Santosh Yadav vs Jaswant Singh & Others on 22 April, 2024

[Cites 53, Cited by 0]

Delhi High Court

Santosh Yadav vs Jaswant Singh & Others on 22 April, 2024

1. The plaintiff has filed a suit for Partition, Rendition of Accounts, Permanent Injunction, Declaration and Cancellation of Sale Deeds dated 23.03.2006, 01.12.2008, 19.03.2010 and the Sale Deed executed by the defendant No. 5 in favour of his wife.

2. The facts as stated in the amended plaint (original plaint was amended two times), are that the plaintiff is the real sister of the five defendants, her brothers, being the children of Late Shri Raj Singh. Somewhere in the year 1994, Shri Raj Singh acquired suit property bearing House No.109, 200, 205, 210 along with Khasra No.16/1, village Naharpur, Near Sector-7, Rohini, Delhi from his father Late Shri Udai Singh and, therefore, the property was ancestral in nature. Late Shri Raj Singh died intestate in the year 2003 leaving behind his wife Shanti Devi, the plaintiff/daughter and the five sons as the only legal representatives/heirs. The plaintiff has asserted that Late Shri Raj Singh Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 2 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 was in coma in last 18 months of his life and was being treated at Saroj Hospital. After the demise of Shri Raj Singh, the properties devolved equally on all the legal heirs of Raj Singh. Smt. Shanti Devi, wife of Shri Raj Singh also expired in the year 2007. However, after the demise of father, plaintiff was not allowed access to the properties by the defendants despite her repeated requests. Thereafter, the defendants also did not agree to partition the property and give her the share.

3. The plaintiff has explained that land situated in village Rithala and village Badli were acquired by the Government vide Notifications under Section 4 dated 24.10.1961 and Section 6 dated 11.01.1967 of the Land Acquisition Act, which was followed by Award No.19/8081 announced in 1980. Because of the acquisition of these lands, compensation amount for a small portion was received by Shri Raj Singh. He filed Execution No.204/2002 in LAC No.357/82 and Execution No.65/2008 which were pending. The plaintiffs and the defendants were substituted as the legal heirs of Shri Raj Singh in the said Execution applications. In their substitution application, it was categorically stated that there are no other legal heirs and that no Will had been executed by the deceased. The application was signed by all the defendants.

4. Further, in the Land Acquisition Appeal SLP No.9864/2001 filed by Shri Raj Singh as well as in RFA No.34/84 and 84/85 in Delhi High Court and in the Execution proceedings, the factual position recorded was that there was no Will executed by Late Shri Raj Singh. Therefore, the plaintiff, the defendants and their mother, on demise of Shri Raj Singh became entitled to 1/7th share in the suit properties and in the compensation. After the demise of mother, her share in immoveable properties has devolved equally on all the parties to the suit and have become entitled to 1/6th share each.

5. The plaintiff has asserted that the Will dated 20.01.2003 now relied upon by the defendants is, on the face of it, fabricated as this alleged Will never found any mention in the applications under Order XXII Rule 1 and 4 CPC and under Order XXI Rule 15 and 16 CPC which was filed by the legal heirs of Shri Raj Singh in the Execution Petition on 15.02.2005, wherein it was stated that no Will had been executed by Late Shri Raj Singh.

6. The authenticity of the Will has been challenged on the following grounds:

Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 3 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06

(i) The suit properties were ancestral in the hands of Late Shri Raj Singh and had no right, title or authority to execute the Will in respect thereof;

(ii) The defendants have only placed on record photocopy of the alleged fabricated Will;

(iii) Late Shri Raj Singh, father of the parties used to sign in Urdu as evident from the various documents or Hindi and never put the thumb impression on any document, as is found on the alleged Will;

(iv) The Will is in English, while Late Shri Raj Singh did not understand or speak English and there is no clause stating that the same was read over in vernacular and the contents were understood by him;

                                     (v)        That all documents filed during Execution had been
                                     signed only in Urdu by Shri Raj Singh;
                                     (vi)       The alleged Will and the alleged Family Settlement had

been created on the same day with the common witness Shri Meer Singh who had vested interest in the defendants and the second witness to the Will is Shri Sher Singh, who does not exist at all;

(vii) The front page of the alleged Will has three notarized stamps whereas the second and third page has only a single stamp;

                                     and
                                     (viii)     Shri Raj Singh was in coma for last 18 months and had

stopped eating 12 months prior to his demise and was being fed through drip before his death and was not in a state of health, where he could execute the Will.

7. The plaintiff has thus, asserted that defendants had no right to execute any Sale Deed in respect of the property on the basis of purported fabricated Will as they themselves were not the owners. No physical division of the properties by metes and bounds has ever been undertaken. The Sale Deeds are completely fabricated documents Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 4 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 and are liable to be declared as null and void and cancelled. The plaintiff thus, seeks a Declaration and Cancellation of the following Sale Deeds:

(i) Sale deed dated 22.03.2006 executed by Defendant no.2 i.e Sh. Sutej Singh in favour of Sh. Gajender Yadav and Sh.

Satender Yadav both sons of Sh. Sutej Singh of plot bearing no. 200 for a sum of Rs. 1,00,000/-.

(ii) Sale deed dated 1.12.2008 executed by Defendant no.4 Sh. Vijender Singh in favour of his wife Smt. Santosh Devi of property bearing No. 200/3, for a sum of Rs. 2,00,000/-.

(iii) Sale deed dated 19.03.2010 executed by Defendant no.4 Sh. Vijender Singh in favour of his wife Smt. Santosh Devi in respect of a portion of property bearing No. khasra no. 16/1 measuring 84 sq Mtrs, for a sum of Rs. 9,80,000/-.

(iv) Sale deed executed by defendant No.5 Sh. Durgesh Yadav in favour of his wife Smt. Sudha Yadav in respect of a portion of property bearing No.200.

8. The plaintiff has further explained that defendant No.1 Mr. Jaswant Singh is having possession of property bearing No.210 and 200 village Naharpur, Rohini, Delhi. The defendant No.2 is in possession of property bearing No.109, 200, Village Naharpur, Rohini. The defendant No.3 is in possession of property bearing No.109, Village Naharpur, Rohini, Delhi. Defendant No.4 is in possession of property bearing No.109 and 200, village Naharpur, Rohini, Delhi. Defendant No.5 is in possession of property bearing No.205 and 200, Village Naharpur, Rohini, Delhi.

9. The land in Khasra No.16/1, village Naharpur, Delhi admeasuring 6000 sq. yards is also in joint possession of the defendants. It is further stated that all the aforementioned properties are partly on rent and partly occupied by defendants. The defendants are deriving the rent as under :

                                 S No.        Property No.    Rent collected    Possessed by

                                 1.           House no. 109   Rs.       50,000/- i) defendant no. 2/ Mr Sutej
                                                              per         month Singh,



Signature Not Verified
Digitally Signed          CS(OS) 1264/2011                                                             Page 5 of 42
By:VIKAS ARORA
Signing Date:25.04.2024
18:26:06
                                                             collected    by ii) defendant no.3/ Mr. Nahar
                                                            defendant No.3 Singh and
                                                                             iii)defendant no.4/ Mr. Vijender
                                                                             Singh

2. House no. 200 Rs 2,00,000/- i) defendant no.l/. Mr. Jaswant per month Singh, collected by ii) defendant no. 2/ Mr. Sutej defendant Nos. Singh, 1,2,4 and 5, iii)defendant no.4/ Mr. Vijender equally. Singh and

iv) defendant no.5/ Mr. Durgesh Yadav

3. House no. 205 Rs. 50,000 per defendant no.5/ Mr. Durgesh month Yadav collected by defendant No. 5

4. House no. 210 Rs. 30,000/- defendant no.l/. Mr. Jaswant per month Singh collected by defendant No.1

5. Khasra No. Rs. 10-12 lacs equally by all defendants 16/1 per months collected by all defendants equally.

10. The plaintiff further submitted that she is suffering from various diseases since 1989. She had been deserted by her husband in the year 2000 and is finding it difficult to survive as she has no source of income. She has only one son who has completed his L.LB course. It has come to her knowledge that defendant No.1, 2, 3 and 4 are trying to sell the property in Khasra No.16/1, village Naharpur, Rohini. They are also trying to destroy the structures existing on their respective lands. The plaintiff has thus, sought partition of the suit properties by metes and bounds along with relief of Declaration of Will dated 20.01.2003 as null and void, in addition to Rendition of Accounts and Permanent Injunction. She has also sought Cancellation of the Sale Deeds dated Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 6 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 23.03.2006, 01.12.2008, 19.03.2010 and the Sale Deed executed by defendant No.5 in favour of his wife.

11. The legal heirs of defendant No.1 in their amended Written Statement have taken a Preliminary Objection that the suit properties got vested in the defendants in their own right or on the basis of the Will of their father Late Shri Raj Singh and that the plaintiff has filed the Suit only to pressurize and coerce the defendants into succumbing to her illegal and arbitrary demands.

12. It is also asserted that the suit is barred by limitation as partition between the legal heirs of Late Shri Raj Singh had taken place way back in the year 2003 on the basis of the Will dated 20.01.2003 and consequent thereto the legal heirs had entered into a Family Settlement/Family Arrangement dated 23.01.2006 which is well within the knowledge of the plaintiff. The plaintiff before the Court and Competent Authorities had given her acquiescence with regard to the Will and the consequent Family Settlement, which has not been opposed by her till date.

13. It is further claimed that the suit is bad for want of cause of action. The plaintiff has failed to show any right in her favour to claim the share in the suit properties. It is further asserted that the defendants had been pursuing their right to compensation for the acquired land and enhancement not only in their own interest but also to protect the rights of the plaintiff qua the compensation out of their love and affection for the sister. Aside from this, they have been giving her maintenance on regular basis because of her disputes with her husband, who has totally neglected the plaintiff.

14. A Preliminary Objection has also been taken that the suit is not valued properly for the purpose of Court Fee. There are inherent unexplained anomalies and contradictions in the stand taken by the plaintiff in the plaint. The present suit is an abuse of process of law as the plaintiff has no share in the suit properties. It has been explained that since Late Shri Raj Singh had left a Will which has already been acted upon in the form of a Family Settlement between the beneficiaries thereto, the present suit is not maintainable.

15. The defendant No.1 has explained that the Khasra No. 16/1, Village Naharpur, Rohini, Delhi admeasuring about 5400 sq. yds. as alleged. The said property has been Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 7 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 vested unto each of the defendant in equal shares, being the sons of Late Sh. Raj Singh, as per the family settlement the said commercial property has thus, been vested unto the defendants and is being so enjoyed by them within their said rights as the legal and lawful owners of their respective shares/portions.

16. It is further explained that the properties in which the plaintiff has raised a claim for a share, even to her knowledge, is vested in the defendants in their own right as follows:

(i) Defendant no. 5 has conveyed built up property bearing no. 3, admeasuring 546 sq. yds., of Khasra No. 16/1, Naharpur, Rohini in favour of Sh. Nahar Singh - Defendant no. 3;

(ii) Defendant no. 3 Sh. Nahar Singh sold property bearing no. 3A, admeasuring 383 sq. yds., Khasra No. 16/1, Naharpur, Rohini in favour of Sh. Nishant Yadav;

(iii) Sh. Sutej Sigh sold his property bearing no. 200- A, admeasuring about 115.55 sq. yds., Khasra No. 117/2, Naharpur Extn., Delhi to Sh. Gajendera Yadav & Sh. Satender Yadav;

(iv) Defendant no. 3 Sh. Nahar Singh sold built up House bearing no. 109/1, measuring 300 sq. yds. Khasra No. 117/2, Naharpur, Delhi to Smt. Sushila Devi; and

(v) Defendant no. 4, Sh. Vijender Singh too sold plot no 200/3, area measuring 166 sq. yds., Khasra no. 117/2, situated at Village Naharpur, Delhi to Smt. Santosh Devi.

17. It is asserted that from the facts above, it is evident that the aforesaid properties vested in the defendants in their own right as owners and are not subject to partition. For the same reason, the relief of Rendition of Accounts in respect of the rent allegedly fetched by these properties, cannot be sought by her.

18. It is further claimed that the plaintiff by her own act and conduct is estopped from challenging the Sale Deed dated 26.10.2005 filed by defendant No.1, as she had sold the property to one Smt. Sushila, where after further sales have been carried out by defendant No.3. In one Sale Deed executed by defendant No.3 in favour of Smt. Seema, there is a Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 8 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 reference of Will of Late Shri Raj Singh. This Sale Deed has not been challenged by the plaintiff and is estopped from challenging the partition which has already taken place between the parties.

19. Further, the Bayana Agreement dated 18.08.2004 executed between defendant No.3 and Shri Jagdish Yadav after the death of Shri Raj Singh, has been witnessed by the plaintiff and defendant No.1 Jaswant Singh (since deceased).

20. The defendant has further taken a plea that no proper site plan of the suit property has been filed. Also, no share of Smt. Shanti Devi, their mother who expired in 2007 has been claimed by the plaintiff, which clearly reflects that the Family Partition has already taken place.

21. On merits, it is reiterated that Shri Raj Singh was the sole and absolute owner of the suit properties and had a lawful right to execute his Will bequeathing his properties to all his sons. It is denied that Late Shri Raj Singh was in Coma for 18 months before his demise or that he was not having reasonable health and mental state till his death, which is almost four years of execution of the Will. The defendant has, therefore, asserted that the suit of the plaintiff is liable to be dismissed.

22. The defendant No.2 Sh. Sutej Singh, defendant No.4 Shri Vijender Singh, and defendant No.5 Shri Durgesh Singh, in their respective Written Statements have taken similar defence as defendant No.1.

23. The defendant No.3 Sh. Nahar Singh in his Written Statement, however, supported the plaintiff and stated that the Family Settlement had been executed and signed by him without reading its contents, only on account of good relations amongst the legal heirs of Late Shri Raj Singh. Moreover, it was never disclosed to him that the Family Settlement was entered into on the basis of the alleged Will dated 20.01.2003.

24. Furthermore, he asserts that his signatures were taken by defendant No.1, 2, 4 and 5 for the purpose of defending the suit and to engage the counsel, but he was never informed that they were denying the 1/6th share of the plaintiff in the properties. The defendant on coming to know about the fabricated Will and obtaining his signatures on the Family Settlement, moved the application I.A. No.11417/2013 dated 10.07.2013 under Section 151 CPC informing that the Written Statement is signed by him and also Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 9 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 denied the existence of the Will, as alleged by the remaining defendants. The Application was allowed vide order dated 10.02.2014 and the Written Statement of defendant No.3 was taken on record separately. It is asserted that the alleged Family Settlement dated 23.01.2006 is based on a fabricated Will and is null and void. On merits, the defendant No.3 has supported the assertions made by the plaintiff in her plaint.

25. The plaintiff in her Replication has denied all the allegations made in the Written Statement and reiterated her case as contained in the plaint.

26. The issues on the pleadings were framed on 04.02.2013 as under:

(i) Whether Late Mr. Raj Singh Yadav, being the father of the plaintiff and the defendants, has left any validly executed Will dated 20th January, 2003? OPD

(ii) Whether the defendants have entered into a family settlement / family arrangement dated 23rd January, 2006 with the knowledge of the plaintiff and owing whereto the plaintiff is not entitled to any share in the estate of Late Mr. Raj Singh Yadav? OPD

(iii) If the above issues are decided against the defendants, to what share if are, and in which of the properties, is the plaintiff entitled to? OPP

(iv) Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP

(v) Relief.

27. The additional issues were framed on 26.07.2017 as under :

(i) Whether the plaintiff is entitled to a decree for rendition of accounts qua the suit properties after the death of Late Shri Raj Singh till the disposal of the suit? OPP.

(ii) Whether the plaintiff is entitled to a decree for declaration and cancellation of Sale Deeds dated 22.03.2006, 01.12.2008, 19.03.2010 and the Sale Deed executed by defendant No. 5 in favour of Smt. Sudha Yadav of a portion of property bearing No.200? OPP.

28. The plaintiff in support of her case examined herself as PW1A. She in her evidence by way of affidavit Ex.PW1A/ A deposed about the erstwhile ownership of the property by her father, Shri Raj Singh, after whose demise, the suit properties devolved on her and the defendants. She also deposed regarding the Will being a forged and Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 10 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 fabricated document. To assert the same, she relied on the compensation proceedings in which she received compensation as a legal heir of Shri Raj Singh and the fact that no Will was filed by the defendants in those proceedings. She also testified about her declining heath. She proved the Schedule of Properties, Ex. PW1A/1, Site Plan of properties occupied by the defendants as Ex. PW1A/2, Death Certificate of Shri Raj Singh as Ex. PW1A/3, Death Certificate of Smt. Shanti Devi as Ex. PW1A/4, record in the Execution proceedings as Ex. PW1A/5 (colly), documents containing signatures of Shri Raj Singh in Urdu as Ex. PW1A/6 (colly), her medical reports and medical records as Ex. PW1A/7 and PW1A/8, respectively.

29. PW2 Shri Kapil Yadav her son gave his evidence by way of affidavit is Ex. PW2/A. He deposed regarding the ownership of the suit property of his maternal grandfather, Shri Raj Singh and testified on similar lines as his mother, the plaintiff.

30. PW1, Mr Satish Kr. Sharma, Naib Nazir, Rohini Courts brought the summoned record of LAC Ex. No. 57916 „Raj Singh vs. UOI‟ Ex. PW1/1. He also brought summoned record of LAC Ex. No. 57918 „Raj Singh vs. UOI‟ which was Ex. PW1/2.

31. DW1 Shri Sutej Singh, defendant No.2, in his evidence by way of affidavit Ex. DW1/A, deposed regarding the execution of the Will dated 20.01.2003 of his father Shri Raj Singh and Will dated 13.07.2005 of his mother, Smt Shanti Devi. He deposed that the property had been in separate possession of defendant No.1 since 1980, himself in 1982 and the other defendants who are defendant Nos. 3,4 and 5 since 1996. He further deposed that the properties were partitioned during the lifetime of the parents with their consent and the Will was executed by the father, to this effect. Further, they also executed a Family Settlement dated 23.01.2006. In support of his case, he produced the Certified Copy of the Will dated 20.01.2003 of Shri Raj Singh as Ex. DW1/X, Certified Copy of the Will dated 13.07.2005 of his mother, Smt Shanti Devi as Ex. DW1/1, copies of Lal Dora Certificates in favour of his brother/defendant No.1 and him as Ex. DW1/2 and Ex. DW1/3 respectively, Bayanama Agreement dated 18.08.2004 as mark „DB‟, Copy of Khana Khatauni of agricultural land bearing No. 16/1, Village Naharpur, Delhi as Ex. DW1/4, copy of Family Settlement dated 23.01.2006 as Ex. DW1/5, Copy of Sale Deed dated 26.10.2005 as Ex. DW1/6, Sale Deed dated 07.01.2009 by Defendant No.3 in Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 11 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 favour of Rakhi Gupta as Ex. DW1/7, Sale Deed dated 18.01.2013 by Defendant No.3 in favour of Sunita as DW1/8, Sale Deed dated 15.03.13 by Defendant No.3 in favour of Seema as Ex. DW1/9, Sale Deed dated 21.02.2014 by D3 in favour of Rajeev Naharia and Pooja Naharia as Ex. DW1/10.

32. DW2 Shri Vijender Singh, defendant No.4 and DW3 Shri Durgesh Singh, defendant No.5, in their respective evidence by way of affidavits which are Ex. DW2/A and Ex. DW3/A deposed on similar lines as their defence taken in their respective Written Statements and by DW1 Shri Sutej Singh in his evidence .

33. Shri Praveen Kumar is the son of deceased defendant No.1 Jaswant Singh whose affidavit of evidence was filed, but was not examined.

34. DW4 Sube Singh was the witness to the Will dated 20.01.2023 and deposed that page 1 and 2 of the Will dated 20.01.2003 do not bear his signatures, but page 3 bears his signatures at point A.

35. DW5 Shri Meer Singh is the witness to the Family Settlement dated 23.01.2006.

36. The detailed testimony of all the witnesses shall be considered subsequently.

37. Learned counsel on behalf of the plaintiff in the Written Submissions stated that the properties were mutated in the name of five defendants in 2005 and one property was mutated on the basis of the Will, but the said Will has not been proved in original and has not been produced. Further, it was claimed that the original Will was in the possession of defendant No.3, though he in his Written Statement denied being in possession of any testament.

38. It was further argued that the defendants have failed to comply with the mandate of Section 237 to 240 and 294 of Indian Succession Act qua the existence of the original testament and they have failed to discharge the onus thereof. Though, secondary evidence has been led by the defendants, to which an objection had been taken by the plaintiff, but no prior permission was taken to adduce the secondary evidence. Moreover, the existence of the original Will had not been proved as DW4 Sube Singh, one of the attesting witness has completely failed to prove the execution of Will. He in his cross- examination had admitted that neither defendant nor their counsel ever approached him for giving evidence in this case, thereby confirming the false pleas taken in the Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 12 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 examination of defendant No.4. Further, DW5 Meer Singh who was the second attesting witness, though examined, but gave up his testimony to prove the Will as has been recorded in the proceedings dated 06.10.2022 and Order dated 29.11.2022. It is argued that the mandate of Section 67 and 68 of Indian Evidence Act and Section 63(c) and 281 of Indian Succession Act has not been complied and it cannot be said that the alleged Will has been proved by the defendant in accordance with law.

39. It is further argued that while in the LAC proceedings, it had been specifically stated that Shri Raj Singh had died intestate and the Affidavit and Undertakings were filed to this effect, this alleged testament was then sought to be projected in LAC proceedings to withdraw the consent to intestate Succession, but this plea was rejected by learned ADJ in the judgment dated 17.02.2021. It is, therefore, argued that Shri Raj Singh had died intestate and the plaintiff is entitled to 1/6th share in the suit properties.

40. Admittedly, Smt. Shanti Devi, wife of Late Shri Raj Singh (mother of the parties) died on 29.09.2006 leaving behind her Will dated 13.07.2005 Ex.DW1/1 according to which she bequeathed her movable properties to defendant No.5 Sh. Durgesh Singh while the immovable properties were to be inherited by all her six children. Thus, the plaintiff is entitled to 1/6th share in the suit properties.

41. The defendant No.1 and 2 and defendant No.4 and 5 in their joint Written Submission claimed that DW4 Shri Sube Singh was one of the attesting witnesses to Will dated 20.01.2003 of Late Shri Raj Singh Ex.DW4/A and the same has been duly proved. Likewise, the Family Settlement dated 23.01.2006 Ex.DW1/5 also records about the Will dated 20.01.2003. The Sale Deeds Ex.PW1/6 dated 26.10.2005, Ex.DW1/9 dated 15.03.2013 and Ex.DW1/10 were all executed by D3 Shri Nahar Singh on the basis of Will dated 20.01.2003 of Late Shri Raj Singh, the execution of which has been duly proved. It is further claimed that the plaintiff has not been able to prove the ownership of Late Shri Raj Singh in any of the suit properties. It is stated that the property bearing No. 205 and 200 are owned by defendant no.1 Jaswant Singh and DW2 Sutej Singh respectively, since 1980 for which the copies of Lal Dora Certificates have been produced as Ex.DW1/2 and DW1/3.

Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 13 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06

42. Furthermore, Shri Raj Singh was having only the bhumidary rights in the agricultural property and the defendants being the male lineal descendants, became entitled to the property as per Section 50 of Delhi Land Reforms Act and the properties were duly transferred in their names vide Order dated 10.03.2005 by the Competent Authority to which no objection was ever taken by the plaintiff. Reliance is placed on the case of Har Naraini Devi vs. UOI, AIR 2022 SCC 4632.

43. It is submitted that after the partition, the defendants have been in settled possession of their respective portions of the suit property. There has been no coparcenary existing in respect of the suit properties on 09.09.2005 and the plaintiff has no right in the suit property to claim the partition as per the case of Vineeta Sharma Vs. Rakesh Sharma 2020 (9) SCC 1.

44. Even otherwise, the plaintiff has admitted that the suit property was ancestral in nature, and the property had already been partitioned before the death of the father amongst the defendants and the father hence, she is not entitled to a share in the same. Reliance is placed on the case of Prakash vs. Phulawati (2016) 2 SCC 36 and Dehra vs. Vishal 2023 (12) SCALE 1 to support its contentions.

45. It is, therefore, submitted that the suit of the plaintiff is without merit and is liable to be dismissed.

46. Submissions heard and the record and evidence perused. The findings on the Issues are as under:

47. At the outset, it may be observed that the pedigree of the parties is not disputed which reads as under: -

Shri Harnam Singh (dead) Shri Uday Singh (dead) Sh. Raj Singh (dead) Smt. Shanti Devi (dead) Santosh Jaswant Sutej Nahar Vijender Durgesh Yadav Singh Singh Singh Singh Yadav (daughter) (son) D1 (son) D2 (son) D3 (son) D4 (son) D5 Plaintiff Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 14 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06

48. As shown above, indisputably, the plaintiff is the daughter, while the five defendants are the sons of Late Shri Raj Singh and Smt. Shanti Devi. It is necessary to state that Mr. Jaswant Singh, defendant No.1 died on 04.04.2015 and is survived by his wife Smt. Sona Devi and three children namely, Ms. Poonam, Sh. Praveen Kumar and Sh. Naveen Yadav are his legal heirs. Mr. Sutej Singh, defendant No.2 also died and his legal heirs are his two sons, Sh. Gajender Yadav and Sh. Satender Yadav. Mr. Nahar Singh, defendant No.3 is also deceased as on 30.06.2019 and is represented through his two legal heirs namely, Smt. Sushila Devi, his wife and Sh. Nishant Yadav his son.

49. It is also not disputed that the scheduled properties were either acquired by Late Shri Raj Singh during his lifetime or inherited from his father Late Shri Uday Singh. Thus, it is not in dispute that the properties sought to be partitioned, were owned by their father, Late Shri Raj Singh.

Issue No. 1 : -

"Whether Late Mr. Raj Singh Yadav, being the father of the plaintiff and the defendants, has left any validly executed Will dated 20th January, 2003? OPD"

50. The defendant Nos. 1, 2, 4 and 5 have propounded the Will dated 20.01.2003 Ex.DW4/A as the last and final Will executed by Late Shri Raj Singh Yadav and a Family Settlement dated 23.01.2006 Ex. DW1/5 pursuant to which the defendants distributed his properties amongst themselves, in the manner specified therein.

51. The execution of the Will dated 20.01.2003 Ex. DW4/A has been questioned by the plaintiff who has set up a claim that Late Shri Raj Singh Yadav died intestate and she is entitled to an equal share along with her brothers/defendants, sons of Late Shri Raj Singh Yadav.

52. An onerous duty is cast upon the court to unravel and decipher the true intent and import of the Will since, unlike other documents, the Will speaks from the death of the testator and the maker of the Will is never available for deposing about the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. It therefore, becomes pertinent to examine whether in Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 15 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 fact, the Will dated 20.01.2003 was executed by Late Sh. Raj Singh during his lifetime and whether the Will produced by the defendants, is a valid and genuine document. Alleged Will executed barely Two Months prior to the Death of the Testator:

53. The most significant aspect which is blatantly apparent is that the alleged Will has been executed barely a month prior to the demise of Late Shri Raj Singh Yadav. This fact in itself raises an antenna for closest scrutiny of the circumstances surrounding the execution of the Will to determine if it has been validly executed and voluntarily by Late Shri Raj Singh Yadav in a fit state of health and mind.

Sound Health of the Testator:

54. The plaintiff has questioned the genuineness and validity of the Will dated 20.01.2003 by asserting that the testator, Shri Raj Singh was in a coma for the last 18 months of his life before he expired on 23.02.2003 and thus, could not have executed the same. This fact is vehemently denied by the defendants. However, there is no evidence adduced either by the plaintiff or the defendants, except the assertion by the plaintiff that Late Shri Raj Singh Yadav was in a coma prior to his death and the corresponding denial by the defendants.

55. Thus, though the plaintiff had claimed that deceased was not in sound physical and mental health at the time of execution of the alleged Will, she has failed to lead any cogent evidence in this regard. The plaintiff has not been able to prove that the deceased testator was of unsound mind as asserted by her.

Whether Late Sh. Raj Singh executed the Will dated 20.01.2003 Ex. DW4/A during his life time:

56. The first aspect which calls for deliberation is whether the alleged Will was ever executed by Late Sh. Raj Singh, father of the parties, during his lifetime.

57. Section 63 of Indian Succession Act, 1925 provides for on execution of Will, which reads as follows:

"Section 63. Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:--

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(a) The 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.

(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.

(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 acknowledgment 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."

58. To prove the valid execution, the propounder of the Will has to prove - firstly, the Will was duly singed by the testator or bears the affixation of his Mark; secondly, the Mark so affixed or the signatures of the testator should be so placed that it appears that it was indented to be executed by the Testator with a dispensing mind free from all extraneous influences; thirdly, it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

59. In the case of H.Venkatachala Iyengar v. B.N. Thimmajamma and Others, AIR 1959 SC 443, the Apex Court emphasized that the Will is dissimilar from other documents of conveyance, as it is produced before the court after the testator has departed from the world, and the testator is not available to say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision where the Will propounded is proved to be the last will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will, is required to prove by satisfactory evidence that: "(i) the Will was signed by the testator: (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had out his signature on the document of his own free will."

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60. The Apex court in Jagdish Chandra Sharma vs Narain Singh Saini (Dead) Through LRs and Others (1995) 4 SCC 459, reiterated the requirements propounded by Section 63 of Indian Succession Act as mentioned in the case of H.Venkatachala Iyengar (supra).

61. To prove the execution of the Will, DW1/Sutej Singh, defendant No. 2, DW2/ Vijender Singh, defendant No. 4 and DW3/Durgesh Singh @ Durgesh Yadav defendant No. 5 in their respective testimony consistently deposed that their father, Late Shri Raj Singh Yadav who died on 23.02.2003, had executed his final Will dated 20.01.2003 Ex.DW4/A. The Will has been executed barely one month before his demise and is unregistered.

Existence of Original Will:

62. The first blatant fact which raises a doubt on the validity of the Will is that the Original Will dated 20.01.2003 has not been produced by the defendants and a contradictory stand has been taken by the defendants regarding the existence of the Will in various prior proceedings.

63. Section 276 of the Indian Succession Act, 1925 mandates the filing of the original Will on record in a Probate Court when a Will is propounded. In the case of H.P.S. Chwala v. State ILR 1986 RLR 213 it was held that when an application is filed under Section 276 Indian Succession Act, it must be accompanied with the Original Will.

64. However, under certain circumstances, an exemption from filing an Original Will can be granted which are encapsulated under Section 237, 238 and 239 of the Indian Succession Act, 1925. It provides for a situation where a limited grant is given by the Court to the propounder/ petitioner in case the Will is destroyed, or lost or in case the propounder is in knowledge but not in possession of the Will and has requested the person in possession to produce the same.

65. Though these are not Probate proceedings, but since the defendants have projected this Will for the first time in this partition Suit, the fundamental principles for proof of the Will remain the same.

66. The first occasion for the alleged Will to have surfaced was in the ongoing litigation which took place in the land acquisition proceedings. It is not denied that Late Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 18 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 Shri Raj Singh Yadav also had properties in Village Rithala and Village Badli which were acquired by the Government vide Notification under Section 4 of the Act of 1894 bearing No. F.254/60 LSG/L&H dated 24.10.1961, followed by Notification under Section 6 of the Act, 1894 bearing No. F.4(5)/63 L&H issued on 11.01.1967 which was followed by Award No. 19/1980-81 being announced on 1980. The acquisition proceedings were contested by Late Shri Raj Singh Yadav during his lifetime and during his lifetime, he received compensation only in respect of small portion. Thus, he filed the Execution No. 204/2002 in LAC No. 357/1982 and another Execution No. 65/2008 for enhanced compensation.

67. Admittedly, on the demise of Late Shri Raj Singh Yadav on 23.02.2003, his legal heirs i.e., the plaintiff and the defendants filed the Application under Order XXI Rule 14 and 15 read with Section 151 of CPC, 1908, dated 15.02.2005 duly signed by all the parties and their mother, Shanti Devi, for substitution of the legal heirs of Late Shri Raj Singh Yadav (Decree Holder) which was supported by the affidavit of D-3/Nahar Singh. The parties stated therein that no Will was ever executed by their father and none of the defendants propounded the alleged Will of Late Shri Raj Singh Yadav, while they were being impleaded as the legal heirs.

68. The Additional District Judge, Delhi had called the report from Land Acquisition Collector (LAC) who gave his Certificate stating that the only legal heirs of deceased Raj Singh were his wife and daughter and five sons. On the basis of submissions made in the Application and the Certificate, the legal heirs of Late Raj Singh were substituted and brought on record vide Order dated 22.04.2006; the copy of the record along with the Order of Additional District Judge, Rohini, is Ex. PW1/5 collectively.

69. This Order was never assailed by any of the parties and the same had attained finality. In fact, on the basis of the substitution, Smt. Shanti Devi, mother of the parties as well as the plaintiff, became entitled to 1/7th share each in the compensation which was accordingly, disbursed. The defendants had nowhere mentioned that there was ever any Will left behind by Late Shri Raj Singh Yadav. There is thus, a categorical admission of all the defendants about there being no Will in existence, till that time.

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70. While the Execution proceedings were pending for disbursal of the compensation/additional compensation in the LAC proceedings, Smt. Shanti Devi, mother of the parties died on 29.09.2006. An Application dated 09.12.2006 under Order XXI Rules 15 and 16 read with Order XXII Rules 1 and 2 of CPC, 1908 was filed for the substitution of legal heirs of Smt. Shanti Devi, by defendant No. 1/Jaswant Singh, plaintiff/Santosh Yadav, defendant No. 4/Vijender Singh and DW3/Durgesh Singh. It was submitted that all the five sons and the daughter were her legal heirs. It was further stated that Smt. Shanti Devi had executed a registered Will dated 13.07.2005 in favour of DW3/Durgesh Singh and bequeathed her share of the compensation to him. A prayer, was accordingly made that DW3/Durgesh Singh may be ordered to be substituted in place of deceased Smt. Shanti Devi to receive her share of compensation.

71. While defendant No. 3/Nahar Singh had remained neutral to the contents of the application, Defendant No.2 Sutej Singh filed his Reply dated 12.02.2008 to the Application under Order XXI Rules 15 and 16 read with Order XXII Rules 1 and 2 of CPC, 1908, wherein he for the first time, asserted that Late Shri Raj Singh had left the Will dated 20.01.2003, the copy of which was annexed along with the Application as Annexure-A. It was claimed that in terms of the Will, the properties devolved in equal proportion of all the five sons and Smt. Shanti Devi had only been given the limited right to maintenance out of the incomes of the properties. Therefore, on the demise of Smt. Shanti Devi, no substitution is required to be made of any legal heir as she had no right/ title in the Suit properties which could devolve upon her legal heirs. Defendant No.2 Sutej Singh also challenged the execution of the registered Will dated 13.07.2005 by Smt. Shanti Devi.

72. In response to this Reply of defendant No.2 Sutej Singh, defendant Nos. 1, 3, 4 and 5 had categorically asserted that no Will was ever executed by their father.

73. Significantly, Santosh Yadav the plaintiff in this Suit as PW-1, had deposed in her affidavit of evidence PW1/A in the present case, that Defendant No. 1/Jaswant Singh admitted in his cross-examination during the substitution proceedings, that no Will dated 20.01.2003 was ever executed by Late Shri Raj Singh Yadav.

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74. Admittedly, Sh. Sutej Singh objected to only the Will dated 18.07.2005 of the mother Shanti Devi when DW3 Durgesh Singh had claimed the share of her compensation as per the Will. In the said objection, he had mentioned the Will of the father for the first time however, subsequently he withdrew his projection of the alleged Will of the father and challenge to the Will of mother, and the share of Smt. Shanti Devi in compensation amount was released to DW3 Durgesh Singh.

75. It is quite evident that the copy of the Will dated 20.01.2003 of the father, came to be filed for the first time along with the substitution Application in 2008; before that in no proceedings whatsoever was there any assertion of even existence of this alleged Will dated 20.01.2003 of Late Shri Raj Singh; rather all the parties made positive assertion that he had executed no Will and that Late Raj Singh died intestate.

76. Pertinently, in case there existed a Will of Late Raj Singh according to which only five sons had inherited the estate of Late Shri Raj Singh as alleged by the defendants, then there was no question of Smt. Shanti Devi or Smt. Santosh Yadav, the plaintiff herein, of having received the 1/7th share each in the compensation. The very fact that Smt. Shanti Devi was held entitled to a share which she bequeathed to DW3/Durgesh Singh to whom her share of the compensation amount was disbursed, further reinforces that no Will was ever executed by Shri Raj Singh.

77. In this regard, it would also be pertinent to refer to the Judgment dated 17.02.2021, of the Additional District Judge certified copy of which is Ex. DW2/AB wherein, while adjudicating on the Objections filed by the defendant No. 1/Jaswant Singh against disbursement of enhanced compensation to the plaintiff, all the aforesaid facts have been detailed and this objection challenging the right of plaintiff to receive compensation because of the alleged Will of Late Raj Singh was considered and the Additional District Judge rejected the objections seeking to deny the compensation to the plaintiff. Pursuant to the said judgment, all the legal heirs of Late Shri Raj Singh Yadav i.e., the plaintiff and the defendants accepted and received the compensation confirming that he died intestate. Admittedly, the plaintiff had got her share of compensation in those Execution Proceedings and the defendants did not contest the right of the plaintiff to Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 21 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 receive the same, which would not have been the situation if there was indeed a Will ousting her from inheriting anything.

Will dated13.07.20015 Ex. Ex. DW1/1of the mother, Smt. Shanti Devi:

78. Another material piece of the evidence is that the mother, Smt. Shanti Devi, who died on 29.09.2006, had left behind a Will dated 13.07.2005, Ex. DW1/1 vide which she bequeathed her share in the ancestral properties to all the sons. This Will was also relied upon by the defendant No.5/Durgesh in the Execution Proceeding No. 65/2008 to receive compensation as the sole beneficiary as per the Will of Smt Shanti Devi. It was admitted by the plaintiff and defendant No.1 and defendant No.4 as per Order dated 18.07.1009 in Ex./LAC No. 65/2008. and is thus, admitted by all the parties. The relevant part of the Will dated13.07.20015 Ex. Ex. DW1/1 reads as under:

"And WHEREAS. I, the Testatrix was the owner of movable and immovable properties and assets situated in the area of Village Naharpur, Delhi and also have Cash, Bank balance, Jewellary and other valuable items which have been equally distributed among all my above mentioned five sons and now all of the are happily residing with their families and there is no dispute regrading settlement of ancestral properties among all my legal heirs."

79. The contents of the Will do not mention about the Will of Late Sh. Raj Singh but only acknowledge that she was the owner of movable and immovable properties and assets situated in the area of Village Naharpur, Delhi which have been equally distributed among all my above mentioned five sons and now all of the are happily residing with their families and there is no dispute regrading settlement of ancestral properties among all my legal heirs.

80. Smt. Shanti Devi could not have had any share in the suit properties if there was a Will of Sh. Raj Singh would had allegedly bequeathed the properties to the five sons. Also, it there was any right that she was deriving from the Will of her husband Late Sh. Raj Singh, it would have definitely found mention in her Will. Rather, her Will also corroborates that on the demise of her husband, she became entitled to equal 1/7 th share with her legal heirs. This is moreso, as admittedly, she bequeathed her share in the compensation amount to her son Sh. Durgesh, who received it also in the Execution proceedings, without any objection from any of the parties. The Objections taken initially Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 22 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 by Sh. Sutej Singh/ defendant No. 2 were subsequently withdrawn. The admitted Will of the mother, reaffirms that no Will was ever executed by Late Sh. Raj Singh. Non production of original Will dated 20.01.2003 of Late Sh. Raj Singh:

81. Defendant No.2/Sutej Singh had produced the copy of the Will of Late Sh. Raj Singh, Ex. DW4/A for the first time with his Objections which were filed in the Execution proceedings in 2008 without the Original ever having been produced in any proceeding or before any Authority. The contesting defendants Nos. 1, 2, 4 and 5 in the present suit, have sought to explain the non -production of the Original Will dated 20.01.2003, by alleging it to be in possession of the defendant No. 3/Nahar Singh but he in his Written Statement has denied the execution of the Will or it being in his possession. Section 65 of the Indian Evidence Act, provides for leading of secondary evidence in (a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved.

82. The defendants in order to be able to rely on the Copy of the Will, had to prove that the original Will is in possession of third party or is destroyed or is not traceable. However, even the secondary evidence as led by the defendants, does not establish any ground to accept the copy of Will to be that of a genuine Will, when the existence of the Will itself has not been established. In the face of denial by Defendant No.3, it became more necessary for the defendants to establish the existence of the Will. There is not an iota of evidence about the existence of alleged Will and the only cogent inference for non- production of the Will can be that no Will was ever executed by the father of the parties.

83. It was Defendant No.2 Sutlej who has been propagating the Will and had filed the Copy of the Will Ex. DW4/A which in fact, is a copy of the copy that was submitted in the LAC proceedings. No explanation has been given by him as to how he came in possession of the copy of the Will and why did he not challenge the Order of learned ADJ, Delhi denying to rely on the Will. The totality of the circumstances lead to only one irresistible conclusion that no Will was ever executed Late Sh. Raj Singh and thus, none ever existed.

84. Furthermore, the perusal of the copy of the Will, Ex. DW4/A which has been produced by DW1/Sutej Singh, on the face of it, create a serious doubt of its being a Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 23 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 genuine document. Pertinently, the Will is on a plain paper and has the stamp of the Notary at three places on the first page, one Notary stamp on the second page and third page, respectively. Though the last page has the stamp of the Notary Public dated 20.01.2003 but there is no Certification by the Notary Public that it is executed or the witnesses had put their signatures in his presence nor is there any stamp of authentication of signatures. These circumstances coupled with the non-production of the Original Will and facts as discussed above, prove that no Will dated 20.01.2003, Ex. DW4/A was ever executed by Late Shri Raj Singh.

The Will Not Signed by the Testator but bears His thumb Impression:

85. Another significant aspect raising doubt about the genuineness of the Will which has been highlighted by the plaintiff, is that the Will bears the alleged thumb impression of Late Shri Raj Singh Yadav, when in fact, he used to sign in Urdu or Hindi and never put his thumb impression on any document. The defendants in their respective cross-

examination have also admitted this fact. However, the defendant No.4/ Vijender Singh who appeared as DW2 has tried to explain in his cross-examination that earlier the father used to sign in Urdu language and thereafter, in English and lastly by putting his thumb impression. However, no document whatsoever has been produced by this witness bearing the thumb impression of their father. Rather, DW2/Vijender Singh has admitted in his evidence recorded on 04.01.2022 that he cannot produce any document bearing the thumb impression of his father. Other than this, there is no explanation given by the defendants as to why the Will had only the thumb impression and not his signatures, either in Urdu or in Hindi.

86. This fact assumes significance in the light of the assertion of the plaintiff that Late Shri Raj Singh Yadav was in Coma and bed-ridden for 18 months prior to his death. Even though the plaintiff had not been able to prove that the deceased Late Sh. Raj Singh was not in good physical health, but the onus was on the defendants to explain why the deceased had put his thumb impression and not his signatures. The defendants have miserably failed to dispel the cloud of suspicion surrounding the execution of the Will itself.

Whether the Contents of the Will were an expression of the intentions of the Testator:

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87. It is also to be noted that DW2/D4 Vijender in his cross-examination has admitted that the testator did not know English language but he could read Hindi and Urdu Languages. The alleged Will was written in English and the onus was on the defendants to prove that the Will was prepared in accordance with the intention and at his instance and that he had signed the Will after knowing its contents.

88. In Pratap Singh & Ors. vs. The State & Anr. 173 (2010) DLT 132 (DB), it was observed that when there is no evidence that the Will was prepared on the direction of the testator and the contents of the Will were read over and explained to him in the language known, then the onus on the appellant to prove the mentally fit disposition of the testator would not stand discharged and it cannot be said that the Will is free from suspicion. The principle as propounded in this case though is the case of Will, applies squarely to the two Gift Deeds under challenge in the present appeal.

89. Similarly, in Belasia Bai Siya and Ors. vs. Pradeep Kumar and Ors. in Second Appeal No. 236 of 1996, decided on 16.03.2009, the High Court of Chhattisgarh observed that the mere fact that the Will is registered is not by itself sufficient to dispel all suspicion regarding it. If the evidence as to the registration shows that it was done in a perfunctory manner and that the Officer registering it did not read its contents to the testator and did not satisfy himself in some way that the testator knew that it was a Will that was being executed, the mere registration would not be of much value. The registration may take place without the executant really knowing the nature of the document being registered.

90. The Supreme Court in the case of Gurdial Kaur vs. Kartar Kaur (1998) 4 SCC 384 had observed that the conscience of the Court must be satisfied that the document was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should be found that the said Will was the product of the free volition of the executor, executed after knowing and understanding its contents.

91. There is not a single averment made by the defendants or the attesting Witnesses anywhere that the Will was read over to the testator who admittedly did not know English Language. Thus, there is a doubt as to whether the contents of the Will were known to the testator or that the Will was written according to his wish.

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Proof of Alleged Will by Attesting Witnesses in terms of Section 68 of the Indian Evidence Act:

92. The plaintiff has further raised a suspicion over the alleged Will dated 20.01.2003 of Late Shri Raj Singh Yadav by claiming that the attesting witnesses have also not been reliable in their testimony about the execution of the Will in accordance with Sections 68 and 71 of the Indian Evidence Act, 1872 which outlines the mode of proof of the Will, a document required by law to be attested. The Sections read as under:

"Section 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 its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] Section 71- Proof when attesting witness denies the execution.--If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

93. In Jagdish Chand Sharma (supra) referring to Sections 68 and 71 of the Evidence Act, it was observed that for a Will to be proved so as to make it admissible in evidence, being a document required by law to be attested by two witnesses, it would necessarily need proof of its execution through at least one of the attesting witnesses, if alive and capable of giving evidence.

94. The underlying principles were explained by the Apex Court in the decision of Jaswant Kaur (supra) as referred to in Raj Kumari v. Surinder Pal Sharma MANU/SC/1840/2019, wherein it was observed thus:

"(1) Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.

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(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence."

95. In Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 it has been explained that clause (c) of Section 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, albeit Section 68 of the Indian Evidence Act, 1872 gives concession to those who want to prove and establish a Will in the court of law by examining at least one attesting witness who could prove the execution of the Will. However, where one attesting witness examined fails to prove due execution of the Will, then the other attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Indian Evidence Act, 1872.

96. These observations for proving of a Will were reiterated in the case of Dhanpat vs Sheo Ram & Ors. 2020 (16) SCC 209, by the Supreme Court.

97. In the case of Madhukar D. Shende v. Tarabai Shedage MANU/SC/0016/2002, the Supreme Court explained how a Will must be proved and on whom the onus lies to prove the same. It was observed thus:

"5...It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 27 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."

98. Thus, the onus of proving the Will dated 20.01.2003 of Late Shri Raj Singh was on the defendant Nos. 1,2, 4 and 5 who are the propounders of the Will. The law provides that the Will may be proved by examination of any of the one attesting witnesses, by virtue of Section 68 of the Indian Evidence Act. In the present case, both the witnesses namely Shri Sube Singh and Shri Meer Singh had been called in the witness box by the defendants, to prove the Will Ex. Ex.DW4/A .

99. The first attesting witness examined by the defendants was DW5/Meer Singh, who deposed that the Family Settlement/Family Arrangement dated 23.01.2006, Ex. DW1/5 bears his signatures at point „S‟ and his thumb impression at point „A‟. He has further deposed that this Family Settlement/Family Arrangement was recorded at the insistence of Shri Raj Singh, since deceased, in favour of his five sons. He also deposed that this document had already been prepared and typed when he reached there.

100. Significantly, this witness has deposed nothing in respect of the Will of which also he was the witness. The testimony of this witness has only been confined to the Family Settlement Ex. DW1/5. He has not been able to prove the Will Ex. DW1/4 of late Raj Singh even though he was a witness to the Will as well.

101. The testimony of DW5/Meer Singh, the alleged attesting witness to the Will, therefore, does not prove the execution of the Will in any manner. Rather, his testimony creates a suspicion over having been executed and apparently the Will and the Family Settlement/Family Arrangement dated 23.01.2006 have been simultaneously created and find a mention for the first time in the year 2008 in the Reply of DW1/Sutej Singh dated 12.02.2008 to the Application under Order XXI Rules 15 and 16 read with Order XXII Rules 1 and 2 of CPC, 1908 for substitution of the legal heirs of Smt. Shanti Devi. The testimony of DW5/Meer Singh rather supports the assertions of the plaintiff that no Will was ever executed by Shri Raj Singh as he does not say a word about the Will, but deposed only about being a witness to the Family Settlement dated 23.01.2006, Ex. DW1/5.

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102. The defendants also examined DW4/Sube Singh, the second attesting witness, who proved the alleged Will as Ex. DW4/A. He was shown the Will dated 20.01.2003 from the judicial record (of the LAC Court which also had only a copy of the Will) and after seeing the same, the witness stated that the first and second page of the Will do not bear his signatures and the third page had his signatures at point „A‟ and in his testimony, the Will was exhibited as DW4/A for the first time. With the signatures of the witness not being on Page Nos. 1 and 2, it cannot be said that these pages contained the alleged expression of the last Will of the deceased Testator and that the Will had in fact, been executed by him.

103. DW4, Sube Singh, when questioned regarding the signatures on the photocopy of the Will, Ex. DW4/A and whether the same is the photostat signature or not, the attesting witness identifies them as his but states that, "If the original signatures are there, then it ought to have been in blue ink". It is significant to note that he did not depose regarding the competence of the testator and execution of the Will in the manner contemplated by law.

104. Both of the attesting witnesses have failed to depose about or state facts surrounding the execution of the Will in question. Likewise, DW3/Durgesh Singh @ Durgesh Yadav in his evidence recorded on 27.04.2022 admitted that the alleged Will was never used before any Authority or forum and that the existence of this alleged testament had been disputed even by him in other proceedings.

105. In the light of the their testimony, it cannot be said that the Will was indeed executed by the testator, Shri Raj Singh.

Conclusion:

106. To conclude, the Original Will dated 20.01.2003, which was alleged by the defendants to be in possession of the defendant No. 3/Nahar Singh, has not seen the light of the day till date. The defendant No. 3/Nahar Singh in his amended Written Statement has denied the existence of the Will which further raises a doubt on the Original Will existing at all. No Original Will has been placed on record. It is also pertinent to observe that there is no cogent secondary evidence led by the defendants to prove that Late Sh. Raj Singh had ever executed any Will.

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107. The overwhelming evidence as discussed above, proves that Late Shri Raj Singh Yadav had died intestate and he had not executed any Will dated 20.01.2003, marked Ex.DW4/A.

108. Accordingly, the Issue No. 1 is decided in favour of the plaintiff and against the defendants.

Issue No. 2 : -

"Whether the defendants have entered into a family settlement/family arrangement dated 23rd January, 2006 with the knowledge of the plaintiff and owing whereto the plaintiff is not entitled to any share in the estate of Late Mr. Raj Singh Yadav? OPD"

Oral Partition:

109. The defendants DW1/Sutej Singh, defendant No. 2 as well as DW2/Vijender Singh, defendant No. 4 and DW5/Durgesh Singh @ Durgesh Yadav, defendant No. 5 have deposed in their respective testimony that the eldest brother, defendant No. 1/Late Shri Jaswant Singh had separated from the family in 1980, the defendant No.2/ Shri Sutej Singh had separated in 1982 while the defendant No. 3/Nahar Singh, defendant No. 4/Vijender Singh and the defendant No. 5/Durgesh Singh @ Durgesh Yadav also got separated in 1996 and since then, they are in possession of their respective shares of the scheduled properties which they have developed by constructing rooms, shops, godowns etc., to generate income without any assistance from their father and other brothers and the plaintiff. It is claimed by them that they used to render the assistance to their parents as well as the plaintiff, who had been deserted by her husband and all her expenditure, including her medical treatment and education of her son were borne by them all. It is further deposed by them that the plaintiff was well aware of the partition of the family properties and had never raised any objection and was even a witness to one of the Bayana dated 18.08.2004, marked as DB, executed in respect of sale of a property by defendant No. 3/Nahar Singh to one of the uncle, namely, Jagdish.

110. The defendants in their testimony, therefore, raised a plea of Oral partition in the years 1980, 1982 and thereafter, 1996 by virtue of which all the properties got partitioned with the consent of the father and the defendants came in possession of their respective shares.

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111. At the outset, it is to be noted that this plea of Oral Partition and division of the properties thereto has not been pleaded by any of the defendants in the pleadings and the same has emerged for the first time in their evidence. Moreover, there are no details provided as to how the properties were partitioned and what happened to the share of the father. There are no details regarding the exact date of the partition and how the father divided the properties amongst the five defendants.

112. The most significant aspect is that the properties are admitted to be owned by Late Sh. Raj Singh, father of the parties. There could not have been a partition since the property was owned by Late Sh. Raj Singh and none of the parties to the suit had any undivided share in the suit properties. The rights could have been created in thew immoveable properties, either by Gift Deeds or Sale Deeds, which admittedly was not done. The partition can only come into effect when the parties have an undivided share in the property which happens when it devolves upon the heirs after the death of the father. An Oral Partition that had taken place in the year 1980 or in 1982 or subsequently in 1996 as the father Shri Raj Singh, who was the owner of the properties, was alive at that time. The parties may have agreed to be is possession of respective portions, but it could not be termed as a partition resulting in severance of joint status, which existed at that time.

113. In the case of Ramesh Arya vs Pawan Arya and Ors. 2019 SCC OnLine Del 10240, an objection was raised to the suit for the partition that the property could not have been partitioned during the lifetime of Parmanand Arya, the erstwhile owner of the property, the father. It was explained by the Court that partition can only be effected between those having share, right, title or interest in the property. It was observed that allocation of separate portions of the property, for the use of the parties, in absence of a Will would not lead to the parties become its owner.

114. According to the defendants, they all separated between 1980 to 1996 with defendant No.1 Jaswant Singh separating in 1980, the defendant No.2/ Shri Sutej Singh in 1982 while the defendant No. 3/Nahar Singh, defendant No. 4/Vijender Singh and the defendant No. 5/Durgesh Singh @ Durgesh Yadav got separated in 1996. From the tenor of the assertions explaining the way properties have been distributed, it is evinced that it Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 31 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 was not an Oral Partition but only an agreement about the separate possession and occupation of the properties between the defendants and the father.

115. Moreover, if the partition had already been effected as claimed by the defendants, then there was no reason for them to propagate the alleged Will dated 20.01.2003 of their father Late Shri Raj Singh Yadav allegedly bequeathing his properties to the defendants, which in any case, has been held to be a fabricated document. The plea of Oral partition is neither tenable nor proved.

Family Settlement:

116. The defendants have taken another plea that they had entered into a Family Settlement dated 23.01.2006, Ex. DW1/5 whereby they effected the partition of the suit properties. The said Family Settlement mentions that Late Shri Raj Singh Yadav executed the Will dated 20.01.2003 in favour of his five sons, describing the manner in which the five sons were to inherit the properties and pursuant to the said Will, the five defendants have mutually and collectively out of their free will and accord and in disposing mind agreed to execute the Family Settlement/Arrangement specifying the respective portions as detailed in site plan in token of error, admission and acceptance of the occupation and possession over their respective portions. Interestingly, in the said Family Settlement/Arrangement, aside from a mention of the alleged Will of Late Shri Raj Singh Yadav, there is not a whisper about this alleged partition of 1980, 1982 or 1996.

117. Further, this Family Settlement/Arrangement which may have been entered into between the defendants in reverence of the alleged Will dated 20.01.2003 of their father Late Shri Raj Singh Yadav, is of no consequence because not only has the Will been held to be a fabricated document but also because it has been held that Late Shri Raj Singh Yadav had died intestate implying that the plaintiff was entitled to an equal share with the defendants. Even if the Family Settlement/Arrangement was executed between the parties in 2006, it merely defines the possession of the defendants in their respective portions and it cannot be termed as a document creating a Title of the defendants in their respective portions.

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118. In the case of Kale vs. Director of Consolidation 118 (1976) 3 SCC 119, the Hon‟ble Apex Court explained how the family settlement is effected which reads as under: -

"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made "under the document" and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2)of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

119. In Teg Bahadur Bhujil vs. Debi Singh Bhujil AIR 1966 SC 292, the Hon‟ble Supreme Court observed that a Family Arrangement can also be arrived at orally and Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 33 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 registration would not be required only if its terms are recorded in writing as a Memorandum of what has been agreed upon between the parties. The Memorandum need not be prepared for the purpose of being used as a document on which the future title of the parties be founded. It is usually prepared as a record of what has been agreed upon so that there is no hazy notion about it in future.

120. In Kalwa Devadattam vs. Union of India AIR 1994 SC 880, while endorsing that an oral partition was permissible, the Hon‟ble Apex Court observed that the burden of proof remained on the person who asserted such partition. The separate occupation of portions, division of the income of the joint property, defining of shares of the joint property in the revenue or land registration records, mutual transactions could be the factors which may become significant to prove an oral agreement as observed in Bhagwani Kunwar vs. Mohan Singh AIR 1925 PC 132 and Digambar Adhar Patil vs. Devram Girdhar Patil AIR 1995 SC 1728.

121. In the present case, the said Family Settlement, mentions that Late Shri Raj Singh Yadav executed the Will dated 20.01.2003 in favour of his five sons, describing the manner in which the five sons were to inherit the properties and pursuant to the said Will, the five defendants have mutually and collectively out of their free will and accord and in disposing mind, agreed to execute the Family Settlement/Arrangement specifying the respective portions as detailed in site plan in token of the admission and acceptance of the terms and conditions, occupation and possession over their respective portions. It was stated that the present indenture is being executed as the Will and has become effective in favour of the Executants on the death of Shri Raj Singh, and in order to avoid any controversy, difference of any kind in the future. They have also stated that they shall be the owners of the respective portions and have defined share of each defendant, in the Family Settlement.

122. This Family Settlement is stated to have been executed in terms of the Will to avoid any confusion in future. In the present case, this document/ Family Settlement containing the terms and recitals of a family arrangement are made "under the document" and it is not a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 34 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 making necessary mutation. Thus, this alleged Family Settlement is not a Memorandum but creates the rights of the parties in the immoveable properties for the first time, as it stated that "now all the anomalies, differences, ambiguities or possibility if any apprehension of dispute stand resolved and settled finally and forever and now from today and onwards the Executants can sell, transfer, alienate, relinquish, donate, lease, mortgage or to deal with the aforesaid as their respective portions/properties as owner as they like...". "It is further made clear that the present indenture has been executed in five sets in Original and all the Executants have signed all the said five sets the indenture and the Original one prepared in five sets shall be deemed to be the personal/individual title deed of an individual Executant..."

123. Having concluded that the Will Ex DW4/1 is invalid and fabricated, it is evinced from the language of the Family Settlement that the parties are creating rights in the properties in their respective possession, for the first time. As per the legal principles expounded above, a Family Settlement which itself creates or extinguishes any rights in immovable properties and therefore falls within the mischief of Section 17(2)of the Registration Act and is, therefore, compulsorily registrable. Therefore, the Family Settlement which is creating rights of the parties in the properties, cannot be held to be valid as the same is not registered.

124. It is, further, held that though the parties had entered into a Family Settlement/Arrangement dated 23.01.2006, but it was not in the knowledge of plaintiff and the Family Settlement does not have the signatures of Smt. Santosh Yadav. On the demise of her father, She also became a co-sharer in the suit properties along with the defendants. This is a document of partition excluding the plaintiff from getting the share in the estate of Late Shri Raj Singh Yadav, her father which cannot be held binding on her.

125. The defendants have asserted that Smt. Santosh Yadav, the plaintiff was aware of the Settlement executed between the brothers and had executed a "No-Objection"

Certificate to the Settlement dated 23.01.2006 Mark „DA‟ which has her signatures. The No-Objection Certificate Mark „DA‟ had been produced in original during the cross-

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examination of PW1A Smt. Santosh Yadav, but she had denied the execution and her signatures of the No-Objection Certificate.

126. In the case of Chamkaur Singh v. Mithu Singh 2013 SCC OnLine P&H 22840, the High Court of Punjab & Haryana Court discussed how a handwriting of a person can be proved. It observed that ordinarily, signature and handwriting of a person can be proved

i) by calling a witness who wrote the document, ii) by an admission of a person against whom a document is tendered and iii) by calling a person as a witness who saw the document being written/signed.

127. The onus was therefore, on the defendants to have proved it to be a genuine document, but no cogent evidence has been led to establish its authenticity. Under the Indian Evidence Act, a handwriting of a person can also be proved by the evidence of some witness who saw it being written by the signee, but no defendant in his evidence has exhibited this document. In the case of N. Chinnasamy vs. P.S. Swaminathan AIR 2007 (NOC) 333 (MAD), the Court observed that the opinion of the handwriting expert is not the only deciding factor in finding out the genuineness of the document, and the same could be tested by examining the witness.

128. The defendants have claimed that this document was signed by the plaintiff at the time of executing the Family Settlement. However, it is pertinent to observe that if the plaintiff had infact, been a privy to the Family Settlement at the time of its execution, then there is no cogent explanation as to why her signatures were not taken on the Family Settlement itself but a separate "No Objection" Certificate had been taken. Significantly, it also does not bear any date. The defendants in their testimony, have not been able to establish the authenticity of the document itself.

129. The No-Objection certificate allegedly executed by the plaintiff, had been claimed to be witnessed by one Jagdish, Vijay Singh and Brahmjeet Yadav (name of Brahmjeet is not clear) whose signatures appear on this document. They would have been the best witnesses to prove the execution of the No-objection Certificate, they have not been produced as witnesses by the defendants.

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130. Thus, it is held that the defendants have miserably failed to prove the signatures of the plaintiff on the No-Objection certificate Mark „DA‟and have also not been able to establish its genuineness.

131. In light of the denial of signatures by the plaintiff, an Application bearing No. 3077/2021 under Section 45 of Indian Evidence Act had been filed on behalf of the defendant Nos. 1,2,4 and 5 seeking expert opinion on the signatures of Smt. Santosh Yadav on the No-Objection Certificate Mark „DA‟.

132. The evidence of the Handwriting Expert is only the corroborative mode to prove the report of Handwriting Expert. However, when the defendants have not been able to establish the authenticity of this document itself, sending the document to seek the expert opinion would not further the case of the defendants and no fruitful purpose would be served in seeking the expert opinion. Therefore, the Application seeking referral of "No Objection" Certificate to a handwriting Expert, is dismissed.

133. It is, therefore, held that though the defendants had entered into a Family Settlement/Arrangement dated 23.01.2006, but it cannot be held binding on the plaintiff. Moreover, the Family Settlement is in fact, a partition deed which is of no legal consequence as it is not registered. Moreover, even if the defendants had arrived at a Family Settlement, the plaintiff cannot be excluded from her share except by her express consent and on execution of a registered document relinquishing her share, which admittedly was never executed. The plaintiff is held entitled to get the share in the estate of Late Shri Raj Singh Yadav, her father as his legal heir.

134. Accordingly, the Issue No. 2 is answered in favour of the plaintiff. Issue No. 3: -

"If the above issues are decided against the defendants, to what share if any, and in which of the properties, is the plaintiff entitled to? OPP"

135. In the light of the aforesaid Issue Nos. 1 and 2, it is held that Late Shri Raj Singh Yadav died intestate and no partition/Family Settlement/Arrangement dividing the properties inter se the plaintiff and the defendants was ever effected. Therefore, the plaintiff is entitled to her share as a legal heir of her deceased father, Shri Raj Singh as Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 37 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 per Section 8 and 10 of the Hindu Succession Act, 1956 which provides for distribution of property upon the death of a Hindu Male.

136. The only aspect which needs consideration is whether the mother willed her share to the five sons.

137. The Will dated13.07.20015 Ex. Ex. DW1/1 of Smt Shanti Devi Wil reads as under:

"And WHEREAS. I, the Testatrix was the owner of movable and immovable properties and assets situated in the area of Village Naharpur, Delhi and also have Cash, Bank balance, Jewellary and other valuable items which have been equally distributed among all my above mentioned five sons and now all of the are happily residing with their families and there is no dispute regrading settlement of ancestral properties among all my legal heirs."

138. The Will also refers to the settlement interse the defendants of coming in possession of their respective shares but nowhere states that her share in the properties would devolve on the five sons. It was only an acknowledgement of past acts and not of devolution of her properties, which came to her share after the demise of her husband Late Sh. Raj Singh on 23.02.2003, upon her legal heirs in the future.

139. Accordingly, it is held that the plaintiff and the five defendants/ brothers are entitled to 1/6th share each, in the suit properties.

140. The Issue No. 3 is decided in aforesaid terms.

Issue No. 4: -

"Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP"

141. In the present case, the plaintiff has sought a relief of partition, Rendition of Accounts, Permanent Injunction and Declaration and Cancellation of Sale Deed. She has claimed her 1/6th share in the Suit property and valued the suit for purpose of jurisdiction at Rs. 10,66,40,000/- for the relief of Partition and paid a Court fee of Rs. 1,76,000 thereon.

142. For partition the plaintiff has valued the suit at Rs. 10,66,40,000/- for the purpose of jurisdiction and Court Fees and paid Rs.1,76,000/- thereon. Being one of the Co-

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owners she has asserted that she has 1/6th share in the Suit Property. It is pertinent to determine whether the plaintiff had to pay Fixed Court Fee or Ad Volerum Court Fee.

143. It was held by this court in Prakash Wati vs Dayawanti, (1990) 42 DLT 421, that it is a settled principle of law that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. It was stated that when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870.

144. Thus, ad volarem court fee under Section 7(iv) (b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563.

145. To appreciate implication of denial of title in a suit property and the necessary ingredients of ouster, a reference may be made to the judgement of the Apex court in Nagabhushanammal (Dead) vs C.Chandikeswaralingam, (2016) SCC 434, which placed reliance on judgement in Vidya Devi vs Prem Prakash, (1995) 4 SCC 496 wherein the meaning and connotation of the term "ouster‟ was expounded as follows:

"28. "Ouster‟ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co- owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co- owner. Thus, a co-owner, can under law, claim title by adverse possession against another co- owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."

146. In the case of Nisheet Bhalla Vs. Malind Raj Bhalla, AIR 1997 Delhi 60, as well Coordinate Bench of this Court had held that in order to decide the question of court fee, averments made in the plaint are to be seen and the decision cannot be influenced by the pleas taken in the written statement or by the final decision of suit on merits. It is only Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 39 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 when the ouster or the exclusion from the property is proved that the question of ad valorem Court Fee may arise. So long as there is joint possession in law, it is not necessary that the plaintiff should be in actual possession in whole or part of the property.

147. This court in Krishna Gupta And Anr. vs M/S Rajinder Nath & Co Huf And Ors, 2013 SCC OnLine Del 547 held that while ascertaining if the plaintiff had been ousted from the suit property, the same must be indisputably admitted by the plaintiff in their plaint. Specific sentences and paragraphs in the plaint cannot be read in abstract while determining an ouster especially when the plaintiff has categorically stated that they are in joint and constructive possession of the suit property. Thus, once an express plea of constructive possession has been made, the onus to prove ouster for the payment of ad volarem court fee shifts on to the defendants.

148. From the aforesaid judgements, it is clear that a party claiming partition of the property is liable to pay ad volarem court fee only in those circumstances where the plaintiff has been ousted from its enjoyment of the suit property. To constitute ouster, there must be evidence an open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.

149. In the facts of the present case, there is no plea of ouster being made by either the defendants or the plaintiff and it is observed that the plaintiff was in constructive possession of the Suit properties as a co-owner. Thus, a fixed Court Fee was payable. Furthermore, perusal of the plaint shows that the plaintiff has valued the suit at Rs. 10,66,40,000/- for the purpose of jurisdiction and Court Fees and paid Court Fee amounting to Rs.1,76,000/- thereon. She has paid more than the amount required and there is no deficiency in the Court Fee.

150. The issue No.4 is answered accordingly.

Issue No. (ii): - (as framed on 26.07.2017) "Whether the plaintiff is entitled to a decree for declaration and cancellation of Sale Deeds dated 22.03.2006, 01.12.2008, 19.03.2010 and the Sale Deed executed by defendant No. 5 in favour of Smt. Sudha Yadav of a portion of property bearing No.200? OPP."

151. Having concluded that each of the defendants have 1/6th share in the scheduled properties, the Sale Deed 22.03.2006 executed by defendant No. 2/Sutej Singh in favour Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 40 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06 of Shri Gajender Yadav and Shri Satender Yadav both sons of defendant No.2/Sutej Singh for Plot bearing No. 200 for a sum of Rs. 1,00,000/- is valid only to the extent of his 1/6th share.

152. Likewise, the Sale Deed dated 01.12.2008 executed by defendant No. 4/Vijender Singh in favour of his wife, Smt. Santosh Devi for Property bearing No. 200/3 for a sum of Rs. 2,00,000/- is valid only to the extent of his 1/6th share.

153. The Sale Deed dated 19.03.2010 executed by defendant No. 4/Vijender Singh in favour of his wife, Smt. Santosh Devi for a portion of Property bearing Khasra No. 16/1 measuring 84 sq. meters for a sum of Rs. 9,80,000/- is valid to the extent of his 1/6th share.

154. The Sale Deed dated executed by defendant No. 5/Durgesh Singh @ Durgesh Yadav in favour his wife, Smt. Sudha Yadav for a portion of Property bearing No. 200 is valid to the extent of his 1/6th share.

155. The Issue No. (ii) as framed on 26.07.2017 is decided, accordingly. Issue No. (i): - (as framed on 26.07.2017) "Whether the plaintiff is entitled to a decree for rendition of accounts qua the suit properties after the death of Late Shri Raj Singh till the disposal of the suit? OPP."

156. In view of the findings given on the aforesaid issues, the plaintiff is entitled to rendition of account of the joint family properties owned by Late Shri Raj Singh which are in possession of the defendant Nos. 1 to 5, from the date of death of Late Shri Raj Singh.

Relief: -

157. In view of the findings on the aforesaid issues, it is hereby held that Late Shri Raj Singh Yadav had died intestate and as discussed above, the property devolved upon all the legal heirs equally and they are entitled to equal shares in the scheduled properties.

158. Accordingly, the share of the parties are divided in the manner below:

                                   S. No     Name                                                     Share
                                      1.     The plaintiff/ Smt. Santosh Yadav                        1/6th
                                      2.     The defendant No.1 Sh. Jaswant Singh (deceased)          1/6th
                                                    (i)    Smt. Sona Devi



Signature Not Verified
Digitally Signed          CS(OS) 1264/2011                                                                    Page 41 of 42
By:VIKAS ARORA
Signing Date:25.04.2024
18:26:06
                                                              W/o Late Sh. Jaswant Singh
                                              (ii)    Ms. Poonam
                                                             D/o Late Sh. Jaswant Singh
                                              (iii)   Sh. Praveen Kumar
                                                             S/o Late Sh. Jaswant Singh
                                              (iv)    Sh. Naveen Yadav
                                                             S/o Late Sh. Jaswant Singh

                                   3.   Defendant No.2 Sutej Singh (Deceased)              1/6th
                                              2A Sh. Gajender Yadav (Son)
                                              2B Sh. Satender Yadav (Son)
                                   4.   Defendant No. 3 Nahar Singh (Deceased)             1/6th
                                              (a)     Smt. Sushila Devi (wife)
                                              (b)     Sh. Nishant Yadav (son)
                                   5.   Defendant No. 4 Vijender Singh                     1/6th
                                   6.   Defendant No. 5 Durgesh Yadav                      1/6th

159. Preliminary Decree of partition is passed, accordingly.

CS(OS) 1264/2011

160. List for consideration of final Decree and for Rendition of Accounts on 31.07.2024.

(NEENA BANSAL KRISHNA) JUDGE APRIL 22, 2024 Nk/va/S.Sharma Signature Not Verified Digitally Signed CS(OS) 1264/2011 Page 42 of 42 By:VIKAS ARORA Signing Date:25.04.2024 18:26:06

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