The judgment establishes the importance of meeting the legal requirements for proving a Will, the presumption of correctness of official acts, and the need for evidence to challenge a Will's validity.

VALMIKI J. MEHTA, J.

C.M. No. 924/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No. 24/2018

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellants, the legal heirs of the original plaintiff Sh. Harjit Singh and who were substituted legal heirs of the plaintiff Sh. Harjit Singh during the pendency of the suit, impugning the judgment of the Trial Court dated 12.9.2017 by which the trial court has dismissed the suit filed by the appellants for partition of the suit property bearing no. 3425/IX, Gali Mahabir, Gandhi Nagar, Delhi situated on a plot admeasuring 100 sq. yds.

3. The facts of the case are that the appellants/plaintiff pleaded that the mother of the parties late Smt. Gurbachan Kaur was the owner of the suit property having purchased the same in terms of the sale deed dated 4.9.1962. As per the appellants/plaintiff the mother Smt. Gurbachan Kuar expired intestate on 23.9.1994. The husband of late Smt. Gurbachan Kaur, father of the parties, also subsequently expired on 14.7.1998 intestate. Therefore there remained a total of four legal heirs of late Smt. Gurbachan Kaur being three sons and one daughter. One son Sh. Harjit Singh was the plaintiff in the suit with another son Sh. Surinder Singh being the defendant no.1. The third son Sh. Sukhwant Singh was defendant no.3 and the daughter Smt. Jasbir Kaur Manchanda was defendant no.2 in the suit. Accordingly it was pleaded that all the four parties to the suit were 1/4th co-owners of the suit property and therefore the suit property be partitioned giving the appellants/plaintiff his 1/4th share in the suit property.

4. Suit was contested by the respondent nos. 2 and 3/defendant nos.2 and 3. Respondent nos. 2 and 3/defendant nos.2 and 3 have relied upon the registered Will dated 23.4.1992 executed by late Smt. Gurbachan Kaur bequeathing the suit property to the respondent nos. 2 and 3/defendant nos.2 and 3. It is pleaded in the written statement of the respondent no.2/defendant no.2 that she along with respondent no.3/defendant no.3 used to live with her parents in the suit property. Appellants/Plaintiff and the respondent no.1/defendant no.1 got married and left the family home in 1970 whereas the respondent nos. 2 and 3/defendant nos.2 and 3 continued to stay with their parents and serve them. It was therefore pleaded that suit be dismissed as respondent nos. 2 and 3/defendant nos.2 and 3 were owners in terms of the Will dated 23.4.1992 of the mother Smt. Gurbachan Kaur.

5. After pleadings were complete, the following issues were framed:-

“1. Whether the writing dated 23rd April 1992 is the last Will and testament of Smt. Gurbachan Kaur, if so, to what effect?

2. If issue no.1 is proved against the defendants, whether the plaintiff is not entitled to claim partition of the property?

3. Whether the suit has been properly valued for the purpose of court fee and jurisdiction and proper court fee has been paid?

4. Relief.”

6. Issue no.1 with respect to the factum of due execution of the Will was proved on behalf of respondent nos. 2 and 3/defendant nos.2 and 3 by the depositions of the attesting witness Sh. Ramesh Vashistha who deposed as D3W2 and the respondent no.3/defendant no.3 who examined himself as D3W1, and thereby the Will of the mother dated 23.4.1992 is proved and exhibited as Ex.D3W1/1. The factum with respect to the respondent nos. 2 and 3/defendant nos.2 and 3 having proved the Will dated 23.4.1992 is found in terms of the following para of the impugned judgment:-

“8. xxxxx xxxxx xxxxx

As per Section 63 of the Indian Succession Act 1925, to prove a WILL, it is necessary that the WILL ought to be subscribed by the two witnesses and Section 68 of the Indian Evidence Act make it mandatory that at least one of the attesting witnesses shall prove the WILL by deposing in the Court. In the present case, defendant no. 2 and defendant no. 3 alleged that their mother Gur