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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
Raj Prakash Nayyar - Appellant
Versus
Om Parkash Nayyar - Respondent
RFA Nos. 600 of 2018 & 606 of 2018
Decided On : 31-07-2018
CPC - Civil Procedure - 96 - The court discussed the validity of a registered Will dated 18.9.2004 in a partition suit and held it to be valid. The court also dismissed the suit seeking a declaration of the invalidity of the Will. The judgment was made under section 96 of the Code of Civil Procedure 1908.
Fact of the Case:
The case involved a partition suit filed by Sh. Om Prakash Nayyar, which was decreed in favor of his maternal grandson Sh. Ajay Dhani. Another suit seeking a declaration of the invalidity of the registered Will was dismissed by the court.
Finding of the Court:
The court found the Will dated 18.9.2004 to be valid and dismissed the suit seeking a declaration of its invalidity. The court also dismissed the suit filed by the appellant Sh. Raj Kumar Nayyar.
Issues: The main issue was the validity of the Will dated 18.9.2004 executed by Sh. O.P. Nayyar in favor of Sh. Ajay Dhani.
Ratio Decidendi: The court relied on the deposition of the attesting witness and the legality of the Will's execution. It also considered the registration of the Will and the lack of evidence to disprove its validity.
Final Decision: The court dismissed the appeals as meritless and ordered the appellant to pay costs to respondent no.1/Sh. Ajay Dhani.
VALMIKI J. MEHTA, J.
Caveat No. 681/2018 in RFA 600/2018
Counsel appears for the caveator. Caveat accordingly stands discharged.
CM No. 2999/2018 (Exemption) in RFA 600/2018 CM No. 30347/2018 (Exemption) in RFA 606/2018
Exemptions allowed subject to just exceptions.
CMs stand disposed of.
RFA No.600/2018 & CM No.29990/2018 (stay) RFA No.606/2018 & CM No. 30346/2018 (stay)
1. These two appeals filed under section 96 of the Code of Civil Procedure 1908, CPC are filed against the common judgment of the Trial Court dated 17.3.2018 by which the trial court has decreed the suit filed by Sh. Om Prakash Nayyar (since deceased) now represented by his maternal grand-son Sh. Ajay Dhani in whose favour the subject registered Will dated 18.9.2004 Ex.PW2/D2 was made by Sh. Om Prakash Nayyar. The suit filed by Sh. Om Prakash Nayyar being the Suit No. 78374/2016 was a partition suit whereby the father Sh. Om Prakash Nayyar pleaded that he had 50% ownership rights in the suit property alongwith his son/defendant being the second floor Flat No. A-2/54, Varun Apartments, Sector-9, Rohini, Delhi on an area admeasuring 875 sq. ft. as shown in the site plan Ex.PW1/10. The second suit being Suit No.78375/2016 was filed by Sh. Raj Kumar Nayyar against Sh. Ajay Dhani seeking a declaration with respect to the invalidity of the registered Will Ex.PW2/D2. The suit filed by Sh. Raj Kumar Nayyar/appellant, has been dismissed by the impugned judgment. Therefore, the net effect is that the suit filed by the father Sh. Om Prakash Nayyar, now represented through Sh. Ajay Dhani has been decreed for partition giving ½ share to Sh. Ajay Dhani being the ½ share of Sh. O.P. Nayyar and the suit for declaration filed by the appellant herein Sh. Raj Kumar Nayyar was dismissed and thereby the Will Ex.PW2/D2 has been held to be valid.
2(i) The undisputed position which emerges on record is that the suit property was allotted in the joint names of the father Sh. Om Prakash Nayyar and the son Sh. Raj Kumar Nayyar. The father Sh. Om Prakash Nayyar however had claimed that he had purchased the entire property by making payment through cheques to the Varun Vihar Cooperative Group Housing Society and possession was given to the father Sh. Om Prakash Nayyar on 25.6.1991. I may note that the impugned judgment passes a decree for partition giving half share to the father Sh. Om Prakash Nayyar and half share to the appellant herein Sh. Raj Kumar Nayyar in view of the fact that as per the record the suit property is in the joint names of the father Sh. Om Prakash Nayyar and the appellant/Sh. Raj Kumar Nayyar.
(ii) The case of the father Sh. Om Prakash Nayyar when he filed the subject suit plaint for partition was that the since his wife, i.e the mother of the appellant was suffering from old age ailments, the appellant/son was invited by him to live with them in the suit property. However, within two years of shifting, the appellant/son and his family members started mistreating Sh. Om Prakash Nayyar and his wife (i.e the mother of the appellant) in various ways and resultantly the parents had to shift away from their own house to the house of their daughter Smt. Veena Dhani. The beneficiary of the subject registered Will dated 18.9.2004 Ex.PW2/D2 is the son of the daughter Smt. Veena Dhani namely Sh. Ajay Dhani. Sh. Om Prakash Nayyar in his plaint pleaded that he was diagnosed with blood cancer in 2004. In the plaint, it is pleaded by Sh. Om Prakash Nayyar himself that the subject registered Will dated 18.9.2004 was executed by him in favour of Sh. Ajay Dhani. On the pleading of existence of misconduct of son/appellant/the defendant no.1 in the partition suit, the father Sh. O.P. Nayyar had applied for partition of the suit Flat.
3. The appellant contested the suit for partition filed by the father Sh. Om Prakash Nayyar and pleaded that actually he had paid all the monies with respect to the allotment and maintenance of the Flat. It was further pleaded by the appellant that he sp
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