Delhi District Court
Hirawati vs Ishwar Singh Anr on 24 December, 2024
Hirawati Vs. Ishwar Singh Anr.
DLST010000082003
IN THE COURT OF DISTRICT JUDGE-02, SOUTH,
SAKET COURTS COMPLEX, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
CS DJ No. 7142/16
Filing No. 55648/2003
CNR No. DLST01-000008-2003
In the matter of:
1. Smt. Hirawati
W/o Late Sh. Charan Singh
D/o Late Sh. Maya Ram
R/o H.No. 31A, Block-D, Shiv Enclave,
Najafgarh, Dichaon Kalan Road
New Delhi-110043 ......Plaintiff
VERSUS
1. Late Sh. Ishawar Singh S/o Late Sh. Prabhu
(Since Deceased) Through his legal representatives
1-A. Sh. Jitender Singh S/o Late Sh. Ishwar Singh
2-B. Sh. Goverdhan Singh S/o Late Sh. Ishwar Singh
3-C. Sh. Manjeet Singh S/o Late Sh. Ishwar Singh
All residents of 33-B/9, Village Kishangarh,
Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date:
2024.12.24
CS DJ No. 7142/2016 16:53:09 +0530
Page 1 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024
Hirawati Vs. Ishwar Singh Anr.
Vasant Kunj, New Delhi..
2. Sh. Sandeep Singh S/o Sh. Pratap Singh
Resident of 33-A/9, Village Kishangarh,
Vasant Kunj, New Delhi
3. Sh. Anuj Gandas S/o Late Sh. Mahinder Singh
Resident of 25/9, Village Kishangarh, Mehrauli
New Delhi
4. Sh. Atul Gandas S/o Late Sh. Mahinder Singh
Resident of 25/9, Village Kishangarh, Mehrauli
New Delhi
5. Late Sh. Ram Phal (Since Deceased)
S/o Late Sh. Ganga Sahai
Through his legal representatives
5-A. Sh. Ranbir Singh S/o Late Sh. Ram Phal
5-B. Sh. Kuldeep Singh S/o Late Sh. Ram Phal
5-C. Sh. Himmat Singh S/o Late Sh. Ram Phal
All residents of 35/9, Village Kishangarh,
Vasant Kunj, New Delhi
6. Sh. Ajit Singh
S/o Late Sh. Ganga Sahai
Resident of 36/9 Village Kishangarh,
Vasant Kunj, New Delhi
7. 7-A Sh. Narinder
7-B Sh. Balwan
Both S/o Late Sh. Ramphal
Grand Sons of Late Sh. Ganga Sahai
R/o 44-H/9, Village Kishangarh,
Vasant Kunj, New Delhi Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date:
2024.12.24
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Hirawati Vs. Ishwar Singh Anr.
8. Late Sh. Ram Karan (Since Deceased)
Son of Late Sh. Ganga Sahai
Through his LRs'
8-A. Sh. Tara Chand S/o Late Sh. Ram Karan
8-B. Sh. Jai Singh S/o Late Sh. Ram Karan (Since
Deceased)
Through his LRs'
8-B(I). Smt. Bimla W/o Late Sh. Jai Singh
8-B(II). Sh. Pradeep S/o Late Sh. Jai Singh
8-B(III). Sh. Amit S/o Late Sh. Jai Singh
8-C. Sh. Vijay Kumar S/o Late Sh. Ram Karan
8-D. Sh. Umed Singh S/o Late Sh. Ram Karan
8-E. Smt. Shakuntala D/o Late Sh. Ram Karan
All Residents of 36/9 Village Kishangarh,
Vasant Kunj, New Delhi
9. 9-A. Sh. Randhir
9-B. Sh. Raj Kumar
9-C. Bhup Singh
9-D. Sh. Daryao Singh
All Sons of Late Sh. Surat Singh
9-E. Sh. Arvind Kumar S/o Late Sh. Om Parkash
S/o Late Sh. Surat Singh
Grand Sons of Late Sh. Ganga Sahai
All Residents of 44 D/9 Village Kishangarh,
Vasant Kunj, New Delhi
10. Sh. Bali Ram (Since Deceased)
Son of Late Sh. Ganga Sahai
Through his legal LRs'
10-A. Sh. Deep Chand S/o Late Sh. Bali Ram
10-B. Sh. Ramesh Chand S/o Late Sh. Bali Ram
R/O 34/9, Kishangarh, Digitally signed
by
YADVENDER
YADVENDER SINGH
SINGH Date:
2024.12.24
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Hirawati Vs. Ishwar Singh Anr.
Vasant Kunj, New Delhi
11. Sh. Prem Chand
Son of Late Sh. Ganga Sahai
R/O 44-B-1/9, Village Kishangarh,
Vasant Kunj, New Delhi
12. Sh. Bhai Ram
Son of Late Sh. Ganga Sahai
R/o 44-F/9, Village Kishangarh,
Vasant Kunj, New Delhi
13. Sh. Raj Karan
Son of Late Sh. Ganga Sahai
Through his LR
13-A. Sh. Jagbir Singh S/o Late Sh. Raj Karan
R/o 44-C/9, village Kishangarh,
Vasant Kunj, New Delhi
14. Sh. Amar Singh
Son of Late Sh. Ganga Sahai
R/o 44-E/9, Village Kishangarh,
Vasant Kunj, New Delhi
15. Sh. Samai Singh
Son of Late Sh. Ganga Sahai
R/o 34-B/9, Village Kishangarh,
Vasant Kunj, New Delhi
16. Sh. Balbir Singh
Son of Late Sh. Mehar Chand
R/o 62/9, Village Kishangarh,
Vasant Kunj, New Delhi
17. Sh. Rohtash Singh
Son of Late Sh. Mehar Chand Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date:
2024.12.24
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Hirawati Vs. Ishwar Singh Anr.
R/o 62/9, Village Kishangarh,
Vasant Kunj, New Delhi
18. Sh. Attar Singh
Son of Late Sh. Mehar Chand
R/o 62/9, Village Kishangarh,
Vasant Kunj, New Delhi
19. 19-1. Sh. Satish
19-II. Sh. Ashok
Both Sons of Sh. Bir Singh
Grandsons of Late Sh. Mehar Chand
19-III. Sh. Rajinder @ Rajinder Gandas
(Since Deceased)
S/o of Sh. Bir Singh
Grandson of Late Sh. Mehar Chand
Through his LRs
Smt. Anita W/o Sh. Rajinder @ Rajinder Gandas
All R/o 62/9, Village Kishangarh,
Vasant Kunj, New Delhi.
19A. Smt. Bir Kaur D/o Late Mehar Chand
(Since deceased through her L.Rs.)
19A(I). Sh. Sunder Singh S/o Late Sh. Sher Singh
19A(II). Sh. Suresh Chander S/o Late Sh. Sher Singh
19A(III). Smt. Kamlesh D/o Late Sh. Sher Singh
All R/o Village Malikpur, Najafgarh,
New Delhi
19B. Smt. Rishalo D/o Late Mehar Chand
(Since deceased through her L.Rs.)
19B(I). Sh. Naresh Kumar S/o Late Sh. Sewal Singh
Digitally signed
YADVENDER by YADVENDER
SINGH
SINGH
CS DJ No. 7142/2016
Date: 2024.12.24
16:54:04 +0530
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Hirawati Vs. Ishwar Singh Anr.
19B(II). Sh. Ramesh S/o Late Sh. Sewal Singh
All R/o Village Malikpur, Najafgarh, New Delhi
20. 20-A. Sh. Raju (Devinder)
20-B. Sh. Ashok
Both Sons of Late Sh. Chander Bhan
All R/O 144/9, Village Kishangarh,
Vasant Kunj, New Delhi
21. 21-A. Sh. Parmanand
21-B. Sh. Krishan
Both Sons of Late Sh. Subey Singh
All R/o 144/9, Village Kishangarh,
Vasant Kunj, New Delhi
22. Sh. Sunder Singh
S/o Sh. Attar Singh
R/o C-154, Vikas Puri, New Delhi - 110018
23. Sh. Krishan Prakash
S/o Sh. Attar Singh
R/o C-154, Vikas Puri, New Delhi 110018
24. Smt. Shakntala Devi
W/o Sh. Gajender Singh
R/o 33/9 Kishangarh, Mehrauli,
New Delhi
25. Smt. Asha @ Ayesha Siddiqui
W/o Mohd. Muqeet Siddiqui
D/o Late Sh. Charan Singh
R/o F-34, Tara Apartments,
New Delhi-110019
......Defendants
Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date:
2024.12.24
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Hirawati Vs. Ishwar Singh Anr.
Date of Institution : 10.10.2003
Date of reserving the judgment : 05.12.2024
Date of pronouncement : 24.12.2024
Decision : Preliminary
Decree Passed
SUIT FOR PARTITION WITH SEPARATE POSSESSION
JUDGMENT
1. Vide this order, I shall dispose of the Suit for Partition with Separate Possession. The brief facts of the case, as per plaint are as under:-
1.1. The plaintiff and defendants are relatives of each other. The father of the plaintiff Sh. Maya Ram had four real brothers namely Sh. Lal Ram, Sh. Mohan Lal, Sh.
Hari Singh and Sh. Muni Ram besides two cousins Sh. Meher Chand and Sh. Ganga Sahai, who all are the predecessors-in-interests of the present defendants and the plaintiff. Sh. Ram Chand was the great grand father of the plaintiff, who had three sons namely Harphool, Ramji Lal and Kishan Chand. The plaintiff is the grand daughter of the Late Sh. Ramji Lal. Sh. Maya Ram was the owner and in joint possession of 3/20 share in Khasra No. 624 (4-06) and had 1/20 share in the Khasra No.567 (0-05), 576 (0-04), 578 (0-11), 1171 (0-19) and 1177 (0-11) in Village Mehrauli, Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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Hirawati Vs. Ishwar Singh Anr.
Delhi with other co-owners, who were the predecessors in interest of the present defendants. The entire land of Village Mehrauli have been urbanized vide a notification No.RN2/526 dated 23.05.1963 under Section 507 of Delhi Municipal Corporation Act with the previous consent of Central Government. Sh. Maya Ram had died on 07.12.1965 and he had also left a Will in his own handwriting in favour of the plaintiff but the plaintiff was not aware of that Will at that time and the plaintiff, her sister Smt. Chandro and their mother Smt. Chinta Wati thought themselves as joint owners of the property left by Sh. Maya Ram as the surviving legal heirs and tried to manage the land left by Sh. Maya Ram for some time as there was no male member in the family to look after the land as Sh. Aik Sarup was missing since 1972 and is presumed to be dead under the provisions of law. That under the circumstances the suit lands are being managed by the defendants for themselves and for the plaintiff, her sister and mother jointly. That as already stated the plaintiff was not aware of the Will and came to know about the Will in her favour in 1999 and filed a probate petition. After all the legal formalities the probate has been granted to the plaintiff and the plaintiff became the sole and absolute owner of all the properties left by her father including the suit property. No Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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other person, therefore, has any ownership right, title or interest in the property left by the father of the plaintiff except the plaintiff.
1.2. That the plaintiff came to know about dishonest intentions of the defendant no.1 when it was found that defendant no.1 fraudulently got executed some alleged sale deed with respect to 1/4 share in the agriculture land measuring 7 bighas and 12 biswas M. No. 11 Kila No. 16 (4-
16), 17/1(2-16), situated in village Mehrauli. Present suit is a separate suit against the defendant No.1 on separate cause of action. The plaintiff had filed the separate suit for recovery of possession, damages/mense profit against defendant No. 1 and his brothers with respect to a separate property which is not subject matter of the present suit and that suit was pending in the Hon'ble High Court of Delhi. The plaintiff under the circumstances did not consider it proper to continue her property jointly with the defendants and therefore asked the defendants to partition the property but the defendants have refused to partition the property now and therefore the plaintiff has been left with no other alternative except to file the present suit. Hence, the present suit has been filed by the plaintiff praying for following reliefs: Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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(a) Preliminary decree in favour of the plaintiff and against the defendants with directions to the local commissioner who may be appointed by this Hon'ble Court to suggest the mode of partition of land bearing Khasra No.624 (4-06), 567 (0-05), 576 (0-04), 578 (0-11), 1171 (0-19), 1177 (0-11) by metes and bounds.
(b) Final decree for partition with respective possession of the plaintiff of her shares and the defendants.
(c) Any other relief/or relief's which this Hon'ble Court may deem fit the property under the circumstances of this case may also be passed.
(d) Cost of suit be also awarded.
2. Vide order dated 09.07.2004 passed by the Hon'ble High Court of Delhi, defendants no.3, 4, 5, 15, 16, 20, 22, 23 were proceeded against ex-parte.
3. Written statements were filed by defendants no.1, 2, 5 to 15, 19(A) (II), 19 (B) I & II, defendant no.22, 23 and no.25, wherein the answering defendants had denied the contentions /averments made by the plaintiff.
4. Separate replications were also filed by the plaintiff in which she has denied the allegations made by the defendant and reiterated the facts stated by her in the plaint.
5. On the basis of the pleadings of the parties, vide order dated 15.07.2017, the following issues were framed.
"1) Whether suit is bad for non-joinder and mis Digitally signed YADVENDER by YADVENDER SINGH SINGH CS DJ No. 7142/2016 Date: 2024.12.24 16:54:40 +0530 Page 10 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
joinder of necessary parties? OPD."
2) Whether the suit is barred under the provision of section 55 & 185 of DLR Act? OPD
3) Whether the suit is barred by Section 23 of Hindu Succession Act? OPD.
4) Whether the present suit is not properly valued for the purpose of court fee? OPP.
5) Whether this Court has no jurisdiction to try & entertain the present suit? OPD
6) Whether the plaintiff is stopped by her act, conduct and acquiescence from filing the present suit? OPD
7) Whether the plaintiff is entitled for decree of partition & separate possession as claimed? OPP
8) Whether suit property is liable to be partitioned? If yes, then what is the share to the parties to the suit? OPP
9) Relief."
6. The plaintiff was asked to lead the evidence. The plaintiff examined Sh. Deepak Kumar as PW1. He tendered his evidence by way of affidavit Ex.PW1/A. He has relied upon the documents i.e. Ex.P1/25, Ex.P2/25, Ex.PW1/1 (OSR), Ex.PW1/3, Ex.PW1/4 and Mark-B. Opportunity to cross-examine this witness was given to the defendants, however, defendants had not availed the same.
7. No other witness was examined by the plaintiff. Hence, PE stood closed vide order dated 07.10.2017 and matter was listed for DE.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.12.24 16:54:48 +0530 CS DJ No. 7142/2016 Page 11 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
8. In DE, defendant no.25 Smt. Asha @ Ayesha Siddiqui examined Sh. Rakesh Kumar, Patwari, SDM Office, Mehrauli, District South, New Delhi as D25W1,who was a summoned witness. D25W1 brought the record i.e. Khatauni for the year 2004-05 of Khasra No. 624, area 4 bigha 6 biswa, Khata no. 36 and exhibited the copy of the same as D25W1/1. He was also duly cross-examined by the Ld. counsel for the plaintiff.
9. Defendant no.25 also examined Sh. Nicholson Bernard, Record Attendant, Office of Sub Registrar V (Kalkaji), Mehrauli, New Delhi as D25W2, who was also a summoned witness. D25W2 brought the register/volume no. 1474, Book I, which contains a relinquishment deed dated 03.06.1998 from page no. 55 to 57, registered on 03.06.1998 and exhibited the copy of the relinquishment deed as Ex. D25/7 (OSR). He also brought the register/volume no. 635, Book-III, which contains a Will dated 09.08.1996 at page no. 189, registered on 09.08.1996 and exhibited the copy of the said Will as Ex D25/8 (OSR). He was also duly cross- examined by the Ld. counsel for the plaintiff.
10. Defendant no.25 also examined Ms. Sunita, Astt. Ahlmad, Emp. ID. 38147723, Court of Ms. Vineeta Goel, Ld. ADJ-03, South as D25W3, who was also a summoned Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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witness. D25W3 brought the summoned record i.e. complete file of case no. 7240/16 titled as "Hirawati vs Aysha @ Asha & Ors.' and exhibited the copy of Will dated 08.10.1965 as Ex D25W3/1 (OSR). During her examination, she had also exhibited the copy of Will 10.05.1990 of Smt Chintawati as Ex D25W3/2 (OSR). During her cross-examination, she deposed that she had no personal knowledge about the case and could not say if these are forged Wills or not.
11. Defendant no.25 also examined Sh. Nadeem Siddiqui as D25W4, who was also a summoned witness. D25W4 exhibited his identity proof as Mark A1 (OSR). He deposed that he had seen Ex.D25W3/2 which bears the signature of his father at Point A. He deposed that he could recognize his signatures as he had seen him signing and writing. He brought the original death certificate of his father, copy of which was exhibited as Ex.D25W4/1. He was duly cross- examined by the Ld. counsel for the plaintiff.
12. Defendant no.25 also examined Sh. Jagdish Prashad, who was a typist at Tis Hazari. He was duly cross-examined by the Ld. counsel for the plaintiff.
13. Defendant no.25 also examined herself as DW25 on 21.12.2019. She tendered her evidence by way of affidavit Ex.DW25/A and relied upon following documents:-
Digitally signed by YADVENDERYADVENDER SINGH SINGH Date:
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1. Certified copy of affidavit of admission denial dated 07.07.2012 as Ex.DW-25/1.
2. Affidavit of No Objection by the plaintiff dated 13.11.1998 already Ex.D25/2 to Ex.D-25/6.
3. Certified copy of Will of Chitawati dated 10.05.1990 already Ex.D-25W3/2.
4. Certified copy of Relinquishment Deed dated 03.06.1998 as Ex.D- 25/7.
5. Certified copy of Will of Smt. Chandro dated 09.08.1996 as already Ex.D-25/8.
6. Death certificate of Sh.Mohan Lal as Mark D1.
7. Death certificate of Sh.Hari Singh as Mark D2. 13.1. DW-25 was duly cross-examined by the Ld. counsel for the plaintiff.
14. No other witness was examined by the defendants.
15. I have heard the final arguments of the parties and carefully perused the material on record.
16. Defendant no.25 submitted during final arguments that she does not have any objection on issues No.1 to 6 and she does not wish to argue on these issues.
17. My issue wise findings are as under:-
Issue No.1: Whether suit is bad for non-joinder and mis Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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joinder of necessary parties? OPD.
18. The onus to prove this issue was on the defendants.
However, no evidence was led to prove this issue and accordingly issue no.1 is decided against the defendants. Issue No.2: Whether the suit is barred under the provision of section 55 & 185 of DLR Act? OPD
19. The onus to prove this issue was on the defendants. It is admitted position of the parties that Village Mehrauli already urbanized in the year 1963 and accordingly the provisions of DLR Act, 1954 are not applicable on the suit property. Otherwise also, no evidence was led by the defendants to prove that the suit was barred under Section 55 and 185 of DLR Act. Accordingly, issue no.2 is decided against the defendants.
Issue No.3: Whether the suit is barred by Section 23 of Hindu Succession Act? OPD.
20. The onus to prove this issue was on the defendants. However, no evidence was led to prove this issue and accordingly issue no.3 is decided against the defendants. Issue No.4: Whether the present suit is not properly valued for the purpose of court fee? OPP.
21. The onus to prove this issue was on the defendants. However, no evidence was led to prove this issue and Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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accordingly issue no.4 is decided against the defendants. Issue No.5: Whether this Court has no jurisdiction to try & entertain the present suit? OPD
22. The onus to prove this issue was on the defendants. The defendants did not lead any evidence to prove this issue. Moreover, admittedly Village Mehrauli had already been urbanized way back in the year 1963 and accordingly bar of DLR Act, 1954 on the civil courts jurisdiction is no more applicable. Accordingly, issue no.5 is also decided against the defendants.
Issue No.6: Whether the plaintiff is stopped by her act, conduct and acquiescence from filing the present suit? OPD
23. The onus to prove this issue was on the defendants. However, no evidence was led to prove this issue and accordingly issue no.6 is decided against the defendants. Issue No.7: Whether the plaintiff is entitled for decree of partition & separate possession as claimed? OPP & Issue No.8: Whether suit property is liable to be partitioned? If yes, then what is the share to the parties to the suit? OPP
24. Considering the nature of issues, issues no.7 and 8 shall be discussed and decided together.
25. The onus to prove these issues was on the plaintiff.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.12.24 CS DJ No. 7142/2016 16:55:32 +0530 Page 16 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
26. The plaintiff's narrative is that the plaintiff and defendants are relatives of each other. Plaintiff's father Late Sh. Maya Ram has four real brothers besides two cousins and all of them are the predecessor-in-interest of the present plaintiff and defendants. The plaintiff has claimed that plaintiff's father Late Sh. Maya Ram was the owner and enjoying possession of 3/20th share in Khasra No. 624 (4-
06) and had 1/20th share in Khasra No. 566 (0-05), 576 (0-
04), 578 (0-11), 1171 (0-19) and 1177 (0-11) in village Mehrauli, Delhi with other co-owners, who were the predecessor-in-interest of the present defendants. It is contended that the entire land of village Mehrauli had been urbanized vide notification No. RN-2/526 dated 23.05.1963 under Section 507 of DMC Act. Sh. Maya Ram died on 07.12.1965 and had left a Will in his own writing in favour of the plaintiff but the plaintiff was not aware of that Will at that time. Sh. Maya Ram expired leaving behind four Class I legal heirs i.e. plaintiff herein (daughter), Smt. Chandro (daughter), Sh. Aik Sarup (son, who was missing since 1972) and Smt. Chintawati (wife). The plaintiff came to know about the Will in her favour in the year 1999 and filed a probate petition having case No. PC 75/2000, on which the Letters of Administration was granted to the plaintiff herein Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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and the plaintiff became the sole and absolute owner of all the properties left by her father Late Sh. Maya Ram including the suit property.
27. Defendants filed their respective written statement.
28. Replication to the written statement was also filed by the plaintiff wherein she denied the allegations made in the written statement.
29. Perusal of order dated 26.03.2019 passed by the Ld. Predecessor Judge of this court shows that an application under Section VI Rule 17 read with Section 151 CPC alongwith proposed amended plaint was filed by the plaintiff.
30. Vide order dated 27.04.2019, the application under Order VI Rule 17 CPC for amendment was partly allowed.
Vide the abovesaid order, only addition of paras nos. 3(a) and 3(b) to the amended petition was allowed. On allowing the amendment application for addition of new paras 3(a) and 3(b), the amended plaint alongwith amended memo of parties was filed on behalf of the plaintiff on 07.05.19. The new paras 3(a) and 3(b) of the amended plaint are regarding the respective shares of the plaintiff and defendants no1. to
24. The amended application was not opposed by defendants no.1 to 24 regarding addition of paras 3(a) and 3(b). The Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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application was only opposed by defendant no.25.
31. To prove its case, plaintiff led PE and examined only one witness i.e. PW1 on 07.10.2017 and on the same date vide separate statement of Ld. counsel for the plaintiff, PE stood closed. PW1 Sh. Deepak Kumar is son as well as Power of Attorney Holder of the plaintiff. That day an application under Order 3 Rule 1 and 2 read with Section 151 CPC for striking down the evidence of Power of Attorney of the plaintiff filed on behalf of defendant no.25 was also disposed of as dismissed.
32. PW1 relied upon documents Ex.P1/D25 and Ex.P2/D25.
33. Ex.P1/D25 is a translation from Urdu language to English language of Khatouni Consolidation of Village Mehrauli, Had Bast No. 31, Tehsil Hauz Khas, South District, Delhi. This document was admitted by defendant no.25 on 19.08.2013. This document shows the respective shares of the bhoomidars in Khasra including suit property i.e. Khasra No. 566 (0-05), 576 (0-04), 578 (0-11), 1171 (0-
19) and 1177 (0-11). This document is found to be filed alongwith certified copy of original Khatouni Consolidation in Urdu language.
Ex.P2/D25 is also an admitted document by defendant Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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no.25. This document is copy of petition filed in PC 75/2000 for granting of letters of administration by Smt. Hirawati/plaintiff herein through her attorney Smt. Asha @ Ayesha Siddiqui/defendant no.25 herein.
34. PW1 also relied upon Ex.PW1/1 (OSR), Ex.PW1/3, Mark-B and Ex.PW1/4.
Ex.PW1/1 is GPA dated 02.01.2013 in favour of PW1 by the plaintiff herein, whereby she authorized her attorney i.e. Sh. Deepak Kumar to do the acts as mentioned in the GPA including to give the evidence on her behalf in any court of law. No objection was raised by the defendants regarding this document at the time of evidence. Documents Ex.PW1/3, Ex.PW1/4 and Mark-B were objected by Ld. counsel for the defendant no.25 being photocopy.
Ex.PW1/3 is copy of original Will dated 15.04.1965 executed by Late Sh. Maya Ram in favour of Smt. Hirawati/plaintiff herein. Document Mark-B is its translation from Urdu language to English language.
Ex.PW1/4 is a copy of grant of letters of administration under Section 290 of Indian Succession Act, 1925 on 22.03.2002 in view of court order dated 01.03.2002 vide which Schedule A attached with the letters of administration stood cancelled and amended Schedule issued Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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accordingly.
35. The witness was not cross-examined by any of the defendants including defendant no.25 despite opportunity.
Judicial notice of the fact that document Mark-B/Ex.PW1/3 i.e. Will dated 15.04.1965 of Late Sh. Maya Ram in favour of the plaintiff has already been proved in PC 75/2000 may be taken, where letters of administration was issued regarding this document. Judicial notice of the document Ex.PW1/4 also may be take as original of the same was also found to be filed in PC 75/2000 and this document was issued under the sign and seal of the then Ld. District Judge, Delhi.
36. No evidence was led by any of the defendants except defendant no.25. She examined herself as DW25. She also examined five other witnesses i.e. D25W1 to D25W5.
D25W1 was a summoned witness from SDM Office, Mehrauli, District South, New Delhi and brought the record i.e. Khatauni for the year 2004-05 of Khasra No. 624, area 4 bigha 6 biswa, Khata no. 36 and same was exhibited as Ex.D25W1/1. During his cross-examination, he answered that he had brought the record of Khatauni of Khasra No. 624 only, which was summoned. He also answered that he cannot tell whether as per order 11.01.1999 passed by Naib Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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Tehsildar under Section 56 DLR Act, mutation of suit land in favour of Asha @ Aisha had been rejected or not and whether the said land had been mutated in favour of Chandro, Hirawati/plaintiff herein and Chintawati by the said order. On 11.12.2017, he was again cross-examined, when he brought the record as asked on 30.11.2017 regarding Somar No. 4725 1998-99, which was at Point A in D25W1/P1 and Somar No. 4726 199/-99 and same was exhibited as Ex.D25W1/P2. He also answered that the suit property as per record available in the office of revenue authority was agricultural land. He voluntarily answered that it became an urbanized village.
D25W2 was also a summoned witness from the office of Sub-Registrar V who brought the register showing relinquishment deed dated 03.06.1998. Copy of the said relinquishment deed was exhibited as D25/7 (OSR). He also brought register containing Will dated 09.08.1996. Copy of this Will was also exhibited as Ex.D25/8 (OSR).
D25W3 is also a summoned witness, who brought the complete file of case no. 7240/16 titled as "Hirawati vs Aysha @ Asha & Ors.'. The copy of Will dated 08.10.1965 executed by Late Sh. Maya Ram was exhibited as Ex D25W3/1 (OSR) during her evidence. The copy of Will Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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10.05.1990 of Late Smt. Chintawati was exhibited as Ex D25W3/2 (OSR).
D25W4 identified the signatures of his father at Point A on the abovesaid Will Ex.D25W3/2 as executed by Late Smt. Chintawati on 10.05.1990. He answered that he could recognize his signatures as he had seen him signing and writing and his father expired on 15.04.2012. The death certificate of his father was exhibited as Ex.25W4/1. During his cross-examination, he answered that Smt. Asha @ Ayesha Siddiqui/defendant no.25 was his real aunty and in the year 1990 he was only 15 years old and in his life he never met Smt. Chintawati. He answered that Asha @ Ayesha Siddiqui was real sister in law of his father Sh. Abdul Tohid Siddiqui. He answered that his father had not signed in his presence. He further answered that his father had told him that he had singed upon that document. He answered that he did not know Sh. Maya Ram. He also answered that he could not say if Smt. Chintawati had no right in the suit property of document Ex.D25W3/2.
D25W5 identified signatures of one of the attesting witness Sh. Mohan Lal at Point A on Ex.D25W3/1 i.e. Will dated 08.10.1965 of Late Sh. Maya Ram.
37. Defendant no.25 tendered her evidence by way of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.12.24 CS DJ No. 7142/2016 16:58:07 +0530 Page 23 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
affidavit Ex.DW25/A and relied upon documents Ex.DW25/1 to Ex.DW25/8. She also relied upon documents Mark-D1 and Mark-D2 as death certificates of Sh. Mohan Lal and Sh. Hari Singh, who were allegedly the attesting witnesses of Will dated 08.10.1965 of Late Sh. Maya Ram. All these documents were relied upon by the defendant no.25 in order to prove that Late Sh. Maya Ram executed a subsequent Will dated 08.10.1965 in favour of his wife Late Smt. Chintawati and Smt. Chintawati executed a Will dated 10.05.1990 regarding the same property in her favour. She relied upon joint relinquishment deed dated 03.06.1998 executed by Smt. Hirawati/plaintiff herein and Smt. Chandro in her favour to claim that vide this relinquishment deed Smt. Hirawati and Smt. Chandro transferred their respect shares in the suit property in her favour. She also relied upon the Will of Smt. Chandro and claimed that even otherwise Smt. Chandro had bequeathed her properties in her favour through this Will. She claimed that through abovesaid subsequent Will of Late Sh. Maya Ram in favour of his wife Smt. Chintawati, Smt. Chintawati became the absolute owner of properties left by Late Sh. Maya Ram and that also amounts to cancellation of previous Will executed in favour of Smt. Hirawati/plaintiff herein as executed on 15.04.1965 Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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by Late Sh. Maya Ram. She also contended that through Will dated 10.05.1990 of Late Smt. Chintawati she becomes the absolute owner of the whole property left by Late Sh. Maya Ram and accordingly plaintiff cannot claim any share in the suit property.
38. Judicial notice of the fact, that in PC 75/2000, letters of administration in favour of Smt. Hirawati on the Will dated 15.04.1965 of Late Sh. Maya Ram has already been granted vide order dated 07.12.2001 by Ld. District Judge, Delh and thereafter two revocations petitions i.e. Revocation 4/19 titled Asha @ Ayesha Vs. State and PC 7/17 titled Asha @ Ayesha Vs. Hirawati as filed by Smt. Asha @ Ayesha Siddiqui/defendant no.25 herein have also been dismissed vide order dated 21.12.2024 and 16.11.2024 respectively and by this court, may be taken.
39. Revocation was filed by Smt. Hirawati on the basis of subsequent Will dated 08.10.1965 of Late Sh. Maya Ram in favour of Smt. Chintawati. Accordingly, the document Ex.D25W3/1 (OSR) cannot be relied upon in the present case also as it is a settled law that judgment of a probate court granting or refusing probate is a judgment in rem.
40. Hon'ble Calcutta High Court in case titled 'Rani Hemangini Debi And Ors. vs Sarat Rundari Debya And Ors.Digitally signed by YADVENDER
YADVENDER SINGH SINGH Date:
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decided on 11.08.2021, AIR (8) 1921 CALCUTTA 292 observed as under:
"It is an elementary rule that where a judgment operates as a judgment in rem, it is not subject to any kind of collateral attack; while it remains in force, it is conclusive not only on the persons who are parties to the judgment but upon all persons and all Courts."
41. When alleged Will of Late Sh. Maya Ram dated 08.10.1965 in favour of Smt. Chintawati was not found to be executed legally or validly by Late Sh. Maya Ram in revocation titled Asha @ Ayesha Vs. Hirawati in view of the settled legal position, then the same cannot be again decided in the present case and accordingly, I am of the considered opinion that Ex.D25W3/1 (OSR) i.e. Will dated 08.10.1965 of Late Sh. May Ram in favour of Smt. Hirawati cannot be relied upon in the present case.
42. When Will of Late Sh. Maya Ram in favour of Smt. Chintawati cannot be relied upon then Smt. Chintawati was left with no title over the suit property on 10.05.1990 and any Will executed by her in favour of Smt. Asha @ Ayesha Siddiqui/defendant no.25 regarding the suit property cannot confer any valid title to the beneficiary. Accordingly, even if Will dated 10.05.1990 of Smt. Chintawati is considered to be Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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a genuine Will, then also it will be of no help for Smt. Asha @ Ayesha Siddiqui/defendant no.25 as no title over the suit property can be claimed on the basis of this Will in her favour in view of the abovesaid discussion.
43. Any personal property of the testator vests in the executor/administrator on the time of death of the testator and not from the time when probate/Letters of Administration was granted. The probate of Will dated 15.04.1965 was granted on 12.07.2001. This grant of probate was only a method by which the law provides the establishing the Will and property vested in the administrator by virtue of the Will dated 15.04.1965 and not by virtue of Letters of Administration.
44. Even if the Will dated 10.05.1990 of Late Smt. Chintawati, Will dated 09.08.1996 of Smt. Chandro and relinquishment deed dated 03.06.1998 as jointly executed by Smt. Chandro and Smt. Hirawati in favour of defendant no.25 are considered as genuine and proved, then also these documents do not convey any title of land in question in favour of defendant no.25 as the executors of these documents cannot convey a better title than the title they themselves had.
45. It is settled law that on the death of the testatrix the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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bequeathed property vests in the beneficiary.
46. The bare reading of Section 211 shows that the property vests in the executors or administrators by virtue of the Will and not by virtue of probate or Letters of Administration. The Will gives property to the executor/administrator. The grant of probate is only method by which law provides for establishing the Will. The vesting is not for beneficial interest of the property but also for the purpose of representation.
47. In Meyappa Chetty Vs. Supramanian Chetty reported in 43 Indian Appeals 113, the privy counsel has held that the executor derives his title from the Will and not from the probate. The personal property of the testator vests in the executor on the death of the testator.
48. The Will dated 15.04.1965 of Late Sh. Maya Ram has not been disputed by the applicant. Judicial notice of the fact, that one revocation petition having PC no. 7/17 in case titled 'Asha @ Ayesha Vs. State & Ors' has been dismissed by this court on 16.11.2024, through which revocation of order dated 12.07.2001 was sought on the basis of subsequent Will dated 08.10.1965 as allegedly executed by Late Sh. Maya Ram in favour of his wife/Smt. Chintawati, may be taken. It was concluded in PC 7/17 by this court that Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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the applicant herein failed to prove the Will dated 08.10.1965 of Late Sh. Maya Ram. Accordingly, at the time when these Wills and Relinquishment Deed were executed, neither Smt. Chintawati nor Smt. Chandro had any title qua the land in question. Accordingly, any of the documents executed by them regarding transfer of their interest in the abovesaid property cannot be relied upon.
49. Perusal of the Relinquishment Deed dated 03.06.1998 shows that it was jointly executed by Smt. Chandro and Smt. Hirawati in favour of Ms. Asha/applicant herein. It has been mentioned in the second page of the Deed that Smt. Chinta Wati wife of Late Shri Maya Ram was the absolute owner of the following Agricultural land and thereafter the description of the land has been mentioned and thereafter on the same page the details of legal heirs i.e. Smt. Chandro and Smt. Heera, left behind on her death has been mentioned. On page No.3 of the Deed, it has been mentioned that the Releasors (Chandro and Hirawati) agreed to release, relinquish, disclaim and give up all their rights, titles and interest in the said agricultural land in favour of the Releasee (Asha) absolutely and forever. Here word 'said agricultural land' has been used and immediately before this paragraph the details of the agricultural land of which Smt. Chintawati was stated Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2024.12.24 CS DJ No. 7142/2016 16:59:13 +0530 Page 29 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
to be the absolute owner has been mentioned in the Deed. It means here the Deed is only regarding respective shares of Smt. Chandro and Smt. Hirawati being their Class I legal heirs of Smt. Chintawati in her property as stated at Page No.2 of the Deed itself on her death. It nowhere mentions their any other property apart from their abovesaid shares in the property of Smt. Chintawati of which as per deed they were absolute owner. When the alleged Will dated 08.10.1965 of Late Sh. Maya Ram in favour of Smt. Chintawati has not found to be proved in PC 7/17, the same cannot be relied upon in favour of Smt. Chintawati to show her title over the property of Late Sh. Maya Ram as Letters of Administration has already been granted to Smt. Hirawati on Will dated 15.04.1965. So any other remaining legal heirs of Late Sh. Maya Ram cannot claim their shares in the property of Late Sh. Maya Ram because Hindu Succession Act 1956 provides about the notional partition of the immovable property only if a male Hindu dies intestate. It is not the case herein that Maya Ram died intestate. The proved Will of Late Sh. Maya Ram was found to be executed in favour of Smt. Hirawati. In view of this proved Will, Smt. Hirawati derives her title from the Will and not from the Letters of Administration qua bequeathed property of Late Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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Sh. Maya Ram. In view of the abovesaid discussion and the case laws, the property of Late Sh. Maya Ram vests in Smt. Hirawati on the death of Sh. Maya Ram. Sh. Maya Ram expired on 07.12.1965 and since then, the property vests in Smt. Hirawati. Accordingly, at the time of execution of the relinquishment deed or execution of Will by Smt. Chintawati or execution of Will by Smt. Chandro, none of the executant had valid title so these documents can be considered as void ab initio regarding the transfer of title. Accordingly, the applicant's contention that 3/4th share of all the immovable property of Late Sh. Maya Ram had been disposed off in favour of Ms. Asha @ Ayesha/applicant herein is also not maintainable.
50. The mutation of the land in revenue record does not confer the title over the said land nor it has any presumptive value and title. The entry in jamabandi is not a proof of title in respect of the immovable property.
51. Hon'ble Supreme Court in case titled 'Union of India & Ors. Vs. Vasavi Cooperation' observed that the revenue records does not confer title as these are not the documents of title and observed as under:
"This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.12.24 CS DJ No. 7142/2016 16:59:49 +0530 Page 31 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
Papaiah and another (1989) 3 SCC 612 held that "it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law." In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that "that the entries in jamabandi are not proof of title". In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that "the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."
52. Accordingly, in the present case also, any revenue record showing entry in the name of defendant no.25 or in favour of other Class I legal heirs except Smt. Hirawati/plaintiff herein cannot be relied upon as document of title because vide Will dated 15.04.1965 as executed by Late Sh. Maya Ram in favour of Smt. Hirawtai, Smt. Hirawati became the absolute owner of the properties left by Late Sh. Maya Ram by operation of this Will on the date of death of Late Sh. Maya Ram and any entry made in revenue record due to ignorance of the existence of this Will cannot be considered as a document of title in favour of remaining Class I legal heirs of Late Sh. Maya Ram and in favour of their subsequent assignees.
53. In the light of discussion hereinabove, the plaintiff has Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2024.12.24 CS DJ No. 7142/2016 16:59:55 +0530 Page 32 of 34 Dr. Yadvender Singh/DJ-02/South/Saket/ND/24.12.2024 Hirawati Vs. Ishwar Singh Anr.
been able to prove that the plaintiff and defendants no.1 to 24 have their respective share in the suit property as mentioned in para No.3A and 3B of the amended plaint. The present suit remained uncontested on the part of defendants no.1 to 24 when they neither lead any evidence nor cross- examined the plaintiff witnesses. They also did not oppose the addition of para 3A and 3B through amendment in the plaint. The contentions raised by defendant no.25 are not sustainable in view of the abovesaid discussion and settled legal position. Accordingly, plaintiff is entitled for decree of partition and for separate possession as claimed. The suit property is liable to be partitioned between the plaintiff and defendants no.1 to 24 in their respective shares as mentioned in para 3A and 3B of the amended plaint itself. Accordingly, issues no.7 and 8 are decided in favour of the plaintiff and against defendant no.25.
Issue No.9: Relief.
54. In light of the abovesaid discussion, a preliminary decree is hereby passed in favour of the plaintiff for partition of the suit property i.e. Khasra No. 624 (4-06) and Khasra No.567 (0-05), 576 (0-04), 578 (0-11), 1171 (0-19) and 1177 (0-11) in Village Mehrauli, Delhi with other co-owners i.e. defendants no.1 to 24. The plaintiff is entitled to a decree of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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partition of the suit property and she is entitled to 3/20th share in Khasra No. 624 (4-06) and 1/20th share in Khasra No. 566 (0-05), 576 (0-04), 578 (0-11), 1171 (0-19) and 1177 (0-11) of the suit property.
55. Preliminary Decree sheet be prepared accordingly.
Digitally signed by Pronounced in the open Court YADVENDER YADVENDER SINGH on this 24th Day of December, 2024 SINGH Date:
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