Jagmohan Singh Kochhar vs Satwant Singh Kochhar
2015 Latest Caselaw 7923 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment pronounced on: 15th October, 2015

+                            CS (OS) No.455/2000

           JAGMOHAN SINGH KOCHHAR                   ..... Plaintiff
                       Through Mr.B.P.Aggarwal, Adv.

                             versus

           SATWANT SINGH KOCHHAR                   ..... Defendant
                       Through Mr.P.S.Bindra, Adv.

           CORAM:
           HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The present suit for partition in respect of ground floor portion of property No.126, Sunder Nagar, New Delhi (hereinafter referred to as the "suit property") has been filed by the plaintiff claiming one-half share in the property on the basis of (purported) Will dated 15th November, 1992 (hereinafter referred to as the "Alleged Will").

2. Plaintiff's Case as per Plaint

(i) The suit property was owned jointly by late Gurmukh Singh and Smt.Lachhmi Devi. They both were the joint owners of the suit property in equal shares. The suit property was partitioned and ground floor portion of the suit property belonged to late Gurmukh Singh and first floor portion of the suit property belonged to late Smt.Lachhmi Devi. The father of the plaintiff, namely, Jaswant Singh Kochhar and the father

of the defendant, namely, Darshan Singh Kochhar were the real uncle of late Gurmukh Singh.

(ii) Late Gurmukh Singh was a bachelor, therefore, he was residing either with Jaswant Singh Kochhar or Darshan Singh Kochhar. Gurmukh Singh had great love and affection for both of them.

(iii) After the death of Jaswant Singh Kochhar, late Gurmukh Singh started living with Darshan Singh Kochhar.

(iv) The suit property was earlier under the tenancy of various tenants. After the same was vacated Darshan Singh Kochhar and Gurmukh Singh had started residing in the suit property. Darshan Singh Kochhar, the father of the defendant died on 10th November, 1993.

(v) Gurmukh Singh expired on 17th February, 1993 in Delhi.

Gurmukh Singh during his lifetime had executed a Will dated 15th November, 1992 wherein he had bequeathed his movable and immovable assets. According to his said Will Gurmukh Singh had given suit property i.e. his half portion of suit property to the plaintiff and defendant in equal share. The deceased Gurmukh Singh had also various other movable assets possessed by him in the form of securities etc. The remaining assets had been given to Balbir Kaur, wife of the defendant as per the Will of the deceased Gurmukh Singh.

(vi) As per the Will dated 15th November, 1992 executed by late Gurmukh Singh, the ground floor portion of the suit property

was to be divided between the plaintiff and Darshan Singh Kochhar in equal shares.

(vii) After the death of Darshan Singh Kochhar, his son, the defendant is the heir to inherit the share of late Darshan Singh Kochhar in the suit property.

(viii) The plaintiff had requested the defendant many times to divide the suit property by metes and bounds and to hand over the portion belonging to the plaintiff in terms of the Will of Gurmukh Singh. The defendant had never opposed to the plaintiff's request, but had always avoided the matter on one pretext or the other. The plaintiff and the defendant are the joint owners of the share held by late Gurmukh Singh in terms of the Will left by late Gurmukh Singh. The defendant is residing in the ground floor portion of the suit property which belonged to late Gurmukh Singh and depriving the plaintiff of his right in the suit property in terms of the Will of the deceased.

(ix) The plaintiff is entitled to half share of late Gurmukh Singh in the suit property. As the defendant is not taking any steps to divide the shares of the parties in the suit property, therefore, the plaintiff has no alternative except to file the present suit.

3. Case of the Defendant as per Written Statement

(a) The suit property was the joint property of late Gurmukh Singh and late Laxmi Devi. Suit No.38 of 1974 was filed by late Gurmukh Singh against Laxmi Devi in this Court for the

partition of the suit property. The same was contested by Gurmukh Singh through his Attorney, the present defendant.

(b) The suit property was partitioned between the two owners in Suit No.38 of 1974 entitled as "Sardar Gurmukh Singh v. Laxmi Devi" by this Court. During the pendency of this suit, he died with the result that plaintiff in the said suit came to be represented by his legal heirs and representatives, namely, (1) Sh.Satwant Singh Kochhar and (2) his wife Smt. Balbir Kochhar in terms of plaintiff's Will dated 26th September, 1987. The defendant was represented by her son, Sh.Prabhjot Singh Kochhar. Late Gurmukh Singh who is the cousin of the defendant was the son of the real sister of his father, late Darshan Singh Kochhar. The said Gurmukh Singh was living with Darshan Singh Kochhar who died on 10th November, 1990 and after his death the said Gurmukh Singh lived with the defendant and his family till his own death on 17th February, 1993.

(c) The suit property of late Gurmukh Singh was only in the knowledge of the plaintiff and he has filed this false suit by forging and fabricating the alleged Will dated 15th November, 1992. Even after the death of Gurmukh Singh on 17th February, 1993, it was the defendant who was prosecuting the litigation in the case entitled as "Laxmi Devi v. Gurmukh Singh" in this Court as legal representative of late Gurmukh Singh.

(d) The defendant has inherited the property in dispute by virtue of a Will dated 26th September, 1987 executed by Gurmukh Singh who was a bachelor and the said Will stands proved in Suit No.124 of 1989 entitled as 'Gurmukh Singh v. Punjab & Sind Bank & others' decided by Additional District Judge, Delhi vide judgment and decree dated 27th February, 1999. The said Will dated 26th September, 1987 was drafted by Sh.O.N.Vohra, a former Judge of this Court and the same stands witnessed by Sh.R.L.Seghal, retired Member of the Income Tax Tribunal and Sh.Surinder Singh Bindra, Advocate, Delhi High Court. In the said suit, on the death of Gurmukh Singh at the age of 85 years on 17th February, 1993, the defendant was brought on the records of the said suit as legal representative of late Gurmukh Singh. The plaintiff in para No.7 of the plaint has referred to certain immovable and moveable assets of late Gurmukh Singh. But no details of the movable assets of late Gurmukh Singh have been given.

(e) Even when the property was vacated by the Punjab & Sind Bank who was the tenant in the suit property, the defendant made extensive repairs by spending lakhs of rupees and shifted in this property along with his family and late Gurmukh Singh. The defendant and his family members are residing in suit property ever since then. Even after the death of Gurmukh Singh on 17th February, 1993, the defendant and

his family members alone are residing therein without any objection or hindrance from the plaintiff.

(f) It is denied by the defendant that Gurmukh Singh at any point of time lived with Jaswant Singh Kochhar who was father of the plaintiff. Gurmukh Singh all along lived with Darshan Singh Kochhar and his family only and he had no love or affection for Jaswant Singh Kochhar and his family. There is admittedly litigations between Gurmukh Singh on one hand and Jaswant Singh Kochhar and his family on the other hand, for the last more than 4 decades. Many suits and legal proceedings between the parties are still pending adjudication in this Court and in Courts at Shimla. Late Gurmukh Singh was not even on speaking terms with Jaswant Singh Kochhar and his family.

(g) It is denied that Gurmukh Singh started living with Darshan Singh Kochhar only after the death of Jaswant Singh Kochhar. In fact, the mother of Darshan Singh Kochhar and Jaswant Singh Kochhar, namely, Smt.Darpodi Devi was residing with her son Darshan Singh Kochhar in premises No.144, G.F., Sunder Nagar, New Delhi which is owned by Darshan Singh Kochhar. Late Gurmukh Singh also lived there being the grandson (daughter's son) of Smt.Darpodi Devi. The said Smt.Darpodi Devi died in 1964 but Gurmukh Singh continued to live with Darshan Singh Kochhar only as a member of his family and after the death of Darshan Singh Kochhar on 10th November, 1990, the said Gurmukh Singh

continued living with the defendant and his family till the time of his own death on 17th February, 1993. Gurmukh Singh used to receive a sum of Rs.5,000/- per month directly from the tenants out of the rentals of property No.144, Ground Floor, Sunder Nagar, New Delhi, which belonged to late Darshan Singh Kochhar till his death on 17th February, 1993 for his personal expenses. After a prolonged litigation, Houses No.124 and 126, Sunder Nagar, New Delhi, were got vacated from Punjab & Sind Bank and after extensive repairs made by the defendant to the Ground Floors of the said two houses, the said Gurmukh Singh and the Defendant and his family shifted to those premises. Late Gurmukh Singh executed a Will dated 26th September, 1987 bequeathing in equal shares his partitioned portion in suit property in favour of Sarabjit Singh Kochhar and Harsaranjit Singh Kochhar, sons of the defendant absolutely and forever with a rider that the defendant and his wife Balbir Kaur shall have a life interest in the said property. Further, the said Gurmukh Singh bequeathed all his moveable property including bank balances, shares etc in favour of the defendant, his wife Smt Balbir Kochhar and their daughter Smt.Indermeet Kaur Kochhar. Late Gurmukh Singh was very much attached to his "Mama" Darshan Singh Kochhar and his family because he was brought up since his childhood by the said family and he all along lived with the said family till his death on 17th February, 1993.

(h) On 23rd January, 1993, Late Gurmukh Singh who was suffering from chronic Parkinson's disease fell down in the garden and in the night when he was sleeping he went into deep coma. In the morning of 24th January, 1993 he was removed to Mool Chand Hospital by the defendant. The Doctors of Mool Chand Hospital advised surgery, as on medical investigations, it was found that there was blood clot in his brain. Brain Surgery was performed at Mool Chand Hospital but unfortunately Gurmukh Singh never came out of the coma and he died on 17th February, 1993 after remaining on respirator for almost 23 days. The entire hospital charges were paid by the defendant and complete medical records of Mool Chand Hospital are with the defendant. The defendant also performed the last rites and ceremonies of late Gurmukh Singh, according to Sikh religion. It is admitted that the suit property bearing No.126, Sunder Nagar, New Delhi, was under the tenancy of various tenants and after the suit property was got vacated and after renovating the premises, Darshan Singh Kochhar along with his family and Gurmukh Singh shifted in the said house in June, 1990. Darshan Singh Kochhar died on 10th November, 1990 and not on 10th November, 1993 as mentioned in the plaint.

(i) It was denied that Gurmukh Singh had executed any alleged Will dated 15th November, 1992. No such Will was ever executed by Late Gurmukh Singh. Even previously, the father of the plaintiff, Jaswant Singh Kochhar and Laxmi Devi wife

of Asa Singh Kochhar tried to grab the share of the defendant and Gurmukh Singh, in property Nos.124 and 126, Sunder Nagar, New Delhi by forging Agreements to Sell dated 1st December, 1972 and by filing false suits for specific performance bearing Suit No.30 of 1973 entitled as ''Jaswant Singh Kochhar v. S. Satwant Singh Kochhar" and Suit No.38 of 1973 entitled as "Smt. Laxxmi Devi v. Gurmukh Singh" in this Court. Later on, when the defendant and Gurmukh Singh filed applications under Sections 476, 476-A and 478 Cr.P.C. in Suit Nos.537 and 538 of 1972 which were for the partition of Houses No.124 and 126, Sunder Nagar, New Delhi, moved for the prosecution of Jaswant Singh Kochhar and others and Laxmi Devi and others including the present plaintiff, the said two suits for specific performance were unconditionally withdrawn and the same were dismissed by this Court.

(j) It was however, admitted that late Gurmukh Singh had moveable assets as the plaintiff was not on speaking terms with him. By Will dated 26th September, 1987 the said Gurmukh Singh had distributed his moveable assets between the defendant, Smt.Balbir Kochhar and daughter of the defendant.

(k) It is denied that the plaintiff has never approached the defendant to divide the suit property in terms of the alleged Will dated 15th November, 1992 which is purported to have been executed by late Gurmukh Singh. No question of

partition of the suit property ever arose because the said late Gurmukh Singh never executed any Will dated 15th November, 1992. On the other hand, after the decision of Suit No.38 of 1974, Darshan Singh Kochhar, the defendant, his family and Gurmukh Singh started living peacefully in the suit property without any interference or disturbance from any quarter whatsoever including the plaintiff who has no right, title or interest of any kind or nature whatsoever in the suit property and the Will dated 15th November, 1992 relied upon by him is a forged and fabricated document and after the death it belongs to the defendant, his wife Balbir Kaur (life interests) as well as to Sarabjit Singh Kochhar and Harsaranjit Singh Kochhar absolutely in equal shares.

4. In the replication on behalf of the plaintiff to the written statement of the defendant, the plaintiff has denied all averments. It is alleged that it is the defendant who fabricated the Will dated 26th September, 2007 of Late Gurmukh Singh. The plaintiff's Will is genuine and true Will. It was denied that the alleged Will has been drafted by Sh.O.N.Vohra. It is also denied that the said alleged Will has been witnessed by one Sh.R.L.Sehgal as alleged. It is submitted that inspite of the directions the defendant has failed to produce the original of the alleged Will dated 26th September, 1987. It is submitted that if the defendant has acted as a legal representative of the deceased Gurmukh Singh, he has acted illegally and without any authority. The alleged Will dated 26th September, 1987 is a fabricated and forged Will and it does not give any authority to the defendant to

act as a legal representative of the deceased. It is denied in the replication that late Gurmukh Singh was not in talking terms with S. Jaswant Kochhar and his family. It is denied that Gurmukh Singh lived all his life with Darshan Singh Kochhar and his family as alleged. Referring other litigations has no relevance. It is denied that the defendant has bequeathed the property in question through Gurmukh Singh vide his alleged Will dated 26th September, 1987. This statement is absolutely incorrect and false to the knowledge of the defendant. The last Will of the deceased is dated 15th November, 1992 which is the subject matter of the present suit.

5. From the pleadings, the following issues were framed on 21st November, 2005:

(1) Whether the plaintiff is entitled for partition of property No.126, Sunder Nagar, New Delhi, if so, what is the share of the plaintiff? OPP (2) Which of the Wills of late Gurmukh Singh dated 15th November, 1992 and 26th September, 1987 is genuine Will, if so, to what effect? Onus to prove on Parties.

(3) Whether the suit has been properly valued for the purpose of jurisdiction and court fee and appropriate court fee has been paid? OPP (4) Relief.

6. The present suit was filed on 21st February, 2000. The plaintiff's counsel for the first time made the statement in his suit No.1315/2003 that he is not in possession of original Will which is admittedly an unregistered Will.

7. The (original) plaintiff filed his affidavit by way of Evidence making the same statement as averred in the plaint. In his affidavit, a mere statement was made that the Will dated 26th September, 1987 relied upon by the defendant is forged and fabricated. The said witness unfortunately passed away on 16th July, 2012 before entering the witness box for tendering his affidavit or cross-examination. His legal heirs were brought on the record. The plaintiff's son, namely, Rajpal Singh Kochhar thereafter filed his affidavit as evidence dated 28th July, 2014 as PW-1 being tendered as PW-1/A. PW-1 in his affidavit, who inter alia, deposed that - "I adopt the said affidavit of evidence filed by Late S. Jagmohan Singh Kochhar, the deceased plaintiff to avoid repetition", and "adopt and rely on the affidavit of evidence filed by the deceased plaintiff...." The plaintiff filed only two documents, i.e. photocopy of the Will and the death certificate of late Gurmukh Singh.

8. The defendant produced evidence by way of affidavits of Harsaranjit Singh (DW-1) and S.S.Bindra (DW-2) which were tendered as Ex.DW-1/A and Ex.DW-2/A respectively. The son of the defendant, DW-1 has deposed as defendant's witness (in view of defendant's inability to depose for his elderly age (91 years), chronic ailments and daily dialysis).

9. Let me now first take up issue No.2 which is the main issue as the entire litigation revolves on this issue. The case of the plaintiff is that the alleged Will dated 15th November, 1992 executed by late Gurmukh Singh to divide the property between the plaintiff and the defendant on the basis of the said Will and after the death of Darshan

Singh, both the plaintiff and the defendant are legal heirs to inherit the share of Darshan Singh in the suit property.

10. Nothing is mentioned in the evidentiary affidavit of the witness(s) regarding the alleged Will. There is no deposition regarding the execution, attestation, witnesses, mental capacity of testator etc. of the alleged Will. Even in his cross-examination, PW-1 had shown his ignorance, lack of knowledge and unawareness regarding drafting of the alleged Will. The PW-1 deposed that death certificates of two alleged witnesses were obtainable, but the same were never obtained or produced. PW-1 admitted that defendant was in occupation of the suit property; Gurmukh Singh's name was in the Ration Card pertaining to the defendant mentioning his address at suit property and he was suffering from acute Parkinson and was admitted to ICU for one and half month before his death; and he was admitted to hospital by defendant's family, who incurred all his medical expenses.

11. No facts pertaining to own knowledge of the witness were stated and mere adoption or reliance on another person's affidavit is meaningless. No other witness was examined by the plaintiff either to prove the alleged Will or to rebut the validity of the Will produced by the defendant. Even when the cross-examination of PW-1 was recorded on 20th November, 2014, he was not aware as to when Sh.Gurmukh Singh passed away, voluntarily he mentioned that it may be 1990's or 2000, again said 2000 plus, minus and later on said, he was not sure.

12. The law relating to proof of Will is laid down in Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. These provisions stipulate that no witness was either summoned or brought to the Court, nor was it established that witnesses are not available for reasons of death or otherwise. No attempt was made to prove the signatures of testator and/or witnesses of the alleged Will. Even PW-1 made no deposition, even orally, in this regard. The original of alleged Will having been never produced, no application was filed nor permission was sought, to prove photocopy of alleged Will by leading secondary evidence or otherwise. The plaintiff in fact has failed to prove the alleged Will, on the basis on which he seeks to establish title and thus partition. In fact, there is no explanation and valid reasons assigned. Even during argument, the issue of execution of Will by Late Gurmukh Singh was not given much importance rather it was argued that the plaintiff otherwise has inherited the suit property.

13. The original of the alleged Will was neither filed nor produced before the Court, nor was any explanation in this regard was offered by the plaintiff.

14. It was specifically countered on behalf of defendant that late Gurmukh Singh never executed the Will dated 15th November, 1992 and as such, there is no question of his bequeathing any share of the suit property in favour of the plaintiff in view of execution of Will produced by the defendant. It is pertinent to mention that as per the case of the plaintiff himself, the said Gurmukh Singh was living with Darshan Singh Kochhar and his family. Darshan Singh Kochhar

expired in 1990. It is not possible to believe that how the said Gurmukh Singh did not know that on 15th November, 1992 when he purports to have executed the Will in question, Darshan Singh Kochhar had died long ago and was not alive on the said date and on the date of Will, Gurmukh Singh bequeathed one-half share in the suit property in favour of a dead person vide his purported Will dated 15th November, 1992. PW-1 in his cross-examination admitted that Sardar Darshan Singh passed away much prior to the death of Late Gurmukh Singh and his father had wrongly mentioned the date of death of Darshan Singh in the plaint. PW-1 in his cross-examination also admitted that the family of the defendant was also in occupation of the ground floor of the suit property and he has no evidence to show that Late Gurmukh Singh has been living with the plaintiff's family; his ration card pertains to the address of the defendant and even he has not seen any document which would show as to who had drafted the alleged Will dated 15th November, 1992. He does not have the death certificates of witnesses.

15. Even during the course of hearing, learned counsel for the plaintiff was unable to give any answer in this regard. There is also no explanation why the original Will was not produced. If the same was lying with any witness, why no steps were taken by the plaintiff. All the circumstances speak for themselves which would give indication that the plaintiff was aware that he might not be successful to prove the Will, otherwise, why the same had not been proved even as secondary evidence. Therefore, the claim of the plaintiff on the basis of the Will of Gurmukh Singh, dated 15th November, 1992

appeared to be not a genuine one as it has not been proved by the plaintiff as per law. Thus, the claim of the plaintiff is rejected on the basis of the alleged Will.

16. Now, I shall deal with the submissions of the parties pertaining to the Will dated 26th September, 1987 relied upon by the defendant which is also unregistered.

In the written statement, the defendant has asserted that the property was inherited by him by virtue of Will of Gurmukh Singh dated 26th September, 1987. The said Will was drafted by Sh.O.N.Vohra, Advocate (since deceased) and witnessed by Advocates Sh.R.L.Sehgal and Sh.Surinder S. Bindra. This Will was earlier also proved in another suit being Suit No.240/95 (old number Suit No.124/89), filed by Gurmukh Singh against his tenant Punjab & Sind Bank.

17. In this suit against Punjab & Sind Bank, upon death of Gurmukh Singh during pendency, the attesting witness Sh.Rajinder Lal Sehgal, Advocate entered the witness box and proved the Will. By order dated 23rd November, 1996 (Ex.DW-1/5), the Court while disposing of the application under Order XXII Rule 3 CPC held that "it is apparent that the Will has been duly executed by the plaintiff (Late Gurmukh Singh) in favour of defendant herein and which has been proved by Shri R.N. Sehgal one of the attesting witness...It is held that the Will is duly executed and applicants are entitled for the benefits in the suit property in accordance with Will".

18. DW-1 exhibited the Will as Ex.DW1/2 and identified thereon the signatures of Late Gurmukh Singh, specifically deposing that he

(DW-1) had seen him writing and signing on numerous occasions, being a close family member residing in the same house. DW-1 also proved original bill and receipt issued by Sh.O.N.Vohra, Advocate as DW-1/3 and DW-1/4 respectively, being the bill/receipt for the professional charges for drafting 1987 Will. As mentioned above, the testimony of 1987 Will's witness Sh.R.L.Sehgal (since deceased) in Suit No.124/89 and the order dated 23rd November, 1996 passed in the said suit are proved as Ex.DW-1/5 (Colly).

19. DW-1 further deposed that Gurmukh Singh was not having good relations with the plaintiff and his family and in this regard, he proved an order dated 2nd April, 1974 (Ex.DW-1/6) in another suit/proceeding between the (original) plaintiff and Gurmukh Singh. The witness has also deposed that Gurmukh Singh was suffering from Parkinson's, which had aggravated, making him incapable of signing or writing, and he ultimately passed away on 17th February, 1993. The death certificate of Gurmukh Singh has been proved as Ex.DW-1/7. DW-1 further deposed that Darshan Singh had died on 10th November, 1990 and his death certificate was exhibited as Ex.DW-1/1.

20. DW-1 was cross-examined extensively. However, no question or even suggestion was put to the witness regarding the authenticity or genuineness of signatures of testator or of witnesses or of Sh.O.N.Vohra, who had drafted the Will. No question/suggestion was put to the witness regarding the fact that Darshan Singh had died on 10th November, 1990 and about his death certificate. Thus, it stands proved that on date of alleged will, i.e. 15th November, 1992, Darshan

Singh was already dead, though the alleged Will purports to make a bequeath in his favour and it is mentioned therein that "presently, I am living with S. Darshan Singh". Thus, ex facie, the alleged Will is forged and fabricated document.

21. In his cross-examination, he denied the suggestion that the addition and alteration at page 4 para 3 at point 'M' were made subsequently to the date of drafting the Will. It is correct that addition at page 4 para 3 at point 'M' does not bear the signature either of Mr.Gurmukh Singh or of Sh.O.N.Vohra, Advocate. DW-1 stated that he did not know if the word 'Gurmukh Singh' below the word 'testator' at page 5, now point 'N' was written subsequent to the date of drafting the Will. Again said, it was incorrect and it was incorrect to suggest that the date '26' now point 'O' at page 5 of Ex.DW-1/2 was written subsequently.

22. The defendant also produced Sh.Surinder Singh Bindra (DW-2), the other attesting witness of 1987 Will. DW-2 in his evidentiary affidavit also duly proved the due execution and attestation of 1987 Will. Despite an extensive cross-examination, the witness firmly stood by his deposition in evidentiary affidavit. In his affidavit in para 4 he mentioned that there are two original Wills and he is aware about one of the original Wills which was filed in the sealed cover of this Court.

23. In cross-examination, one of the questions which was put to him and answered by him has been reproduced here as under:-

"Q. I put it to you that Sh. Gurmukh Singh was not present when this Will was typed?

A. Sh. Gurmukh Singh had visited the office of Sh O N Vohra, Adv along with Sh. R L Sehgal, Adv about 10 days prior to 26.09.1987 and given instructions for drafting of this Will. He was not there when this Will was typed and it was typed as per the instructions given by Sh. Gurmukh Singh.

I can say that Sh. Gurmukh Singh was in sound position of mind because I had been meeting him and I had been visiting his House during that period and he was giving the instruction regarding his litigation."

24. From the said question put on behalf of the plaintiff, it appears that the stand of the plaintiff is contrary about the Will relied upon by the defendant. On one hand, the plaintiff says that the Will relied upon by the defendant is forged and fabricated and on the other hand, DW-2 was put to question that DW-2 was not present when Late Gurmukh Singh's Will was typed.

25. PW-1 has not specifically denied the factum of Will relied upon by the defendant. In his cross-examination, the witness stated that "I am not aware if Gurmukh Singh had executed last Will dated 26.09.1987". Therefore, it is evident that it is not denied by him specifically. Even with regard to Gurmukh Singh's litigation with Punjab & Sind Bank, PW-1 admitted the litigations, stating in his cross-examination that "I also do not know that upon the death of Sh.Gurmukh Singh on 17.02.1993, Sh. Satwant Singh Kochhar and Smt.Balbir Kaur were impleaded as legal heirs on behalf of late Sh.Gurmukh Singh, the plaintiff in the suit on the basis of the Will dated 26.09.1987." The said testimony is impliedly not correct for the reason that the parties are related to each other.

26. The present suit is filed by the plaintiff after expiry of 7 years from the date of execution of alleged Will of 1992. The plaintiff was aware that the defendant was/is in possession of the suit property, yet no relief was sought for recovery of possession despite of the fact that it remains with the defendant throughout. In normal course, the suit ought to have been filed on an early date.

27. The defendant had filed his written statement in 2003, the plaintiff was aware that the defendant has relied upon the Will. No steps were taken by the plaintiff to summon the record or to move the application for comparison of signatures. Mr.O.N.Vohra, Senior Advocate was alive. Even one of the witnesses could have been examined at that stage itself.

28. In March, 2015, the plaintiff filed the application being I.A. No.5169/2015 to produce the record of Suit No.38/1974 through witness. At that time, the said application was dismissed by a detailed order passed on 12th March, 2015. Learned counsel for the plaintiff admitted that the said order was not challenged by the plaintiff. Similarly, after dismissal of the said application, the plaintiff filed another application being I.A. No.10256/2015 to seek a report from the Forensic Science Laboratory, Government of NCT of Delhi by sending the alleged original Will dated 26th September, 1987 for comparison of the signatures of Late Gurmukh Singh with his original signatures available on pleadings, affidavits, applications, documents and vakalatnama of Suit No.38/1974 titled Gurmukh Singh v. Lachhmi Devi, decided on 12th August, 1988 by this Court and to ascertain the genuineness of the signatures on the aforesaid alleged

Will. The said application was also dismissed by a detailed order dated 26th May, 2015. It was stated by the learned counsel for the defendant that no notice of any appeal has been received by his client. Even, the third application being I.A. No.20730/2015 was filed wherein the same relief was sought. The said application was also dismissed by order dated 30th September, 2015. The plaintiff did not bother to amend the plaint in view of the Will relied upon by the defendant in the written statement. The Will produced by the defendant has also not been challenged by taking a separate action. No other family member from either side has come forward to give his/her statement about the Will produced by the defendant. In the absence of specific pleading and testimony of witnesses(s), it is not possible to compare the signatures from the photocopy and to form any opinion. Thus, the request of the plaintiff during the course of hearing to compare the signatures and to give the opinion cannot be allowed. The better course, under these circumstances, is to stick to the evidence produced by the parties in Court and to decide the matter in hand on the basis of evidence.

29. Under these circumstances, it is evident that the plaintiff has failed to prove that the Will relied upon by the defendant is not genuine and on the other hand, the defendant has been able to prove his Will in evidence that by virtue of the Will of Late Gurmukh Singh, the defendant and his wife have inherited the suit property through his father Darshan Singh Kochhar.

30. Accordingly, the said issue No.2 is decided against the plaintiff and in favour of the defendant. Consequently, the issue No.1 is also

decided against the plaintiff. The suit of the plaintiff is liable to be dismissed.

31. As regards issue No.3, admittedly the defendant is in possession throughout. The plaintiff was/is not in possession of the suit property. No evidence was produced and no Court fee on the value of the suit property was affixed. The said issue is hence decided in favour of the defendant and against the plaintiff.

32. In the light of the above, the suit of the plaintiff for partition of the suit property is dismissed.

33. No costs.

(MANMOHAN SINGH) JUDGE OCTOBER 15, 2015