Delhi High Court
S. Ravinder Singh & Ors vs Davinder Singh on 26 March, 2014
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 26th March, 2014.
+ CS(OS) 2970/2011 & I.A. No.19010/2011 (u/O 39 R-1&2 CPC)
S. RAVINDER SINGH & ORS .... Plaintiffs
Through: Mr. P.D. Gupta and Mr. Abhishek
Gupta, Advocates.
Versus
DAVINDER SINGH ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiffs have instituted the present suit seeking the relief of
partition of the shop bearing No. 863, Lajpat Rai Market, Delhi - 110006,
pleading:
(I) that the three plaintiffs and the defendant are siblings and the
children of Late Mr. Amar Singh and Late Mrs. Satya Rani;
(II) that Mr. Amar Singh (father of the parties) died on 09.10.2009
and Mrs. Satya Rani (mother of the parties) also expired on
13.10.2010 leaving behind the parties to this suit as their only legal
heirs;
(III) that the suit property was acquired/purchased by Mr. Amar
Singh out of his own funds and the same was his self acquired
property;
CS(OS) No.2970/2011 Page 1 of 6
(IV) that Mr. Amar Singh had left behind a registered Will dated
07.06.2006 superseding/revoking an earlier Will dated 31.03.1998
and by which the suit property had been bequeathed in equal shares to
his wife, the three plaintiffs and the defendant;
(V) that after the demise of Mrs. Satya Rani, the property has
devolved upon the parties to the present suit in equal proportions, i.e.
1/4th each;
(VI) that the plaintiffs as well as the defendant are in actual physical
possession of the first and second floors of the suit property and in
constructive possession of the basement and ground floor of the same,
which is in the tenancy and occupation of Mr. Bhupinder Singh, who
was inducted as a tenant by the father of the parties during his
lifetime;
(VII) that the defendant, in contravention of the last Will dated
07.06.2006 of the father of the parties and with a view to defeat the
legal entitlement of the plaintiffs in respect of the suit property, is
relying upon the earlier Will dated 31.03.1998 in proceedings filed by
the tenant Mr. Bhupinder Singh under Section 27 of the Delhi Rent
Control Act, 1958 (seeking permission to deposit rent);
CS(OS) No.2970/2011 Page 2 of 6
(VIII) that the plaintiffs have time and again approached the
defendant with a request to physically partition the suit property by
metes and bounds and had last approached the defendant in
November 2010 for the said purpose, but to no avail;
(IX) that the plaintiffs in the month of August 2011 received
summons of an application filed by the defendant under Order XXII
Rule 4 of the Code of Civil Procedure in the aforesaid petition filed
by the tenant Mr. Bhupinder Singh under Section 27 of the Rent
Control Act and in which the defendant had again claimed that in
light of the Will dated 31.03.1998 of the father of the parties, the
property stood devolved upon him alone to the exclusion of all other
legal heirs, and to which the plaintiffs have furnished a reply refuting
the contents thereof;
(X) that the aforesaid conduct of the defendant demonstrates his
lack of intention to accede to the lawful requests of partition made by
the plaintiffs from time to time; and
(XI) that the defendant has even threatened to sell and create third
party interest in respect of the suit property by placing reliance on the
CS(OS) No.2970/2011 Page 3 of 6
Will dated 31.03.1998 and held negotiations with property dealers in
this regard.
2. This Court issued summons in the suit to the defendant on 29.11.2011
and directed the parties to maintain status quo in respect of the suit property.
Though the defendant entered appearance through counsel on 19.04.2012
and sought time to file the written statement but remained unrepresented
thereafter. Accordingly, the defendant was proceeded ex parte vide order
dated 08.11.2012 and the plaintiffs directed to file affidavits by way of
evidence. Subsequently, an application was also moved by the tenant Mr.
Bhupinder Singh seeking impleadment of himself and MCD as being
necessary and proper parties, but the same was withdrawn on 23.09.2013.
The suit was thereafter posted for ex-parte hearing for today.
3. The plaintiffs have examined two witnesses in support of their case.
The first witness is plaintiff no. 1 himself whose affidavit filed by way of
evidence is a reiteration of the contents of the plaint noted above. The
plaintiff no. 1 has tendered into evidence the following documents:
(A) Death Certificates of Mr. Amar Singh and Mrs. Satya Rani,
exhibited as PW1/1 and PW1/2;
(B) The Original Will dated 07.06.2006, exhibited as PW1/3;
CS(OS) No.2970/2011 Page 4 of 6
(C) Certified copy of the earlier Will dated 31.03.1998, exhibited
as PW1/4; and
(D) Certified copy of the application filed by the defendant in the
petition of the tenant Mr. Bhupinder Singh under Section 27 of the
Rent Control Act; exhibited as PW1/5.
He has also deposed that the mother Mrs. Satya Rani died intestate.
4. The other witness is Mr. Jasvinder Pal Singh - the son of plaintiff
no.3 and one of the attesting witnesses to the Will dated 07.06.2006. He has
identified on the Will (Exhibit PW1/3), the signatures of the testator Mr.
Amar Singh Sethi, the other attesting witness Mr. Ajay Bhatnagar and
himself, and deposed regarding its due execution as well as registration in
the office of Sub-Registrar I, Kashmere Gate. He has further testified that
the testator Mr. Amar Singh Sethi was in a sound disposing mind and good
state of health at the time of execution of the Will and executed the same of
his own accord without any force, coercion or pressure.
5. In light of the aforesaid unrebutted averments and evidence, I am of
the opinion that the plaintiffs have satisfied all the necessary requirements
for grant of partition and also proved due execution of the Will dated
07.06.2006. Needless to say that in light of the aforesaid finding, the earlier
CS(OS) No.2970/2011 Page 5 of 6
Will dated 31.03.1998 (Exhibit PW1/4) is held to have been
superseded/revoked and the defendant cannot be permitted to place any
reliance thereon.
6. Accordingly, a preliminary decree for partition in terms of Order 20
Rule 18 is passed declaring the three plaintiffs and the defendant to be
entitled to 1/4th share each in the suit property.
7. List for consideration of the modalities for effecting partition on 15th
May, 2014.
RAJIV SAHAI ENDLAW, J.
MARCH 26, 2014.
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