The Delhi High Court in a suit for partition, possession and permanent injunction opined that it is mandatory for at least 1 attesting witness to appear before the Court to prove the execution of the Will. It further held that there is no need to pay a separate court fee if relief is only incidental to the relief of partition.
Brief Facts:
One Sh. Moni owned the suit property. He passed away leaving behind his wife and 5 children. The surviving children of Late Sh. Moni are the Plaintiff and the Defendants No. 1 and 3. One child of Late Sh. Moni passed away leaving behind his daughter who is Defendant No. 2 in the present suit. Another child of Late Sh. Moni expired leaving behind her son who is Defendant No. 4 in the present suit.
All the parties mutually decided that the suit property would exclusively devolve on the wife of Late Sh. Moni. After the death of the wife of the Late Sh. Moni, it was orally agreed between the parties that the suit property would be used for residential purposes and the partition would be executed by metes and bounds. Presently, the Plaintiff and Defendants have been residing in the suit property.
The present suit was filed by the Plaintiff seeking partition, possession, and permanent injunction in respect of the suit property.
Subsequently, Defendants No. 1 and 3 filed the present application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC’) for rejection of the plaint.
Contentions of the Defendants No. 1 and 3:
It was contended that Plaintiff had suppressed a material fact regarding a suit filed by Plaintiff along with Defendants No. 1, 3 and the wife of Late Sh. Moni to seek a permanent injunction against Defendant No. 2 and Mr. Amit Bidhuri. In that suit, Plaintiff and Defendants No. 1 and 3 and the wife of Late Sh. Moni relied on the Will executed by Late Sh. Moni. The contents of the Will were pleaded by Defendants No. 1 and 3 and it was argued that as per the will no right to occupy the suit accrues in favour of Plaintiff. Therefore, the plaint should be dismissed as it fails to disclose any cause of action. It was argued that Plaintiff has hidden facts about the Will.
It was further argued that since the earlier suit was decided and decreed by the Court, the same would constitute res judicata. It was also contended that the suit has not been valued properly.
Contentions of the Plaintiff:
It was argued that Plaintiff was unaware of the former suit and that the suit was never signed or verified by Plaintiff. The validity of the will was contested on the ground that the will was not signed by the attesting witnesses. It was further contended that no res judicata will apply as the previous suit was filed with the collusion of the parties to deny Plaintiff her legal rights.
Observations of the Court:
Concerning the court fees, the High Court observed that if relief is only incidental to the relief of partition, then there is no need to pay a separate court fee. It is only when the relief constitutes a distinct subject matter, that the separate court fee would be applicable. As for the present case, the relief of possession is only an incidental relief. The main relief is partition and hence, no separate court fee needs to be paid.
Further, the Bench remarked that in the present case the Will was not proved. As per Section 68 of the Indian Evidence Act, of 1872, it is mandatory for at least 1 attesting witness to appear before the Court to prove the execution of the Will. However, in the present case, no attesting witness was present.
As regards, the rejection of the suit, the Court remarked that since Plaintiff has denied any knowledge concerning the former suit, the same can only be decided during Trial. The former suit anyhow was filed only for the purpose of injunction and not to decide the title of the parties. Also, the former suit proceeded ex-parte and therefore was not contested.
Decision of the Court:
Based on the above-mentioned reason, the Delhi High court held that no grounds are made for the suit to be rejected and accordingly applications were dismissed.
Case Title: Shampa Ghosh v. Alok Kumar Dey & Ors.
Coram: Hon’ble Mr. Justice Amit Bansal
Case No.: CS(OS) 376/2020
Advocates for Plaintiff: Advs. Mr. Nalin Tripathi, Mr. Sarvendra M. Tripathi and Mr. Divyanshu Priyam
Advocates for Defendants: Advs. Mr. D. Banerjee, Ms. S. Halder, Mr. Anshu Mahajan, Mr. Vikas Aggarwal, Mr. Amit Shanker Amist, Ms. Mithila Jain
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