Prathiba M. Singh, J.

1. A suit for partition was filed by Mr. Tilak Raj Ahuja – Respondent/Plaintiff (hereinafter, 'Plaintiff') against his brother Mr. Mahesh Chander Ahuja – Appellant/Defendant (hereinafter, 'Defendant'). Both are sons of Late. Sh. Harbans Lal Ahuja (hereinafter, 'father') who was the owner of property No.J-13/9, Rajouri Garden, New Delhi (hereinafter, 'suit property'). The mother of the parties is Smt. Chanan Devi Ahuja (hereinafter, 'mother').

2. It is the case of the Plaintiff that his father had passed away on 19th November, 1978 and his mother had passed away on 20th June, 1999. Upon the death of the father, he had left behind three legal heirs, his wife and two sons. During the lifetime of the mother, according to the Plaintiff, a Relinquishment Deed dated 19th August, 1996 (Ex. PW-1/5) was executed by her in favour of the Plaintiff. The Defendant refused to acknowledge the validity of the Relinquishment Deed which states that the Plaintiff has become owner of 2/3rd portion of the suit property. The Defendant also refused to acknowledge the legal notice dated 3rd December, 2005 (PW1/6), whereby the Plaintiff requested the Defendant to partition the suit property in the ratio of 2:1 in his favour. Hence, the Plaintiff instituted a suit for declaration of ownership of 2/3rd share in the suit property, based on the Relinquishment Deed and a consequential decree of partition.

3. The Defendant challenged the execution of the Relinquishment Deed by pleading that the same was a manipulated and a fabricated document. The Defendant pleaded that the mother was living with him and was being cared for by him and she was also illiterate. The Defendant further claimed that he had spent considerable money in raising the construction on the suit property and getting the completion certificate from the municipal authorities and hence he was entitled to 1/2 share in the suit property.

4. The Trial Court framed the following issues :

“Issue no. 1: Whether the plaintiff is entitled to a decree of partition, declaration and permanent injunction, as has been prayed for? OPP

Issue no. 2: Whether the mother of the plaintiff and defendant executed any relinquishment deed in favour of the plaintiff, as is being claimed by him? OPP

Issue no. 3: If issue no. 1 and 2 are decided in favour of the plaintiff, what is the extent of share to which plaintiff is entitled in property no. J-13/9, Rajouri Garden, New Delhi? OPP

Issue no. 4. Whether the suit is barred under order II Rule 2 CPC? OPD

Issue no. 5: Relief”

5. Both parties led their respective evidence. The Plaintiff led the evidence of the following witnesses :

i. Mr. Tilak Raj Ahuja (PW-1), Plaintiff himself;

ii. Sh. Kishan Kumar, LDC from the office of the Sub-Registrar-II, Janak Puri (PW-2) ;

iii. Mr. Vikas Gaba, (PW-3) who was also witness to the Relinquishment Deed dated 19th August, 1996.

6. The Defendant led the evidence of Mahesh Chand Ahuja, Defendant himself (DW-1) and of Mr. Kishan Lal Manocha (DW-2)

7. The Trial Court, in its judgement noted the following :

(a) that the father had died intestate;

(b) that the Defendant had not lead any evidence to support his plea that he had spent money on the construction of the property;

(c) that it is the settled law that any addition or improvement made by a co-sharer does not result in any benefit to the said party. The Relinquishment Deed was duly proved by the witnesses from the Sub-Registrar’s office; The Trial Court then held that the Plaintiff is entitled to 2/3rd share and the Defendant would be entitled to 1/3rd share in the suit property.

Defendant’s Submissions in Appeal

8. In appeal, the main plank of the Defendant is that the mother was illiterate and she could not make a rational judgment. It was submitted that there was no logic for the execution of the Relinquishment Deed, inasmuch as the mother was residing in the suit property along with both the sons. Counsel for the Defendant submitted that the first floor of the proper