In the Court of Shri [ENTITY] : Civil Judge: North District at Tis Hazari Courts: Delhi [CASE NUMBER] Date of institution : 20.11.1989 Date of decision : 24.03.2009 In the matter of: Sh. [ENTITY] S/o Sh. [ENTITY] R/o B262, Saraswati Vihar, Delhi110034 Plaintiff VERSUS Shri [ENTITY], S/o Sh. [ENTITY], R/o 1002/67, Deva Ram Park, Tri Nagar, Delhi110035 Defendant SUIT FOR PARTITION AND PERPETUAL INJUNCTION J U D G M E N T
1. This is a suit for partition and perpetual injunction for partition with separate possession for the plaintiff of his 1/2 share in the property bearing No.1002/67, Deva Ram Park, Tri Nagar, Delhi (hereinafter referred to for the sake of brevity as the suit property) and for restraining the defendant and his agents etc from selling, transferring alienating, parting with possession or disposing of the whole or part of the suit property.
2. Facts are that the plaintiff, defendant and [ENTITY] are real brothers and entitled to succeed and inherit the suit property according to the last and final Will of their mother who died on 14.04.1978; that on 15.12.1982 [ENTITY], the brother of the parties also died and thereafter the parties remained in joint possession of the suit property, the portion shown in red color in the site plan attached remained in possession of the plaintiff and the portion shown in green color remained in possession of the defendant while the portion shown in blue color remained in the possession of [ENTITY] till his death and after his death it is in joint possession of the plaintiff and the defendant; that after the death of their mother and brother, the plaintiff and the defendant are the only legal heirs entitled to succeed the suit property according to the last Will of their mother and they are entitled to share each of the suit property; that the plaintiff has asked the defendant several times to mutually partitioned the suit property so that there is no difficulty in realizing the rent etc. from the tenants but the defendant refused to do so in order to harass and victimise the plaintiff and further threatened to dispose of the share of the plaintiff if he continues to make demand for partition gave a cause of action to the plaintiff to institute the suit.
3. The defendant contested this suit by filing written statement of his defence wherein took preliminary objections that proper court fees has not been filed with the suit; that there is no cause of action shown in the suit.
4. In reply on merits, it is contended by the defendant that the plaintiff and the defendant both are liable to make necessary expenses for the maintenance of the property and payment of house tax and other bills etc., but these bills are being paid exclusively by the defendant; that the plaintiff is not residing in the premises.
5. It is denied that the plaintiff has got any right to ask for the partition of property. It is also denied that the cause of action has arisen in favour of the plaintiff and against the defendant. Other allegations of the plaint are denied and disputed by the defendant and prayed for dismissal of suit.
6. The plaintiff filed replication wherein he denied the contentions raised by the defendant in his written statement and reiterated the allegations made in the plaint.
7. On the pleadings of the parties following issues for trial were framed by my Learned Predecessor on 19.08.98, namely: 1 Whether the present suit has not been properly valued for the purposes of court fee and jurisdiction? OPD
2. Whether the present suit has been filed without any cause of action? OPD 3 Whether the plaintiff has let out the portions of the suit property against the terms of the Will? OPD
4. Whether the plaintiff is entitled for the decree of possession after partition as prayed for? OPP
5. Whether the plaintiff is also entitled for a decree of permanent injunction as prayed for? OPP.
6. Relief.
8. The plaintiff examined only one witness, i.e., the plaintiff himself and during his evidence produced the documents Ex. PW1/1 to Ex. PW1/14.
9. The defendant examined himself as DW1.
10. I have heard counsel for the parties and perused the material available on record.
11. My issue wise findings are as under: Whether the present suit has not been properly valued for the purposes of court fee and jurisdiction?
Whether the present suit has been filed without any cause of action? Whether the plaintiff has let out the portions of the suit property against the terms of the Will?
12. Onus qua these issues was placed on the defendant.
13. In the affidavit of evidence filed by the defendant nothing has been stated by him to prove these issues. Even otherwise the defendant never entered in the witness box to tender this affidavit in evidence nor allowed the opposite party to cross examine him despite availing several opportunities. It has been held in [PRECEDENT] as follows: "Where a party to the suit does not appear in the witnessbox and states his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct."
14. In the light of law laid down in [PRECEDENT] (Supra), I draw adverse inference against the defendant.
15. For the aforestated discussion, these issues remains unproved and are decided against the defendant and in favour of the plaintiff.
Whether the plaintiff is entitled for the decree of possession after partition as prayed for?
Whether the plaintiff is also entitled for a decree of permanent injunction as prayed for?
Onus qua these issues was placed on the plaintiff. These issues are inter related. These issues are being decided together.
16. In the present case the plaintiff claimed to have derived title qua the suit property by way of testamentory succession and based his claim on a Will allegedly executed by his mother.
17. What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. [SECTION] and [SECTION], [ACT] are relevant for this purpose. Under [SECTION], if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under [SECTION] and [SECTION] of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. [SECTION] deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly [SECTION] and [SECTION] of the [ACT] are also relevant. [SECTION] provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. [SECTION] requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by [SECTION] of the [ACT]. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. [PRECEDENT].
18. However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in the support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. [PRECEDENT] (Supra)
19. The Hon'ble Supreme Court in the case of [PRECEDENT], has held as follows: "In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other."
20. Similar view has also been taken in a recent case in [PRECEDENT] which is as follows: "The propounder of the Will has to show that the Will was signed by the testator; that he was the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other."
21. In the light law laid down in [PRECEDENT] ,(Supra), [PRECEDENT] ,(Supra) and [PRECEDENT], (Supra), in order to assess as to whether the Will has been duly executed, the propounder has to show that the Will was signed by the testator and that he has put his signatures on the Will of his own free will; that at the time of execution of the Will, he was in a sound disposing state of mind and understood the nature and effect of the dispositions. In the light of this settled position of law, I have to examine whether the Will under consideration had been duly executed and validly attested.
22. The plaintiff is the propounder of the Will so the onus to prove the due execution and attestation of the Will is on the plaintiff.
23. The original Will was never produced by the plaintiff. The plaintiff has placed on record mere photocopy of the said Will. No explanation has been tendered by the plaintiff for not producing the original Will to prove his case. The plaintiff never sought any permission of the court for leading secondary evidence. The attesting witnesses of the said Will were also not examined by the plaintiff to prove that the said Will was duly attested. Nor the plaintiff has proved the due execution of the said Will. It has been neither pleaded nor proved that the testator of the Will, i.e., the mother of the plaintiff was of sound mind when she executed the Will.
24. For the aforestated reasons, I am of the opinion that the Will on which the plaintiff has based his claim is neither produced nor proved by the plaintiff. The plaintiff has also not proved due execution and valid attestation of the said Will. These issues are decided against the plaintiff. Relief
25. The basis of the relief claimed by the plaintiff is a testamentary succession. The plaintiff has failed to prove the Will on which he has based his rights qua the property sought to be partitioned. The relief claimed by the plaintiff cannot be granted.
26. In view of my above discussion, the suit of the plaintiff is dismissed. There shall be no order as to costs as the defendant did not properly contest the suit. Decree sheet be prepared accordingly.
Announced in the open court Today i.e., on 24.03.09 ([ENTITY]) CIVIL JUDGE: NORTH DISTRICT at TIS HAZARI COURTS, DELHI.
DECREE SHEET In the Court of Shri [ENTITY] : Civil Judge: North District at Tis Hazari Courts: Delhi In the matter of:
Sh. [ENTITY] S/o Sh. [ENTITY] R/o B262, Saraswati Vihar, Delhi110034 Plaintiff VERSUS Shri [ENTITY], S/o Sh. [ENTITY], R/o 1002/67, Deva Ram Park, Tri Nagar, Delhi110035 Defendant SUIT FOR PARTITION AND PERPETUAL INJUNCTION Plaint presented on 20.11.1989 This suit coming on this day for final disposal before me in the presence of Mr. [ENTITY], advocate for plaintiff. It is ordered that the suit of the plaintiff is dismissed. No costs.
Given under my hand and the Seal of this court on 24.03.09.
([ENTITY]) CIVIL JUDGE: NORTH DISTRICT at TIS HAZARI COURTS, DELHI.