The central legal point established is the requirement for a valid attestation of a Will as per Section 63(c) of the Indian Succession Act.

1. The plaintiff is seeking partition of property bearing No. B-5/158, Safdarjung Enclave, New Delhi-110029, hereinafter referred to as ‘the suit property’.

2. The suit property was owned by late O.P. Tiwari who expired on 03rd August, 1999 leaving behind two sons, namely Shashank and Rajender and two daughters, namely Veena and Rani. Rani is the plaintiff whereas Shashank, Rajender and Veena are defendants No.1, 2 and 3 respectively.

3. According to the plaintiff, late O.P. Tiwari died intestate and the aforesaid property devolved upon the plaintiff and the defendants in equal proportion of 1/4th each.

4. According to Defendants No.1 and 2, late O.P. Tiwari left behind a registered Will dated 22nd March, 1996 by which the suit property devolved upon defendants No.1 and 2 in equal shares.

5. The following issues were framed by this Court on 29th January, 2014:

“1. Whether the subject matter property is the self-acquired property of the plaintiff’s father? OPP

2. Whether the plaintiff is entitled to the decree of partition against the defendants? OPP

3. Whether the plaintiff is entitled to 1/4th share in the suit property? OPP

4. Whether the alleged Will dated 22nd March (sic), 1996 was executed by the father of the plaintiff, namely, Late Sh. O.P. Tiwari (sic)? OPD

5. Relief”

6. The plaintiff appeared in the witness box as PW-1 and reiterated the averments made in the plaint. PW-1 deposed that she along with defendants No. 1 to 3 are the members of Hindu undivided family and their common ancestors are late O.P. Tiwari (father) and late Sarla Tiwari (mother). PW-1 deposed that the suit property was owned by her father, late O.P. Tiwari who constructed ground floor, first floor and barsati in 1974; she shifted to the barsati floor in 1993 on the request of her parents who were residing on the ground floor till their death; her parents suffered from dementia, forgetfulness and other old age related ailments. PW-1 further deposed that her father died intestate. PW-1 claimed to be very close to her father who shared all his confidential things/information with her. Defendant No.1 and his family shifted to the ground floor of the suit property after the death of the father. After the death of the father, the suit property was converted from leasehold to freehold in the name of the mother, Sarla Tiwari and all the parties gave their no objection to the mutation. Sarla Tiwari died intestate on 21st March, 2002. After the death of Sarla Tiwari, defendant No.2 occupied the first floor of the suit property which was let out to a tenant and defendant No.2 was collecting the rent. The plaintiff claims 1/4th share in the suit property according to the Hindu Succession Act.

7. Defendant No.1 appeared in the witness box as DW-1 and reiterated the averments made in the written statement. DW-1 deposed that the plaintiff was suitably compensated with articles, cash and jewellery, etc. at the time of her marriage and the deceased parents helped the plaintiff financially to build/purchase a house at AWHO Colony, Faridabad. The plaintiff was permitted by the parents to temporarily stay on the barsati floor of the suit property as she had to vacate her house which was on rent. The plaintiff was well aware of the Will dated 22nd March, 1996 of the father as she had filed objections to the application of defendants No.1 and 2 for mutation in Municipal Corporation. In cross-examination, DW-1 stated that he came to know of the father’s Will in 1998 when he retired from the Indian Army.

8. Defendant No.1 and 2 examined Lt. Col. (Retd.) P.D.P. Deo, Advocate as DW-2 who deposed that about 22 years ago, late O.P. Tiwari called him at his residence for some important work whereupon he went to the residence of late O.P. Tiwari where Lt. Col. Anand Jee was already present. Late O.P. Tiwari told DW-2 that he had written his Will and he wanted DW-2 and Lt. Col. Anand Jee to witness the Will to which he agreed. Late O.P. Tiwari brought a two page Will typed in Engl