The presumption of correctness is attached to partition proceedings until declared void, and the genuineness of a Will and the mental state of the testator can only be determined on appreciation of evidence.

JUDGMENT

Manjari Nehru Kaul, J. - The instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 01.11.2021 passed by Civil Judge (Junior Division), Gurugram, which was upheld by the lower appellate Court vide order dated 31.03.2022.

2. Mr. Amit Jain, learned senior counsel for the petitioner contends that it was a matter of record that service upon the petitioner in the partition proceedings was not effected and infact the aforementioned proceedings were carried out behind his back. He argued that in the partition proceedings, the petitioner was initially proceeded against ex-parte vide order dated 11.10.2013, which was later set aside vide order dated 17.11.2016, on a handwritten application moved by an Advocate who had not even been engaged by the petitioner. He further contends that on 16.01.2017 Sanad Takseem was ordered to be prepared on the basis of a consent statement made by the same Advocate, who put in an appearance on behalf of the petitioner without being appointed by him. While drawing the attention of this Court to the application filed by the Advocate for setting aside the ex-parte order (Annexure P3) and the power of attorney (Annexure P4), learned senior counsel vehemently contends it is clear even to the naked eye that the alleged signatures of the petitioner on both these documents do not match with his actual signatures.

3. While inviting attention of this Court to the Rapat Roznamcha No.864 annexed as Annexure P5, learned senior counsel submits that strangely date of the order vide which the warrants of possession qua the land in dispute were issued by the Assistant Collector, Second Grade has not been mentioned therein. He thus, submits that the collusion between the private defendants and the defendant-revenue authorities is further apparent and discernible from the fact that when the petitioner applied for obtaining certified copies of the files of partition proceedings, his application was returned with the report that there were no entries with respect to those case files in the register. Learned senior counsel submits that interestingly, the respondents produced the certified copy of the files of partition proceedings along with their written statements.

4. Learned senior counsel further vehemently argues that the alleged Will dated 06.08.2015 was shrouded in suspicious circumstances as there was ample evidence on record to show that Murti Devi was suffering from serious ailments, and hence, she was not in a sound disposing mind to execute the alleged Will. He submitted that in the circumstances, it could not be said that Murti Devi executed the said Will on 06.08.2015 out of her free will and in full consciousness, as she was bedridden and suffering from several medical ailments. Learned counsel, in support, has invited the attention of this Court to the medical record of Murti Devi (Annexure P8) as per which Murti Devi remained admitted in the hospital for almost three months, from 20.06.2015 to 11.09.2015. Learned senior counsel further vehemently submits that the Courts below failed to consider that the alleged Will was registered manually despite the fact that all the documents now-a-days are being registered digitally through computers. He has also argued that the thumb-impressions of the testator on the alleged Will were clearly smudged and indecipherable, along with the fact that no independent witness had attested the Will. He thus, submits that all these circumstances when seen in totality, raises a big question about the authenticity and genuineness of the Will in question.

5. He still further submits that the respondents had obtained a license from the Department of Town and Country Planning, Haryana for setting up an affordable plotted colony on specific Khasra numbers out of the joint land. He submits that the respondents were in the process of changing the nature of the suit property. Hence, if they were not restrained from doi