DHARMENDRA MEENA Vs. RUKMANI BAI

JUDGEMENT

(1.) This second appeal has been filed by the appellant/defendant No.1 against judgment and decree dtd. 18/2/2016 passed by Seventh Additional District Judge, Bhopal in RCA No.38-A/2013 [Dharmendra Meena Vs. Smt.Rukmani and others] whereby the appeal preferred by appellant has been dismissed by affirming the judgment and decree 30/11/2012 passed by Twenty First Civil Judge Class-II, Bhopal in Civil Suit No.602-A/2009, by which, the suit of the respondent no.1/plaintiff for getting share in the suit property belonging to her father has been partly decreed and it has been decreed that plaintiff is entitled to one-fifth share in the suit property.

(2.) Learned counsel for the appellant/defendant No.1 submitted that appellant has lost in both the courts. It is also submitted that both the courts have failed to appreciate that Will dtd. 25/4/2008 was not null and void but it has been held otherwise. It is also argued that burden to prove the Will as fabricated one was on the respondent/plaintiff and not on the appellant/defendant no.1.

(3.) Heard the learned counsel for the appellant on the question of admission of this appeal. Perused the records of the courts below. Exhibit-P/1 is a unregistered Will. The trial Court has very minutely and correctly observed that Will by Late Bhagwan Singh in favour of appellant/defendant No.1-Dhamendra Meena is not proved. The reasoning assigned by the court is on the basis of pleadings and evidence available on record and it is correct because this unregistered Will was in favour of appellant/defendant No.1 whereas the suit was filed by the real daughter of Late Bhagwan Singh. The appellant/defendant (Dharmendra Meena) is not the son of Bhagwan Singh. It is well settled that the Will which does not convey right on the natural legal heirs (son or daughter) and gives right to other person who is taking the benefit, the burden lies on such person to prove the same as he is the one who is claiming the right under said Will and burden to explain all suspicious circumstances and to remove the thorns <IMG>JUDGEMENT_3_LAWS(MPH)5_2024_1.jpg</IMG> from the Will lies on him. But in the present case that has not been done by the appellant/Defendant No.1. Therefore, the Will dtd. 25/4/2008 has correctly held to be not proved.