An attesting witness's prior admissions regarding property ownership in a Will can bar her from being deemed a necessary party in a partition suit under the Code of Civil Procedure.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done in physical Court. Hybrid mode is permitted only in cases where permission is being sought from the Court.

2. The present petition arises out of the impugned order dated 28th May, 2019 passed by the Ld. ADJ-11 (Central), Tis Hazari Courts, Delhi in CS No.184/2018 titled "Subhash Sahni & Anr. v. Tarun Sahni & Ors." (hereinafter "Trial Court"). By the impugned order, the application under Order I Rule 10 CPC filed by the Petitioner has been rejected by the Trial Court. The operative portion of the impugned order reads as under:

"This Court has gone through the record carefully. The plaint is bereft of any pleadings regarding existence of HUF. The sale deed dated 9.12.1998 in respect of suit property was executed between previous owner Sh. Inderjit Singh Bajaj and purchaser namely Shyam Sunder Sahni, Ramesh Sahni and Subhash Sahni. It is a registered Will.

Clause 4 of it states that possession of the ground floor is with a tenant namely Peshawar Sweets Bhandar but as to how it is related with rights and interest of the applicant is not clarified anywhere in the application at hand or even in the rejoinder filed by the applicant.

The status might have been different if the applicant was in a position to challenge the Will of Shyam Sunder Sahni executed on 17.3.2015 by which he bequeathed his partnership share in the ratio of 33.33% each later reduced to 16.33%, on his son Tarun Sahni to the exclusion of all his legal heirs including his wife. Admittedly, the applicant is attesting witness to this Will. Not only the above, she furnished an affidavit (Page 45 and 46 of the paper book) in the probate proceedings pending before Hon'ble High Court of Delhi affirming the Will.

In Matadeen Roy Vs Mussodun Singh (1868) 10 W.R. (C.R.) 293, the implication of attestation made by one brother made in a document executed by another brother. The observations made are; "When the plaintiff put his name as a witness to his brother's signature to a deed conveying the whole of the property, the Court might reasonably infer that he knew that his brother was selling the whole of the property. If he knew that his brother was selling the whole of the property and his own, and allowed him to do so without objection, it would be evidence against him either that the whole property did belong to his toother or that he was acquiescing in his brother's act of selling the whole." This again is a clear authority for the proposition that attestation by a person, who has an interest, raises the prima facie presumption that he knows the contents and acquiesces in the disposition of the property by the deed he attests."

This judgment has been cited with the approval in Thangamani Vs Ganesan dated 23.11.2014 passed by the Hon'ble Madras High Court in Appeal (MD) No. 136 of 2010 and M.P (MD) No. 2 of 2010.

The same analogy will apply now to the present applicant.

It being so, she cannot be said to be either a necessary or proper party without whom the fact in issue cannot be adjudicated upon. Hence, the application is dismissed."

3. The said application arises out of the suit seeking partition of immovable property and consequential relief of permanent injunction, instituted by the Plaintiffs/Respondents herein, Mr. Subhash Sahni and Mr. Saket Sahni, against the legal heirs of Late Sh. Shyam Sunder Sahni and Late Ramesh Chand Sahni. The suit seeks partition of immovable property bearing No. 114, Shankar Road Market, New Rajinder Nagar, New Delhi. (hereinafter "suit property"). As per the Respondents, the suit property, is jointly in the name of three brothers, namely, Late Sh. Shyam Sunder Sahni, Late Sh. Subhash Chand Sahni and Late Sh. Ramesh Chand Sahni. It is the case of the Respondents that all the three brothers are owners of 1/3rd share in the suit property. Reliance is placed upon the Will dated 17th March, 2015 executed by Late Sh. Shyam Sunder Sahni.

4. In the suit, an application has bee