In CS(OS) 376/2020-DEL HC- Under Sec.68 of Indian Evidence Act, Will can only be proved if atleast one attesting witness appears before Court for proving its execution, clarifies Delhi HC
Justice Amit  Bansal [23-11-2022]

Read Order:SHAMPA GHOSH v. ALOK KUMAR DEY & ORS 

Mansimran Kaur

New Delhi, November 25, 2022: In a property dispute matter, the Delhi High Court has dismissed the applications filed on behalf of the defendants seeking rejection of the plaint as no grounds were made out under Order VII Rule 11 of the CPC.

Justice Amit  Bansal dismissed the applications instituted by the defendants in the present matter by observing that it could be said that the plaint did not disclose a cause of action and hence no  grounds were made out under Order VII Rule 11 of the CPC for rejection of the plaint.

The present suit was filed on behalf of the plaintiff seeking reliefs of partition, possession and permanent injunction in respect of the property situated at New Delhi. 

Subsequently, the present applications were filed on behalf of the defendants’ one and three. Factual matrix of the case was such that the suit property belonged to Late Sh. Moni, who expired in 2006, leaving behind his wife, Smt. Kamala Dey and five  children. The plaintiff as well as the first & third defendants were surviving children of Late Sh. Moni Dey. Sh. Debdas Dey, another son of the Sh. Moni Dey expired in 2011 and was survived by his daughter, Debashree Biswas, the  second defendant  herein. Another daughter of Late Sh. Moni Dey, Smt. Khela Kanwar, expired in 2019 and was survived by her son, the fourth defendant. 

After the death of Sh. Moni Dey, the first defendant propounded an unregistered Will dated March 11, 2004 executed by Sh. Moni Dey. However, it was decided by the parties mutually that the said Will would not have any bearing on the rights of the legal heirs of Sh. Moni Dey and the suit property would devolve upon Smt. Kamala Dey exclusively.

Sh. Kamala Dey expired intestate in 2018. At the time of her death, Smt. Kamala Dey was the absolute owner of the suit property. After the death of Smt. Kamala Dey, it was orally agreed between the parties that the legal heirs of Smt. Kamala Dey will use the suit property for residential purposes and make endeavours to partition the suit property by metes and bounds. It was also agreed that none of the legal heirs will deal with the suit property in any other manner. Thereafter, the plaintiff and the defendants had been residing in the suit property.

Accordingly, the present suit was filed. 

After hearing the submissions from both the sides, the Court decided the issue of Court fees. In view of the same, the Court noted that a perusal of the prayers made in the present suit, would show that the main relief claimed in the present suit was  that of partition and permanent injunction. The plaintiff had valued the suit property at Rs 2, 63, 00,000, which was  the market value of the suit property as per the circle rate. Since the plaintiff was  claiming 1/5th share in the suit property, the valuation of the same came to Rs 52,60,000 and accordingly, the court fees of Rs 53,681 was  paid, the Court stated. 

Further, for the purposes of permanent injunction, a separate court fees of Rs 200 had been paid. A perusal of the prayers made in the plaint showed that the relief of possession was not an independent relief and was only a consequential relief to the relief of partition. Though, it has been separately prayed for in prayer (c) in the plaint, however in view of this Court, it would not constitute two distinct subjects in terms of Section 17 of the Court Fees Act, 1870 the Court opined. 

“In the present case, the relief of possession is only incidental to the main relief of partition. Therefore, no separate court fees is payable on the same”, the Court further remarked. 

It was further noted by the Court that the suit was filed seeking a decree of permanent injunction, in which reliance was placed on the Will executed by Late Shri Moni Dey. However, the aforesaid Will was not proved in the said case. “Under Section 68 of the Indian Evidence Act, 1872, a Will can only be proved if at least one of the attesting witnesses appears before the court for proving its execution”, the Bench said.

Further, the aforesaid Will was filed by the defendants in the present suit and on a prima facie view, it appeared to the Bench that the Will was not signed by the attesting witnesses. Therefore, the aforesaid Will would have to be proved in the trial, the Court stated.

In furtherance of the same, the Court noted that a perusal of the reliefs claimed in the suit showed that the said suit was filed against the second defendant  herein, who was the first defendant  in the said suit and a third party, only for the limited purpose of injunction. Therefore, the scope of the said suit was not to decide the respective title of the parties to the suit property. Even otherwise, the said suit was not a contested suit, the Court further stated. 

Thus, the Bench dismissed the appeal by observing that no grounds were made out under Order VII Rule 11 of the CPC for rejection of the plaint.