1. The plaintiff is seeking partition of property bearing No. B-5/158, Safdarjung Enclave, New Delhi-110029, hereinafter referred to as ‘the suit
property’.
2. The suit property was owned by late O.P. Tiwari who expired on 03rd August, 1999 leaving behind two sons, namely Shashank and Rajender and
two daughters, namely Veena and Rani. Rani is the plaintiff whereas Shashank, Rajender and Veena are defendants No.1, 2 and 3 respectively.
3. According to the plaintiff, late O.P. Tiwari died intestate and the aforesaid property devolved upon the plaintiff and the defendants in equal
proportion of 1/4th each.
4. According to Defendants No.1 and 2, late O.P. Tiwari left behind a registered Will dated 22nd March, 1996 by which the suit property devolved
upon defendants No.1 and 2 in equal shares.
5. The following issues were framed by this Court on 29th January, 2014:
“1. Whether the subject matter property is the self-acquired property of the plaintiff’s father? OPP
2. Whether the plaintiff is entitled to the decree of partition against the defendants? OPP
3. Whether the plaintiff is entitled to 1/4th share in the suit property? OPP
4. Whether the alleged Will dated 22nd March (sic), 1996 was executed by the father of the plaintiff, namely, Late Sh. O.P. Tiwari (sic)? OPD
5. Reliefâ€
6. The plaintiff appeared in the witness box as PW-1 and reiterated the averments made in the plaint. PW-1 deposed that she along with defendants
No. 1 to 3 are the members of Hindu undivided family and their common ancestors are late O.P. Tiwari (father) and late Sarla Tiwari (mother). PW-1
deposed that the suit property was owned by her father, late O.P. Tiwari who constructed ground floor, first floor and barsati in 1974; she shifted to
the barsati floor in 1993 on the request of her parents who were residing on the ground floor till their death; her parents suffered from dementia,
forgetfulness and other old age related ailments. PW-1 further deposed that her father died intestate. PW-1 claimed to be very close to her father who
shared all his confidential things/information with her. Defendant No.1 and his family shifted to the ground floor of the suit property after the death of
the father. After the death of the father, the suit property was converted from leasehold to freehold in the name of the mother, Sarla Tiwari and all the
parties gave their no objection to the mutation. Sarla Tiwari died intestate on 21st March, 2002. After the death of Sarla Tiwari, defendant No.2
occupied the first floor of the suit property which was let out to a tenant and defendant No.2 was collecting the rent. The plaintiff claims 1/4th share in
the suit property according to the Hindu Succession Act.
7. Defendant No.1 appeared in the witness box as DW-1 and reiterated the averments made in the written statement. DW-1 deposed that the plaintiff
was suitably compensated with articles, cash and jewellery, etc. at the time of her marriage and the deceased parents helped the plaintiff financially to
build/purchase a house at AWHO Colony, Faridabad. The plaintiff was permitted by the parents to temporarily stay on the barsati floor of the suit
property as she had to vacate her house which was on rent. The plaintiff was well aware of the Will dated 22nd March, 1996 of the father as she had
filed objections to the application of defendants No.1 and 2 for mutation in Municipal Corporation. In cross-examination, DW-1 stated that he came to
know of the father’s Will in 1998 when he retired from the Indian Army.
8. Defendant No.1 and 2 examined Lt. Col. (Retd.) P.D.P. Deo, Advocate as DW-2 who deposed that about 22 years ago, late O.P. Tiwari called
him at his residence for some important work whereupon he went to the residence of late O.P. Tiwari where Lt. Col. Anand Jee was already present.
Late O.P. Tiwari told DW-2 that he had written his Will and he wanted DW-2 and Lt. Col. Anand Jee to witness the Will to which he agreed. Late
O.P. Tiwari brought a two page Will typed in English and he signed in his presence and in the presence of Lt. Col. Anand Jee on both pages. DW-2
thereafter signed as a first attesting witness and late Lt. Col. Anand Jee signed as a second witness in his presence and in the presence of late O.P.
Tiwari. He further deposed that late O.P. Tiwari told him that the Will was to be registered with the Sub-Registrar and both the witnesses were
required to go to the Sub-Registrar’s office with late O.P. Tiwari. O.P. Tiwari, DW-2 and Lt. Col Anand Jee went to the office of Sub-Registrar,
Asaf Ali Road, New Delhi where the Will was registered. The original Will was marked as Ex.DW-2/1. DW-2 did not give the date of execution of
the Will in his evidence by way of an affidavit. However, in cross-examination, DW-2 deposed that the Will was executed on 20th March, 1996. DW-
2 admitted that the last para of the Will mentions the date of the execution as 22nd March, 1996 and the Will was registered on 22nd March, 1996.
Defendants No.1 and 2 summoned the record of Sub-Registrar with respect to the Will dated 22nd March, 1996 which was produced by DW-3.
9. Learned counsel for the plaintiff urged at the time of the hearing that the deceased bequeathed the suit property absolutely to his wife, Sarla Tiwari
by the alleged Will dated 22nd March 1996 and Sarla Tiwari died intestate and, therefore, the suit property devolved upon the plaintiff and the
defendants in equal shares. Reliance is placed on Bay Berry Apartments v. Shobha, 2006 (13) SCC 737, Mathai Samuel v. Eapen Eapen, 2012 (13)
SCC 80, Kaivelikkal Ambunhi v. H. Ganesh Bhandary, AIR 1995 SC 2491, Arunkumar v. Shriniwas, (2003) 6 SCC 98, Kunwar Rameshwar Bakhsh
Singh v. Thakurain Bairaj Kaur, AIR 1935 PC 187,N avneet Lal v. Gokul, 1976 (1) SCC 630, Kamla Devi v. Prabhawatti Devi, 2001 (10) SCC 602
and Mauleshwar Mani v. Jagdish Prasad, 2002 (2) SCC 468.
10. Learned counsel for the defendants urged at the time of the hearing that defendants have proved the Will dated 22nd March, 1996 by examining
DW-2. It was further submitted that late O.P. Tiwari created life interest in favor of his wife and absolute interest in favor of both defendants No.1
and 2. Reliance was placed on Navneet Lal @ Rangi v. Gokul, 1976 (1) SCC 630.
11. The scanned copy of the original Will exhibit DW-2/1 is reproduced hereunder:
12. Section 63 (c) of Indian Succession Act requires the Will to be attested by two or more witnesses, each of whom has seen the testator sign or
affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the
testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in
the presence of the testator.
13. In the present case, the original Will was executed by late Sh. O.P. Tiwari on 22nd March, 1996 which is mentioned in last paragraph of the Will.
However, both the attesting witnesses have put the date below their signatures as 20th March, 1996. It is not the case of the defendants that the
witnesses inadvertently put the wrong date of 20th March, 1996 instead of 22nd March, 1996. DW-3 was specifically shown the two dates on the will
in his cross-examination but he chose not to offer any explanation. According to DW-3, the deceased executed the will on 20th March, 1996 whereas
the date of execution of the will is 22nd March, 1996. The statement of DW-3 that the two witnesses signed the will after the deceased signed it, is
not correct and is rejected.
14. The alleged Will Ex.DW-2/1 is not valid as Late O.P. Tiwari executed the Will on 22nd March, 1996 whereas both the witnesses to the Will
signed the Will on 20th March, 1996. The conditions mentioned in Section 63 of the Indian Succession Act are not satisfied in the present case and,
therefore, the alleged Will Ex.DW-2/1 is not valid. That apart, no evidence has been brought on record that the deceased was of sound mind at the
time of the execution of the Will.
15. Since there is no valid Will, the suit property has devolved upon all the Class-I legal heirs of the deceased according to the ordinary law of
succession. The submissions made by the parties with respect to the interpretation of the Will do not warrant consideration as there is no valid Will.
16. For reasons given above, this Court holds that the alleged Will Ex.DW-2/1 is not valid and the suit property has devolved upon the Class-I legal
heirs, namely the plaintiff and the defendants no. 1 to 3 in equal shares i.e. 1/4th share each. Issues No.1, 2 and 3 are decided in favor of the plaintiff
and against the defendants. Issue No.4 is also decided against the defendants.
17. The preliminary decree of partition is passed declaring plaintiff and the three defendants to have equal 1/4th share in the suit property.
18. List for directions on 21st February, 2019.
19. Copy of this order be given dasti to counsel for the parties under the signature of the Court Master.
