An oral family arrangement must be proven by clear and convincing evidence. Possession of property by one co-owner is not adverse to the rights of the other co-owners unless it is hostile or exclusive. A Will is valid if it is executed in accordance with the requirements of the law. A Will cannot affect the share of a deceased person's property that has already devolved upon his legal heirs.

Headnote:
The suit property was jointly owned by the deceased Mr. Savitri Prasada and his wife Mrs. Dayavati. Upon Mr. Savitri Prasada's death, his share in the property devolved upon his legal heirs, including his son Brigadier (Retd.) Shyam Prasada. However, Mrs. Dayavati claimed exclusive ownership of the property, relying on an alleged oral family arrangement and her possession of the property. The Court held that the alleged oral family arrangement was not proven and that Mrs. Dayavati's possession of the property was not adverse to the rights of the other legal heirs. The Court also held that the Will executed by Mrs. Dayavati, bequeathing the entire property to her son Mr. Arun Prasada, was valid, but that it could not affect the share of Mr. Savitri Prasada, which had already devolved upon his legal heirs. The Court decreed partition of the property, allotting 1/6th share to Brigadier (Retd.) Shyam Prasada and his siblings, and the remaining 5/6th share to Mr. Arun Prasada.
Fact of the Case:

The suit property was jointly owned by Mr. Savitri Prasada and his wife Mrs. Dayavati. Upon Mr. Savitri Prasada's death, his share in the property devolved upon his legal heirs, including his son Brigadier (Retd.) Shyam Prasada. However, Mrs. Dayavati claimed exclusive ownership of the property, relying on an alleged oral family arrangement and her possession of the property.
Finding of the Court:

The Court held that the alleged oral family arrangement was not proven and that Mrs. Dayavati's possession of the property was not adverse to the rights of the other legal heirs. The Court also held that the Will executed by Mrs. Dayavati, bequeathing the entire property to her son Mr. Arun Prasada, was valid, but that it could not affect the share of Mr. Savitri Prasada, which had already devolved upon his legal heirs.
Issues: 1. Whether there was an oral family arrangement under which Brigadier (Retd.) Shyam Prasada and his siblings relinquished their share in the suit property in favor of Mrs. Dayavati. 2. Whether Mrs. Dayavati's possession of the property was adverse to the rights of the other legal heirs. 3. Whether the Will executed by Mrs. Dayavati was valid. 4. Whether the Will could affect the share of Mr. Savitri Prasada, which had already devolved upon his legal heirs.
Ratio Decidendi: 1. An oral family arrangement must be proven by clear and convincing evidence. 2. Possession of property by one co-owner is not adverse to the rights of the other co-owners unless it is hostile or exclusive. 3. A Will is valid if it is executed in accordance with the requirements of the law. 4. A Will cannot affect the share of a deceased person's property that has already devolved upon his legal heirs.
Final Decision: The Court decreed partition of the property, allotting 1/6th share to Brigadier (Retd.) Shyam Prasada and his siblings, and the remaining 5/6th share to Mr. Arun Prasada.

JUDGMENT

Rajiv Shakdher, J.

Preface:

1. The captioned suits and the testamentary case are inter-related and involve members of the family of one, Mr. Savitri Prasada and, hence, will be decided by a common judgement. For the sake of convenience, the genealogy of Mr. Savitri Prasada is shown hereafter.

2. Thus, the parties will be referred hereafter by their names unless the context requires otherwise. Furthermore, Mrs. Dayavati and Mr. Arun Prasada will be collectively referred to as the contesting defendants while the Legal Representatives [in short "LRs"] of Mr. Aditya Prasada, LRs of Mrs. Sudha Garg and LRs of Mrs. Rekha Garg will be referred to as the supporting defendants.

3. The two suits i.e. CS (OS) 1113/2008 [in short "2008 suit"] and CS (OS) 3452/2014 [in short "2014 suit"] seek, essentially, the partition of an immovable property described as plot number 12, Anand Lok, New Delhi [hereafter referred to as the "subject property"].

3.1. The reason that two suits have been filed qua the same immovable property is on account of the fact that when the first suit was filed in 2008, partition was sought of a portion of the subject property i.e. 396.65 sq. yards out of a total of 793.30 sq. yards [hereafter referred to as the "suit property"]. The partible portion i.e. the suit property, according to Brigadier (Retd.) Shyam Prasada i.e. the plaintiff in the 2008 suit, then, was the 50% share which was co-owned by Mr. Savitri Prasada along with his wife Mrs. Dayavati.

3.2. However, during the pendency of the 2008 suit, Mrs. Dayavati expired, which then led to the institution of the second suit i.e. the 2014 suit to seek partition of the remaining 50% of the subject property that fell to her share.

3.3. Since Mrs. Dayavati had executed a Will dated 09.11.1992 whereby the subject property, in its entirety, was bequeathed in favour of one of her sons i.e. Mr. Arun Prasada, he instituted the third proceeding which is the testamentary case no. 23/2014 [hereafter referred to as the "testamentary case"].

3.4. Apart from the prayer for partition, in the 2008 suit, whereby, Brigadier (Retd.) Shyam Prasada claims 1/7th share out of his deceased father share admeasuring 396.65 sq. yards i.e. the suit property, there is also a prayer for rectification of a conveyance deed dated 27.03.2000 - this conveyance deed was executed by the Delhi Development Authority [DDA] in favour of Mrs. Dayavati after the subject property was converted from leasehold to freehold.

3.5. The rectification sought, then, was for inclusion of the name of Brigadier (Retd.) Shyam Prasada and his siblings i.e. defendant nos. 2 to 6 in the 2008 suit along with Mrs. Dayavati; who was alive, at that juncture. Besides this, a prayer was also made, in the very same suit, for a decree for the rendition of accounts against Mrs. Dayavati and Mr. Arun Prasada in respect of shares, debentures, FDRs, bank accounts possessed by the deceased Mr. Savitri Prasada and a consequent share in the same.

3.6. Since on 14.02.2014, Mr. Arun Prasada had moved the testamentary case in which he sought probate of the Will dated 09.11.1992 and the codicil dated 24.02.2000 which was executed by Mrs. Dayavati, on 10.11.2014, the second suit i.e. the 2014 suit filed by Brigadier (Retd.) Shyam Prasada came to be moved before this Court. In this suit, Brigadier (Retd.) Shyam Prasada not only sought partition of the mother's share i.e. Mrs. Dayavati's share admeasuring 452.50 sq. yards but also sought the relief that the Will dated 09.11.1992 and the codicil dated 24.02.2000 be declared null and void.

3.7. This relief was pivoted on the assertion that Mrs. Dayavati, before her death, which occurred on 03.10.2013, had not made a testamentary disposition. In addition to these reliefs, Brigadier (Retd.) Shyam Prasada, in the 2014 suit, also sought a decree for the rendition of accounts against Mr. Arun Prasada qua shares, debentures, fixed deposits and bank accounts held by Mrs. Dayavati and a consequen