RFA 361/2004 Page 1 of 48

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: December 03, 2010

Judgment delivered on: 08.03.2011

RFA No. 361/2004

Smt. Lalita Sharma

……Appellant

Through: Mr. Alok Kumar, Advocate.

Vs.

Smt. Sumitra Sharma

……Respondent.

Through: Mr. J.R. Bajaj, Advocate.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may

be allowed to see the judgment?

Yes

2. To be referred to Reporter or not?

Yes

3. Whether the judgment should be reported

in the Digest?

Yes

KAILASH GAMBHIR, J.

*

1.

By this appeal filed under Section 96 of the Code

of Civil Procedure, 1908 the appellants seek to challenge the

judgment and decree dated 29.4.2004 passed by the learned

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trial court in a suit filed by the respondents for partition and

declaration which was decreed in favour of the respondents

and against the appellants.

2.

Brief facts of the case relevant for deciding the

present appeal are that Smt. Vidyawanti was the widow of

Sh. Brij Lal Sharma who was the owner of the property

bearing Quarter no.28/20, Old Rajinder Nagar, New Delhi

and after his death vide conveyance deed and lease dated

31.10.67 the said property was mutated in the name of Smt.

Vidyawanti. Smt. Vidyawanti died on 5.2.90 and was survived

by 4 sons and 1 daughter. The respondent no.1/plaintiff no. 1

is the widow of Sh.Yash Pal Sharma, one of the son‟s of

Smt. Vidyawanti and plaintiff no.2 and 3/respondent no.2 and

3 are the son and daughter of Sh.Yash Pal Sharma. The

appellant no.1 is the widow of defendant no.1 and appellant

no.2 is the widow of defendant no.2, appellant no.3 and 4

being the children of appellant no.2. The bone of contention

between the parties is that the appellants allege that

Smt.Vidyawanti died leaving behind a will dated 22.12.1987

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bequeathing her property in favour of defendant no.1 and 2

while the respondent no.1 to 3 alleged that she died

intestate. Therefore a suit for partition and declaration of the

said property was filed by the respondent no.1 to 3 which

vide judgment and decree dated 29.4.2004 was decreed in

favour of the respondents and against the appellants.

Feeling aggrieved with the same, the appellants have

preferred the present appeal.

3.

Mr.

Alok

Kumar,

learned

counsel

for

the

appellants assailing the said judgment and decree dated

29.4.2004, vehemently argued that the appellants could

successfully prove and establish the execution of the

holograph Will dated 22.12.1987 through defence evidence

especially with the help of the evidence of two attesting

witnesses and also by adducing the evidence of hand writing

expert who in his evidence has proved that the signatures

of the testator, late Smt. Vidya Wanti, on the holograph Will

were genuine after the same were compared with her

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admitted signatures on the rent agreements Ex. PW1/D1

and Ex. PW1/D2.

4.

Learned

counsel

for

the

appellants

further

submitted that the learned trial court has given unnecessary

weightage to the minor variations and discrepancies in the

evidence of the said two attesting witnesses who were cross

examined after a gap of 16 years. The contention of the

counsel for the appellant was that it is but natural that due

to such a long gap, minor discrepancies would arise in

natural course but such minor discrepancies could not have

the effect of disbelieving their t