Delhi District Court
Smt. Narvada Agarwal vs Sh. Brij Mohan Agarwal on 3 February, 2020
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 515344/2016
CNR No. DLSW010001802014
IN THE MATTER OF:
1. Smt. Narvada Agarwal
W/o Sh Rajpal
R/o C-4/146, Sector 5
Rohini, Delhi ... Plaintiff
v.
1. Sh. Brij Mohan Agarwal
S/o Sh Bankey Lal
2. Sh. Yatinder Mohan Agarwal
S/o Sh Brij Mohan Agarwal
3. Smt. Usha Agarwal
D/o Sh Brij Mohan Agarwal
R/o D-582, Ashok Nagar
Gali No.2, New Delhi ... Defendants
Date of institution of suit: 06.06.2014
Date of judgment reserved: 07.01.2020
Date of pronouncement of judgment: 03.02.2020
CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal
Page No. 1/36
JUDGMENT
1. The plaintiff, namely, Narvada Aggarwal (hereinafter "plaintiff") has preferred a suit for partition against possession against the defendants, namely, Brij Mohan Aggarwal (hereinafter "defendant No. 1"), Yatinder Mohan Aggarwal (hereinafter "defendant No. 2), Usha Aggarwal (hereinafter "defendant No. 3") and Savitri Jain (hereinafter "defendant No. 4") with regard to an immovable property ad-measuring 80 sq.yds., bearing No. RZ-210, Raj Nagar, Part - I, Gully No. 9, Palam Colony, New Delhi (hereinafter "suit property"). Facts
2. The plaintiff is the daughter of Brij Mohan Aggarwal and Seela Devi.1 Seela Devi during her lifetime had acquired the suit property. Seela Devi died intestate and left behind a widower (defendant No. 1) and four children - plaintiff and the defendant Nos. 2, 3 and 4. The plaintiff post the demise of her mother, requested her father (defendant No. 1 herein) to partition the suit property but refused to do as the defendant No. 1 along with the defendant No. 2 are in occupation of the suit property. The plaintiff's request for the partition of the suit property were ignored by the defendants, hence the present suit. Pleadings
3. The factual matrix, deciphered from the plaint is that the defendant No. 1 was married to one Sheela Aggarwal, who bore four children from their marriage. The plaintiff and defendant Nos. 3 and 4 1 The name of Seela Devi is also referred in the plaint, written statement and other documents as Sheela Aggarwal and Sheela Devi CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 2/36 are the daughters and the defendant No. 2 is the son of Sheela Agarwal and defendant No. 1. The plaintiff has averred that her grandfather namely, Banke Lal died intestate and after his demise, all his immovable and movable properties were retained by defendant No.1. The defendant No.1 had been doing the business of properties with the assets of Banke Lal. Sheela Agarwal during her lifetime purchased the suit property out of her own funds and also raised construction of three storied building comprising of ground floor, first floor, second floor and third floor.
4. Sheela Aggarwal died intestate. The plaintiff has urged that on account of the demise of her mother, Sheela Aggarwal the suit property has devolved upon the plaintiff to the extent of 1/5 th share. The plaintiff has also averred that even otherwise she being the granddaughter of Banke Lal is entitled to one fifth share in the suit property, as the suit property was purchased with the funds and properties of Banke Lal.
5. Post the demise of plaintiff's mother, the plaintiff made repeated requests to the defendants to partition the suit property and other movable and immovable properties, however, the defendants with mala fide intention threatened the plaintiff of dire consequences if she did not refrain from demanding any share in the property, be it the suit property or any other movable and immovable properties. The plaintiff has averred in the plaint that all the original document with regard to the suit property are in the custody and possession of the defendant Nos. 1 and 2, as they are in occupation of the suit property CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 3/36 and have the mala fide intention to usurp the share of the plaintiff by selling the suit property to a third party.
6. The plaintiff has averred in the plaint that the plaintiff herein had filed a suit for injunction against the defendant No. 1 before the Ld. Senior Civil Judge, Delhi, wherein the defendant No.1 appeared and gave a statement that he has no concern with the suit property. It is also averred by the plaintiff that the said suit was decreed by the concerned Court and the plaintiff was advised to file a suit for partition of the suit property by metes and bounds in the appropriate forum.
7. The plaintiff has averred that thereafter she visited the suit property on a number of occasions and requested the defendant Nos. 1 and 2 to partition the suit property, however, the defendant Nos. 1 and 2 evaded the requests of the plaintiff on one pretext or the other. The plaintiff has averred that she last visited the suit property on 25.05.2014 and found some property dealers visiting the suit property with the intention to purchase the same. The plaintiff lodged her objections to the same but the defendant Nos. 1 and 2 paid no heed. Hence, the present suit for partition and possession.
8. As per the averments in the plaint, the plaintiff has averred that the cause of action to prefer the present suit arose at the time of the demise of the mother. The plaintiff has also averred that the cause of action arose on the date when she requested the defendants to partition the suit property but the defendants did not pay heed to the request of the plaintiff. The plaintiff has averred that the cause of action arose on CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 4/36 25.05.2014 when she last visited the suit property and found some property dealers sitting and bargaining with the defendant Nos. 1 and 2 with regard to the sale proceeds of the suit property. The plaintiff has valued the suit property at ₹12,69,600/- (Rupees Twelve lakhs sixty nine thousand and six hundred only).
9. Before, I proceed further noting the defence urged by the defendants in their written statement, I deem it appropriate to observed the status and position of the defendants before this Court during the pendency of the legal proceedings.
10. Pursuant to the service of summons for settlement of issues, the defendant Nos. 1 and 2 filed their appearance before Court on 04.08.2014. The defendant No. 4 was permitted to be served through substituted mode vide order dated 10.09.2014. The defendant No. 4 was proceeded ex parte vide order dated 13.11.2014. The defendant No. 3 appeared in person on 01.12.2014 and adopted the written statement already filed by the defendant Nos. 1 & 2.
11. On 15.10.2015, the learned counsel for the defendant Nos. 1 and 2 apprised the Court that the defendant No. 4 died sometime after the last date of hearing i.e. 13.08.2015. The plaintiff appeared at a later stage on 15.10.2015 itself and confirmed that the defendant No. 4 has died and sought time to take necessary steps. Thereafter, the plaintiff moved an application under Order XXII, Rule 4, CPC, to bring the legal representatives of the defendant No. 4 on record.
12. At the behest of the plaintiff, the legal representatives of the defendant No. 4 were dropped and the name of the defendant No. 4 CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 5/36 was deleted from the array of the parties. The amended parties to the said effect was filed by the plaintiff and the same is on record.
13. Now coming to the written statement of the defendant No. 1, the preliminary objections to the plaintiff' suit are that the plaintiff has no locus standi to file the present suit, as she has already been married and is residing along with her husband and children at her matrimonial home. The defendant No. 1 has urged that the plaintiff has wrongly demarcated the suit property as 80sq.yds., whereas, factually the property bearing No. RZ-210 is on the land ad-measuring 72 sq.yds. (out of total area ad-measuring 130 sq.yds.) out of Khasra No. 63/6/1 comprising of two rooms, latrine-bathroom situated in village Palam, a body known as Gully No. 9, Raj Nagar, DADA Chatri Wala Marg, New Delhi, which was jointly purchased by Sheela Devi W/o Brij Mohan Gupta and Jubin S/o Yatinder Mohan by general power of attorney, agreement to sell, affidavit, receipt and will, all documents dated 09.10.1997. It is averred by the defendant No. 1 that out of the aforesaid documents, the general power of attorney and the will were registered documents. The general power of attorney was registered bearing Regn. No. 50152, Book No. IV, Vol. No. 4735 at page Nos. 54-56 dated 09.10.1997 and the will was registered bearing Regn. No. 64635, Addl. Book No. III, Vol. No. 4021 at page Nos. 65 dated 09.10.1997. It is averred by the defendant No. 1 that the suit property was purchased from the previous owner, namely, Rohtash. The defendant No. 1 has averred in the written statement that Sheela Devi during her lifetime bequeathed the half portion in the suit property in CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 6/36 favour of her husband (defendant No. 1 herein) by a registered will dated 06.10.2008 bearing registration No. 1199, Addl. Book No. III, Vol. No. 445 at page Nos. 186 - 187 dated 06.10.2008.
14. The defendant No. 1 has urged that by virtue of a registered will in his favour by his wife he is the sole and absolute owner of the one half portion of the suit property. The defendant No. 1 has also urged that he is not aware about the property, which has been mentioned by the plaintiff in her plaint, which being 80sq.yds. in the name of Seela(sic) Devi, thus, the plaintiff has no right, title or interest in the said property and the suit preferred by the plaintiff is liable to be dismissed with costs.
15. The defendant No. 1 has also urged that the plaintiff has filed the present suit without any cause of action in her favour against the defendants and the plaint is liable to be rejected for want of cause of action under Order VII, Rule 11, CPC. The defendant No. 1 has urged that the plaintiff has not approach the court with clean hands and has intentionally suppressed material facts from the Court and thus the plaintiff is not entitled for any relief, as sought in the plaint. However, the defendants did not dispute their relationship with the plaintiff.
16. The defendant No.1, under the heading reply on merits in the written statement has urged the defence that he has been doing the work of sale and purchase of properties. The defendant No.1 denied having inherited and retained the properties of his father, namely, Banke Lal. The defendants No.1 denied that he had been doing the business of properties with the assets of his father. CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 7/36
17. The defendant No.1 has denied that his wife purchased one property ad-measuring 80 sq.yds., bearing No. RZ-210, Raj Nagar Part
- I, Gully No. 9, Palam Colony, New Delhi. The defendant No.1 has averred that his wife purchased the property ad-measuring 72sq.yds. jointly with Jubin, son of the defendant No. 2. It is averred by the defendant No.1 that his wife bequeathed her undivided share in the aforesaid property to the defendant No. 1 by virtue of a registered will dated 06.10.2008. The defendant denied that his wife was the owner of an immovable property ad-measuring 80 sq.yds.
18. The defendant No.1 has denied that his wife, namely, Seela Aggarwal died intestate and on account of her demise the plaintiff and the defendants have become co-owners in the suit property to an extent of 1/5th share each.
19. The defendant No.1 has also denied that on account of the plaintiff being his daughter and the suit property purchased out of the funds and properties of Banke Lal (grandfather of the plaintiff and defendant No. 2). It is also urged by the defendant No.1 in his written statement that the plaintiff has taken two different stances with regard to her claim. The first stance of the plaintiff is that the suit property was purchased by her mother and on account of her mother dying intestate, the suit property has devolved upon the plaintiff and other legal heirs of Seela Devi. On the other hand, the plaintiff has averred that the suit property was purchased out of the funds and properties of Banke Lal.
20. The defendant No. 1 has denied that the plaintiff made requests CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 8/36 with regard to not only partition the suit property but also other properties. The defendant No.1 has also denied advancing any threats to the plaintiff. The defendant No.1 has urged that the plaintiff has no right, title, interest and share in the suit property, as the defendant No. 1 is the absolute owner of half portion of the property ad-measuring 72sq.yds. by virtue of registered will dated 06.10.2008. The defendant No.1 has denied of having any intention to sell the suit property and/or usurp the share of the plaintiff. The defendant No.1 has denied of being in possession of original documents of the suit property.
21. The defendant No.1 has urged in the written statement that the proceedings of earlier civil suit are matter of record. The defendant No.1 has denied that the plaintiff was advised by the learned Civil Judge to file a suit for partition in the appropriate forum. The defendant No. 1 has denied that the plaintiff visited the suit property on number of occasions and requested the defendants to partition the suit property by metes and bounds. The defendant No.1 has urged that no cause of action has arisen in favour of the plaintiff to prefer the present suit for partition and the plaint is liable to be rejected under Order VII, Rule 11, CPC.
22. The written statement filed by the defendant No. 2 is verbatim same, as that of the defendant No. 1. Whereas, the defendant No. 3 appeared before the Court on 01.12.2014 and recorded her statement that she is adopting the written statement filed by the defendant No. 3. Questions
23. On completion of pleadings, admission-denial of documents CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 9/36 and framing of issues vide order dated 13.08.2015, the following issues were framed:
(a) Whether the plaintiff is entitled to a decree of partition, as prayed for, in respect of the property bearing No. RZ-
210, Raj Nagar, Part-I, Gali No.9, Palam Colony, New Delhi? ...OPP
(b) Whether the plaintiff is entitled to a decree of possession, as prayed for, in the aforesaid property? ...OPP
(c) Relief
24. To prove her case, the plaintiff stepped into the witness box. The plaintiff tendered the following documents in evidence:
S.No. Exhibit Mark Description and Date, if any of the put on the document Document
1. Ex.PW1/1 Site plan of the suit property
2. Ex.PW1/2 Certified copy of order dated 10.04.2013 of Civil Suit No.78/08
3. Ex.PW1/3 Certified copy of decree sheet of civil suit No.78/08
25. In his defence, the defendant No. 1 stepped into the witness box on 05.09.2019, as a solitary witness and tendered evidence. The defendant relied upon the following documents:
S.No. Exhibit Mark put Description and Date, if any of the on the Document document
1. Ex.DW1/1(OS&R) Copy of agreement for sale dated CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 10/36 09.10.1997 (Objection to the mode of proof, as there is a whitener fluid on the document)
2. Ex.DW1/2(OS&R) Copy of general power of attorney dated 09.10.1997
3. Ex.DW1/3(OS&R) Copy of affidavit dated 09.10.1997
4. Ex.DW1/4(OS&R) Copy of will dated 09.10.1997 signed by Rohtash in favour of Seela and Jubin
5. Ex.DW1/5(OS&R) Copy of will dated 06.10.2008 signed by Seela Devi in favour of Brij Mohan Gupta
26. The defendant Nos. 2 and 3 did not lead any evidence. Submissions by the learned Counsels for the parties
27. Mr. Narender Sharma, learned counsel for the plaintiff and Mr. D.D. Sharma, learned counsel for the defendant Nos. 1 and 2 advanced their arguments.
28. Mr Sharma, learned counsel for the plaintiff submitted that the suit property was purchased by the mother of the plaintiff out of her own funds. The learned counsel further submitted that the mother of the plaintiff, defendant Nos. 2 and 3 and the wife of the defendant No. 1 died intestate. The learned counsel further submitted that the parties to the suit are the legal heirs under Section 15(1)(a) of the Hindu Succession Act, 1956. The learned counsel further submitted that the defendant No.1 recorded his statement before the Ld. Civil Judge in the year 2013 that he has no concern with the suit property, however, in the present case the defendant No.1 has somersaulted and taken a stance that there is no property by the dimensions ad-measuring CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 11/36 80sq.yds. The learned counsel further submitted that the defence urged by the defendants that the property was ad-measuring 72sq.yds. and of which the mother of the plaintiff was a joint owner with Jubin, who is the son of the defendant No. 2 is hollow and has been urged with the sole intention to deprive the plaintiff of lawful right to an extent of 1/5th share in the suit property.
29. Mr Sharma, learned counsel for the plaintiff further submitted that the defence urged by the defendants that Sheela Aggarwal during her lifetime made a will in favour of the defendant No.1 is nothing but a sham. The learned counsel further submitted that the defendants have failed to prove the will in accordance with law and the same cannot be relied upon. The learned counsel further submitted that none of the attesting witnesses to the purported will have appeared before the Court and deposed in favour of the defendants.
30. The learned counsel for the plaintiff further submitted that the defence urged by the defendants in their written statement that the property was purchased on 09.10.1997 jointly by the mother and one Jubin, who is the son of the defendant No. 2 is a ruse. The learned counsel further submitted that the defendants have also urged in their defence that Sheela Agarwal during her lifetime bequeathed the property in favour of the defendant No.1 by virtue of a registered will dated 06.10.2008. The learned counsel further submitted that the defendants have urged that the defendant No.1 has become owner of the suit property to an extent of the share of his wife i.e. one half share by virtue of the will of Sheela Aggarwal.
CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 12/36
31. The learned counsel for the plaintiff further submitted that the suit property was purchased by Seela Devi from one Rohtash by virtue of an agreement for sale dated 07.10.1997. The learned counsel denied that the suit property was ever sold to Jubin. The learned counsel submitted that the registered general power of attorney (Ex.DW1/2) is in the favour of Seela Devi and Jubin, who was a minor at that point in time.
32. The learned counsel for the plaintiff submitted that the name of Jubin, who is the son of the defendant No. 2 and grandson of the mother and father (defendant No. 1 herein) of the plaintiff & defendant Nos. 2 and 3. The learned counsel for the plaintiff further submitted that the name of the son of defendant No. 2 was added only in one document out of love and affection and the same has no relevance in the eyes of law. The learned counsel submitted that the attesting witness to the will was one Nizamuddin, who did not appear before this Court. The learned counsel further submitted that the defendant No.1 during his cross-examination voluntarily stated that the suit property was purchased out of the income of the mother of the plaintiff. The learned counsel further submitted that the suit property was the self-acquired property of the mother of the plaintiff and the defendant No.1 has no exclusive right in the suit property.
33. Per contra, Mr. D.D. Sharma, learned counsel for the defendants contended the arguments advanced by the learned counsel for the plaintiff. The learned counsel submitted that with regard to the averments made by the defendant No.1 that he has nothing to do with CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 13/36 the property was in reference of a property stated to be 80 sq.yds., whereas the suit property is 65sq.yds.
34. The learned counsel for defendants further submitted that as per the defendants the suit property ad-measure 72 sq.yds. and it is for that reason the defendant No.1 on 10.04.2013 stated that he has nothing to do with the suit property.
35. Mr. Sharma, learned counsel for the defendants submitted that Seela Devi did not die intestate but she died testamentary. The learned counsel further submitted that the admitted position is that the suit property was the self-acquired property, however, Seela Devi was never the exclusive owner of the suit property. The learned counsel further submitted that Seela Devi during her lifetime signed and registered a will in favour of the defendant No.1 and thus on the demise of Seela Devi, the property has devolved upon him solely by virtue of the last will of his wife. The learned counsel for the defendant submitted that the will is a registered will and the same has been duly proven by the defendants.
36. The learned counsel for the defendants summed up his arguments as under:
(a) the property was purchased by the wife of defendant No.1 along with Jubin from Rohtash;
(b) the statement of defendant No.1 before the Ld. Civil Judge is immaterial on the ground that the description of property, particularly, with regard to the area is not correct and it is not the same property, and CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 14/36
(c) the defendant No.1 got his ownership right from Sheela Devi by virtue of a registered will dated 06.10.2008 (Ex.DW1/5).
37. Mr. Narender Sharma, learned counsel for the plaintiff rejoined his arguments and submitted that the property number and its description is clearly mentioned in order dated 10.04.2013. The learned counsel further submitted that the mentioning of the total area of the property as 72 sq.yds. and not 80 sq.yds. is an afterthought and only done with the mala fide intention to create confusion about the suit property. The learned counsel for the plaintiff once again urged that the defendants have failed to prove the will dated 06.10.2008 in accordance with law and with the mother of the plaintiff having died intestate, the legal heirs are the rightful claimants and owners of the suit property.
Reasoning & Findings
38. I, have perused the complete case record and considered and deliberated over the submissions advanced by the learned counsels for the parties. My issue-wise findings ensue in the following paragraphs of this judgment.
Issue No. 1Whether the plaintiff is entitled to a decree of partition, as prayed for, in respect of the property bearing No. RZ-210, Raj Nagar, Part-I, Gali No.9, Palam Colony, New Delhi?
39. The onus to prove issue No. 1 was saddled upon the plaintiff. The plaintiff has urged in her plaint that her mother was the absolute owner of the suit property and on account of the demise of her mother, who died intestate, the suit property has rightfully devolved upon the CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 15/36 legal heirs of her mother. The plaintiff has also staked claim upon the suit property in the capacity of being a legal heir of Banke Lal. The plaintiff has also urged that the defendants have repeatedly declined to partition the suit property.
40. On the other hand, the defendants have urged that the suit property was purchased by Sheela Devi, the mother of plaintiff, defendant Nos. 2 and 3. However, the defendants have averred in their written statement that Sheela Devi was a joint owner of the suit property along with Jubin, who is the son of defendant No. 2. It is also urged by the defendants that Sheela Devi during her lifetime wrote a will in favour of her husband (defendant No.1 herein). It is the case of the defendants that Sheela Devi bequeathed her share in the suit property to the defendant No. 1 and thus post the demise of Sheela Devi it is the defendant No. 1 solely, who is the owner and rightful claimant of the share of Sheela Devi in the suit property.
41. The plaintiff (PW1) stepped in the witness box on 13.11.2017, 25.01.2018 and 07.03.2019 to record her testimony. PW1 during her cross-examination stated that she visited the suit property when she was called by her father and brother. PW1 further stated that during such visit there was a quarrel amongst them, as her father and brother demanded ₹5,00,000/- (Rupees Five lakhs only) with regard to which PW1 made a written complaint to the concerned SHO and DCP. PW1 also stated that she cannot tell whether a site plan of the suit property was filed along with the plaint. PW1 stated that she has not seen the property documents. PW1 further stated that she cannot tell the exact CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 16/36 measurement of the suit property but it may be 72-80sq.yds.. PW1 expressed her inability to tell how many properties existed in the name of her grandfather, namely, Banke Lal. PW1 voluntarily stated that the said fact about the properties in the name of Banke Lal would be known to her father.
42. PW1 admitted that she has not filed any document with regard to the ownership of properties of Banke Lal along with her plaint. PW1 answered that she does not visit the house of defendant No.1 and she does not have cordial relation with her father (defendant No. 1 herein). She did answer that no such document in support of her deposition made in paragraph No.34 of the evidence by way of affidavit has been filed in the present suit.
43. PW1 also admitted that she has not filed any document with regard to the purchase of property ad-measuring 80 sq.yds., RZ - 210, Raj Nagar, Part - I, Gully No. 9, Palam Colony, New Delhi, which was purchased by her mother out of her own funds.
44. On a question put by the Court to PW1 with regard to the state of the property, as building and floor-wise, PW1 answered that the property RZ - 210, Raj Nagar, Part - I, Gully No. 9, Palam Colony, New Delhi consisted of four floors. PW1 further stated that her father resides on the ground floor, her brother resides on the first floor, the second and third floors are under the occupation of tenants. PW1 voluntarily stated that her father has let out two rooms to a tenant on the ground floor.
45. PW1 further stated that she used to visit the house during the CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 17/36 lifetime of her mother. Her mother died 7 to 8 years ago. PW1 was unable to tell the date of demise of her mother. PW1 further stated that her father often calls her to his house to take care of him, when he is ill. She further stated that her father was seriously ill and had acute chest pain, involuntary discharge of stool and was unable to walk without assistance. PW1 along with her younger son, namely, Vishal used to remove the stool of her father from the bed.
46. PW1 admitted that she has not seen any title documents with regard to the property i.e. RZ - 210, Raj Nagar, Part - I, Gully No. 9, Palam Colony, New Delhi. PW1 further admitted that she has not seen any document which states that the property ad-measures 80 sq.yds. PW1 admitted that she has not seen any document with regard to the dimensions and area of the property. PW1 further stated that the suit was filed by her at the behest of her sister Usha Agarwal. PW1 stated that her father and brother paid an amount of ₹27,00,000/- (Rupees Twenty seven lakhs only) to her sister, Usha Agarwal (defendant No.3 herein).
47. PW1 stated that her mother was a housewife and she has not filed any document with regard to source of funds along with her plaint. PW1 denied the suggestion that the suit property was purchased jointly by her mother Sheela Devi and Jubin through a registered document i.e. a general power of attorney dated 09.10.1997. PW1 also denied that her mother during her lifetime made a will dated 06.10.2008 and bequeathed her half share in the suit property to defendant No.1. PW1 stated that her mother prior to her death told her CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 18/36 that she has made no will. PW1 denied the suggestion that her father and Jubin are the owners of the suit property. PW1 did answer the question with regard to her last visit to the suit property that she visited the suit property a year ago, as she had received a call from father, when he requested her to visit him, as he was seriously ill. PW1 stated that she called the counsel for the defendant and sought his permission whether she should visit her father at the suit property. PW1 denied that she has filed the suit for possession and partition against her father, brother and sister without any basis and lawful right.
48. The defendant (DW1) testified before the Court on 05.09.2019. DW1 admitted that Jubin is his grandson, who must be 32 years old. DW1 stated that on 09.10.1997, Jubin was 2½ years old and he was not earning any income. DW1 voluntarily stated that Jubin's grandmother purchased the property and added his name. DW1 admitted that his wife got the name of Jubin added.
49. DW1 stated that he is an illiterate person and can read Hindi but cannot read English. He further stated that his evidence by way of affidavit - Ex.DW1/A was drafted by his lawyer as per his instructions and the same was read over to him and explained in vernacular.
50. DW1 denied that his wife was seriously ill in September 2008. DW1 voluntarily stated hum Ganga ke kinare rehte the Rishikesh mein, Ekadashi ke din who nahane gai thi aur unke sir mein dard hua aur who wahi pe mar gayi. DW1 also stated that his daughter was also present for his wife's last rites. He stated that he does not remember CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 19/36 the exact date of the demise of his wife. DW1 admitted that plaintiff is his daughter and eldest child.
51. DW1 stated that in the year 1997 he used to work as a property dealer and voluntarily stated that his wife used to clean utensils in other' houses. He further stated that he used to work as a property dealer/broker, an agent who worked for commission.
52. DW1 denied that when his health deteriorated in the last three years, the plaintiff has been taking him to her house. DW1 stated that he goes to the plaintiff's house on his own when he is not feeling well. DW1 admitted that his daughter along with her son and daughter-in- law used to take care of him whenever his health was not good at their house. He further admitted that his daughter takes care of him at the hospital also. DW1 voluntarily stated his daughter would serve and provide care to him even today, if he falls ill and he would go to her house. He further stated that it is the plaintiff's duty to look after her father. DW1 stated clearly that legal proceedings are on one side, and even today we sit outside Court room and eat a meal together. DW1 voluntarily stated that today his daughter has brought paranthas and they would sit together and eat later on.
53. DW1 stated that his wife signed and registered a will in his favour with regard to the suit property. He did voluntarily state that the will was made much prior to her death. DW1 expressed his inability to tell the date of signing and restriction of the will. He further stated that he cannot tell whether the will was made 5 years ago or 10 years ago or even prior to that. DW1 further stated that he CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 20/36 does not remember the date when he gained knowledge about the will of his wife in his favour.
54. During the cross-examination, the will dated 06.10.2008 - Ex.DW1/5 was shown to the witness (DW1) to refresh his memory. DW1 admitted that Nizamuddin is one of the attesting witnesses to the said will. DW1 stated that not only Nizamuddin and his wife but also he was present at the time of registration of the will. DW1 stated that he does not remember the place, office where the will was registered. DW1 voluntarily stated to the learned counsel for the plaintiff that he may see the papers to determine the place and office of the registration of the will. DW1 denied that his wife did not sign and register any will.
55. DW1 denied that his wife was a housewife and not working. He stated that she used to earn around ₹500/- (Rupees Five hundred only) to ₹700/-(Rupees Seven hundred only) per month around 40 years ago. He further stated that his wife used to work as domestic help and was utensils for 13 years. DW1 stated that the house expenses were born by the income of his wife and he also used to contribute whatever he could from his dalali income. DW1 stated that he used to earn around ₹400/-(Rupees Four hundred only) to ₹500/-(Rupees Five hundred only) per month.
56. DW1 denied the suggestion that his daughter has 1/5th share in the suit property. DW1 further denied that he is the sole legal heir of Banke Lal. He stated that his father had five children.
57. DW1 admitted that he is in possession of all the documents in CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 21/36 relation of the suit property. DW1 further admitted that a civil suit was filed with regard to the suit property in Tis Hazari Court, Delhi by his daughter. He admitted that he was a defendant in the said suit. DW1 denied having made any statement in the said suit that he has nothing to do with the suit property.
58. During the cross-examination, DW1 was shown Ex.PW1/2 to refresh his memory. DW1 again answered that he has no concern with the suit property. He denied that the suit preferred by the plaintiff in Tis Hazari Court, Delhi was decided in favour of the plaintiff. DW1 further denied that the suit preferred by the plaintiff at Tis Hazari Court, Delhi was in regard of the suit property, which is the subject matter of the present suit.
59. DW1 admitted that the name of Jubin is not mentioned in agreement for sale dated 09.10.1997. DW1 denied that the entire sale consideration was paid by his wife. He voluntarily stated that it was done by the help and assistance of everyone. DW1 further stated voluntarily that not only his wife, himself but also one of his Chacha Ji, namely, Kanhaiya Lal contributed towards the sale consideration.
60. DW1 denied that the will dated 06.10.2008 is a false and fabricated will. DW1 also denied that his wife was unfit and not in a good physical state of health at the time of signing of the will. DW1 denied that his wife was not in a good mental state of mind and was unable to understand and comprehend.
61. The factum of death of Sheela Devi is not disputed by the parties. It is admitted by defendant No. 1 during his cross-examination CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 22/36 that the suit property was purchased in the name of his wife. However, at times the defendant No. 1 did testify that the suit property was purchased jointly by his wife and grandson, namely, Jubin. The documents relied upon by the defendant to prove his averment made in the written statement that the suit property was purchased jointly are agreement for sale dated 09.10.19972, registered general power of attorney dated 09.10.19973, affidavit dated 09.10.19974, registered will of Rohtash dated 09.10.1997.5
62. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding upon the grantor, as if done by him - See Section 1A and 2 of the Powers of Attorney Act, 1882. It is revocable and terminable at any time unless it is made irrevocable in a manner known to law.
63. This Court observes that out of the four above mentioned documents, the name of Jubin is only mentioned in the registered general power of attorney dated 09.10.1997 signed and executed by Rohtash. It is further observed that though the said power of attorney is a registered general power of attorney without consideration and with the name of Jubin, who at the time of the signing, execution and 2 Ex.DW1/1(OS&R) 3 Ex.DW1/2(OS&R) 4 Ex.DW1/3(OS&R) 5 Ex.DW1/4(OS&R) CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 23/36 registration of the said general power of attorney was a minor not mentioned in any other collateral set of documents - agreement for sale, affidavit and registered will of Rohtash, Jubin cannot be held to be a joint owner of the suit property - See Ramesh Chand v. Suresh Chand & Anr.6
64. The only conclusion which can be arrived at is that Seela Devi had purchased the suit property from Rohtash by virtue of an unregistered agreement to sale dated 09.10.1997 and the same can also be concluded to be part-performance of contract and not hit by the mischief of Section 53-A of the Transfer of Property Act, 1882, as the document was admittedly signed by Seela Devi prior to 24.09.2001 i.e. amendment of Section 53-A of the Transfer of Property Act, 1882, wherein the requirement of registration of such agreement of sale and purchase was made mandatory.
65. Now marching ahead, to the contention of the defendants that Seela Devi during her lifetime signed and made a registered will dated 06.10.2008 in favour of the defendant No. 1, and thus the defendant No. 1 is the owner of the one-half share in the suit property. In short, the defendants are the propounder of the will dated 06.10.2008.7
66. Section 63 of the Indian Succession Act, 1925 provides that a will has to 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 6 RFA No. 358/2000 date of decision 09.04.2012 - Hon'ble High Court of Delhi 7 Ex.DW1/5(OS&R) CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 24/36 testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator. If the execution of a will is surrounded by the suspicious circumstances, such as doubt on the mental capacity of the testator; the propounder taking prominent part in the execution of the will which confers substantial benefit on the propounder; or unnatural, improbable or unfair dispossessions, the onus is on the propounder of the will to remove the suspicions. The probate can be granted only after the judicial conscience of the Court is satisfied that the will was executed by the testator and the propounder has removed all legitimate suspicions.
67. In H. Venkatachala Iyangar v. B.N. Thimmajamma,8 the Hon'ble Supreme Court laid down the principles which govern the proving of a will. The Supreme Court held that the Court has to consider whether the testator signed the will; did he understand the nature and effect of the dispositions in the will; did he put his signature to the will knowing what it contained. The onus of proving the will is on the propounder. If there are any suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. Apart from suspicious circumstances, the will may suffer from infirmity where the propounder takes prominent part in the execution of the will which confers on him substantial benefits. Such 8 AIR 1959 SC 443 CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 25/36 infirmities are also treated as suspicious circumstances. Even where there were no such pleas but the circumstances gave rise to doubts, the propounder has to satisfy the conscience of the Court.
68. The Constitution Bench of the Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee,9 ruled on the principles governing mode of proof of a will. Referring to H. Venkatachala Iyangar v. B.N. Thimmajamma,10 the Court held:
"4... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the 9 AIR 1964 SC 529 10 AIR 1959 SC 443 CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 26/36 propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
69. In Jaswant Kaur v. Amrit Kaur,11 the Hon'ble Supreme Court followed H. Venkatachala Iyangar v. B.N. Thimmajamma,12 and crystallized the law into the following propositions:
"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which rises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma.13 The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions:
"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 11 (1977) 1 SCC 369 12 AIR 1959 SC 443 13 ibid.
CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 27/36 proof of wills, one cannot insist on proof with mathematical certainty.
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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to 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. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 28/36 time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
[Emphasis added by underlining and highlighting of text] CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 29/36
70. The Hon'ble High Court of Delhi in Vidya Sagar Soni v. State14 further elucidated the principles relating to the mode of proving the will. The relevant extract of the judgment is reproduced as under:
"5. Section 2(h) of the Indian Succession Act, 1925 defines a Will to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
6. The legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the Court that the instrument so propounded is the last will of a free and capable testator.
7. A Will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the Will. It is the living who have to establish the Will. It naturally throws a heavy burden on the Court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.
8. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the Will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence. Normally, a Will is executed by a person where he desirous, to either alter the normal rule of succession, or where he desirous to settle his estate in a particular manner amongst the legal heirs. Therefore, though to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a bequest. However, as observed in (1995) 4 SCC 459 : AIR 1995 SC 1684, Rabindra Nath 14 2006 SCC OnLine Del 965 CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 30/36 Mukherjee v. Panchanan Banerjee (dead) by LRs, disproportionate nature of a bequest is no doubt a suspicious circumstance to be kept in mind, but, being a mere suspicion, it is capable of being dispelled by other evidence to show voluntary character of the document.
9. Therefore, the first rule to appreciate evidence is to peruse the Will. Normally, if there is rationality in a Will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.
10. As observed in AIR 1962 Punjab 196, Smt. Kamla Devi v. Kishori Lal Labhu Rant, the omission of a close relation from the bounty of a testator raises a presumption in favour of some undue influence. The probative force of such a testament rises and falls in inverse ratio to its unreasonableness.
11. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a Will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused and before pronouncing in favour of the Will, the Court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the Will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by Courts, and presumptions to be raised, in the decision (1864) 3 Sw and Tr. 431 in The Goods of Geale, it was opined that where a person is illiterate or semi-literate or the Will is in a language not spoken or understood by the executor, the Court would require evidence to affirmatively establish that the testator understood and approved all the contents of the Will.
13. This affirmative proof of the testator's knowledge and approval must be strong enough to satisfy the Court, in the particular circumstances, that the Will was duly executed.
CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 31/36
14. One form of affirmative proof is to establish that the Will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the Will, this may not be sufficient [see 1971 P.62 Re Moris). In the report published as (1867) 1 P.D. 359, Goodacr v. Smith, it was held that another form of affirmative proof is to establish that the testator gave instructions for his Will and that the Will was drafted in accordance with those instructions.
15. Courts have to evaluate evidence pertaining to the circumstances under which the Will was prepared. If a Will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the Will, probate would not be granted unless that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C. 480, Barry v. Butlin, a classic instance of suspicious circumstances is where the Will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465, Brown v. Fisher where a person taking benefit under the Will has an active role to play in the execution of the Will.
17. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending, or at least relevant to the preparation and execution of the Will itself.
18. How the legal heirs acted and how and when a Will was propounded after the death of the executor are also relevant to decide upon, where the Will is genuine or a created or a procured document.
19. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as AIR 1959 SC 443, H. Venkatachala Iyengar v. B.N. Thimmajamma, instance of suspicious circumstances would be alleged CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 32/36 signatures of the testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable or unfair. Apart from these infirmities, propounder taking a prominent part in the execution of the Will, more so when substantial benefits flow to them are all presumptive of the Will not being duly executed and or of suspicious circumstances.
20. Suspicious circumstances are a presumption to hold against the Will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the Will.
21. Reference to satisfaction of judicial conscience is a heritage inherited by Court's since time immemorial for the reason, as noted above, a Will is a solemn declaration as per which the living have to carry out the wishes of a dead person."
71. Keeping the above dictums of the Superior Courts foisted, this Court observes and holds that the defendants have failed to prove the will dated 06.10.2008, as per the mandate of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Thus, the defence urged by the defendants that Seela Devi bequeathed her share i.e. one-half share in the suit property to defendant No. 1 is implausible and disproved.
72. Lastly, about the conundrum created by the defendants pertaining to the total area of the suit property being 72 sq.yds. and not 80 sq.yds. and the defendant No. 1 having nothing to do with the suit property, this Court observes that the same is a ruse and a frivolous plea. It is observed that not only the plaintiff during her cross- examination had unequivocally stated that the documents pertaining to CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 33/36 the suit property are in possession of the defendant No. 1 but also the defendant No. 1 admitted being in possession of the said documents. It is not out of place to observe that the statement of the defendant No. 1 herein before the Ld. Civil Judge, Tis Hazari Courts that he has nothing to do with the suit property is a court room machination. It is observed that the order dated 10.04.2013 clearly mentions the address of the property, as that of the suit property herein. This Court finds that no benefit of the argument with regard to the description of area of the suit property can be availed by the defendants, merely for the reason that the defendant No.1 during his cross-examination admitted that he is in the possession of all the documents of the suit property. The issue of the area of the suit property would be settled, in case a preliminary decree of partition would be passed in favour of the plaintiff.15
73. That said, I am of the considered view that the plaintiff successfully shifted the onus upon the defendants that the suit property left behind by Seela Devi is to be partitioned amongst her heirs, as per Section 15(1)(a) read with Section 16 of the Hindu Succession Act, 1956, and the defendants failed to shift the onus that Seela Devi bequeathed the suit property in favour of the defendant No. 1 by will dated 06.10.2008. This Court further observes and finds that the defendants have failed to lead any cogent evidence to dispel the claim of the plaintiff in the suit property. It is observed that the defendants failed to prove the will dated 06.10.2008 being the last and final will 15 See Order XX, Rule 9 and 20 of the Code of Civil Procedure, 1908 CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 34/36 of Seela Devi in accordance with law. In short, the defence of the defendants fall short to deprive the plaintiff from the relief of partition.
74. This Court holds that the suit property was the property of Seela Devi, who died intestate and subsequent to her death, all her legal heirs, as per Section 15(1)(a) of the Hindu Succession Act, 1956, are entitled to claim their right, interest, share, etc., in the suit property. This Court finds and rules that the plaintiff is entitled for a decree of partition of the property bearing No. RZ - 210, Raj Nagar, Part-I, Gali (sic) No. 9, Palam Colony, New Delhi. Accordingly, the issue No. 1 is answered in favour of the plaintiff and against the defendants.
Issue No. 2Whether the plaintiff is entitled to a decree of possession, as prayed for, in the aforesaid property?
75. The onus to prove issue No. 2 was also casted upon the plaintiff. With the issue No. 1 being ruled in favour of the plaintiff, the plaintiff is held entitled for a decree of partition of the suit property. As this is a partition suit and before a decree of separate possession of the share in property is passed, this Court deems appropriate to pass a preliminary decree declaring the rights of the several parties interested in the property. Accordingly, the issue No. 2 is decided in favour of the plaintiff and against the defendants.
Relief
76. In light of the above findings and discussions, I pass the following order:
(a) A preliminary decree is passed and it is declared that the suit property i.e. an immovable property ad-measuring 80sq.yds., CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 35/36 bearing No. RZ-210, Raj Nagar, Part - I, Gully No. 9, Palam Colony, New Delhi, belongs to the following persons:
S.No. Name Status & Rank in Shareholding
the present suit
(i) Narvada Aggarwal Plaintiff 1/5th share
(ii) Brij Mohan Aggarwal Defendant No. 1 1/5th share
(iii) Yatinder Mohan Defendant No. 2 1/5th share
Aggarwal
(iv) Usha Aggarwal Defendant No. 3 1/5th share
(v) Savitri Jain (Dead) Defendant No. 4* 1/5th share
Note:
*The defendant No. 4 died during the pendency of the legal proceedings. The plaintiff recorded her statement that she wants to drop the LRs of the defendant No. 4 vide order dated 19.09.2016.
(b) This Court also deems appropriate to restrain the defendants from parting with the possession of the suit property and/or creating any third party interest in the suit property, except, as directed by this Court, from the date of passing of this judgment.
77. Costs of the suit are awarded to the plaintiff. Let preliminary decree sheet be prepared accordingly. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.02.03 16:09:42 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on February 03, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 515344/2016 Narvada Aggarwal v. Brij Mohan Aggarwal Page No. 36/36