Delhi District Court
Sh. Dharambir Singh vs Sh. Bijender Singh on 24 August, 2022
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS DJ No. 18322/16
CNR No. DLCT-01-000714-2008
Sh. Dharambir Singh
S/o Late Ram Rick
R/o V & P.O. Matiala
New Delhi .........Plaintiff
Versus
1. Sh. Bijender Singh
Late Ram Rick
2. Sh. Ram Phal
Late Ram Rick
Both R/o V & P.O. Matiala, New Delhi
3. Smt. Sumitra
W/o Sh. Umed Singh
D/o Late Ram Rikh
R/o H.No. 610, Village Kaloi Dopana,
District Rohtak, Haryana
4. Smt. Kamlesh W/o Sh. Manphool
D/o. Late Satyawati@Satto
R/o. V&PO Chhichhrana
Distt. Rohtak, Haryana .........Defendants
Date of Institution of Suit : 20.05.2008
Date of Judgment : 24.08.2022
SUIT FOR PARTITION
CS DJ No. 18322/16
Dharambir Singh Vs. M/s Bijender Singh
Judgment dated 24.08.2022 Page 1 of 17
JUDGMENT
1. The present suit for partition of four properties, total measuring 768 sq. yards (hereinafter referred to as the suit properties) i.e. first being unnumbered plot measuring 50 sq. yards, second being house no. 248 measuring 167.5 sq. yards, third being part of house no. 63 measuring 235 sq yards being in possession of defendant no. 1 and fourth being part of house no. 63 measuring 315 sq. yards being in possession of defendant no. 2, all situated in Lal Dora/Abadi Deh of the revenue estate of village Matiala, Delhi, has been filed by the plaintiff on 19.05.2008.
2. As per averments made in the original plaint, the entire suit property was initially owned by Sh. Siri Ram, grandfather of the plaintiff and defendant nos. 1 to 3, and after his demise, the same had devolved upon his two sons namely Sh. Ram Rikh (who was the father of plaintiff and defendant nos. 1 to 3) and Sh. Dilawar to the extent of 384 sq. yards each. Late Sh. Ram Rikh i.e. the father of plaintiff and defendant no. 1 to 3 died on 18.03.1985, leaving behind the plaintiff, defendants No. 1 to 3 and another son namely Sh. Rambir. On the other hand, Sh. Dilawar has died on 07.08.1997, bequeathing his share in the aforesaid suit properties to the plaintiff and defendants no. 1 and 2 in equal proportion. Subsequently, Sh. Rambir, who was the brother of of plaintiff and defendant no. 1 to 3, also died intestate on 04.02.2004 leaving behind parties to the present suit as his only legal heirs.
3. Thus, according to plaintiff, the portion of the suit property measuring 384 sq. yards belonging to late Sh. Ram Rikh, upon his death, devolved upon all the parties to the present suit in equal shares, whereas, CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 2 of 17 the part of the suit property measuring 384 sq. yards belonging to late Sh. Dilawar has devolved upon the plaintiff and defendants no. 1 and 2 to the extent of one-third share each. It has further been alleged in the plaint that the suit property had not been partitioned by any means, though plaintiff and defendants no. 1 and 2 respectively had been in possession of different portions thereof. On 11.05.2008, according to the plaintiff, when the plaintiff was raising construction of temporary cattle shed in the plot measuring 50 sq. yards which was in his possession, he was stopped by the defendants no. 2 and 3, since the property had never been partitioned. The plaintiff was thus constrained to file the present suit seeking a decree of partition qua the aforesaid suit properties.
4. Defendants no. 1 and 2 appeared in response to the summons of the suit and defendant nos. 1 and 2 filed their joint written statement on 05.08.2008, wherein, they took a plea that the suit property had already been partitioned between the plaintiff, defendants no. 1 and 2 and their brother Sh. Rambir vide memorandum of partition dated 08.03.1996. They have also taken a plea that the suit properties were actually measuring 720 sq. yards and not 768 sq. yards, as alleged in the plaint. It has further been disclosed by them in their written statement that late Sh. Ram Rikh was also survived by another daughter namely Smt. Satto, whose name has not been disclosed by the plaintiff in his plaint. They have thus prayed for dismissal of the present suit of the plaintiff.
5. Subsequently, defendant no. 3 was also served and she had entered appearance through her counsel on 16.04.2009. However, before she could file any written statement to the suit of plaintiff, the plaintiff moved an application under Order 1 Rule 10 r/w Order 6 Rule 17 and Section 151 CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 3 of 17 CPC seeking permission to implead Smt. Kamlesh, L.R/daughter of Smt. Satto, another daughter of Sh. Ram Rikh as defendant no. 4 in the present suit and to make consequential amendments in the plaint. The aforesaid application was allowed by Ld. Predecessor of this Court vide order dated 03.11.2009. A joint written statement was thereafter filed on behalf of defendants no. 3 and 4 on 04.01.2010. They have admitted the entire case of the plaintiff except execution of any Will by late Sh. Dilawar qua his share of the suit properties in favour of the plaintiff and defendants no. 1 and 2. Execution of the aforesaid Will by late Sh. Dilawar had been denied by defendants no. 3 and 4 for want of knowledge.
6. Replication to the written statement of defendants no. 1 and 2 was thereafter filed on behalf of the plaintiff once again reiterating the stand taken by him in his plaint and denying the contrary stand taken by defendants no. 1 and 2 in their written statement.
7. After completion of pleadings, when the matter was listed for admission/denial of documents and settlement of issues, a preliminary decree of the partition was passed by Ld. ADJ-14 (Central) on the basis of admission of the parties thereby declaring the share of all the parties to the suit in all the suit properties measuring 768 sq. yards to the extent of one-fifth share each. The matter was thereafter adjourned for further inquiry towards passing of final decree and since no settlement could be arrived at between the parties for partition of the suit property by metes and bounds despite repeated opportunities, a final decree dated 13.09.2011 was passed in the matter directing the sale of the entire suit properties in public auction and distribution of sale proceeds to the extent of one-fifth share each amongst all the parties to the suit after deduction CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 4 of 17 of auction charges.
8. Subsequently, an execution petition bearing no. 37/13 came to be filed by the plaintiff and defendants no. 3 and 4 in respect of the aforesaid decree dated 13.09.2011. Vide order dated 09.07.2014, passed on the objections of judgment debtor no. 2 in the aforesaid execution petition, the preliminary decree dated 02.08.2010 and final decree dated 13.09.2011 were set aside and the suit was restored.
9. Later on, after hearing all the parties, Ld. ADJ-09 (Central), vide order dated 14.07.2014 has passed a preliminary decree for partition of part of the suit properties measuring 384 Sq. yds. Left behind by Sh. Ram Rikh, in exercise of powers under Order 12 Rule 6CPC thereby directing division of the same amongst the plaintiff and defendants no. 1 to 4 in equal proportion i.e. to the extent of one-fifth share each. The suit was kept pending for trial qua the remaining part of the suit properties, measuring 348 sq. yards, left behind by late Sh. Dilawar, since the plaintiff and defendants no. 1 and 2 had been claiming their exclusive right upon the same to the exclusion of defendant nos. 3 and 4, by virtue of Will purportedly executed by late Sh. Dilawar Singh in their favour. The following issues were thus settled by Ld. ADJ-09 (Central), Tis Hazari Courts vide orders dated 14.07.2014 and 31.07.2014 in respect of part of the suit properties, measuring 348 Sq. yards, falling to the share of late Sh. Dilawar Singh consequent upon death of Late Sh. Siri Ram:
1. Whether late Sh. Dilawar Singh executed a Will in favour of the plaintiff and defendants no. 1 and 2 ? (OPD1, D2 & P)?
2. Whether Will left by Late Sh. Dilawar Singh bequeathed any right in favour of the plaintiff and defendants no. 1 and CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 5 of 17 2 ? (OPD1, D2 & D3)
3. Whether the parties to the suit are entitled for preliminary decree for partition in respect of 384 sq. yards of the property situated in Lal Dora/Deh Abadi in revenue estate of village Matiala, Delhi, left by Sh. Dilawar Singh ? (OP on parties)
4. Whether suit is not properly valued for the purpose of Court fees and jurisdiction? OPD
5. Relief.
Matter was thereafter adjourned for defendants' evidence.
10. Defendant no. 1 has examined himself as DW-1 and tendered his evidence by way of affidavit Ex.DW1/A, while relying upon the purported Will of late Sh. Dilawar Singh Ex.DW1/1.
11. Defendant no. 2 has examined himself as DW-2 and tendered his evidence by way of affidavit Ex.DW2/A, while relying upon the same Will Ex.DW1/1.
12. Sh. Rai Singh son of late Sh. Chet Ram, who had allegedly accompanied late Sh. Dilawar Singh to the office of Sub-Registrar-I, Kashmere Gate as an attesting witness at the time of execution of the Will Ex.DW1/1 on 20.10.1986, has been examined by defendants no. 1 and 2 as DW-3.
13. Sh. Praveen Kumar Rana, UDC from the office of Sub-Registrar-I, Kashmere Gate has been examined as DW-4. However, he has not produced the record in respect of the registered Will Ex.DW1/1 and has deposed that the relevant record can be produced by some personnel from Delhi Archives. He has also produced a letter Ex. DW4/1 from Sub-
CS DJ No. 18322/16Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 6 of 17 Registrar-I, Kashmere Gate to the effect that the record for the period prior to the year 1990 had already been transferred to the Department of Delhi Archives, Govt. of NCT of Delhi.
14. Sh. Naveen, Record Keeper from Delhi Archives was thereafter examined as D1W5 and even he could not produce the record in respect of the Will Ex. DW-1/1 on the ground that the particulars provided in the summons did not match with the records maintained at Department of Delhi Archives.
15. Although all the aforesaid witnesses, except D1W5, were duly cross- examined by Ld. Counsel for the plaintiff, however, Ld. Counsel for defendants no. 3 and 4 has merely cross-examined DW-3, whereas, he adopted cross-examination conducted by Ld. Counsel for plaintiff qua DW-2.
16. Defendants no. 3 and 4 have neither examined themselves nor any other witness in support of their case.
17. On the other hand, the plaintiff has examined himself as PW-1 i.e. as the sole witness in support of his case and tendered his evidence by way of affidavit Ex.PW1/A alongwith four site plans in respect of different parts of the suit property as Ex.PW1/1 to Ex.PW1/4. Since he has deposed during his evidence by way of affidavit that the alleged memorandum of partition dated 08.03.1996 was never signed by his late brother Rambir, the said memorandum of partition has also been tentatively endorsed as Mark PW1/5 during his evidence. The plaintiff was duly cross-examined only by Ld. Counsel for defendants no. 1 and 2. Subsequently, on the statement of the plaintiff, PE was closed vide order dated 16.11.2018 and the matter was adjourned for final arguments.
CS DJ No. 18322/16Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 7 of 17
18. Final arguments on behalf of the plaintiff and defendants no. 1 and 2 were thereafter heard on 27.07.2022, whereas, none has come forward on behalf of the defendants no. 3 and 4 for oral arguments despite opportunity. Besides, written arguments on behalf of the plaintiff and defendants no. 1 and 2 were filed on 02.12.2019, whereas, written arguments on behalf of defendants no. 3 and 4 were filed on 01.02.2019.
19. I have heard the submissions made on behalf of the parties and have carefully gone through the material available on record including the written arguments filed on behalf of the defendants no. 3 and 4, who have not appeared in the Court to advance oral arguments despite opportunities.
20. At the outset, I would like to note that as per record, the preliminary decree dated 14.07.2014, passed by Ld. Predecessor of this Court qua part of the suit property falling to the share of late Sh. Ram Rikh (father of the plaintiff and defendants no. 1 to 3) was challenged by defendants no. 1 and 2 before Hon'ble Delhi High Court in RFA no. 579/14 and though, initially vide order dated 17.11.2014, operation of the impugned order dated 14.07.2014 of this Court was stayed, however, vide order dated 01.03.2016, the aforesaid stay against impugned order dated 14.07.2014 has already been vacated by Hon'ble Delhi High Court. As per para 5 of the order dated 01.03.2016 of Hon'ble Delhi High Court, TCR was directed to be sent back to this Court so as to enable the Court to proceed with the further proceedings in the present suit qua remaining property falling to the share of Sh. Dilawar and for final decree proceedings qua property/portion in respect of which the preliminary decree dated 14.07.2014 had been passed by Ld. Predecessor of this CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 8 of 17 Court. Thus, as on date, there is no stay on pronouncement of judgment by this Court in the present suit.
21. Before proceeding further on merits, I would like to reproduce, a pedigree table of parties to the present suit starting from their grandfather Sh. Siri Ram which is as below:
SIRI RAM | _______________________________________________________________________ | | RAM RIKH DILAWAR (SON) ( SON) (Died on 18.03.1985) Died issueless on 07.08.1997 | | __________________________________________________________________________________ | | | | | | RAMBIR DHARAMBIR BIJENDER RAMPHAL SMT. SUMITRA SMT. SATYAWATI (son) ( Son) ( Son) ( Son) (daughter) @ SATTO(died in 1995) (plaintiff) (D-1) (D-2) (D-3) (daughter) (died on | 04.02.2004) Smt. Kamlesh ( Def. No. 4)
22. I would also like to note the facts admitted by the parties as per their pleadings as well as the evidence. Admittedly, the entire suit properties were initially owned by Late Sh. Siri Ram, who was the grandfather of plaintiff and defendants no. 1 to 3 and maternal great- grandfather of defendant no. 4. Although, the date of death of Sh. Siri Ram has neither been disclosed in the pleadings nor in evidence of the parties, however, admittedly he was survived by two sons namely Sh. Ram CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 9 of 17 Rikh and Sh. Dilawar and hence, after his demise, the suit properties devolved upon his two sons namely death the same had devolved upon his aforesaid two sons to the extent of ½ share each.
23. Admittedly, Sh. Ram Rikh has expired on 18.03.1985, leaving behind four sons viz. Sh. Rambir (died issueless on 04.02.2004), Dharmabir(plaintiff herein), Bijender (defendant no. 1), Ramphal (defendant no. 2) and two daughters viz. Smt. Sumitra (defendant no.3) and Smt. Satto (died in 1995 as per written submissions filed by her counsel). A preliminary decree dated 14.07.2014 qua ½ share of Sh. Ram Rikh in the suit properties has already been passed, which is presently subject matter of First Appeal bearing no. RFA 579/2014 before Hon'ble Delhi High Court.
24. Admittedly, Sh. Dilawar has expired on 07.08.1997 and although, date of death of Smt. Satto, daughter of Late Sh. Ram Rikh and mother of defendant no. 4, has neither been disclosed in the pleadings nor in the evidence of parties, but as per written submissions filed on behalf of defendants no. 3 and 4, she had expired in the year 1995 and the said submission of Ld. Counsel for defendant no. 3 and 4 has not been controverted by any of the parties either in their written submissions or during their oral arguments. Sh. Rambir S/o Sh. Ram Rikh has also admittedly expired on 04.02.2004.
25. The only dispute with which the Court is concerned in the present suit at this stage i.e. after passing of the preliminary decree qua ½ share of Late Sh. Ram Rikh, is regarding the manner in which ½ share of Late Sh. Dilawar shall devolve upon the parties to the present suit after his demise, in as much as, plaintiff and defendant nos. 1 and 2 have sought to CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 10 of 17 propound a Registered Will dated 20.10.1986 (Ex. DW-1/1) purportedly executed by Late Sh. Dilawar bequeathing his share of the suit properties in favour of plaintiff and defendants no. 1 and 2 to the exclusion of all other legal heirs including defendants no. 3 and 4.
26. Although, in their joint written statement, defendants no. 1 and 2 have sought to take a plea that the total area of the suit properties was 720 sq. yds. As against the area measuring 768 sq. yds as alleged by the plaintiff, however, defendants no. 1 and 2 have not filed any site plans in respect of the suit properties in support of their pleadings. On the other hand, plaint of the plaintiff is accompanied by site plans Ex. PW-1/1 and Ex. PW-1/4, correctness of which has not been disputed by the defendants, either in their pleadings or in their evidence. In fact, during cross-examination of plaintiff dated 16.11.2018, they themselves have given a suggestion to the plaintiff that the site plans Ex. PW-1/1 to Ex. PW-1/4 were correct. Under the aforesaid circumstances, even the total area of the suit properties is admitted to be 768 Sq. yds.
27. Moreover, although in their written statement, defendants no. 1 and 2 had tried to take a plea that the suit properties had already been partitioned vide memorandum of partition dated 08.03.1996 and hence, the suit for partition does not lie, however, the defendants have not only failed to prove the alleged memorandum of Partition Mark PW-1/5, nor have they proved that the suit properties had ever been partitioned between the parties. In fact, during their cross-examination, both DW-1 and DW-2 have admitted that the suit properties had never been partitioned by metes and bounds and according to them the suit properties had been partitioned by Late Sh. Dilawar during his lifetime by CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 11 of 17 virtue of document Ex. DW-1/1 only, which is the Will of Late Sh. Dilawar Singh dated 20.10.1986 sought to be propounded by the plaintiff and defendants no. 1 and 2. the aforesaid plea of defendants no. 1 and 2 is unacceptable as the same is not only contrary to their pleadings but because as shall be discussed hereinbelow, even the said document Ex. DW-1/1 has not been duly proved by the defendants no. 1 and 2.
28. In view of the aforesaid background and facts admitted/proved, I shall proceed to deal with the issues settled by this Court vide orders dated 14.07.2014 and 31.07.2014 in seriatum.
Issue no. 1: Whether late Sh. Dilawar Singh executed a Will in favour of the plaintiff and defendants no. 1 and 2 ?
(OPD1, D2 & P)? and
Issue no. 2: Whether Will left by Late Sh. Dilawar
Singh bequeathed any right in favour of the plaintiff and defendants no. 1 and 2 ? (OPD1, D2 & D3)
29. Onus to prove the aforesaid issue was placed upon plaintiff as well as defendant no. 1 and 2, they being the propounders of the Will. Although, the said Will has been tendered by DW-1 and DW-2 in their evidence by way of affidavit as Ex. DW-1/1, however, it is settled legal position that mere exhibition of a document shall not amount to proof thereof. The Will Ex. DW-1/1 was thus required to be proved by the plaintiff or for that matter by defendants no. 1 and 2 as per the provisions of Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian succession Act, 1925.
30. Section 63 of the Indian Succession Act, 1925 deals with rules governing execution of an unprivileged Will. The Will Ex. DW-1/1 CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 12 of 17 propounded by the plaintiff and defendant nos. 1 and 2 in the present case, without any manner of doubt, falls within the category of "unprivileged Will" within the meaning of the aforesaid Section and hence, was required to be attested by at least two witnesses, each of whom had seen the testator signing the Will or had obtained an acknowledgment of the testator on the Will from the testator himself and each of the witnesses was also required to sign the Will in the presence of the testator.
31. Section 68 of the Indian Evidence Act, 1872, deals with proof of documents required by law to be attested. Since, an unprivileged Will is required by Section 63 of the Indian Succession Act, 1925 to be attested by at least two or more witnesses, the Will Ex. DW-1/1 in the present case was required to be proved in the manner provided under Section 68 of the Indian Evidence Act, 1872. Section 68 of Indian Evidence Act, 1872 requires that to prove the Will Ex. DW-1/1, at least one attesting witness was required to be called by the propounders of the Will to prove the execution thereof, if there be an attesting witness alive and capable of giving the evidence. Although, the proviso to aforesaid Section provides for dispensing with the requirement of examination of attesting witness to a registered document, however, an exception has been carved out even in the said proviso in respect of a Will.
32. Thus, in view of proviso to Section 68 of Indian Evidence Act, 1872, even if, the Will is registered under the provisions of Indian Registration Act, 1908, however, the same can only be proved through examination of at least one attesting witness to the same. In the case in hand, no attesting witness to the Will Ex. DW1/1 has been examined either by the plaintiff or CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 13 of 17 by the defendants no. 1 and 2. Although, in their evidence by way of affidavits, DW-1 and DW-2 have deposed that both the attesting witnesses to the Will Ex.DW1/1 had died many years back, however, they have failed to disclose any date, month or year of death of both the aforesaid witnesses nor have they produced any document to prove the aforesaid fact. On the other hand, testimony of DW-3 is conspicuously silent about the death of the alleged attesting witness namely Sh. M.N. Sharma, Advocate, in as much as, in para no. 5 of the affidavit he has merely deposed that Sh. Maha Singh had died many years ago. Thus, in the absence of any proof of death of both the attesting witnesses to the Will Ex.DW1/1, execution of the Will has not been proved as per law.
33. Even if, it is assumed for the sake of arguments that both the attesting witnesses to the Will Ex.DW1/1 had already expired before the matter was first listed for evidence in the present case, as per provisions of Section 69 of Indian Evidence Act, propounders of the Will Ex.DW1/1 were required to prove that the attestation of at least one attesting witness was in his handwriting, besides proving that the signature of the testator on the Will Ex.DW1/1 were in his handwriting. However, a bare perusal of the cross-examination of DW-3 shows that DW-3 has failed to identify the signature of late Sh. Dilawar on the Will Ex.DW1/1 nor has he proved attestation of the Will by at least one attesting witness to be in his handwriting.
34. In view of the aforesaid discussion, in my considered opinion, execution of the Will Ex.DW1/1 could not be proved either by the plaintiff or by the defendants no. 1 and 2. Accordingly, issues no. I and II are decided against the plaintiff and defendants no. 1 and 2.
CS DJ No. 18322/16Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 14 of 17 Issue No. 3: Whether the parties to the suit are entitled for preliminary decree for partition in respect of 384 sq. yards of the property situated in Lal Dora/Deh Abadi in revenue estate of village Matiala, Delhi, left by Sh. Dilawar Singh ? (OP on parties)
35. Onus to prove the aforesaid issue was upon all the parties. In view of the forgoing discussions, in my considered opinion, it has been proved on record that Late Sh. Dilawar had died intestate on 07.08.1997 without leaving any Class-I legal heirs as per Schedule appended to the Hindu Succession Act, 1956. As per Section 8(b) of the Hindu Succession Act, 1956, in the absence of class-I legal heirs, the half share of Late Sh. Dilawar in the suit properties shall devolve upon the heirs specified in class-II of the Schedule appended to the aforesaid Act. In terms of Section 9 of the Hindu succession Act, 1956, the heirs specified in first entry in class-II shall be preferred to those specified in second entry, those in second entry shall be preferred to those in third entry; so on and so forth.
36. It is further well settled legal position that the succession opens on the death of a person and since, Late Sh. Dilawar had died on 07.08.1997, the heirs surviving on the aforesaid date shall be considered for devolution of his share in the suit properties. Admittedly, as on the date of death of Late Sh. Dilawar, he was survived by Sh. Rambir, Sh. Dharmabir(plaintiff), Sh. Bijender (defendant no. 1), Sh. Ramphal (defendant no. 2) all sons of his brother Ram Rikh and Smt. Sumitra (defendant no. 3) being the daughter of his brother Ram Rikh. Admittedly, another daughter of his brother Sh. Ram Rikh namely Mrs. CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 15 of 17 Satto had already pre-deceased him in the year 1995. Thus, he was not survived by any legal heir mentioned in first three entries of class-II relatives as per Schedule appended to the Hindu Succession Act, 1956 and plaintiff alongwith defendants no. 1 to 3 and his another brother Rambir, being the children of his brother Late Sh. Ram Rikh would have received the half share of Late Sh. Dilawar in equal shares i.e. to the extent of 1/5th share each and defendant no. 4 stands excluded. After the demise of Late Sh. Rambir on 04.02.2004, his 1/5th share would also have devolved upon plaintiff and defendant nos. 1 to 3, they being his brothers and sister falling under second entry of class-II legal heirs as per Schedule appended to the Act.
37. Thus, in view of the aforesaid discussion, ½ share of the suit properties belonging to Late Sh. Dilawar shall devolve equally upon plaintiff and defendant no. 1 to 3 in equal proportion i.e. to the extent of 1/4th share each to the exclusion of defendant no. 4.
38. Since, there is no evidence of any previous partition of the suit properties between the parties at any point of time, in my considered opinion, the plaintiff and defendants no. 1 to 3 are entitled to a preliminary decree of partition of part of the suit properties measuring 384 sq. yds. as per site plans Ex. PW-1/1 to Ex. PW-1/4, belonging to Late Sh. Dilawar, in their favour to the extent of 1/4th share each to the exclusion of defendant no. 4.
Issue no. 4: Whether suit is not properly valued for the purpose of Court fees and jurisdiction? OPD
39. Onus to prove of the aforesaid issue was on the defendants, CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 16 of 17 however, defendants have failed to lead any evidence on the aforesaid issue. Although in para no. 10 of their affidavits, DW-1 and DW-2 have stated the market value of the share of late Sh. Dilawar Singh to be 70,20,000/-, however, they have failed to produce any documents in support of their aforesaid plea. They have also failed to disclose whether the said market value of the suit properties was as on the date of filing of the suit or on the date of filing of affidavits by them. From the tenor of the affidavits, the value seems to be of the date of filing of the affidavits by them in the year 2014. Issue no. IV is thus decided against the defendants.
Issue no. 5: Relief?
40. In view of my findings on issues no. 1 to 4 hereinabove, the plaintiff as well as the defendants no. 1 to 3 are entitled to a preliminary decree of partition in their favour.
41. A preliminary decree of partition of part of the suit properties measuring 384 sq. yds. as per site plans Ex. PW-1/1 to Ex. PW-1/4, belonging to Late Sh. Dilawar, situated in lal dora/deh abadi in the revenue estate of village Matiala, Delhi is thus passed in favour of plaintiff and defendant nos. 1 to 3 to the extent of 1/4th share each, to the exclusion of defendant no. 4.
42. Decree Sheet be prepared accordingly.
Announced in the open court on this day of 24th day of August, 2022. This judgment consists of 17 number of signed pages. ARUN KUMAR Digitally signed by ARUN KUMAR GARG GARG Date: 2022.08.24 17:58:17 +05'30' (ARUN KUMAR GARG) Additional District Judge-05(Central) Tis Hazari Courts, Delhi CS DJ No. 18322/16 Dharambir Singh Vs. M/s Bijender Singh Judgment dated 24.08.2022 Page 17 of 17