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IN THE HIGH COURT OF DELHI AT NEW DELHI
V.K.Jain, J.
Rajendra Shanker - Appellant
Versus
Devendra Shanker - Respondent
CS(OS) 985/2002 & CS(OS) 1701/2006, CS(OS) 1702/2006
Decided On : 05-12-2011
Civil Procedure Code, 1908 - Order 2 Rule 2 – Proof of will – Probate petition – Will was challenged – Burden of proving a will lies on the propounder of the will – Testator had signed the will and had put his signature out of his own free will – One has to prove testator had sound disposition of mind – Able to under stand the nature and effect of what he was doing – It has been proved by two common witnesses – Court compared the signature of the testator in both the will – Found signed by one and the same person – No adverse evidence advanced by the objector – Will set up stands duly proved.
Partition - HUF Property – Plaintiff is in constructive possession of the house and had been continuously in actual possession of the disputed property – Seeking partition of the estate of the late father comprising of house No. 104, Jor Bagh – Contended by the objector, said will is forged and fabricated documents – Income tax return of the HUF shows other HUF properties other than house No. 104, Jor Bagh – They are not immovable properties – Held blending does not require any physical mixing of self acquired property with the jointly held property – The requirement being only to abandon the individual right in the self acquired property and share – That right with the properties of the HUF.
V.K. Jain, J.
By this common judgment I shall dispose of all the three Suits referred above two of which are Probate Petitions (registered as suits) that were initially filed before the District Judge, Delhi but were withdrawn to this Court vide order dated 22nd August, 2005 to be tried along with the suit CS(OS) No. 985/2002. Vide order dated 6th July, 2007 all the three matters were consolidated and it was directed that evidence will be read in all three matters.
2. Suit CS(OS) No. 985/2002 has been filed by Shri Rajender Shanker against his brother Shri Devendra Shanker seeking partition of the estate of their father late Shri Damodar Dass Mathur alleged to be comprising of house No. 104, Jor Bagh, New Delhi, investments in FDRs, Units, Shares, jewellery, goods etc. it is alleged in the plaint that late Shri Damodar Dass Mathur died intestate on 7th February, 1995 leaving the plaintiff and the defendant as his class I legal heirs. It is also alleged that after the death of Shri Damodar Dass Mathur the defendant took custody of jewellery, household goods and documents relating to investments made by him. It is further alleged that the plaintiff being co-owner is in constructive possession of the house and has also been continuously in actual possession of a part of that property. The plaintiff has therefore sought a decree for partition of house No. 104, Jor Bagh, New Delhi as also the moveable properties belonging to his father late Shri Damodar Dass Mathur. He has also sought rendition of accounts calling upon the defendant to disclose particulars of moveable assets of the deceased and render accounts. CS(OS) No. 1701/2006 is a petition filed by Shri Davendra Shanker (defendant in Suit CS(OS) No. 985/2002) seeking probate of the Will dated 26th April, 1994 alleged to have been executed by late Shri R.D. Mathur (brother of his father Shri Damodar Dass Mathur) whereas suit CS(OS) No. 1702/2006 is the petition filed also by Shri Devendra Shanker seeking probate of Will alleged to have been executed by his father late Shri Damodar Dass Mathur on 12th April, 1994.
3. In his objections to the petitions seeking probate, Shri Rajender Shanker, plaintiff in suit CS(OS) No. 985/2002 disputed the Will set up by the petitioner and claimed the same to be forged and fabricated documents. It has also been alleged by him that property bearing house No. 104, Jor Bagh, New Delhi as also the moveable properties subject matter of the proceedings were properties of the HUF comprising of Shri Damodar Dass Mathur, Shri R.D. Mathur, Shri Devendra Shanker and he himself i.e. Shri Rajender Shanker and therefore Shri R.D. Mathur could not have executed the Will dated 26th April, 1994 propounded by the petitioner. In his objections to the petition seeking probate of the Will alleged to have been executed by late Shri Damodar Dass Mathur, it is alleged that since the aforesaid properties were owned by the HUF comprising of Shri Damodar Dass Mathur, Shri R.D. Mathur, Devendra Shanker and Rajender Shanker, Shri Damodar Dass Mathur could not have executed the Will set up by the petitioner.
4. The following issues were framed on the pleadings of the parties:
1.
Whether the suit of the plaintiff is barred under Order 2 Rule 2 of the CPC? - OPP
2.
Whether the defendant is the owner of ground floor and first floor of the suit property as per the Will dated 26th April, 1994 executed by late Shri R.D. Mathur and Will dated 12th April, 1994 executed by Shri Damodar Dass? - OPD
3.
Whether the Will executed by Shri Damodar Dass and late Shri R.D. Mathur are legal and valid and have been executed in accordance with law? - OPD
4.
Whether the plaintiff is entitled for a decree of partition and rendition of accounts? - OPP
5.
Relief.
5. In his Written Statement in suit CS(OS) No. 985/2002 Shri Devendra Shanker has taken a preliminary objection that the suit is barred under Order 2 Rule 2 of CPC since he has failed to sue for possession. On merits, it is alleged that vide Will dated
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