Delhi District Court
Ramesh Kumar Jain vs Pushpa Jain Ors on 8 April, 2026
IN THE COURT OF DISTRICT JUDGE-08 WEST, TIS HAZARI
COURTS, DELHI
Presided by: Ms. Susheel Bala Dagar
CS Div 609435/2016
CNR Number: DLWT01-000235-2011
In the matter of:
Shri Ramesh Kumar Jain
S/o Late Shri Shakunt Lal Jain
R/o 53-B, Jain Nagar,
Railway Road, Meerut City,
UP-250009. ..... Plaintiff
Versus
1. Smt. Pushpa Jain
W/o late Shri Rakesh Kumar Jain
R/o 43, Ground Floor, Arihant Nagar,
Punjabi Bagh, (West),
New Delhi -110026
2. Navneet Kumar Jain
S/o late Shri Rakesh Kumar Jain
R/o 43, Ground Floor, Arihant Nagar,
Punjabi Bagh, (West),
New Delhi -110026
3. Smt. Minal Jain
D/o late Shri Rakesh Kumar Jain
R/o 43, Ground Floor, Arihant Nagar,
Punjabi Bagh, (West),
New Delhi -110026
4. Smt. Manjula Jain
D/o late Shri Rakesh Kumar Jain
R/o 43, Ground Floor, Arihant Nagar,
Punjabi Bagh, (West),
New Delhi -110026 ..... Defendants
Date of institution : 08.08.2011
Date of reserved for judgment : 24.02.2026
Date of judgment : 08.04.2026
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SUSHEEL Digitally
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signed
BALA BALA DAGAR
Date: 2026.04.08
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Suit for partition, declaration and for possession
JUDGMENT
Brief facts of the case
1. The family of Late Shakunt Lal Jain consisted of his wife Raj Kumari Jain, his sons Ramesh Kumar Jain (plaintiff) and Rakesh Kumar Jain (deceased), and his daughter Manjula Jain. Rakesh Kumar Jain passed away in 1986, leaving behind his widow Pushpa Jain and two children (defendants No. 1 to 3). Shakunt Lal Jain died intestate in 2001, after which his widow and children became his legal heirs, and later Raj Kumari Jain also passed away in 2009.
2. A residential property located at 43, Arihant Nagar, Punjabi Bagh (West), New Delhi, originally purchased by Shakunt Lal Jain in 1983, was converted into freehold and transferred in the name of Raj Kumari Jain in December 2001, making her the absolute owner. Additionally, agricultural land in Ambala owned by Shakunt Lal Jain was mutated among his widow, the plaintiff, and the legal heirs of his deceased son, while Manjula Jain relinquished her share in her father's properties.
3. In 2008, Raj Kumari Jain executed a Will-cum-Family Settlement with the consent of all parties, dividing the Punjabi Bagh property between the plaintiff and the legal heirs of Rakesh Kumar Jain, giving the ground floor to defendants No. 1 to 3 and the first floor with partial roof rights to the plaintiff. After her death, disputes arose when the defendants failed to cooperate in mutating the property as per the settlement and instead claimed ownership based on an alleged Will dated 28.07.1993, which the plaintiff asserts is forged and invalid.
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4. The plaintiff contends that he is entitled to half share, possession, and construction rights in the property as per the 2008 family settlement and seeks partition, declaration of his ownership rights, possession of his share, and nullification of the alleged fraudulent Will and subsequent gift deed executed by defendant No. 1 in favour of defendant No. 2. Written Statement of defendant no. 1, 2 and 3
5. The defendants contend that the present suit is not maintainable and is liable to be dismissed as it has been filed on the basis of false, frivolous, and fabricated documents with an ulterior motive to cheat and defraud them, and they further submit that the suit is without any valid cause of action, barred under law, and suffers from concealment of material facts, misjoinder of parties, and insufficient Court fees.
6. The defendants assert that Late Shakunt Lal Jain had executed a registered Will dated 28.07.1993 in favour of Defendant No. 1, on the basis of which the suit property was mutated in her name, and she subsequently executed a registered gift deed in favour of her son (Defendant No. 2), who is now the exclusive owner of the property, thereby making the plaintiff's claim untenable.
7. They denied that Shakunt Lal Jain died intestate and also dispute the plaintiff's claim that Smt. Raj Kumari Jain became the absolute owner of the property, contending instead that she had no right, title, or authority to execute any Will or family settlement, and they further alleged that the purported Will-cum-Family Settlement dated 12.05.2008 is forged and fabricated, executed when she was not of sound mind.
8. The defendants further accuse the plaintiff of forging signatures Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 3 of 24 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.04.08 18:11:34 +0530 and fabricating documents to unlawfully claim the property.
9. On merits, the defendants admitted certain basic family relationships and undisputed facts but denied all material allegations relating to ownership, partition, possession, and entitlement of the plaintiff, including the alleged family settlement, mutation claims, and rights in the suit property. They also denied the plaintiff's claims regarding cause of action, jurisdiction, valuation of the suit, and entitlement to any relief.
Written Statement of defendant no. 4
10. Defendant No. 4 contended that the alleged Will dated 12.05.2008 relied upon by the plaintiff is unnatural, forged, and fabricated, as it unfairly excludes her despite her close and affectionate relationship with her parents, and she submitted that her mother, who was aged, infirm, and not of sound mind at the time, was incapable of executing a valid Will, thereby rendering the document legally invalid and surrounded by suspicious circumstances.
11. She further submitted that the alleged Will and family settlement are not binding on her since she was neither a party to them nor aware of their existence until after the filing of the suit, and she asserted that the contradictory nature of the document and absence of independent witnesses make it unreliable and liable to be rejected.
12. Defendant No. 4 denied that she ever relinquished her share in the properties of her parents and alleged that the plaintiff fraudulently excluded her name from mutation applications relating to both the Delhi property and the agricultural land in Ambala, thereby attempting to Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 4 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:11:37 +0530 deprive her of her lawful share.
13. She also challenged the validity of both the plaintiff's alleged Will and the Will set up by defendant No. 1, claiming both are fabricated, and asserted that the subsequent gift deed executed in favour of Defendant No. 2 is void as the executant had no absolute ownership.
14. Defendant No. 4 submitted that upon the intestate death of both parents, the estate should devolve equally among the three branches, giving one-third share each to the plaintiff, defendant No. 4, and jointly to defendants No. 1 to 3, and she denied all claims of exclusive ownership, partition, possession, or construction rights made by the plaintiff. Replication by the plaintiff to the WS of defendant no. 1 to 3
15. The plaintiff denied all the preliminary objections raised by the defendants, asserting that their allegations regarding non-maintainability, fraud, misjoinder, and insufficient Court fees are incorrect and unsupported.
16. The plaintiff specifically challenged the defendants' reliance on the alleged Will dated 28.07.1993 of Late Shakunt Lal Jain, contending that the said Will is forged, fabricated, lacks genuine signatures and proper attestation, and was never disclosed earlier during family settlement or mutation proceedings, thereby rendering subsequent mutation and gift deed in favour of defendant No. 2 legally invalid.
17. The plaintiff reiterated that Smt. Raj Kumari Jain became the absolute owner of the suit property through duly registered conveyance deed in 2001 and was fully competent to execute the Will-cum-Family Settlement dated 12.05.2008, through which the property was validly Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 5 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:11:40 +0530 partitioned between the plaintiff and defendant No. 1 with the consent of all concerned parties.
18. The plaintiff further denied all allegations of fraud, fabrication, and concealment made by the defendants and reaffirmed that the suit has been filed on genuine facts and valid documents and that proper Court fees have been paid.
19. In response to the defendants' reply on merits, the plaintiff reiterated all facts stated in the plaint as correct and denied each contrary assertion made by the defendants, particularly those relating to ownership, mutation, validity of documents, and entitlement to the suit property.
Replication by the plaintiff to the WS of defendant no. 4
20. The plaintiff denied all preliminary objections raised by defendant No. 4 and asserted that the Will-cum-Family Settlement dated 12.05.2008 is valid, genuine, and not unnatural, contending that defendant No. 4 had already relinquished her share in her father's properties out of love and affection, and therefore was not wrongfully deprived of any share.
21. The plaintiff further denied all allegations that the said Will and family settlement are forged, fabricated, or executed under suspicious circumstances, maintaining that Smt. Raj Kumari Jain was of sound mind and competent to execute the document, and that the witnesses were present at the time of its execution.
22. The plaintiff also denied the allegation of conspiracy or concealment and asserted that defendant No. 4 was fully aware of the facts and was not kept in the dark regarding the family settlement.
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23. In reply on merits, the plaintiff reiterated all averments made in the plaint as correct and denied all contrary statements made by defendant No. 4, particularly those relating to relinquishment of share, mutation of agricultural land, and validity of the Will-cum-Family Settlement.
24. The plaintiff submitted that defendant No. 4 had relinquished her share in the properties of Late Shakunt Lal Jain and therefore has no subsisting claim, while also asserted that the alleged Will set up by defendant No. 1 and the subsequent gift deed in favour of defendant No. 2 are null and void.
Issues :-
25. From the pleadings of the parties and material on record, following issues were framed by the Hon'ble High Court on 28.05.2014 :-
Issue no. 1 Whether the Will dated 12.05.2008, as relied upon by the plaintiff, is the last, legal and valid Will of late Smt. Raj Kumar Jain? OPP Issue no. 2 Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP Issue no. 3 Whether the Will dated 28.07.1993, as relied upon by defendant no. 1, is the last, legal and valid Will of late Shri Shakunt Lal Jain? OPD-1 Issue no. 4 Whether the suit property is liable to be partitioned by way of decree of partition and in what share between the parties? Onus on parties.
Issue no. 5 Relief.
Plaintiff Evidence:-
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PW1 / Shri Ramesh Kumar Jain
26. He tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents: certified copy of conveyance deed dated 10.07.2001 Ex. PW 1/2, death certificate of Late Shakunt Lal Jain Ex.
PW 1/3, office copy of application dated 21.03.2002 to Tehsildar Ex. PW 1/4, Will cum Family Settlement dated 12.05.2008 Ex. PW1/5, death certificate of Late Raj Kumari Jain Ex. PW 1/6, office copy of application dated 04.06.2009 to Tehsildar Ambala Ex. PW 1/7 and site plan Ex. PW 1/8.
27. Ld. Counsel for defendant no. 1, 2 and 3 cross-examined the plaintiff witness /PW1 and Ld. Counsel for defendant no. 4 adopted the cross-examination on behalf of defendants No. 1 to 3.
28. During cross-examination, the plaintiff /PW-1 stated that the suit property was purchased and constructed by his father from his own funds, with no contribution from defendant no. 1, and that after his father's death, his mother became the owner and validly executed a Will-cum- Family Settlement in 2008 in favour of the plaintiff and defendant no. 1.
29. The plaintiff denied the existence and validity of the alleged Will dated 28.07.1993 relied upon by defendants no. 1 to 3, asserting that it is forged and fabricated, and also denied the legality of the subsequent mutation and gift deed executed in favour of defendant no. 2.
30. He stated that defendant no. 1 lived in the Meerut house after his brother's death and got employment on compassionate grounds through his efforts, while also claiming that she did not contribute to the construction of the suit property.
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31. PW1 admitted several gaps in his knowledge, including lack of awareness about ownership documents, bank accounts, mutations, and details of properties, and acknowledged that he had not produced documentary evidence regarding the Meerut and Ambala properties.
32. He further made inconsistent statements regarding ownership records, signatures on documents, and property transfers, including inability to fully identify signatures of his father on key documents, and admitted that he came to know certain ownership details only after filing the suit.
33. Despite these inconsistencies, the plaintiff/ PW1 reiterated that his mother validly executed the Will-cum-Family Settlement, denied execution of any Will by his father or mother in favour of the defendants, and stated that he is entitled to his claimed share in the suit property, while rejecting all contrary suggestions put by the defendants' Counsel. PW2 / Shri Devender Kumar, Junior Assistant, Sub Registrar-II, Basai Darapur proved the certified copy of the Conveyance Deed dated 15.12.2001 Ex. PW2/1.
34. During cross-examination, PW2 stated that while the document records Shakunt Lal Jain as purchaser and Pushpa Jain and Ramesh Kumar Jain as witnesses, he has no personal knowledge of the facts of the case and his statement is limited to the official record.
After cross-examination, plaintiff evidence was closed. Defendant Evidence:-
DW1 / Shri Vinod Kumar Jain
35. DW-1 who is a distant relative of both the plaintiff and defendant Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 9 of 24 SUSHEEL Digitally by SUSHEEL signed BALA BALA DAGAR Date: 2026.04.08 DAGAR 18:11:53 +0530 no. 1, deposed that he is an attesting witness to the Will dated 20.12.2008 of Late Smt. Raj Kumari Jain and affirmed that he signed the Will in her presence along with another witness, Ankur Jain, and a notary public, stating that the testatrix had expressed her intention to bequeath any share she had in the property to defendant no. 1.
He stated that he came to know about the case only after receiving summons and denied any prior briefing by defendant no. 1, while also confirming that Raj Kumari Jain was not in good health during 2008- 2009 but he was unaware of her exact medical condition.
36. DW1 admitted several limitations in his recollection, including inability to remember where the Will was typed, the exact date of attestation, whether it bore thumb impressions, and certain execution details, though he maintained that he was physically present at the time of execution and signed the Will in the same room as the testatrix and the other witness. He further denied suggestions that the Will was fabricated or pre-prepared by defendant no. 1, and reiterated that he was truthfully deposing regarding the execution of the Will.
37. Despite availing various opportunities, the defendants did not lead any further evidence, hence, the opportunity for evidence to the defendants was closed on 24.07.2025.
Final arguments
38. I have heard Shri Ankit Gupta, Ld. Counsel for plaintiff. Ld. Counsel for defendant, Shri Suneet Nagpal sought time through his associate again and again for addressing oral arguments but has only filed written synopsis of arguments on behalf of the defendants. Defendant no.
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4 was proceeded exparte on 21.01.2026 due to non appearance. I have perused the record.
Plaintiff's arguments
39. The suit property at Arihant Nagar was originally purchased by Late Sh. Shakunt Lal Jain in 1983 and later converted from leasehold to freehold through a Conveyance Deed process initiated shortly before his death in October 2001, after which the property stood lawfully registered in the name of his wife, Smt. Raj Kumari Jain, who thereby became the absolute owner. Despite this, Defendant No.1 never disclosed any alleged earlier Will of 1993 during the lifetime of Sh. Shakunt Lal Jain or even at the time of registration of the Conveyance Deed, raising serious doubts about its authenticity. Subsequently, Smt. Raj Kumari Jain executed a Will-cum-Family Settlement dated 12.05.2008, clearly intending to divide the suit property between the plaintiff and defendant No.1, which reflects a genuine family arrangement and was executed in a sound state of mind. After her death in 2009, disputes arose when the defendants relied upon inconsistent and unproven Wills, including the alleged Will of 1993 and a later introduced Will of 2008, neither of which were properly proved as per legal requirements. The plaintiff challenged these documents along with the consequential Gift Deed and mutation, asserting that they are null and void as they are based on an unproven and suspicious Will. The evidence on record shows that the defendants failed to prove their claims, did not step into the witness box, and introduced documents beyond pleadings, while the plaintiff successfully established ownership flowing from the registered Conveyance Deed and the validity Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 11 of 24 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.04.08 18:12:00 +0530 of the 12.05.2008 Will-cum-Family Settlement. Accordingly, the plaintiff is entitled to declaration relief, and the suit property is liable to be partitioned in terms of the said family settlement, under which the ground floor belongs to Defendant Nos.1-3 and the first floor with terrace rights belongs to the plaintiff, and therefore the suit deserves to be decreed in favour of the plaintiff.
Defendant no. 1, 2 and 3 arguments
40. The defendants contend that the present suit for partition, declaration, and possession has been filed on the basis of false, fabricated, and forged documents. They assert that Late Sh. Shakunt Lal Jain had executed a valid registered Will in 1993 in favour of Defendant No. 1, on the basis of which the property was duly mutated in her name, and subsequently transferred to Defendant No. 2 through a registered gift deed in 2009, making him the exclusive owner of the suit property.
41. The defendants argue that Late Smt. Raj Kumari Jain had no right, title, or interest in the suit property, and therefore any alleged Will dated 12.05.2008 relied upon by the plaintiff is invalid, forged, and does not bear genuine signatures. They further claim that she was not in a sound medical condition to execute any such Will, and that the plaintiff has a history of fabricating signatures to usurp property.
42. It is further submitted that the original owner, Late Sh. Shakunt Lal Jain, had legally bequeathed the property to Defendant No. 1, and therefore the claim that he died intestate is incorrect. The defendants also provide details of the family structure and assert that the rights of legal Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 12 of 24 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.04.08 18:12:03 +0530 heirs of the predeceased son were duly represented.
43. The defendants maintain that the property was converted into freehold through a valid conveyance deed in 2001, and that no valid family settlement or Will dated 12.05.2008 exists. They rely on another Will dated 20.12.2008 executed by Late Smt. Raj Kumari Jain, which (allegedly) confirms the earlier Will in favour of defendant no. 1.
44. Additionally, the defendants state that the plaintiff failed to prove his claims during cross-examination and did not produce relevant documents, including those related to another property in Meerut allegedly given to him in lieu of his share. They also rely on the testimony of an independent attesting witness who confirmed the genuineness of the Will dated 20.12.2008.
45. The defendants submit that their ownership is based on valid, registered documents that have been duly proved, while the plaintiff has failed to substantiate his claims, and therefore the suit is liable to be dismissed with heavy costs.
Court observation and findings Issue No. 1 Whether the Will dated 12.05.2008, as relied upon by the plaintiff, is the last, legal and valid Will of late Smt. Raj Kumari Jain? OPP
46. The onus to prove this issue squarely lies upon the plaintiff. The plaintiff seeks to establish that Smt. Raj Kumari Jain executed a valid Will-cum-Family Settlement dated 12.05.2008 Ex. PW1/5, thereby bequeathing the suit property between himself and defendant No. 1.
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It is settled law that the execution and proof of a Will must strictly comply with the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In order to prove a Will, at least one attesting witness must be examined to prove its execution.
47. The Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443 has held that the propounder of a Will must prove:
(i) that the Will was signed by the testator;
(ii) that the testator was in a sound disposing state of mind;
(iii) that the testator understood the nature and effect of the dispositions; and
(iv) that the Will was attested by two witnesses in accordance with law.
48. It was further held that where there are suspicious circumstances, the onus becomes heavier on the propounder to remove such suspicion. Similarly, in Jaswant Kaur v. Amrit Kaur AIR 1977 SC 74, it has been held that mere proof of signatures is not sufficient. The surrounding circumstances must also satisfy the conscience of the Court.
49. In the present case, the plaintiff /PW-1 has relied upon the Will- cum-Family Settlement dated 12.05.2008 Ex. PW1/5. However, a careful perusal of the record reveals the following material deficiencies. The plaintiff has failed to examine any attesting witness to the alleged Will dated 12.05.2008. This is a mandatory requirement under Section 68 of the Evidence Act. Mere exhibition of the document does not dispense with proof of its execution.
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50. There is no evidence on record to show that the Will was executed in the presence of two attesting witnesses or that they signed in the presence of the testatrix. The essential ingredients of Section 63(c) of the Succession Act remain unproved.
51. During cross-examination, PW-1 admitted lack of knowledge regarding material aspects such as signatures, ownership documents, and execution details. He was unable to identify signatures of his parents on key documents. Such admissions materially weaken the credibility of the plaintiff's case.
52. The alleged Will excludes defendant no. 4, one of the natural heirs, which creates a suspicious circumstance requiring cogent explanation. No satisfactory explanation has been provided by the plaintiff for such exclusion.
53. Further, the document is styled as a "Will-cum-Family Settlement", which itself creates ambiguity regarding its nature--whether it is testamentary or a present arrangement. Such ambiguity adds to the suspicion.
54. No independent witness, scribe, or official has been examined to support the execution of the document. There is also no medical evidence to establish that the testatrix was in a sound disposing state of mind at the relevant time.
55. In Sridevi v. Jayaraja Shetty AIR 2005 SC 780, the Hon'ble Supreme Court held that where suspicious circumstances exist, the propounder must remove them by clear and satisfactory evidence. Failure to do so renders the Will unproved. Similarly, in Kalyan Singh v. Chhoti Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 15 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:12:13 +0530 AIR 1990 SC 396, it was held that the Court must be satisfied that the Will is free from suspicion and represents the true intention of the testator. In the present case, the plaintiff has failed to dispel the suspicious circumstances surrounding the alleged Will.
56. In view of the aforesaid discussion, the Court is of the opinion that the plaintiff has failed to prove the due execution and attestation of the Will dated 12.05.2008 in accordance with law. The mandatory requirements of Section 68 of the Evidence Act have not been complied with. The suspicious circumstances surrounding the document remain unexplained. Accordingly, the Will dated 12.05.2008 cannot be held to be the last, legal and valid Will of late Smt. Raj Kumari Jain. The issue is decided against the plaintiff and in favour of the defendants. Issue No. 2 Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
57. The onus to prove this issue lies upon the plaintiff. By way of the present suit, the plaintiff has sought a decree of declaration to the effect that he is the owner to the extent of half share in the suit property on the basis of the alleged Will-cum-Family Settlement dated 12.05.2008, and further that the alleged Will dated 28.07.1993 and the subsequent gift deed executed in favour of defendant no. 2 are null and void.
58. It is pertinent to note that a decree of declaration is governed by Section 34 of the Specific Relief Act, 1963, which provides that a person entitled to any legal character or right to property may institute a suit for declaration. However, such declaration can only be granted when the plaintiff successfully establishes his legal right and the Court is satisfied Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 16 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.04.08 18:12:17 +0530 about the existence of such right.
59. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 has held that a declaratory decree cannot be granted unless the plaintiff establishes a clear legal right, and where the title itself is under serious cloud, the plaintiff must prove his title by cogent evidence. In the present case, the entire claim of the plaintiff for declaration is founded upon the Will-cum-Family Settlement dated 12.05.2008 allegedly executed by Smt. Raj Kumari Jain.
60. However, while deciding Issue No. 1, the Court has already held that the plaintiff has failed to prove the said Will in accordance with law. Once the very foundation of the plaintiff's claim stands unproved, the consequential relief of declaration based on such document cannot be granted. It is a settled principle that when the primary document conferring title is not proved, no declaration can be granted on the basis of such unproved document.
61. The plaintiff has also not been able to establish any independent title to the suit property dehors the alleged Will. Though reliance has been placed on the conveyance deed dated 10.07.2001 Ex. PW1/2, the same admittedly stands in the name of Smt. Raj Kumari Jain, and not in the name of the plaintiff. Therefore, the plaintiff could have claimed rights only through a valid testamentary disposition or by way of succession. In absence of proof of the Will dated 12.05.2008, no exclusive or defined share of the plaintiff stands established.
62. The plaintiff has also sought declaration that the Will dated 28.07.1993 set up by defendant no. 1 and the subsequent gift deed Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 17 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:12:20 +0530 executed in favour of defendant no. 2 are null and void. In this regard, it is pertinent to note that the burden to prove invalidity of a document lies on the person who challenges it. Mere allegations of forgery or fabrication are not sufficient. The same must be proved by cogent evidence.
63. The Hon'ble Supreme Court in Prem Singh v. Birbal AIR 2006 SC 3608 has held that a registered document carries a presumption of validity, and the burden lies heavily on the person who seeks to avoid it.
In the present case, except making bald allegations, the plaintiff has not led any cogent evidence to prove that the Will dated 28.07.1993 is forged or fabricated. No handwriting expert has been examined, nor any attesting witness has been discredited. Similarly, the gift deed executed in favour of defendant No. 2 has not been specifically proved to be illegal or void through reliable evidence.
64. The title of the suit property is seriously disputed between the parties. The plaintiff relies on an unproved Will of 2008, whereas the defendants rely on an earlier Will and subsequent transfer documents. In such circumstances, the plaintiff was required to establish his title by clear, cogent, and convincing evidence, which he has failed to do.
65. In Union of India v. Vasavi Cooperative Housing Society Ltd., AIR 2014 SC 937 it is held that the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. In view of the above discussions, it is held that the plaintiff has failed to prove the Will dated 12.05.2008, which is the foundation of his claim. The plaintiff has not established any independent legal right or title in the suit property.
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The challenge to the Will dated 28.07.1993 and the gift deed is not supported by cogent evidence. The plaintiff has failed to discharge the burden required under Section 34 of the Specific Relief Act. Accordingly, Issue No. 2 is decided against the plaintiff and in favour of the defendants. The plaintiff is not entitled to the decree of declaration as prayed for.
Issue No. 3 Whether the Will dated 28.07.1993, as relied upon by Defendant No. 1, is the last, legal and valid Will of late Shri Shakunt Lal Jain? OPD-1
66. The onus to prove this issue lies upon defendant No. 1, who has set up the Will dated 28.07.1993 allegedly executed by late Shri Shakunt Lal Jain in her favour.
67. It is a settled proposition of law that the proof of a Will must strictly comply with the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The propounder of the Will is required to prove its due execution and attestation by examining at least one attesting witness.
68. In the present case, defendant no. 1 has relied upon the alleged Will dated 28.07.1993 of late Shri Shakunt Lal Jain. However, a careful scrutiny of the record reveals the following:
Defendant No. 1 has failed to examine any attesting witness to the alleged Will dated 28.07.1993. This omission is fatal to the case of the defendants, as compliance with Section 68 of the Evidence Act is mandatory.
69. There is no evidence on record to establish that the Will was Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 19 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:12:28 +0530 executed by the testator in the presence of two attesting witnesses or that the witnesses signed in his presence. The essential ingredients of Section 63(c) of the Succession Act remain unfulfilled. Even though the defendant has examined DW1 Vinod Kumar Jain as a witness to the Will dated 20.12.2018, however, the defendant no.1 has neither referred the said Will dated 20.12.2008 in his pleadings nor his defence is based on the same. Even though Will dated 20.12.2008 allegedly executed by Smt. Raj Kumari Jain contains a statement regarding execution of Will dated 28.07.1993, however, the same cannot be considered the proof of Will dated 28.07.1993.
70. Though opportunities were granted by the Court, the defendants failed to lead complete evidence, and their right to lead further evidence was closed. The failure of defendant no. 1 to step into the witness box and prove the Will further weakens her case.
71. The alleged Will was not disclosed at the time of execution of the conveyance deed in 2001 or during mutation proceedings, which raises serious doubts about its existence and genuineness. No satisfactory explanation has been furnished for such non-disclosure.
72. In Benga Behera v. Braja Kishore Nanda AIR 2007 SC 1975, it has been held that where the propounder fails to examine an attesting witness, the Will cannot be said to be proved in accordance with law. Further, in Kalyan Singh v. Chhoti AIR 1990 SC 396, the Hon'ble Supreme Court reiterated that the burden to prove the Will is always on the propounder, and the Court must be satisfied that the Will is genuine and free from suspicion.
Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 20 of 24
Digitally signed
SUSHEEL by SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2026.04.08
18:12:31 +0530
73. In view of the above discussions, the Court is of the opinion that defendant No. 1 has failed to prove the Will dated 28.07.1993 in accordance with the mandatory provisions of law. No attesting witness has been examined to prove its execution. The circumstances surrounding the alleged Will remain suspicious and unexplained. Accordingly, the Will dated 28.07.1993 cannot be held to be the last, legal and valid Will of late Shri Shakunt Lal Jain. The issue is decided against defendant no. 1 and in favour of the plaintiff.
Issue No. 4 Whether the suit property is liable to be partitioned by way of decree of partition and in what share between the parties? (Onus on parties)
74. The present issue pertains to the entitlement of the parties to seek partition of the suit property and determination of their respective shares. It is pertinent to note that the right to seek partition arises when the property is held jointly by co-owners and their respective shares are either admitted or capable of determination in accordance with law.
75. While deciding Issue No. 1, the Court has already held that the plaintiff has failed to prove the Will dated 12.05.2008 allegedly executed by Smt. Raj Kumari Jain. Similarly, while deciding Issue No. 3, it has been held that defendant no. 1 has also failed to prove the Will dated 28.07.1993 allegedly executed by late Shri Shakunt Lal Jain. Thus, both the rival testamentary claims set up by the parties have remained unproved.
76. In view of the failure of both Wills, the devolution of the suit property is required to be considered as per the law of intestate Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 21 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:12:36 +0530 succession. It is not in dispute that the conveyance deed dated 2001 stands in the name of Smt. Raj Kumari Jain, thereby making her the ostensible owner of the suit property. Upon her death in the year 2009, and in absence of a valid Will, the property would devolve upon her legal heirs in accordance with Section 15 of the Hindu Succession Act, 1956. As per the said provision, the property of a female Hindu dying intestate devolves upon her sons and daughters (including the children of any predeceased son) in equal shares.
77. From the admitted facts on record, the legal heirs of late Smt. Raj Kumari Jain are plaintiff - Shri Ramesh Kumar Jain (son), Defendant No. 4 - Smt. Manjula Jain (daughter). Legal heirs of predeceased son Rakesh Kumar Jain, i.e., Defendants No. 1 to 3 (collectively representing one branch) Thus, there are three branches of inheritance:
One share for the plaintiff;
One share for Defendant No. 4;
One share collectively for Defendants No. 1 to 3 as heirs of the predeceased son.
78. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum AIR 1978 SC 1239, the Hon'ble Supreme Court held that in matters of succession, each heir is entitled to a definite share as per statutory provisions, and such share must be given full effect while determining rights in joint property.
79. Further, in Vineeta Sharma v. Rakesh Sharma AIR 2020 SC 3717, it has been reiterated that daughters have equal rights in property, and the Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 22 of 24 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.04.08 18:12:39 +0530 scheme of succession under the Hindu Succession Act ensures equal distribution among heirs.
80. Since the property has devolved upon multiple heirs and no valid partition has been proved on record, the property continues to remain joint. The Hon'ble Supreme Court in Rukhmabai v. Laxminarayan 1960 SCR (2) 253 has held that every co-owner has a right to seek partition unless such right is lawfully restricted. In the present case, no legally enforceable partition or settlement has been proved by any of the parties.
Therefore, the parties continue to be co-owners and are entitled to seek partition.
81. In view of the above discussions, it is held that both the alleged Wills set up by the parties have not been proved. The suit property devolved upon the legal heirs of late Smt. Raj Kumari Jain by intestate succession. The plaintiff, defendant no. 4, and defendants no. 1 to 3 (collectively) are co-owners of the suit property. Each branch is entitled to one-third (1/3rd) share in the suit property. Accordingly, Issue No. 4 is decided in favour of all the parties, and it is held that the suit property is liable to be partitioned by metes and bounds, with 1/3rd share to the plaintiff, 1/3rd share to defendant no. 4, and 1/3rd share jointly to defendants no. 1 to 3.
Issue No. 5 - Relief
82. A preliminary decree of partition is hereby passed in respect of the suit property bearing no. 43, Arihant Nagar, Punjabi Bagh (West), New Delhi.
It is declared that the suit property shall be divided into three equal Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 23 of 24 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.04.08 DAGAR 18:12:43 +0530 shares, as under:
1/3rd share in favour of the plaintiff (Shri Ramesh Kumar Jain); 1/3rd share in favour of defendant no. 4 (Smt. Manjula Jain); 1/3rd share jointly in favour of defendants no. 1 to 3, being the legal heirs of the predeceased son Rakesh Kumar Jain.
The relief of declaration as prayed by the plaintiff is declined.
83. In the facts and circumstances of the case, and considering the close family relationship between the parties, no order as to costs is made. Let a preliminary decree be drawn accordingly.
Put up for filing affidavit by both the parties suggesting ways and means of partition by metes and bounds for 11.05.2026.
Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date: 2026.04.08 DAGAR 18:12:48 +0530 Announced in open Court (Susheel Bala Dagar) on 08th Day of April 2026 District Judge-08, West Tis Hazari Courts, Delhi. (This judgment contains 24 pages.) Civ DJ 609435/2016 Ramesh Kumar Jain v. Pushpa Jain and ors. Page no. 24 of 24