrilal who is the third defendant has taken an
exception to the Judgment and Order dated 3 rd 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.
Signature Not Verified
Digitally signed by
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 6 th 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 12 th
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 21 st 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 21 st
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 6 th 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 21 st 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 preferred by the appellant Badrilal, modified the
decree of the Trial Court which is contrary to law. He submitted that by
the agreement dated 12th May 2009, the Will dated 6th May 2009 was
revoked as the said agreement also bears a thumb impression of
Mangilal. He submitted that Ramkanya, being the only daughter of
Mangilal, inherited the entire property of Mangilal being Class I heir as
a consequence of revocation of the Will dated 6th May 2009.
Therefore, Suresh will not be entitled to any share in the property of
Mangilal. He submitted that in any event, the sale deed dated 21 st
February 2011 will be valid to the extent of the land allotted to
Ramkanya under the Will dated 6th May 2009.
8. The learned counsel Shri D.K. Thakur appearing for the first
respondent Suresh submitted that the Will dated 6 th May 2009 has not
been revoked by Mangilal in accordance with law. He submitted that
there is a concurrent finding that the Will dated 6 th May 2009 has been
duly proved and, therefore, no interference is called for.
9. We have given careful consideration to the submissions. A
specific issue was framed by the learned Trial Judge on the proof of
Will dated 6th May 2009. The learned Trial Judge considered the
evidence of PW-4 Ishwarlal and PW-6 Saroj Soni, who were witnesses
to the Will. PW-6 Saroj Soni who was a notary also deposed regarding
entry of the Will in her register. Even the District Court, while deciding
the appeal preferred by the appellant, has considered the evidence of
the attesting witnesses and has come to the conclusion that the Will
was duly executed by Mangilal. This finding has been specifically
affirmed in the impugned Judgment by the High Court. Therefore,
there is no reason to interfere with the said finding of fact recorded by
10. The agreement dated 12th May 2009 has been executed during
the lifetime of Mangilal. Only Suresh and Ramkanya are the parties to
the said agreement. Though, clause no.8 of the said agreement recites
that the Will earlier executed by Mangilal stands cancelled, Mangilal is
not shown as a party to the agreement but his thumb impression
appears on the third page of the said document in the left margin. The
question is whether the said agreement will amount to the revocation of
the Will dated 6th May 2009. Section 70 of the Indian Succession Act,
1925 deals with revocation of unprivileged Will which reads thus :-
“70. Revocation of unprivileged Will or codicil.—No
unprivileged Will or codicil, nor any part thereof, shall
be revoked otherwise than by marriage, or by another
Will or codicil, or by some writing declaring an intention
to revoke the same and executed in the manner in
which an unprivileged Will is hereinbefore required to
be executed, or by the burning, tearing, or otherwise
destroying the same by the testator or by some person
in his presence and by his direction with the intention
of revoking the same. Illustrations:-
(i) A has made an unprivileged Will. Afterwards, A
makes another unprivileged Will which purports to
revoke the first. This is a revocation.
(ii) A has made an unprivileged Will. Afterwards, A
being entitled to make a privileged Will makes a
privileged Will, which purports to revoke his
unprivileged Will. This is a revocation”.
In view of Section 70, revocation can be made only by following
(a) By Execution of another Will or codicil.
(b) A writing executed by the testator declaring an intention to revoke
the Will and executed in the manner in which an unprivileged Will
is required to be executed.
(c) By burning, tearing or otherwise destroying the same by the
testator or by some person in his presence and by his direction
with the intention of revoking the same.
11. Even going by the case of the appellant, the Will was purportedly
revoked by the testator Mangilal by the agreement dated 12 th May
2009. As noted earlier, only Suresh and Ramkanya are shown as the
parties to the said agreement. They have been described therein as
Party Nos. 2 and 1 respectively. Thumb impression of Mangilal
appears in the left margin on the third page of the said document.
Though, the first two pages bear signatures of Suresh and Ramkanya,
the thumb impression of Mangilal appears in the margin of only the
third page. It is not the case of the appellant or any party that the
thumb impression of Mangilal on the agreement dated 12 th May 2009
has been attested by two witnesses as required by clause (c) of
Section 63 of the Indian Succession Act, 1925. No such evidence has
been adduced by the appellant. It is not the case of the appellant that
the Will dated 6th May 2009 was revoked by Mangilal by executing a
new Will or a codicil. It is not his case that the Will was either
destroyed or burnt by Mangilal or by someone else as per his express
instructions. Therefore, the Will dated 6 th May 2009 was not revoked
during the lifetime of Mangilal.
12. The agreement dated 12th May 2009 purports to record that
Ramkanya will be the owner of 5 Bigha of land after the death of
Mangilal and Suresh will become owner of 2 Bigha and 3 Biswa of land
after the demise of Mangilal. The said agreement is not registered. It
is not a sale deed executed by Mangilal. The agreement purports to
record how the property of Mangilal will devolve after his death.
Therefore, the agreement will not have the effect of transferring the
property to Suresh and Ramkanya.
13. The sale deed dated 21st February 2011 was purportedly
executed by Ramkanya by which she purported to sell the entire
Survey No. 37/03 to the appellant Badrilal on the footing that she had
become the owner thereof under the aforesaid agreement. It is not the
case of any of the parties that the property of Mangilal was partitioned.
As his Will is held to be valid, Ramkanya will be entitled to area of 3
Bigha and 10 Biswa out of the total land held by Mangilal. It is not
mentioned that Ramkanya will get area of 3 Bigha and 10 Biswa out of
a particular Survey Number out of the two Survey numbers. Therefore,
on demise of Mangilal, Ramkanya became the owner of undivided area
of 3 Bigha and 10 Biswa, Suresh became the owner of undivided area
of 1 Bigha and his brothers Dilip and Prakash also became the owners
of undivided arrear of 1 acre each.
14. Careful perusal of the operative part of the judgment of the
District Court shows that as per clause (c), it is declared the sale deed
dated 21st February 2011 is void regarding the right and title of plaintiff
Suresh and is not binding on him. The sale deed was executed after
death of Mangilal. Therefore, the 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 the
District Court needs modification to that extent.
15. We, therefore, clarify that the sale deed dated 21 st February 2011
executed by Ramkanya in favour of appellant – Badrilal, will be valid
only to the extent of the land which was bequeathed to Ramkanya
under the Will dated 6th May 2009 executed by Mangilal. Subject to this
above modification, the decree passed by the District Court on 6 th
December 2018 in Regular Civil Appeal No.86-A/16 is confirmed. It will
be open for the parties to file a suit for partition of lands allotted to them
as per the Will dated 6th May 2009.
16. The appeal is disposed of accordingly. There will be no order as
(ABHAY S. OKA)
October 28 , 2021.