The main legal point established in the judgment is the validity of a registered Will and the entitlement of legal heirs to continue a suit based on the Will.

Prathiba M. Singh, J.

1. Late Sh. Ram Singh Maini (hereinafter Plaintiff) filed a suit of mandatory injunction against his son Sh. Harjeet Singh Maini (hereinafter Defendant) in respect of the First Floor of property bearing no. A-266, New Friends Colony, New Delhi. The said suit was decreed by the Trial Court on 23rd August, 2016 in the following terms :

“23. Plaintiff is entitled for decree of mandatory injunction against the defendant and defendant is directed to remove all his belongings from the suit property i.e. first floor of property bearing no. A-266, New Friends Colony, New Delhi and to grant the possession of the premises in dispute to the plaintiff as shown in red in the site plan annexed with.”

2. This suit was instituted on 29th October, 2001. The case in the plaint is that the Plaintiff was a sub-lessee being a member of the New Friends House Building Co-operative Society Ltd. which was the lessee of the said plot of land. A perpetual lease deed was executed in favour of the Plaintiff upon which the Plaintiff raised a three storeyed building. The Plaintiff got the leasehold property converted into freehold. According to the plaint, he had allowed the Defendant to occupy the First Floor of the property as a lessee. The Plaintiff pleads that the Defendant did not conduct himself properly with the Plaintiff and his wife, i.e., mother of the Defendant. As per the plaint, the mother had passed away due to the ill-treatment given to her by the son. Even after her death, he continued to have a hostile attitude. The Plaintiff gave a public notice dated 1st December, 1994 (Ex. PW1/DA) disowning his son - the Defendant. When his misbehaviour continued, notice dated 25th September, 2001 was got served by the Plaintiff asking the Plaintiff to remove his belongings from the property.

3. The suit thereafter came to be filed for mandatory injunction directing the Defendant to remove all his belongings from the premises in dispute and placing the Plaintiff in possession of the First Floor of the suit property. In support of the plaint, a certified copy of the conveyance deed Ex.P-7 was placed on record. The legal notice along with receipt and AD card were exhibited as Ex.P-1 to Ex.P-3. The Second Floor of the property had been sold during the life time of the father on September, 2003.

4. Written statement was filed by the Defendant claiming that the plot was purchased by the Plaintiff out of funds belonging to the father of the Plaintiff and hence the Defendant had a share in the same. The Defendant also claimed that he had given Rs.30,000/- for raising construction on the First Floor. The Defendant also claimed that in 1983-84, when the Defendant’s younger brother, Sh. Paramjit Singh Maini was to be married, an oral partition was entered into by which it was decided that the first floor would fall in the share of the Defendant. It was claimed that there were documents executed by the Plaintiff expressly admitting that the property was a family property. He submitted that his mother died due to a brain tumour and that he had performed her last rites. The Defendant also claimed that he had been in possession of the First Floor of the property since 1983.

5. In the replication, the Plaintiff stated that his father Late Sh. Sardar Mehar Singh had passed away in February, 1973. It was categorically claimed that the Plaintiff was in employment in different organisations till his retirement and that he became a member of the New Friends House Building Co-operative Society Ltd., in the 1960s. He was an employee of the Intelligence Bureau and he had paid the instalments for the membership of the society out of his own funds. The contribution by the Defendant was completely denied by the Plaintiff.

6. The following issues were framed in the suit on 9th December, 2002 :

“1. Whether the present suit is not maintainable in the present form? (OPD)

2. Whether the present suit is not properly valued for the purpose of court fees and jurisd