Delhi District Court
Major S.K. Malik(Senior Citizen) vs R.M. Malik Others on 30 April, 2026
IN THE COURT OF CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
PRESIDED OVER BY MS. HALA QUAMAR
CNR No:-DLCT030000351996
CS SCJ No.594591/2016
Maj. S.K. Malik
S/o Late Sh. Chaman Lal,
R/o S-127, Greater Kailash-II,
New Delhi-110048. ....Plaintiff
Versus
1. R.M. Malik
Through its LRs
A. Smt. Nirmala Malik (Wife)
B. Smt. Neha Kajala (Daughter)
C. Smt. Mansi Malik (Daughter)
D. Sh. Akshay Malik (Son)
All R/o 888-A,Sector 15-A,
Hissar, Haryana.
2. Capt. C.P. Malik
S/o Late Sh. Chaman Lal
R/o B-32, Friends Colony,
New Delhi.
3. Mrs. Urmil Arora
D/o Late Sh. Chaman Lal
W/o Mr. Surinder Arora HALA
R/o 1363, Sebanaing Road, QUAMAR
CS SCJ No.594591/2016 Page No.1 of 39Digitally signed by
HALA QUAMAR
Date: 2026.04.30
16:53:56 +0530
Okemos, Michigan-48864, U.S.A.
4. Mrs. Promila Duggal,
D/o Late Sh. Chaman Lal
W/o Mr. Satish Duggal,
R/o 118, Wood Land,
BIG Flats, NY-14814, U.S.A.
5. Mrs. Anu Sharma
D/o Late Sh. Chaman Lal
W/o Anand Sharma
R/o 361, Shwerland Court,
Durham-NC.C-27712.
6. Mrs Renu Patel
D/o Late Sh. Chaman Lal
W/o Praduman Patel,
R/o S-76, Greater Kailash-II,
New Delhi-110048.
7. Hindustan Petroleum Corporation Limited
UCO Bank Building,
3rd Floor,
Parliament Street,
New Delhi-110001. ....Defendants
Date of institution of suit 16.02.1996
Date on which reserved for judgment 22.04.2026
Date of pronouncement of judgment 30.04.2026
Decision PRELIMINARY
DECREE
SUIT FOR PARTITION & PERMANENT INJUNCTION
JUDGMENT
BRIEF FACTS
1. The plaintiff's case, as set out in the amended plaint, is that HALA QUAMAR CS SCJ No.594591/2016 Page No.2 of 39 Digitally signed by HALA QUAMAR Date: 2026.04.30 16:54:02 +0530 the suit property measuring 1 bigha 6 biswas, forming part of Khasra No. 275 situated in Village Bahapur, Delhi, originally belonged to his father, late Shri Chaman Lal Malik, having been gifted to him by Shri Kalu Ram. During his lifetime, Shri Chaman Lal Malik established and operated a petrol pump on the said land under a license granted by Hindustan Petroleum Corporation Ltd. (formerly ESSO) pursuant to an agreement dated 19.02.1974. The plaintiff has been carrying on the said business under the name and style of M/s Kaushalya Auto, and though a partnership was subsequently constituted, disputes arose among the partners leading to earlier litigation.
2. It is further the case of the plaintiff that Shri Chaman Lal Malik died intestate on 06.10.1992, leaving behind the plaintiff and defendants No. 1 to 6 as his only legal heirs. That by virtue of the provisions of the Hindu Succession Act, each of the legal heirs inherited an undivided 1/7th share in the suit property. The property has, since the death of the deceased, remained joint and has neither been partitioned by metes and bounds nor has any co- sharer been excluded from possession. According to the plaintiff, the possession of the property by some of the heirs, including those managing the petrol pump, has always been on behalf of all co- owners, and no adverse claim has ever been asserted.
3. The plaintiff submits that despite issuance of a legal notice dated 30.10.1995 seeking partition of the suit property, the defendants failed to respond or effect partition. It is further alleged that defendant No. 7 is in unauthorized use and occupation of the HALA QUAMAR plaintiff's share and is liable to pay damages at the rate of Rs. 10,000 per month with effect from 01.11.1992. It is to be noted Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.3 of 39 Date:
2026.04.30 16:54:06 +0530 that during the initial proceedings, plaintiff had sought permission of the court to amend the plaint which was allowed and the amended plaint was taken on record on 07.03.2003. On these averments, as per the amended plaint, the plaintiff seeks partition of the suit property by metes and bounds and relief of permanent injunction against defendant no:1 to 6.
AMENDED WRITTEN STATEMENT OF DEFENDANT NO.2
4. The case of defendant No. 2, as set out in the written statement, is that the present suit is not legally maintainable and has been filed by the plaintiff by suppressing material facts with a view to mislead the Court and obtain relief to which he is not entitled. It is contended that the plaint, as amended, seeks relief of possession without payment of the requisite court fee and is therefore liable to be rejected. The defendant further alleges that the plaintiff has deliberately concealed an affidavit dated 24.08.1993, wherein he had acknowledged that late Shri Chaman Lal Malik was the sole proprietor of M/s Kaushalya Auto and that the petrol pump dealership of Hindustan Petroleum Corporation Ltd. was being managed by defendant No. 2, who was made the sole proprietor thereof. It is further stated that the plaintiff had relinquished all his rights and interests in the said firm and had admitted that the dealership would devolve upon defendant No.
2.
5. Defendant No. 2 further submits that, on the basis of HALA QUAMAR affidavits and no-objection certificates given by all legal heirs, the dealership/licence of the petrol pump was duly transferred in his Digitally signed by HALA QUAMAR Date:
2026.04.30 CS SCJ No.594591/2016 Page No.4 of 39 16:54:12 +0530 favour by Hindustan Petroleum Corporation Ltd., and that he has been exclusively running and managing the petrol pump both during the lifetime of his father and thereafter. It is asserted that the plaintiff has no concern whatsoever with the operation of the petrol pump and has made false statements on oath contrary to his earlier admissions, thereby committing perjury.
6. It is further the stand of defendant No. 2 that there is no cause of action in favour of the plaintiff and that the suit is barred by limitation, not properly valued for the purposes of court fee and jurisdiction, and is also not supported by a proper affidavit.
7. On merits, it is contended that late Shri Chaman Lal Malik had executed a Will during his lifetime, by virtue of which the suit property devolved exclusively upon defendant No. Consequently, it is denied that the plaintiff has any 1/7th share or any right, title or interest in the suit property. The defendant asserts that he is the sole and exclusive owner in possession of the property in question and, therefore, no question of partition arises.
8. It is also contended that the plaintiff is neither owner nor co-owner nor in possession of the suit property and is not entitled to any damages as claimed. The jurisdiction of this Court is also disputed. On these grounds, defendant No. 2 prays for dismissal of the suit.
WRITTEN STATEMENTS OF DEFENDANT NO.3,4 & 6
9. The case of defendants No. 3, 4 and 6, as set out in their HALA written statements, is that the suit property continues to be joint QUAMAR CS SCJ No.594591/2016 Page No.5 of 39 Digitally signed by HALA QUAMAR Date: 2026.04.30 16:54:18 +0530 and that defendant No. 1 is in possession thereof on behalf of all the co-sharers, including the plaintiff and the said defendants. While raising an objection that the suit has not been properly valued for the purposes of court fee and jurisdiction, these defendants have, to a large extent, admitted the averments made in the plaint. They have admitted paras 1 and 2 of the plaint and have also admitted paras 4 to 9 thereof. However, they have denied that the plaintiff is carrying on business at the suit property and have expressed lack of knowledge regarding certain averments, including the pendency of earlier proceedings and contents of para 10 of the plaint. They have further partly admitted the averments relating to issuance of legal notice, while denying receipt of the same.
10. Defendants No. 3, 4 and 6 have taken the stand that the suit property has not been exclusively owned by any one party and continues to be held jointly. They have not opposed the relief of partition and, on the contrary, have prayed that a preliminary decree of partition be passed, declaring 1/7th share each in their favour, and that the property be partitioned by metes and bounds. They have also claimed damages to the extent of their respective 1/7th shares against defendant No. 7. It is thus evident that these defendants support the claim of partition, while disputing certain assertions of the plaintiff on facts.
WRITTEN STATEMENT OF DEFENDANT NO.7
11. The case of defendant No. 7/ Hindustan Petroleum Corporation Ltd, as set out in its written statement, is that the HALA QUAMAR CS SCJ No.594591/2016 Page No.6 of 39 Digitally signed by HALA QUAMAR Date: 2026.04.30 16:54:23 +0530 present suit discloses no cause of action against it and is liable to be dismissed. It is contended that defendant No. 7 has been unnecessarily impleaded and no relief is maintainable against it. While admitting that a petrol pump has been operating at the suit site for several decades and that dealership agreements were executed with late Shri Chaman Lal Malik, it is specifically denied that the plaintiff was a party to any such agreement or has any right in the dealership business.
12. Defendant No. 7 submits that late Shri Chaman Lal Malik was the sole proprietor of M/s Kaushalya Auto and an authorised dealer of the corporation. Upon his demise, all legal heirs, including the plaintiff, are stated to have submitted affidavits and no-objection certificates acknowledging that the dealership was being managed by defendant No. 2 and consenting to his appointment as sole proprietor. It is further stated that the legal heirs relinquished all their rights and interests in the dealership business and undertook not to raise any claim in future. On this basis, a fresh dealership agreement dated 25.02.1994 was executed between defendant No. 7 and defendant No. 2, who has since been running the petrol pump exclusively.
13. Defendant No. 7 has denied the plaintiff's claim of joint possession or any right, title or interest in the suit property or the business, and has also denied liability to pay any damages as claimed. It is further alleged that the plaintiff has been interfering in the functioning of the petrol pump, causing harassment and loss to the dealership, and is himself liable to compensate defendant HALA QUAMAR No. 7. It is thus contended that the suit is misconceived, not properly valued, and liable to be dismissed qua defendant No. 7. Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.7 of 39 Date:
2026.04.30 16:54:28 +0530
14. It is pertinent to mention at this stage that defendant no: 1and 5 were exparte, defendant no:3, 4, and 5 filed their WS and then they were also declared ex parte. Defendant no:7 was declared exparte on 01.07.1996. Therefore, the main contesting defendant has been defendant no:2.
REPLICATION
15. Separate replications have been filed on behalf of plaintiff to the written statements of defendant No.2 and 7, thereby reiterating the averments made in the plaint and denying the contents of the written statements.
ISSUES
16. Thereafter on completion of pleadings, the following issues were framed:-
1. Whether the suit is valued properly for the purpose of court fees and jurisdiction?OPP
2. Whether the plaintiff is entitled for the partition, as prayed? OPP
3. Whether the plaintiff is entitled for the injunction, as prayed? OPP
4. Whether the suit of the plaintiff is maintainable in the present form-OPP (framed vide order dated 28.02.2002)
5. Whether the plaint discloses no cause of action?OPD (framed vide order dated 01.12.2007)
6.Whether defendant No.7 has been wrongly made party to the present suit?OPD-7 (framed vide order dated 01.12.2007)
7.Relief HALA QUAMAR 16.1 Thereafter the matter was fixed for recording of plaintiff Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.8 of 39 Date:
2026.04.30 16:54:33 +0530 evidence.
PLAINTIFF EVIDENCE
17. The plaintiff examined himself as PW-1 in support of his case. PW-1 tendered his evidence by way of affidavit, which was exhibited as Ex. PW1/A. PW-1 was duly cross-examined by learned counsels for defendant No. 7 and defendant No. 2 respectively.
18. During cross-examination by counsel for defendant No. 7, PW-1 stated that his father, late Shri Chaman Lal Malik, as proprietor of Kaushalya Auto, was the dealer of defendant No. 7. He admitted that after the death of his father, he had filed an affidavit with defendant No. 7 and had stated therein that he had no objection to defendant No. 2 being appointed as a dealer of defendant No. 7. He, however, volunteered that late Shri Chaman Lal Malik was the owner of the land on which the petrol pump was being run. PW-1 further stated that he had no knowledge whether, after filing his affidavit, any agreement was entered into between defendant No. 2 and defendant No. 7.
19. In response to a query regarding damages claimed in para 12 of his affidavit, PW-1 stated that he had claimed damages at the rate of Rs. 10,000/- per month on the basis that defendant No. 7 was using his 1/7th share in the property for running the petrol pump. He denied the suggestion that the occupation of defendant No. 7 was authorised. He stated that no notice had been given by him to defendant No. 7 regarding unauthorised possession, but HALA volunteered that as per trade practice oil companies pay rent for QUAMAR Digitally signed CS SCJ No.594591/2016 Page No.9 of 39 by HALA QUAMAR Date: 2026.04.30 16:54:38 +0530 use of land. He further stated that he had no instance or documentary proof of the amount claimed, but believed there was a standard system for determining rent for petrol pump sites. He denied the suggestion that defendant No. 7 was not liable to pay damages.
20. During cross-examination by counsel for defendant No. 2, PW-1 stated on oath that he was a director of a small finance company operating from Greater Kailash-II, New Delhi. He stated that his father expired on 06.10.1992 and, to his knowledge, his father owned only one property, namely the land on which Kaushalya Auto petrol pump was running. He stated that he was not aware of other properties of his father in Delhi or outside Delhi, including in Hissar or Sirsa. PW-1 stated that he was not aware of any Will executed by his father in favour of his brother R.M. Malik or thereafter in favour of defendant No. 2. He stated that he had no knowledge of the value of the suit land or prevailing market rates. He admitted that defendant No. 2 was running the petrol pump on the suit land but denied that defendant No. 2 was in exclusive possession of the suit property. In response to a specific question, PW-1 stated that the suit property was in joint possession after the death of his father. He further stated that he had earlier submitted an affidavit to defendant No. 7 stating that he had no objection to transfer of dealership in favour of defendant No. 2, and admitted that defendant No. 2 is running the petrol pump. PW-1 further stated that the dealership in the name of defendant No. 2 was transferred after 1993. He stated that he had HALA signed only one affidavit submitted to Hindustan Petroleum QUAMAR Corporation Ltd. He admitted that he had no document to show Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.10 of 39 Date:
2026.04.30 16:54:43 +0530that the land stood in the name of his late father at the relevant time. PW-1 denied that defendant No. 2 was the exclusive owner and in exclusive possession of the suit property. He denied that he had no right in the suit property or that he was not in possession thereof. He also denied the suggestion that there were earlier or subsequent Wills in favour of defendant No. 1 or defendant No. 2. PW-1 further stated that he had met defendant Nos. 3 to 6 on various occasions after institution of the suit and denied the suggestion that his case was false or that he was deposing falsely. After completion of his evidence, plaintiff evidence was closed on a separate statement of the plaintiff, and the matter was directed to proceed for defence evidence.
DEFENCE EVIDENCE
21. Sh. C.P. Malik has been examined as DW-2. DW-2 tendered evidence by way of affidavit EX.DW2/A and relied on the following documents:-
MARK A License of defendant No.2.
MARK B Affidavit of evidence of plaintiff dated
24.08.1993.
MARK C Copy of Will dated 10.09.1992.
MARK D Affidavit dated 24.08.1993 executed by
defendant No.1.
MARK E Affidavit dated 24.09.1993 executed by Ms.
Renu Patel.
MARK F Conveyance Deed/Title documents in favour of
HALA
defendant No.2 in respect of property No.93, QUAMAR
Digitally signed
CS SCJ No.594591/2016 Page No.11 of 39 by HALA
QUAMAR
Date:
2026.04.30
16:54:47 +0530
Ishwar Nagar, Friends Colony, Mathura Road, New Delhi.
MARK G Documents of MCD and other statutory bodies showing the property No.93, Ishwar Nagar, Friends Colony, Mathura Road, New Delhi.
22. It is pertinent to note that vide Order dated 24.01.2019, the affidavit in evidence filed on behalf of DW-1 i.e. defendant No.2 and his part examination in chief was taken off record.
23. The record further shows that vide order dated 24.01.2019, the son of defendant No. 2 was permitted to lead evidence on behalf of defendant No. 2 and was examined as DW-1.
23.1 In defence, Sh. Akash Malik was examined as DW-1. DW-1 tendered his evidence by way of affidavit Ex. DW1/A and relied upon the original Will Ex. DW1/A. DW-1 was duly cross- examined by learned counsel for the plaintiff. In his cross examination DW-1 stated that his date of birth is 27.08.1992. He stated that they realised about his father's ailment one or two years ago; however, as per doctors, dementia had started five or six years ago and is now on the verge of Alzheimer's, and medical documents in this regard have been placed on record. He stated that his grandfather was not residing with them and was residing at Hissar at the time of his death, and that he had visited the house where his grandfather was residing, though he does not remember the address. He stated that his father is the proprietor of the defendant firm, which has filed income tax returns for the financial HALA QUAMAR year 2017-2018, and that his father had signed the ITR and GST Digitally signed by HALA CS SCJ No.594591/2016 Page No.12 of 39 QUAMAR Date: 2026.04.30 16:54:52 +0530 returns. He further stated that his father operates a personal bank account. He stated that he is aware that his grandfather had lands in Sirsa, Hissar and Tohana, but he does not know the details. DW-1 stated that he runs a trading company namely ASA Portfolio, a catering company called Colt Food, and also a delivery restaurant called Indish, and that he travels frequently as he plays poker. He denied the suggestion that the medical reports do not mention that his father is suffering from dementia. Upon being shown documents, DW-1 stated that he is not a medical person and does not know where the word dementia is written. He stated that he is not sure whether the suit property has been mutated in the name of his father. He further stated that his father has not executed any power of attorney authorising him to represent him in the present case, however, his father has signed the papers. DW-1 stated that he is not a party to the suit and that he is representing his father, who is the defendant in the suit. He stated that he has not filed any document to show where his grandfather was residing at the time of his death, and volunteered that the Will mentions the same. He denied the suggestion that the alleged Will dated 10.09.1992 is forged and fabricated. He further stated that as per the Will, his father is the rightful owner of the property in question. DW-1 stated that his father had recently visited USA and remained there for approximately 50 days, and that the visit was not for medical treatment but for a change and to meet his sister, who is a dentist, and who also showed him to a homeopathic doctor. He stated that on being confronted with photographs Mark X, he stated that dementia does not mean that a person cannot go HALA out or enjoy family life, and that persons around the patient face QUAMAR more difficulty in dealing with such condition. DW-1 further stated Digitally signed by HALA CS SCJ No.594591/2016 Page No.13 of 39 QUAMAR Date: 2026.04.30 16:54:57 +0530 that he has personal knowledge of the Will and that he had found the original Will in January 2019, whereas earlier a photocopy was submitted in 2011. He denied the suggestion that he was deposing falsely or that his testimony was contradictory.
23.2 Ms. Kavita Chawla was examined as DW-2, being a summoned witness. DW-2 proved her Aadhaar Card as Ex. DW2/A (OSR), the death certificate of Sh. Surender Nath Chawla as Ex. DW2/B, and the copy of the voter identity card of her deceased father-in-law as Mark X. DW-2 further identified the signatures of her father-in-law as an attesting witness on the original Will Ex. DW1/A. It is noted that learned counsel for the plaintiff objected to the mode of proof of document Mark X on the ground that it was a photocopy, and the said objection was allowed, with the result that Mark X was not read into evidence. DW-2 stated that she had seen the photocopy Mark X and that the photograph and particulars therein pertained to her father-in-law. She stated that the address of her father-in-law was 965, Doctor Mukherjee Nagar, Delhi-110009. She further stated that her father- in-law was residing with them at the said address. On being asked, DW-2 stated that she had seen her father-in-law writing and signing. The learned counsel for the plaintiff objected to the question on the ground that it was leading in nature; however, the objection was overruled. DW-2 was thereafter shown the original Will Ex. DW1/A and, upon seeing the same, she identified the signatures at point A as that of her father-in-law. In cross- examination by learned counsel for the plaintiff, DW-2 stated that the Will Ex. DW1/A was not signed by the witnesses in her HALA QUAMAR presence. She stated that she had married Sh. Rakesh Chawla on Digitally signed by HALA CS SCJ No.594591/2016 Page No.14 of 39 QUAMAR Date: 2026.04.30 16:55:01 +0530 14.04.1983. She denied the suggestion that the death certificate Ex. DW2/B did not pertain to Sh. Surender Nath. She further denied the suggestion that she was not the daughter-in-law of Sh. Surender Nath. She also denied the suggestion that the Will Ex. DW1/A was never attested by her father-in-law and that she was deposing falsely.
23.3 Thereafter, defence evidence on behalf of defendant No. 2 was closed.
23.4 It is further recorded that no defence evidence was led on behalf of defendants No. 3 and 4, and separate statements of learned counsel for defendants No. 3 and 4 to this effect were recorded on 12.11.2009.
23.5 It is further recorded that no defence evidence was led on behalf of defendant No. 6, and a separate statement of learned counsel for defendant No. 6 to this effect was also recorded on 12.11.2009.
23.6 It is further noted that a Local Commissioner was appointed for recording the statement of Mrs. Krishna Arora, the sole attesting witness to the Will dated 10.09.1992, and the Local Commissioner submitted his detailed report accordingly. It is also recorded that vide order dated 24.01.2019, the affidavit in evidence filed on behalf of DW-1 and his part examination-in- chief were taken off the record.
HALA QUAMAR
24. Final arguments were heard on behalf of both parties. Record of the case file has been perused carefully.
Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.15 of 39 Date:
2026.04.30 16:55:08 +0530 FINDINGS ON ISSUES Issue no: 4 Whether the suit of the plaintiff is maintainable in the present form-OPP (preliminary issue framed vide order dated 28.02.2002)
25. It is seen that defendant No. 2 had raised an objection regarding the maintainability of the present suit in its present form, and accordingly a preliminary issue was framed by the Court vide order dated 28.02.2002. However, immediately thereafter, the plaintiff filed an application under Order VI Rule 17 CPC seeking amendment of the plaint.The said application was allowed vide order dated 07.03.2003. The said objection by the defendant on ground of maintainability of the suit was dealt with in the said order. Thereafter the matter was proceeded further for trial. In view of the said amendment, the preliminary issue regarding maintainability has become infructuous and stands effectively addressed in favour of the plaintiff.
Issue no:5 Whether the plaint discloses no cause of action?OPD (framed vide order dated 01.12.2007)
26. A cause of action comprises a bundle of facts which are required to be proved by the plaintiff in order to entitle him to a decree. In the present case, on the basis of the facts pleaded in the plaint, it is clear that a valid and subsisting cause of action is disclosed. The plaintiff has asserted co-ownership in the suit HALA QUAMAR property along with defendants No. 1 to 6, arising out of intestate Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.16 of 39 Date:
2026.04.30 16:55:13 +0530succession after the death of their father late Shri Chaman Lal Malik. It is further pleaded that despite a legal notice dated 30.10.1995 seeking partition, the defendants failed to act upon the same, thereby resulting in continued joint ownership without partition by metes and bounds. These pleadings, taken as a whole, clearly demonstrate a continuing dispute regarding partition and enjoyment of joint property, which gives rise to a cause of action.
Accordingly, the issue relating to cause of action is decided in favour of the plaintiff and against the defendants.
Issue no: 6- Whether defendant No.7 has been wrongly made party to the present suit?OPD-7
27. The onus to prove this issue was upon the defendants, which has not been discharged. Upon careful perusal of the plaint, it is seen that the plaintiff has sought a relief of partition by metes and bounds and permanent injunction against defendants No. 1 to 6 in respect of the suit property, wherein a petrol pump is being operated by defendant No. 7, who is stated to be the licensor of defendant No. 2. It is further the case of defendant No. 2 that an affidavit was executed by the plaintiff in favour of defendant No. 7 allegedly relinquishing rights in his favour. In view of these pleadings, although defendant No. 7 is not a necessary party to the partition suit, it has been rightly impleaded as a party to the present proceedings for the purpose of complete and effective adjudication of the dispute between the parties. Even otherwise, since the trial has already been concluded, the adjudication of the present issue HALA QUAMAR has become largely academic and inconsequential. However, in view of the pleadings and material on record, this issue is decided Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.17 of 39 Date:
2026.04.30 16:55:19 +0530in favour of the plaintiff and against the defendants.
Issue no:1 Whether the suit is valued properly for the purpose of court fees and jurisdiction?OPP
28. It has been the contention of defendant No. 2 that the present suit is one for partition and that the plaintiff is admittedly not in possession of the suit property; therefore, the plaintiff is liable to pay ad valorem court fee on the market value of his share, which, according to the defendant, has not been paid. A perusal of the record shows that the issue regarding insufficiency of court fee has been repeatedly raised by defendant No. 2, and the plaintiff was also directed to make good the deficient court fee which was complied by the plaintiff as finds mention in the order dated 16.12.2013. It is further noted that for the said purpose, an application under Section 151 CPC was also filed by defendant No. 2, which came to be decided by the learned Predecessor of this Court vide order dated 22.07.2015. For adjudication of the present issue, reliance is placed on the settled legal position, including the judgment in Sheela Devi & Ors. vs. Kishan Lal Kalra & Ors.
decided on 26.07.1974, wherein it has been held that the valuation as given by the plaintiff is to be accepted unless successfully challenged by the defendant.
"(20) We have thus only. Section 7(iv) of the Court-fees Act on a consideration of the scope and effect of which the question under consideration has to be answered. A plain reading of paragraph (iv) of Section 7 shows that it requires the plaintiff in any of the suits mentioned in the various clauses thereof to state the amount at which "he values the relief sought", and the amount of court-fee payable to be computed according to the said amount at which "the relief HALA sought is valued" in the plaint. It is implicit in it, and it is QUAMAR also not disputed, that the paragraph requires the plaintiff Digitally signed by HALA CS SCJ No.594591/2016 Page No.18 of 39 QUAMAR Date: 2026.04.30 16:55:23 +0530 himself to value the relief he seeks. The only question for consideration is wheather the plaintiff has the right to place any valuation that he likes. The paragraph does not by itself impose any restriction or condition as regards the valuation by the plaintiff? When the statutory provision itself has not imposed any such restriction or condition, it would not be proper, in our opinion, for a Court to introduce such a restriction or condition into the section. The plain language of the provision gives an unrestricted choice to the plaintiff to value the relief. It would not, therefore, be proper for a Court to say that the relief was undervalued and to correct the said valuation invoking the general power mentioned in Order Vii Rule ll(b) or the inherent power saved by Section 151 of the Code of Civil Procedure. The provision in paragraph (iv) of Section 7 of the Court-fees Act which gives a free hand to the plaintiff to place any valuation that he likes and does not place/any restriction or condition has, in our opinion, so far as the suits mentioned in that paragraph are concerned, the effect of taking away the general power of the Court under Order Vii Rule 11(b) of the Code of Civil Procedure and the inherent power to correct an under-valuation. The general power and the inherent power stand modified by the special statutory provision in Section 7(iv) of the Court-fees Act. In other words, in, our opinion, paragraph (iv) of Section 7 of the Court-fees Act gives a right to the plaintiff to place any valuation that he likes on the relief he seeks, and the Court has no power to interfere with the plaintiff's valuation.
This view is quite in conformity with the nature of the suits mentioned in clauses (a) to (f) of paragraph (iv) of Section
7. All the said suits are such that it is not possible for the plaintiff to specify the precise value of the relief he seeks in each of the said suits. A perusal of the various clauses (a) to
(f) shows the same. That was why the legislature obviously thought it fit to leave to the plaintiff to place any valuation the likes on the relief he seeks in such suits. It was sought to be argued that the aforesaid view would permit the plaintiff to place any arbitrary or fanciful value on the relief he seeks. When the nature of the suit is such that no precise value can be placed on the relief sought, arid for that reason there cannot be any definite standard by which it can be said that the relief has been under-valued or not, the question of the valuation being arbitrary or fanciful does not arise. To say in such a, case that the valuation placed by the plaintiff is arbitrary or fanciful and seek to interfere with the same would amount to a re-writing of the statutory HALA QUAMAR provision in paragraph (iv) of Section 7 of the Court-fees Act which a Court cannot do. So far as suits for mesne profits and suits for accounts are concerned, Section 11 of the Court-fees Act provides that if the profits or the amount Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.19 of 39 Date:
2026.04.30 16:55:28 +0530 decreed are or is in excess of the profits claimed or the amount at which the plaintiff values the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or the amount so decreed shall have been paid to the proper officer. In that Way, so, far as the said suits are concerned, the legislature has taken care to safeguard the revenue and to see that the plaintiff does no get away with a decree for an amount in his favor without paying adequate court-fee therefore. No question, of a decree for an amount being passed arises in the other suits mentioned in clauses (a) to (e) of paragraph
(iv) of Section 7 of the Court-fees Act. Thus, the view taken by us above seems to be the proper one to be taken on a plain interpretation of the relevant provisions (Sections 7(iv) and II) in the Court-fees Act."
29. In the present case, once the plaintiff has valued the suit in terms of the provisions of the Court Fees Act, the onus shifted upon the defendant to establish that the suit has not been properly valued. However, no evidence has been led by defendant No. 2 in this regard, nor has any material contradiction been elicited from the plaintiff during cross-examination so as to discredit the valuation adopted. In view of the above, the objection raised by defendant No. 2 regarding improper valuation and insufficiency of court fee is found to be without merit. Accordingly, the issue is decided in favour of the plaintiff and against the defendants.
Issue no:2 Whether the plaintiff is entitled for the partition, as prayed?OPP
30. The onus to prove this issue was upon the plaintiff to establish that the suit property belonged to his father and, upon his demise, devolved upon his legal heirs, including the plaintiff. It is HALA the case of the plaintiff that his father, Late Shri Chaman Lal QUAMAR Digitally signed by HALA CS SCJ No.594591/2016 Page No.20 of 39 QUAMAR Date: 2026.04.30 16:55:32 +0530 Malik, who expired on 06.10.1992, was the owner of the suit property and that the plaintiff along with defendants No. 1 to 6 are his legal heirs, each having inherited 1/7th undivided share therein. It is pertinent to note that the defendants have admitted that Late Shri Chaman Lal Malik, who expired on 06.10.1992, was the absolute owner of the suit property and on that basis alone defendant no:2 has alleged that the suit property has solely devolved upon him by way of a will made by the late Sh. Chaman Lal. It has also not been denied that the plaintiff along with defendants No. 1 to 6 are his legal heirs. In this regard it is pertinent to mention Section 58 of the Indian Evidence Act, 1872-
"No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
31. In view of the aforementioned law, and in terms of the provisions of the Hindu Succession Act, the plaintiff has discharged the initial burden of proving that upon the death of Late Shri Chaman Lal Malik, his legal heirs, including the plaintiff, became entitled to inherit the property and consequently seek partition, unless the contrary is established. It is further noteworthy that all the defendants being LRs of Late Shri. Chaman Lal Malik, except Defendant No. 2, have filed written statements HALA stating that they have no objection to the partition of the suit QUAMAR property. Thus, in substance, the case of the plaintiff stands admitted by all defendants except Defendant No. 2. Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.21 of 39 Date:
2026.04.30 16:55:37 +0530
32. During the course of arguments, learned counsel for Defendant No. 2 contended that even though the defendants have admitted that Late Shri Chaman Lal Malik was the absolute owner of the suit property, the burden of proof to establish such ownership still lay upon the plaintiff. It was argued that since the plaintiff has not placed on record any document to establish the title of Late Shri Chaman Lal Malik, the plaintiff has failed to discharge this burden. On the contrary, it is submitted by the Ld. Counsel for the plaintiff that time was sought by the plaintiff to trace out the title documents of Sh. Chaman Lal Malik in earlier proceedings before the court, however, the requirement of the same can be dispensed with as admitted facts need not be proved. This court is of the considered opinion that the contention put forth by the Ld. Counsel for the defendant is untenable on following grounds:
(i) As already discussed, any fact which has been admitted by the opposite party need not be proved, in view of Section 58 of the Indian Evidence Act. Moreover, it is significant that Defendant No. 2 himself claims absolute ownership of the suit property on the basis of a Will allegedly executed by Late Shri Chaman Lal Malik, his alleged predecessor in interest. At no stage has Defendant No. 2 disputed that Late Shri Chaman Lal Malik was the absolute owner of the property. In fact, the title claimed by Defendant No. 2 is derived from Late Shri Chaman Lal Malik himself. These facts stand admitted by the parties, and no issue in this regard has been framed by the Court. Therefore, at this stage, the argument advanced by learned counsel for Defendant No. 2 is HALA QUAMAR not tenable , particularly in view of the settled principle that a party Digitally signed by HALA CS SCJ No.594591/2016 Page No.22 of 39 QUAMAR Date: 2026.04.30 16:55:42 +0530 cannot approbate and reprobate at the same time.
(ii) The Court is also mindful that in a partition suit, title must be established to rule out the possibility of any third party claiming ownership over the suit property. However, it is worth noting that every case turns on its own unique facts, and the arguments advanced by learned counsel for the defendant must be considered in the context of the facts and circumstances of the present case.
In the present case, it is an admitted position that a petrol pump is being operated on the suit property on the basis of license issued by Defendant No. 7, i.e., Hindustan Petroleum Corporation Limited. Exhibit PW1/A is the Memorandum of Agreement executed in 1994 between Hindustan Petroleum Corporation Limited and Defendant No. 2. It is further evident that Defendant No. 7, Hindustan Petroleum Corporation Limited, in its written statement filed on 11.10.1999, has affirmed that the petrol pump has been operating at the site for nearly 30 years. It has also stated that a dealership agreement for the outlet was originally entered into between the Corporation and Late Shri Chaman Lal Malik on 13.12.1987, for a period of 15 years commencing from 01.10.1982. Now, it has been more than three decades, and at no point has it been disputed that Late Shri Chaman Lal Malik was not the owner of the suit property. In fact, for all these years up to the present day, it is an admitted position that the petrol pump has continuously been operating under the dealership initially originating from Late Shri Chaman Lal Malik, further reinforcing the settled and undisputed nature of the ownership. In the HALA considered opinion of this Court, long and continuous possession QUAMAR by a predecessor-in-interest gives rise to a strong presumption of title, particularly where such possession remains undisputed or Digitally signed by HALA QUAMAR Date:
CS SCJ No.594591/2016 Page No.23 of 39 2026.04.30 16:55:46 +0530 where the opposing party fails to establish a better title. The law proceeds on the well-settled principle that possession follows title, meaning thereby that where a predecessor was in settled possession, the title is presumed to vest in him and, upon his demise, to devolve upon his legal heirs, unless proved otherwise.
(iii) It is also pertinent to note that the original Defendant No. 2/Captain C.P Malik was partly examined in evidence on 28.04.2018 and had tendered his affidavit by way of evidence;
however, his cross-examination was deferred. In his affidavit, Defendant No. 2 had relied upon and tendered, inter alia, the affidavit of the plaintiff dated 24.08.1993, affidavits of Defendant Nos. 1 and 6 allegedly submitted to Hindustan Petroleum Corporation Limited, a copy of the Will in question dated 10.09.1992, and certain conveyance deeds/title documents/revenue records in respect of the suit property purportedly in his favour, along with other documents. However, subsequently, an application under Section 151 of the Code of Civil Procedure, 1908 was filed on 24.01.2019 on behalf of Defendant No. 2, seeking substitution of DW-1/Defendant No. 2, Captain C.P. Malik, with his son, Akash Malik, on the ground that Defendant No. 2 was suffering from dementia and was not in a position to depose. The said application was allowed vide order dated 24.01.2019, considering that Akash Malik, being the son of Defendant No. 2 and having personal knowledge of the facts of the case, was competent to depose on his behalf. In view of the above, the affidavit earlier filed by Defendant No. 2, who was partly HALA QUAMAR examined as DW-1, was taken off the record. Thereafter, Sh. Akash Malik moved an application under Order VIII Rule 1A CPC Digitally on 24.01.2019, which was allowed vide order of the same date, signed by HALA QUAMAR Date:
CS SCJ No.594591/2016 Page No.24 of 39 2026.04.30 16:55:51 +0530 and he was permitted to place on record the original Will dated 10.09.1992. It is important to note that upon substitution, a fresh affidavit by way of evidence was tendered on behalf of Defendant No. 2 through Sh. Akash Malik. However, in the said affidavit, the earlier documents relied upon by the original Defendant No. 2, namely Captain C.P. Malik- such as the affidavits of the plaintiff and Defendant Nos. 1 and 6, as well as the revenue records- were not incorporated or exhibited as part of the fresh evidence. In the considered opinion of this court, although the earlier affidavit by way of evidence filed by Captain C.P. Malik was struck off the record, the same may still be looked into for the limited purpose of understanding the nature of the defence initially taken and the inconsistencies, if any, in the stand of Defendant No. 2; however, it cannot be treated as substantive evidence in the absence of cross-examination. It is observed that in the earlier affidavit by way of evidence tendered by Captain C.P. Malik, he had relied upon certain revenue records to establish the mutation of the suit property in the name of Late Shri Chaman Lal Malik. He had also placed reliance on an order dated 16.04.2002 passed by the Court of the learned Collector (South), M.B. Road, Saket, New Delhi, in proceedings unconnected with the present suit. A perusal of the said order reveals that Defendant No. 2 had relied upon a registered gift deed allegedly executed in the year 1957, marked as Annexure A therein, in support of his claim that the present suit property was exclusively owned by his father, Late Shri Chaman Lal Malik. At this stage, it is pertinent to note that HALA the aforesaid assertion is in consonance with the averments made QUAMAR in the plaint. The plaintiff, in paragraph 1 of the plaint, has also stated that the suit property was acquired by Late Shri Chaman Lal Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.25 of 39 Date:
2026.04.30 16:55:56 +0530 Malik by way of a gift from Shri Kalu Ram.
33. In view of the aforesaid facts and peculiar circumstances of the present case, this Court finds no merit in the objections raised by Defendant No. 2 . The argument advanced is contrary to the admitted position on record and is therefore liable to be rejected.
34. Since, in view of the aforesaid discussion this court is of the view that late Sh. Chaman Lal Malik was the owner of the suit property, now this court shall dwelve into as to whether the suit property upon the death of Sh. Chaman lal malik is entitled to be partitioned as prayed for by the plaintiff. Defendant No. 2, however, has sought to defeat the claim for partition by asserting exclusive ownership over the suit property on the basis of a Will purportedly executed by Late Shri Chaman Lal Malik in his favour. It is therefore necessary to examine the evidence led by defendant No. 2 in support of the alleged Will, as the determination of the plaintiff's entitlement to seek partition hinges upon whether the said Will, as subsequently produced, has been duly proved in accordance with law by defendant No. 2 or not.
35. According to Defendant No.2, Late Shri Chaman Lal Malik had earlier executed a registered will dated 31.01.1992 at Hissar, Haryana by way of which the suit property was bequeathed onto his elder son namely Mr. Ramesh Mohan Malik , Defendant No.1 in the present suit. Further accordingly to Defendant No.2, Late Shri Chaman Lal Malik had canceled and revoked the said HALA QUAMAR Will by executing subsequent registered will dated 10.09.1992, registered after institution of the present suit, by way of which the Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.26 of 39 Date:
2026.04.30 16:56:01 +0530 suit property stood bequeathed to Defendant No.2. Thus Defendant No.2 sought to non suit the Plaintiff by claiming exclusive ownership of the suit property. Plaintiff, on the other hand claimed complete denial on the existence of Will dated 10.09.1992. According to the Plaintiff, it is a forged and fabricated document.
36. Having admitted that the suit property belonged to Late Sh. Chaman Lal Malik by Defendant No.2 but to resist partition of the suit property, the onus therefore rests upon Defendant No.2 to prove the will dated 10.09.1992 in accordance with law. The will in question is a unprivileged will. Section 63 of the Indian Succession Act governs the mode of making an unprivileged will.
Such will, since requires attestation of witness, has to be proved in accordance with S.68 of the Indian Evidence Act. Section 68 of the Indian Evidence Act, 1872 reads as follows:
Section 68- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence............"
37. As per the case set up by defendant No. 2, the alleged Will was attested by two witnesses, namely Sh. Surinder Nath and Mrs. Krishna Arora. Defendant No. 2 had moved an application for appointment of a Local Commissioner for recording the evidence of Mrs. Krishna Arora, one of the attesting witnesses. However, as per the report of the Local Commissioner, the said witness was not in a fit condition to depose, and consequently, her examination HALA could not be conducted. Insofar as the other attesting witness, Sh.
QUAMAR Surinder Nath, is concerned, it is the case of defendant No. 2 that Digitally signed by HALA CS SCJ No.594591/2016 Page No.27 of 39 QUAMAR Date: 2026.04.30 16:56:05 +0530 he had already expired.
38. Since none of the alleged attesting witnesses on the Will were in a position to depose/ not examined, the Defendant No.2 was required to prove the Will in accordance with provisions of S. 69 of the Indian Evidence Act, a permissible departure from the provisions of S.68 of the Indian Evidence Act as laid down in Hon'ble Supreme Court in V.Kalyanaswamy (D) By LRs & Anr v L. Bakthavatsalam (D) By LRs & Ors (2020) 9 SCR 619 in the following words:
"70. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.
71. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the HALA witnesses is to be proved by examining at least one QUAMAR attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence Digitally signed by HALA QUAMAR Date:
CS SCJ No.594591/2016 Page No.28 of 39 2026.04.30 16:56:10 +0530 relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act..."
39. The provision of S.69 of the Indian Evidence is as follows
69. Proof where no attesting witness found.
"If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
40. In view of the above, it was incumbent upon Defendant No.2 to first prove that Late Chaman Lal Malik had signed and executed the Will dated 10.09.1992 and further that the attestation of one of the attesting witness I.e., either Krishna Arora or Surinder Nath were in their own handwriting.
41. Record reveals that though the original of the will dated 10.09.1992 was produced by DW1 - Akash Malik, as Ex.DW1/A. However, he did not depose to having identified the signatures of Late Shri Chaman Lal Malik on Ex.DW1/A.
42. Further, to prove the attestation of one of the attesting HALA QUAMAR witness on Ex.DW1/A, Defendant No.2 preferred an application under Order XVI Rule 1 read with Section 151 CPC for Digitally signed summoning Ms. Kavita Chawla, the daughter-in-law of late Sh. by HALA QUAMAR Date: 2026.04.30 CS SCJ No.594591/2016 Page No.29 of 39 16:56:16 +0530 Surinder Nath, to prove the factum of his death and to identify his signatures on the Will. The said application was allowed vide order dated 18.07.2022 and Ms. Kavita Chawla was examined as DW-2. She was duly cross-examined and discharged. She deposed that late Sh. Surinder Nath Chawla was her father-in-law who expired on 13.09.2008. She further identified the signatures of her father- in-law on the original Will Ex. DW1/A. However, in her cross- examination, she admitted that the said Will was not signed by the attesting witnesses in her presence.
43. Ld. Counsel for the Defendant No.2 argued that Defendant No.2 had therefore discharged his onus and Ex.DW1/A stood proved. Ld. Counsel for the Plaintiff however argued that Ex.DW1/A was forged document.
44. Before adverting to the discussion on evidence, it is necessary to refer judgment rendered by the Hon'ble Supreme Court in Meena Pradhan and Others Vs. Kamla Pradhan and Another, Civil Appeal No. 3351 of 2014, pronounced on 08-12- 2025 wherein Hon'ble Supreme Court has laid down the principles required for proving the validity and execution of a Will. It was held as follows-
" i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say: HALA
(a) The testator shall sign or affix his mark to the Will QUAMAR or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.30 of 39 Date:
2026.04.30 16:56:21 +0530 intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue HALA influence et cetera has to prove the same.
However, even in the absence of such allegations, if QUAMAR there are circumstances giving rise to doubt, then it Digitally signed by HALA CS SCJ No.594591/2016 Page No.31 of 39 QUAMAR Date: 2026.04.30 16:56:26 +0530 becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' 1. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, 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, etc. "
45. In view of this Court, there are suspicious circumstances raising serious doubts qua genuineness of Ex.DW1/A. It is observed that no such Will was initially filed along with the written statement filed by defendant no.2 on 20.12.2001, nor were particulars such as the date of execution disclosed therein. It is further seen from the record that defendant No. 2 moved an application under Order VIII Rule 1A CPC on 17.01.2012 i.e., almost 11 years after filing the WS, seeking to place on record a copy of the Will dated 10.09.1992 purportedly executed by Late Shri Chaman Lal Malik, along with other documents. The said application was allowed by the Court vide order dated 28.08.2012, and the copy of the Will was taken on record and subsequently marked as Mark C. After tendering his evidence, defendant No. 2 did not appear before the Court, and the matter was listed for his cross-examination; however, he failed to present himself for the same or produce the original Will in his examination in chief. Thereafter, vide order dated 24.01.2019, an application under HALA QUAMAR Section 151 CPC was moved seeking substitution of DW-1, namely Sh. C.P. Malik (defendant No. 2), with his son Sh. Akash Digitally signed by HALA QUAMAR CS SCJ No.594591/2016 Page No.32 of 39 Date:
2026.04.30 16:56:35 +0530 Malik. The said application was supported by medical documents, stating that Sh. C.P. Malik was suffering from dementia and was not in a position to depose. The said application was allowed by the learned predecessor of this Court vide order dated 24.01.2019, and Sh. Akash Malik was permitted to depose as a witness in his individual capacity with respect to facts within his personal knowledge. In view thereof, the affidavit in evidence filed on behalf of defendant No. 2/ Sh. C.P. Malik, as well as his part examination-in-chief, were directed to be taken off the record. It is further recorded in the same order that Sh. Akash Malik had also filed an application under Order VIII Rule 1A read with Section 151 CPC seeking to place on record the original Will dated 10.09.1992. It was stated that though permission had earlier been granted vide order dated 28.08.2012 to file the copy of the Will, the original could not be produced at that time. The said application was also allowed, and the original Will was accordingly taken on record on 24.01.2019 i.e. almost 19 years after filing of WS by Defendant No.2.
46. It is also pertinent to note that DW-1, namely Sh. Akash Malik, tendered his affidavit by way of evidence as Ex. DW1/A on 21.01.2019. In para 6 of the said affidavit, DW-1 deposed that the plaintiff had executed an affidavit dated 24.08.1993, wherein he had allegedly admitted the existence of the purported Will Ex. DW1/A and had relinquished all his rights and interests in the licence/dealership pertaining to the suit property on the basis of Will. However, it is significant to note that the plaintiff, who was examined as PW-1, was confronted with the said document during HALA QUAMAR his cross-examination dated 16.12.2005, where a copy of the Digitally signed by HALA CS SCJ No.594591/2016 Page No.33 of 39 QUAMAR Date: 2026.04.30 16:56:39 +0530 affidavit dated 24.08.1993 was marked as Mark B. PW-1 admitted that he had submitted an affidavit to defendant No. 7; however, he clarified that in the said affidavit he had only stated that he had no objection if the dealership of the petrol pump of Kaushalya Auto was transferred in the name of defendant No. 2. Thereafter, the witness was shown the original affidavit which is dated 27.09.1993 submitted to Hindustan Petroleum Corporation Ltd and produced by Defendant No.7(Hindustan Petroleum Corporation Ltd)., and upon seeing the same, he admitted it to be his own. The copy of the said affidavit, which was earlier marked, was thereafter exhibited as Ex. PW1/D1. A perusal of Ex. PW1/D1 reveals that there is no admission by the plaintiff regarding the existence of the alleged Will Ex. DW1/A. Rather, the contents of the affidavit indicate that the plaintiff had merely given his no objection for transfer of the dealership in favour of defendant No.
2. It is thus evident that the relinquishment, if any, pertains only to the dealership business of the petrol pump and not to the ownership rights in any immovable property. The ownership of the suit property, being a parcel of land left behind by Late Shri Chaman Lal Malik, stands on a different footing from the dealership rights granted by defendant No. 7. These two distinct rights cannot be conflated.
47. Further the record reveals that the affidavit executed by Plaintiff before Defendant No.7 as produced from the custody of Defendant No.7 itself is different from affidavit put forth by Defendant No.2 purportedly executed by Plaintiff which is also tendered in his evidence by way of affidavit (taken off from the HALA QUAMAR record vide order dated 24.08.2019) and which also finds Digitally signed by HALA CS SCJ No.594591/2016 Page No.34 of 39 QUAMAR Date: 2026.04.30 16:56:45 +0530 mention in para No. 6 of affidavit by way of evidence tendered by DW1- namely Akash Malik. In view of the fact that the Defendant No.2 has not elected to challenge the veracity of the contents of affidavit Ex.PW1/D1, it further creates doubts in the mind of this Court to accept the Defence of Defendant No.2 on the basis of affidavit of Plaintiff. Accordingly, Ex. PW1/D1 does not advance the case of defendant No. 2 nor does it undermine the claim of the plaintiff.
48. Moreover, in the present case, there exists several other suspicious circumstances surrounding the Will. Although the Will was mentioned in the written statement filed by Defendant No. 2 on 16.02.1996, no date of its execution by Late Shri Chaman Lal Malik was disclosed therein. Significantly, the original Will did not see the light of day until 24.01.2019. Even a copy of the Will was placed on record only on 17.01.2012, which was taken on record vide order dated 22.08.2012. Therefore, it is pertinent to mention the judgment by the Hon'ble Supreme Court in Bharpur Singh and others v. Shamsher Singh (2009 (3) SCC 687) "16. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1 SCC 369] this Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered.
17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. HALA ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. QUAMAR iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or Digitally signed by HALA CS SCJ No.594591/2016 Page No.35 of 39 QUAMAR Date: 2026.04.30 16:56:52 +0530 absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts.
18.The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not."
49. In the case at hand, there is no reasonable explanation put forth by the defendant no:2 as to why the original will was placed on record after almost 23 years. Further, the Will Ex.DW1/A, on the basis of which, the whole defence of Defendant No.2 is based, has not been proved as per law as the Defendant No 2 was not able to prove that Late Shri Chaman Lal had executed the Will and signed onto it in his own handwriting.
50. Therefore, as the alleged Will is shrouded in suspicion and has not been proved in accordance with law, it cannot be relied upon. It is an admitted position between the parties that the Plaintiff and Defendant Nos. 1 to 6 are the legal heirs of Late Shri Chaman Lal Malik. Consequently, in terms of the applicable provisions of the Hindu Succession Act, the suit property is liable to be partitioned as prayed for by the Plaintiff. In view of the above, the present issue is decided in favour of the HALA Plaintiff and against the Defendants. QUAMAR Digitally signed by HALA QUAMAR Date: 2026.04.30 16:56:57 +0530 CS SCJ No.594591/2016 Page No.36 of 39 Issue no:3 Whether the plaintiff is entitled for the injunction, as prayed?OPP
51. The plaintiff has filed the present suit seeking a decree of permanent injunction in favour of the plaintiff and against defendants No. 1 to 6, restraining them from demolishing the structure standing on the land measuring 1 biswa, forming part of Khasra No. 275, situated within the revenue estate of Village Bahapur, or from re-modelling, reconstructing, letting out, transferring, alienating, or otherwise dealing with the same in any manner whatsoever in favour of any third party. Since the issue of partition has been decided in favour of the plaintiff, the consequential relief of permanent injunction also requires consideration in that light.
52. In view of the finding that the plaintiff is entitled to partition of the suit property by metes and bounds, the parties continue to remain co-owners until actual division takes place. It is a settled principle of law that no co-owner can be permitted to alter the nature and character of joint property or create third-party interests to the prejudice of other co-owners during subsistence of joint ownership. Accordingly, the defendants No. 1 to 6, being co- owners in possession, are restrained from demolishing, reconstructing, altering the nature of, or creating any third-party interest in the suit property, i.e., land measuring 1 Bigha 6 biswa forming part of Khasra No. 275, Village Bahapur, Delhi, except in HALA accordance with due process of law and subject to final partition QUAMAR proceedings.
Digitally signed by HALA QUAMAR Date:CS SCJ No.594591/2016 Page No.37 of 39 2026.04.30 16:57:01 +0530 RELIEF
53. In light of the aforesaid discussion, the present suit for partition is preliminary decreed and plaintiff and the defendant No.1 to 6 are held entitled to 1/7th share each in the suit property i.e. land measuring 1 bigha 6 biswa forming part of Khasra No.275, Khata No.272 and Khewat No.94 situated within the revenue state of Village Bhapur, Delhi in the following terms:-
(a) Sh. S.K. Malik is entitled to 1/7th share in the suit property;
(b) LRs (A), (B), (C) & (D) of deceased defendant No.1 are jointly entitled to 1/7th share in the suit property;
(c) Sh. C.P. Malik is entitled to 1/7th share in the suit property;
(d) Mrs. Urmila Arora is entitled to 1/7th share in the suit property;
(e) Mrs. Promila Duggal is entitled to 1/7th share in the suit property;
(f) Mrs. Anu Sharma is entitled to 1/7th share in the suit property;
HALA
(g) Mrs. Renu Patel is entitled to 1/7th share in the suit QUAMAR property;Digitally signed by HALA QUAMAR
CS SCJ No.594591/2016 Page No.38 of 39 Date: 2026.04.30 16:57:06 +0530
54. Preliminary decree sheet be prepared accordingly.
Announced in the open Court today on 30.04.2026.
(HALA QUAMAR) Civil Judge-1, Central District, Tis Hazari Courts, Delhi HALA QUAMAR Digitally signed by HALA QUAMAR Date:
2026.04.30 16:57:11 CS SCJ No.594591/2016 Page No.39 of 39 +0530