The main legal point established in the judgment is the determination of entitlement based on a valid will and the court's jurisdiction over agricultural properties.

JUDGMENT :

YOGESH KHANNA, J.

1. This appeal is preferred by the appellant against an order dated 16.04.2004 passed by the learned Additional District Judge, Tis Hazari Courts, Delhi (hereinafter referred as the learned ‘Trial Court’) in CS No.147/06/1994 whereby the application under Order IX Rule 7 CPC filed by appellant was dismissed and also against the impugned judgment and preliminary decree dated 04.09.2008 passed by learned Trial Court in said suit.

2. Before coming to the impugned orders, let me state in brief the facts of the case.

3. The respondent No.1 had filed this suit for partition, possession and rendition of accounts with respect of the following properties:-

"(i) Constructed House No. IV/855, Bhola Nath Nagar, Shahdara, Delhi measuring 200 sq. yards;

(ii) Constructed House No. 131, Gali Ganga Ram, Chotta Bazar, Delhi measuring 34 sq. yards;

(iii) ½ share in the land measuring 2352 sq. yards comprising Khasra No.57 and 58, situated at Kabir Nagar, Baberpur, Shahdara, Delhi;

(iv) Agricultural land forming part of Khasra No.23/6/1 measuring 4 Bighas, situated at Village Deeg Tehsil Ballabhgarh, District Faridabad (Haryana);

(v) Fixed Deposit Receipts, bank balances and jewelleries and;

(vi) Fixed Deposit Receipts, bank balances and jewelleries in the hand of the defendant no.3 Smt.Bishno Devi."

4. As per the plaint, all these properties were in possession, power and control of one Shiv Narain which came to him either by way of acquisition or by way of ancestral property which were allegedly put by him in a common pool and hence such properties became ancestral properties of a joint Hindu family. Sh.Shiv Narain had three sons and three daughters. His three sons were the plaintiff, the defendants No.1 & 2; his daughters were defendants No.4 to 6 and defendant No.3 was the widow of Shiv Narain, who also died on 04.07.2000.

5. The defendants No.3, 4 and 6 filed their joint written statement on 06.03.1996, but later they abstained themselves from the proceedings and were ultimately proceeded ex parte vide order dated 12.07.1999. The defendant No.5 was proceeded ex parte on 13.02.1996; and whereas the defendants No.1 & 2 were proceeded ex parte on 12.07.1999.

6. In his plaint, the respondent No.1/plaintiff had alleged his father had left behind a Will dated 12.11.1990 duly registered on 14.1.1990, with the Registrar of Properties, Seelampur, Delhi vide registration No.4493 dated 15.11.1990, additional book No.3, Volume No.272 from pages No.134-141. In the said Will Shiv Narain had bequeathed his properties viz House No. IV/855, Bhola Nath Nagar, Shahdara, Delhi as also House No.131, Gali Ganga Ram, Chotta Bazar, Delhi to his three sons i.e. 1/3rd to each of them viz the appellant, respondents No.1 and 2. These two properties are only relevant as other properties were left out in the impugned judgment; since no movable properties could either be found/proved and agricultural properties being beyond the purview of this Court.

7. It is the case of the appellant in the year 1988 late Shiv Narain had executed a Will dated 12.05.1988 in favour of his wife/defendant No.3, who then executed an irrevocable GPA dated 02.07.1992 in favour of the appellant and consequently, a sale deed was registered in his favour. Hence it is alleged the appellant is an absolute owner of the Bhola Nath Nagar property. Secondly, Will dated 14.11.1990 is alleged to be forged document, hence need not be relied upon. Thirdly, it was argued since the plaintiff/respondent No.1 herein never entered into the witness box, the appellant was denied of his right to cross-examine respondent No.1 hence the proceedings have been vitiated.

8. Before coming to the contention of the appellant, it would be appropriate to look into the observations made in para Nos.8.2 to 8.5 of the impugned judgment noted below:-

“8.2 On the plain reading of pleading, it can be gathered at glance that the plaint does not reflect constitution of Hindu undivided family or joint Hindu family of de