Delhi District Court
vs Smt. Naraini on 18 March, 2010
IN THE COURT OF SH. DHEERAJ MOR, CIVIL JUDGE, TIS HAZARI
COURTS, DELHI
Suit No. 856/06
Smt. Khazani,
W/o Sh. Banwari Lal,
R/o H. No. 19, Village Barwala, Delhi.
Plaintiff.
V/s
1. Smt. Naraini,
D/o Sh. Banwari,
W/o Sh. Har Kishan,
R/o Gali Khatiwali, Jatwara,
Bahadurgarh (Rohtak).
2. Smt. Kiran Devi,
D/o Sh. Banwari,
W/o Sh. Puran Mal,
R/o H. No. 248, Village Barwala,
Delhi.
3. Sh. Madan Kumar,
S/o Sh. Mehar Singh,
R/o H. No. 248, Village Barwala,
Delhi.
4. Sh. Parveen Kumar (Minor),
S/o Sh. Mehar Singh,
Through his father & natural guardian
Sh. Mehar Singh,
R/o H. No. 248, Village Barwala,
Delhi.
Suit no. 856/06 Page 1
5. Kumari Seema Devi (Minor),
S/o Sh. Mehar Singh,
Through his father & natural guardian
Sh. Mehar Singh,
R/o H. No. 248, Village Barwala,
Delhi.
Defendants
SUIT FOR PARTITION
Date of Institution : 21.09.1989
Date of Judgment : 18.03.2010
JUDGMENT : This judgment shall dispose of the suit for partition filed by the plaintiff against the defendants.
2. The brief facts of the case as averred by the plaintiff are that Late Shri Banwari was the husband of the plaintiff and father of defendants no. 1, 2 and predeceased daughter Smt. Kremwati. Defendants no. 3 & 4 are the sons of Smt. Karem Wati and defendant no. 5 is the daughter of Late Smt. Karem Wati. Smt. Karem Wati was the daughter of Sh. Banwari who died about 11 or 12 years ago during the life time of Sh. Banwari, who died on 08.09.1986. It is further averred by the plaintiff that Sh. Banwari was the son of Sh. Hardwari and had inherited the following properties from Sh. Hardwari Lal: Suit no. 856/06 Page 2
(a) Ho. no. 19, Village Barwala, Delhi measuring about 140 Sq. Yards.
(b) Ho. no. 248, Village Barwala, Delhi measuring about 200 Sq. Yards.
(c) One Gitwar, Village Barwala, Delhi measuring about 300 Sq. Yards.
(d) Agricultural land measuring 4 Bighas and 16 Biswas.
Plaintiff further averred that the plaintiff and Sh. Banwari possessed the said properties as joint family properties and after the death of Sh. Banwari the parties are in joint possession of properties.
It has been averred by the plaintiff that property mentioned at serial no. 'd' is an agricultural land and therefore the provisions of Delhi Land Reform Act are applicable to the said land and hence this Court does not have jurisdiction to partition the said agricultural land. In view of the said provisions the plaintiff alone is entitled to inherit the same as Sh. Banwari Lal had no son. The plaintiff has averred that properties mentioned at serial no. 'a' to 'c' are ancestral joint hindu property, therefore, only properties mentioned from serial no. 'a' to 'c' (Hereafter referred to as suit property) is liable to be partitioned in accordance to the shares mentioned as below : Plaintiff 5/8th Share Defendant no. 1 1/8th Share Defendant no. 2 1/8th Share Suit no. 856/06 Page 3 Defendant no. 3 to 5 Collectively have 1/8th Share of 1/24 each.
Therefore, the plaintiff has approached this court for seeking decree of partition in respect of the suit property.
3. The notice of the present suit was served upon the defendants. Defendant no. 1 has filed her WS and in her WS she has contended that she has no objection if the suit property is partitioned and she is given her share out of the suit property. The defendant no. 2 has filed her separate WS and she has contended that Sh. Banwari Lal had executed a Will in her favour in respect of Ho. no. 19 out of the suit property and therefore, the said property out of the suit property is not liable to be partitioned. She has further contended that Ho. no. 248 out of the suit property is exclusively occupied by Sh. Mehar Singh and defendant no. 3, 4 and 5 and the said house did not belong to Late Sh. Banwari Lal as the same was not inherited by him from Sh. Hardwari Lal. She has further contended in her WS that the House No. 19 and House No. 248 of the suit property are not liable to be partitioned as they are not the joint family properties of the plaintiff and defendants. Therefore, defendant no. 2 has submitted that the suit be dismissed.
4. WS on behalf of defendant no. 3 is also filed and he has also taken the same stand as that of defendant no. 2. Another WS on behalf defendant no. 4 and 5 was filed through their court guardian Sh. D. C. Saini in which they have Suit no. 856/06 Page 4 denied all the averments of the plaintiff and have submitted that the suit of the plaintiff be dismissed. Therefore, defendant no. 1 has admitted the suit of the plaintiff whereas defendant no. 2 to 5 are in issue with the plaintiff.
5. Replication on behalf of plaintiff to the WS of defendant no. 2 was filed wherein the plaintiff has categorically denied that the deceased husband of the plaintiff ever executed any Will in favour of defendant no. 2 and defendant no. 3 and 4 in respect of Ho. no. 19 and again reiterated her stand that the suit property is a joint Hindu property which is liable to be partitioned in accordance with law applicable to the parties.
6. From the pleadings following issues were framed by the Ld. Predecessor of this court on 06.03.1992:
1. Whether plaintiff is entitled to the decree as prayed for ?OPP.
2. Whether deceased Sh. Banwari Lal executed any Will in favour of defendants no. 2 to 4 in respect of property no. 19 as well as agricultural land, as alleged in preliminary objection no. 1 of WS of defendant no. 2.? OPD2.
3. Whether plaintiff has no locus standi to file the suit for the reasons given in preliminary objection no. 6 in WS of defendant no. 2? OPD2.
Suit no. 856/06 Page 5
4. Whether this court has no pecuniary jurisdiction to try the suit? OPD2.
5. Whether properties mentioned in para 2(a) to (c) of the plaint are joint properties of plaintiff and defendants in the shares given in para 6 of plaint? OPP.
6. Relief.
7. Thereafter, suit proceeded for plaintiff evidence. In order to prove her case plaintiff examined 4 witnesses i.e. PW1 Smt. Khazani Devi i.e. plaintiff herself, PW2 Sh. Chattar Singh, PW3 Sh. Harkishan and PW4 Sh. Dharm Bal.
PW1 Smt. Khazani Devi in her deposition testified that the suit property belonged to Sh. Hardwari Lal, her fatherinlaw, and after his death the same was inherited by Sh. Banwari Lal, her husband being the only son of Shri Hardwari Lal. It is further testified by her that the suit property was a joint property and her husband never executed any Will in favour of defendant no. 2, 3 or 4. She has deposed that she used to live along with her husband in the house no. 19 of the suit property and about 4 years ago defendant no.2 took illegal possession of one room of house no. 19 of the suit property. She has further testified that house no. 248 out of the suit property also belonged to her Suit no. 856/06 Page 6 husband and after the death of her daughter Smt. Kremwati, the three children of predeceased daughter Smt. Kremwati i.e. defendants no. 3 to 5 were permitted to live in house no. 248 of the suit property. She has deposed that she and father of defendants no. 3 to 5 are in possession of the gitwar of the suit property. She further testified that her husband got a document written from Sh. Raghbir in her presence and in the presence of defendants no.1 and 2 and other witnesses whereby he had reflected his desire as to how the suit property will be partitioned after his death and death of the plaintiff. She has also deposed that they are Hindu by religion and suit property is joint Hindu Family property. The examinationinchief of PW1 was effected on 26.03.1993 but her cross examination was deferred on that date at the request of Counsel for defendant no. 2. The cross examination of said PW1 could not be effected as she expired before her cross examination. Hence, an application U/o 22 rule 3 CPC was moved by her LR Sh. Dharam Bal on the basis of a Will dated 10.04.1989 executed by the plaintiff in his favour. The said Will was proved as Ex. AW1/1 and on the basis of said Will Sh. Dharam Bal was impleded as LR of the plaintiff vide order dated 20.01.1997 by the Ld. Predecessor of this court.
8. Thereafter, PW2 Sh. Chattar Singh appeared in the witness box and deposed that Sh. Banwari Lal was the owner of the suit property and he was survived by his widow, two daughters and two sons and a daughter of the pre deceased daughter. He further deposed that the settlement was arrived in a panchayat called by Sh. Banwari Lal in the year 1986 wherein the scheme was envisaged by Sh. Banwari Lal for the partition of the suit property that was to Suit no. 856/06 Page 7 come in operation after his death and death of the plaintiff. The said document is exhibited as Ex.P1 and he identified his signatures on it. Thereafter Sh. Harkishan was examined as PW3 and he has also deposed on the same lines. He has testified that Sh. Banwari Lal was his fatherinlaw and he was the owner of two houses, out of which one was near Mandir and the other was near Chopal in village Barwala. He has testified that besides two house, gitwar was also in ownership of Sh. Banwari Lal.
9. Thereafter, PW4 Dharam Bal was examined and he has testified that he is the son of defendant no. 1 and that he was living with his late maternal grandfather for last about 24 years. He has further testified that his late maternal grand father Sh. Banwari Lal, had three daughters out of which one Ms. Kremwati expired during his life time and defendant no. 3 to 5 are children of the said Ms. Kremwati. He has further testified that he was got married by his maternal grand father and he used to look after his maternal grand parents. The PW4 has deposed that Sh. Banwari Lal was the owner of the suit property including house. no. 19, house no. 248 and gitwar at village Barwala, and after his death the suit property devolved upon his maternal grand mother, defendant no. 1 & 2 and children of predeceased daughter of the Sh. Banwari Lal i.e. defendants no. 3 to 5. PW4 proved site plan of house no. 19, house no. 248 and gitwar as EX PW4/1, Ex. PW4/2 and Ex. PW4/3 respectively. He proved his signatures on document Ex.P1 and testified that the said document was executed by Shri Banwari Lal and at the time of its execution many persons were present including defendants no.1 and 2. He Suit no. 856/06 Page 8 has placed on record the electricity bills EX PW 4/6 and EX PW 4/7, water bills EX PW 4/8 and EX PW 4/9 and all the said bills are in the name of Sh. Banwari Lal, his maternal grand father. He has also placed on record plaint no. 173/89 filed by defendant no. 2 as EX PW 4/10 and the certified copy of the replication of the said suit is proved as EX PW 4/11. The PW4 was crossexamined and in his crossexamination, he has deposed that agricultural land is mutated in the name of defendants no. 2 to 4. He has further testified that the possession of house no. 248 was handed over by Late Sh. Banwari Lal to Sh. Mehar Singh, being his relative and no rent was charged from Sh. Mehar Singh in his presence. Thereafter, plaintiff evidence was closed on 11.02.2000 on the basis of statement of the counsel for the plaintiff and the suit proceeded for defendant's evidence.
10. The defendants to controvert the claims of the plaintiff and to prove their case examined 3 witnesses i.e DW1 Smt Kiran Devi, DW2 Sh. Mehar Singh and DW3 Sh. Ram Kishan. DW1 has deposed that Sh. Mehar Singh, husband of her late sister Kremwati is the owner of house no. 248 of the suit property. She has further testified that her father late Sh. Banwari Lal had executed a Will on 14.08.1986 but the said original Will has been lost. The certified copy of the said Will is marked as Mark A. She was crossexamined by the counsel for the plaintiff and in her crossexamination, she has denied her signatures on document Ex. P1 and also deposed that no such document was ever executed. In her crossexamination, she has refused to have filed any case against her mother, the plaintiff herein and Dharam Bal, the LR of the plaintiff.
Suit no. 856/06 Page 9 She has also testified in her crossexamination that she has seen a document and as per the said document, Sh. Mehar Singh is the owner of house no. 248 of suit property and the said document was shown to her by Sh. Mehar singh. DW2, Sh. Mehar Singh in his deposition stated that he is the soninlaw of Sh. Banwari Lal, late husband of the plaintiff, and he is the owner of the house no. 248, Village Barwala of the suit property. In his examination in chief he has deposed that Sh. Banwari Lal had executed a Will in his favour on 14.08.1986 and the same has been misplaced on 13.09.1992. He has proved electricity bills in respect of ho. no. 248 and the same are exhibited as EX DW 2/1 to Ex DW 2/3. He has also proved certified copy of the Khatoni exhibited as EX DW2/4 to EX DW 2/7. In his deposition he has categorically denied to have written or signed EX PW 4/4 and EX PW 4/5. In his crossexamination, DW2 has deposed that the house no. 248, Village Barwala of the suit property was given to him by Shri Banwari Lal and earlier electricity and water connections were in the name of Sh. Banwari Lal and later on in the year 198485 he got the new connections in his name. He has further testified that Sh. Banwari Lal had asked him to get his name entered in Lal Dora certificate but he has deposed that he does not have any writing to this effect. He has deposed that Sh. Banwari Lal lived with the plaintiff till his death in H. No. 19, Village Barwala. He has disputed his signatures on document Ex. P1.
11. DW3 Sh. Ram Kishan has testified that Sh. Mehar Singh is the owner of house. no. 248, village Barwala of the suit property and he is living in the said house since last 40 years. He has also testified that Sh. Banwari Lal had Suit no. 856/06 Page 10 no concern with the said house. In his crossexamination, he has deposed that Sh. Banwari Lal was the sole son of his father Sh. Hardwari Lal. He has further deposed that Sh. Banwari Lal had inherited the house no. 248, H.NO. 19 and gitwar from his father Sh. Hardwari Lal. DW1 has testified that a Panchayat was called by late Sh. Banwari Lal before his death, but he was not present in the said Panchayat. He has also deposed that electricity and water connections in house no. 248 were in the name of Sh. Banwari Lal. Thereafter, DE was closed on 04.07.02 and the suit proceeded to final arguments.
12. On 29.11.2004, an additional issue was framed by the learned Predecessor of this Court and the same is as follows:
1(a) Whether the present suit is maintainable in its present form? OPD The said issue was decided in favour of the defendant and against the plaintiff and, therefore, suit of the plaintiff was dismissed vide order dated 29.11.2004. However, the appellate Court vide order dated 01.12.2005 set aside the said judgment and remanded it back to this Court for deciding the said issue afresh after affording an opportunity of hearing to both the parties.
13. I have heard the arguments of the counsel for both the parties and have gone through the case file carefully.
Suit no. 856/06 Page 11
My issue wise findings are as follows:
14. Issue No. 1(a)
The onus of proving the present issue lies on the defendants. The defendants have not led any evidence to substantiate this issue. However, in the arguments counsel for the defendants have contended that Ex. P1 is a Will of late Shri Banwari Lal and the same is duly proved by PW2 and PW3. It is, therefore, contended that the suit property of late Shri Banwari Lal have devolved upon his successors in accordance with the contents of the said Will. It is further contended by the counsel for the defendants that the suit property has ceased to be a joint Hindu property and, therefore, the plaintiff does not have any interest in the suit property and so she cannot seek partition of the suit property. The contention of the defendants, that the said document EX P 1 is a Will of Late Sh. Banwari Lal and it has come into effect is not sustainable.
The word "Will" as per Indian Succession Act (39of 1925) Section 2
(h), means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. From the definition we get the following elements of Will:
(i) Will is a conferment of right of one's property on another;
(ii)This conferment of rights is to take effect after the death of the testator.
The conferment must be complete and should not be a mere intention to confer a right of property. As per the contents of the said Suit no. 856/06 Page 12 document EX P1 the conferment/devolution envisaged was to come in force only after death of both Late Sh. Banwari Lal as well as plaintiff herein. The said document also provides that the conferment/devolution envisaged in the said document, can be altered/amended with the consent of both i.e. Late Sh. Banwari Lal and plaintiff herein. Therefore, EX P1 is a conditional Will, which was to become operative after the death of both Late Sh. Banwari Lal as well as plaintiff herein and the same was revocable with the consent of both. Hence, it can be convincingly inferred from the contents of EX P1 that in the event of death of either of them, it was purported to be revocable by the surviving party. The said Sh. Banwari Lal expired on 08.09.1986 and the present suit for the partition was filed by the plaintiff in year 1989. Therefore, it can be cogently inferred that the plaintiff revoked the said conditional Will EX P1.
Therefore, in view of above discussion EX P1 never came into effect as the same was revoked by the plaintiff. In absence of any valid Will, it can be safely concluded that Late Sh. Banwari Lal died intestate. The suit property is of the Joint hindu family and so it is liable to be partitioned amongst the person who are entitled to share on partition. The plaintiff being ClassI heir of Late Sh. Banwari Lal is entitled to the share in suit property and, therefore, she can seek partition of the suit property.
In view of the above discussion, the instant suit is maintainable and, therefore the present issue is decided in favour of the plaintiff and against the defendants.
Suit no. 856/06 Page 13 15. Issues no. 1 & 5.
The issues no. 1 & 5 are hereby taken together as they are inter connected and common evidence was led by the plaintiff to prove the said issues.
The onus of proving these issues lie on the plaintiff. PW1 Smt. Khazani Devi stepped into witness box and got recorded her examination in chief but on the said date her cross examination was deferred at the request of Counsel for defendant no. 2 and thereafter, plaintiff expired and so defendants did not get opportunity to cross examine the plaintiff and hence, the defendants were deprived of their inalienable right of cross examination to ascertain the veracity of the said witness i.e. PW1. Therefore, the deposition of PW1 cannot be read in evidence in the present case. The plaintiff expired on 07.01.1994 i.e. during the pendency of the instant suit. Sh. Dharam Bal claimed himself to be the LR of the plaintiff on the basis of Will dated 10.04.1989 executed by the plaintiff in his favour. The said original Will was exhibited as Ex. AW1/1 and the same was duly proved by its witness Sh. Shri Lal, who deposed as AW1. Therefore, the said document is proved in a manner contemplated under Section 68 of Evidence Act, 1872. The said Will is also a registered document. Hence, Sh. Dharam Bal was impleaded as LR of the plaintiff vide order 20.01.1997 by learned predecessor of this Court and the said order has become final as neither the same has been assailed before the appellate Court nor it has been reversed.
The counsel for the defendants has argued that the said Will Ex. AW1/1 is null and void as the plaintiff was neither the owner nor entitled to Suit no. 856/06 Page 14 execute any document in respect of 5/8th share in the suit property. He has also contended that the plaintiff was at the most entitled to 1/4th share in the suit property and that too when Sh. Banwari Lal died intestate. The said contention of the defendants are not tenable. The Will Ex. AW1/1 was executed on 10.04.1989 and at that time the share of the plaintiff in the suit property was not ascertained. Therefore, in her wisdom and as per her calculation she executed Will Ex. AW1/1 in favour of Sh. Dharam Bal in respect of her share in the suit property which she had speculated to have accrued in her favour. Further, the contents of the Will are unequivocal and unambiguous, to the extent that she had executed the Will in respect of all the rights, title and interest in the suit property. The testator had clear intention to bequeath her entire share in the suit property to Sh. Dharam Bal after her death. Therefore, according to the Will EX AW1/1 Sh. Dharam Bal is entitled to claim the share of the plaintiff in the suit property to the extent which is ascertained in favour of the plaintiff in the present suit.
16. PW2 in his deposition has testified that the suit property including one gitwar, and two houses in village barwala belonged to Sh. Banwari Lal. The said witness has also proved the settlement arrived at between the family members of Sh. Banwari Lal whereby Sh. Banwari Lal had planned the devolution of the suit property in favour of his family members and in the said settlement Sh. Banwari Lal had stated that the said settlement shall come into force only after his death and demise of his wife i.e. plaintiff herein. The said settlement/document is exhibited as EX P1 and its execution is duly proved by Suit no. 856/06 Page 15 PW2, PW3 and PW4. The said document is placed on record by the plaintiff to manifest the intention of said Late Sh. Banwari Lal that he was the owner of the suit property. The PW2 to PW4 have consistently deposed that the suit property belonged to Late Sh. Banwari Lal at the time of his death. PW4 has placed on record water bills to establish that water connection in House No. 248, Village Barwala of suit property was in the name of Late Sh. Banwari Lal. However, DW1 and DW2 have deposed that Sh. Mehar Singh i.e. DW2 is the owner of House no. 248, Village Barwala out of the suit property and defendants no. 2 to 4 are owners of house no. 19, Village Barwala out of the suit property on the basis of Will dated 14.08.1986 purported to be executed by Late Sh. Banwari Lal in their favour. Therefore, the DW1 and DW2 have deposed that they have acquired rights in the said house no. 248 and house no. 19 from Late Sh. Banwari Lal on the basis of the aforesaid Will. Hence, it is admitted by them that Late Sh. Banwari Lal was the owner of the aforesaid houses, though, they have claimed to have acquired right in the said houses on the basis of the aforesaid Will after the death of Late Sh. Banwari. It is hence, convincingly established that Late Sh. Banwari Lal was owner of the suit property at the time of his death.
Therefore, only point of contention is whether Late Sh. Banwari Lal executed the alleged Will marked as Mark 'A' or he died intestate. DW1 and DW2 have testified that they have misplaced the aforesaid original Will. The certified copy of the said Will is marked as Mark 'A'. The defendants have neither produced the aforesaid original Will nor proved the said Will. The defendants have not examined the witness of the said Will and moreover, no Suit no. 856/06 Page 16 one has identified signatures of Late Sh. Banwari Lal on the said Will, therefore, the said Will is not proved in accordance with Section 68 of the Evidence Act, 1872. The onus of proving the genuineness of the aforesaid Will lies on the defendants but they have failed to discharge the said onus in view of the findings given in issue no. 2. In view of the fact that Will marked as Mark 'A' has not been proved, the pleas of the defendants that the house no. 248 of the suit property belongs to Sh. Mehar Singh/DW2 and house no. 19, Barwala of suit property belongs to defendants no. 2 to 4 has received a sever jolt/blow.
It is not in dispute that late Sh. Banwari Lal was the owner of the suit property on the date of his death. It is an admitted fact that Late Sh. Banwari Lal was a Hindu and suit property devolved upon him from his father Sh. Hardwari Lal. Therefore, it was a joint Hindu property in the hands of Late Sh. Banwari Lal. The defendants have failed to prove the alleged Will Mark 'A' and in view of the findings given in issue no.1(a), the document/conditional Will EX P1 was revoked by the plaintiff. Therefore, it can be cogently deduced that Late Sh. Banwari Lal died intestate. The Hindu Succession Act, 1956 provides for two modes of succession of joint hindu family property:
(i) Testamentary succession (Section 30 of Hindu Succession Act, 1956).
(ii)Intestate Succession.
In the present case it is sufficiently proved that Late Sh. Banwari Lal died intestate. Hence, provisions of intestate succession of Hindu Succession Act, 1956 are applicable to the suit property.
The Hindu Succession Act, 1956 provides that the ownership of Joint hindu property does not remain in abeyance after the demise of the Suit no. 856/06 Page 17 coparcener. Section 6 of Hindu Succession Act, 1956 (before Amendment Act of 2005) (as propositus died in year 1986) provides that the interest of mitakshara coparcenary property shall devolve by survivorship upon the surviving member of the coparcenary unless the female relative specified in ClassI of the Schedule survives the deceased. In case of proviso the interest in the coparcenary property shall devolve on the basis of Hindu Succession Act, 1956. In the instant case the deceased Sh. Bawari Lal was survived by female ClassI heirs, therefore, the provisions of Hindu Succession Act, 1956 shall be applicable to the suit property. The said act provides that all the classI heirs of the deceased succeeds the property in equal shares immediately after the death of the propositus. Therefore, immediately after the death of Late Sh. Banwari Lal the suit property devolved upon the classI heirs of Late Sh. Banwari Lal. The plaintiff, being the wife of Late Sh. Banwari Lal is his classI heir and therefore, she is entitled to the share of the joint suit property and also entitled to seek partition of the said joint suit property. It is an admitted fact that Late Sh. Banwari Lal was survived by following ClassI heirs i.e.
(i) The plaintiff, being wife
(ii)Defendant no. 1, being daughter
(iii)Defendant no. 2, being daughter
(iv)Defendant no. 3 to 5, being children of predeceased daughter Therefore, as per Section 8, 9, 10 and Schedule of Hindu Succession Act, 1956, the plaintiff, defendant no. 1, defendant no. 2 and defendant no. 3 to 5 are entitled to one share each in the suit property/Joint hindu property. The plaintiff, defendant no. 1 and defendant no. 2 are entitled to one share each on Suit no. 856/06 Page 18 the basis of rule of per capita, however, defendant no. 3 to 5 are collectively entitled for only one share on the basis of doctrine of representation as defendant no. 3 to 5 are the children of the predeceased daughter of the propositus. Therefore, the share of the plaintiff is ascertained as 1/4th share, share of the defendant no. 1 as ascertained as 1/4th share, share of the defendant no. 2 is ascertained as 1/4th share and that of defendant no. 3 to 5 is collectively ascertained as 1/4th share of the joint/suit property.
In view of the above discussion, the issues no. 1 & 5 are partly decided in favour of the plaintiff and partly in favour of the defendants.
17. Issue no. 2.
The onus of proving the present issue lies on the defendant no. 2. The defendant no. 2 in her pleadings has contended that Late Sh. Banwari Lal executed a Will in favour of defendants no. 2 to 4 in respect of property no. 19 as well as agricultural land. However, none of the witness examined by the defendant no. 2 proved the alleged Will. DW1 in her examinationinchief had testified that her father Late Sh. Banwari Lal executed a Will on 14.08.1986 but she was unable to file the original Will on the record. In her deposition she has testified that the alleged original Will has been lost and therefore, the certified copy of the original Will is placed on record and same is marked as Mark 'A. The defendant has failed to examine any witness of the said alleged Will and no explanation or justification is advanced for nonexamination of the said witnesses. Further, no witness has identified the signatures of late Sh. Banwari Lal on the alleged Will marked as Mark 'A'. Therefore, the defendant no. 2 has Suit no. 856/06 Page 19 failed to prove the alleged Will in accordance with Section 68 of Indian Evidence Act, 1872.
In view of the above discussion the present issue is decided in favour of the plaintiff and against the defendant no. 2.
18. Issue no. 3.
The onus of proving the present issue lies on the defendant no. 2. Defendant no. 2 in her WS has claimed that the suit property is not a Joint hindu property as the husband of the plaintiff has executed a Will in respect of house no. 19 and agricultural land out of the suit property in her favour, therefore, after the death of husband of the plaintiff the aforesaid properties devolved upon her thereby making the said property as a separate property of defendant no. 2. It is therefore, asserted by the defendant no. 2 that the plaintiff cannot claim partition of the said separate property as plaintiff does not have any right in the said property. However, the very basis on which the defendant no. 2 has claimed right in the said property is destroyed as they have failed to prove the alleged Will in view of the findings given above in the issue no. 2. Hence, the said property out of the suit property is also a joint hindu family property in which the plaintiff has right to claim partition being the classI heir of the propositus.
In view of the above discussion the plaintiff has valid locus standi to file the present suit and, hence, the present issue is also decided in favour of the plaintiff and against the defendant no. 2.
Suit no. 856/06 Page 20 19. Issue no.4.
The onus of proving the present issue lies on the defendant no. 2. In respect of the present issue defendant no. 2 has not led any evidence. In the plaint the plaintiff has valued the suit property at Rs. 95,000/ for the purpose of jurisdiction. This court has pecuniary jurisdiction upto Rs. 3 Lacs. Therefore, in view of the value of the suit property assessed and asserted by the plaintiff, this suit is within pecuniary jurisdiction of this court. The defendants have not led any evidence to establish that the value of the suit property is more than Rs. 95,000/ . Therefore, the defendants have failed to discharge their onus.
In view of the above discussion the present issue is decided in favour of the plaintiff and against the defendants.
20. Relief In view of the findings given in the issues above the plaintiff is entitled to the following relief: The share in the suit property of the parties are ascertained as follows:
(i)The plaintiff, is entitled to 1/4th Share in the suit property;
(ii)Defendant no. 1 is entitled to 1/4th share in the suit property;
(iii)Defendant no. 2 is entitled to 1/4th share in the suit property and
(iv)Defendant no. 3 to 5 are entitled to 1/12th share each in the suit property.
Suit no. 856/06 Page 21 The suit of the plaintiff is decreed accordingly.
A preliminary decree sheet be prepared accordingly. The plaintiff is at liberty to move an application U/o 20 rule 18 CPC for the partition of suit property in metes and bounds. The parties are to bear their own cost. File be consigned to record room after due compliance with the direction that the same be not destroyed and be revived as and when an application U/o 20 rule 18 CPC is moved by the plaintiff.
Announced in the open court ( Dheeraj Mor)
on 18.03.10 Civil Judge, North (IV)
Tis Hazari Courts, Delhi
18.03.10
This judgment consists of 22 pages and all the pages are duly signed by me.
(Dheeraj Mor)
Civil Judge, North (IV)
Tis Hazari Courts, Delhi
18.03.10
Suit no. 856/06 Page 22
Suit no. 856/06
18.03.10
Present:
Vide separate judgment of even date suit of plaintiff is decreed. A preliminary decree sheet be prepared accordingly. The plaintiff is at liberty to move an application U/o 20 rule 18 CPC for the partition of suit property in metes and bounds. The parties are to bear their own cost. File be consigned to record room after due compliance with the direction that the same be not destroyed and be revived as and when an application U/o 20 rule 18 CPC is moved by the plaintiff.
( Dheeraj Mor)
Civil Judge, North (IV)
Tis Hazari Courts, Delhi
18.03.10
Suit no. 856/06 Page 23
Suit no. 856/06 Page 24