Delhi District Court
Qayyum Khan vs Manjit Kaur Thru Lrs Gurvinder Kaur on 26 December, 2025
DLSE010120122022
THE COURT OF DISTRICT JUDGE-03
DISTRICT: SOUTH-EAST, SAKET COURTS, NEW DELHI
(PRESIDED OVER BY: SH. SACHIN MITTAL, DHJS)
CS DJ No.1080/22
In the matter of:
Qayyum Khan,
S/o late Chand Khan,
R/o 258-A, Near Post Office,
Basti Hazarat Nizamuddin,
New Delhi-110013 ... Plaintiff.
VERSUS
1. Manjit Kaur (since deceased), W/o Balbir Singh
Through LRs: ... Defendant no.1
(a) Gurvinder Kaur, D/o late Smt. Manjit Kaur
W/o Sh. G.S. Lamba,
R/o WZ-12A, GF, Krishana Park,
Gali No. 13, Tilak Nagar,
New Delhi-110018.
(b) Bhupinder Kaur, D/o late Sh. Ranjit Singh
(son of late Smt. Manjit Kaur)
(c) Gagandeep Singh, S/o late Sh. Ranjit Singh
(son of late Smt. Manjit Kaur)
(d) Sukhmeet Kaur, D/o late Sh. Ranjit Singh
(son of late Smt. Manjit Kaur)
(e) Bhupinder Singh, S/o late Manjit Kaur
All R/o of 58, Church Road,
Bhogal, Jungpura,
New Delhi-110014.
CS DJ No. 1080/22 QAYYUM KHAN Page 1 of 61
v. Digitally signed
by SACHIN
MANJIT KAUR (SINCE DECEASED) BY LRS AND ORS.
SACHIN MITTAL
Date:
MITTAL 2026.01.08
16:56:31
+0530
2. Devender Kaur, W/o Sh. Preetpal Singh,
R/o of 58, Church Road,
Bhogal, Jungpura,
New Delhi-110014. ... Defendant no.2
3. Yakub Khan, S/o late Chand Khan,
R/o B-258, near Post Office,
Basti Hazarat Nizamuddin,
New Delhi-110013. ... Defendant no.3
4. Ayub Khan (since deceased), S/o late Chand Khan,
Through LRs: ... Defendant no.4
(a) Yusuf Khan (son)
(b) Arif Ali Khan (son)
(c) Asif Ali Khan (son)
(d) Saif Ali Khan (son)
(e) Sheikhum Nissa (daughter)
All R/o C-258, Near Post Office,
Basti Hazarat Nizamuddin,
New Delhi-110013.
5. Habib Khan (since deceased), S/o late Chand Khan,
Through LRs: ... Defendant no.5
(a) Nafisa (widow)
(b) Habibun-Nisha (daughter)
(c) Imam Mehandi (son)
(d) Zeenat (daughter)
(e) Abdul Rehman (son)
All R/o D-258, Near Post Office,
Basti Hazarat Nizamuddin,
New Delhi-110013.
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6. Shakuran (since deceased), W/o late Chand Khan,
Through LRs: ... Defendant no.6
(a) Habiban (since deceased),W/o Mohd Yamin
Through LRs:
(i) Haneef (son)
(ii) Mehandi Hasan (son)
(iii) Aziz Hasan (son
All R/o Thokar No. 8, H.No. C-14,
Abul Fazal Enclave, Shaheen Bagh,
Okhla, New Delhi.
(b) Khairunissa (since deceased), W/o Rafiq,
Through LRs:
(i) Yaseen (son)
(ii) Mustakeen (son)
(iii) Tasleem (son)
(iv) Saleem (son)
(v) Waseem (son)
(vi) Shabina (daughter)
(vii) Firdos (daugter)
All R/o H. No. 358, Dildar Nagar,
Basti Hazarat Nizamuddin,
New Delhi-110013.
(c) Qutban, W/o Mohd Ayub
(d) Ayuba, W/o Ikramuddin
(e) Shabina, W/o Naeem
All three R/o Sundar Nursery Jhuggi,
Near Chakkarwali Masjid,
Hazrat Nizamuddin, Mathura Road,
New Delhi-110013.
7. Delhi Development Authority,
Through its Vice Chairman,
INA, Vikas Sadan,
New Delhi. ... Defendant no.7
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MANJIT KAUR (SINCE DECEASED) BY LRS AND ORS.
SUIT FOR DECLARATIONS, POSSESSION, INJUNCTIONS AND
COSTS OF THE SUIT
Date of Institution : 30.04.1992
Date on which arguments concluded : 20.12.2025
Date of Judgment : 26.12.2025
Result : Partly Decreed
INDEX TO JUDGMENT
Sr. Heading Paragraph Nos.
No.
1. PLAINT 2 (a) to (m)
2. WS OF DEFENDANT NO.1 & 2 3 (a) to (m)
3. REPLICATION TO WS OF 4
DEFENDANT NO.1 & 2
4. WS OF DEFENDANT NO.4 & 6's LRs 6 (a) to (g)
5. REPLICATION TO WS OF 7
DEFENDANT NO.4 & 6's LRs
6. WS OF DEFENDANT NO.7 8
7. COUNTER-CLAIM OF DEFENDANT 9 (a) to (k)
NO.5
8. ISSUES 11
9. DECISION UPON ISSUE NO.1 AND 4 13
10. EVIDENCES:
14 (14.1.) to
Plaintiff's evidences
(14.8.)
Defendants' evidences 15, 16 and 17
11. SUBMISSIONS OF LD. COUNSELS 18
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12. FINDINGS ON ISSUES:
13. ISSUE NO.1: Whether the suit of the 19 (19.1.)
plaintiff is barred by the provisions of
Order II Rule 2 CPC and Order XXIII Rule
1 CPC. OPD 1 & 2.
ISSUE NO.4: Whether the suit is bad for
misjoinder of cause of action? OPD
14. ISSUE NO.2: Whether the suit has not 20
been properly valued for the purpose of (20.1.) to (20.5.)
Court fees and jurisdiction? OPD
15. ISSUE NO.3: Whether the suit of the 21
plaintiff is barred by limitation?OPD (21.1.) to (21.7.)
16. ISSUE NO.5: Whether the plaintiff has 22
forged the impugned Will, if so, its effect? (22.1.) to (22.34.)
OPD
ISSUE NO.11: Whether the Will dated
20.06.1979 is nullity as all the LRs of the
deceased executant did not consent to the
same after his death. If the answer is in
affirmative, what is the effect of the same?
17. ISSUE NO.6: Whether the Sale Deed 23
23.08.1991 is illegal and forged and if so, (23.1.) to (23.19.)
its effect? OPD
18. ISSUE NO.7: Whether the plaintiff is 24
entitled for Decree of possession as (24.1.) to (24.9.)
prayed? OPP
ISSUE NO.8: Whether the plaintiff is
entitled for Decree of declaration as
prayed? OPP
ISSUE NO.9: Whether the plaintiff is
entitled for Decree of permanent
injunction, as prayed? OPP
19. RELIEF/CONCLUSION 25
(25.1.) (a) to (k)
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JUDGMENT
1. Vide this Judgment, I shall decide the captioned suit for declarations, possession, injunctions and costs of the suit.
PLAINT:
2. The necessary and relevant facts, as pleaded in the plaint, upon which the suit of plaintiff is based, can be summarized as under:
(a) The defendant no.3 to 5 are the step brothers and defendant no.6 is the step mother of the plaintiff;
(b) The father of the plaintiff and the defendant no. 3 to 5 and husband of the defendant no.6 namely, late Chandu @ Chand Khan was the owner of three properties situated on Church Road, Jungpura, Bhogal, New Delhi: (i) property in khasra no.591 (municipal no. 4934), admeasuring 211 sq yards; (ii) property in khasra no.593 (municipal no. 4935), admeasuring 422 sq yards; and (iii) property in khasra no.594 (municipal no. 4936), admeasuring 422 sq yards. He was owner of various other properties as well which are under dispute in other litigation pending before other Courts;
(c) Late Chandu @ Chand Khan had executed a Will therein bequeathing the entire properties falling in khasra no. 591 and 593 and half share of the property falling in khasra no.594 in favour of the plaintiff;
(d) The defendant no.3 to 5 in token of acceptance and knowledge of distribution of properties had signed the aforesaid Will;
(e) The aforesaid three properties, on the basis of Will of late Chandu @ Chand Khan, have already been mutated in the name of the plaintiff;
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(f) There was a dispute between late Chandu @ Chand Khan and occupiers/tenants, Balbir Singh, Santokh Singh and Harbans Singh in these three properties. The said occupiers/tenants had filed a writ petition, WP(C) 123/72, which was allowed by the Delhi High Court. The plaintiff, defendant no.3 to 5 and defendant no.6, as LRs of late Chandu @ Chand Khan have filed an appeal, LPA 45/1983 against the decision of allowing the aforesaid writ petition;
(g) During the pendency of aforesaid LPA, the defendant no.3 and 4 colluded with the aforesaid occupiers/tenants and sold an area of 275 sq yards, out of total area of 422 sq yards of the 3 rd property falling in khasra no. 594 (municipal no. 4936), by way of a Sale Deed dated 23.08.1991, to defendant no.1 and 2, who are the wives of the aforesaid occupiers/tenants. This property was sold with the consent of plaintiff's step brother, defendant no.5 and step mother, defendant no.6;
(h) The defendant no.3 to 6 had a little share in the aforesaid 3 rd property falling in khasra no. 594 (municipal no. 4936) and, therefore, the sale of 275 sq yards area out of the said property, is illegal. The defendant no.1 and 2 also acted illegally as they had the knowledge that the defendant no.3 to 6 had no right to sell the aforesaid property to them;
(i) The plaintiff had come to know about the intention of the defendants that they wanted to sell the property in the month of August, 1991 and, therefore, plaintiff had filed a suit, suit no. 377 of 1991 for injunction. Plaintiff had also filed an application for interim injunction under Order XXXIX Rule 1 and 2 CPC, which was dismissed by the Court. Before the plaintiff could prefer an appeal against the said dismissal, the defendant no.3 and 4 sold the aforesaid property to defendant no.1 and 2. Plaintiff's suit for CS DJ No. 1080/22 QAYYUM KHAN Page 7 of 61 v.
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injunction, thus, became infructuous. The plaintiff has, therefore, filed the present suit.
(j) The cause of action arose on 23.08.1991 when the aforesaid Sale Deed was executed;
(k) The suit property is situated within the territorial limits of this Court and the parties are also residing therein. This Court, therefore, has the territorial jurisdiction;
(l) The suit, for the purpose of Court fees and jurisdiction, has been valued at Rs.1,85,330/-, upon which the Court fees of Rs. 4183/- has been affixed. The relief of declaration has been valued at Rs. 200/- and the injunction relief has been valued at Rs. 135/-, upon which requisite Court fees has been affixed;
(m) Plaintiff seeks following reliefs:
"It is, therefore, prayed as under:-
(i) The decree for declaration be passed in favour of the plaintiff against the defendants setting aside the Sale Deed dated 23.08.1991 as illegal & void, and the defendants No.1 & 2 be directed to be the tenants of the plaintiff, and be further directed to hand over the legal possession of the premises to the plaintiff;
(ii) A decree for permanent Injunction may be passed in favour of the plaintiff and against the defendants, its officials, agents, servants, etc.etc. from selling, disposing transferring, and parting with the possession of the suit property to any other person;
(iii) A Decree for permanent Injunction be passed in favour of the Plaintiff against the defendant no.7 restraining the Delhi Development Authority from making any change in the mutation done in the name of the plaintiff in collusion with the defendants, with regard to the properties according to the Will in his favour;
(iv) Costs of the proceedings be also awarded;CS DJ No. 1080/22 QAYYUM KHAN Page 8 of 61
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(v) Any other relief/order which this Hon'ble Court may deem fit, be also passed in favour of the plaintiff and against the defendants."
WRITTEN STATEMENT OF DEFENDANT NO.1 & 2:
3. The defence of the defendant no.1 and 2 as pleaded in their common written statement can be summarized as under:
(a) The Sale Deed in favour of answering defendants was executed on 23.08.1991 and the same was registered on 27.08.1991. The plaintiff had earlier filed a suit, suit no. 377 of 1991 with respect to the same property and on the same cause of action. The plaint of the said suit was dated 30.08.1991. Plaintiff had also approached Sub Registrar, Delhi, objecting to the registration of the Sale Deed. The said earlier suit was dismissed as withdrawn vide Order dated 24.04.1992 without liberty to file a fresh suit regarding the same subject matter on the basis of same cause of action. Thus, the present suit is barred under Order II Rule 2 CPC and also under Order XXIII Rule 1 CPC;
(b) The reliefs sought in the plaint have not been separately valued for the purpose of Court fees. The relief of declaration with consequential relief has not been valued as per the market value of the property. The plaintiff has not stated in the plaint the market value of the property. Neither the reliefs have been properly valued, nor has the proper Court fees been paid thereupon;
(c) A number of causes of action against different persons have been joined in the present suit in violation of Order I Rule 3 CPC.
The suit is, therefore, bad for multifariousness;
(d) The plaintiff having no interest in the property has no locus standi to file the present suit;
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(e) The suit is barred by limitation; (f) The alleged Will upon which plaintiff's claim is based is a
forged and fabricated document. Late Chand Khan died on 23.06.1979 at the age of 85 years. The alleged Will bears the date of 20.06.1979. As per the legal heirs of late Chand Khan, he was in coma on 20.06.1979 and upto his death on 23.06.1979. The Will is hit by the doctrine of marz-ul-maut i.e. death illness. The plaintiff had actively participated in the execution of alleged Will and it was not executed by the deceased out of his free Will. The alleged Will is scribed on a stamp paper of Rs. 10/-, which purports to have been purchased on 18.05.1979 by the plaintiff on behalf of late Chand Khan for execution of a GPA. Plaintiff had obtained signatures and thumb impression of late Chand Khan on the said stamp paper in the hope that he would convert the same into a GPA in his favour. It appears that the plaintiff played devil and he scribed the alleged Will on the blank stamp paper. The Will is not valid as the legal heirs of late Chand Khan did not give their consent after his death. As per the Muslim law, a mahomedan cannot make a Will in respect of more than 1/ 3 rd portion of his estate. The said Will did not see the light of the day for 13 years until the filing of earlier suit by the plaintiff;
(g) The other heirs of late Chand Khan had alleged about a family arrangement in writing dated 25.12.1984. Even at the time of the execution of said family arrangement, no mention of the alleged Will was made by the plaintiff;
(h) The occupiers, Balbir Singh and others have filed a Writ, WP(C) 123/1972 against the Settlement Commissioner and Ors., including late Chand Khan. The said Writ Petition was allowed by the High Court on 29.11.1982 against which an appeal, LPA 45/1983 was filed by late Chand Khan. Late Chand Khan, during CS DJ No. 1080/22 QAYYUM KHAN Page 10 of 61 v.
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the pendency of the said appeal, died. When legal heirs of late Chand Khan were brought on record, the plaintiff did not assert about the existence of the alleged Will;
(i) Plaintiff has not obtained probate of the alleged Will;
(j) On merit, it is stated that plaintiff was not the son of late Chand Khan. As per the other defendants, plaintiff is the son of late Chand Khan's wife from her previous marriage. Plaintiff, therefore, has no right in the estate of late Chand Khan;
(k) In the year 1984, there was a family arrangement between the heirs of late Chand Khan, whereunder, plaintiff and defendant no.5 were accepted as sons of late Chand Khan and whereunder they were given the land in khasra no. 591 and defendant no.3 and 4, alongwith their mother i.e. defendant no.6 and five sisters, were given land in khasra no. 593 and 594. Later on the widow and 5 daughters of late Chand Khan relinquished their shares in the said two khasra numbers in favour of the defendant no.4;
(l) The defendant no.3 and 4 sold their undivided share in khasra no. 593 and 594 to defendant no.1 and 2, who purchased the same for valuable consideration. It is denied that the defendant no.1 and 2 have purchased the said property in collusion with the defendant no. 3 and 4.
(m) The plaintiff has no cause of action to file the present suit. He is not entitled to any of the reliefs as sought in the plaint. The suit is liable to be dismissed with costs.
REPLICATION TO WS OF DEFENDANT NO.1 & 2:
4. The plaintiff filed a replication to the aforesaid common written statement of the defendant no.1 and 2, which is, more or less, in denial of the allegations/averments in the written statement and in CS DJ No. 1080/22 QAYYUM KHAN Page 11 of 61 v.
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reaffirmation of those pleaded in the plaint. Plaintiff has also stated that when application for impleadment of LRs of late Chand Khan was filed in the LPA before the High Court, the Counsel had not advised the plaintiff or his brothers to disclose the Will as there was no dispute inter-se legal heirs of late Chand Khan. It has also been stated that late Chand Khan had executed the Will in a sound disposing mind. It has been denied that the Will was forged on a blank stamp paper for GPA which had signatures and thumb impression of late Chand Khan. The plaintiff has denied that any family arrangement in writing was executed between the plaintiff and his other brothers in the year 1984 or at any other time. It has been stated that the cause of action in the present suit is distinct from the one in the earlier suit and, therefore, the suit is not barred under Order II Rule 2 CPC and under Order XXIII Rule 1 CPC.
5. The defendant no.3 and 5 did not file any written statement.
WRITTEN STATEMENT OF DEFENDANT No.4 & 6's LRs:
6. The defendant no. 4 and LRs of defendant no. 6 filed a separate common written statement. Their defence is based upon following averments:
(a) Plaintiff's earlier suit, suit no. 377 of 1991, having been dismissed on 23.04.1992, the present suit is barred by the principal of res judicata;
(b) Plaintiff and defendant no.5 are Hindus and they were born out of the wedlock between Smt. Chotti with Chand Ram. Smt. Chotti, after death of her husband, Chand Ram, converted to Islam and was named as Shahida Begam after her conversion.
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with her. Plaintiff and defendant no.5, being step sons of late Chand Khan, have no right in his estate;
(c) The alleged Will has been forged and fabricated by the plaintiff.
Late Chand Khan had not executed the alleged Will and there was no question of answering defendants accepting and signing the alleged Will;
(d) Plaintiff had fraudulently obtained mutation and the same was set aside by the Court of Sh. Ranbir Singh, Collector, Nazul, DDA, Vikas Sadan, New Delhi, vide Order dated 28.05.1992;
(e) The defendant no.6, late Smt. Shakuran had left a registered Will therein bequeathing her entire properties in favour of the defendant no.4. Besides, the five daughters of defendant no.6 have also relinquished their rights in favour of defendant no.4;
(f) It is denied that the defendant no. 3 and 4 sold the suit property in collusion with the defendant no.1 and 2. The defendant no.4 had all rights to execute the Sale Deed in favour of defendant no.1 and 2;
(g) Plaintiff has no cause of action and he is not entitled to any relief as sought.
REPLICATION TO WS OF DEFENDANT No.4 & 6's LRs:
7. Plaintiff filed a replication to the aforesaid common written statement of defendant no.4 and LRs of defendant no.6. The allegations/averments in the aforesaid written statement have been denied and the contents of plaint have been reaffirmed to be correct. It has been denied that plaintiff's mother, late Smt. Chotti was married to one Chand Ram and that she after death of her husband converted to Islam and married to late Chand Khan. It has also been denied that the plaintiff and the defendant no.5 are step sons of late Chand Khan. It has been stated that plaintiff was born out of wedlock between Smt. CS DJ No. 1080/22 QAYYUM KHAN Page 13 of 61 v.
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Chotti and Chand Khan in the year 1956. It has been stated that Chand Khan's second wife, Smt. Shakuran, defendant no.6 is the step mother of plaintiff. Defendant no.3 to 5 have also been stated to be the step brothers of plaintiff.
WRITTEN STATEMENT OF DEFENDANT NO.7:
8. The defendant no.7 i.e. the DDA filed a separate written statement. It has been stated that the three properties in khasra no. 591, 593 and 594 were recorded on lease hold basis in the name of Abdul Raheed, Abdul Rashid and Abdul Hamid, in the revenue record upto the year 1987. It has been stated that these properties were transferred in the name of Chand Khan on the basis of letter dated 01.08.1966 issued from the office of Settlement Commissioner, Ministry of Rehabilitation, Government of India. It has also been stated that half share of the properties in the khasra no. 593 and 594 were mutated in the name of plaintiff and half share in the property in khasra no. 594 was mutated in the name of defendant no.3 to 6. It has been stated that the said mutation in plaintiff's favour was later on set aside by the Collector (Nazul) pursuant to an appeal filed by defendant no.4 and Ors. At present, these properties are recorded in the name of late Chand Khan. It has been denied that the answering defendant has threatened the plaintiff to set aside the mutation in his favour.
COUNTER-CLAIM OF DEFENDANT No.5:
9. The defendant no.5 had filed a counter-claim therein seeking several reliefs of declarations1. The allegations/averments as stated in the said counter-claim can be summarized as under:
(a) The answering defendant's late father, late Chand Khan had expired intestate on 23.06.1979 leaving behind him his widow, five daughters and four sons;1
This counter-claim was neither registered as a separate suit, nor was the trial conducted on it.
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(b) Late Chand Khan has left many properties, including the properties situated on Church Road, Jungpura, Bhogal, New Delhi: (i) property in khasra no.591 (municipal no. 4934), admeasuring 211 sq yards; (ii) property in khasra no.593 (municipal no. 4935), admeasuring 422 sq yards; and (iii) property in khasra no.594 (municipal no. 4936), admeasuring 422 sq yards.
(c) Late Chand Khan's widow, Ms. Shakuran was poisoned to death by defendant no.4. She died intestate leaving behind five daughters and four sons;
(d) The Will dated 30.06.1979 as alleged by the plaintiff in the plaint is a forged and fabricated document. Late Chand Khan was in coma for more than 15 days from around 08.06.1979 till 23.06.1979 when he died. The attestation on the Will was forged later on.
(e) The Relinquishment Deed dated 15.02.1990 as alleged by the defendant no.4 to have been executed by Ms. Shakuran and by her five daughters therein relinquishing their shares in the estate of late Chand Khan in favour of defendant no.4 is a farce and sham document;
(f) The Will dated 29.05/01.06.1992 as alleged by the defendant no.4 to have been executed by Ms. Shakuran is also a farce and sham document;
(g) The Sale Deed dated 23/27.08.1991 executed by the defendant no.3 and 4 is illegal and erroneous as the same is based upon forged and fabricated Relinquishment Deed dated 15.02.1990;
(h) The brief facts are that the ancestors of the defendant namely Mr. Amir and late Chand Khan were the owners of various properties situated in Jor Bagh, New Delhi, wherein they alongwith their family were residing. The government decided to develop the area of Jor Bagh for establishment of capital of India. Accordingly, the residents of Jor Bagh were removed and resettled in Jungpura and in various other localities. In lieu of CS DJ No. 1080/22 QAYYUM KHAN Page 15 of 61 v.
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their properties in Jor Bagh, the ancestors of the defendants were allotted besides various other properties, three plots in Jungpura. After partition in the year 1947, the Custodian of evacuee property was constituted by the government. The government declared most of the properties belonging to the Muslims as evacuee property, including the three properties in Jungpura. The government of India, vide Order dated 01.08.1966, restored the three properties to late Chand Khan upon his application to the government on the ground that he had not migrated to Pakistan. The said Order was reconfirmed vide Order dated 04.10.1971. After the death of late Chand Khan on 23.06.1979, his LRs moved a joint application dated 30.08.1982 before the DDA for mutation of their names. The DDA issued a notice dated 17.09.1982 to the LRs to clarify certain queries. The plaintiff did not file any document in response to the said notice of the DDA. The defendant no.4, however, filed a detailed affidavit of 21.10.1982 wherein the shares of all LRs of late Chand Khan were mentioned. The DDA mutated names of all ten LRs of late Chand Khan in its record pertaining to the properties. The government had also rehabilitated certain refugees from western Pakistan on the aforesaid plots and their possession was protected in terms of Order dated 04.10.1971. Plaintiff had submitted an application dated 30.09.1991 for review of the mutation on the basis of a forged Will dated 20.06.1979 of late Chand Khan. The DDA, vide letter dated 24.02.1992, mutated the name of plaintiff after replacing the name of ten LRs of late Chand Khan. When the other legal heirs came to know about this fact, they preferred an appeal, which was allowed vide Order dated 28.05.1992. The names of ten LRs of late Chand Khan were, accordingly, restored in the mutation record.
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(i) There was/is a race between plaintiff and defendant no.4 for grabbing the properties of late Chand Khan and depriving other LRs of their valuable rights to inherit the same;
(j) Writ Petition, Writ No. 123/1972 preferred by the occupiers, Balbir Singh and Others against the Settlement Commissioner and Others (including Chand Khan) was allowed by the High Court, vide Order dated 29.11.1982 which has been challenged by way of an appeal, LPA No. 45/1983, which is pending in the High Court. Late Chand Khan died during the pendency of the said appeal. The plaintiff at the time of impleadment as LRs of late Chand Khan did not make mention of the alleged Will;
(k) Basis the aforesaid allegations/averments, the defendant no.5 seeks: (i) declaration that the Will dated 20.06.1979 is illegal, null and void ab initio; (ii) declaration that the Relinquishment Deed dated 15.02.1992 and Will dated 29.05/01.06.1992 are forged, illegal and null and void ab initio; (iii) declaration that the Sale Deed dated 23/27.08.1991 is illegal and void; (iv) declaration that the defendant no.1 and 2 are tenants of plaintiff and defendant no. 3 to 6; and (v) other relief, if any;
10. The suit upon its filing was listed before the High Court 2 for the first time on 25.05.1992 on which date the summons were 2 The suit was initially filed before the Delhi High Court and it was vide Order dated 14.05.1993 that it was transferred to the District Court on account of enhancement of its pecuniary jurisdiction vide Delhi High Court (Amendment) Act, 1991. The suit was subsequently transferred from the Court of Ld. ADJ to the Court of Ld. Civil Judge, vide Order dated 05.04.2002. The suit was being tried by the Court of Ld. Civil Judge at Tis Hazari Courts, Delhi. Plaintiff had filed another suit, CS DJ No. 8711/2016 (Old No. 433/2014) therein seeking reliefs in respect of another Sale Deed dated 22.06.2011 executed by defendant no.5 in favour of defendant no.1 and 2 in the present suit which was being tried before this Court. The High Court, vide Order dated 22.11.2023, in Transfer Petition, TR.P. (C) No. 41/2022, transferred the present suit from the Court of Ld. Civil Judge at Tis Hazari Courts to this Court for trying the same alongwith the aforesaid subsequent suit of the plaintiff. This Court, vide Order dated 09.07.2025, passed in the present suit separated this suit from the said another suit of the plaintiff.
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ordered to be issued and at the same time an ex-parte ad-interim injunction Order to restrain the defendant no.1 and 2 from transferring, alienating, or otherwise parting with possession of the property which was sold by defendant no.3 and 4 vide Sale Deed dated 23.08.1991, was passed. This Order was confirmed vide Order dated 22.10.2003 and plaintiff's application under Order XXXIX Rule 1 and 2 CPC was, accordingly, disposed off.
ISSUES:
11. Vide Order dated 16.02.2005, following issues were framed:
Issue no.1: Whether the suit of the plaintiff is barred by the provisions of Order II Rule 2 CPC and Order XXIII Rule 1 CPC. OPD 1 & 2.
Issue no.2: Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD Issue no.3: Whether the suit of the plaintiff is barred by limitation? OPD Issue no.4: Whether the suit is bad for misjoinder of cause of action?OPD Issue no.5: Whether the plaintiff has forged the impugned Will, if so, its effect? OPD Issue no.6: Whether the Sale Deed 23.08.1991 is illegal and forged and if so, its effect? OPD3 Issue no.7: Whether the plaintiff is entitled for Decree of possession as prayed? OPP Issue no.8: Whether the plaintiff is entitled for Decree of declaration as prayed? OPP Issue no.9: Whether the plaintiff is entitled for Decree of permanent injunction, as prayed? OPP Issue no.10: Relief.
3Vide Order dated 08.06.2017, the onus of proving this issue was shifted from defendant to plaintiff.
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12. Vide Order dated 07.02.2012, the issue no.1 and issue no. 4 were ordered to be treated as preliminary issues. Vide the same Order, following additional issue was framed:
Issue no.11: Whether the Will dated 20.06.1979 is nullity as all the LRs of the deceased executant did not consent to the same after his death. If the answer is in affirmative, what is the effect of the same?
DECISION UPON PRELIMINARY ISSUE No.1 and ISSUE No.4:
13. Vide Order dated 18.10.2012, preliminary issue no.1 was decided in favour of the plaintiff and against the defendants. The said Order was challenged by the LRs of defendant no.4 by way of a petition, CM (M) 282/2018 before the High Court. The High Court, however, vide Order dated 02.08.2013, dismissed this petition and confirmed the Order of the Trial Court. Vide Order dated 03.04.2013, the preliminary issue no.4 was also decided in favour of the plaintiff and against the defendants.
EVIDENCES Plaintiff's evidences:
14. Plaintiff in order to prove his case examined seventeen witnesses.
14.1. Plaintiff's 1st witness/PW-1 was A.K. Jain, Zonal Inspector, MCD. He produced in evidence the documents: a certified copy of application submitted by defendant no.4's wife, Shamina as Ex. PW-1/1; a photocopy of family settlement in Urdu as Mark A; a true copy of family settlement dated 08.03.2001 as Ex. PW-1/2; and a certified copy of photocopy of the jamabandi for the year 1963-1964 as Ex.PW-1/3.
14.2. Plaintiff's 2nd witness/PW-2 was plaintiff himself. He tendered his affidavit-in-evidence towards his examination-in-chief.
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Plaintiff in his affidavit has deposed in line with the contents of his plaint. Apart from this, he has also pleaded certain new facts. The plaintiff has deposed that he identified the signatures and thumb impression of late Chandu Khan on his Will dated 20.06.1979 as the same was affixed in his presence. The plaintiff has also identified the signatures/thumb impressions of defendant no. 3 to 6 and those of two witnesses on the Will. He has also identified the signature of scriber of the Will. He has stated that pursuant to his application for mutation submitted to the DDA, the defendant no.5 appeared in the office of DDA and gave his statement on 09.01.1992 admitting therein the Will. He has stated that the DDA issued a letter dated 17.02.1992 and a mutation certificate in the name of the plaintiff. He also stated that the DDA vide letter dated 25.02.1992 informed other LRs of late Chand Khan about the mutation of the property in the name of the plaintiff. He has stated that the writer of the Will, Bhagwati Prasad was also summoned by the DDA and he had given his statement on 28.01.1992 therein admitting that he had written the Will in his own handwriting at the instance of late Chand Khan. He has stated that a family settlement dated 16.08.1979 on the basis of Will dated 20.06.1979 was executed amongst the LRs of late Chand Khan. He then stated that the defendant no.6 had applied vide application dated 18.08.1979 in the office of MCD for mutation of property no. 258, Basti Hazarat, Nizamuddin, New Delhi on the basis of Will dated 20.06.1979 and family settlement dated 16.08.1979. He also stated that the defendant no.4 in connection with a dispute regarding property tax had got his statement recorded in the office of MCD on 13.05.1988 alongwith which he submitted a copy of Will. He stated that the MCD passed an assessment Order dated 16.05.1988. He stated that defendant no.4's wife, Shamima Begum had also applied for mutation vide her application dated 19.03.2001 and she had filed a copy of family CS DJ No. 1080/22 QAYYUM KHAN Page 20 of 61 v.
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settlement dated 19.03.2001 wherein the execution of Will dated 20.06.1979 was admitted. He stated that the defendant no.5 had also submitted an application before the Sub Registrar, Delhi for stay upon the registration of Sale Deed dated 23.08.1991 wherein he admitted the Will dated 20.06.1979. The plaintiff also tendered in evidence following documents:
Sr. Document Exhibit/Mark
No.
1. Certified copy of Will dated 20.06.1979 Ex. PW-2/1
(OSR)
2. Certified copy of defendant no.5's Ex. PW-2/2
statement dated 09.01.1992 in DDA for (OSR)
mutation
3. Mutation Certificate in the name of Ex. PW-2/1A
plaintiff (OSR)
4. Certified copy of letter dated 17.02.1992 Ex. PW-2/1B
issued by DDA mentioning mutation in the (OSR)
name of plaintiff
5. Certified copy of letter dated 25.02.1992 Ex. PW-2/1C
issued by DDA to LRs of late Chand Khan (OSR)
6. Certified copy of family settlement dated Mark L
16.08.1979
7. Copy of Shakuran's application dated Mark K
18.08.1979
8. Certified copy of Ayub Khan's statement Mark M
9. Certified copy of Assessment Order dated Mark N
16.05.1988 passed by the MCD
10. Application of defendant no.4's wife to the Mark O
MCD
11. Copy of family settlement dated Mark O-1
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08.03.2001
12. Copy of application dated 26.08.1991 by Mark Q
defendant no.5 to the Sub Registrar
13. Certified copy of Sale Deed dated Ex. PW-2/4
23.08.1991
14. Copy of plaint in suit no. 377/91 Mark R
15. Certified copy of affidavit dated 21.10.1982 Ex. PW-2/5
by defendant no.4
14.3. Plaintiff's 3rd witness/PW-3 was Subhash Chander Saini, Zonal Inspector, House Tax Department, MCD. He produced a certified copy of application dated 18.08.1979 submitted by Shakuran as Ex. PW-3/1 (OSR); a copy of family settlement as Ex. PW-3/2 (OSR); a certified copy of a document in Urdu as Mark A; a Hindi translation of the said document as Mark B; a copy of letter dated 04.09.1979 submitted by Shakuran for mutation as Mark C; certified copy of defendant no.4's statement dated 13.05.1988 Mark D; certified copy of assessment Order dated 16.05.1988 as Ex. PW-3/3; and a copy of hearing of mutation proceedings dated 26.02.1993, Ex. PW-3/4.
14.4. Plaintiff's 4th witness/PW-4 was Suresh Kumar, Judicial Assistant, Delhi High Court. He produced the judicial record of Criminal Appeal No. 792/2003 alongwith original DDA file, which contained the proceedings before DDA for mutation.
14.5. Plaintiff's 5th witness/PW-5 was Sunil Kumar Jha, JJA, Delhi High Court. He produced the judicial record of CRL. M.C. 3023/2010.
14.6 Plaintiff's 6th witness/PW-6 was Anil Kumar Goel, S/o late Sh. Bhagwati Prasad Goel. He in his examination-in-chief deposed that he was acquainted with the handwriting of his father as he had seen CS DJ No. 1080/22 QAYYUM KHAN Page 22 of 61 v.
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him writing and signing. He stated that the Will dated 20.06.1979 was in handwriting of his father and that the same bore his father's signature.
14.7. Plaintiff's 7th witness/PW-7 was Irfanul Haque, JA, Record Room (Civil), Saket Courts. He produced the judicial record of Suit, Civil Suit no. 381/2010; certified copy of proposed amended plaint as Ex. PW-7/1; certified copy of list of documents as Ex. PW-7/2 and a copy of mutation letter dated 04.09.1979 as Mark X-1.
14.8. Plaintiff's 8th witness/PW-8 was Mahesh Kumar, JA, the Court of Ld. ADJ-03, Saket Courts. He produced the judicial record of Suit, Civil Suit no. 208711/2016 (Old No. 433/2014). He also produced certified copies/copy to copy of various pleadings and documents filed in the said suit.
14.9. Plaintiff's 9th witness/PW-9 was Bijayaloka Behera, JA, Record Room (Civil), Saket Courts. He produced the judicial record of case file no. 1089/18 as Ex. PW-9/1.
14.10. Plaintiff's 10th witness/PW-10 was Rajeev Kumar, JJA (Ahlmad), Ld. ADJ-02, Saket Courts. He produced a certified copies of pleadings in the petition under Section 278 of the Indian Succession Act as Ex. PW-10/1.
14.11. Plaintiff's 11th witness/PW-11 was Harish, Asstt. Record Keeper, Record Room Sessions, Patiala Courts. He produced the judicial record of petition, CR No. 12/2000 as Ex. PW-11/1; judicial record of CR No. 30/2001 as Ex. PW-11/2; certified copy of Judgment dated 03.08.2001 passed by the Ld. ASJ in CR No. 30/2001 as Ex. PW-11/3 (OSR); certified copy of list of documents dated 08.01.2001 filed by petitioner therein as Ex. PW-11/4 (OSR); copy to copy of criminal revision petition filed by defendant no.4 as Ex. PW-11/A and CS DJ No. 1080/22 QAYYUM KHAN Page 23 of 61 v.
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certified copy of Order dated 14.10.2000 passed by Ld. ASJ in CR No. 12/2000 as Ex. PW-11/B. 14.12. Plaintiff's 12th witness/PW-12 was Harsh Kumar, SJA, Record Room, Delhi High Court. He produced record of Crl. M(M) 2940/2001 as Ex. PW-12/1 and a certificate under Section 65B as Ex. PW-12/2.
14.13. Plaintiff's 13th witness/PW-13 was Bhairab Dutt Pant, Bank Manager from Bank of India. He produced the record relating to grant of loan to defendant no.4's LR against property. He also produced mutation letter dated 04.09.1989 as Ex. PW-13/1(OSR).
14.14. Plaintiff's 14th witness/PW-14 was Meer Singh, Ahlmad, Office of Appellant Tribunal, MCD, Tis Hazari Courts, Delhi. He produced the judicial record of appeal no. 1029/13, which contained family settlement, indemnity bond, mutation letter, written statement and objections dated 10.03.1988 by Smt. Shakuran as Ex. PW-14/1 (OSR).
14.15. Plaintiff's 15th witness/PW-15 was Ajeet Kumar, Ahlmad, Court of Ms. Akanksha Garg, Ld. MM, District South East, Saket Courts. He brought the record of FIR No. 154/2010, which contained original Will.
14.16. Plaintiff's 16th witness/PW-16 was Irfan Ali, grandson of late Bakar Ali. He identified the signatures of his grandfather, Bakar Ali on the original Will. He deposed that he identified the signatures of his grandfather as he used to receive money orders sent by his grandfather, Bakar Ali under his signatures. He also produced the death certificates of his father and grandfather.
14.17. Plaintiff's 17th witness/PW-17 was Pankaj Verma, Area Inspector, Property Tax Department, MCD. He produced the list of CS DJ No. 1080/22 QAYYUM KHAN Page 24 of 61 v.
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documents in the case filed by defendant no.4 against the MCD as Ex. PW-17/1; and objections dated 16.04.1990 as Ex. PW-17/2.
14.18. The aforesaid witnesses were cross-examined on behalf of defendants. Their testimonies and documents produced by them will be dealt with, wherever relevant, at the time of returning the findings on issues.
Defendants' evidences:
15. The defendant no.1 and 2 in their defence examined Preetpal Singh as D1W1. He tendered his affidavit-in-evidence as Ex. D1W1/A towards his examination-in-chief, wherein he deposed in line with the defence pleaded in written statement filed on behalf of defendant no.1 and 2. He claimed to be the GPA holder of LRs of defendant no.1 and 2. He produced a copy of GPA dated 06.09.1991 as Ex. D1W1/1 (OSR) and a certified copy of Order dated 29.11.1982 passed by the High Court of Delhi in Writ Petition No. 123/1972 as Ex. D1W1/2.
16. On behalf of defendant no.4, his son, Yusuf Khan was examined as D4W1. He tendered his affidavit-in-evidence as Ex. D4W1/A towards his examination-in-chief, wherein he deposed in line with the defence pleaded in written statement filed on behalf of defendant no.4 and LRs of defendant no.6. He produced following documents in evidence:
Sr. Document Exhibit/Mark
No.
1. A certified copy of charge-sheet dated Ex. D4W1/1
15.07.2010, which contained an FSL report
dated 18.05.2011
2. Copy of application dated 19.03.2011 Ex. D4W1/2
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3. Family settlement dated 08.03.2001 Ex. D4W1/3
4. Certified copies of Order dated 11.09.1991 Ex. D4W1/4 & and 30.01.1992 in Suit No. 377/91 Ex. D4W1/5 16.1. The witness/D4W1 during his cross-examination was confronted with various documents, which shall be dealt with wherever relevant while deciding the issues.
17. Defendant no.7 examined Shiv Kumar, Kanoongo, DDA, Vikas Sadan as D7W1. He tendered his affidavit-in-evidence as Ex. D7W1/A towards his examination-in-chief which is as per the defence pleaded in written statement filed on behalf of the defendant no.7. He also produced copy of letter dated 19.10.1987 as Ex. D7W1/1 and a copy of Order of Collector, Nazul as Ex. D7W1/2.
17.1. The witness/D7W1 during his cross-examination was confronted with various documents, which shall be dealt with wherever relevant while deciding the issues.
Submissions by Ld. Counsels:
18. I have heard Sh. Suresh Sharma & Mr. Shahid Ali, Ld. Counsels for the plaintiff; Sh. Vineet Mehta and Sh. Vipin Nandwani, Ld. Counsel for the defendant no.1 and 2; Sh. Rajat Aneja & Sh. Ajay Saroya, Ld. Counsels for defendant no.4 and Mr. Abdul Sattar, Ld. Counsel for defendant no.5. Ld. Counsels have addressed the oral submissions in line with the respective claim/defence taken by the parties in their pleadings. Their submissions, wherever relevant, shall be dealt with while deciding the issues. I have also perused the written submissions filed on behalf of the parties as well as the judicial record.
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FINDINGS ON ISSUES
19. Issue no.1: Whether the suit of the plaintiff is barred by the provisions of Order II Rule 2 CPC and Order XXIII Rule 1 CPC. OPD 1 & 2.
Issue no.4: Whether the suit is bad for misjoinder of cause of action?OPD 19.1. These issues have already been decided as stated in para 13 herein above.
20. Issue no.2: Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD 20.1. The onus of proving this issue was upon the defendants. However, neither the defendants led any evidence, nor was any submission advanced by their Counsels on this issue.
20.2. As per the plaint, the relief of cancellation/ declaration with respect to the sale deed dated 23.08.1991 with consequential relief of possession has been valued at Rs. 1,85,330/- and a court fees of Rs. 4183/- has been paid thereupon. As per Section 7(iv)(c) of the Court Fees Act, 1870, in respect of a declaratory relief along with consequential relief, an ad-valorem court fees upon the valuation mentioned in the plaint is required to be paid 4. The provision further gives the discretion to the plaintiff to put any valuation to such relief, provided the same is not arbitrary and unreasonable. When such a relief is sought with respect to a document of transfer, generally, the consideration mentioned in the document should be the valuation of 4 The Delhi High Court in the case titled Shiv Shankar Jindal v. Deepak Kumar and Ors., CM (M) No. 890/2017 has held that when the relief of declaration with consequential relief of possession is claimed, the plaintiff is not required to pay the ad-valorem Court fees upon the value of the property twice, first in respect of the relief of the declaration under Section 7(iv)(c), and second in respect of the relief of possession under Section 7(v) of the Court fees Act, 1870.
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the relief. However, when such relief is sought by a person who is not a party to the document, he/ she is not required to pay ad-valorem Court fees upon the consideration amount mentioned in the said document 5. It is also noted that the impugned sale deed dated 23.08.1991 was executed for a consideration of Rs. 1,85,000/- only and therefore, plaintiff's valuation of Rs. 1,85,330/- and payment of ad-valorem court fees of Rs. 4183/- can not be said to be improper.
20.3. Plaintiff's second relief is that the defendant no. 1 & 2 be declared to be the tenants of the plaintiff. This relief is without any consequential relief. The valuation of a simplicitor relief of declaration is governed by Article 17(iii) of the Second Schedule to the Court Fees Act, which provides for fixed Court fees of Rs. 10/- for a suit to obtain a declaratory decree where no consequential relief is prayed. Plaintiff has valued this relief at Rs. 200/- and has also paid court fees accordingly, which is held to be as per the law.
20.4. Plaintiff is also seeking two reliefs of injunction. As per Section 7(iv)(d) of the Court Fees Act, plaintiff has been given the discretion to put any valuation to the relief of injunction. However, by virtue of proviso added to Section 7(iv) by the Court Fees (Punjab Amendment) Act, 1958 as extended to Delhi, plaintiff can not put a valuation to an injunction relief so as to make the court fees lesser than Rs. 13/-. In the present case, plaintiff has valued the reliefs of injunction at Rs. 135/- and has also paid the court fees thereupon. There is no infirmity in such valuation and payment of court fees.
20.5. In view of the above, it is held that the plaintiff has properly valued the reliefs for the purpose of Court fees and jurisdiction and has 5 Reliance for this legal proposition is placed upon the judgment of the Supreme Court in Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors. , Civil Appeal No. 2811-2813 of 2010.
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also paid proper Court fees. The issue no.2 is, therefore, decided against the defendants and in favour of the plaintiff.
21. Issue no.3: Whether the suit of the plaintiff is barred by limitation?OPD 21.1. The onus of proving this issue was upon the defendants. Again, Ld. Counsels for the defendants did not advance any submission in respect of this issue.
21.2. The first relief plaintiff is seeking is the declaration that the Sale Deed dated 23.08.1991 is illegal and void. The present suit having been filed in April, 1992 is well within three years limitation period from the date of execution of Sale Deed on 23.08.1991 i.e. when the right to sue first accrued, as provided under Article 58 of the Schedule annexed with the Limitation Act, 1963.
21.3. The limitation for the 2nd relief of seeking the declaration that the defendant no.1 and 2 be declared to be the tenants will also be governed by Article 58 as aforesaid. The right to sue for this relief also accrued for the first time when the defendant no.3 and 4 executed the Sale Deed dated 23.08.1991 in favour of the defendant no.1 and 2. This relief is also within limitation period.
21.4. The relief of recovery of possession, which is the 3 rd relief, is based upon plaintiff's alleged title. Article 65 provides the limitation period of 12 years for such a relief. The limitation period as per 3 rd column of Article 65 begins to run when defendant's possession becomes adverse to plaintiff. In the present case, it was w.e.f. 23.08.1991 when the defendant no.3 and 4 executed the Sale Deed in favour of defendant no.1 and 2 that the possession of the defendant no.1 and 2 became adverse to plaintiff. This relief is, accordingly, within limitation period.
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21.5. The relief of injunction for restraining the defendants from creating 3rd party rights in the suit property is the 4 th relief as sought. There is no specific provision specifying limitation period for an injunction suit/relief. The residuary provision i.e. Article 113 will, therefore, apply, as per which, the limitation period is 3 years, which begins to run when the right to sue accrues. In the present case, the right to sue for the relief of injunction as sought accrued upon execution of Sale Deed on 23.08.1991. This relief is, thus, well within limitation period.
21.6. The last relief plaintiff is seeking is an injunction to restrain defendant no.7 i.e. the DDA from making any change in mutation records pertaining to the suit property. This relief will also be governed by Article 113 and the suit for this relief, among other reliefs, having been filed within 3 years from the date of execution of Sale Deed on 23.08.1991 is well within the limitation period.
21.7. In view of the above, the suit is held to be within limitation period. The issue under consideration is, therefore, decided in favour of the plaintiff and against the defendants.
22. Issue no.5: Whether the plaintiff has forged the impugned Will, if so, its effect? OPD Issue no.11: Whether the Will dated 20.06.1979 is nullity as all the LRs of the deceased executant did not consent to the same after his death. If the answer is in affirmative, what is the effect of the same?
22.1. Both these issues are being taken up together as these issues can be determined on the basis of common findings.
22.2. Plaintiff's substantial case is based upon his claim that he by virtue of Will dated 20.06.1979 executed by his father, late Chand Khan has become owner of half portion i.e. 211 sq yards of the property bearing municipal no. 4936, falling in khasra no.594, admeasuring 422 CS DJ No. 1080/22 QAYYUM KHAN Page 30 of 61 v.
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sq yards. On this basis, plaintiff is claiming that defendant no.3 and 4 had no right to sell an area of 275 sq yards of the said property, which they did by executing the impugned Sale Deed on 23.08.1991 in favour of the defendant no.1 and 2. Per contra, the defence of defendant no.3 & 4 is that not only the alleged Will dated 20.06.1979 is a forged document, but the same is also not in accordance with the Mahomedan Law.
22.3. In view of the rival contentions/cases of the parties, the plaintiff had an onus to prove firstly, that the alleged Will was executed as per the Mahomedan Law and secondly, the very execution of the Will had to be proved.
Validity of Will as per Muslim Law:
22.4. Let me first examine as to what are the requirements under the Muslim Law for a valid Will. Every Mahomedan of sound mind, who is not a minor, may execute a Will 6. Under the Mahomedan Law, no writing is required to make a valid Will and no particular form is necessary. Even a verbal declaration may constitute a valid Will7. What is important is the intention of the testator to make a Will, which must be clear and explicit. A Muslim Will, if in writing, is not required to be attested8. Under the Mahomedan Law, there is two fold restrictions upon the power of a Muslim to execute a Will, first, regarding the extent of the property which may be bequeathed, and, secondly, regarding the person to whom property may be bequeathed. If the bequest is to a non-heir, a Muslim cannot bequeath more than 1/3 rd of his property. A bequest in excess of 1/3 rd of the properties can, 6 Paragraph 115 of Mulla Principles of Mahomedan Law, 23rd edition, lexis Nexis.7
Ibid, paragraph 116.
8Ramjilal v. Ahmad Ali and Anr.,1949 SCC OnLine MP 159.
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however, be validated by the consent of heirs 9. The 2nd restriction is that a Muslim cannot bequeath to any extent in favour of heir, unless the other heirs give their consent after the death of the testator 10. The reason for these restrictions is the policy of Muslim Law to prevent a testator from interfering by Will with the course of devolution of property according to mahomedan law amongst his heirs. As stated earlier, a bequest of more than 1/ 3rd properties in favour of a non-heir, or a bequest, even if lesser than 1/ 3 rd properties, to an heir, can be validated by heirs by their consent. Such consent need not be expressed, and it can be implied also. However, mere inaction or silence does not amount to implied consent11. The consent necessary to validate a Will, which is in contravention to aforesaid two restrictions, must be given after the death of the testator, as no heir is entitled to any interest in the property of the testator during his lifetime. However, under the Shia Law, the consent may be given either before or after the death of the testator.
22.5. In the present case, Chand Khan died leaving behind four sons (plaintiff, defendant no.3, defendant no.4 and defendant no.5 respectively), five daughters and widow, Sakuran (defendant no.6). Ld. Counsel for the plaintiff submitted that the bequest in favour of the plaintiff and other legal heirs by late Chand Khan through his Will dated 20.06.1979 was validated by all legal heirs as they signed on the said Will. However, I do not find any merit in this submission, firstly, because the legal heirs had put their signatures on the Will while Chand Khan was still alive, and, secondly, because five daughters of Chand Khan had not signed the Will. The Will in question is liable to be declared invalid for this reason alone. Held so.
9Mulla, supra note 6, paragraph 118.
10Mulla, supra note 6, paragraph 117.
11Nadeera Beevi v. Mallika Beevi and Others, 2019 SCC OnLine Ker 19612.
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Proof of execution of Will:
22.6. Though the aforesaid finding in itself is sufficient for deciding the issue no.11 in favour of the defendants and against the plaintiff, nevertheless, I shall proceed to examine whether the plaintiff has been able to prove the very execution of the Will (assuming the Will was executed/validated as per the Mahomedan Law).
22.7. Plaintiff has relied upon two categories of evidences for proving the execution of the Will. First category is the evidences led to prove handwriting and signatures upon the Will. Second category is the evidences led to prove that the defendant no. 3, 4 & 5 not only used/relied upon the Will in their applications/documents filed before different authorities, such as Court, MCD and DDA, but they also acted upon the said Will.
First category of evidences:
22.8. Let me examine first category of evidences first.
22.9. Ld. Counsel for the defendant no.4 had argued that the plaintiff has not been able to prove the Will in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act.
The said Section 63 provides for rules of executing an unprivileged Will. This provision particularly mandates that the Will must be attested by two or more witnesses. For the genuineness of the Will, it is required to be proved that two attesting witnesses have seen the testator signing the Will and they also signed in the presence of testator. Section 68 of the Evidence Act provides for mode of proof of execution of a document, which is required by law to be attested. As per this provision, a document, which is required by law to be attested, cannot be used as evidence unless at least one attesting witness is called for proving its execution if any attesting witness is alive and subject to the jurisdiction of the Court. In this regard, Ld. Counsel for the plaintiff CS DJ No. 1080/22 QAYYUM KHAN Page 33 of 61 v.
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drew attention of the Court towards Section 57 and 58 of the Indian Succession Act, 1925, as per which, the provisions of Part VI do not apply to testamentary succession to the property of a Muslim. Section 63 which mandates the attestation of a Will by two or more witnesses is contained in Chapter III of Part VI only. The High Court of Delhi in Iqbal Amiri v. The State and Ors., Test. CAS. No. 17/2011 (decided on 05.04.2016) has also held to the effect that a petition for probate of a Muslim Will is not maintainable because Chapter VI of the Indian Succession Act, 1925, does not apply to Mahomedans. When there is no requirement in the Muslim Law that the Will must be attested by witnesses, there does not arise a question of applicability of Section 68 of the Evidence Act, which provides for mode of proof of document required by law to be attested.
22.10. Ld. Counsel for the defendant no.4 also relied upon Section 69 of the Evidence Act, which provide for proof a document where no attesting witness can be found. Ld. Counsel, in this regard, relied upon the Judgments of the Supreme Court in Babu Singh and Ors. v. Ram Sahai @ Ram Singh, (2008) 14 SCC 754 and K. Laxmanan v. Thekkayil Padmini and Ors., (2009) 1 SCC 354 and the Judgment of the Chhatisgarh High Court in Choudhary and Ors. v. Ramkaran and Ors., Second Appeal No. 196 of 2010. Ld. Counsel submitted that it is only when no attesting witness can be found despite genuine effort that the plaintiff can proceed to prove the execution of Will as per Section
69. He also submitted that even under Section 69 handwriting/ signature of the testator and at least one attesting witness must be strictly proved.
22.11. I am of the considered view that Section 69 will also not apply for proof of a Muslim Will. As stated earlier, Section 68 requires that in case of a document required by law to be attested, at least one attesting witness must be called to prove the execution of the CS DJ No. 1080/22 QAYYUM KHAN Page 34 of 61 v.
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document. Section 69 deals with the situation where no attesting witness is available to give evidence in the Court. When no attesting witness is available, the minimum requirement as per Section 69, is that at least it must be proved that the signature of attesting witness and the executant are in their handwritings respectively. Thus, Section 69 is in the nature of an exception to Section 68. As already stated, when Section 68 of the Evidence Act does not apply to a Muslim Will, Section 69 will also not apply.
22.12. The fact that Sections 68 and 69 of the Evidence Act do not apply for proof of a Muslim Will does not mean that there is no provision providing for mode of proof of a Muslim Will. Here, Section 67 will be applicable, which reads as under:
"67. Proof of signature and handwriting of person alleged to have signed or written document produced. -- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."
22.13. The aforesaid Section 67 applies when a document is not required by law to be attested. This provision deals with the proof of writing of the document and signature on it. It lays down that when a document is alleged to have been signed or written by any person, the signature or the handwriting of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Here, it must be noted that it is not only the handwriting and/or signature of the executant, but also the signature of an attesting witness, which must be proved.
22.14. In the present case, the alleged Will dated 20.06.1979 purports to have been scribed by Bhagwati Prasad, signed by the testator, late Chand Khan, attested by two witnesses namely, Munshi Anees Ahmad CS DJ No. 1080/22 QAYYUM KHAN Page 35 of 61 v.
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and Baquar Ali, and signed by plaintiff, defendant no.3, 4, 5 and 6. As per Section 67 of the Evidence Act, the said handwriting as well as signatures of all these persons are required to be proved.
22.15. Plaintiff examined Irfan Ali as PW-16 for proving the signature of one of the attesting witnesses namely Baquar Ali. This witness in his examination-in-chief stated that his grand father, Baquar Ali, died in the year 1985. He testified that he could identify signature of his grand father as he had seen him writing and signing. He stated that his grand father used to send money orders under his signatures and, therefore, he was conversant with the signatures of his grand father. This witness also testified that the impugned Will dated 20.06.1979, Ex. PW-2/1 bore the signatures of his grand father. He also tendered in evidence copies of death certificates of his grand father and father as Ex. PW-16/A and Ex. PW-16/B respectively. He during his cross- examination on 09.12.2023 stated that he had studied till class 10th only. There are contradictions and inconsistencies in his answer to the question regarding the place of residence of his grand father in the year 1985. First, he stated that in the year 1985, his grand father used to live with him and his family in Pali, Hardoi. Then, he stated that his grand father in the year 1985 was working as a cook in Jor Bagh, Delhi. He also stated that the money orders sent by his grand father used to be received by his mother while he used to be in school at the time of receiving of the said money orders. Pertinently, the witness stated his date of birth to be 14.07.1970. Thus, in the year 1985, his age was about 15 years only. The witness did not produce any admitted signature of his grand father. Taking into consideration his age of 15 years in the year 1985 and he being in class 8th in the year 1984 as stated during his cross-examination on 09.12.2023, the Court is not convinced and satisfied that he could identify the signatures of his grand father on the Will on the basis of recollection of his memory as long back as about CS DJ No. 1080/22 QAYYUM KHAN Page 36 of 61 v.
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38 years before. Moreover, the witness during his cross-examination on 09.12.2023 also admitted that he was in touch with plaintiff's son for about 1 or 2 years and that he had come to the Court upon phone call from plaintiff's son. For all these reasons, it is held that the witness, Irfan Ali/PW-16 has not been able to prove signature of his grand father Baquar Ali, who was one of the attesting witnesses on the Will.
22.16. Plaintiff also examined Anil Kumar Goel as PW-6 for the purpose of proving the handwriting and signature of his father, late Sh. Bhagwati Prasad Goel, who has been stated to be the scriber of the Will. The witness in his examination-in-chief stated that the impugned Will is in handwriting of his father. He also stated that he was acquainted with his father's handwriting as he had seen him writing and signing. He stated that his father died in the year 2001. He further identified handwriting and signatures of his father upon another document, Ex. PW-2/3, which has been claimed by the plaintiff that the same was a statement given by late Sh. Bhagwati Prasad Goel during mutation proceedings pursuant to plaintiff's application. The Will in question is in Urdu language. The witness, PW-6 in his cross- examination on 07.09.2015 stated that he was not familiar with Urdu language and he further stated that he was not aware with the alphabets of Urdu language. He also produced a document, Ex. PW-6/D1, which he claimed to have been written by his late father in Urdu language. He, however, admitted that the said document did not bear his father's signature. He also stated that he could not affirm or deny whether the handwriting on the Will and that on the document Ex. PW-6/D1 are the same or not. The fact that the witness, PW-6 admitted to be not conversant with Urdu language renders him to be an incompetent witness for the purpose of proving the alleged Urdu handwriting of his father on the Will. Therefore, it is held that the handwriting of the Will, CS DJ No. 1080/22 QAYYUM KHAN Page 37 of 61 v.
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which has been alleged by the plaintiff to be in that of the scriber, late Bhagwati Prasad, has not been proved to be so.
22.17. Plaintiff has not examined the other witness on the Will namely Munshi Anees Ahmad on the ground that the said witness has not been traceable. Plaintiff has also not led any evidence to prove the signatures of the said witness on the Will.
22.18. The alleged Will purports to have also been signed by Yakub Khan (defendant no.3), Ayub Khan (defendant no.4), Habib Khan (defendant no.5) and Shakuran (defendant no.6). As per Section 67 of the Evidence Act, plaintiff was also supposed to prove the alleged signatures of all these persons on the Will. In this regard, Ld. Counsel for the plaintiff submitted that it has been the case of plaintiff that the impugned Will was signed by all these persons and that, therefore, it was for these persons to prove that the said Will was not signed by them. Ld. Counsel for the plaintiff laid a lot of emphasis on the point that these persons deliberately did not step into the witness box. He submitted that it was only Ayub Khan's son, Yusuf Khan, who examined himself as D4W1, who was born much after the execution of Will dated 20.06.1979. However, I do not find merit in this contention of Ld. Counsel for plaintiff. Ld. Counsel for the defendant no.4 has rightly relied upon the Judgment of the High Court of Delhi in Deepika Talwar v. Shalini Chaudhry Sharma and Ors., CS(OS) No. 110/2016 (decided on 30.01.2017) for contending that the party which propounds a Will has to prove the same and the onus cannot be placed on the challengers12. In this regard, the Supreme Court in Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors., (1977) 1 SCC 369 has observed as under:
12The reliance for this proposition is also placed upon the landmark Judgment of the Supreme Court in the case, H.Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR 1959 SC 443.CS DJ No. 1080/22 QAYYUM KHAN Page 38 of 61
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"8. The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder Singh."
22.19. In view of the above, a mere fact that the defendants themselves did not enter the witness box for proving their challenge to the Will, does not absolve the plaintiff from his onus to prove the Will as per law. The plaintiff, for proving the signatures of Yakub Khan (defendant no.3), Ayub Khan (defendant no.4), Habib Khan (defendant no.5) and Shakuran (defendant no.6), could have led the evidences of handwriting expert as provided under Section 45, or he could have examined any person acquainted with the handwriting of these persons as provided under Section 46. However, plaintiff did not lead any such evidences. Therefore, it is held that the plaintiff has not been able to prove that the said persons signed the Will.
22.20. It is also noted that there are so many suspicious circumstances surrounding the alleged execution of the Will. Plaintiff claims that late Chand Khan vide his Will dated 20.06.1979 bequeathed the entire properties falling in khasra no. 591 and 593 and half share of the property falling in khasra no.594 and another property bearing no. 258, Basti Nizamuddin in his favour. Plaintiff was, thus, a major beneficiary in the Will. The other legal heirs namely Yakub Khan (defendant no.3), Ayub Khan (defendant no.4), Habib Khan (defendant CS DJ No. 1080/22 QAYYUM KHAN Page 39 of 61 v.
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no.5) and Shakuran (defendant no.6) were all cumulatively given only half share in property in khasra no. 594 and in property bearing no. 258, Basti Nizamuddin. No bequeath at all was made in favour of any of the five daughters of late Chand Khan. The defendants have also alleged that late Chand Khan was in coma for more than 15 days from around 08.06.1979 till 23.06.1979 when he died. They have further alleged that the plaintiff has forged the impugned Will dated 20.06.1979. The High Court of Delhi in Jaswant Kaur (supra) explained as to how the propounder of a Will is supposed to discharge his onus of proving the Will:
"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
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 CS DJ No. 1080/22 QAYYUM KHAN Page 40 of 61 v.
MANJIT KAUR (SINCE DECEASED) BY LRS AND ORS. 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.
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 CS DJ No. 1080/22 QAYYUM KHAN Page 41 of 61 v.
MANJIT KAUR (SINCE DECEASED) BY LRS AND ORS. 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."
(emphasis added) 22.21. In view of the law as explained herein above, the plaintiff as a propounder of the Will had onus to prove by satisfactory evidences that the testator at the time of execution of the Will was in a sound and disposing state of mind and that he executed the Will of his own free will. In the present case, plaintiff has failed to lead any evidence to discharge the said onus. The conscience of the Court is, therefore, not satisfied that the impugned document/instrument dated 20.06.1979 was the last Will and testament of late Chand Khan.
22.22. In view of the above discussion, it is held that plaintiff has not been able to prove the Will through first category of evidences as stated in para 22.7.
22.23. Though the aforesaid finding is also in itself sufficient to hold that the Will has not been proved, nevertheless, now, I shall proceed to examine 2nd category of evidences led by the plaintiff for proving the Will.
Second category of evidences:
22.24. The first set of documents relied upon by the plaintiff are the copy of a Family Settlement dated 16.08.1979 and an application dated CS DJ No. 1080/22 QAYYUM KHAN Page 42 of 61 v.
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18.08.1979 filed by Smt. Shakuran (defendant no.6) before the MCD for mutation of property bearing no. 258, Basti Hazrat Nizamuddin, New Delhi. Both these documents were produced in evidence by the witness from the MCD (PW-3) and the same were exhibited as Ex.
PW-3/2 and Ex. PW-3/1. The defendants have alleged these documents to be forged and fabricated.
22.25. The aforesaid Family Settlement dated 16.08.1979 purports to have been signed by all the legal heirs of late Chand Khan, these are, his widow, four sons and five daughters. The case of plaintiff with respect to this document is that all the legal heirs of late Chand Khan by way of this Family Settlement had accepted the Will dated 20.06.1979 and had also agreed to divide the properties accordingly. It has been stated in this Family Settlement that the half portion of property in khasra no. 594, which is in possession of Balbir Singh and Harbans Singh (predecessors in interest of defendant no.1 and 2), has been bequeathed by late Chand Khan's Will dated 20.06.1979 in favour of the plaintiff and the other half portion has been bequeathed in favour of defendant no.3 to 6. However, in the alleged Will dated 20.06.1979, it has not been specifically stated as to which half portion will go to which party. For this reason, the said Family Settlement cannot be said to be in accordance with the Will dated 20.06.1979 as alleged by the plaintiff. There is yet another glaring infirmity in the alleged Family Settlement dated 16.08.1979. This document in its second last line reads as "This settlement will be used in departments of DDA, MCD, Delhi Vidyut Board and other government departments." In this regard, Ld. Counsel for the defendant no.4 submitted that though the alleged Family Settlement has been alleged to have been executed on 16.08.1979, the 'Delhi Vidyut Board' as mentioned therein was constituted only in the year 1997 and, therefore, the same is a forged and fabricated document on the face of it. I find merit in this CS DJ No. 1080/22 QAYYUM KHAN Page 43 of 61 v.
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submission of Ld. Counsel. The 'Delhi Vidyut Board' (DVB) was constituted in the year 1997 under the Delhi Vidyut Board Act, 1997. Before the establishment of DVB, the electricity supply in major portion of Delhi was handled by Delhi Electricity Supply Undertaking (DESU), which functioned under the Municipal Corporation of Delhi (MCD). There was, thus, no entity by the name of Delhi Vidyut Board at the relevant time, when the alleged Family Settlement dated 16.08.1979 was executed. The copy of Family Settlement dated 16.08.1979, therefore, appears to be forged and fabricated on the face of it.
22.26. So far defendant no.6, Shakuran's application dated 18.08.1979, Ex. PW-3/1 is concerned, Ld. Counsel for the defendant no.4 submitted that the words "On the basis of Will Shri Chand Khan dated 20.06.1979" in the subject and the words "Alongwith Will dated 20.06.1979 and Family Settlement dated 16.08.1979" have been interpolated in the application subsequently. The Court upon perusal of the said document finds merit in the submission of the Ld. Counsel to this effect. First para of the alleged application ends with the line " A death certificate is enclosed herewith". The last line is "I shall thankful to you for ever". In between these two lines, the words "Alongwith Will dated 20.06.1979 and Family Settlement dated 16.08.1979"
appear to have been added later on. These words do not make any sense and the same have been added without any context. This document, therefore, also appears to be a forged and fabricated document.
22.27. Plaintiff then relied upon a document which he claims to be the statement given by the defendant no.4 (late Ayub Khan) before the MCD on 13.05.1988. Plaintiff got this document produced in evidence as Ex. PW-17/3 through a witness from the Property Tax Department of MCD. Plaintiff claims that the defendant no.4, Ayub Khan had given this statement in writing in connection with some proceedings relating CS DJ No. 1080/22 QAYYUM KHAN Page 44 of 61 v.
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to house tax initiated by the MCD. Plaintiff claims that the said statement in 5th line reads as "उन्होंने एक वसीयत व कच्चा नक्शा दिया जो सलंगन है". Plaintiff further claims that it was the Will dated 16.06.1979 only which was mentioned in the aforesaid statement of defendant no.4, Ayub Khan. Plaintiff then also relied upon an assessment Order dated 16.05.1988, Ex. PW-3/3 passed by the MCD on the basis of the said statement. Plaintiff's further case is that the defendant no.4, Ayub Khan had filed a suit, CS 56/1993 therein challenging the aforesaid Order dated 16.05.1988. Plaintiff's claim that the MCD filed a written statement alongwith copies of defendant no.4's aforesaid statement dated 13.05.1988 and Order dated 16.05.1988. Ld. Counsel for the plaintiff submitted that the defendant no.4, Ayub Khan, instead of filing replication in the suit, withdrew the same and then filed an appeal, which was dismissed by the Appellate Court. Per contra, Ld. Counsel for the defendant no.4 submitted that the alleged statement dated 13.05.1988, Ex. PW-17/3 was never given by the defendant no.4 Ayub Khan and that the same was in fact given by the plaintiff himself. Upon perusal of the alleged statement dated 13.05.1988, Ex. PW-17/3, which starts with the name of the person giving the statement, the name has been mentioned as "कै य्यूम" and not "अयूब". In the absence of any convincing evidence that the said statement was given by the defendant no.4, Ayub Khan, the facts of Ayub Khan filing a suit, withdrawal of the suit and filing of an appeal, cannot be said to be proving anything convincingly.
21.28. Plaintiff then relied upon statement dated 09.01.1992 allegedly given by the defendant no.5, Habib Khan and statement dated 21.01.1992, allegedly given by late Scriber of the Will, Bhagwati Prasad. Both these statements have been alleged to have been given by these persons before the DDA pursuant to an application for mutation CS DJ No. 1080/22 QAYYUM KHAN Page 45 of 61 v.
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filed by the plaintiff. These statements were produced in evidence by plaintiff himself as Ex. PW-2/2 and Ex. PW-2/3 respectively. Plaintiff claims that Habib Khan and Bhagwati Prasad in their respective statements affirmed the Will dated 20.06.1979. However, plaintiff has not led any evidence to prove that these statements were in fact given by Habib Khan and Bhagwati Prasad as claimed. There is no evidence to prove handwritings and/or signatures upon these statements. Though plaintiff has examined Bhagwati Prasad's son, Anil Kumar Goel as PW-6, who claimed the aforesaid statement to be in handwriting of his father, I have already noted herein above discrepancies and untrustworthiness of his testimony. The said witness could not identify the writing in Urdu on the alleged statement, Ex. PW-2/3. Therefore, these statements do not prove execution of the Will dated 20.06.1979 convincingly.
22.29. Plaintiff also relied upon an application dated 19.03.2001 allegedly given by defendant no.4, Ayub Khan's wife, Smt. Shamina Begam before the MCD for the purpose of mutation in respect of property bearing no.258 C. Plaintiff's case is that the said Smt. Shamina Begam alongwith her application had also annexed a Family Settlement dated 08.03.2001, which was executed amongst Ayub Khan and his family members, being his wife and children. Plaintiff claims that in the said Family Settlement it has been mentioned that the defendant no.4, Ayub Khan is the owner by Will dated 20.06.1979 of late Chand Khan. Plaintiff got Smt. Shamina Begam's said application dated 19.03.2001 and the said Family Settlement dated 08.03.2001 produced in evidence through the witness from MCD (PW-1) as Ex.PW-1/1 and Ex. PW-1/2 respectively. Plaintiff's further case is that defendant no.4, Ayub Khan's son, Yusuf Khan had filed an appeal, Appeal No. 10290/2013 before the Appellate Tribunal of MCD against CS DJ No. 1080/22 QAYYUM KHAN Page 46 of 61 v.
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a demolition Order and that he alongwith his appeal had again filed the said Family Settlement dated 08.03.2001.
22.30. With regard to aforesaid Family Settlement dated 08.03.2001, Ld. Counsel for the defendant no.4 submitted that the said document, which has been produced through MCD witness as Ex. PW-1/2 is a forged document in as much as the words, " By Will Shri Chand Khan dated 20.06.1979" have been interpolated in handwriting over the said Family Settlement, which is otherwise a typed document. Ld. Counsel for the plaintiff denied the alleged forgery and submitted that it is the defendant no.4 who has filed forged Family Settlement dated 08.03.2001 before this Court. He submitted that the defendant no.4 created a forged Family Settlement dated 08.03.2001 after omitting the words, "By Will Shri Chand Khan dated 20.06.1979" and tendered the same in evidence as Ex. D4W1/3. Ld. Counsel submitted that the same defendant in another suit, Suit No. 433/14 had also filed a Family Settlement dated 08.03.2001, which was confronted to defendant no.4, Ayub Khan's son, Yusuf Khan (D4W1) as Ex. D4W1/P4. Ld. Counsel for the plaintiff submitted that there are clear differences in both documents, Ex. D4W1/3 and Ex. D4W1/P4, which, both, were filed on behalf of defendant no.4 only. He submitted that the witness, D4W1 was not able to give any satisfactory reply as to how two different Family Settlements can be claimed to be one and same document.
22.31. There is no dispute to the fact that the copy of Family Settlement dated 08.03.2001, Ex. PW-1/2, which is a typed document, bears an interpolation in handwriting with the words, " By Will Shri Chand Khan dated 20.06.1979". Further, this document, Ex. PW-1/2 as tendered in evidence is not original and rather, the same is a copy to copy. There is, thus, no proof that the said Family Settlement, Ex. PW-1/2, was in fact filed for the first time by defendant no.4, Ayub Khan's wife, Smt. Shamima Begum alongwith her application for CS DJ No. 1080/22 QAYYUM KHAN Page 47 of 61 v.
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mutation dated 19.03.2001. It might be possible that she had filed before the MCD the said Family Settlement dated 08.03.2001 without any interpolation of "By Will Shri Chand Khan dated 20.06.1979" and that these words were inserted subsequently in MCD record. It might also be possible that the defendant no.4, Ayub Khan's son, Yusuf Khan in his appeal before the Appellate Tribunal of MCD filed a copy of Family Settlement after obtaining the same from the record of MCD, which had already been interpolated. In the absence of any other proof, it cannot be conclusively determined that it was the defendant no.4 or any of his family members, who had mentioned " By Will Shri Chand Khan dated 20.06.1979" upon the Family Settlement dated 08.03.2001.
22.32. In view of the above, it is held that the plaintiff has not been able to prove the admission of Will dated 20.06.1979 by the defendants through the 2nd category of evidences, which are applications/ documents etc. filed before different authorities, such as Court, MCD and DDA.
22.33. The issue no.5 was whether the plaintiff forged the impugned Will dated 20.06.1979. Though the said Will has been held to have not been proved as per law, there is no positive evidence to conclude that the plaintiff forged the said Will. Nevertheless, the said Will is held to be invalid for want of consent by all the legal heirs as per the Muslim Law. The issue no.5 and 11 are determined accordingly.
22.34. Ld. Counsel for the defendant no.4 had also vehemently argued that plaintiff's status as legal heir of late Chand Khan or as an owner of the suit property on the basis of Will dated 20.06.1979 was already under dispute and, therefore, the present suit, simplicitor for the reliefs of declaration/cancellation with respect to Sale Deed dated 23.08.1991 and injunction, without seeking declaration regarding validity of the impugned Will or declaration regarding his ownership, was not CS DJ No. 1080/22 QAYYUM KHAN Page 48 of 61 v.
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maintainable. Ld. Counsel for this proposition relied upon the Judgments of Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and Ors., (2008) 4 SCC 594, T.V. Ramakrishna Reddy v. M. Mallappa and Anr., Civil Appeal No. 5577 of 2001 and Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan, Civil Appeal No. 5575-5576 of 2021. However, I do not find any merit in this contention.
Indubitably, the very basis of reliefs as sought in the plaint was the alleged Will dated 20.06.1979 and/or plaintiff's status of being the legal heir of late Chand Khan. There were necessary pleadings in the plaint with respect to these facts. Proper issues on the validity and genuineness of the Will were also framed. Parties from both the sides led extensive evidences on these issues. This Court after a lengthy trial and upon appraisal of enormous evidences has returned its findings on the issue of validity and genuineness of the Will. In such circumstances, dismissal of the suit merely on the ground that the plaintiff has not sought specific relief with respect to the impugned Will or with respect to his ownership, would be a too hyper-technical and pedantic approach. Even the Supreme Court under para 21(d) of the Anathula Sudhakar (supra) has held that in an appropriate case issue relating to title can be decided in an injunction suit and such decision would operate as res judicata upon the question of title.
23. Issue no.6: Whether the Sale Deed 23.08.1991 is illegal and forged and if so, its effect? OPD 23.1. The onus of proving this issue was upon the plaintiff.
23.2. The impugned Sale Deed was executed by defendant no.3 and 4 in favour of defendant no.1 and 2 for the purpose of selling a specific portion of the property falling in khasra no. 594 (municipal no. 4936), admeasuring 422 sq yards. The said specific portion was a built up property constructed on an area of 275 sq yards in the plot no. 58, Church Road, Bhogal, New Delhi-14. This specific portion was further CS DJ No. 1080/22 QAYYUM KHAN Page 49 of 61 v.
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described in the Sale Deed under the heading 'schedule of property' as bounded on : north with property no.56, south with Gurduwara i.e. property no.60, east with Church Road and west with Masjid lane.
23.3. It is noted that plaintiff's challenge to the said Sale Deed was based upon his claim that he by virtue of Will dated 20.06.1979 executed by his father, late Chand Khan was entitled to half share i.e. 211 sq yards in the property falling in khasra no. 594 (municipal no. 4936). He also claimed that after the death of late Chand Khan, a Family Settlement dated 16.08.1979, was executed and as per which, the aforesaid specific portion, which was sold to defendant no.1 and 2, had fallen to his share. I have already returned a finding while deciding issue no.5 and issue no.11 herein above that the alleged Will dated 20.06.1979 and the alleged Family Settlement dated 16.08.1979, have not been proved. Plaintiff's challenge to the impugned Sale Deed dated 23.08.1991 is, therefore, liable to be rejected. However, plaintiff's Counsel had also advanced an alternative submission, which was to the effect that the plaintiff, even if, the Will dated 20.06.1979 and Family Settlement dated 16.08.1979, are held to be invalid/not proved, would be entitled to 14/104th share in the entire plot of 422 sq yards falling in khasra no. 594 (municipal no. 4936) as per the Muslim Personal Law of Inheritance13.
23.4. It is noted that the defendant no.1 and 2 in their common written statement and also the defendant no.4 and LRs of defendant no.6 in their common written statement had taken a plea that the plaintiff, Qayyum Khan and the defendant no.5, Habib Khan were not the sons of late Chand Khan. These defendants alleged that the plaintiff and defendant no.5 were the sons of late Chand Khan's first wife, Smt. 13 Plaintiff's Counsel under paragraph 60 of written submissions has explained the quantum of share of all LRs of late Chand Khan. However, the present suit, being not a partition suit, I am not dwelling into the question of correctness or otherwise of the same.
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Chotti from her previous marriage with one Chand Ram. However, these defendants did not lead any evidence to prove this plea. Ld. Counsel for the plaintiff relied upon cross-examination of defendant's witness, Yusuf Khan/D4W1 (son of late Ayub Khan/defendant no.4) conducted on 13.07.2016 wherein the said witness admitted that late Chand Khan upon his death on 20.06.1979 was survived by four sons namely Habib Khan, Yakub Ali, Qayyum Khan and Ayub Khan and five daughters. In view of this, plaintiff is held to be one of the legal representatives of late Chand Khan, who is entitled to inherit, as per the Muslim Law of Inheritance, the estate left by late Chand Khan.
23.5. It is also noted that the defendant no.1 and 2 in their common written statement have taken another plea which is that as per the Family Settlement dated 25.12.1984 executed amongst the LRs of late Chand Khan namely his widow, four sons and five daughters, the property which is the subject matter for Sale Deed dated 23.08.1991, had fallen to the share of defendant no.3 and 4. A Family Settlement, albeit without date, has also been mentioned in clause 8 of the said Sale Deed. However, the defendants utterly failed to tender in evidence any such Family Settlement, much less than proving the same as per law. Thus, the very premise of Family Settlement, basis which, the defendant no.3 and 4 professed to have power to sell a specific portion of the property in khasra no. 594 (municipal no. 4936) in favour of defendant no.1 and 2, has not been proved.
23.6. In view of the above, it is held that all the legal heirs of late Chand Khan namely his widow, Shakuran (defendant no.6); his four sons namely Qayyum Khan (plaintiff no.1), Yakub Khan (defendant no.3), Ayub Khan (defendant no.4), Habib Khan (defendant no.5) and his five daughters, namely Habiban, Khairun Nisha, Qutban, Ayuba and Shabina, were the co-sharers/joint owners of the entire property, CS DJ No. 1080/22 QAYYUM KHAN Page 51 of 61 v.
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admeasuring 422 sq yards, khasra no. 594 (municipal no. 4936), Church Road, Jungpura, Bhogal, New Delhi.
23.7. Now, it needs to be examined as to whether what are the rights of a joint owner vis-a-vis other joint owner(s) qua the joint property.
23.8. A joint property refers to property that is owned by two or more persons together, where each owner has a legal interest in the whole property, rather than in a physically divided portion. Each co-owner has a right to possession and enjoyment of every part of the property. Until partition, no co-owner can claim exclusive ownership over a specific portion. The Supreme Court in Kochkunju Nair v. Koshy Alexander, (1999) 3 SCC 482 explained the concept of co-ownership in a joint property as under:
"9. Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property, he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and coordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co- owner has, in theory, interest in every infinitesimal portion of the subject-matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others (vide Mitra's Co- ownership and Partition, 7th Edn.)."
23.9. Now, it would be relevant to examine whether a co-owner can sell his undivided share or whether he also has the power to sell specific portion of the joint property without partition. The general rule is that he can transfer by way of sale or gift his undivided share without first seeking partition. Section 44 of Transfer of Property Act, 1882, recognizes such right of the joint owner:
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44. Transfer by one co-owner.--
Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
23.10. The purchaser of undivided share of a co-owner gets the right to step into the shoes of the seller. He also gets a right to joint possession (subject to limitations) until partition of the joint property. However, he is not entitled to exclusive possession of any part of the joint property. Section 44 also makes special provision for residential house (family dwelling). In case of a dwelling house belonging to an undivided family, the purchaser cannot claim joint possession. He can only claim partition. This protection is meant to prevent intrusion of strangers into family home.
23.11. Having said above, a joint owner, holding howsoever large share, does not have any right to sell any specific portion, howsoever small, of the joint property. The principle is that a joint owner is owner of every inch of the joint property jointly, but he is not the owner of single inch exclusively. It is only by way of partition that each co- owner in a joint property gets right to the extent of his share over specific portion of the property and then he can deal with the said portion howsoever he pleases. The High Court of Madhya Pradesh in Parmal Singh v. Ghanshyam, 2019 SCC OnLine MP 3404 observed as under:
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11. Thus, it is clear that when the property in dispute is joint in nature, then although the co-sharer can sell the property to the extent of his share, but he cannot sell the specific piece of land. A co-sharer can alienate the property only to the extent of his share and alienation of the property beyond his share is void...
13. It is well established principle of law that unless and until the property is partitioned, the co-sharer can only sell to the extent of his share, but he cannot sell any specific portion of the land..."
23.12. The reason for the aforesaid rule is but obvious. A small specific portion, say 10% of total size, may hold more value, on account of its strategic location or other reasons, than the value of remaining 90% of the property. Let us assume that there are four co-
owners, each holding 1/ 4th share in a joint property. No such co-owner can sell any specific portion of his choice without consent of other co- owners, even if the size of that specific portion is proportionate to his share i.e. 25%, because, as stated earlier, the value of that 25% specific portion may be more than that of remaining 75% of the joint property.
23.13. The Supreme Court in its recent Judgment pronounced on 10.09.2024 in the case, S.K. Golam Lalchand v. Nandu Lal Shaw @ Nand Lal Keshari @ Nandu Lal Bayes and Ors., Civil Appeal No. 4177 of 2024 reiterated the legal position that a co-owner of an undivided property can only transfer his undivided share in that property. A co- owner does not have the right to transfer the entire property or any specific portion of it without the partition of the joint property and the demarcation of his individual share.
23.14. Nemo dat quod non habet is a fundamental principle of property law which means that a person cannot transfer a better title to property then the title he himself possess. If the transferrer has no ownership or defective title, the transferee also does not get a valid title. This is subject to certain exceptions, such as transfer by ostensible CS DJ No. 1080/22 QAYYUM KHAN Page 54 of 61 v.
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owner (Section 44 of the Transfer of Property Act) or the doctrine of part performance (Section 53A of Transfer of Property Act). As per Section 7 of the Transfer of Property Act, a property can be transferred only by a person, who is either entitled to the said property, or who is authorized to dispose of the property not belonging to him. As per Section 8, upon transfer of a property, only those interests are transferred to the transferee, which the transferrer is capable of transferring.
23.15. In view of the law as explained herein above, it is held that the defendant no.3 and 4, being only the joint owners, alongwith other co- owners, including plaintiff, had no right to transfer the specific portion14 of the property by way of Sale Deed dated 23.08.1991 executed in favour of the defendant no.1 and 2.
23.16. Pertinent to note here is that the defendant no.1 and 2 cannot claim to be the bonafide purchasers. It is not their case that they were not aware about the dispute over the property by other legal heirs of late Chand Khan. These defendants in their common written statement have specifically pleaded that the plaintiff had filed objections before the Sub Registrar against the proposed registration of Sale Deed by defendant no.3 and 4 in their favour. Moreover, these defendants have claimed to have purchased the property from defendant no.3 and 4 on the basis of the alleged Family Settlement dated 25.12.1984, which, they have not been able to prove though.
23.17. The Supreme Court in S.K. Golam Lalchand (supra) has also held that in case of an invalid sale of a specific portion by a co-owner, 14 The said specific portion was a built up property constructed on an area of 275 sq yards in the plot no. 58 (khasra no. 594 and municipal no. 4936), Church Road, Bhogal, New Delhi-14. This specific portion was further described in the Sale Deed under the heading 'schedule of property' as bounded on : north with property no.56, south with Gurduwara i.e. property no.60, east with Church Road and west with Masjid lane.
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it is not mandatory for other co-owner(s), who are not the parties to the sale, to mandatorily seek the relief of cancellation with respect to the Sale Deed under Section 31 of the Specific Relief Act, 1963.
23.18. However, plaintiff, in the present case, has sought the relief of declaration to the effect that the Sale Deed dated 23.08.1991 be declared illegal and void. In view of the law, as explained herein above, plaintiff is held entitled to this relief. Ordered so.
23.19. The issue no.6 is determined in aforesaid terms in favour of the plaintiff and against the defendants.
24. Issue no.7: Whether the plaintiff is entitled for Decree of possession as prayed? OPP Issue no.8: Whether the plaintiff is entitled for Decree of declaration as prayed? OPP Issue no.9: Whether the plaintiff is entitled for Decree of permanent injunction, as prayed? OPP 24.1. The onus of proving all these issues were upon the plaintiff.
24.2. These issues are being taken up together as they are inter- related.
24.3. The sale of the property in favour of defendant no.1 and 2 vide the impugned Sale Deed dated 23.08.1991 has already been held to be illegal herein above. The issues under consideration were framed as plaintiff has sought the relief that the defendant no.1 and 2 be declared to be the tenants and that the possession of the property be also recovered from them and be handed over to the plaintiff. Plaintiff is also seeking an injunction to restrain creation of 3rd party rights or transfer of possession and injunction to restrain the defendant no.7/DDA from making any change in mutation record in the name of plaintiff.
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24.4. It is noted that the defendant no.1 and 2/their predecessors were in possession of the property even before purchase of the same vide Sale Deed dated 23.08.1991. This case has a chequered history as explained in Order dated 29.11.1982 passed by the Delhi High Court in Civil Writ Petition No. 123/1972. The suit property was owned by Chand Khan and his brothers. During the riots of 1947, Chand Khan left his property in Bhogal and shifted to Nizamuddin. His brothers were killed during the said riots. The properties of Chand Khan in Bhogal, including the suit property in khasra no. 594 (municipal no. 4936), were declared as evacuee properties in the year 1948. The properties became vested in the Custodian. The suit property was then allotted to one Santokh Singh and his brothers, Balbir Singh and Harbans Singh15 on a monthly rent of Rs. 3.50 paisa. In the year 1954, Chand Khan returned and he made an application to the Custodian for restoration of his properties including the suit property on the ground that he never migrated to Pakistan and, therefore, his properties were not evacuee properties. On 01.08.1966, the government passed an Order under Section 16 of the Administration of Evacuee Property Act, 1950, thereby restoring the suit property to Chand Khan. On 17.10.1966, Chand Khan applied to the Regional Settlement Commissioner for issuing attornment letter to the aforesaid tenants. On 04.10.1971, the Central Government passed another Order in suppression of earlier Order dated 01.08.1966. It was inter alia directed that the evacuee properties were being restored to Chand Khan subject to the condition that he shall not evict the tenants except in accordance with law. The Managing Officer, vide letter dated 08.11.1971, directed the aforesaid tenants to pay rent to the restoree, Chand Khan. On 02.02.1972, the Managing Officer-cum-Assistant Custodian issued a notice to the aforesaid tenants thereby calling upon them to surrender 15 While the defendant no.1, Manjeet Kaur is the widow of late Balbir Singh, defendant no.2, Devender Kaur is the daughter-in-law of late Harbans Singh.
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possession of the property to Chand Khan within 72 hours failing which they shall be evicted by use of force. The tenants challenged this letter by way of aforesaid writ petition. The High Court while allowing the said writ petition held that as per Section 16 of the Administration of Evacuee Property Act, 1950, the allotment in favour of tenant was deemed to be a lease binding upon the restoree, Chand Khan and that the said lease could be terminated only in accordance with law. The High Court ultimately quashed and set aside the notice dated 02.02.1972 whereby the aforesaid tenants were directed to be evicted, with liberty to Chand Khan's LRs to take recourse of remedy as per law. The plaintiff, defendant no.3 to 5 and defendant no.6, as LRs of late Chandu @ Chand Khan have filed an appeal, LPA 45/1983 against the decision of allowing the aforesaid writ petition. There is nothing on record about the outcome of the said LPA.
24.5. Ld. Counsel for the plaintiff while relying upon M/s India Umbrella Manufacturing Company and Ors. v. Bhagabandei Aggarwala (dead) by LRs and Ors., AIR 2004 SC 1321 and T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors., AIR 2003 SC 2427, contended that in view of Section 111(d) of the Transfer of Property Act, the nature and character of possession of a tenant, who purchases share of some of the joint owners of the tenanted property, and not of all joint owners, remains as a tenant only and tenancy is not determined by such part purchase. Ld. Counsel also contended that specific notice under Section 106 of the Transfer of Property Act is not required for termination of tenancy of the tenant and that merely filing a suit amounts to termination tenancy. Basis these submissions, Ld. Counsel submitted that the defendant no.1 and 2 may be directed to handover possession of the suit property to the plaintiff.
24.6. I have already held herein above that the sale of the suit property in favour of the defendant no.1 and 2 vide the impugned Sale Deed CS DJ No. 1080/22 QAYYUM KHAN Page 58 of 61 v.
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dated 23.08.1991 executed by defendant no.3 and 4 is illegal and that the defendant no.1 and 2 on the basis of the said sale cannot claim to be the owners. These defendants, being the LRs/successors in interest of original allottees/tenants namely Balbir Singh, Santokh Singh and Harbans Singh, are held to be in possession over the suit property in the capacity of being tenants only. Plaintiff has sought recovery of possession merely on the premise that the defendant no.1 and 2 have not become owner by virtue of the impugned Sale Deed dated 23.08.1991 and they continue to be the tenants, whose tenancy stands terminated by reason of filing of the present suit. However, I do not find any merit in this claim. There is nothing on record to determine whether the tenancy of the defendant no.1 and 2 is simply a contractual tenancy or the same is protected under rent control statute. It is a settled law that a tenancy protected under rent control statute can be determined only upon proof of specific statutory grounds of eviction. In view of this, plaintiff is not held entitled to the relief of recovery of possession against defendant no.1 and 2.
24.7. Having said above, the defendant no.1 and 2, having been held to be merely the tenants, are liable to be restrained by way of an injunction from creating any sort of 3rd party rights or from parting with possession of the suit property. Held so.
24.8. Plaintiff is also seeking an injunction to restrain the defendant no.7/DDA from making any change in mutation record pertaining to the suit property in the name of plaintiff. It is noted that the plaintiff had got the mutation recorded in his name on the basis of the alleged Will dated 20.06.1979 of late Chand Khan, which has been held to be invalid and not proved herein above. In such circumstances, plaintiff cannot claim this relief. Held so.
24.9. The issue no.7, issue no.8 and issue no.9 are determined in aforesaid terms.
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25. Relief/conclusion:
25.1. As a net result of findings on the issues, the present suit is partly allowed in favour of the plaintiff. The findings on the issues are summarized as under:
(a) Issue no.1 has been decided against the defendant no.1 and 2 by holding that the suit is not barred under Order II Rule 2 CPC or under Order XXIII Rule 1 CPC;
(b) Issue no.2 has been decided against the defendants by holding that the reliefs in the suit have been properly valued for the purpose of Court fees and jurisdiction;
(c) Issue no.3 has been decided against the defendants by holding that suit is not barred by limitation;
(d) Issue no.4 has been decided against the defendants by holding that suit is not bad for misjoinder of cause of action;
(e) Issue no.5 has been decided against the defendant by holding that there is no positive evidence to conclude that the plaintiff has forged the impugned Will;
(f) Issue no.6 has been decided in favour of the plaintiff by holding that the Sale Deed dated 23.08.1991 is illegal and that the same does not transfer ownership in favour of the defendant no.1 and 2;
(g) Issue no.7 has been decided against the plaintiff by holding that he is not entitled to recovery of possession of the suit property;
(h) Issue no.8 has been decided in favour of the plaintiff by declaring that the defendant no.1 and 2 are tenants in the property;
(i) Issue no.9 has been decided in favour of plaintiff by granting an injunction thereby restraining the defendant no.1 and 2 from CS DJ No. 1080/22 QAYYUM KHAN Page 60 of 61 v.
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creating any sort of 3rd party rights or from parting with possession of the suit property.
(j) Issue no.10 was the relief, if any, only. (k) Issue no.11 has been decided against the plaintiff and in favour
of the defendants by holding that not only the impugned Will dated 20.06.1979 is invalid as per Mahomedan Law, but even the very execution of the same could not be proved.
26. As some of the issues have been decided in favour of plaintiff and other issues have been decided in favour of the defendants, parties from both the sides are left to bear their own costs of the suit.
27. Decree-sheet be prepared, accordingly and file be consigned to Record Room thereafter.
Announced & dictated in the open Court on 26.12.2025 (Sachin Mittal) District Judge-03/South-East District Saket Courts, New Delhi/26.12.2025 Certified that this Judgment contains 61 pages and each page bears my signatures.
(Sachin Mittal) District Judge-03/South-East District Saket Courts, New Delhi/26.12.2025 Note: This Judgment was pronounced on 26.12.2025. However, it could not be corrected and uploaded due to Courts being closed from 27.12.2025 to 02.01.2026. It, now, having been corrected today i.e. 08.01.2026, is being released for being uploaded.
Digitally
signed by
SACHIN
SACHIN MITTAL
MITTAL Date:
2026.01.08
16:56:38
+0530
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