The court emphasized the validity of the Gift Deed dated 17.11.1986 and the Conveyance Deed dated 22.10.1999, and highlighted the principle of limitation under the Limitation Act, 1963.

VALMIKI J.MEHTA, J.

C.M. No.11585/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.291/2018 and C.M. Nos.11584/2018(stay) & 11586/2016 (exemption in filing certified copies of entire record)

2. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiffs in the suit impugning the judgment of the Trial Court dated 31.1.2018 by which trial court has dismissed the suit for partition filed by the appellants/plaintiffs with respect to the suit property bearing no.22, Arihant Nagar, Punjabi Bagh West, New Delhi situated on a plot of 223.61 sq. yards.

3. As per the suit plaint, Sh. Shiv Charan Lal Jain and Sh. Kartar Chand Jain were real brothers. Appellants/plaintiffs and respondent no.8/defendant no.8 are Class I legal heirs of late Sh. Shiv Charan Lal Jain. Respondent nos. 1 to 7/defendant nos.1 to 7 in the suit are the legal heirs/children of Sh. Kartar Chand Jain. Sh. Shiv Charan Lal Jain was pleaded to be the absolute owner of the suit property by virtue of a Perpetual Sub-Lease Deed dated 23.5.1983 executed in his favour by the superior lessor/Delhi Development Authority (DDA). It was pleaded that it was Sh. Shiv Charan Lal Jain who had paid the entire consideration to the DDA for purchase of the suit property and that the suit property was also constructed by late Sh. Shiv Charan Lal Jain. Sh. Shiv Charan Lal Jain expired on 15.12.2009 and Sh. Kartar Chand Jain expired on 2.4.2007. It is further pleaded in the plaint that during his lifetime, Sh. Shiv Charan Lal Jain executed a registered Will dated 5.7.2006 whereby the parties to the suit had become owners of those shares as stated in the Will dated 5.7.2006. The appellants/plaintiffs pleaded that in spite of repeated requests to partition the suit property as per the last Will dated 5.7.2006 of Sh. Shiv Charan Lal Jain, respondents/defendants refused to do so and hence the subject suit was filed.

4. Respondent nos. 1 to 3/defendant nos.1 to 3 were the main contesting defendants who filed their written statement. Respondent no.8/defendant no.8 who is one other legal heir of late Sh. Shiv Charan Lal Jain, filed his separate written statement. The other defendants were either proceeded ex-parte or their defence was struck off. The defence of the respondent nos. 1 to 3/defendant nos.1 to 3 was that late Sh. Shiv Charan Lal Jain was not exclusive owner of the suit property because the suit property was jointly constructed by both the brothers, namely Sh. Shiv Charan Lal Jain and Sh. Kartar Chand Jain and both the brothers were joint owners of the suit property. It was pleaded that the Will relied upon by the appellants/plaintiffs was of no effect because Sh. Shiv Charan Lal Jain had on 17.11.1986 executed a registered Gift Deed/Ex.DW3/1 giving half undivided share in the suit property to his brother Sh. Kartar Chand Jain. It was therefore pleaded by the respondent nos. 1 to 3/defendant nos.1 to 3 that the Will dated 5.7.2006 of late Sh. Shiv Charan Lal Jain relied upon by the appellants/plaintiffs was of no effect in view of the registered Gift Deed dated 17.11.1986 executed by Sh. Shiv Charan Lal Jain.

5. After pleadings were completed, trial court framed issues and parties led evidence, and these aspects are recorded in paras 14 to 17 of the impugned judgment and these paras read as under:-

“14. After completion of pleadings, vide order dated 12.12.2012, the following issues were framed:-

1. What is the share of the parties in the suit premises? (Onus on the parties)

2. Whether the “Will” dated 5th July 2006 executed by late Sh. Shiv Charan Lal Jain is a legal and valid document? (OPP)

3. Whether the suit is not maintainable in view of the registered gift deed dated 17th November 1986 executed by late Sh. Shiv Charan Lal Jain in favour of Sh. Kartar Chand Jain, the predecessor-in-interest of the defendant nos.1-3? (OPD 1-3).

4. Whether the gift deed dated 17th November 1986, purpo