REVA KHETRAPAL, J.

1. The present appeal arises out of the judgment and decree dated 5th October, 2002 passed by the learned Additional District Judge, Delhi, in Suit No. 537/2001, whereby the suit filed by the plaintiff (the appellant herein) was dismissed.

2. The facts leading to the filing of the appeal are: -

a. That a suit for partition of the property bearing no.A-4/24, Krishna Nagar, Delhi-110 051, was filed consequent upon the death of its owner, Smt. Maharani Devi, who died on 26th August, 1988 at 710, Katra Neel, Nai Basti, Delhi-110006.

b. It is an admitted fact that late Smt. Maharani Devi was the second wife of Sh. Ram Kishan Dass Khanna, who was initially the owner of the suit property.

c. Sh. Ram Kishan Dass Khanna had one daughter, namely, Smt. Bhagwanto Devi from his first wife and another daughter, namely, Smt. Asha Mehra, from his second wife. He had no son from any of his wives.

d. Sh. Ram Kishan Dass Khanna and Smt. Maharani Devi adopted Sh. Ram Prasad Khanna, who was the son of his daughter Smt. Bhagwanto Devi, as their son on 15th January, 1949. Sh. Ram Kishan Dass Khanna died on 4th October, 1971.

e. It is alleged that Smt. Maharani Devi executed her first Will on 12th May, 1967, which was registered on 24th May, 1967 by which she bequeathed the property to Smt. Asha Mehra, arrayed as defendant in the suit for partition filed by Sh. Rajesh Khanna and Ms. Priti Wahi, the son and daughter of Sh. Ram Prasad Khanna (the adopted son of Smt. Maharani Devi).

f. Sh. Ram Prasad Khanna died on 4th November, 1987 and Smt. Maharani Devi died on 26th August, 1988.

g. Smt. Maharani Devi had executed her second Will on 5th March, 1972, by which she revoked her earlier Will dated 12th May, 1967 and bequeathed her property in favour of Sh. Ram Prasad Khanna, who, as stated above, pre-deceased Smt. Maharani Devi.

3. The plaintiff’s case as set out in the plaint is that according to the provisions of Section 113 of the Indian Succession Act, 1925, a Will in favour of a person who does not exist on the date of death of the Testator, is void. The legatee, Sh. Ram Prasad Khanna having pre-deceased Smt. Maharani Devi (the testatrix), in whose favour she had executed the subsequent Will dated 5th March, 1972, the said Will was rendered void to the extent she bequeathed her property in favour of Sh. Ram Prasad Khanna. It is further averred in the plaint that the said Will having been rendered void, all the legal heirs of Smt. Maharani Devi are entitled to inherit their legitimate shares in the property of Smt. Maharani Devi. Thus, Smt. Asha Mehra is entitled to half share in the property and Sh. Rajesh Khanna and Smt. Priti Wahi (the legal heirs of Sh. Ram Prasad Khanna), are entitled to 1/4th share each. Accordingly, the plaintiffs claimed to be entitled to a decree of partition in respect of the property bearing no. A-4/24, Krishna Nagar, Delhi-110 051 in their favour to the extent of 1/4th share each.

4. The defendant in the written statement filed by her contested the case by taking up a number of preliminary objections. On merits, however, it was not denied by the defendant that Smt. Maharani Devi, was the second wife of Sh. Ram Kishan Dass Khanna, and that the latter had one daughter, namely Smt. Bhagwanto Devi, from his first wife and one daughter, namely Smt. Asha Mehra from this second wife. It was, however, denied by the defendant that Sh. Ram Prasad Khanna was the adopted son of Smt. Maharani Devi and it was submitted that as per the Hindu Law relating to adoption, the son of a daughter could not be adopted. It was not denied that Smt. Maharani Devi executed a Will on or about 12th May, 1967 in favour of the defendant, but it was denied that she had executed another Will on 5th March, 1972 in favour of Sh. Ram Prasad Khanna. It was submitted that on the death of Sh. Ram Prasad Khanna, the Will dated 5th March, 1972 would not take effect and in the absence of any other Will, the property would vest in the defendant