* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 11.12.2025 Judgment pronounced on:16.12.2025 + FAO 247/2025 & CM APPL. 55668/2025 ANUPMA MITRA .....Appellant Through: Ms. Jasmine Damkewala and Mr.

Divyam Khera, Advocates.

versus AMIT MITRA (DECEASED) THROUGH LR PRERNA SEEMAR KALRA .....Respondent Through: Mr. Samman Vardhan with Mr. Shrey Gupta, Ms. Khsuhi, Ms. Priyam Tiwari, Ms. Anshika and Ms. Rukhshaar Saifi, Advocates.

CORAM:

HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA

JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. The present appeal under Order XLIII of the Civil Procedure Code, 1908 (the CPC) has been filed by the defendant in CS No. 93/2020 on the file of the learned Additional District Judge, South District, Saket Courts, Delhi, aggrieved by the order dated 01.07.2025 by which an application under Order XXII Rule 3 and Rule 10 CPC filed by the respondent herein claiming to be the legal representative of the plaintiff based on a Will was allowed.

2. In this appeal, the parties herein shall be referred to as described in the plaint.

3. Brief facts necessary for the adjudication of the appeal are as follows: The plaintiff instituted CS No. 93/2020 seeking partition, rendition of accounts, and separate possession of the immovable property bearing B-77, Freedom Fighters Enclave, Neb Sarai, New Delhi, asserting an undivided 50% share in the said property, the remaining half being owned by his sister, the defendant. During the pendency of the suit, an interim order was passed restraining both parties from creating third-party interests or alienating the suit property. Subsequently, on 15.12.2023, the trial court passed a preliminary decree for partition directing partition of the property by metes and bounds and allowing one half share each to the plaintiff and the defendant.

3.1. During the pendency of the proceedings, the sole plaintiff died. An application under Order XXII Rule 3 read with Rule 10 CPC was filed by the respondent herein seeking substitution. According to her, the right to sue has survived and that she should be brought on record as the plaintiff’s legal representative relying on a registered Will dated 11.11.2022, by which the plaintiff bequeathed his 50% share in the suit property to her. She also relied on an Agreement to Sell dated 06.09.2021, under which the plaintiff is stated to have agreed to sell his share in the property to her for consideration, which she claimed have been paid.

3.2. The defendant opposed the application by contending that she was the sole legal heir of the plaintiff, who died unmarried and issueless. She alleged that the documents relied upon by the applicant/respondent were not genuine and had been obtained when the plaintiff was seriously ill and vulnerable. She referred to a handwritten note dated 23.12.2023, said to have been written by the plaintiff in hospital, in which he expressed that he did not wish to continue the litigation and that he was under pressure from the applicant and others. The execution of the Will was denied.

4. The trial court vide the impugned order allowed the application for substitution by holding that it was sufficient for the applicant/respondent to show a prima facie case to represent the estate of the deceased. The trial court treated the registered Will, placed on record as adequate for substitution. Aggrieved, the defendant has come up on appeal.

5. It is submitted by the learned counsel for the defendant/appellant that the trial court erred in allowing substitution merely on the basis of a registered Will without requiring the applicant to first prove its genuineness in accordance with law. She relies on the decisions in Janak Datwani v. Anand Datwani, 2025 SCC OnLine Del 6796, and Dhani Ram (D) through LRs v. Shiv Singh, 2023 SCC OnLine SC 1263, to contend that mere registration of a Will raises only a rebuttable presumption and, in the absence of probate or letters of administration, no enforceable right can be claimed under the Will, particul