Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Del) 73

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J
Kanta Sethi – Appellant
Versus
Hans Raj – Respondent
CS(OS) 2159/2002|TEST.CAS. 90/2014

Advocates:
For the Appellants/Petitioners: Pradeep Kumar Verma, Shellen Bajaj, Manak Budhiraja
For the Respondents: Abhinav Garg, Pallavi Raj, Pradeep Kumar Verma

Partition suits are non-maintainable without impleading all necessary legal heirs. Probate applications remain valid even years after the testator's death, as the right to prove a Will is a continuous legal right not strictly governed by residuary limitation provisions.

Headnote:(A) Civil Procedure Code, 1908 - Order I Rule 9 and 10 - Suit for partition - Maintainability - Non-joinder of necessary parties - Failure to implead all co-heirs renders a suit for partition non-maintainable, as the estate must be represented by all legal heirs for effective adjudication. (Paras 27, 29)

(B) Indian Succession Act, 1925 - Indian Evidence Act, 1872 - Section 68 - Execution of Will - Proof - Requirement of examining at least one attesting witness is sufficient under mandate of law - Exclusion of natural heirs in a Will does not, by itself, constitute a suspicious circumstance if the bequest is otherwise proven to be rational and voluntary. (Paras 51, 52, 54, 94)

(C) Limitation Act, 1963 - Article 137 - Probate petition - Limitation period - No period of limitation is prescribed for seeking grant of probate - Right to apply for probate is a continuous right that persists for as long as the necessity to prove the Will exists, and such right accrues when application becomes practically necessary. (Paras 83, 84, 85)

Facts of the case:
A daughter filed a suit for partition of immovable properties against her brother and nephew, claiming inheritance from her parents under the laws of intestacy. The defendants contested the claim, asserting that the properties were bequeathed to them through two registered Wills, one executed by the mother and the other by the father. During the pendency of the suit, the defendants initiated proceedings for the grant of probate of the father's Will. The plaintiff challenged the validity of the Wills, alleging suspicious circumstances, lack of soundness of mind of the testators, and delay in the probate process.

Findings of Court:
The court held that the partition suit was fatally defective for non-joinder of necessary parties, as the plaintiff had failed to implead all other legal heirs. Both Wills were found to be duly executed and attested, and no evidence was provided to support allegations of lack of mental capacity or invalid attestation. The probate petition was deemed within legal timeframes, rejecting the argument of limitation.

Issues: The main issues were whether a partition suit is maintainable without impleading all co-heirs; the standard of proof for valid execution of a Will; whether probate petitions are subject to strict limitation; and the impact of the exclusion of certain legal heirs from a testamentary disposition.

Ratio Decidendi: The court ruled that all co-sharers are necessary parties in a partition suit, and failure to join them precludes the court from granting relief. Regarding testamentary capacity, a Will remains valid when attestation requirements are met by at least one witness, and disinheritance of close relatives is not inherently suspicious when the testator acts with full comprehension. Furthermore, because probate is a legal duty to prove a Will, the right to apply is continuous, precluding arguments of time-barring.

Result: Suit for partition dismissed; petition for probate allowed.

Table of Content
1. consolidation and factual introduction of partition and probate proceedings. (Para 1 , 2 , 3 , 4)
2. defendant contentions, amendment of pleadings, and disputing estate ownership. (Para 5 , 6 , 7 , 8)
3. judicial framing of issues for partition and probate matters. (Para 9 , 15 , 16)
4. consolidation of trials regarding probate and property disputes. (Para 17 , 18 , 19 , 20 , 21 , 22)
5. non-joinder of necessary heirs renders a partition suit non-maintainable. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30)
6. improper valuation of suit for court fees necessitates dismissal. (Para 31 , 32 , 33 , 34 , 35 , 36)
7. validity of a will requires proving due execution under the indian succession act. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57)
8. probate petition limitation and proving testamentary capacity. (Para 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94 , 95 , 96)
9. hearsay allegations of a torn will are insufficient proof. (Para 97 , 98 , 99 , 100 , 101 , 102 , 103)
10. final order granting probate and dismissing partition claims. (Para 104 , 105 , 106 , 107 , 108 , 109 , 110 , 111 , 112 , 113 , 114 , 115 , 116 , 117)

JUDGMENT

AMIT BANSAL, J.

1. By way of this judgment, I shall decide the following:

i. CS(OS) 2159/2002 seeking partition of the immovable properties forming part of the estate of Late Smt. Krishna Wanti and Late Sh. Hans Raj Gulati, along with other ancillary reliefs.

ii. TEST.CAS.90/2014 seeking the grant of probate of the registered Will dated 30th May 2003, executed by Sh. Hans Raj Gulati.

PLEADINGS IN CS(OS) 2159/2002

2. In the plaint, it has been pleaded as under:

i. The plaintiff is one of the daughters of the Late Smt. Krishna Wanti and Late Sh. Hans Raj Gulati (defendant no.1). The defendant no.2, Sh. Sudesh Gulati is the brother of the plaintiff and the defendant no.3, Sh. Sanjay Gulati is the son of the defendant no.2.

ii. The mother of the plaintiff, Late Smt. Krishna Wanti was the owner of the shop No. 39, along with first floor, and 2nd Floor, Krishna Market, Kalkaji, New Delhi- 110019.

iii. The plaintiff’s mother gave her exclusive possession of the entire second floor of the aforesaid property for her consultancy business, with the defendants’ acquiescence.

iv. The defendants no.1 and 2 were living on the first floor of the suit property. The mother of the plaintiff was living on the first floor till her death on 30th September 2002. The mother of the plaintiff expired intestate.

v. The plaintiff lived on the second floor of the aforesaid property up to 21st November 2002, after desertion by her husband.

vi. On 21st November 2002, the plaintiff reported threats by defendant no.2’s wife, who had begun harassing her, and on 25th December 2002, the defendant no.2 and his wife broke in and physically assaulted the plaintiff in the suit property.

vii. The plaintiff locked the flat on the 2nd floor of the aforesaid property and lodged a police complaint on 16th December 2002.

3. The plaintiff, under the fear of dispossession by the defendants, filed the instant suit on 20th December 2002, claiming the following reliefs:

“a) That the preliminary decree for declaring the share of the plaintiff in the properties of her deceased mother and father may kindly be declared and possession be given to the plaintiff;

b) Cost of the proceedings may kindly be granted in favour of the plaintiff;

c) Any other relief which this Hon’ble Court may deem fit and proper also kindly be granted in favour of the plaintiff;”

4. Summons in the suit were issued on 6th January 2003, on which date the defendants were directed to maintain status quo with respect to the premises occupied by the plaintiff in the aforesaid property.

5. The defendants contested the present suit by filing a common written statement, in which it has

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2026 Supreme(Online)(Del) 73

IN THE HIGH COURT OF DELHI AT NEW DELHIAmit Bansal, JKanta Sethi – AppellantVersusHans Raj – RespondentCS(OS) 2159/2002|TEST.CAS. 90/2014

Partition suits are non-maintainable without impleading all necessary legal heirs. Probate applications remain valid even years after the testator's death, as the right to prove a Will is a continuous legal right not strictly governed by residuary limitation provisions.

Cases Referred (2)

IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J
Kanta Sethi – Appellant
Versus
Hans Raj – Respondent
CS(OS) 2159/2002|TEST.CAS. 90/2014