Delhi District Court
Mrs. Chanderwati vs Sh. Raghunath on 17 December, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
CivDJ/609600/16
CNR No. DLWT01-000986-2014
In the matter of :
1. Mrs. Chanderwati
W/o Sh. Ashok Kumar
R/o C-86, J.J Colony, Khyala
New Delhi-110018
2. Smt. Bimla Devi
W/o Sh. Dhani Ram
R/o L-48/1, L-Block, Vijay Vihar
Phase-II, Rohini Sector-IV
New Delhi-110085
3. Smt. Asha
W/o Sh. Ravinder Kumar
D/o Late Smt. Prem Verma
R/o Quarter No.1, Type-IV
U-Shape, TVRI Campus, Ijjat Nagar
Bareli, Uttar Pradesh
4. Sh. Rajnish Verma
S/o Sh. Om Prakash Verma
and Late Smt. Prem Verma
R/o G-27/147, Sector-3
Rohini, Delhi-110085
.....Plaintiffs
Vs.
1. Sh. Raghunath
S/o Late Sh. Khubi Ram
R/o WZ-283/152, Vishnu Garden
New Delhi-110018
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 1 / 36
2. Sh. Ved Prakash
S/o Late Sh. Khubi Ram
R/o 324A Gali No. 7,
Arvind Nagar, Ghonda
Delhi
3. Sh. Vinod Kumar
S/o Late Sh. Khubi Ram
R/o 4007, Gali No. 3
Baghi Ramchandra, Paharganj
New Delhi-110055
4. Legal Heirs of deceased Sh. Praveen Kumar
(i) Smt. Anita, Aged about 52 years
W/o Late Sh. Praveen Kumar
(ii) Mr. Yaman aged 24 years
S/o Late Sh. Praveen Kumar
Both residents of 4007, Gali No. 3
Baghi Ramchandra Paharganj
New Delhi-110055
5. Sh. Ashok Kumar
Late Sh. Khubi Ram
R/o Room No. 103 & 104
Wing A, Ganga Building,
RAM Nagari,
Pisawali Village, Hazi Malang Road
Kalyan (E)-421 306
Mumbai
.....Defendants
Date of institution :- 01.09.2014
Reserved For Order On :- 08.12.2022
Date of Decision :- 17.12.2022
SUIT FOR PARTITION
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 2 / 36
JUDGEMENT
1. Plaintiffs had filed present suit for partition against defendants alleging following facts:-
"That the plaintiffs no. 1 and 2 and the defendants no. 1 to 5 are sisters and brothers and are legal heirs of late Smt. Shanti Devi W/o late Sh. Khubi Ram. The plaintiffs No. 3 and 4 are the grand daughters of the deceased Smt. Shanti Devi. They are the children of Smt. Prem (alias Premwati) Verma, who was the daughter of Smt. Shanti Devi, who had died on 11.11.1993. It is stated that Late Smt. Shanti Devi was the absolute owner of the property No. WZ-
283/152, Vishnu Garden, New Delhi-110018 (hereinafter referred as 'suit property') measuring about 160 sq yds and full constructed on ground floor and first floor. It is stated that Smt. Shanti Devi died intestate on 11.11.1993 leaving behind the plaintiffs no. 1 and 2 and the defendants no. 1 to 5 and one more daughter Smt. Prem Verma as her only surviving legal heir. It is stated that Smt. Prem Verma also died on 25.12.2002 and leaving behind the plaintiffs No. 3 & 4 as her only surviving legal heirs.
It is stated that the husband of Smt. Shanti Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 3 / 36 Devi, Sh. Khubi Ram and defendants No. 1 to 5 died on 15.11.2005. It is stated that the estate of the deceased Smt. Shanti Devi presently comprising of the suit property devolved on the plaintiffs and the defendants and as per the assessment of the plaintiffs, the plaintiffs no. 1 and 2 and the defendants no. 1 to 5 have about 1/8th undivided share each in the estate of their mother Smt. Shanti Devi and the plaintiffs no. 3 and 4 who are the children of Smt. Prem Verma, the third daughter of late Smt. Shanti Devi are having about 1/16th undivided share each in the estate of their grandmother late Smt. Shanti Devi.
It is stated that late Sh. Khubi Ram died on 15.11.2005 and till his lifetime there was no apprehension in the minds of the plaintiffs regarding getting of their legitimate share in the estate of their deceased mother. It is stated that the father of the plaintiffs Sh. Khubi Ram also had given assurance that the daughters would get their legitimate share in the estate of the deceased at the right time. It is stated that after the death of Sh. Khubi Ram, defendant no.1 and defendant no. 5 gradually turned indifferent towards their sisters.
It is stated that the suit property comprising Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 4 / 36 of 6 rooms on the ground floor and 4 rooms and 1 hall on the first floor. It is stated that the substantial area of the building is in possession of the defendant no.1. It is stated that defendant no. 4 and 5 have also occupied one room each on the ground floor and the first floor but they are living their own in separate houses and they have locked their rooms. It is stated that besides the present suit property late Smt. Shanti Devi was also owing a property comprising of one room and shop in the building No. 2033, Gali No. 4, Kailash Nagar, Delhi-110031. She was also having agricultural land in her own name in Village Baitha, Distt. Badayun (UP). It is stated that in the month of December, 2013, defendant no. 2 informed the plaintiff no. 1 and 2 that the defendants no.1 to 5 have got transferred the agricultural land in the village which was in the name of Late Smt. Shanti Devi in their own names with the help of Local Patwari. It is stated that the property of Smt. Shanti Devi in Kailash Nagar was on rent and in the month of March, 2014 the plaintiff learn from common relatives that the defendants have even sold the said property at the back of the plaintiffs and deprived the plaintiffs from their legitimate shares. It is stated that the plaintiffs were shocked at the said dishonest Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 5 / 36 and malafide acts of the defendants as the defendants did not even inform or took the consent of their sisters. The plaintiffs are confining their claim of partition only to the suit property. It is stated that the plaintiffs have given up all claims and rights to their share in the properties of Smt. Shanti Devi in the Village Betha and Kailash Nagar, Delhi.
It is stated that in the month of May, 2014, the defendant no.1 came to the house of the plaintiff no.1 and asked her to sign some papers. On enquiry she was told that the other sister was ready to relinquish her share in the suit property. It is stated that defendant no. 1 also assured that the interest of the plaintiffs and their children shall be taken care of during the marriage of their children and other occasions if she would sign the papers. The plaintiff no.1 told his brother that she would consult her other sister and children of the deceased sister.
It is stated that in the first week of July, 2014, there was again meetings and consultants of the plaintiffs with the defendants and it was noticed by the plaintiffs that the defendants had wrongly and illegally transferred and sold, the properties of their mother in the village and in Kailash Nagar, Delhi and now the sisters would not permit to allow them Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 6 / 36 to sell this suit property and not give their shares of the plaintiffs. It is stated that this infuriated the defendant no. 1 and he threatened the plaintiffs and the husbands of plaintiffs no. 1 and 2 that they would be in deep trouble if they would have an eye on the suit property. It is stated that the defendant no. 5/Praveen also extended telephonic threats from Mumbai to the plaintiffs that if the sisters sought partition, they would face serious consequences. It is stated that plaintiffs have refused that they are not filling to relinquish their respective shares in favour of the defendants. On the other hand, the defendants are adamant and wrongfully and illegally claiming that they are the absolute owners of the suit property and the sisters have no right in the same. It is stated that the defendant no.1 who is mainly occupying the entire suit property has other two residential properties of much bigger sizes and better construction in better localities. It is stated that defendant no. 1 has threatened that he has the title papers of the suit property and he will sell, alienate and transfer the same to the third party to the detriment of the agitating sisters. It is stated that the defendants have refused to partition the suit property i.e the estate of their mother, the deceased Smt. Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 7 / 36 Shanti Devi and the plaintiffs have admitted legitimate share in the estate of Smt. Shanti Devi and the defendants are denying their right to the share of the plaintiffs and also their right to seek partition of the estate. Based on said claims plaintiffs filed the present suit. The plaintiff has prayed for the following reliefs::-
(i) pass a preliminary decree of partition determining the share of the parties in the suit property bearing No. WZ-283/152, Vishnu Garden, New Delhi-110018 measuring 160 sq yds;
(ii) pass a final decree of partition of the suit property by metes and bounds and the plaintiffs be put in physical possession of their respective share in the suit property or if the suit property cannot be partitioned by metes and bounds it be directed to be sold and the proceeds be divided amongst the parties in equal share;
(ii) any other or further orders as may be fit and proper in the facts and circumstances of the case and in the interest of justice with cost."
2. The defence of defendant no.2 was struck off vide order dated 03.03.2020.
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 8 / 363. Separate WS has been filed by defendants No. 1,3,4 and 5.
4. In his WS, defendant No.1 took preliminary objections viz. that present suit was without any cause of action, that plaintiffs have no right, title or interest in the suit property and plaintiffs have not come to the court with clean hands and concealed the material facts. It is stated that the parents of the defendants had made a verbal family settlement and as per family settlement given the suit property to the defendant no.1 before 40 years. It is stated that defendant no. 1 paying regular electricity bill in his father's name and plaintiffs and defendants are well aware of this facts and did not raise objection regarding suit property during the lifetime of the parents and after parents, defendant no.1 in adverse possession of the suit property. It is further stated that Smt. Shanti Devi was house wife and the father of the plaintiffs no.1 & 2 and father of defendants has purchased suit property from his own source and funds and the father of the defendants and plaintiff no.1 & 2 had purchased the suit property in the name of Smt. Shanti Devi, she being his wife and after purchased the suit property his father and mother had made a verbal family settlement and given the suit property to defendant no.1 and after residing some time defendant no.1 has demolished the old structure and reconstruct the building upto 2 and half floors, thereafter, defendant no.1 transferred to his mother in suit property and looked after his mother till the date of death. It is stated that defendant no.1 had legally transferred the said property. It is stated that the suit property had been given to the defendant no. 1 and plaintiffs and defendants did not raise any objection during the life time of his parents and after death of his parents regarding Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 9 / 36 share in the suit property. It is stated that the mother of the defendants did not make will in favour of the defendant no. 1 because the mother and father of the defendants made a verbal family settlement during their life time and the suit property has been given to defendant no.1 and no body has objected. It is stated that the father late Sh. Khubi Ram of plaintiffs and defendants were owner of plot No. 4546 measuring 533 sq yds. Kh. no. 87/2 Village Rithala, Laxmi Garden, Near Vijay Vihar, Sector-4, Rohini, Delhi-85. He executed a will dated 07.04.2003 and has given his property to defendants no. 1 to 5 @ 97.8 sq yds each and a 50 sq yds plot has been to the plaintiff no. 2 Smt. Bimla Devi and that plaintiff no. 2 is residing in the same plot till date. It is stated that as per will dated 07.04.2003 no share has been given to two daughters i.e. Prema @ Premawati and Chanderwati. It is stated that the mother and father of plaintiffs and defendants had given a 100 sq yds at Nihal Vihar Plot No. RZC-195, Nihal Vihar, Nangloi, Delhi-110041 to Smt. Prema @ Premawati. It is further stated that the mother and father of the plaintiffs and defendants had given a plot No C-86, J.J. Colony, Khayala, New Delhi to Smt. Chanderwati. Hence, the suit is liable to be rejected.
5. A joint WS filed on behalf of defendant No. 3 and 4 wherein it is stated that suit property was purchased and owned by the deceased Smt Shanti Devi from her own funds, in the year 1966 and till the time of her death the said property remained in the ownership and possession of Smt. Shanti Devi. Smt. Shanit Devi and her husband gradually constructed the said suit property from time to time and all the sons also Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 10 / 36 made some contributions for the construction of the property. Admittedly, Smt. Shanti Devi died intestate and the said property devolved on all the parties to the suit in equal shares. It is further stated that defendant No. 1 is in the possession of the property in dispute for the substantial portion . However, defendant No. 4 and 5 are also having one room each in their occupation on the ground floor and first floor and their household goods are lying in the said rooms. It is stated that all the parties to the suit are the joint owners of the property in dispute and the said fact has always been admitted by all the parties. It is stated that defendant No9. 1 to 5 were jointly owning a property in Paharganj, New Delhi measuring 100 sq yds having four rooms on the ground floor and four rooms on the first floor. The said property was purchased in the joint name of all the five brothers sometimes in the year 1985. It is stated that defendant No. 3 and 4 had been residing in the said property whereas defendant No. 1 and 2 were residing at different places and defendant No. 5 residing in Mumbai. It is stated that defendant No. 1,2 and 5 sold their share in the Paharganj property and defendant No. 3 and 4 also paid the additional amount to the other defendants for the extra 10 sq yds of their share and continued to stay at Paharganj. It is stated that all the five defendants could reach the unanimous decision of partitioning the Paharganj property only when the all the defendants also agreed that the present suit property of Vishnu Garden was jointly owned by all the LRs of the Smt. Shanti Devi. It was also agreed that the agreement/settlement regarding sharing of the Vishnu Garden property / property in dispute shall be put in writing and on the sale of the said Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 11 / 36 property everyone shall get its share. In these circumstances, defendant no. 4 at the instance of defendant No. 1,2, 3 and 5 purchased the stamp paper and the agreement was signed by all the defendants. Hence, there is no cause of action arose and the suit is liable to dismissed.
6. Defendant No. 5 filed his WS where he has taken the preliminary objections that the suit filed by the plaintiff is based on false and concocted facts and forged and fabricated documents, the present suit is nothing but a gross abuse of process of law and the same is liable to be dismissed with cost, the plaintiff had not come before the Court with clean hands and had suppressed the material facts from this Court. It is stated that the suit filed by the plaintiffs liable to be dismissed as an oral partition had already taken place four months before the death of the mother of the answering defendant namely Smt. Shanti Devi who dies on 11.11.1993 in the presence of all the plaintiffs and the defendants and also in the presence of the father of all the defendants namely Sh. Khubi Ram who died on 15.11.2005. It is further stated that late Sh. Khubi Ram, the father of the plaintiffs no. 1 and 2 and the defendants no. 1 to 5 and maternal grand father of the plaintiff No. 3 and 4 had also executed a will dated 07.04.2003 during his life time and had distributed his property among the defendants No 1 to 5 and had not given any share in his property to plaintiffs no. 1 to 4 because of the reason that the mother and father of the defendants had spent enough amount in the marriages of plaintiffs no. 1 and 2 and also in the marriage of the mother of plaintiff No. 3 and 4 and had also given huge dowry in their marriages. It Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 12 / 36 is stated that the site plan filed by the plaintiffs along with the suit is not correct. It is admitted by the answering defendant that Smt. Shanti Devi was absolute owner of the suit property but it is vehemently denied that she died intestate and during her life time, Smt. Shanti Devi had partitioned her property orally in the presence of her husband Sh. Khubi Ram and the plaintiffs no.1 & 2 and the father of the plaintiffs no.3 & 4 alongwith the husband of plaintiffs no.1 & 2 and some other relatives also and Smt. Shanti Devi distributed her property between defendants no.1, 2 4 & 5.
7. Plaintiff filed separate Replication to written statement of defendants no. 1 & 5 wherein contents of plaint were reiterated and version of defendants was denied. It is stated that there has been no verbal settlement and the entire story of the said settlement is imaginary and has been concocted for the first time by the defendant no.1. It is stated that the Shanti Devi purchased the said property with her own exclusive funds and savings. It is further stated that Smt. Shanti Devi and her husband were engaged in the business of selling bhatura, kulcha and cholas and all the preparations were made by Smt. Shanti Devi and her husband thereafter sold the same in the market and Smt. Shanti Devi was equally contributing in the family business and she had income from the same. It is stated that the property has been built by Smt. Shanti Devi. It is admitted that the deceased Smt. Shanti Devi did not make any Will. It is stated that father of the parties Sh. Khubi Ram had given properties to his various children is an admitted case but it is not relevant Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 13 / 36 to the present suit as the present suit is for the partition of the suit property of Late Smt Shanti Devi.
8. At the stage of admission/denial of documents, Ld. counsel for the plaintiffs admitted one document filed by defendant no.3 & 4 which is Ex D-1(Ghosna patar). Ld. counsel for defendant no.1 has admitted two documents (i.e. death certificates of Ms. Shanti Devi & Sh. Khuvi Ram Ji) of the plaintiffs which are Ex P-1 & Ex P-2. Ld. counsel for defendant no.3, Ld. counsel for defendant no.5 and Ld. counsel for defendant no.2 has admitted three documents of the plaintiffs which are Ex P-1 to Ex P-3 (Death certificate of Mrs. Prem Verma)
9. After completion of pleadings, following issues were settled vide order dated 14.07.2016 which are as under:-
(i) Whether the plaintiff is entitled to a preliminary decree of partition of suit property bearing No. WZ-283/52, Vishnu Garden, New Delhi? OPP
(ii) Whether there has been any verbal family settlement, 40 years ago, vide which suit property was given to defendant No. 1 by the parents of parties, as claimed by defendant No. 1?OPD
(iii) Whether any oral partition had taken place, among the parties, pertaining to the suit property, four months before the death of Smt. Shanti Devi, as claimed by the defendant no. 5?OPD
(iv) Whether defendant No. 1 to 5 are the owners of the suit property by virtue of Will dated 07.04.2003 executed by Khubi Ram s/o Mohan Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 14 / 36 Lal?OPD (this issue was deleted vide order dated 23.11.2016 by Ld. Predecessor of this Court and issue no.v i.e. Relief, has to be treated as issue no.iv)
(iv) Relief.
10. It is pertinent to mention here that an application under order 14 Rule 5 r/w section 151 filed on behalf of the plaintiff on the ground that issue no. 4 has been wrongly framed. Vide order dated 23.11.2016, the application is allowed that issue no. 4 is deleted from the issues framed on vide order dated 14.07.2016 and issue No. 5 be treated as issue No. 4.
11. Consequently, matter was fixed for plaintiff's evidence.
12. In order to prove his case, Plaintiffs have examined Sh. Rajnish Verma i.e. plaintiff no.4 as PW1 and tendered her evidence by way of affidavit as Ex.PW-1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
1. Ex. PW-1/1 Copy of death certificate of Smt. Shanti Devi dated 11.11.1993
2. Ex. PW-1/2 Copy of death certificate of Smt. Prem Verma dated 25.12.2002
3. Ex. PW-1/3 Copy of death certificate of Sh. Khubi Ram dated 15.11.2005
13. PW-1 was cross-examined at length by ld. Counsel for the Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 15 / 36 defendant.
14. No other witness was examined on behalf of the plaintiff and accordingly, vide order dated 19.09.2017 PE was closed and the matter was fixed for defendant's evidence.
15. In defendant's evidence, Defendant No. 1 Sh. Raghunath examined himself as DW-1. He tendered his evidence by way of affidavit as Ex.D1-W1/A in which he reiterated the contents of the written statement. DW-1 relied upon following documents:-
S.No Exhibits Nature of documents
1. Ex. D1W1/1 Electricity bill from 23.02.2017 to
23.03.2017 (which may be treated as
deleted)
2. Ex. D1W1/2 Receipt of installation of electricity
meter (de-exhibited and marked as
Mark B)
3. Ex. D1W1/3 Document dated 16.08.77 (de exhibited
and marked as Mark C)
4. Ex. D1W1/4 Water bill dated 28.12.2016 (not on
record)
5. Ex. D1W1/5 Certified copy of the Will dated
07.04.2003 (de-exhibited and marked
and Mark A)
6. Ex D1W1/P1 Water bill
7. Ex D1W1/P2 Receipt no. 879050 issued by concerned
authority pertaining to year 1983
8. Ex D1W1/P3 Receipt no. 84835 issued by DESU
9. Ex D1W1/P4 Document
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 16 / 36
Note: The documents i.e. Death certificates of death certificates of Ms. Shanti Devi & Sh. Khuvi Ram Ji and Mrs. Prem Verma are Ex P-1 to Ex P-3 and Ex D-1 i.e. Ghosna Patar (admitted at the stage of admission/denial of documents).
16. ASI Sahan Singh, No. 240/C, PS Pahar Ganj, Delhi is a summoned witness is examined as D1W2. He has brought the summoned record i.e. complaint register from 18.08.2015 to 30.12.2015, the same is exhibited as Ex. D1W-2/A.
17. Sh. Prem Kumar Pahwa, Assistant Finance Officer, BSES, Tagore Garden, Delhi is a summoned witness and is examined as D1W3. He has brought the summoned record i.e cash receipts dated 02.08.1977 and 16.08.1977 are exhibited as Ex. D1W3/A and Ex. D1W3/B respectively.
18. Sh. Ravinder Kumar, Zonal Revenue Officer, West-I, Rajouri Garden, Delhi office at C-2B, Janakpuri, Delhi is examined as D1W4. He has not brought the relevant record i.e. installation of K.No. 9663361000 of Delhi Jal Board as the said record cannot be traced.
19. Thereafter, vide separate statement of defendant No. 1, defendant's evidence was closed vide order dated 02.05.2019.
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 17 / 3620. In defendant's evidence, defendant 3 Sh. Vinod Kumar was examined as D3W1. He relied upon document i.e. original agreement dated 13.04.2007 and the same is Ex. DW-3/1 (objected to regarding mode of proof and validity of document being not signed by all parties). Thereafter, defendant No. 2, 3 and LRs of defendant No. 4 closed defendant's evidence vide order dated 02.07.2022. It is relevant to mention here that on careful perusal of the record, it has been found that the document i.e. DW3/1 was already an admitted document as Ex D-1 on behalf of defendant no.3 & 4 thus, the objection to the said document is not sustainable.
21. In defendant's evidence Defendant No. 5 Sh. Ashok Kumar was examined as D5W1 and he tendered his evidence by way of affidavit Ex D5W/A. Vide separate statement of defendant No. 5, defendant's evidence stands closed on 26.08.2022 and thereafter the matter was then fixed for final arguments.
22. Ld. counsel for plaintiff has also filed brief synopsis, same is also considered.
23. Final arguments were addressed on behalf of both the parties and after hearing final arguments, matter was fixed for judgment.
ARGUMENTS
24. During the course of final arguments, Ld. Counsel for the plaintiff submits that the family settlement as alleged by defendant no.1 & 5 Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 18 / 36 cannot be made as the settlement can be between co-owners while they were not owners only mother was the owner. He also submits that oral family settlement is concocted as no share was given to other party except defendant no.1 & 5. Further, no other family members shares are shown to be given by alleged oral settlement. It is also stated that there was no family settlement as defendant no.1 claims the settlement made 40 years ago while defendant no.5 claimed four months before the death of mother. It is also submitted that there can be no alleged family settlement without the family members being party to it as defendant no.3 & 4 denies the settlement. Lastly, it is submitted that the defendant no.1 on one hand claims to be owner of the suit property by adverse possession on the other hand, he claims to be owner of the suit property by alleged family settlement, thus, his statements are self contradictory. Further, no documents were produced by defendant no.1 with respect to his ownership of the suit property. With respect to Will, no witness is produced, so, Will is not proved in accordance with law. He further submits that the Will of the property was with regard to other property and not the suit property. Further, suit property was owned by the mother and the father does not have any right to make the Will. Lastly, it is submitted that mother dies intestate and the plaintiff being one of the legal heir is entitled for share as no settlement was ever took place between plaintiff and the defendant.
Per contra, Ld. counsel for defendants have relied upon their written statements. In addition Ld. Counsel for defendant no.1 has also submitted that oral partition has took place thereafter electricity bills, Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 19 / 36 water bills and house tax was paid by defendant no.1 and neither plaintiffs nor any other defendant was residing in the suit property. The defendant no.1 has done the construction of the suit property. The sisters has already took other property in lieu of their share and the father has done Will for other properties. Thus, the plaintiffs have no right to claim any share in the suit property. Ld. counsel for defendant no.5 has also relied on the submissions of defendant no.1 as well as submitted that the plaintiffs are not entitled for partition as oral partition of the suit property had already took place.
25. As the defence of defendant no.2 was struck off vide order dated 03.03.2020. Thus, the defence taken by defendant no.2 is not relevant as not being a part of record in the present case.
26. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 20 / 36 and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
APPRECIATION OF EVIDENCE AND ISSUE-WISE FINDINGS ARE AS UNDER:-
Issue No. 1 to 3(i)Whether the plaintiff is entitled to a preliminary decree of partition of suit property bearing No. WZ-283/52, Vishnu Garden, New Delhi? OPP
(ii)Whether there has been any verbal family settlement, 40 years ago, Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 21 / 36 vide which suit property was given to defendant No. 1 by the parents of parties, as claimed by defendant No. 1?OPD and
(iii)Whether any oral partition had taken place, among the parties, pertaining to the suit property, four months before the death of Smt. Shanti Devi, as claimed by the defendant no. 5?OPD
27. Onus of prove for issue no.1 is rested on the plaintiff and issue no.2 & 3 is rested on the defendant as the fate of the present suit is Dependant on the final finding of all the three issues as being inter- related. Accordingly, they are dealt in the following paras by common appreciation of evidence and record of this case.
28. In order to discharge his onus, plaintiffs have examined plaintiff no.4 i.e. Sh. Rajnish Verma as PW1. He has supported the contents of the plaint and replication in his evidence by way of affidavit Ex PW1/A and stated that Smt. Shanti Devi and her husband were engaged in the business of selling bhatura, kulcha and cholas and Smt. Shanti Devi was making all the preparations and contributing in the family business and she had income from the same. Even father of Smt. Shanti Devi was a Government employee and used to give money time to time to her and she was the absolute owner of the suit property and died intestate on 11.11.1993 and PW1 further relied upon death certificate dated 25.12.2002 which is an admitted document i.e. Ex P-1. Even in cross- examination, this fact remained unrebutted. Thus, the plaintiffs have discharged the onus of the fact that Late Smt. Shanti Devi was having an Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 22 / 36 independent source of income before her death.
29. It is undisputed that the plaintiff no.1 & 2 and defendant no.1 to 5 are sisters and brothers and plaintiff no.3 & 4 are daughters of Smt. Prem (@ Premwati) Verma i.e. one of the sister of plaintiff no.1 & 2 and defendant no.1 to 5.
30. It is also undisputed that Late Smt. Shanti Devi was the mother of plaintiff no.1 & 2 and defendants no.1 to 5 while grandmother of plaintiff no.3 & 4. It is also undisputed that late Sh. Khubi Ram was the husband of late Smt. Shanti Devi.
31. It is also undisputed that the suit property was purchased in the name of late Smt. Shanti Devi. However, the plaintiff alleged that the suit property to be of absolute ownership of late Smt. Shanti Devi while the defendant no.1 alleged that the suit property purchased in the name of late Smt. Shanti Devi by her husband, i.e. father of defendants and plaintiff no.1 & 2, being his wife. Thus, upto the extent that the suit property purchased in the name of Late Smt. Shanti Devi, there has been no dispute. As per Section 58 of Indian Evidence Act, a fact which parties agree need not to be proved. Since parties have agreed regarding suit property in favour of late Smt. Shanti Devi. So, this Court has no reason to doubt the said fact, regarding title of suit property in question with late Smt. Shanti Devi.
32. In the pleadings, it is stated that Smt. Shanti Devi was the absolute Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 23 / 36 owner of the suit property i.e. WZ-283/52, Vishnu Garden, New Delhi- 110018 and she died intestate on 11.11.1993. It is also stated that husband of Smt. Shanti Devi, Sh. Khubi Ram died on 15.11.2005 and the estate of deceased Shanti Devi was devolved on the plaintiffs and defendants being children (plaintiff no.1 & 2 and defendant no.1 to 5) and grand children of Smt. Shanti Devi (plaintiff no.3 & 4 being daughter of late Smt. Prem Verma). It is also stated that the husband of Late Smt. Shanti Devi i.e. late Sh. Khubi Ram had assured the daughters of their legitimate share in the estate of deceased Smt. Shanti Devi. The plaintiffs and defendants are the joint owners of the suit property and are in the joint possession of the same as there has been no partition of the property by metes and bounds between the plaintiffs and defendants. The same has been reiterated in the examination of PW1 Sh. Rajnish Verma and the documents were produced and relied by him.
33. On the other hand, the defendant no.1 has disputed the plaintiffs' claim on the basis that there has been verbal family settlement which was done 40 years ago and the suit property was purchased by the husband of late Smt. Shanti Devi as being his wife and Late Smt. Shanti Devi has no independent source of income. The father and mother has given suit property to the defendant no.1 and no share of plaintiff and other defendants remained in the suit property. It is also stated by defendant no.1 that late Sh. Khubi Ram was owner of another property i.e. plot No. 4546 measuring 533 sq yds. Kh. no. 87/2 Village Rithala, Laxmi Garden, Near Vijay Vihar, Sector-4, Rohini, Delhi-85 and he executed a will dated 07.04.2003 and has given his property to Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 24 / 36 defendants no. 1 to 5 and the father has given share to the plaintiffs and other defendants from other properties. Thus, they do not have any share in the suit property in question.
34. The defendant no.5 has disputed the alleged claim of plaintiffs on the basis that an oral partition had already taken place four months before the death of the mother, who died on 11.11.1993, in presence of all the plaintiffs and defendants and since then the defendant no.1 & 5 are in possession of suit property and he also stated the fact of the execution of Will dated 07.04.2003 by father of the plaintiffs no.1 & 2 and defendants no.1 to 5 and grand father of plaintiff no.3 & 4 and not given any share in his property to plaintiff no.1 to 4 as the mother and father of the defendants had spent enough amount in the marriages of plaintiff no.1 & 2 and mother of plaintiff no.3 & 4.
35. In the wake of rival contentions regarding oral/ verbal partition and the effect of execution of Will has to be examined and same is done in the following paras in a respective manner.
36. Before appreciation of partition, oral/verbal partition in the present matter, it is relevant to consider the position/ interpretation of partition by the Hon'ble Apex Court and Hon'ble High Court in the following cases:-
In Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 : 2020 SCC OnLine SC 641, it is observed that:-Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 25 / 36
"...135. A special definition of partition has been carved out in the Explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in Section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of Section 6, the intendment of the legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of Section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigour of very heavy burden of proof which meets the intendment of Explanation to Section 6(5). It has to be Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 26 / 36 remembered that the courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place..."
xxx xxx xxx "137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly...."
Further, in Urmila Sharma V.Jai Bhagwan and Others 2021 SCC OnLine Del 4552 : (2021) 228 AIC 359, it is observed by Hon'ble High of Delhi that:-
"...12. This defence is clearly sham and is of no consequence; it is ambiguous and self-contradictory. On the one hand, the Contesting Defendants deny the share of the Plaintiff and Defendant No. 6 and contend that they have relinquished their share, on the other hand it is averred that there has been an oral partition, and thereafter she received her share. This plea of oral partition is an acknowledgment of pre-existing rights of the Plaintiff and Defendant No. 6 in the suit properties and further the defence is vague and has to be rejected at the threshold. The written statement does not set out necessary facts and circumstances of the alleged 'oral partition'. The suit properties continue to be in the name of the deceased father. There are no documents enclosed alongwith the written statement that could indicate the Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 27 / 36 properties were partitioned and this was recorded in any public records. In Vineeta Sharma v. Rakesh Sharma, the Supreme Court was seized of the question surrounding conflicting interpretations of Section 6(5) of the HSA dealing with rights of a daughter in a coparcenary property. In the context of Section 6(5), the Court made certain observations regarding a plea of 'oral partition' and observed as follows:
"127........The provisions of Section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards.
................When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs."
(emphasis supplied)
13. In Sandeep Kohli v. Vinod Kohli, a coordinate Bench of this Court, while dealing with an Order 12 Rule 6 application in a partition suit, made certain observations as to how 'oral partitions' are to be dealt with. These observations may be germane to the present discussion:
"22. Though undoubtedly a plea of oral partition is required to be put to trial but when it is pitted against documents executed on oath and on solemn affirmation by the person taking the said plea of co-ownership, in my view to still put such plea to trial would amount to the Court allowing its process to be abused by the person taking such a plea and assisting him to abuse the process of the Court and the implicit delays in trial to reap unfair advantage to himself and to the prejudice of the other party. Not only has the counsel for the defendant No. 1 failed to state as to what the defendant No. 1, even if given an opportunity to lead evidence can prove to renege out of the situation but I am Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 28 / 36 also unable to fathom any get away for the defendant No. 1, even if granted such an opportunity.
23. Though undoubtedly there is no admission of the defendant No. 1 in his written statement filed in this suit of co-ownership and rather the defendant No. 1 in the written statement in this suit has pleaded a prior oral partition but Courts have in Uttam Singh Duggal & Co. Ltd. v. United Bank of India (2000) 7 SCC 120 : (2000) 7 SCC 120, Vivek Narayan Pal v. Sumitra Pal 2010 SCC OnLine Del 433 :
(2010) 169 DLT 443 (DB), C.N. Ramappa Gowda v. C.C. Chandregowda (2012) 5 SCC 265 : (2012) 5 SCC 265 and Maj. (Retd.) Sukesh Behl v. Koninklijke Phillips Electronics 2014 SCC OnLine Del 2313 invoked the provisions of Order XII Rule 6 CPC to negate such improbable pleas which have no chance of succeeding on the face of the admitted material on record and which pleas are taken merely to lengthen litigation and to use the said time to coerce the plaintiff into settling for less than his due.
24. Not only Order XII Rule 6 CPC but Order XV CPC also requires and empowers the Court to put a suit to trial only if a material proposition of fact or law is submitted by one party and denied by the other. The plea of the defendant No. 1 of oral partition of the property, though if proved can certainly defeat the claim of the plaintiffs of partition but is not found to be a material one, since the defendant No. 1 who has taken the said plea has in an earlier statement on oath stated contrary thereto."
14. In Virender Kumar Garg v. Ravinder Kumar Garg, a Division Bench of this Court, while deciding an appeal from a Single Judge's order whereby Appellant's suit was dismissed, noted that while the plaint disclosed an oral partition, no particulars re : the oral partition were on record; nothing was brought on record to support the plea of oral partition.
15. The Contesting Defendants placed reliance on the judgment in R.K Markan (supra) to contend that for passing a decree on admission, there has to be an unequivocal and unqualified admission in the written statement. This proposition cannot be doubted but, each case would turn on its own facts. The abovementioned judgment would not be of any avail as the findings of the Court are based on a perusal of the written statement and the material placed on record.
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 29 / 3616. It is well settled in law that transfer of immovable property can only by registered instrument and not by way of an oral agreement. The pleas raised by Contesting Defendants are therefore clearly untenable and the Court sees no reason to put the suit to trial. The Court does not find any fetter in passing a preliminary decree determining the rights of the parties since the relationship between the parties and their shares are evident from the pleadings on record. Accordingly, a preliminary decree is passed declaring that the Plaintiff and Defendant Nos. 1 to 6 shall each have a 1/7 share in the suit properties...."
37. Now, reverting back to the facts of the present case, as per defendant no.1 verbal family settlement has been done 40 years ago while as per defendant no.5 it was done four months before the death of the mother i.e. in the year 1993. Thus, there has been total contradiction w.r.t plea of oral /verbal family settlement taken by defendant no.1 & 5.
38. In the cross-examination, defendant no.5 i.e. Ashok Kumar examined as D5W1 and he has failed to corroborate the fact of partition among defendant no.1, 2, 4 & 5 and also denied that the suit property was apportioned to the share of defendant no.1 in oral partition. While defendant no.1 who examined as D1W1 has relied upon electricity bill, water bill (the same being deleted) and also an original receipt of installation of electricity i.e. Mark B and document dated 16.08.77 Mark C (a receipt of Delhi Vidhyut Praday Sansthan) and on careful perusal of those documents as their originals are not on record, the same in themselves does not prove the claim of partition as alleged by defendant no.1. Even if they be believed, they can be upto the extent of possession but on the other hand, in cross-examination of D1W1, he has admitted Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 30 / 36 that the tenants were occupying four rooms of the suit property and they were occupied by the tenants till the death of his mother in the year 1983. Further, in the cross-examination when D1W1 was confronted with water bill i.e. Ex D1W1/P-1 pertaining to the year 1983-84 (water bill of the suit property). He admitted that the same was in the name of his mother. Similarly, Ex D1W1/P2 i.e. Receipt no. 879050 issued by concerned authority pertaining to year 1983 and Ex D1W1/P3 i.e. Receipt no. 84835 issued by DESU for the suit premises in the name of his mother were also admitted by the defendant i.e. D1W1. Thus, the claim of defendant no.1 regarding exclusive possession of the suit property since 1974 is not sustainable. Even defendant no.1 admitted in his cross-examination that he has not got mutated the suit property in his name.
39. From the aforesaid discussion, it becomes clear that, necessary facts and circumstances of the alleged 'oral partition' are not brought on record. The suit property continued to be in the name of the deceased mother. There are no documents enclosed alongwith the written statement that could indicate the properties were partitioned and this was recorded in any public records.
40. Before appreciating the legality, veracity and effect of alleged Will dated 07.04.2003 i.e. Mark A, it is relevant to consider the provision of law and interpretation of them for proving of Will.
41. The relevant provisions for proving of Wills are given under Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 31 / 36 Section 68, 69, 70 & 71 of the Indian Evidence Act, 1872 which are reproduced as under:-
68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
69. Proof where no attesting witness found.--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
70. Admission of execution by party to attested document.
--The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
71. Proof when attesting witness denies the execution.--If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
42. Section 68 of the Indian Evidence Act, 1872, and its proviso portion has given the condition that except the Will no witness has to be called for proof of execution of registered document. Thus, a witness is mandatory for proving the Will.
Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 32 / 3643. On a combined reading of Section 68 with Section 69 of the Indian Evidence Act, the picture appears that if no witness is found then it has to be proved that the attestation of witness is in his own handwriting and the signature of the person executing the document is in the handwriting of that person.
44. It is also relevant in Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 the following observation was made by the Hon'ble Supreme Court:-
"....10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 : 1959 Supp 1 SCR 426] . The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions :
"1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 33 / 36
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter....."
45. On reverting back to the facts of the present case, the defendant no.1 i.e. D1W1 has placed on record certified copy of the Will i.e. Mark A executed by Late Sh. Khubi Ram when carefully perused pertains to Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 34 / 36 plot No. 4546 measuring 533 sq yds. Kh. no. 87/2 Village Rithala, Laxmi Garden, Near Vijay Vihar, Sector-4, Rohini, Delhi-85 and not to the suit property. Even there is no reference of suit property in that Will. Further, the defendant has not took the pain to prove the Will by calling an attesting witness. Thus, the defendant no.1 has failed to prove the Will i.e. Mark A. Even if the alleged Will presumed to be proved then it be valid and effective only upto the extent of the property of late Sh. Khubi Ram and not for the property in the name of late Smt. Shanti Devi while the present suit pertains to the property of Late Smt. Shanti Devi.
46. Lastly, it was noted by Ld. Predecessor of the Court while recording crossexamination of D1W1 on 29.10.2018 that D1W1 is giving evasive answers inspite of the fact that question has been explained 23 times by the Court also. Thus, the demeanor of defendant no.1 also indicated that he was not a trustworthy and reliable witness.
47. In the wake of aforesaid appreciation and conclusion, this Court discard the testimony of D1W1 being untrustworthy and unreliable
48. Thus, on the basis of aforesaid, appreciation of evidence and discussion on the position of law, the plaintiff has discharge the onus of issue no.1 on preponderance of probabilities while the defendants has failed to discharge the onus of issue no.2 & 3 on preponderance of probabilities. Accordingly, issue no.1 is decided in affirmative i.e. in favour of plaintiff and against the defendants. The issue no. 2 & 3 are Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 35 / 36 decided in negative i.e. against the defendants.
ISSUE No. 4RELIF
49. The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012) 5 SCC 370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. In view of above discussion and findings on issues no. (i) & (iii), the suit of the partition filed on behalf of plaintiffs stands decreed. While determining the share of plaintiff no.1 & 2 and defendant no.1 to 5 to the extent of 1/8th share and plaintiff no.3 & 4 being LRs of Smt. Prem Verma are entitled for 1/16th share in the suit property in question i.e. property bearing no. WZ-283/152, Vishnu Garden, New Delhi-110018.
50. Cost of the suit is also awarded in favour of plaintiff.
51. A Preliminary decree sheet be prepared accordingly.
Digitally signed by SYED Announced in the open Court SYED ZISHAN ZISHAN ALI WARSI ALI WARSI Date: 2022.12.17 17:04:47 +0530 [SYED ZISHAN ALI WARSI] Dated : 17.12.2022 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Chanderwati & Ors. Vs. Raghunath & Ors. Page No. 36 / 36