Delhi District Court
Satish Kumar Mehta And Anr vs Shri Anil Kumar Mehta And Anr on 27 March, 2026
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE -
05 SOUTH EAST, SAKET COURTS: NEW DELHI
CS DJ No.11679/2016
CNR No. DLSE01-008905-2016
Anil Kumar Mehta Vs. Joginder Kumar Mehta (First Suit)
In the matter of :-
1. Sh. Anil Kumar Mehta (Deceased)
Through LRs
i. Anita Mehta,
W/o- Late Shri Anil Kumar Mehta,
R/o-G-66, 2nd Floor, Lajpat Nagar-ll,
New Delhi-110024.
ii. Neha Sabbarwal,
W/o- Shri Rahul Sabbarwal,
R/o- H.No-12d, Pocket B2, Mayur Vihar,
Phase 3, New Delhi.
.... Plaintiff
Versus
1. Sh. Joginder Kumar Mehta
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll, Third Floor,
New Delhi-110024.
2. Sh. Tarun Kumar
S/o Sh. Joginder Kumar Mehta,
R/o-G-66, Lajpat Nagar-lI,
Third Floor, New Delhi-110024.
3. Sh Surinder Kumar Mehta (expired on 04.02.2015)
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll, Third Floor,
New Delhi-110024.
4. Sh. Satish Kumar Mehta,
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll,Ground Floor,
New Delhi-110024.
CS DJ 11679/2016
Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, PRABH Digitally signed
CS DJ 256/2022 by PRABH DEEP
DEEP KAUR
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. Date: 2026.03.27
KAUR 16:18:17 +0530
Misc DJ 1205/2025
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.1 of 37 Dated:27.03.2026
5. Amar Satya (impleaded vide order dated 02.06.2022)
S/o Sh. Satish Kumar Mehta,
R/o-G-66, Lajpat Nagar-lI,
Ground Floor, New Delhi-110024.
.....Defendants
CS DJ No. 256/2022
CNR No. DLSE01-002936-2022
Satish Kumar Mehta Vs. Anil Kumar Mehta & Anr. (Second Suit)
In the matter of :-
1. Sh. Satish Kumar Mehta,
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll,Ground Floor,
New Delhi-110024.
2. Amar Satya
S/o Sh. Satish Kumar Mehta,
R/o-G-66, Lajpat Nagar-lI,
Ground Floor, New Delhi-110024. .... Plaintiffs
Versus
1. Sh. Anil Kumar Mehta (Deceased)
Through LRs
i. Anita Mehta,
W/o- Late Shri Anil Kumar Mehta,
R/o-G-66, 2nd Floor, Lajpat Nagar-ll,
New Delhi-110024.
ii. Neha Sabbarwal,
W/o- Shri Rahul Sabbarwal,
R/o- H.No-12d, Pocket B2, Mayur Vihar,
Phase 3, New Delhi.
2. Sh. Joginder Kumar Mehta
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll, Third Floor,
New Delhi-110024.
.....Defendants
Misc. DJ 1205/2025
CS DJ 11679/2016 Digitally
signed by
Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, PRABH PRABH
DEEP KAUR
CS DJ 256/2022 DEEP Date:
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR 2026.03.27
16:18:22
Misc DJ 1205/2025 +0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.2 of 37 Dated:27.03.2026
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
In the matter of :-
Sh. Amar Satya Mehta
S/o Sh. Satish Kumar Mehta,
R/o-G-66, Lajpat Nagar-lI,
Ground Floor, New Delhi-110024. .... Applicant
Versus
1. Sh. Anil Kumar Mehta
S/o Late Sh. Yashpal Mehta
R/o H. No.G-66, Lajpat Nagar-ll,
Ground Floor, New Delhi-110024.
2. Sh. Joginder Kumar Mehta
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll, Third Floor,
New Delhi-110024.
3. Sh. Satish Kumar Mehta,
S/o Late Sh. Yashpal Mehta,
R/o-G-66, Lajpat Nagar-ll,
Ground Floor, New Delhi-110024.
.... Non-Applicant
Date of Institution of First suit : 04.06.2010
Date of Institution of Second suit : 07.04.2022
Date of institution of Misc. application : 13.11.2025
Arguments heard : 10.03.2026
Date Of Judgment : 27.03.2026
FIRST SUIT FOR DECLARATION, PARTITION AND
PERMANENT INJUNCTION.
&
SECOND SUIT FOR POSSESSION MESNE PROFITS
/DAMAGES.
&
APPLICATION ON BEHALF OF APPLICANT/PLAINTIFF
NO.2 U/S 379 OF BNSS FOR INITIATING PROCEEDINGS
CS DJ 11679/2016
Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally
signed by
CS DJ 256/2022 PRABH PRABH
DEEP
DEEP KAUR
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR Date:
2026.03.27
Misc DJ 1205/2025 16:18:26
+0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.3 of 37 Dated:27.03.2026
AGAINST THE PETITIONER /NON-APPLICANT U/S
229/236/237/318(4) BNS.
JUDGMENT
1. Vide this common judgment, both the above mentioned suits as well as the above mentioned Misc. Application have been disposed of. The suit instituted prior in time has been referred as first suit and parties will be addressed as their status in the first suit for the sake of convenience.
2. The subject matter of both the suits is a property situated at G-66, Lajpat Nagar-II, New Delhi ("the suit property"). Undisputedly, Yashpal Mehta, the father of the parties was the sole and absolute owner of the suit property. The suit property comprised four floors, including the ground floor. During her life time, Smt. Champa Mehta, mother of the parties, executed a rent agreement, renting out the first floor of the suit property to a tenant, who, however vacated the premises in April 2010. Smt. Champa Mehta, mother of the parties expired on 8th July 2009.
3. According to the recitals in the first suit, Late Sh. Yashpal Mehta had executed a Will on 01.07.1983, subsequently registered on 25.10.1983 whereby and whereunder he had granted a limited right of use of the suit property to his wife Smt. Champa Mehta and consequent on the demise of Smt. Champa Mehta, the suit property would devolve equally on the four sons of Sh. Yashpal Mehta, being Sh. Joginder Kumar Mehta (Defendant no.1), the plaintiff (Sh. Anil Kumar Mehta), defendant no.3 (Sh. Surender Kumar Mehta) and CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed by PRABH PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR DEEP Date:
Misc DJ 1205/2025 KAUR 2026.03.27
16:18:30
+0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.4 of 37 Dated:27.03.2026 defendant no.4 (Sh. Satish Kumar Mehta). The plaint therefore, asserted that, by operation of the Will dated 01.07.1983 of Sh.Yashpal Mehta, the suit property, consequent to the demise of Smt. Champa Mehta, would equally devolve on the afore-noted four sons of Sh. Yashpal Mehta.
Alleging that defendant no.1/Sh. Joginder Kumar Mehta and his son Sh. Tarun Kumar/ defendant no.2 were asserting exclusive rights in respect of the suit property, the plaintiff and defendant no.4 Sh. Satish Kumar Metha jointly filed the first suit, seeking partition of the suit property.
Inasmuch as defendant no.1 and 2 were claiming ownership of the suit property on the basis of a gift deed dated 25.05.2008, allegedly executed by Smt. Champa Mehta, gifting the suit property to them, the plaint also sought a declaration that the said gift deed was null and void. In so praying, the plaintiff relied on the fact that the Will dated 01.07.1983 of Sh. Yashpal Mehta merely gave a life interest to Smt. Champa Mehta to use the suit property, and did not confer her any titular rights in respect thereof, as could be conveyed by her by gift or otherwise.
Further, as per plaintiff defendant no.3 is mentally abnormal and is dependent upon others for his daily chores and defendant no.1 and 2 are keeping him in captive.
4. Defence of defendant no.1 and 2:
Defendant no.1 and 2 filed the WS wherein it is stated that CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, PRABH by Digitally signed PRABH DEEP KAUR CS DJ 256/2022 DEEP Date:
2026.03.27 Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR +0530 16:18:33 Misc DJ 1205/2025 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.5 of 37 Dated:27.03.2026 the suit has not been properly valued for the purposes of court fees and jurisdiction nor the plaintiff has paid proper court fee on the same. The suit filed by the plaintiff is bad for misjoinder and non-joinder of the parties. Plaintiff has never ever spent a single penny in construction of the property in question comprising of ground floor, fist floor second floor and third floor. Construction of the property in question comprising of ground floor, first floor second floor and third floor was carried out by the funds of Smt Champa Mehta and Defendant No. 1.
They have disputed the execution of Will dated 01.07.1983 and have asserted titular rights in respect of the suit property executed by Smt. Champa Mehta. As per them, Smt. Champa Mehta had executed a Gift Deed dated 30/6/2003 in favour of the Defendant No. 2 and 3 with regard to third floor with terrace rights to the defendant No. 1 and 2 and also claimed that the deceased Smt. Champa Mehta had executed a GIFT deed in favour of the defendant No. 1 and 2 thereby giving the entire first floor of the property to the defendant No.1. The gift deeds are genuine and authentic. Defendant no.1 and 2 are taking care of defendant no.3 and as such the defendant no.3 is residing with defendant no.1 and 2. Defendant no. 1 has been in exclusive possession of the first floor.
5. Defence of defendant no.3:
Defendant no.3 was proceeded ex-parte vide order dated 26.07.2013. During pendency of the suit, Sh. Surinder Kumar Mehta/defendant no.3 expired on 04.02.2015. The question of CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed CS DJ 256/2022 PRABH by PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
2026.03.27 KAUR 16:18:37 Misc DJ 1205/2025 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.6 of 37 Dated:27.03.2026 development of his share is under dispute in the second suit.
6. Initially, plaintiff and defendant no.4/Sh. Satish Kumar Mehta both jointly filed the suit and defendant no.4 was arrayed as plaintiff no.1 and suit was titled as Satish Kumar Mehta & Ors. Vs. Joginder Kumar & Ors. However, during pendency of the suit, plaintiff no.1 / Satish Kumar Mehta moved an application U/O 1 R 10 r/w Order 23 R 1 and 3A r/w Section 151 CPC for his transposition as defendant no.4. The said application was allowed vide order dated 09.11.2012 and plaintiff no.1/Sh Satish Kumar Mehta was transposed as defendant no.4 and Sh. Anil Kumar Mehta became the sole plaintiff in the suit.
7. Defence of defendant no.4:
Defendant no.4 after his transposition from the plaintiff set up another Will dated 04.08.1982 executed by Late Sh. Yashpal Mehta, and taken the defence that at the time of filing of the suit, plaintiff allured him stating that Will dated 01.07.1983 is the last Will of their father. However after filing of the said suit, it has come to the knowledge of the defendant no.4 that the plaintiff had filed a complaint before Land & Development Office, New Delhi thereby seeking cancellation of the conveyance deed which was executed in the name of their mother and reply was also sought from the defendant no.4 by L&DO vide its letter dated 19.01.20120. Accordingly the defendant no.4 submitted his reply dated 31.01.2012 stating that as per Will dated 01.07.1983, their mother got life interest only and defendant no.4 had not given any NOC/affidavit dated 20.08.1983 nor same bears his signatures. Then defendant no. 4 became suspicious and minutely CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH PRABH Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP KAUR DEEP Date:
Misc DJ 1205/2025 KAUR 2026.03.27
16:18:40
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors. +0530
Page No.7 of 37 Dated:27.03.2026
examined the Will dated 01.07.1983 and then only it transpired that said will did not bear the signatures of his father and it appears that the plaintiff had forged the said Will with an intention to take a share in the suit property. The father had already debarred the plaintiff from his movable and immovable properties. The Will dated 25.10.1983 is forged and fabricated because Late Yashpal has executed his last and final Will dated 04.08.1982 which is duly registered. The defendant no.3 never resided with the plaintiff at any point of time. The plaintiff and his family members never looked after the defendant no.3 at any point of time.
Defendant no.4 became the owner of the suit property as per his share described in the last Will dated 04.08.1982. Smt. Champa Devi was not having any exclusive right or authority to gift any portion of the property in question in favour of any person (s) including the defendant no.1 to 3.
8. Replication The Plaintiff filed replication denying the allegations of defendants and reaffirmed and reiterated the contents of plaint.
9. From the pleadings of the parties, issues were framed in First suit vide order dated 08.09.2015 and issues were modified and re- framed vide order dated 17.11.2016 as follows:-
1. Whether the plaintiff is entitled to decree of declaration declaring that on the demise of Smt. Yashpal Mehta, plaintiffs and defendants became joint owners of the property No.G-66, Lajpat Nagar-II, New Delhi-110024? OPP.CS DJ 11679/2016
Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by CS DJ 256/2022 PRABH PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
Misc DJ 1205/2025 KAUR 2026.03.27
16:18:44
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors. +0530
Page No.8 of 37 Dated:27.03.2026
2. Whether Smt. Yashpal Mehta executed her Will dated 01.07.1983? OPP.
3. Whether Smt. Yashpal Mehta executed her Will dated 04.08.1982? OPD.
4. Whether plaintiffs are entitled to the declaration declaring the gift deeds dated 25.05.2008 and 01.07.2008 executed by Smt. Champa Mehta in favour of defendant nos.1 to 3 are null and void? OPP.
5. Whether plaintiffs are entitled to the relief of partition as claimed? OPP.
6. On which or more parties does the share of the defendant no.3 Sh. Surinder Kumar Mehta devolves inasmuch as Sh. Surinder Kumar Mehta has died during the pendency of the suit? (onus put on parties).
7. Relief.
Second Suit:
10. During pendency of the first suit, on 07.04.2022, defendant no.4 and 5 in the first suit, have second suit for possession and damages against the plaintiff and defendant no.1/Sh. Joginder Kumar Mehta qua the second floor of the suit property on the ground that Will of Late Sh.
Yashpal Mehta dated 01.07.1983 relied by the plaintiff is forged and fabricated and Late Sh. Yashpal Mehta had executed Will dated 04.08.1982 in favour of his wife and three sons except plaintiff and all the four got 1/4th share in the property. Further, Sh. Surinder Kumar Mehta/defendant no.3, having 1/4th each undivided share in the suit property, has executed a Will in respect of his share on 10.05.2011 CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by PRABH PRABH CS DJ 256/2022 DEEP KAUR DEEP Date:
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR 2026.03.27 16:18:47 Misc DJ 1205/2025 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.9 of 37 Dated:27.03.2026 duly registered on 14.05.2011 thereby bequeathing his 1/4th undivided share in favour of Sh. Amar Satya/defendant no.5. The suit filed by defendant no.4 and 5 is referred as second suit as it pertains to the share of Sh. Surinder Kumar Mehta / defendant no.3. In other words, in the second suit the only question to be determined is that after demise of defendant no.3 upon whom the share of defendant no.3 devolved. There is a specific issue qua the same in the first suit also i.e. issue no.6.
11. Meanwhile, Sh. Amar Satya moved an application U/O 1 R 10 CPC in the first suit also for his impleadment as LR of defendant no.3/Sh. Surinder Kumar Mehta, on the ground that due to services rendered by applicant / defendant no.5 to defendant no.3, he has executed a registered Will dated 10.05.2011 thereby bequeathing his share in favour of defendant no.5 with his free will and sound disposing mind. The application was allowed vide order dated 02.06.2022 and Sh. Amar Satya was impleaded as defendant no.5 in the first suit.
Thereafter, defendant no.5 filed WS and he supported the defence of his father / defendant no.4.
12. Issues in the Second suit :
From the pleadings of the parties, following issues were framed in Second Suit vide order dated 30.05.2024:-
1. Whether plaintiff (defendant no.4 and 5 in the first suit) is entitled for decree of possession against defendant no.1 (plaintiff in the first suit) as prayed in prayer clause A of the plaint? OPP.CS DJ 11679/2016
Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by CS DJ 256/2022 PRABH PRABH KAUR DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
KAUR 16:18:52 2026.03.27 Misc DJ 1205/2025 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.10 of 37 Dated:27.03.2026
2. Whether the plaintiff (defendant no.4 and 5 in the first suit) is entitled for mesne profits/damages and interest against the defendant no.1 (plaintiff in the first suit), if so at what rate and for which period? OPP.
3. Whether the suit of the plaintiff (defendant no.4 and 5 in the first suit) is barred by principle of estopel and under 2 Rule 2 CPC? OPD1
4. Whether the suit of the plaintiff (defendant no.4 and 5 in the first suit) is barred by law of limitation? OPD1
5. Whether the suit of the plaintiff (defendant no.4 and 5 in the first suit) is not properly valued for the purpose of court fee and jurisdiction?OPD1
6. Relief.
13. Plaintiff's evidence:
(a) In order to prove his case, the plaintiff examined himself as PW-1, his wife as PW-2, Sh. Rajender Singh from Department of Archives, Govt. of NCT of Delhi examined as PW-3 had brought the summoned record which was Ex.PW3/1(OSR). Plaintiff also examined Sh. Naveen from Department of Delhi Archives, as PW-4. Plaintiff also examined Sh. Subhash Malhotra as PW-5.
All the PWs were cross examined at length by Sh. Diwan Singh, Ld. counsel for the defendant no.4 & 5.
Defendant no.1 and 2 have not cross examined any PW.
14. Defence evidence:
(a) In DE defendant no.4/ Sh Satish Kumar Mehta entered CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 PRABH by Digitally signed PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
2026.03.27 Misc DJ 1205/2025 KAUR +0530 16:18:55 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.11 of 37 Dated:27.03.2026 into witness box as DW-1 and defendant no.5/Sh. Amar Satya as DW-2. Sh. Ajeet Singh from Office of Sub Registrar-V has been examined as DW-3 and he had brought the summoned record which was Ex.DW3/1. Ms. Salil Tirkey has been examined as DW-5 and Mr. Sunil Chandra Garhwal as DW-6 who brought the summoned record from L& DO. Mr. Mohd. Furkan has been examined as DW-7 and Ms. Simmi Mehta as DW-8.
All the DWs have been cross examined by Sh. Amit Kumar, Ld. counsel for the plaintiff.
15. Defendant no. 1 & 2 have not led any evidence.
16. The evidence recorded in the first suit on behalf of defendants has been recorded as plaintiff's evidence in the second suit. Further, the plaintiff's evidence in the first suit was adopted as defence evidence in the second suit and same was allowed vide order dated 13.11.2025.
17. During pendency of the suit, plaintiff has expired on 22.01.2023 and his LRs were impleaded U/O 22 R 23 CPC vide order dated 23.02.2023.
Misc. Application
18. Further, during pendency of the suit, defendant no.5 has moved an application u/s 379 of BNSS for initiating proceedings against petitioner/non applicant under section 229/236/237/318(4) BNS on the ground that Late. Sh. Yashpal Mehta has executed Will dated 04.08.1982 in the name of his wife Smt. Champa Rani, Sh.
CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date: KAUR 2026.03.27 Misc DJ 1205/2025 16:18:58 +0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.12 of 37 Dated:27.03.2026 Satish Kumar Mehta, Surender Kumar Mehta and Sh. Joginder Kumar Mehta regarding property no.G-66, Lajpat Nagar-II, New Delhi and thereafter the non-applicants in collusion with each other have prepared false, forged and fabricated will dated 01.07.1983 with forged signatures of Late. Sh. Yashpal Mehta. Thus, non applicants have committed crime of creating false, forged and fabricated documents as evidence to grab the property bearing no. G-66, Lajpat Nagar, II, New Delhi in which the Defendant no.5 is having his own share as per Will executed by Defendant no.3/ Late Sh. Surender Kumar Mehta on dated 10.05.2011.
19. No reply to the Misc. Application has been filed by anyone.
20. Final arguments:
I have heard Ld. counsels for both the parties and meticulously gone through the record and also considered the written arguments filed by them.
Both the parties have also filed written arguments in which they have reiterated the arguments addressed before the Court and same are not reproduced here in verbatim for the sake of brevity but will be dealt alongwith the findings upon issues at the relevant stage.
Issue-wise findings are as follows:
21. Issue nos. 1 to 5:
1. Whether the plaintiff is entitled to decree of declaration CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by PRABH PRABH CS DJ 256/2022 DEEP KAUR DEEP Date:
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR 2026.03.27 16:19:01 +0530 Misc DJ 1205/2025 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.13 of 37 Dated:27.03.2026 declaring that on the demise of Smt. Yashpal Mehta, plaintiffs and defendants became joint owners of the property No.G-66, Lajpat Nagar-II, New Delhi-110024? OPP.
2. Whether Smt. Yashpal Mehta executed her Will dated 01.07.1983? OPP.
3. Whether Smt. Yashpal Mehta executed her Will dated 04.08.1982? OPD.
4. Whether plaintiffs are entitled to the declaration declaring the gift deeds dated 25.05.2008 and 01.07.2008 executed by Smt. Champa Mehta in favour of defendant nos.1 to 3 are null and void? OPP.
5. Whether plaintiffs are entitled to the relief of partition as claimed? OPP.
22. Issues no.1 to 5 are taken up together for the sake of brevity as all the issues are interlinked and involve same discussion. The finding of one issue is dependent upon the findings of other issue. 22(a). Admittedly, father of parties, Late Sh. Yashpal Mehta was owner of the property and he passed away leaving behind five LRs i.e.
(i) one wife and four sons i.e. (ii) plaintiff (now deceased), (iii) defendant no.1, (iv) defendant no.3 (now deceased) and (v) defendant no.4.
22(b). As per Plaintiff the father executed Will dated 01.07.1983, thereby giving life interest to the mother and after demise of mother absolute ownership to plaintiff, defendant no.1, 3 and 4, having 1/4th share each.
CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH KAUR PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date: KAUR 2026.03.27 Misc DJ 1205/2025 16:19:04 +0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.14 of 37 Dated:27.03.2026 22(c). As per defendant no.1 and 2 mother has executed gift
deeds qua first floor, third floor and terrace rights of of the property in favour of defendant no.1 and 2 vide gift deed dated 30.06.2008. 22(d). As per defendant no.4 and 5, the father had executed Will dated 04.08.1982 and no share was given to plaintiff and remaining four LRs i.e. mother and defendant no.1, 3 and 4 were given 1/4th share each in the property. Further, mother was not having exclusive right or authority to gift any portion of the suit property in favour of anyone.
22(e). Thus, plaintiff is relying upon the Will of Late Sh. Yashpal Mehta dated 01.07.1983 and defendant no.4 and 5 are relying upon the Will of late Sh. Yashpal Mehta dated 04.08.1983. Admittedly, both the Wills are registered.
23. PW-3 Sh. Rajender Singh i.e. Record Attendant in the office Department of Archives, Govt. of NCT of Delhi has produced the record of the Will dated 01.07.1983 executed by Sh. Yashpal Mehta which was duly registered on 24.10.1983 and same is Ex.PW3/A. He has also produced the record of the Will dated 04.08.1982 and proved that the Will dated 04.08.1982 was duly registered on 05.08.1982 as per official record and copy of the same is Ex.DW4/1.
24. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed CS DJ 256/2022 PRABH by PRABH DEEP KAUR DEEP Date:
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. 2026.03.27 KAUR 16:19:07 Misc DJ 1205/2025 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.15 of 37 Dated:27.03.2026 testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
25. Before devolving upon the question in hand whether plaintiff and defendant could prove the Will relied upon by them, it is important to have a look into the relevant provisions. It is settled principle that merely registration does not prove a Will and Will has to be proved independently. It is also settled principle that unlike other documents, the 30 years presumption as provided u/s 90 of the Indian Evidence Act, does not apply to Wills and even a Will over 30 years old must still be strictly proved.
Section 63 of the Indian Succession Act, 1925 reads as under:-
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sing or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) 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.
Digitally CS DJ 11679/2016 signed by PRABH PRABH DEEP Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, DEEP KAUR CS DJ 256/2022 KAUR Date:
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(c) The Will 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 of 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."
Section 68 of the Evidence Act "68. Proof of execution of document required by law to be attested.- 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxx"
26. Thus, to prove that Will has been duly executed, the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed by PRABH PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR DEEP Date:
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Page No.17 of 37 Dated:27.03.2026 direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; (c) that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator. Clearly, one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
27. Further, as per Section 68 of the Indian Evidence Act, it is necessary to examine one attesting witness for the purpose of proving the execution of Will, if the attesting witness is alive and is subject to the process of the Court. It is, therefore, necessary that if there is any attesting witness alive and capable of giving evidence and subject to the process of the Court, he has to be necessarily examined before the Will can be used in evidence.
Section 68 of the Indian Evidence Act provides as follows:- "68. Proof of execution of document required by law to be attested.- 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving CS DJ 11679/2016 Digitally signed Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, PRABH by PRABH DEEP KAUR CS DJ 256/2022 DEEP Date:
2026.03.27 Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR 16:19:17 +0530 Misc DJ 1205/2025 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.18 of 37 Dated:27.03.2026 evidence:
Thus, one of the requirements of due execution of Will is its attestation by two or more witnesses and atleast one of the attesting witnesses must be summoned to prove the execution of Will.
Thus, as per Section 68 of the Indian Evidence Act, it is necessary to examine one attesting witness for the purpose of proving the execution of Will, if the attesting witness is alive and is subject to the process of the Court. It is, therefore, necessary that if there is any attesting witness alive and capable of giving evidence and subject to the process of the Court, he has to be necessarily examined before the Will can be used in evidence.
28. Further, Section 69 of Indian Evidence Act provides:-
"69. Proof where no attesting witness found. - If no such attesting witness can be found, or if the documents 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"
Thus, the section gives an alternative method of proof of documents required to be attested by law. It applies: (1) if no such attesting witness can be found; (2) if the document purports to have been executed in the United Kingdom. In these two cases, it must be proved that (i) the attestation of one of the attesting witness at least is in his handwriting and (ii) The signature of the person executing the CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR DEEP Date:
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document is in the handwriting of that person. This means any
person who can identify the signature and handwriting of the executant and of one attesting witness's signature, can prove the document according to this section.
29. Plaintiff has relied upon the Will dated 01.07.1983 Ex.PW3/A, registered on 25.10.1983. Plaintiff has examined one Mr. Subhash Malhotra, who is son of Sh. Tilak Raj Malhotra as PW-5. PW-5 has deposed that his father Sh. Tilak Raj Malhotra was one of the attesting witness of the aforesaid Will and he has signed the Will. PW-5 has further identified his signature at point A on the Will Ex.PW3/A. Interestingly, the signatures of Sh. Tilak Raj Malhotra does not appear at the place which is designated for the attesting witnesses. Rather, below the heading of witnesses some other name is appearing which illegible and there are no signatures or details of any witness at serial no.2 in the list of witnesses at the Will. More interestingly, Mr. Tilak Raj Malhotra has signed on one stamp and it seems that his signatures have been taken at the time of registration of the Will. Moreover, there are no details of Mr. Tilak Raj Malhotra below his signatures i.e. his parentage or address ha not been mentioned.
It is also important to note that at the back side of the Will where registration details are mentioned, name of one Mr. Om Prakash have been mentioned as witness and the second name has been mentioned as Sh. H.V. Chawla, but plaintiff has not examined any one CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR DEEP Date:
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of them to prove the Will.
30. Further, defendants have specifically denied the execution of Will Ex.PW3/A, by their father and they have taken specific plea that the Will doesn't bears signatures of their father. Therefore, apart from the mandatory requirement of law, even otherwise, the onus comes upon the plaintiff to prove that the Will Ex.PW3/A bears signatures of Late Sh. Yashpal Mehta. Admittedly, Will Ex.PW3/A has been registered after death of Late Sh. Yashpal Mehta, therefore, mere registration of Will cannot prove that the Will bears signatures of Late Sh. Yashpal Mehta.
Now, plaintiff and his wife both have entered into witness box as PWs and despite that none of them had identified the signatures of Late Sh. Yashpal Mehta on the Will Ex.PW3/A. In case of dispute with respect to signatures of the testator, one of the LRs of testator can prove the signatures of the testator on the Will. However, in the present case, plaintiff has not examined anyone to prove the signatures of the testator on the Will and thus, there is no affirmative evidence on record to establish that the Will Ex.PW3/A bears signatures of testator Late Sh. Yashpal Mehta.
31. Further, plaintiff has nowhere given any evidence that none of the attesting witnesses is alive and therefore, plaintiff had examined Sh. Subhash Malhotra as PW-4 to identify the signatures of his father namely Sh. Tilak Raj Malhotra on the Will. In view of above discussion, it is clear that plaintiff has failed to prove the due execution CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by CS DJ 256/2022 PRABH KAUR PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
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Page No.21 of 37 Dated:27.03.2026 of Will Ex.PW3/A and same cannot be relied upon to decide the shares of parties in the suit property. Accordingly, issue no.2 is decided in favour of defendants against the plaintiff.
32. Now the defendant no.4 and 5 have relied upon Will dated 04.08.1982, registered on 05.08.1982. Admittedly, the Will Ex.DW4/1 is a Will written in Urdu. Now DW-4, who produced the record of the Will deposed during cross examination that "it is correct that English translation of Ex.DW4/1 (OSR), is not available in original file.".
Thus the translated copy of the Will, relied by upon the defendant no.4 and 5 as Mark A is to be proved independently. Now the defendant no.4 and 5 have not examined any translator or official translator to prove that Mark A is correct and true translation of Will Ex.DW4/1. Further none of the witnesses examined by defendants has deposed that they are acquainted with the Urdu language and the translation of original Will which is in Urdu is the document Mark A. Further, as per the translation Mark A, Late Sh. Yashpal Mehta has given his property to four beneficiaries i.e. his wife/mother of parties, defendant no.1, 3, and defendant no.4 in equal share, everyone having 1/4the Share each. In the WS, defendant no.4 and 5 have stated the same. However in the same breath, defendant no.4 and 5 have stated in the WS that Smt. Champa Devi was not having any exclusive right or authority to gift any portion of the property in question in favour of anyone.
Further, during arguments, defendants have argued that CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by PRABH PRABH DEEP CS DJ 256/2022 KAUR DEEP Date:
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR 2026.03.27 16:19:31 +0530 Misc DJ 1205/2025 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.22 of 37 Dated:27.03.2026 The Will dated 04.08.1982 which has been registered in the presence of eye witness Sh. Kishan Chand and Abdul Rashid who are attesting witness of will dated 04.08.1982. The Will has been registered and executed during the alive time of Late Sh. Yashpal same has been proved by the defendant no. 4 & 5)and witness Mohd. Furkan S/o Late Sh. Abdul Rashid who has justified that the Will dated 04.08.1983 was signed by his father and same was executed by Late Sh. Yashpal which is also justified to be executed by witness Sh. Rajinder Singh who has brought original record from the office of the sub-registrar Delhi by which testator/executant Late Sh. Yashpal has bequeathed/created ownership right only in favour of Surender kumar, Satish kumar and Joginder Kumar. The testator/executant of will dated 04.08.1982 has given only life right to his wife Late Smt. Champa Devi to supervise and look after the property in question who was not given any right or ownership by the testator in the property in question so that only Late Sh. Surender Kumar, Satish Kumar and Joginder Kumar are having ownership right in the suit property vide Will dated 04.08.1982 after demise of Late. Smt.Champa Devi.
Thus, defendant no.4 and 5 have taken contradictory stands and it creates a reasonable doubt over the translation of the Will relied by defendant no.4 and 5.
33. Further, defendant no.4 and 5 has examined Mohd.
Furkan, i.e. S/O Late Sh. Abdul Rashid as DW-7. Sh. Abdul Rashid is stated to be one of the witnesses who signed the Will Ex.DW4/1. His CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed PRABH by PRABH Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP KAUR DEEP Date:
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Page No.23 of 37 Dated:27.03.2026 son /DW-7 identified signatures of his father Late Sh. Abdul Rashid at point A on the Will Ex.DW4/1. However, defendant no.4 and 5 have nowhere proved that none of the attesting witnesses is alive and therefore, they have examined Mohd. Furkan as DW-7 to identify the signatures of his father namely Sh. Abdul Rashid on the Will Ex.DW4/1. Interestingly, the Will Ex.DW4/1 bears signatures of two witnesses but at the back side of the Will, the name of three witnesses as Sh. Kishan Chand, Sh. Abdul Rashid and Sh. Ishwar Chand Garg has been mentioned.
34. Further, it is a mandatory requirement regarding prove of Will that the signatures of the testator are proved by affirmative evidence. Mere registration of Will cannot prove that the Will bears signatures of Late Sh. Yashpal Mehta. It is important to note that defendant no.4 and 5 both have entered into witness box as DWs. Despite that none of them had identified the signatures of Late Sh. Yashpal Mehta on the Will Ex.DW4/1. In case of dispute with respect to signatures of the testator, one of the LRs of testator can prove the signatures of the testator on the Will. However, in the present case, defendant no.4 and 5 have not examined anyone to prove the signatures of the testator on the Will and thus, there is no affirmative evidence on record to establish that the Will Ex.DW4/1 bears signatures of testator Late Sh. Yashpal Mehta. In view of above discussion, it is clear that defendant no.4 and 5 has failed to prove the due execution of Will Ex.DW4/1 and same cannot relied upon to determine the shares of CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
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Page No.24 of 37 Dated:27.03.2026 parties in the suit property. Accordingly, issue no.3 is decided in favour of plaintiff against the defendants.
35. Considering the fact that plaintiff has failed to prove that Late Sh. Yashpal Metha executed Will dated 01.07.1983 and defendant no.4 and 5 have also failed to prove that Late Sh. Yashpal Mehta executed a Will dated 04.08.1982 and defendant no.1 to 3 hve not come forward with the plea that Late Sh. Yashpal Mehta had executed to determine the shares of the parties, it will be presumed that Late Sh. Yashpal Mehta died intestate.
Admittedly, he passed away leaving behind one wife and four sons. Therefore, after demise of Late Sh. Yashpal Metha, they all became joint owners of the suit property. Accordingly, issue no.1 is decided in favour of plaintiff against the defendants and it is declared that on demise of Late Sh. Yashpal Metha, plaintiff and defendants became joint owners of the suit property.
36. Share of the mother Smt. Champa Mehta.
36(a). Admittedly, Smt. Champa Mehta expired on 08.07.2009 and as per above discussion, at the time of death, she was having 1/5th undivided share in the suit property. Admittedly, she passed away intestate i.e. without execution of any Will. 36(b). Now, defendant no.1 and 2 have relied upon the gift deed allegedly executed by Smt. Champa Mehta in favour of defendant no.1 to 3. However, during arguments, it has been stated on behalf of defendant no.1 and 2 that they have no objection, if the gift deeds dated CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by CS DJ 256/2022 PRABH PRABH KAUR DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
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Page No.25 of 37 Dated:27.03.2026 25.05.2008 and 01.07.2008 executed by Smt. Champa Mehta are declared as null and void.
36(c). Irrespective of the no objection given by the defendant no.1 and 2, it is settled principle that one cannot transfer more than what is owned by him or her. In the present case admittedly, property has four floors till date and Smt. Champa Mehta allegedly executed the gift deed qua first floor, third floor and terrace rights of the suit property. However, she cannot execute gift deeds for more than what is owned by her and therefore, the gift deeds allegedly executed by her have no legal sanctity. Further, the plaintiff and defendant no.4 and 5 have objected to the execution of gift deeds on the ground that at the time of execution of alleged gift deeds, Smt. Champa Mehta was not mentally fit and capable to execute the gift deeds. Now, defendant no.1 and 2 have not led any evidence to prove that at the time of execution of the alleged gift deeds, Smt. Champa Mehta was mentally fit and capable to execute the gift deeds. Rather, defendant no.1 and 2 have chosen to remain silent through out trial and have not led any evidence on their behalf.
36(d). In view thereof, issue no.4 is decided in favour of plaintiff against the defendants and the gift deeds dated 25.05.2008 and 01.07.2008 executed by Smt. Champa Mehta in favour of defendant no.1 to 3 are declared as null and void. 36(e). Now, admittedly, Smt. Champa Mehta died intestate and and the gift deeds allegedly executed by her have been declared as null CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed by Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. PRABH PRABH DEEP KAUR DEEP Date:
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and void, therefore, the 1/5th undivided share of Smt. Champa Mehta in the suit property is to devolve in equal proportionate upon her legal heirs. Admittedly, Smt. Champa Mehta passed away on 08.07.2009 leaving behind four sons i.e. plaintiff, defendant no.1, 3 and 4. Therefore, her share will be divided amongst plaintiff, defendant no.1, 3 and 4 in equal proportionate and thus, their share will be enhanced and each of them will have 1/4th undivided share in the suit property.
37. Share of defendant no.3 / Sh. Surender Kumar Mehta Issue no.5 and 6 in the first suit
5. Whether plaintiffs are entitled to the relief of partition as claimed? OPP.
6. On which or more parties does the share of the defendant no.3 Sh. Surinder Kumar Mehta devolves inasmuch as Sh. Surinder Kumar Mehta has died during the pendency of the suit? (onus put on parties). Issue no.1 and 2 in second suit
1. Whether plaintiff (defendant no.4 and 5 in the first suit) is entitled for decree of possession against defendant no.1 (plaintiff in the first suit) as prayed in prayer clause A of the plaint? OPP.
2. Whether the plaintiff (defendant no.4 and 5 in the first suit) is entitled for mesne profits/damages and interest against the defendant no.1 (plaintiff in the first suit), if so at what rate and for which period? OPP.
These issues are taken up together as they involve common discussion and they pertain to the share of defendant no.3/Sh. Surender Kumar Mehta.
CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by CS DJ 256/2022 PRABH PRABH KAUR DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date: Misc DJ 1205/2025 KAUR 16:19:50 2026.03.27 +0530
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Page No.27 of 37 Dated:27.03.2026 Admittedly, Sh. Surender Kumar Mehta passed away during pendency of the suit on 04.02.2015 and in the order dated 21.04.2015 it has been recorded that "considering the fact that defendant no. 3 died issueless without leaving any legal heir except to the parties to the suit, his name is deleted from the array of the parties".
38. Now in the year 2022, Sh. Amar Satya son of defendant no. 4 came forward and moved an application u/O 1 Rule 10 CPC in the first suit stated that defendant no. 3 Sh. Surender Kumar Mehta had executed a registered Will dated 10.05.2011 thereby bequeathing his share in favour of Sh. Amar Satya and the application was allowed vide order dated 02.06.2022 and he was impleaded as defendant no. 5 in the present suit. Simultaneously, Defendant no.4 and 5 filed a separate suit for possession and damages stating that defendant no.3 was in possession of first floor by virtue of Will dated 04.08.1982 executed by his father Late Sh. Yashpal Mehta and defendant no.3 had executed registered Will dated 10.05.2011 thereby, bequeathing his share to defendant no.5/Sh. Amar Satya. It is further stated that the father has not given any share to the plaintiff and in pursuant to the above mentioned Will executed by defendant no.3 in favour of defendant no.5, plaintiff has no right, title or interest to retain the possession of the suit property and therefore, plaintiff is liable to vacate the suit property and is also liable to pay damages to defendant no.4 and 5.
39. Now as far as the question of Will dated 04.08.1982, CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 PRABH by Digitally signed PRABH Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP KAUR DEEP Date:
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executed by father of parties, Late Sh. Yashpal Mehta is concerned, it has already been held that the said Will has not been properly proved and it cannot be relied upon to determine the shares of parties in the suit property. It has been further held that after demise of father of parties, plaintiff was entitled for 1/5th share in the property and after demise of mother of the parties, the share got increased and plaintiff is entitled for 1/4th share in the property. Therefore, defendant no.4 and 5 cannot claim that plaintiff has no right, title or interest to retain the possession of the suit property.
40. Now, defendant no.4 and 5 have relied upon the Will dated 10.05.2011 executed by Sh. Surender Kumar Mehta in favour of defended no.5. Now to prove the Will, defendant no.4 and 5 have summoned the record from Sub Registrar Office and DW-3 has proved the record of Will as Ex.DW3/1. However, as has already been discussed that mere registration of Will is no prove of Will and Will has to be proved independently irrespective of the registration.
41. Now, plaintiff has taken the plea that defendant no.3 was not mentally fit and capable to execute the Will. While, defendant no.4 and 5 have examined Ms. Simmi Mehta i.e. daughter of defendant no.4 and sister of defendant no.5 as DW-8. DW-8 deposed defendant no.3 executed Will dated 10.05.2011 in her presence in his sound disposing mind without any force, pressure, coercion or undue influence and he signed the Will in her presence. Similarly, defendant no.4 and 5 have examined Sh. Salil Tirkey as DW-5, who also deposed on the lines of CS DJ 11679/2016 Digitally Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, signed by PRABH PRABH CS DJ 256/2022 DEEP KAUR DEEP Date:
Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR 2026.03.27 16:19:57 Misc DJ 1205/2025 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.29 of 37 Dated:27.03.2026 testimony of DW-8.
42. At this stage, it is important to note that defendant no.4 initially has filed the first suit alongwith the plaintiff. In the first suit, alongwith the plaint one application was filed U/O 32 R 3 r/w section 151 CPC for appointment of guardian for defendant no.3 on the ground that defendant no.3 is of unsound mind and cannot be sued without appointment of guardian. It was further stated that defendant no.3 is in custody of defendant no.1 and 2, however, they are against the welfare and interest of defendant no.3 and therefore, legal guardian of defendant no.3 should be appointed. Interestingly, application was supported with the affidavit of defendant no.4/Sh. Satish Kumar Mehta only.
In the reply to the application, defendant no.1 and 2 admitted that defendant no.3 is of unsound mind and that defendant no.3 is staying with them but they denied that they are acting against the welfare of the defendant no.3.
43. Meanwhile, on 14.05.2012, defendant no.4 who was plaintiff no.1 at that time, expressed the wishes to be transposed as defendant and vide order dated 09.12.2022, the request was allowed and plaintiff no.1/Sh. Satish Kumar Mehta was allowed to be transposed as defendant no.4.
Thereafter, on 11.07.2013, defendant no.1, defendant no.2 and defendant no.4 proposed that defendant no.4 be appointed as legal guardian of defendant no.3 stating that the defendant No. 4 had been CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally CS DJ 256/2022 signed by PRABH PRABH DEEP Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR Misc DJ 1205/2025 DEEP Date:
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors. KAUR 2026.03.27 16:20:03 +0530 Page No.30 of 37 Dated:27.03.2026 looking after and taking care of the defendant No. 3 for all practical purposes, he would be the best person to be appointed as guardian-ad-
-litem but the plaintiff objected the same.
44. Thereafter, vide order dated 26.08.2013, application U/O 32 R 3CPC was allowed and defendant no.4 was appointed as guardian- ad-litem of defendant no.3.
On 22.11.2013, plaintiff submitted to the Court that defendant no.3 is not traceable. Thereafter, the order dated 26.08.2013 was recalled vide order dated 07.08.2014 the application U/O 32 R 3 was ordered to be disposed of afresh.
45. On 05.12.2014, following order was passed:-
"As per the IA, it is stated that defendant no.3 is of unsound mind and as such legal guardian should be appointed for him. Initially, this application was filed alongwith suit by both the plaintiffs but later on plaintiff no. 2 was transposed as defendant no. 4 and now this application has been contested as plaintiff (now herein) as well as defendant no. 4. Each of them want to be appointed as legal guardian of defendant no. 3.
No document has been filed alongwith application to substantiate the plea that defendant no.3 is of unsound mind. It was claimed during the pendency of this application that defendant no. 3 is untraceable for which police complaint was lodged by the plaintiff with P.S. Lajpat Nagar. Report of SHO, Lajpat Nagar was called for, who has stated that defendant no. 3 is not untraceable but he does not wish to come to his home and is generally found roaming in the market area of Lajpat Nagar and when requested he has shown his unwillingness to return to home. SHO, PS Lajpat Nagar has filed the status report and copy is supplied to the parties.
In the absence of any document on record to substantiate the plea that defendant no. 3 is of unsound mind as well as police report that he has voluntary refused to return back to his home, it CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed by PRABH PRABH Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP KAUR DEEP Date:
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Page No.31 of 37 Dated:27.03.2026 cannot be held that defendant no. 3 is in such a state of mind that guardian should be appointed. The application is devoid of merits and the same is dismissed Written statement filed by defendant no. 4 on behalf of defendant no. 3 earlier shall not be considered to be filed on behalf of defendant no. 3. Defendant no.3 is not appearing and should be proceeded ex-parte."
Thereafter, on 13.02.2015, it was revealed that defendant no.3 had passed away.
46. Now, the request of defendant no.4 to be transposed from the plaintiff to defendant has been allowed but the material question is whether the defendant no.4 can withdraw all the averments made in the original plaint specially when during cross examination he admitted his signatures on the original plaint as well as on the supporting affidavits. From the above mentioned orders, it is clear that defendant no.4 even after transposition from plaintiff no.1 to defendant no.4, has taken the stand that defendant no.3 was of unsound mind. Even to the extent that vide order dated 26.08.2013, defendant no.4 was appointed as a guardian-ad-litem of defendant no.3. Now the order dated 26.08.2013, has been recalled on the technical ground and for want of medical documents, but it is not withdrawal of the admission of defendant no.4 that defendant no.3 is of unsound mind.
47. Further, perusal of record shows that in para no.19 of the plaint, plaintiff has stated that :-
"It is significant to state that the defendant no.3 is a mentally abnormal. The defendant no.3 is dependent upon others for his daily chores and he even i needs help of others for going anywhere and cannot even ask for the food. The defendant no.1 and 2 are CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 PRABH by Digitally signed PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
2026.03.27 Misc DJ 1205/2025 KAUR 16:20:11 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.32 of 37 Dated:27.03.2026 basically keeping the defendant no.3 in captive."
Now in the WS, defendant no.4 has stated that :-
"That the contents of para 19 of the plaint need no reply"
48. Thus, even in the WS defendant no.4 admitted that defendant no.3 is of abnormal mind. Therefore, now in the second suit defendant no.4 has taken the plea that defendant no.3 was completely normal but in view of the abovementioned admissions on part of defendant no.4 in the first suit, the degree of burden of proof upon defendant no.4 and 5 to prove the mental capacity of defendant no.3 becomes higher. However, defendant no.4 and 5 have not given any medical or documentary proof that defendant no.3 was mentally fit to execute Will or that at the time of execution of the alleged Will he was capable of understanding the implication of execution of the Will.
49. Further, as per testimony of DW -8, who is daughter of defendant no.4 and sister of defendant no.5, defendant no.3 executed the will dated 10.05.2011 in her presence. The witness being blood relative of defendant no.4 and 5 is clearly an interested witness and therefore her testimony is to be considered with a lot of precaution. The DW-8 has nowhere explained why she was silent from 04.02.2015 i.e. when defendant no.3 expired till 07.04.2022 i.e. when the second suit has been filed. She has not given any reason why she has not disclosed about the Will of defendant no.3 earlier to defendant no.4 and 5 and why she waited for almost 7 years. The question of disclosure is most important because in the first suit vide order dated 13.02.20115, it was recorded that defendant no.3 has died leaving behind no legal heir CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed CS DJ 256/2022 PRABH by PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
2026.03.27 Misc DJ 1205/2025 KAUR 16:20:14 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.33 of 37 Dated:27.03.2026 and other parties to the suit are his only LRs. It is unbeliveable that she being witness to the Will, will not disclose about the Will to her own father and brother till the year 2022.
50. Further even the other witness to the Will i.e. Ms. Salil Tirkey/DW-5 is also a friend of Simmi Mehta/Daughter of defendant no.4. She deposed that defendant no.3 signed the Will in her presence.
However, during cross examination she has admitted that she has never seen defendant no.3 writing and reading in her presence at any point of time. She admitted that she had signed the Will at the house of Simmi Mehta/DW-8 and she had not gone for registration of the Will. Moreover, considering the stand of defendant no.4 taken since begining that defendant no.3 is not mentally fit and also the close relationship of DW-5 with DW-8, the testimony of DW-8 is not sufficient to remove the clouds over the genuineness of the alleged Will dated 10.05.2011 executed by defendant no.3.
51. Further, admittedly the Will dated 04.081982 allegedly executed by Late Sh. Yashpal Mehta was already under dispute. Despite that defendant no.5 has not applied for probate qua the Will dated 10.05.2011 allegedly executed by defendant no.3 and the silence of defendant no.4 and his family members qua the alleged will from 2015 till 2022 is sufficient to demolish the creditability of defence witnesses qua the alleged Will dated 10.05.2011.
In view of above discussion it is clear that Will dated 10.05.2011 allegedly executed by defendant no.3 /Sh. Surender Kumar CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed by PRABH PRABH Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. KAUR DEEP Date:
DEEP Misc DJ 1205/2025 KAUR 2026.03.27 16:20:18 +0530 Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.34 of 37 Dated:27.03.2026 Mehta is liable to be discarded, being not properly proved and it can be safely presumed that Sh. Surender Kumar Mehta/defendant no.3 passed away intestate. Admittedly, he has no legal heirs except his brothers who are entry -II of Class -II legal heirs. Therefore, the share of defendant no.3 will devolve equally upon his brothers i.e. plaintiff, defendant no.1 and defendant no.4. Thus, their shares will be increased and they will be entitled to 1/3rd share each in the suit property. Accordingly, issue no.5 and 6 in the first suit are disposed of in favour of plaintiff against the defendants. Issue no.1 and 2 in the second suit are decided in favour of the plaintiff and against the defendant no.4 and 5.
52. Defendant no. 4 and 5 have relied upon the Judgment of Hon'ble High Court of Delhi in case titled as "D.R. Singh & Anr. Vs. Deepa Chaudhary & Ors., 2013(3) CLJ 575 Del. Decided on 15.07.2013 and judgment of Hon'ble Supreme Court of India in case titled as Union of India Vs. Ibrahim Uddin & Anr., 2012(4) CLJ 254 S.C. decided on 17.07.2012". As far as these judgments are concerned, same are not applicable to the facts in hand.
53. Issue no. 3, 4 and 5 in the second suit.
3. Whether the suit of the plaintiff (defendant no.4 and 5 in the first suit) is barred by principle of estopel and under 2 Rule 2 CPC? OPD1
4. Whether the suit of the plaintiff (defendant no.4 and 5 in the first suit) is barred by law of limitation? OPD1
5. Whether the suit of the plaintiff (defendant no.4 and 5 in the first CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Digitally signed PRABH by PRABH Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP KAUR DEEP Date:
Misc DJ 1205/2025 2026.03.27
KAUR 16:20:21
+0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.35 of 37 Dated:27.03.2026 suit) is not properly valued for the purpose of court fee and jurisdiction?OPD1 The onus to prove these issues was upon the plaintiff (in the first suit), however, plaintiff has not addressed any arguments qua these issues nor any evidence has been led qua them. In view thereof, issue no. 3 to 5 in the second suit are decided in favour of defendant no.
4 and 5 against the plaintiff.
54. As far as the misc. Application is concerned, defendant no. 5 has stated that plaintiff and remaining defendants are in collusion with each other and the Will dated 01.07.1983 relied by the plaintiff is forged and fabricated. However, defendant no. 5 has failed to produce any evidence to prove that there was any collusion between plaintiff and defendants. Moreover, plaintiff has already passed away and no criminal proceedings can be initiated against the dead person. As far as defendant no. 1 and 4 are concerned, they both have taken the plea that the Will dated 01.07.1983 is forged and fabricated. Therefore, no ground to proceed with the application is made out, accordingly application stands dismissed being devoid of merits.
55. Conclusion:
In view of findings upon the issues in both the suits, (I) The first suit of the plaintiff is hereby decreed for the following reliefs:
a. Decree of declaration that on demise of Sh. Yashpal Mehta, plaintiff and defendants became joint owners of the suit property i.e. CS DJ 11679/2016 Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, Digitally signed by CS DJ 256/2022 PRABH PRABH DEEP KAUR Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr. DEEP Date:
KAUR 2026.03.27
Misc DJ 1205/2025 16:20:25
+0530
Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.36 of 37 Dated:27.03.2026 G-66, Lajpat Nagar-II, New Delhi -110024; b. Decree of declaration that gift deeds dated 25.05.2008 and 01.07.2008 executed by Smt. Champa Mehta in favour of defendant no. 1 to 3 are null and void;
c. Plaintiff is entitled for decree of partition. Decree of partition thereby plaintiff and defendant no. 1 and defendant no. 4 are held entitled to 1/3rd share each in the suit property. (II) The second suit for possession, mesne profit/damages filed by defendant no. 4 and 5 against the plaintiff and defendant no. 1 is dismissed being devoid of merits.
(III) The misc. application filed by defendant no. 5 /Sh. Amar Satya against the plaintiff, defendant no. 1 and defendant no. 4 is dismissed being devoid of merits.
(IV) Using the power u/O 39 Rule 1 and 2 CPC r/w Section 151 CPC, in the interest of justice, both the parties are hereby restrained from creating third party interest in the suit property till final decree is drawn.
Preliminary decree of partition be drawn accordingly. The record of second suit and misc. application be tagged with the main suit till disposal of the first suit or till final decree is drawn.
Be listed for arguments on final decree on 25.04.2026.
Digitally signed by PRABH PRABH DEEP DEEP KAUR Date: 2026.03.27 KAUR 16:20:29 +0530 Typed to the dictation directly (Prabh Deep Kaur) Corrected and announced District Judge-05 in the open court on South East/Saket Courts 27th March 2026 New Delhi/27.03.2026 CS DJ 11679/2016
Anil Kumar Mehta Vs. Joginder Kumar Mehta & Ors, CS DJ 256/2022 Satish Kumar Mehta & Anr. Vs. Anil Kumar Mehta & Anr.
Misc DJ 1205/2025Amar Satya Mehta Vs. Anil Kumar Mehta & Ors.
Page No.37 of 37 Dated:27.03.2026