Delhi District Court
Anup Johri vs Ramesh Chand Verma Etc on 20 August, 2025
IN THE COURT OF SH. ANIL ANTIL, DISTRICT JUDGE-15,
CENTRAL, TIS HAZARI COURTS, DELHI.
CNR No.DLCT01-000013-2011
CS DJ No. 9650/2016(355/2015)
Anup Johri (Since deceased)
Through LRs
(a) Ms. Sangita Johri, W/o. Late Anup Johri
(b) Master Devansh Johri, S/o. Late Anup Johri
Aged about 14 years, through mother
(c) Master Lakshya Johri, S/o. Late Anup Johri
Aged about 9 years, through mother
All Resident of :
C/o. Madan Mohan Soni,
Near Dauji Mandir,
Main Market Kathmar,
Alwar, Rajasthan-321605
S/o. Sh. Ramesh Chand Verma
R/o. H. No. 756, Johri Gali,
Chhatta Bazaar, Mathura, U.P.
Also At :
C-8/9, Yamuna Vihar, Delhi.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 1 of 33
...LRs of Plaintiffs
Versus
1. Ramesh Chand Verma
S/o. Sh. Lakhmi Chand Verma
R/o. 756, Johri Gali,
Chatta Bazaar, Mathura, U.P.
2. Sh. Anup Johri
S/o. Sh. Ramesh Chand Verma
R/o. 756, Johri Gali,
Chatta Bazaar, Mathura, U.P.
3. Sh. Akash Johri
S/o. Sh. Ramesh Chand Verma
R/o. 756, Johri Gali,
Chatta Bazaar, Mathura, U.P.
4. Smt. Sunita
S/o. Late Sh. Narain Singh
R/o. 46/A1, Chottee More Sarai,
Railway Colony, Delhi-110006.
5. Smt. Kusum Saini
W/o. Sh. Virendra Saini
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 2 of 33
R/o. New Stolling Building, Ground Floor,
Room No.6, Isri Hasanabad Gali,
Shanti Kunj West, Mumbai-54.
...Defendants
DATE OF INSTITUTION : 21.10.2011
DATE OF RESERVING JUDGMENT : 01.08.2025
DATE OF JUDGMENT : 20.08.2025
JUDGMENT
1. The Plaintiff has filed the present suit for declaration, permanent injunction and partition against the defendants.
FACTS OF THE PLAINT
2. That the plaintiff is the eldest son of defendant no.1 and Smt. Veena Verma(deceased). The properties owned by deceased Smt. Veena Verma are in question in the present partition suit.
3. That the defendant no.1 is the father of the plaintiff and defendant no.2 and 3 are younger brothers of the plaintiff.
4. The defendant no.4 was the purchaser of the property bearing entire third floor portion with sole roof rights, part of CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 3 of 33 freehold built up property bearing no. 1889 land measuring 34 sq. yards situated at Cheera Khana Ward No. 5, Nai Sarak, Delhi-110006.
5. That Smt. Channo Devi was the maternal grand mother of the plaintiff as well as defendant no.2 and 3 (Nani) and mother- in-law of defendant no.1 was the sole absolute and rightful owner of the property bearing entire third floor portion with exclusive roof rights, part of freehold built up property bearing no. 1889 land measuring 34 sq. yards, situated at Cheera Khana Ward No.9. Nai Sarak, Delhi-110006 with a common passage and stairs.
6. That Smt. Channo Devi had purchased the suit property from Sh. Jugal Narain @ Mukki S/o. Pt. Jai Narain, by virtue of a registered sale deed dated 06.02.1971 duly registered with Sub-Registrar office vide document no. 941, Additional Book No.1, Volume No. 2522 starting from page no. 11 to 13 and it was duly registered on 08.02.1971 with the office of Sub- Registrar, Delhi. The said property is bounded as under as follows:-
East : Gali
West : Property No. 1886
North : Portion of the property of Sh.
Manohar Lal etc.
South : Property No. 1887-88
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 4 of 33
7. That the maternal grand mother of the plaintiff as well as defendant no.2 and 3 namely Smt. Channo Devi, who was also mother-in-law of defendant no.1, during her life time, had married to one Sh. Radhey Lal Verma (who is grandfather of plaintiff as well as defendant no.2 and 3( Nana), and father-in-law of the defendant no.1) and out of the said wedlock, they were blessed with two sons and one daughter namely Sh. Pradeep Verma, Sh. Vinod Verma and Smt. Veena Verma.
8. That Smt. Veena Verma D/o. Late Sh. Radhey Lal Verma and Smt. Channo Devi had during her life time married defendant no.1 according to Hindu Rites and Rituals, as per consent of her mother and father namely Smt. Channo Devi and Late Sh. Radhey Lal Verma.
9. That Smt. Veena Verma and Sh. Ramesh Chand Verma (D-1) were blessed with three children Sh. Anup Johri(plaintiff herein, born on 27.07.1984), Sh. Anuj Johri (D-2 born on 16.12.1985) and Sh. Akash Johri (D-3 born on10.04.1992).
10. That even after the marriage of Smt. Veena Verma with defendant no.1, Smt. Veena Verma was having cordial relation with her mother i.e. grand mother of plaintiff and defendant no.2 and 3, who was absolute owner of the property at the time of birth of the plaintiff as well as defendant no.2 and 3.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 5 of 33
11. That Smt. Chhanno Devi had gifted the third floor of the property at Nai Sarak, Delhi to Smt. Veena Verma vide gift deed dated 28.02.2002, document no. 930 in Additional Book No. 1, Volume No. 476, on pages 128 to 132 and which was registered on 05.03.2002 with the office of Sub-Registrar-1, District North, Delhi (suit property in question).
12. That Smt. Veena Verma had died intestate on 30.10.2005. and during her life time had never executed any Will or created any third party interest in the suit property, either by way of sale or by way of Will or Lease, Rent in any manner whatsoever.
13. That after her death, the plaintiff became one of her class-I legal heir and thereby successor to the properties owned by her at the time of her demise.
14. That somewhere around in January, 2010, the plaintiff went Nepal and started working at Nepal in a private company on the basis of Head of the department.
15. That during this time, the defendant no.1,2 and 3 became malafide and with an intent to grab the property and share of the plaintiff, connived with the defendant no.4 and sold the property to her, in absence of the plaintiff, vide sale deed, duly registered as Registration No. 7106 in book no.1, volume no. 3959 on page no. 115 to 123, which was registered on 10.08.2011, however the sale deed is dated 31.07.2011.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 6 of 33
16. That since one of the maternal uncle namely Sh. Vinod Verma of the plaintiff is residing on the ground floor, first floor and second floor of the entire property in question, the plaintiff through him became aware somewhere in the year 2011 that defendant no.4 is further trying to sell the said property to other persons.
17. That upon further inquiries, the plaintiff came to know that defendant no.1,2 and 3 had sold the property to defendant no.4 through registered sale deed dated 31.07.2011, at sr. no. 7106 in book No.1, Volume No. 3959 on page No. 115 to 123, registered on 10.08.2011.
18. That when the plaintiff came to India in the month of October, 2021, it was revealed to him that the defendants no.1,2, 3 and defendant no.4 have falsely executed the sale deed wherein they have stated as under (in terms of sale deed):-
"And Whereas said Smt. Channo Devi had gifted the aforesaid property to her real daughter Smt. Veena Verma D/o. Late Sh. Radhey Lal Verma and W/o. Sh. Ramesh Chand Verma, by virtue of gift deed dated 28.02.2002 duly registered as document no. 930, in Addl. Book No.1, Volume No. 476, on pages 128 to 132 and registered on 05.03.2002, in the office of the Sub-
Registrar-1, Distt. North, Delhi.
And Whereas said Smt. Channo Devi during her life time had made a Will on 24.06.2005 bequeth the aforesaid property in favour of (1) Sh. Ramesh Chand Verma (2) Sh. Akash Johri (3) Sh. Anuj Johri, the vendors herein, and CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 7 of 33 said she died on 30.10.2005 at Mathura, U.P. without revocation of the aforesaid Will and executing the fresh Will. Thus, the vendors became the absolute, sole, exclusive and rightful co-owners of the aforesaid property in equal share."
19. That the plaintiff thereafter made a complaint to SHO PS Kotwali vide DD Entry No. 28A dated 16.10.2011 at 9.15 p.m. and has also made a complaint to ACP District North, Delhi as well as DCP District, North on 18.10.2011.
20. That the defendants have executed a false, fabricated, concocted sale deed inter-se between themselves on 31.07.2011.
21. That from paras as mentioned above, it is quite evident that Smt. Channo Devi i.e. grandmother of the plaintiff as well as defendant no.2 and 3 had gifted the suit property to Smt. Veena Verma, mother of the plaintiff and defendant no.2, 3 and wife of defendant no.1, therefore, no Will can be executed by Smt. Channo Devi after getting the property to Smt. Veena Verma.
22. That on inquiry, his maternal grand mother also denied having executed any Will on 24.06.2005, and the affidavit maternal grand mother Smt. Channo Devi, is enclosed with the plaint.
23. That from the sale deed, it is reflected that Smt. Channo Devi had expired on 30.10.2005 at Mathura, U.P., however, she CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 8 of 33 was still alive and the said sale deed has been executed by way of fraud.
24. That constrained thereby, and being class-I legal heir of deceased Smt. Veena Verma, the plaintiff has filed the present suit seeking partition of the properties owned by Smt. Veena Verma.
25. That during pendency of the present suit, it was further revealed that Smt. Veena Verma was also owner of 4/5 th share of the property bearing H. No. 756 and 757, Johari Gali, Chhata Bazar, Mathura, U.P. Necessary amendments in the plaint were carried out. This property was also included by the plaintiff for partition amongst legal heirs in the present case.
26. That the plaintiff has also prayed for permanent and mandatory injunction restraining from alienating or transferring or creating any third party interest in the suit properties.
27. That the suit is valued at Rs. 3,70,000/- as the sale deed executed between the defendants for Rs. 3,70,000/- and appropriate Court fee for relief of declaration is Rs. 6,004/- and suit has been valued at Rs.200/- for the relief of mandatory injunction and appropriate Court fee of Rs.30/- have been paid and for the relief of permanent injunction, suit is valued at Rs. 200/- and appropriate court fee Rs. 30/- is affixed.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 9 of 33
28. Summons of the suit were issued to the defendants. The defendants were duly served on 05.11.2011 and the defendants put their appearance and filed their WS.
WRITTEN STATEMENT BY DEFENDANT NO.1 TO THE AMENDED SUIT OF THE PLAINTIFF
29. That the suit of the plaintiff is not maintainable in the eyes of law and the same is an abuse of process of law and is liable to be dismissed and that the plaintiff has not come with clean hands and has concealed the material facts from the Court and the suit of the plaintiff is based on falsehood and the suit is liable to be dismissed.
30. That the plaintiff has no locus standi to file the present suit against the defendants as the plaintiff has no right, title or interest in the suit property and that the suit of the plaintiff is without any cause of action against the defendants and the same is liable to be dismissed Under Order VII R 10 CPC.
31. That the ownership of property at Nai Sarak, New Delhi of Smt. Veena Rani through gift deed executed by Smt. Chhanno Devi in her favour, was not disputed by the defendants.
32. That later on, Smt. Veena Verma during her lifetime executed a Will dated 22.06.2004 in favour of defendant no.1 Sh. Ramesh Chand Verma and after the death of Smt. Veena CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 10 of 33 Verma on 30.10.2005, the suit property devolved upon her husband/defendant no.1.
33. That the defendant no.1 had thereby become the absolute and exclusive owner of the suit property and the plaintiff has no right, title or interest or lien in the suit property.
34. That the defendant no.1 was having 1/5th share through inheritance in the suit property situated at Mathura and remaining 4/5th of the share was purchased by him (D-1) in the name of his wife Smt. Veena Verma and thereby, he was also absolute owner of the said property and competent to transfer/sell it further.
35. Other objections were also taken that the plaintiff has not valued the suit property nor has affixed the requisite Court fee on it as such, the suit of the plaintiff is liable to be dismissed in limini and that the suit of the plaintiff is barred by limitation.
WRITTEN STATEMENT BY DEFENDANT NO. 2 AND 336. Defendant no.2 and 3 have also taken almost similar objections and stand so taken by the defendant no.1, wherein they have not denied the execution of the sale deed Ex. PW-1/8 in favour of defendant no.4.
37. With respect to property at Mathura, it is stated that it was purchased by their father/defendant no.1 in the name of their CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 11 of 33 mother Smt. Veena Verma, who was a house wife and had no independent source of income.
38. That there is no cause of action in favour of the plaintiff and against the defendants, amongst other preliminary objections.
WRITTEN STATEMENT BY DEFENDANT NO.4
39. That the present suit is not maintainable in the eyes of law and is not maintainable in the present form as the plaintiff has come to the Court with clean hands.
40. That the defendant no.4 has purchased the property in question in good faith from the defendant no.1,2 and 3; defendant no.4 was not informed about any other surviving legal heirs of deceased Smt. Veena Verma; that the present suit is not maintainable as the plaintiff is not in possession of the suit property and the plaintiff has not paid the Court fee, which is mandatory as per provisions of law.
41. That the suit of the plaintiff has not been signed and verified in accordance with High Court Rules and hence, the suit of the plaintiff is liable to be dismissed with cost.
42. That the dispute is between the plaintiff and defendant no.1 to 3 and the defendant no.4 has no concern with the same as the defendant no.4 has paid purchased the suit property in good faith at the market rate through a registered sale deed duly executed by the defendants.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 12 of 33
43. That the present suit is not maintainable and same is liable to be dismissed.
44. Defendant no.5 did not appear despite being served and was proceeded ex-parte.
45. In Replication, the plaintiff has denied the preliminary objections and contentions so raised by the defendants and their written statements, and has reiterated the averments and allegations of the plaint.
46. Perusal of the record reveals that the issues were framed vide order dated 03.06.2015 and again vide order dated 10.10.2022, (seems to be inadvertently), and lastly additional issues on 01.12.2023. Some of them were overlapping.
47. From the pleadings of the parties, the following relevant issues were framed:-
(1) Whether the Will executed by Smt. Veena Verma in favour of defendant no.1 is a forged Will, if so, its effects? OPP (2) Whether the sale of the third floor of property bearing no. 1889, Cheera Khana, Ward No.5, Nai Sarak, Delhi by defendant no. 1,2 and 3 in favour of defendant no.4 is illegal, if so, its effect? OPP (3) Whether the defendant no.1 had become the owner of the abovementioned suit property by virtue of the registered Will and was on account of this reason, competent to sell this property to defendant no.4, if so, its effect? OPD CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 13 of 33 (4) Whether the plaintiff is co-sharer in respect of the abovenoted suit property as well as in respect of House No. 756 and 757, Johari Galim Chhatta Bazar, Mathura, as prayed in the plaint? OPP (5) Whether the plaintiff is entitled to a declaration, as prayed in prayer (a) of the suit? OPP (6) Whether the plaintiff is entitled to the decree of permanent injunction as prayed in prayer (b) of the suit.? OPP (7) Whether the plaintiff is entitled to a decree of partition, as prayed in the plaint? OPP (8) Whether the plaintiff is entitled to declaration thereby declaring the sale deed registered as registration no.
7106 in the book no.1, Volume No. 3959 dated 10.08.2011 in respect of the suit property nullity? OPP (9) Whether the plaintiff is entitled to declaration thereby declaring the sale deed dated 18.09.2023, Bahi No.1, Zild No.9910 pages 55 to 78 at sr. no. 16802 for property bearing House no. water tax 37/3, Gali Dashavtar, Mathura, also known as property bearing no. 756-757, Johri Gali, Chatta Bazar, Mathura, U.P.-281001 as null and void? OPP (10) Costs.
(11) Relief.
48. It may be noted that when the matter was at the stage of final arguments, defendant no.1 Sh. Ramesh Chand had expired and an application U/O. 6 R 17 CPC seeking amendment in the plaint was filed and allowed by the Court, wherein the plaintiff had thereafter claimed 1/3rd share in the suit CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 14 of 33 properties, he being one of the legal heirs of defendant no.1, other being defendant no.2 and 3.
EVIDENCE OF THE PLAINTIFF
49. The Plaintiff has led his evidence and examined two witnesses i.e. PW-1 Ms. Sangita Johri and PW-2 Vinod Kumar in support of his case. PW-1 was duly cross-examined by ld. Counsel for the defendant no.1. Other defendants are ex-parte.
50. PW-1 is Sangita Johri wife of late Sh. Anup Johri. She tendered her evidence by way of affidavit Ex. PW-1/A and relied upon the documents :-
(i) Ex. PW-1/1 is death certificate of plaintiff.
(ii) Ex. PW-1/2 to Ex. PW-1/4 are voter ID, Driving License and Caste certificate dated 16.10.1996 of plaintiff Anup Johri.
(iii) Ex. PW-1/5 is site plan of the property at Nai Sarak.
(iv) PW-1/6 is certified copy of gift deed registered on 05.03.2002.
(v) Ex. PW-1/7 is death certificate of Smt. Veena Verma.
(vi) Ex. PW-1/8 is certified copy of sale deed registered on 10.08.2011.
(vii) Ex. PW-1/9 is affidavit of Smt. Chhanno Devi dated 20.10.2011.
(viii) Ex. PW-1/10 is copy of FIR No. 207/2012.
(ix) Ex. PW-1/11 is certified copy of sale deed dated 31.01.1998.
(x) Ex. PW-1/12 is certified copy of sale deed dated 18.09.2013.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 15 of 33
51. The document i.e. FIR which is mentioned as Ex. PW-1/10 was de-exhibited and marked as Mark A. PW-1 was duly cross-examined by ld. Counsel for defendant no.1 only. Other defendants had stopped appearing.
52. PW-2 is Sh. Vinod Kumar. He tendered his evidence by way of affidavit Ex. PW-2/A. He was duly cross-examined by ld. Counsel for defendant no.1.
53. PE was closed vide order dated 26.05.2023.
54. In defence, DW-1 Sh. Ramesh Chand Verma tendered his evidence by way of affidavit Ex. DW-1/A and relied upon the documents Mark A to Mark D. Witness was duly cross- examined by ld. Counsel for plaintiff.
55. DE was closed vide separate statement of defendant no.1 dated 28.08.2023.
56. The Court has heard the arguments addressed by all the parties and perused the judicial file.
57. My issue wise findings are given as under :-
ISSUE NO. 1 & 3(1) Whether the Will executed by Smt. Veena Verma in favour of defendant no.1 is a forged Will, if so, its effects? OPP & (3) Whether the defendant no.1 had become the owner of the abovementioned suit property by virtue of the registered Will CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 16 of 33 and was on account of this reason competent to sell this property to defendant no.4, if so, its effect? OPD
58. Both these issues are taken together as they are interconnected and question of execution of Will is common in both the issues.
59. The case of the plaintiff is that the grandmother of the plaintiff namely Ms. Veena Verma, had died intestate and had not executed any Will, nor had she created any third party interest in the suit property either by way of sale or lease or any other testamentary document.
60. The defendant no.1 (since deceased) was father of the plaintiff and defendant no.2 and 3 are his younger brothers. While opposing the case of the plaintiffs, it is contended by them that Smt. Veena Verma had executed a Will in favour of the defendant no.1 Sh. Ramesh Chand Verma and thereby they became the absolute owner of the suit properties in question.
61. The averments of the plaint were proved on record in terms of evidence by way of affidavit by PW-1 Smt. Sangeeta Johri wife of plaintiff Sh. Anup Johri (since deceased), wherein the family tree of the siblings and legal heirs of Smt. Veena Verma have been reiterated in verbatim.
62. PW-1 further stated that Smt. Veena Verma had died intestate and never executed any Will on 24.06.2005, the one relied CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 17 of 33 upon by the defendants in support of their case and to contradict the plaintiffs.
63. She also proved the factum of death of Smt. Veena Verma on 23.10.2005 in terms of death certificate Ex. PW-1/7.
64. PW-1 further stated that the grandmother of the plaintiff and defendant no.2 and 3, Smt. Chhanno Devi had gifted the property in question to Smt. Veena Verma, mother of the original plaintiff Sh. Anup Johri and defendant no.2 and 3 and wife of defendant no.1. The factum of gift of the property situated at Nai Sarak, Delhi, by Smt. Chhanno Devi to Smt. Veena Verma is not disputed by the defendants.
65. PW-1 has disputed the Will alleged to have been executed by Smt. Veena Verma in favour of the defendant no.1, 2 and 3. In support of her statements, she has relied upon affidavit dated 20.10.2021 sworn by Smt. Chhanno Devi wherein she has admitted to have gifted the suit property to her daughter namely Smt. Veena Verma, but has denied categorically to have created any Will in favour of defendant no.1,2 and 3. During proceedings, Smt. Chhanno Devi expired and therefore, she could not step into the witness box.
66. PW-1 further testified that Will so relied upon by the defendants is false, forged and fabricated.
67. In the cross-examination conducted on behalf of defendant no.1, PW-1 again specifically denied that the plaintiff was CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 18 of 33 ever disowned by his father or that her mother-in-law Smt. Veena Verma had executed any Will of the suit property at Nai Sarak, New Delhi.
68. With respect to suit property at Mathura, PW-1 also denied that the defendant no.1 had himself given the consideration amount to purchase 4/5 share in the property situated at Mathura, U.P., which was purchased in the name of Smt. Veena Verma.
69. Plaintiff has also examined PW-2 Sh. Vinod Kumar, maternal uncle of plaintiff (brother of Smt. Veena Verma) in support of his case, wherein he has also reiterated and reaffirmed the facts deposed by PW-1. He has also specifically stated that his sister had never executed any Will in favour of defendant no.1 Sh. Ramesh Chand, during his cross-examination by defendant no.1.
70. PW-2 further testified that the property no. 756-757 at Mathura was also purchased by his sister Smt. Veena Verma after selling her jewellery and other articles including the contribution made from her stridhan. He also stated that a complaint was made by the plaintiff Anup Johri at PS Kotwali on 16.10.2011 when he became aware that the property at Nai Sarak, New Delhi has been fraudulently sold by the defendant no.1 to defendant no.4 (deceased, thereafter ex-parte).
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 19 of 33
71. With these facts proved on record, and the defence so set up by the defendants, the onus had shifted upon the defendants to establish the factum of execution of Will dated 22.06.2004 in favour of defendant no. 1 to 3 to claim ownership rights and their right to transfer it further for consideration.
72. Defendant no.1 had entered into the witness box and deposed through his affidavit Ex. D1W1, wherein he reiterated the facts in terms of his WS, and the fact that since he became the owner of the suit property on the basis of the Will, he was competent and thereafter sold the properties in question to the defendant no.4 vide sale deed dated 31.07.2011 (Delhi property).
73. I may state that the original Will in question dated 22.06.2004 has never seen the light of the day. The original Will was never produced before this Court, nor as stated produced before any other forum by the defendants. A copy of the Will was filed and marked as Mark A.
74. DW-1 stated that the original copy of the Will in question is missing and he is not able to find it, but failed to give any satisfactory answers as to when and how it got misplaced by him. He was also not aware, if any police complaint was filed in that regard or not.
75. Defendants claim that the original Will got misplaced. But no positive and cogent evidence has come on record to establish CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 20 of 33 the fact how, when and where, the said Will got misplaced or lost.
76. Further, at this stage, a useful reference be made to the statutory provisions of Indian Succession Act and the Indian Evidence Act which primarily governs the proof of execution of a Will, in terms of their defence so put up by the defendants.
77. The requirements under Section 63(c) Succession Act:-
(i) The Will must be signed by the testator or by someone in his presence and at his direction.
(ii) The signature must be placed in such a position that it appears that the document was intended to operate as a Will.
(iii) The Will must be attested by atleast two witnesses.
(iv) Each witness must have-
. Seen the testator sign, or receive a personal acknowledgment of the signature.
. Signed in the presence of the testator.
78. Section 68 of the Indian Evidence Act "Section 68 of the Indian Evidence Act, 1872, deals with the proof of execution of documents that are required by law to be attested. It mandates that if a document needs to be attested, at least one attesting witness must be called to prove its execution, provided the witness is alive, subject to the court's process, and capable of giving evidence. However, an exception exists for registered documents, particularly wills,where attesting witnesses may not be required unless execution is specifically denied."
79. Section 69 of the Indian Evidence Act CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 21 of 33 "Section 69 of the Indian Evidence Act, 1872, deals with proof of a document where no attesting witness can be found or is available. It essentially provides an exception to the strict rule of attestation required under Section 68, allowing for proof of a document's execution even when attesting witnesses are not available."
80. Section 71 of the Indian Evidence Act "Section 71 of the Indian Evidence Act, 1872, deals with proving the execution of a document when an attesting witness denies or fails to recollect it. It allows for the document's execution to be proved through other evidence if the attesting witness called for that purpose denies or doesn't remember the execution."
81. In terms of conjoint reading of Section 68,69 and 71 of the Indian Evidence Act, read with Section 63 of Succession Act, w.r.t. proof of the Will in the Court, the propounder of the Will must examine atleast one attesting witness who identifies testator signature and states both witnesses signed in the presence of testator.
82. If no attesting witness is available, the handwriting of any one of the attesting witnesses and the signature of the person executing that the document is in or the testator must be proved. (Sec. 69)
83. And, if the attesting witness denies or does not recollect the execution then it may be proved by other corroborative evidence i.e. registration record, scribe testimony, medical records etc.
84. The burden of proof of the Will in question that the Will has been validly executed and is a genuine document was on the CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 22 of 33 defendants, the one who are setting their defence against the plaintiffs, to claim the ownership thereto. The defendants were also required to prove that the testatrix has signed the Will and she put her signature out of her own free will having a sound disposition of mind and understood the nature and effect thereof.
* A useful reference in that regard be made to decision of Hon'ble Supreme Court in Moturu Nalini Kanth vs. Gaimedi Kaliprasad, through LRs, (2023) SCC OnLine SC 1488, Murthy and Others vs. C. Sarambal and Others, (2022) 3 SCC 209; H. Venkatchala Iyengar vs. B.N. Thimmajamma and Others, (1959) SC 443 amongst others on same issues.
85. In the present case, no effort whatsoever has been made by the defendants to examine any attesting witness or any other witness in terms of above noted statutory requirements. The status of attesting witnesses, whether alive or not, has also not been produced on record. The said witnesses were not even summoned by the defendants in support of their case. No effort was made by the defendants to prove the execution of Will by any other evidence. The original Will as noted above, was never produced before the Court.
86. This Court accordingly, finds that the defendants have failed to prove that the testatrix has executed her last Will and Testament in presence of two attesting witnesses while possessing good health and fit state of mind, or by examining CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 23 of 33 any attesting witness or any other witness in support of his case to establish the factum of execution of Will by Smt. Veena Verma.
87. The execution of Will not proved. And in absence thereof, the Will Mark A can be of no assistance to the case of the defendants.
88. Further, during cross-examination, material contradictions in the testimony of defendant no.1 have emerged, wherein at one point of time, DW-1 stated that the sale deed dated 31.07.2011 in favour of Smt. Sunita (defendant no.4) Ex. PW-1/7 was executed solely by him.
89. On being confronted with the said sale deed, DW-1 conceded to the fact that the sale deed of the said property (Delhi) has been executed not only by him but also by defendant no.2 and 3 in favour of defendant no.4.
90. The defendant no.1 stated that he was exclusive owner of the property transferred to defendant no.4 but failed to show as to how and in what capacity the sale deed was also executed by defendant no.2 and 3. There is no mention of any right or interest in the property being bequeathed in favour of defendant no.2 and 3, if any, by the Will alleged to be executed by Smt. Veena Verma.
91. DW-1 was also evasive in his cross-examination on the Will in question with regard to its date and month of its execution.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 24 of 33 He admitted that there is no reference of the Will in the sale deed dated 18.09.2013, of the property situated at Mathura executed in favour of one Smt. Kusum Saini (defendant no.5).
92. In the light of above discussion, appreciating the evidence adduced by the parties, the defendants have failed to discharge their onus to prove the valid execution of Will in question.
93. Whereas, it is admitted fact that Smt. Veena Verma was the absolute owner of the property in question (Delhi) vide gift deed executed by her mother Smt. Chhanno Devi. The said fact is not disputed by the parties.
94. The present issues no. 1 and 3 accordingly stand decided in favour of the plaintiff and against the defendants.
ISSUE NO. 2 & 8(2) Whether the sale of the third floor of property bearing no.
1889, Cheera Khana, Ward No.5, Nai Sarak, Delhi by defendant no. 1,2 and 3 in favour of defendant no.4 is illegal, if so, its effect? OPP & (8) Whether the plaintiff is entitled to declaration thereby declaring the sale deed registered as registration no. 7106 in the book no.1, Volume No. 3959 dated 10.08.2011 in respect of the suit property nullity? OPP
95. Both these two issues are taken up together as common discussion and appreciation shall be required to answer these CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 25 of 33 issues, and moreover both are overlapping and leads the same outcome.
96. The burden to prove these issues was upon the plaintiff.
97. The fact that the plaintiff and defendant no.1 to 3 are all class-I legal heirs and entitled to inherit the property of the deceased Smt. Veena Verma is not disputed.
98. Thereby, consequent to the findings of issue no. 1 and 3 and above discussion, wherein defendants have failed to prove the legal and valid execution of Will by Smt. Veena Verma; and she died without any making testamentary disposition of her property, the property at Nai Sarak in her name devolves upon her LRs in equal proportion entitling the plaintiffs and defendant no.1, 2 and 3 equal share to the extent of ¼ each in her property.
99. Further, defendant no.1,2 and 3 were having undivided equal share in the property in question, and they have not disputed the transfer of their legal rights and interest in the suit property at Delhi for a valid consideration, the registered sale deed dated 10.08.2021 of the property in question Ex. PW-1/8 thereby remains valid to the extent of their (defendant no.1, 2 and 3) share i.e. ¾th share.
100. In so far as, remaining share i.e. ¼ th of plaintiff is concerned, defendant no.1, 2 and 3 had no right or interest, nor were legally competent, to transfer the share of the plaintiff in the CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 26 of 33 suit property, and to that extent i.e. equivalent to the share of the plaintiff, the sale deed dated 28.07.2011 Ex. PW-1/8 (Colly) shall deemed to be invalid.
101. To be specific, sale deed registered as registration no. 7106 in the book no.1, Volume No. 3959 dated 10.08.2011 Ex. PW-1/8, executed by defendant no.1,2 and 3 in favour of defendant no.4 Smt. Sunita is legal and valid only to the share of the defendants, i.e. to the extent of ¾ th share of the total, and invalid to the extent of ¼th share of the plaintiff w.r.t. the property in question situated at Delhi.
102. The present issues no. 2 and 8 accordingly stand decided in terms of above observations and findings accordingly.
ISSUE NO. 4 AND 9(4) Whether the plaintiff is co-sharer in respect of the abovenoted suit property as well as in respect of House No. 756 and 757, Johari Galim Chhatta Bazar, Mathura, as prayed in the plaint? OPP & (9) Whether the plaintiff is entitled to declaration thereby declaring the sale deed dated 18.09.2023, Bahi No.1, Zild No.9910 pages 55 to 78 at sr. no. 16802 for property bearing House no. water tax 37/3, Gali Dashavtar, Mathura, also known as property bearing no.756-757, Johri Gali, Chatta Bazar, Mathura, U.P.-281001 as null and void? OPP
103. As discussed above, the finding on these issues is also consequential to the findings of above discussed issues, wherein it has been observed that Smt. Veena Verma had not CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 27 of 33 executed any Will, specifically Will dated 24.06.2005, and that she had died intestate leaving behind plaintiff and the defendants (defendant no.1 to defendant no.3) as her legal heirs.
104. It is not disputed that Smt. Veena Verma was having 4/5 th share in the property situated at house no. 506-507, Mathura by virtue of registered sale deed dated 31.01.1998, Ex. PW-1/11 (Colly).
105. Defendant no.1 was the owner of 1/5th share in the said property through inheritance from his father. The fact of his 1/5th share is not disputed by the plaintiff and other parties.
106. But defendant no.1 claims that he had purchased the said share of 4/5th in the property in the name of his wife Smt. Veena Verma from his own funds and earnings.
107. Importantly, during his examination, the defendant no.1/DW-1 admits that he has not produced any document or any other receipt to show the payment of the consideration amount of the property situated at Mathura, purchased in the name of Smt. Veena Verma with respect to 4/5 th share, was made by him.
108. He admitted that he has not filed any case seeking declaration of ownership of the said property, despite the fact that the sale deed was executed in favour of Smt. Veena Verma.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 28 of 33
109. It is evident from the sale deed dated 31.01.1998 Ex.
PW-1/11 that Smt. Veena Verma (deceased) had 4/5 th share of the undivided share of Mathura property known as house no.756), out of which defendant no.1 has sold 50.7 sq. metre of the property to defendant no.5 by virtue of sale deed 18.09.2013 Ex. PW-1/12.
110. The sale deed dated 31.01.1998 Ex. PW-1/11 is a registered document in favour of Smt. Veena Verma raising presumption of ownership in her favour. No evidence has been led by the defendant no.1 to substantiate the payment of consideration to purchase the said property by him, and in absence thereof, it cannot be said that defendant no.1 is/was the sole and absolute owner of the 4/5 th share, in addition to his 1/5th share, in the property situated at Mathura.
111. In the given facts, plaintiff being one of the class-I legal heirs of deceased Smt. Veena Verma is the co-owner and was having undivided share, as on the date of demise of Smt. Veena Verma, and thereby entitled to ¼ th share of 4/5th share, of the total share of deceased Smt. Veena Verma.
112. Defendant no.1, defendant no.2 and defendant no.3 being other class-I legal heirs are also entitled to ¼th share each out of total 4/5th share of Smt. Veena Verma. The property is admeasuring equivalent to 171.13 sq. metre.
113. It is worth to mention that subsequent to filing of the suit, defendant no.1 had sold 50.7 sq. metre of the said property at CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 29 of 33 Mathura to defendant no.5 by virtue of registered sale deed dated 18.09.2013 Ex. PW-1/12.
114. Defendant no.1 was having 1/5th share + ¼ th share of 4/5th in the suit property on the demise of Smt. Veena Verma.
115. So, the transfer of ownership of 50.7 sq. mtrs of the property by defendant no.1 in favour of defendant no.5 shall be deemed to have been transferred out of his undivided total share in the aforesaid property.
116. The sale deed dated 18.09.2013, Bahi No.1, Zild No. 9910 pages 55 to 78 at sr. no. 16802, executed by the defendant no.1 in favour of defendant no.5 w.r.t. 756 and 757 Ex. PW-1/12 is valid to the extent of undivided share of defendant no.1 i.e. 1/5th +1/4th of 4/5th share.
117. Whereas, with respect to remaining share, the plaintiff, defendant no.2 and 3 are equally entitled to ¼ th of 4/5th share in the said property being class-I legal heirs of deceased Smt. Veena Verma. Defendant no.1 had no right or interest or power to transfer their share to defendant no.5 or to any other person, and the sale deed Ex. PW-1/12 to the extent of shares of plaintiff, defendant no.2 and 3 i.e. 1/4th share each of 4/5 th share, is invalid.
118. This issue stands decided in favour of the plaintiff in terms of the above discussion.
ISSUE NO. 5,6 & 7CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 30 of 33 (5) Whether the plaintiff is entitled to a declaration, as prayed in prayer (a) of the suit? OPP (6) Whether the plaintiff is entitled to the decree of permanent injunction as prayed in prayer (b) of the suit.? OPP & (7) Whether the plaintiff is entitled to a decree of partition, as prayed in the plaint?
119. These issues are also overlapping and consequent to findings on aforesaid issues.
120. Accordingly, in view of observations and findings on the above discussed issues, the plaintiff is entitled to a decree of permanent injunction against the defendants to the extent of his share in the suit properties.
121. The plaintiff is also entitled to decree of partition of the suit properties wherein the plaintiff (LRs of plaintiff) and defendants no. 1,2 and 3 were entitled to ¼ th share each at the time of filing of the suit, whereby defendants are restrained from parting with the possession or create any third party right or interest in the suit properties to the extent of share of plaintiff thereto.
122. It may also be noted that the plaintiff and defendant no.1 have since then expired. LRs of plaintiff have been brought on record, whereas the original plaintiff and defendant no.2 and 3 were from the LRs of defendant no.1, they being his sons.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 31 of 33
123. Defendant no.1 had already sold his share in both the suit properties before his death, and therefore, no further share of the defendant no.1 remains to be distributed or partitioned. Accordingly, the prayer of the plaintiff in terms of his last amendment in the plaint, on demise of defendant no.1, to seek partition of share of defendant no.1 and to claim total 1/3rd share in the suit property thereby stands declined.
124. These issues stand accordingly decided in favour of the plaintiff in terms thereof.
RELIEF
125. In view of the aforesaid findings, the suit of the plaintiff is decreed to that extent and a preliminary decree of partition is passed thereby holding that :-
(i) Plaintiff Anup Johri (through LRs), defendant no. 1 Ramesh Chand Verma (through LRs), defendant no. 2 Anuj Johri and defendant no. 3 Akash Johri are entitled to ¼ th share each in the suit property at Nai Sarak, Delhi, as shown in site plan.
(ii) Plaintiff Anup Johri (through LRs), defendant no. 1 Ramesh Chand Verma (through LRs), defendant no. 2 Anuj Johri and defendant no. 3 Akash Johri are entitled to ¼ th share each in 4/5th share of deceased Smt. Veena Verma in property bearing House No. 756 & 757, Johri Gali, Chhatta Bazar, Mathura, U.P.-281001.
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 32 of 33
126. A preliminary decree be drawn accordingly.
Announced in the open Court (ANIL ANTIL)
on 20th August, 2025 DJ-15/CENTRAL/THC
DELHI/20.08.2025
Digitally
signed by
ANIL ANIL ANTIL
Date:
ANTIL 2025.08.20
16:10:18
+0530
CS DJ No. 9650/2016 Anup Johri vs. Ramesh Chand Verma etc. Page No. 33 of 33