Delhi District Court
Smt.Saroj vs Suraj Prakash on 29 November, 2025
DLET010043152015
In The Court of Sh. Hem Singh,
District Judge-01, (East),
Karkardooma Courts, Delhi.
CS No.1334/2016
CNR NO. DLET01-004315-2015
In the matter of :-
Smt. Saroj
W/o Lt. Brij Mohan Nischal
R/o A-87, Gulab Bagh, Uttam Nagar,
New Delhi-110059.
.....Plaintiff
Versus
1. Shri Suraj Prakash Luthra
S/o Lt. Chaman Lal Luthra
R/o F-4, New Govind Pura,
New Chander Nagar Bus Stand,
Delhi-110051.
2. Shri Satpal Luthra
S/o Lt. Chaman Lal
R/o Staff Quarter no.5,
Aram Bagh,
Paharganj,
New Delhi-110055.
3. Smt. Deepti @ Sunita
W/o Sh. Bhupender Sahdev,
R/o D 2A-11C, Janakpuri,
New Delhi-110058.
Digitally
signed by
HEM
PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.1 of 18 HEM SINGH
SINGH Date:
2025.11.29
16:37:38
+0530
4. Smt. Anita
W/o Sh. Ravinder Babbar
R/o H-77, Nehru Nagar,
Ghaziabad, U.P.
5. Smt. Poonam
W/o Sh. Rakesh Kumar
R/o H 33/64, Sector-3, Rohini,
Delhi-110085.
6. Lt. Chaman Lal (Deceased)
Through LRs (Defendant nos.1 to 5)
.....Defendants
Date of Institution : 10.12.2015
Date of Reserving Order : 04.09.2025
Date of Decision : 29.11.2025
SUIT FOR PARTITION
JUDGMENT
(I) BRIEF FACTS :-
1.) The present suit is filed on behalf of the plaintiff seeking partition of the property bearing no.4, admeasuring 98 sq. yds., out of Khasra no.1535/454, situated near Golden Park, Village Khureji Khas, Illaqa Shahdara, Delhi now known as F-4, New Govind Pura, Near Chander Nagar Bus Stand, Delhi-110051 (hereinafter referred as 'suit property').
a) It is stated in the plaint that plaintiff and defendant nos.1 to 5 are the children of Lt. Chaman Lal Luthra and Lt.
PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.2 of 18 Digitally signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:37:42 +0530 Ram Piari and Lt. Ram Piari was the absolute owner of the suit property. Further, plaintiff used to visit the suit property and also used to stay there for some days. Plaintiff started visiting suit property after death of her husband due to which one room has been reserved for her in the suit property and her goods are also lying in that room. Lt. Ram Piari expired intestate on 24.02.2003 leaving behind plaintiff as well as defendant nos.1 to 6 as her legal heirs. After the demise of Lt. Ram Piari, plaintiff became the co-owner of the suit property having 1/6th share in the same. The claim of co-ownership of the plaintiff was never disputed by anybody and she was also never stopped from staying at the suit property. On 12.02.2010, in the presence of plaintiff, one property dealer visited the suit property along-with some persons and later plaintiff came to know that defendant no.1 is trying to sell out the suit property and with its sale consideration, he will purchase another property exclusively under his name only. Thereafter, plaintiff asked defendant nos.1 and 6 to partition the suit property, however, defendant no.1 refused her proposal. Plaintiff also has the apprehension that defendant no.1 might dispose of the suit property depriving the other legal heirs of Lt. Ram Piari from their respective shares. Left with no option, plaintiff filed the present suit seeking partition of the suit property.
(II) DEFENCE IN BRIEF:-
Upon receipt of summons, all the defendants put their appearance. However, written statement has only been filed on Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.3 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:37:45 +0530 behalf of the defendant no.1.
a) In the written statement filed by the defendant no.1, dismissal of the present suit prayed on the following grounds:-
i) The present suit is not maintainable as per the provisions of Section 6 of the Hindu Succession Act and she has no right or interest over the suit property.
ii) The present suit is also liable to be dismissed and reliance in this regard is placed upon the judgment passed by the Hon'ble Supreme Court in case titled as 'Prakash & Ors. vs. Phulavati & Ors.' Civil Appeal no.7217 wherein it is held that 'accordingly we hold that the rights under the amendments are applicable to living daughters of living coparceners as on 09.09.2005 irrespective of when such daughters are born'.
iii) The present matter is not maintainable as per Section 23 of the Hindu Succession Act, partition cannot be sought in the ancestral property and it is also not maintainable on the basis of Section 34 of Specific Relief Act, 1934.
iv) It is also liable to be rejected u/O VII Rule 11 CPC as the present suit is not valued properly since as per the valuation report prepared by the department on 20.05.2015, the value of the suit property was Rs.82,02,456/-.
v) The present suit is also liable to be dismissed as the suit property had already been bequeathed by Lt. Ram Piari in PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.4 of 18 Digitally signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:37:49 +0530 favour of defendant no.1 vide Will dated 05.11.2002 and defendant no.1 became the absolute owner of the suit property.
vi) It is further stated in the written statement that plaintiff herself threatened the defendant no.1 to sell out the suit property and also tried to usurp its sale proceeds in connivance with defendant no.5, namely, Poonam and her husband- Rakesh Kumar. It is also denied that plaintiff never resided in the suit property after her marriage and no room is reserved for her in the same.
The remaining contents and facts as mentioned in the present plaint are denied by the defendant no.1 and dismissal of the suit is prayed.
(III) ISSUES:-
From the pleadings, following issues were framed vide order dated 05.12.2017:-
i) Whether property No. F-4, New Govindpura, Chander Nagar, Bus Stand, Delhi-110051 is liable to be partitioned, and if so, to what measures? Onus on the parties.
ii) Whether defendant no.1 is entitled for exclusive right to the suit property, as above, on the strength of the WILL dated 05.11.2002? OPD
iii) Relief.
Vide order dated 05.12.2017 the probate petition no.6/2017 clubbed with the present suit for partition so that Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.5 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:37:52 +0530 authenticity of the Will can be looked first with further directions to lead composite evidence in both the matters.
(IV) EVIDENCE:-
a) In order to substantiate its case, plaintiff herself stepped in witness box as PW1 and tendered her evidence by way of affidavit Ex.PW1/A. The said witness was cross-examined exhaustively by Ld. Counsel for defendant no.1. Thereafter, vide separate statement of plaintiff dated 11.07.2018, PE was closed.
The remaining evidence was led in the probate petition bearing PC No.6/2017.
(V) Final arguments heard on behalf of both the parties. Record perused. Considered.
(VI) FINDINGS :-
a) Defendant no.1 has filed the probate petition no.6/2017 seeking probate of Will dated 05.11.2002 asserting that by said Will, his mother has bequeathed the property bearing no.F-4, New Govind Pura, Bhagat Singh Road, Chander Nagar, Delhi, admeasuring 82 sq. mts. in his favour.
b) Perusal of record shows that vide order dated 05.12.2017, the present partition suit was clubbed with the aforesaid probate petition for the purpose of recording of evidence. It is also apposite to mention here that vide same order, identical issues Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.6 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:37:55 +0530 were framed by the Ld. Predecessor of this Court.
c) This Court after considering the composite evidence of parties has given its findings in the probate petition no.6/2017 in respect of the identical issues as under:-
"ISSUE NO.2: Whether defendant no.1 is entitled for exclusive right to the suit property, as above, on the strength of the WILL dated 05.11.2002? OPD
a) Issue no. 2 being the primary and main issue, is taken up first for the adjudication. It is settled proposition of law that onus is always on the propounder of the Will to prove the validity of the Will and to remove all the suspicious circumstances surrounding the execution of the Will and further the Will has to be proved in accordance with the provisions contained in the Indian Evidence Act, 1872 (Bhartiya Shakshya Ahiniyam, 2023 w.e.f.
25.12.2023) as well as the Indian Succession Act, 1925.
b) To discharge said onus, the petitioner examined himself as PW-1 and one attesting witness of the Will as PW-2. In his evidence affidavit, PW1 has deposed that Late Smt. Ram Piyari during her lifetime had executed the Will dated 05.11.2002 bequeathing property bearing no. F-4, New Govind Pura, Bhagat Singh Road Chander Nagar, Delhi in his favour. He Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.7 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:37:59 +0530 has further deposed that Late Smt. Ram Piyari was the absolute owner of the aforesaid property. He has further deposed that he found the said Will in the month of December, 2014 when he was searching for some documents.
c) Though initially the petitioner has claimed that he had placed on record original Will 05.11.2002 however during further proceedings of the case, Ld. Predecessor of this Court in its order dated
26.05.2022 observed that original Will is not on record. Consequently on 10.11.2022 petitioner moved an application under section 65 of the Indian Evidence Act admitting that original Will is not availabe and to lead secondary evidence in respect of Will in question. The said application was disposed of by Ld. Predecessor with observations that as per law no permission to lead secondary is required.
d) It is settled proposition of law that no separate permission is required to lead secondary evidence, however to lead secondary evidence the party concern needs to establish the pre-requisites for admissibility of secondary evidence. Section 61 of the Indian Evidence Act lays down that contents of a document may be proved by primary or secondary evidence. Section 63 provides definition of secondary evidence. Section 64 provides that Digitally signed by PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.8 of 18 HEM HEM SINGH SINGH Date:
2025.11.29 16:38:03 +0530 documents must be proved by primary evidence, except in cases thereafter mentioned i.e. in Section 65, Section 65A and Section 65B.
e) Section 65A & 65B are not relevant herein, however, it would be apposite to reproduce Section 65 of the Evidence Act which read as under:
"Section 65:- Cases in which secondary evidence relating to document may be given.
Secondary evidence may be given of the existence, condition or contents of a document in the following cases :
(a)When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b)When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c)When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d)When the original is of such a nature as not to be easily movable;
(e)When the original is a public document Digitally signed by PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.9 of 18 HEM HEM SINGH SINGH Date:
2025.11.29 16:38:07 +0530 within the meaning of section 74;
(f)[ When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] [[[Cf. the Bankers'Books Evidence Act, 1891 (18 of 1891), Section 4.]], to be given in evidence;
(g)When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.In case (e) or (f), a certified copy of document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents".
f) Section 65, Indian Evidence Act, permits secondary evidence to be led in the contingencies mentioned therein. As per sub section (c) of the said provision secondary evidence may be given with regard to existence, condition or contents of a document when the original thereof is lost or destroyed or when the party offering secondary evidence for any reason not arising from its own Digitally signed by PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.10 of 18 HEM HEM SINGH SINGH Date:
2025.11.29 16:38:11 +0530 default or neglect cannot produce it in reasonable time. It is settled proposition of law that for adducing secondary evidence, foundational evidence with regard to the reasons as to why the original evidence has not been furnished has to be given.
g) In the matter of "Rakesh Mohindra vs. Anita Beri and Ors." (2016) 16 SCC 483, the Hon'ble Supreme Court of India has observed as under:-
"15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."
h) In the matter of "Jagmail Singh & Anr. Versus Karamjit Singh & Ors." Civil Appeal no. 1889/2020 decided on 13.05.2020, the Hon'ble Supreme Court of India has observed as under:-
"14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception Digitally signed by HEM PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.11 of 18 HEM SINGH SINGH Date:
2025.11.29 16:38:17 +0530 to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence."
i) A party producing secondary evidence before a court has to satisfy the conditions mentioned in Section 65 of the Indian Evidence Act and only when the conditions of Section 65, Indian Evidence Act are satisfied, secondary evidence would be admissible.
j) Therefore the petitioner was under
obligation to establish the factual foundation for leading scanned copy of Will dated 05.11.2002, however, there is nothing in this regard in the entire testimony of the petitioner. No evidence has been led by the petitioner to show the existence of the contingency or situation stipulated in section 65 of the Evidence Act. Since the petitioner has not proved the pre-requisite conditions of existence of Will in question, therefore the scanned copy of the said Will is neither admissible nor relevant.
Digitally signed by PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.12 of 18 HEM HEM SINGH SINGH Date:
2025.11.29 16:38:23 +0530
k) It is settled law that a Will has to be proved as per the mandate under the provisions of section 63 of the Indian Succession Act and section 68 of the Evidence Act. Section 63 of the Indian Succession Act reads as under:
"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 acknowledgement of his signature or mark, or 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".
l) Further section 68 of the Evidence Act provides that at least one attesting witness has to be Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.13 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:38:26 +0530 examined to prove the execution of the Will. The petitioner has thus examined Sh. Balwant Rai Malhotra one of the attesting witness of the Will in question. The said witness in his evidence affidavit has deposed that Late Smt. Ram Piyari made her signature on the said Will in his presence. However, during his cross examination said witness corrected his deposition in this regard and said that Will in question does not bear the signature of the Late Ram Piyari and in his evidence affidavit he has mentioned signature of Ram Piyari which means thumb impression only.
m) In his evidence affidavit PW2 further deposed that he seen the original Will on record which bears his signature at point A. A perusal of evidence affidavit of PW2 would show that the same was attested by concerned Oath Commission on 16.02.2021. The PW2 came to depose before this Court on 17.08.2023, therefore before 17.08.2023 there was no occasion for the PW2 to seen the original court record. Therefore, it can be concluded that the said deposition in respect of seeing of original Will on record made by PW2 in his evidence affidavit without seeing court record/file. Furthermore, the original Will was never filed by the petitioner on the Court record, therefore PW2's testimony that he had seen the Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.14 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:38:30 +0530 original will on the record is baseless and without any substance.
n) In his evidence affidavit PW2 further deposed that the Will bears his signature at point 'A'. However, at point 'A' marked upon the scanned copy of the Will there is thumb impression of Late Ram Piyari. It seems that even scanned copy of the Will in question not shown to PW2 at the time of tendering his evidence by way of affidavit. PW2 has also not identified the signature/thumb impression of Late Ram Piyari in his evidence affidavit. In considered opinion of this Court, the identification of the signature of the testator on the Will in question by the attesting witness is sine qua none for proving of due execution of the Will which has not been done by the petitioner in present case. Therefore, in view of this Court, the petitioner has failed to prove the Will in question.
o) As per the case of the petitioner, he found the Will in question in December, 2014 while he was searching for some documents. Late Ram Piyari expired on 24.01.2003. In his cross examination PW2 has stated that he met the petitioner first time in 2003-2004. In his cross examination PW1 has stated that after death of his Digitally signed by PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.15 of 18 HEM HEM SINGH SINGH Date:
2025.11.29 16:38:33 +0530 mother he used to meet Smt Vijay Laxmi (another attesting witness of the Will) almost daily basis. It is highly improbable that despite being witnesses of the Will, PW2 & said Vijay Laxmi had not disclosed the existence of the Will to petitioner. PW2 is also an attesting witness of Will executed by Late Chaman Lal (husband of Late Ram Pyari) in year 2009, however even then also PW2 had not disclosed the existence of Will dated 05.11.2002 though both the Wills were executed in respect of same property. Therefore, the stand of the petitioner that he found will in question after eleven years of the death of his mother is not believable.
p) In view of the abovesaid consideration and settled law, issue no. 2 is decided against the petitioner.
ISSUE NO.1: Whether property No. F-4, New Govindpura, Chander Nagar, Bus Stand, Delhi-110051 is liable to be partitioned, and if so, to what measures? Onus on the parties.
a) It is not in dispute that Late Ram Piyari was the owner of the property bearing no. F-4, New Govind Pura, Bhagat Singh Road Chander Nagar, Delhi. It is also not in dispute said Ram Piyari expired on 24.01.2003 leaving behind Digitally signed by PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.16 of 18 HEM HEM SINGH SINGH Date:
2025.11.29 16:38:37 +0530 petitioner and respondent no. 2 to 6 as her legal heirs. Late Sh Chaman Lal i.e. husband of Late Ram Piyari also expired on 19.02.2013. The claim of the petitioner that he entitled for the entire aforesaid property by virtue of Will dated 05.11.2002 already declined while deciding issue no. 2 hereinabove. Therefore, property bearing no. F-4, New Govind Pura, Bhagat Singh Road Chander Nagar, Delhi is liable to be partitioned amongst the petitioner and respondent no. 2-6 equally. This issue decided accordingly."
d) In view of the aforesaid findings given in PC No.6/2017 in respect of the identical issues, issue no.1 is decided in favour of the plaintiff and issue no.2 is decided against the defendant no.1.
RELIEF In view of the aforesaid findings and discussion on the identical issues:-
a) A preliminary decree of partition is passed in favour of the plaintiff with respect to her 1/6th share in the property bearing no.F-4, New Govind Pura, Bhagat Singh Road, Chander Nagar, Delhi, admeasuring 82 sq. mts. The parties are entitled for partition in said property in respect of their 1/6th share each in the same.
Digitally PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.17 of 18 signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:38:41 +0530
b) The parties are given an opportunity to suggest ways and means for partition of the suit property by metes and bounds (physically) or by inter se sale of the respective shares amongst themselves before passing a final decree.
c) A decree of permanent injunction is also passed against the defendants and they are restrained to create any third party interest in the suit property against the interest of the plaintiff.
Accordingly, preliminary decree be passed in the instant suit. Preliminary decree-sheet be prepared after payment of deficient court fee, if any.
Digitally signed by HEM HEM SINGH SINGH Date:
2025.11.29 16:38:45 +0530 Announced in the open Court on 29.11.2025 (Hem Singh) District Judge-01 (East)/KKD/Delhi PC NO.1334/16 (Smt. Saroj VS. Suraj Luthra & Ors.) PgNo.18 of 18