My grand father's wrote his WILL (Unregistered) for his self acquired house in 1995, in the name of my grand mother and after the death of Grand Mother My father will be absolute owner of this house 28sq. ft. My father have three sister's one sister file case in 2021 for partition of the house. It is tenement, allotted to refugee's after partition of India Pakistan. The area is 28 Sq. Yd. alloted to Grand Father by rehabilition department in New Delhi. The younger sister expired in Nov. 2022, and her Legal heirs ask time from court for their reply. Second sister support the elder sister and demanded partition.
On 3rd july Judge dismiss Father elder sister partition request.
This is the latest judgement made by magistrate on 3rd July 2023. Plaintiff/ daughter has filed the suit for partition against her brother/defendant no.1 and her sisters/defendants no.2 and 3 in respect of the suit property bearing No. Double Storey, Kalkaji, New Delhi which was admittedly in the name of the deceased father Late Sh.Bhim Sen, who admittedly expired on 10.12.2011. The mother of the parties admittedly expired on 05.08.2013. The stand of the plaintiff is that the father Sh.Bhim died intestate and therefore, the plaintiff has claimed her rights in the suit property. Ld. Counsel for plaintiff submits that plaintiff has apprehensions that defendant may create third party interest in the suit property and submits that the same is being used as a commercial premises by the defendant no.1/son. On the other hand, the application is strongly opposed by the Ld. Counsel for defendant no.1 submitting that the father Late Sh.Bhim Sen had executed a Will dated 15.06.1995 whereby the said property was bequeathed in favour of the mother Smt. Bimla Rani and after her death, the said property stood bequeathed absolutely in favour of defendant no.1 At the stage of deciding the application under Order 39 Rule 1 and 2 CPC, the first and foremost question which is to be considered is whether the plaintiff has prima facie case in her favour. Since the plaintiff, in the plaint, has taken the plea that father died intestate and defendant no.1 took the stand that father executed the Will dated 15.06.1995, the defendant no.1 was called upon to produce the said document i.e. purported Will dated 15.06.1995 in original. On carefully examining the said purported Will dated 15.06.1995 which is an old torn document of the year 1995, prima facie it appears that the Will dated 15.06.1995, produced by the defendant no.1 was executed by Sh.Bhim in favour of the defendant no.1 in respect of the suit property, therefore, in my considered opinion, the plaintiff has failed on the first requirement for grant of interim relief i.e. prima facie cae. Therefore, considering the totality of the facts and circumstances, interim application moved by the plaintiff is dismissed. However, it is made clear that nothing stated herein shall tantamount to expression of any opinion on the final merits of the case which shall be decided after leading evidence and full fledged trial. Amended memo of parties is filed by the plaintiff. Written statement is filed by the LRs of defendant no.2. Time sought by plaintiff to file replication to the written statement of LRs of defendant no.2. Put up for completion of pleadings, filing of affidavit of admission denial by both the parties and framing of issues on 16.09.2023.
ADJ-02(SE)/District Courts, Saket,
