In partition suits where defendants' claims can resolve the matter entirely, courts may direct them to lead evidence first per Order 18 Rule 1 CPC.

JUDGMENT

Mini Pushkarna, J.

I.A. No. 4997/2022 (on behalf of plaintiff under Order XVIII Rule 1 read with Section 151 of CPC)

1. This application seeks a direction to defendant nos. 3 and 1 to lead their evidence first instead of the plaintiff doing so.

2. Brief facts of the case are that the plaintiff is one of the daughters of late Sh. Devender Nath Sharma and has filed the present suit for partition, injunction, mandatory injunction and rendition of accounts claiming 1/6th share in the properties and assets owned by her late father. In the plaint, the plaintiff averred that the father of the parties had expired on 17.09.2016 without a Will. Thus, it was claimed that the parties to the suit who are all legal heirs of late Sh. Devender Nath Sharma are in joint possession of the following properties, from which the share is claimed by the plaintiff ;

a) Free hold residential property D-14-A/18, Model Town, Delhi-110009.

b) Commercial Flat No.203, K-1 Building, 412 Gurgaon Mehrauli Road, Sector 14, Gurgaon, Haryana.

c) Plot No.A-12, Jhilmil lndustrial Area, G.T. Road Shahdara, Delhi-110032.

3. On the other hand, defendant no. 1, who is brother of the plaintiff has stated in his written statement dated 13.12.2017 that there was an unregistered Will dated 12.07.2016 drawn by father of the parties, by which their father had bequeathed his residential property bearing No. D-14-A/18, Model town, Delhi-110009 and commercial flat no. 203, K1 Building, 412, Gurgaon Mehrauli road, Sector-14, Gurgaon, Haryana to the defendant no. 1 exclusively. The defendant no. 1 had further submitted in his written statement that the father of the parties had revoked his earlier Will dated 05.09.2014.

4. Contrary to the aforesaid facts, the written statements filed on behalf of defendant no. 2 and defendant no. 3, sisters of the plaintiff and defendant no. 1, stated that their father had executed a registered Will dated 15.01.2013. In this Will their father had given a fair share of his properties and assets to his daughters and also to defendant no. 1. Their father subsequently executed another registered Will dated 05.09.2014 in which he had given a similar share of his property and assets to his daughters as in the Will dated 15.01.2013 and also to defendant no. 1 with slight modification. The original of the Will dated 05.09.2014 was given by their father to Sh. Anil Bagai, resident of 42, Bungalow Road, New Delhi who was the chartered accountant of their late father. This fact was disclosed to the defendant no. 3 by her late father. The chartered accountant was instructed to declare the Will to all the children of late Sh. Devender Nath Sharma after his demise.

5. In view of the pleadings and the respective stands of the parties, the following issues were framed by this Court vide order dated 12.07.2019:

"1. Whether late Shri Devender Nath Shatma legally and validly in a sound disposing mind executed his last Will and Testament dated 12.07.2016? It so, its effect? OPD-1

2. Whether late Shri Devender Nath Sharma validly and legally executed his last Will dated 5.9.2014? If so, its effect? OPD3

3. Whether the relinquishment deed dated 17.3.2008 pertaining to the industrial plot No.12 Block A, Jhilmil Industial Area, G.T.Road, Shahdara is void ab initio and not binding on the plaintiff? OPP

4. Whether the plaintiff has any share in the suit properties, namely, the commercial flat No.203, K-1 Building 412 Gurgaon Mehrauli Road, Sector-14, Gurgaon; plot at Jhilmil Industial Area, Shahdara Delhi and; property at Model Town, Delhi? If so its effect: OPP

5. Whether the present suit has not been val