* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : January 30, 2012 Judgment Pronounced on: February 10, 2012 + RFA(OS) No.28/2005 SUDERSHAN LAL MAINI ..... Appellant Through: Mr.Hari, Advocate and Mr.Sanjeev Tyagi, Advocate.

versus VIRENDER KUMAR MAINI & ORS. ….Respondents Through: Mr.R.L.Kohli, Advocate for R-1.

CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAJOG, J.

1. The dispute in the present appeal is between the family members/legal heirs of Late Sh.Mohan Lal Maini.

2. The genealogy tree of family of Late Sh. Mohan Lal Maini is as under:- Mohan Lal Maini I (Krishna Wanti) wife I --------------------------------------------------------------- I I I I I Roshan Virender Sudershan Satish Chander Prabha (Son) (Son) (Son) (Son) (Daughter)

I I Meena Ajay (Wife) (Son)

3. In the year 1997 the appellant filed a suit against the respondents for partition of three properties bearing Municipal Nos.B-13/A, A-2 and A-4, Kalkaji, New Delhi (hereinafter referred to as the „suit properties‟).

4. The appellant was the plaintiff and the respondents Nos.1, 2 and 3 were defendants Nos.1, 2 and 3 respectively in the suit. We shall be referring to the parties by their nomenclature in the suit.

5. It was pleaded in the plaint that Late Sh.Mohan Lal Maini who was the owner of the suit properties and he died intestate on 25.06.1972, leaving behind his wife Krishna Wanti, 4 sons named, Sudershan Lal Maini (plaintiff), Roshan Lal Maini, Satish K.Maini and Virender Kumar Maini (defendant No.1) and a daughter Chander Prabha (defendant No.2) as his legal heirs. Thus, his aforesaid legal heirs became entitled to 1/6th share each in the suit properties as per the provisions of Section 8 of the Hindu Succession Act, 1956. On 18.07.1972 the children of Late Mohan Lal Maini executed a relinquishment deed relinquishing their respective 1/6th share in the suit properties in favour of their mother Krishna Wanti (hereinafter referred to as the „deceased‟) who became the exclusive owner of the suit properties. Roshan Lal Maini died intestate on 20.04.1979 leaving behind his wife Meena Maini (defendant No.3) as his sole legal heir. The deceased died intestate on 19.01.1993 leaving behind 3 sons i.e. the plaintiff, the defendant No.1 and Satish K. Maini as also Meena Maini, the wife of her predeceased son Roshan Lal Maini and a daughter Chander Prabha (defendant No.2) as her legal heirs. Thereafter, Satish K. Maini expired on 25.02.1993 leaving behind no Class-I heir and in this manner the plaintiff claimed 1/4th share in the suit properties.

6. Whereas defendants No.2 and 3 chose not to contest and hence did not cause appearance to be made after they were served with summons in the suit and were hence proceeded ex-parte.

7. The defence taken by defendant No.1 was that the deceased had executed a Will (Ex.DY) dated 02.12.1992 where-under she had bequeathed the property bearing Municipal Nos.A-2 and A-4, Kalkaji, New Delhi in favour of the plaintiff and the rest had been bequeathed to him and his son.

8. In the replication filed, the plaintiff pleaded that Will Ex.DY dated 02.12.1992 was not executed by the deceased out of her own free will and accord. He pleaded that there was a reference in the said Will to an earlier Will dated 22.10.1992 and thus urged there was something more than what meets the eye qua the Will dated 02.12.1992. He pleaded that the deceased was not enjoying good health and was not in a state of sound disposing mind on the date of the execution of the will Ex.DY as she was suffering from the cancer of ovaries. That taking advantage of the ill-health of the deceased the defendant No.1 Virender Kumar Maini misled the deceased to believe that the earlier will Ex.DX is not valid and got executed the will Ex.DY, under which he and his son Ajay Saini were the major beneficiaries. In essence, it was alleged by the plaintiff that Will Ex.DY is a contrived document.

9. It be highlighted that the Will d