Delhi District Court
Sh. Lakhvir Singh vs Sh. Amrik Singh Ors on 31 January, 2025
IN THE COURT OF MS. SHAGUN SHARMA, DISTRICT
JUDGE-12, CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI
CS DJ No. 614205/2016
CNR No. DLCT01-002888-2015
AMENDED MEMO OF PARTIES
Sh. Lakhvir Singh,
S/o Late Sh. Hari Singh,
R/o H. No. 7/7, Singh Sabha Road,
Shakti Nagar, Delhi-110007. .....Plaintiff
Versus
(1) Sh. Amrik Singh,
S/o Late Sh. Hari Singh,
R/o H. No. 7/7, Singh Sabha Road,
Shakti Nagar, Delhi-110007.
(2) Smt. Kulwant Kaur (since deceased)
Through her LRs,
(i) Ms. Manpreet Kaur (Daughter)
W/o Sh. Davinder Singh,
R/o H. No. C-7/3, Krishna Nagar,
East Delhi -51
(ii) Sh. Saminder Singh Rait (son)
S/o Late Harbhajan Singh Rait,
R/o H. No. A-2857, First Floor, Green Field Colony,
Amar Nagar, Faridabad, Haryana -121002
(iii) Sh. Sukhvinder Singh (son)
S/o Late Harbhajan Singh Rait,
R/o H. No. 41-B GH-2, Ankur Apartment,
Paschim Vihar, New Delhi-63
(3) Smt. Varinder Kaur,
D/o Late Sh. Hari Singh,
W/o Sh. Jaswant Singh,
R/o H. No. Plot No. 40, Model Town,
Opposite Sai Kiryana Store,
CS DJ No. 614205/2016
Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 1 of 19
Balleri, Jabalpur, Madhya Pradesh.
(4) Smt. Ravinder Kaur,
D/o Late Sh. Hari Singh,
W/o Sh. Tavinder Singh,
R/o H. No. 535, Gupteshwar Marg,
Madan Mahal, Jabalpur-482001,
Madhya Pradesh.
(5) Smt. Jaswinder Kaur,
D/o Late Sh. Hari Singh,
W/o Sh. Sharbjit Singh,
R/o H. No. F-97, Rajouri Garden,
New Delhi.
(6) Smt. Sanjeev Kaur,
D/o Late Sh. Hari Singh,
W/o Sh. Manmohan Singh,
R/o H. No. 5 D/8C, Railway Road,
NIT, Faridabad, -121001,
Haryana.
(7) Smt. Rajeev Kaur,
D/o Late Sh. Hari Singh,
W/o Sh. Bhupinder Singh,
R/o H. No. EA/49, First Floor,
Inderpuri, New Delhi -12.
(8) Sh. Gurveer Singh,
S/o Sh. Lakhvir Singh,
R/o H. No. 7/7, Singh Sabha Road,
Shakti Nagar, Delhi-7. ...Defendants
Date of institution of the suit : 14.05.2015
Date on which judgment was reserved : 28.01.2025
Date of pronouncement of Judgment : 31.01.2025
Decision : Preliminary decree
passed
SUIT FOR PARTITION
JUDGMENT
(1) By way of this judgment, I shall decide the suit of the CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 2 of 19 Plaintiff for partition.
(2) CASE OF Plaintiff - Brief facts as culled out from the plaint and germane to the present lis are that Late Sh. Hari Singh expired on 12.08.2013 and left behind two sons i.e. Plaintiff and Defendant No. 1 and Seven Daughters i.e. Defendant No. 2 to 7. Sh Gurveer Singh (Defendant no. 8 herein) is the grandson of Late Sh. Hari Singh and son of the Plaintiff. The wife of Late Sh. Hari Singh i.e Smt. Prakash Kaur (Mother of Plaintiff and Defendants no 1-7) predeceased him on 01.04.2005 intestate. (3) It is further averred in the plaint that the estate of the Late Sh. Hari Singh consists of the following properties: -
(1) Built up property/ House no 7/7, Singh Sabha Road, Shakti Nagar, Delhi-7, (2) Agriculture land measuring 14 canals at Tehsil Nakodar, Jain Street, District Jalandhar, Punjab, (3) Two residential houses at Tehsil Nakodar, Jain Street, District Jalandhar, Punjab, (4) Share in Industrial Plot situated at Bawana Industrial Area bearing no E-264, Sector 5, Bawana, Delhi admeasuring 100 sq meters, (5) Tenanted Shop at 3605, Ram Bazaar, Mori Gate, Delhi, (6) Share in partnership Firm M/s Hari Singh & Sons. (4) It is submitted that the Plaintiff is not claiming partition of the agriculture land mentioned at serial no. 2 as this court does not have the jurisdiction to adjudicate the matter pertaining to agricultural land. The Plaintiff gave a statement on 21.12.2024 that he is not seeking partition of the Tenanted shop mentioned at serial No. 5.
(5) It is further averred that the property/ House at serial CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 3 of 19 no 1 is a residential house built upto 2½ Story. It is further averred that Plaintiff and Defendant no. 1 & 8 are in joint possession of suit property no 1. The suit property no 1 has ground floor, first floor and partly built second floor. The Plaintiff is dwelling on the Ground floor while Defendant no 1 dwells on the First floor of suit property no 1.
(6) It is further averred that the property at serial no 4 is an industrial plot admeasuring 100 sq meters bearing no E-264, Sector-5, Bawana, Delhi. It is further averred in the Plaint that both Plaintiff and Defendant no 1 are in joint possession of suit property no 2. It has a shed built over it and the Plaintiff and Defendant no 1 both have put their locks on the suit property no 2. (7) It is further averred in the Plaint that the property at serial no 3 are two residential houses, one is bearing House no. 3538 Panna Mohalla, Jain Street, Nakodar, Punjab, admeasuring 120 sq yds, and other bearing house no. 3530 Panna Mohalla, Jain Street, Nakodar, Punjab, measuring 12ft X 12ft. These properties are in possession of Plaintiff and Defendant no 1. (8) It is further averred that the property at serial no 4 i.e. share in industrial plot situated at Bawana Industrial Area bearing no. E 264, Sector 5, Bawana, Delhi admeasuring 100 sq meters is the partnership firm M/s Hari Singh & Sons which stood dissolved on unfortunate demise of the Late Sh. Hari Singh. The original Partnership deed is with the Defendant no 1.
(9) It is further averred in the Plaint that Late Sh. Hari Singh, father of Plaintiff & Defendant no 1-7 has left his last Will and Testament executed on 07.03.2011 and duly registered as document No.1595 in Book No. 3, Vol no 881 on pages 188 to 191 with Sub-Registrar, Kashmiri Gate, Delhi on 22.3.2011. It is further CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 4 of 19 averred that the Will relied upon by the Plaintiff has been properly and validly executed.
(10) It is further averred that that the properties should be divided as per the directions as stated in the Will. It is further averred that a perusal of the Will reveals that Late Sh. Hari Singh has bequeathed the ground floor of property mentioned at serial no. 1 to Defendant no 1, whereas the bequest of its first floor has been made in favour of the Plaintiff, and second floor with roof rights qua the property has been bequeathed to Defendant no 8. (11) It is further averred in the plaint that presently Plaintiff is dwelling on the ground floor and the Defendant no. 1 is dwelling on the first floor of the property mentioned above. It is further averred in the plaint that the rationale behind this in the mind of Late Sh. Hari Singh seems to be considering the fact that Defendant No. 1 is a person with disability, who has some problem in his leg and would be comfortable dwelling in the ground floor. (12) It is further averred in the plaint that the ground floor is also fully built without requiring any improvement/ renovation, in contrast to the First floor which requires renovations/improvement and addition to bring it at parity with the ground floor which would also require expense which would be borne by the Plaintiff only.
(13) It is further averred in the Plaint that Late Sh. Hari Singh had started a business and included Defendant No. 1 as partner in his venture, though entire funds were put in the business by Late Sh. Hari Singh only. It is further averred that the partnership was formed under the name and style of "M/s Hari Singh & Sons". It is further averred that the property mentioned at Serial No. 6 was allotted to the said partnership firm and is of the CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 5 of 19 firm. The firm M/s Hari Singh & Sons necessarily got dissolved on unfortunate demise of Late Sh. Hari Singh. It is further averred that Late Sh. Hari Singh had bequeathed his share in the said partnership firm to the Plaintiff by virtue of the Will. It is further averred that the firm has discontinued the business and there is only unused machinery which is left. It is further averred in the plaint that that through the Plaintiff is entitled to everything that would have come to the share of Late Sh. Hari Singh assessed on dissolution in terms of the Will but since the bequest has been made in favour of the Plaintiff, the Plaintiff as a goodwill gesture and without prejudice, is not claiming anything in the corpus of the firm except the share in the property.
(14) It is further averred that Late Sh. Hari Sigh also had a rental shop which was being run by him, the business exclusively belonged to him only. It is further averred in the Plaint that Defendant no 1 was totally dependent upon the father to meet his expenses and out of moral obligations, the father used to bear the household expenses of the Defendant no 1 and was considerate about him as Defendant No. 1 is a person with disability and that is why Defendant No. 1 was inducted as a partner in the partnership firm.
(15) It is further averred in the suit that that the process of acquisition of suit property mentioned at serial no. 1 is by way of sale deed dated 02.12.1995 purchased exclusively by Late Sh. Hari Singh from his own funds and registered as document no 2090 Book no I Vol no 346 on pages 358 to 365 with the then sub registrar on 02.12.1995. The suit property mentioned at serial no. 4 was acquired by the father in the name of the firm. The original documents of the aforesaid properties are with Defendant no 1. The CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 6 of 19 original copy of partnership deed is also with Defendant no 1. The original documents of property / houses situated in Punjab are also in possession of Defendant no1.
(16) It is further averred that the Plaintiff and Defendant no. 1 had confabulations on the subject of partitioning the suit properties in terms of the WILL at various times, but it could not yield any concrete result. Hence, the Plaintiff has filed the present suit for Partition.
(17) CASE OF THE DEFENDANT AS STATED IN THE WRITTEN STATEMENT- Summons of the suit were served upon the Defendants. Defendant No. 2 to 8 though entered their appearance but did not contest the suit. Written Statement was only filed on behalf of Defendant No. 1 wherein several preliminary objections were taken inter alia that the suit is not properly valued for the purposes of Court fee; that the suit filed by the Plaintiff is without any cause of action.
(18) It is further averred in the written statement that Plaintiff has illegally put his locks on the premises consisting of rented shop no. 3605, Ram Bazar, Mori Gate, Delhi and the industrial property bearing no. E - 264, Sector-5, Bawana and the same is liable to be removed forthwith.
(19) It is further averred in the Written Statement that all the disputes relating to the partnership - construction, meaning or effect of the deed or any part thereof, including the rights and liabilities including the dissolution or winding up of the firm or any matter relating to the firm are subject to decision by arbitration by an arbitrator to be appointed by each partner and the said deed of partnership is binding and applicable to the partners and their heirs. (20) It is further averred in the written statement that the CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 7 of 19 Defendant had 70% share in the profits and losses of the partnership firm and 30% belonged to Late Sh. Hari Singh and no partner had any right of assignment, mortgage or to change his share in the assets or profits of the firm. Thus, no individual partner had any right in the movable or immovable properties of the partnership firm and only the share in the profits and losses could be distributed after settlement of accounts, in accordance with the provisions of Partnership Act. Thus, the said Late Sh. Hari Singh had no right or authority to make any assignment nor had any individual right or share in the immovable properties of the firm. (21) In the Written Statement Defendant No. 1 has admitted that Defendant nos. 1 to 7 are the sons and daughters of late Sh. Hari Singh who expired on 12.08.2013. Defendant No. 1 has further admitted that the mother of the parties i.e Smt. Prakash Kaur had predeceased Late Sh. Hari Singh on 01.04.2005. (22) In the written statement, Defendant No. 1 has denied that Sh. Hari Singh had any right in the industrial plot bearing no. E-264, Sector-5, Bawana, Delhi or the tenanted premises 3605, Ram Bazar, Mori Gate, Delhi or any assignable rights of his share in the partnership of M/s. Hari Singh and Sons. It is further averred in the Plaint that the Plaintiff had illegally put locks on the said factory premises thereby putting the Defendant to extreme loss both financially and mentally. Late Sh. Hari Singh did not have any individual right in the said property and had only 30% share in profits and losses of the partnership.
(23) It is averred in the Written Statement that Late Sh. Hari Singh was not in a sound disposing state of mind at the time of making the Will.
(24) It is further denied that the Will propounded has been CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 8 of 19 validly executed by the deceased. It is denied that the second floor with roof rights have been bequeathed to the Defendant no. 8. It is further averred in the Written Statement that the Will propounded by the Plaintiffs is wholly sham, false, forged and fabricated by the Plaintiff. It is further denied that Late Sh. Hari Singh had commenced the business or that the entire funds were funded by the deceased. It is further argued that Late Sh. Hari Singh was only 4th class pass in Urdu and had no technical background of learning and Defendant had qualified BSC in 1970 when he joined business in partnership with Sh. Hari Singh under the Partnership Deed dated 31.03.1998 under the name and style of Hari Singh & Sons. It is denied that the deceased partner had an assignable property to assign or bequeath to the Plaintiff or that the deceased had any assignable rights in the immovable properties of the partnership including the plot at Bawana. It is denied that the Plaintiff is entitled to any share in the tenancy rights of the firm in the premises at Rama Bazar or the property at Bawana, Delhi. It is denied that the Defendant is in possession of the original partnership deed. It is further averred that the original partnership deed was kept by the father who was at all material times living with the Plaintiff.
REPLICATION (25) In the replication qua the written statement of the Defendant, Plaintiff have traversed the contents of the Written Statement, made necessary denials and reaffirmed the contents of the Plaint. In Replication, Plaintiff has also denied that Late Sh. Hari Singh had only 30% share in the profits and losses of the partnership. It is further averred in the Will, the testator has stated that he has 50% share in the partnership firm. It is further averred CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 9 of 19 that it is natural that by bequeathing 50% share in the partnership firm to the Plaintiff, Defendant no. 1 will also get other 50% and there will be equal distribution. It is submitted that the entire funds were of the testator in the business and the property in the name of partnership form was bought by him only. It is denied that Late Sh. Hari Singh did not have any assignable rights in the partnership or properties belonging to partnership.
(26) During the course of proceedings an application was filed on behalf of Defendant No. 1 under Section 151 CPC for bringing on record subsequent events with respect to the tenancy rights. Vide order dated 21.12.2024, it was submitted by Ld. Counsel for Plaintiff that he is not seeking partition of tenancy rights over the rented shop No. 3605, Ram Bazar, Mori Gate, Delhi, in view of the compromise entered with the Landlord and in view of the statement, the application of Defendant No. 1 under Section 151 CPC was disposed of.
(27) It is pertinent to mention here that Legal Heirs of deceased Defendant no. 2 were arrayed as party to suit by way of an application under Order 22 Rule 4 read with Section 151 CPC on 19.12.2023.
(28) During the course of proceedings an application under Order XVI Rule 14 CPC was filed on behalf of Defendant No. 1. Vide order dated 17.08.2024 it was held that no case is made out for allowing the present application under Order XVI Rule 14 CPC and therefore the application was dismissed.
FRAMING OF ISSUES (29) Vide order dated 12.01.2017, the following issues were framed:-
(i) Whether the suit has not been valued properly for the purposes of court fees and jurisdiction ? OPP CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 10 of 19
(ii) Whether the present suit is not maintainable being only for partial partition as stated by Defendant no. 1 in the preliminary objections of the written statement ? OPD
(iii) Whether the Plaintiff is entitled for relief of partition, as prayed for, by the Plaintiff in the plaint?
(iv) Relief.
PLAINTIFF'S EVIDENCE (30) Plaintiff examined himself as PW-1 and he tendered his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of his plaint and has relied upon the following documents:-
(i) Pedigree table as Ex.PW1/1 (ii) Site plan as Ex. PW1/2
(iii) Certified Copy of Will as Ex. PW1/3
(iv) Copy of Sale Deed marked as Mark A and English translation of same is marked as Mark B. He was cross examined at length by Ld. Counsel for Defendant no. 1.
(31) Sh. Harbhajan Singh Rait was examined as PW-2 and he tendered his evidence by way of affidavit vide Ex.PW-2/A. Sh.
Harbajan Singh Raid is one of the attesting witness to the Will. He relied upon the original Will which is Ex.PW2/1. He was cross- examined at length by Ld. Counsel for Defendant. (32) Sh. Parveen Kumar Rana, UDC from the Office of Sub Registrar-1, Kashmere Gate, Delhi was examined as PW3. He had brought the copy of Will, already exhibited as Ex.PW2/1 and the same was registered in their office vide registration no. 1595 in Book No. 3, Vol. No. 881 on pages 188 to 191 registered on 22.3.2011 and photocopy of the same was exhibited as Ex. PW3/A. (33) After recording of evidence of Plaintiff witnesses, PE was closed vide order dated 23.03.2019 and thereafter the matter was listed for DE.
CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 11 of 19DEFENDANT'S EVIDENCE (34) To rebut his case, Defendant No. 1 has examined himself as D1W1. He has tendered his evidence by way of affidavit vide Ex.D1W-1/A and reiterated the contents of the written statement. Defendant No. 1 did not file any document in support of his case. He was cross examined by Learned Counsel for Plaintiff. (35) In his cross examination, Defendant No. 1 has admitted that the tenanted premises bearing No. 3605, Ram Bazar, Mori Gate have been surrendered by him and the Plaintiff to the landlord pursuant to a compromise with the landlord. He further admitted that in compliance of the compromise, the landlord withdrew the eviction petition filed against him and the Plaintiff. He further admitted in his cross examination that no order/ direction is required to be passed in respect of the said tenanted premises as the same have already been surrendered to the Landlord. Further on being questioned, Defendant No. 1 admitted that the suit property no. E-264, Sector-5, Bawana, Delhi was allotted to the firm M/s Hari Singh & Sons.
(36) Thereafter, vide order dated 25.08.2023, DE was closed and the matter was listed for final arguments. (37) Analysis and Findings - I have heard Mr. Ashok Anand and Mr. Yash Singhal, Ld. Counsel for the Plaintiff and Mr. G. S. Singh, Ld. Counsel for Defendant No. 1. Written submissions were filed on behalf of both parties. Defendant No. 1 has relied upon the following judgments - R.V.E. Venkatachala Gounder Vs. Arulmigu Vishesaraswami & V.P. Temple & Anr (VI (2003) SLT 307, A. Raghavamma & Another Vs Chenchamma & Another, AIR 1964 SC 136 and Rangammal Vs Kupuswami & Ors Civil Appeal No. 562 of 2003.
(38) My issue-wise findings are as under: CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 12 of 19 Issue No. 1 (i) Whether the suit has not been valued properly for
the purposes of court fees and jurisdiction ? OPD (39) The onus to prove this issue was on Defendant No.1. Perusal of the Plaint shows that Plaintiff claims to be in the possession of the properties and he has paid fixed court fee as per the provisions of the Court Fee Act. Defendant No. 1 has stated in the Written statement that the suit of the Plaintiff has not been properly valued. Apart from this bald averment in the written statement, neither any evidence has been adduced nor any argument has been advanced by Defendant No. 1 to show as to how the suit of the Plaintiff has not been properly valued, resultantly, Defendant No. 1 has failed to discharge the burden placed upon him and thus in view of the same Issue No. 1 is decided against Defendant No. 1.
Issue No. 2(ii) Whether the present suit is not maintainable being only for partial partition as stated by Defendant no. 1 in the preliminary objections of the written statement? OPD (40) The onus to prove this issue was on Defendant No. 1. In the written statement Defendant No. 1 has stated that the present suit is not maintainable as the same has been filed seeking partial partition of the suit property. Defendant No. 1 has failed to specify details of the property excluded from the present suit and thus Defendant No. 1 has failed to discharge the onus placed upon him and in view of the same Issue No. 2 is decided against Defendant No. 1.
Issue no. 3
(iii) Whether the Plaintiff is entitled for relief of CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 13 of 19 partition, as prayed for, by the Plaintiff in the plaint? OPP (41) The onus to prove this issue was on the Plaintiff. It is argued on behalf of the Plaintiff that he is entitled to the partition of the suit properties as Late Sh. Hari Singh had executed a Will dated 07.03.2011 and had bequeathed all his properties / assets and thus in terms of the last Will of his father, he is entitled to a decree of partition qua the suit properties. To prove his claim, Plaintiff has placed on record registered Will dated 07.03.2011 exhibited as Ex.PW1/3.
(42) Per Contra, it is the case of the Defendant No. 1 that the Will dated 07.03.2011 is a false and fabricated document and is shrouded by suspicious circumstances. Further it is argued on behalf of Defendant No. 1 that the suit of the Plaintiff is not maintainable on the ground that he along with his Father Late Sh. Hari Singh had entered into a partnership with Defendant No.1 and the present suit qua the property in the name of the partnership firm is not maintainable.
(43) VALIDITY AND EXECUTION OF WILL - The foundation of proving the validity and execution of a Will is rooted in its statutory compliance as encapsulated under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act, 1872/ Section 67 of Bhartiya Sakshya Adhiniyam. (44) Section 63 of Indian Succession Act provides that testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. The Will CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 14 of 19 shall be attested by two or more witnesses, each of whom has 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 acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
(45) Section 68 of Indian Evidence Act, 1872/Section 67 of BSA provides that a document that requires attestation under the law cannot be used as evidence until at least one attesting witness is called to prove its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
(46) In compliance with the aforesaid provisions Plaintiff examined himself as PW-1 and deposed in his examination in chief that the Late Sh. Hari Singh was in a fit state of mind at the time of execution of Will. During his cross examination, the Plaintiff has denied the suggestion that his father was not in good health and self-disposing state of mind at the time of making the WILL. He further denied the suggestion put to him by Ld. Counsel for the Defendant that Will Ex. Pw1/3 is false and fabricated. He has further deposed that there was no discussion between him and his father about the Will prior to its execution. He has further deposed that he is not aware that his father i.e Late Sh. Hari Singh was having only 30% share in the business of M/s. Hari Singh & Sons. He has further deposed that the industrial plot at Bawana Industrial Area was allotted to partnership firm M/s. Hari Singh & Sons. He CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 15 of 19 has denied the suggestion that whole of working/business was run by Mr. Amrik Singh.
(47) In order to prove the execution of the Will dated 07.03.2011, Plaintiff has examined attesting Witness Sh. Harbajan Singh Rait (PW2) who is the brother-in-law of Plaintiff and Defendant No. 1. Perusal of the affidavit of evidence of PW- 2 shows that he has deposed in his examination-in-chief that he identifies and recognizes the signatures of Late Sh. Hari Singh on the said Will as they were done in his presence. He has further deposed that he had signed the said Will as witness no. 1 after writing his particulars on it. He has further deposed that the second attesting witness i.e Sh. Sarabjit Singh is his brother-in-law and Sh. Sarabjit Singh also wrote his particulars and signed the said Will in his presence as second witness.
(48) PW2 has further deposed that Late Sh. Hari Singh was in self-deposing state of mind at the time of signing the said Will and Late Sh. Hari Singh had himself called him to come and be a witness in the Will. He has further deposed that the Will was registered by Late Sh. Hari Singh in his presence. (49) Sh. Praveen Kumar Rana was examined as PW3. He brought the summoned record and he has deposed that he has seen the Will, the same is registered in his office vide registration no. 1595 in Book No. 3, Vol. No. 881 on pages 188 to 191 registered on 22.3.2011. Photocopy of the same was exhibited as Ex.PW3/A (OSR).
(50) The argument of Defendant that the Will is forged and fabricated is not maintainable especially in view of the fact that Plaintiff has proved the Will as per the mandate of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 16 of 19Except for bald plea of fraud and fabrication, Defendant No. 1 has not placed on record any document nor has adduced any evidence in support of his contention. It is settled law that bald plea of fraud and fabrication is not sustainable and the same has to proved by way of cogent and reliable evidence. By virtue of Section 106 of Bhartiya Sakshya Adhiniyam, the burden of proof shall lie on the Defendant No. 1 to prove that the Will is forged and fabricated. Reliance is placed on recent judgment of Hon'ble Apex Court in the matter titled as M/s Trinity Infraventures Ltd. & Ors. vs M.S. Murthy & Ors.2023 LiveLaw (SC) 488 wherein it has been categorically held that allegations of fraud require special pleadings in terms of Order VI, Rule 4 CPC. Defendant has failed to show / indicate that the WILL propounded by the Plaintiff is surrounded by any suspicious circumstances. Apart from bald and vague allegation that the Testator was not in a fit state of mind, no other evidence is adduced to prove the same.
(51) It is further argued on behalf of Defendant No. 1 that the Partnership firm and the assets of the same belong to him and Plaintiff has no right with respect to the same. He has also argued that in view of the Partnership Deed, Defendant No. 1 has 70 percent share in the firm. However, except this argument, Defendant No. 1 has not placed on record any document or partnership deed in support of his claim. Perusal of the Will dated 07.03.2011 Ex.PW1/3 shows that Testator has mentioned that he has 50 % share in the Industrial Plot situated at Bawana i.e. the property which was allotted to the partnership firm and he has allotted his share i.e. 50 % to the Plaintiff.
(52) It is settled law that a civil suit must be decided on the basis of preponderance of probabilities which in the present suit lies CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 17 of 19 in favour of the Plaintiff. Plaintiff is the legal heir of Late Sh. Hari Singh and by virtue of the same Plaintiff has a pre- existing share in all the properties belonging to his Father. As a net result of the observations made above, this Court has no hesitation in holding that Plaintiff has proved the Will dated 07.03.2011 as per the mandate of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. Accordingly, issue No. 3 is decided in favour of Plaintiff and thus Plaintiff is entitled to a decree of partition in respect of the suit properties in terms of Will dated 07.03.2011 Ex.PW1/3.
Conclusion/Relief (53) In the light of aforesaid findings, the suit of the Plaintiffs is decreed as under :-
A preliminary decree of partition is passed in terms of the Last Will dated 7.03.2011 exhibited as Ex.PW1/3 executed by Late Sh. Hari Singh to the effect that Plaintiff, Defendant No. 1, Defendant No. 8 shall have the following shares in the suit properties :-
(i) Property bearing house no.7/7 at Singh Sabha Road, Shakti Nagar, Delhi-110007 which consists of 2 and 1/2 floors, site plan exhibited as Ex. PW-1/2. Sale deed marked as Mark 'A' and English Translation as Mark 'B' shall be partitioned as under.
a. Ground floor in favour of Sh. Amrik Singh i.e Defendant No.1.
b. First floor in favour of Sh. Lakhvir Singh i.e. Plaintiff. c. Second floor in favour of Sh. Guruveer Singh i.e Defendant No. 8.
(ii) Plaintiff and Defendant No. 1 shall be entitled to half share each in House located near government girls school admeasuring CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 18 of 19 120 sq yards, opposite Mohan Lal Diwan House, Jain Street, Nakodar, Punjab
(iii) Plaintiff and Defendant No. 1 shall be entitled to half share each in House measuring 12 ft. X 12 ft. near Vishwakarma Mandir, Jain Streer, Nakodar, Punjab.
(iv) Late Sh. Hari Singh's share in the partnership firm i.e. 50% in the Industrial plot measuring 100 sq. meters bearing No. E-264, Sector 5, Bawana, Delhi shall go in favour of Plaintiff. (54) A preliminary decree-sheet be drawn accordingly. (55) Put up for suggestion on behalf of parties on ways and means for partition of the suit property by metes and bounds (physically) and if it is not feasible, to suggest any other viable way, need for appointment of Local Commissioner, inter-se sale and purchase of the shares of the parties and further proceedings on 25.02.2025.
Digitally signed by SHAGUN SHAGUN SHARMA Announced in the open Date: SHARMA 2025.01.31 16:03:45 Court on 31.01.2025 +0530 (SHAGUN SHARMA) District Judge-12, Central Distt. Tis Hazari Court, Delhi 31.01.2025
Certified that this judgment contains 19 pages and each page bears my signatures. Digitally signed by SHAGUN SHAGUN SHARMA SHARMA Date:
2025.01.31 16:03:52 +0530 (SHAGUN SHARMA) District Judge-12, Central Distt.
Tis Hazari Court, Delhi 31.01.2025 CS DJ No. 614205/2016 Sh. Lakhvir Singh Vs Sh. Amrik Singh & Ors Page 19 of 19