DELHI DISTRICT COURT

MRS. GEETIKA BAHL VS. SH. KRISHAN TIWARI

DATED : 22.12.2018

Summarised Judgement (Scroll for Complete Judgement)

Introduction:

This judgement shall dispose of the suit filed by the plaintiff for partition and permanent injunction against the defendants in respect of property bearing No. 9-A/82, W.E.A, Karol Bagh, New Delhi.

Facts of the Case:

Briefly stated the case of the plaintiffs is that late S. K. Tiwari the father of plaintiffs died on 07.06.2003 leaving behind Will dt 07.02.2003 executed in their favour thereby bequeathing his estate on all the plaintiffs in equal share.

Grandfather of the plaintiffs namely Sh. Desh Raj Tiwari had three sons and one daughter namely late Sh. Surender Kumar Tiwari, Sh. Krishan Tiwari i.e. efendant No.1, Sh. Rakesh Tiwari i.e. defendant No.2 and Smt. Nargis Vohra i.e. defendant No.3.

Grandfather of the plaintiffs owned a house bearing No. 9-A/82, W.E.A., Karol Bagh, New Delhi. The said House was the self acquired property of late Sh. Des Raj Tiwari. Sh. Des Raj Tiwari died on 20.01.2003 intestate. Father of the plaintiffs was residing/occupying the ground floor of the said property and defendant No.1 is residing on the second floor and defendant No.2 is residing on the first floor of the said property.

Unfortunately, Sh. S. K. Tiwari, the father of the plaintiffs died CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 2 of 14 on 07.06.2003 leaving behind plaintiffs as his only legal heirs and thus plaintiffs inherited the estate/properties, shares, rights in all the properties held, own and possessed by their father. It is stated that Sh. S.K.Tiwari by way of registered Will dated 07.02.2003 bequeathed his share in the partnership business and his 1/4th share in the immovable property bearing No. 9-A/82, W.E.A, Karol Bagh, Delhi in favour of his daughters i.e. plaintiffs in equal shares.

Observation of Court:

Admittedly, plaintiffs are settled in their matrimonial home but they do have legal right in the property in case their father was having share in the suit property. Defendant No. 3 did not dispute that plaintiffs are legal heirs but disputing that plaintiffs' father executed the Will in favour of plaintiffs. It has already been discussed herein before that irrespective of the Will plaintiffs being legal heirs are entitled to inherit the estate of deceased Sh. S.K. Tiwari particularly when no other Will is set up to have been executed by Sh. S.K. Tiwari. What defendant No. 3 is talking about is the physical possession of any part of the suit property by the plaintiffs but in the present suit neither defendants No. 1 and 2 nor defendant No. 3 have pleaded ouster of the plaintiffs from the suit property. In this circumstance principle that possession of one co-owner is on behalf of all co-owner is squarely applicable in the present suit and therefore plaintiffs being in legal possession are liable to pay fixed court fees. Hence, issue No.3 is decided in favour of the plaintiff and against the defendants.

Judgement:

Relief In view of the above discussion, suit of the plaintiffs is allowed and preliminary decree of partition is hereby passed in favours of the plaintiffs CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 13 of 14 thereby declaring that plaintiffs are jointly and each of the defendants are individually entitled to 1/4th share in the suit property bearing No. 9-A/82, W.E.A. Karol Bagh, Delhi.

Decree of permanent injunction is also hereby passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, assignee, legal heirs etc not to part with possession of the suit property or create third party interest in any manner in the suit property till the time suit property is partitioned by meats and bound or otherwise partition takes place.

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DELHI DISTRICT COURT

MRS. GEETIKA BAHL VS. SH. KRISHAN TIWARI

DATED : 22.12.2018

IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL DISTRICT

JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI

CS No. 9684/2016

1. Mrs. Geetika Bahl, W/o Sh. Jeewan Mohan Bahl, R/o E-168/169, IIIrd Floor, Amar Colony, Lajpat Nagar, New Delhi.

2. Mrs. Deepika Kalra, W/o Sh. Ajay Kalra, R/o 26/14, Second Floor, West Patel Nagar, New Delhi- 110008

3. Mrs. Neetika Chopra, W/o Sh. Sunil Chopra R/o 61/16, Old Rajender Nagar, New Delhi-110060                                                  .... Plaintiffs

VERSUS

1. Sh. Krishan Tiwari S/o Late Sh. Desh Raj Tiwari, R/o 9-A/82, W.E.A. 2nd Floor, Karol Bagh, New Delhi.

2. Sh. Rakesh Tiwari, S/o Late Sh. Desh Raj Tiwari, R/o 9-A/82, W.E.A 1st floor, Karol Bagh, New Delhi.

3. Smt. Nargis Vohra D/o Late Sh. Desh Raj Tiwari R/o 61/15, Old Rajiinder Nagar, New Delhi - 110060                                       ............... Defendants

Date of institution of present suit  :          18.05.2004

Date of receiving in this court       :          29.11.2018

Date of Judgment                          :          22.12.2018

Suit for Partition and Permanent Injunction

JUDGEMENT

This judgement shall dispose of the suit filed by the plaintiff for partition and permanent injunction against the defendants in respect of property bearing No. 9-A/82, W.E.A, Karol Bagh, New Delhi.

Case of the plaintiffs

1. Briefly stated the case of the plaintiffs is that late S. K. Tiwari the father of plaintiffs died on 07.06.2003 leaving behind Will dt 07.02.2003 executed in their favour thereby bequeathing his estate on all the plaintiffs in equal share.

2. Grandfather of the plaintiffs namely Sh. Desh Raj Tiwari had three sons and one daughter namely late Sh. Surender Kumar Tiwari, Sh. Krishan Tiwari i.e. defendant No.1, Sh. Rakesh Tiwari i.e. defendant No.2 and Smt. Nargis Vohra i.e. defendant No.3.

3. Further grandfather of the plaintiffs namely Sh. Desh Raj Tiwari along with defendant No. 1 and 2 and father of the plaintiffs namely Sh. S. K. Tiwari was doing business of printing in partnership under the name and style of M/s British India Press at H-35/2, Connaught Circus, New Delhi. After the death of grandfather of the plaintiff, father of the plaintiffs and defendant No. 1 and 2 continued the partnership firm in equal share.

4. Grandfather of the plaintiffs owned a house bearing No. 9-A/82, W.E.A., Karol Bagh, New Delhi. The said House was the self acquired property of late Sh. Des Raj Tiwari. Sh. Des Raj Tiwari died on 20.01.2003 intestate. Father of the plaintiffs was residing/occupying the ground floor of the said property and defendant No.1 is residing on the second floor and defendant No.2 is residing on the first floor of the said property.

5. Unfortunately, Sh. S. K. Tiwari, the father of the plaintiffs died CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 2 of 14 on 07.06.2003 leaving behind plaintiffs as his only legal heirs and thus plaintiffs inherited the estate/properties, shares, rights in all the properties held, own and possessed by their father. It is stated that Sh. S.K.Tiwari by way of registered Will dated 07.02.2003 bequeathed his share in the partnership business and his 1/4th share in the immovable property bearing No. 9-A/82, W.E.A, Karol Bagh, Delhi in favour of his daughters i.e. plaintiffs in equal shares.

6. Plaintiffs approached the defendants No.1 and 2 through defendant No.3 to settle the accounts of the partnership business M/s British India Press and with respect to the 1/4th undivided share in the immovable property bearing No. 9-A/82, W.E.A, Karol Bagh, Delhi but despite the said approach and service of legal notice dt. 12.01.2004 the defendants have failed to settle the accounts of partnership firms and partition the suit property. Hence, plaintiffs have filed the present suit for partition of the above said property.

7. Upon summons being served, defendant No. 1 & 2 filed joint written statement. Defendant No. 1 & 2 except denying the execution of Will by father of the plaintiffs in favour of the plaintiffs did not dispute the narratives as pleaded by plaintiffs but disputed that Sh Des Raj Tiwari died intestate. It has been stated that property No. 9-A/82, WEA, Karol Bagh, Delhi was self acquired property of Sh. Desh Raj Tiwari, who had executed Will dt. 22.10.2002 in respect of above said property thereby bequeathing the said property upon defendant No. 1 and 2 in equal share. 

As per defendant No. 1 & 2 father of the plaintiffs was excluded from inheriting any share in the suit property and plaintiffs knew of the Will dt 22.10.2002 of late Sh. Des Raj Tiwari. It has been further submitted that entire ground floor is in possession of defendants where they are carrying on business activities. Plaintiffs are not in possession of the suit property. Rest of the allegation has been denied.

CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 3 of 14 Case of defendant No.3

8. Defendant No. 3 filed written statement submitting therein that plaintiff have indulged in material suppression as well as misstatement of facts. Defendant No. 3 is the eldest among three brothers and a sister. She is also paternal aunt (Bua) of the plaintiffs. It is pertinent to mention here that the property bearing No. 9-A/82, WEA, Karol Bagh, New Delhi was built with the funds and through the efforts of the father of the defendants late sh. Desh Raj Tiwari.

9. It is further mentioned that partnership firm in question i.e. M/s British India Press was also created out of the funds and capital generated by the last Sh. Desh Raj Tiwari. Furthermore, it was through his efforts that the said partnership firm developed into a full fledged business entity. Sh. Desh Raj Tiwari died on 20.01.2003.

10. Father of the plaintiff and brother of the defendants Sh. S. K. Tiwari and defendant No. 1 & 2 were separately inducted as partners in the said firm in the year 1958 and 1974 respectively in order to train them in business. They had no contribution whatsoever to the creation of the said firm. No funds had been contributed by them towards the same. They were included in the said firm merely because they were the sons of the late Sh. Desh Raj Tiwari. All the defendants and Sh. S.K.Tiwari were living in the suit property jointly.

11. It is further stated that mother of the plaintiffs and the wife of Sh. S. K. Tiwari died in the year 1977. After the death of mother of the plaintiffs it was defendants who had taken care of their nutrition, health, education as well as their marriage. Sh. S.K.Tiwari did not even participate in the business of the firm. The reason for this was his alcoholism and addiction to pan masala, betel and zarda.

CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 4 of 14

12. The contents of the alleged Will, in fact, betray a complete lack of appreciation of relevant fact. In the alleged Will there are such facts, which are completely untrue. Defendant No. 3 that Sh. S. K. Tiwari would never have singed such a Will if he had perused the contents thereof even cursorily, moreover, to strangers witness the said Will. One of the witness, conveniently is the brother of the husband of the plaintiff No. 1.

13. The alleged Will of 7th February 2003 purportedly executed by Sh. S. K. Tiwari is a procured document and has not been signed by S. K. Tiwari out of his free will and is a product of undue influence, coercion and pressure applied on a dying man by the plaintiff and their husbands.

14. It is further stated that answering defendant is a Professional Assistant in the Library of Guru Tegh Bahadur Khalsa College, University of Delhi and she had taken Rs. 12,000/- from her college and a sum of Rs. 10,000/- from Khalsa College Cooperative Thrift & Credit Society Ltd. and constructed a room in the ground floor of the suit property.

15. It is asserted by defendant No. 3 that plaintiffs have never been in possession of any portion of the suit property. They are happily ensconced in their own matrimonial home and come to visit the suit property once in a while during major festivals or family ceremonies after seeking permission of the defendants. The ground floor is fact in possession of the defendant No. 3. The plaintiffs are not entitled to any relief as prayed for in the plaint.

Replication

16. Plaintiff has filed replication thereby denying the contents of the written statements and reiterating the contents of the plaint.

Issues

17. On the pleadings of the parties, following issues were framed by CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 5 of 14 the Ld. 

Predecessor vide order dated 15.09.2005:-

1. Whether the suit is barred under Section 23 of Hindu Succession Act, 1956? OPD3

2. Whether the plaintiffs are not in possession of any portion of suit property? If so, its effect on court fees and jurisdiction? OPD3

3. Whether the suit is not maintainable for want of probate with regard to the Will in question? OPD3

4. Whether the plaintiffs has no locus standi to file the suit? OPD1

5. Relief

18. Vide order dt 31.07.2007 an additional issue was framed to the following effect:-

Whether the Will dated 22.10.2002 was executed by deceased Sh. Des Raj Tiwari? If so, its effect? OPD 1&2 Plaintiffs' Evidence

19. Plaintiff No.1 examined herself as PW1 who filed her affidavit Ex P-1 in her examination-in-chief and relied upon his father's Will Ex PW1/1 (exhibition of Will was objected being photocopy) and Site Plan Ex. PW1/2 (exhibition of Site Plan was objected to for the mode of proof). She was cross examined by the defendants no. 2 and 3 separately.

20. Plaintiffs examined Sh. Vishal Mohan Bahl as PW-2 who tendered his affidavit Ex. PW2/A in his examination-in-chief and relied upon Will already Ex. PW1/1 (exhibition of Will was objected to for the mode of proof). He was cross-examined by the defendants no. 1, 2 and 3 separately.

Thereafter, plaintiffs closed their evidence.

Defendants' Evidence

21. Defendant No.1 did not lead any evidence. Defendant No.2 examined himself as D2W1 and tendered his affidavit in his examination-in- CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 6 of 14 chief Ex. D2W1 and relied upon copy of Saral Forms Mark A and Will already Ex. PW1/D1. He was cross examined by the plaintiffs.

22. Defendant no. 2 also examined Smt. Tara Dubey as D2W2 who filed her affidavit. She is stated to be witness to the Will stated to have been executed by Sh. Des Raj Tiwari. She was cross examined. Thereafter defendant No.2 closed his evidence.

23. Defendant no. 3 examined herself as D3W1 and tendered her affidavit in examination-in-chief Ex. D3W1/A and relied upon following documents:-

1. Registration Card issued by Rajiv Gandhi Cancer Institute and Research Centre, Delhi dated 27.01.2003 Ex. D3W1/1

2. Photocopy of investigation report dated 01.02.2003 issued by Rajiv Gandhi Cancer Institute and Research Centre, Delhi Mark A

3. Incomplete Will, executed by Sh. S.K. TiwariEx. D3W1/3,

4. Site Plan Ex. D3W1/4

5. Certificate dated 01.06.2004 of Guru Tegh Bahadur Khalsa College, University of Delhi Ex. D3W1/5

6. Certificate dated 01.06.2004 issued by Khalsa College Co-operative Thrift & Credit Society Ltd. Ex. D3W1/6

7. Photocopies of 9 photographs Mark B

8. Complaint dated 14.03.2005 Ex. D3W1/16 She was cross examined by the plaintiffs. Thereafter defendant no. 3 closed her evidence.

Findings

24. After going through the pleadings, evidence, material on record and appreciating the arguments of respective Counsel for the parties, issue wise findings are as under:-

CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 7 of 14 ISSUE No. 3:- Whether the suit is not maintainable for want of probate with regard to the Will in question? OPD3 ISSUE No. 4:- Whether the plaintiff has no locus standi to file the suit? OPD1

25. Issues No. 3 and 4 are taken up together ahead of all other issues. Onus to prove issue No. 3 is upon the defendant No. 3 and onus to prove issue No. 4 is upon the defendant No. 1. Defendant No. 3 has raised objection that since plaintiff's have not obtained probate of the Will of Sh. S.K. Tiwari, the father of the plaintiffs, therefore, present suit is not maintainable. Defendants No.1 and 2 have raised objection that plaintiffs have no locus standi to seek partition.

26. Before discussing further it is made clear that obtaining probate is not mandatory in Delhi unless dispute regarding the existence and validity of Will is raised. No doubt defendant No. 3 in her written statement has disputed the execution and existence of Will dated 07.02.2003 stated to have been executed by Sh. S. K. Tiwari in favour of the plaintiffs but this Court does not think it necessary to discuss the Will dated 07.02.2003 stated to have been executed by Sh. S. K. 

Tiwari for the reason that it is not in dispute that all the plaintiffs are daughters of late Sh. S. K. Tiwari. It is also not the case of any of the parties that Sh. S.K. Tiwari has left behind other legal heirs other than plaintiffs. It is also not the case of any of the party to the suit that Sh. S. K. Tiwari had executed another Will thereby bequeathing his estate upon persons other than the plaintiffs. 

It is the case of the plaintiff that their father executed Will thereby bequeathing his estate equally upon all his legal heirs i.e. plaintiffs. Even otherwise as per Hindu Succession Act if Hindu male dies intestate the first class legal heirs of the said male Hindu inherits the estate of deceased male Hindu in equal share. Thus, plaintiffs being the only first class legal heirs are certainly entitled to inherit the estate of deceased Sh. S. K. Tiwari in equal share. 

Therefore, irrespective of Will dated 07.02.2003 plaintiffs are even otherwise entitled to inherit the estate of deceased Sh. S. K. CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 8 of 14 Tiwari as per Hindu Succession Act and for the same reason plaintiffs have locus standi to file the present suit. Therefore, in view of above discussion, issues No. 3 and 4 are decided in favour of plaintiffs and against the defendants.

ISSUE No. 1:- Whether the suit is barred under Section 23 of Hindu Succession Act, 1956? OPD3

27. Onus to prove this issue has been cast upon defendant No. 3. Although it is immaterial who share the burden of proving this issue because this is an legal issue because as per Section 23 of Hindu Succession Act there is legal bar on the female heirs to seek partition of dwelling unit.

28. The present suit no doubt was instituted in the month of May, 2004 when Section 23 was existing in statue book. It is also not in dispute that w.e.f. 09.09.2005 the said Section 23 has been deleted by Hindu Succession (Amendment) Act 2005. This suit remained pending from 2004 till 2018 i.e. for 14 years. The plaintiffs being the female legal heirs of Late Sh. S.K. Tiwari might not have been able to seek partition of the dwelling units in view of Section 23 of Hindu Succession Act at least on the day when the suit was instituted but after 09.09.2005 the said legal inhibition was over. Hence, plaintiffs' present suit if it had been instituted after 09.09.2005 would not have suffered from such legal infirmity.

29. Now the question which arises is whether after 14 years it is in the interest of justice to deny such right if even otherwise plaintiffs are entitled to do so in the current regime of law w.e.f 09.09.2005 and whether after 14 years plaintiff be relegated back to original position to re-institute fresh suit for partition. Adopting such approach would be hyper-technical as admittedly as on date suit filed by the plaintiffs being female legal heirs would be maintainable. 

No doubt lis is decided on the basis of law prevailing on the date of institution of the suit but if in the present suit in the present suit a CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 9 of 14 hyper-technical approach is adopted it will result into miscarriage of justice as it will not only result into wastage of time of litigating parties of the present suit but also result into wastage of precious judicial time. Hence, this court is of the view that with the amendment in Hindu Succession Act, 2005 plaintiffs legal inability stands cured.

30. Apart from this, this court is also of the view that since plaintiffs are claiming their right through their father who was certainly male member and was entitled to seek partition of the suit property, therefore, plaintiffs having been stepped into the shoes of their father draw their rights from the male member of the family and are therefore, certainly entitled to seek partition. Therefore, present suit is not hit by Section 23 of Hindu Succession Act, 1956.

ADDITIONAL ISSUE:- Whether the Will dated 22.10.2012 was executed by deceased Sh. Desh Raj Tiwari? If so, its effect? OPD1 &2

31. Onus to prove this issue is upon defendants No. 1 and 2. This is the crucial issue upon which final fate of the case depends. Both defendants No. 1 and 2 has set up the Will dt. 22.10.2002 of late Sh. Des Raj Tiwari but defendant No. 3 is silent as to existence of the Will. In order to prove the Will dt 22.10.2002 in terms of Section 68 of Evidence Act defendants have examined Smt. Tara Dubey, the sister of deceased Sh. Desh Raj Tiwari.

32. Smt. Tara Dubey in her examination-in-chief deposed that late Sh. Desh Raj Tiwari informed her sometime in October' 2003 that he wants to execute the Will and then he came to her house on 22.10.2003 with one Mr. Sumit Kumar Sharma who was an advocate by profession. She further deposed that Late Sh. Desh Raj Tiwari showed her a Will drafted by him and read the Will to her after which he in their presence affixed his signature at point A of the Will Ex. PW2/1 and thereafter she signed the Will at point B and Sh. Sumit Kumar Sharma thereafter signed at point C. 

She further CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 10 of 14 deposed that by way of said Will the suit property was devolved upon his two sons defendants No. 1 and 2 in equal share. Father of the plaintiff and defendant No. 3 was not given any share. His business being run under the name and style of M/s British Inida Press and tenancy right of the shop was also bequeathed upon defendant No. 2.

33. Smt Tara Dubey filed her affidavit Ex. D2W2/A in examination- in-chief on 24.10.2010. She was cross examined on 08.05.2015, 24.11.2015 and on 30.03.2016 in this matter as well as in the connected matter bearing suit No. 10035/16 titled as Geetika Bahal v. Krishan Tiwari.

34. During her cross-examination she was incoherent in her testimony. She deposed that her signature is at point X1, that of Late Sh. Desh Raj Tiwari at point X2. She further stated that the Will was also signed by her son Karan Dubey and when she was asked to identify the signature of Karan Dubey she stated that it was put just bequeathed her signature. When it was pointed out that where she is pointing out to be the signature of Karan is in fact address is mentioned then she stated that somebody else had signed on that day in her presence. 

But she was unable to identify his signature. She further told that her brother had 3-4 children namely Krishan Tiwari, Prem, Guddi Tiwari and Babli Tiwari. When the original Will was shown to her she identified her signature at point X1, that of her brother at point X2 and said that at point X3 the signature of some Shyam Lal & Sons is there. She further deposed that besides her and her brother one Guddi Tiwari her niece was also present. 

She voluntarily stated that Will was scribed at Connaught Place. She further deposed that Will was prepared before her and it was handwritten and the Will was executed in some restaurant at Connaught Place and again stated that it was executed in the house of her brother. Handwritten Will is in her possession and she is still in possession thereof. When she was asked in whose favour his brother executed the Will she deposed that it was executed in her favour as well as in favour of Guddi Didi. 

Question was repeated again and CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 11 of 14 she again repeated the same. She further deposed that when she signed the Will besides her, her brother Late Sh. Desh Raj Tiwari, Guddi Didi, Milli Bhaiya and their family members were present. She deposed that in her presence no other person signed the Will in question.

35. Number of times it has been observed by the Court that witness because of her old age was unable to understand the questions and answers properly. Her testimony cannot be relied upon because of many contradictions as has been noted above. As per her the Will she witnessed was in her favour and in favour of one Guddi Didi and the Will was handwritten but the Will which is propounded by the defendants No.1 & 2 is a printed one and in favour of defendants No. 1 and 2. 

Thus this witness cannot be relied for the purpose of proving the Will dated 22.10.2002 of Late Sh. Desh Raj Tiwari. No other witness has been examined by the defendant for the purpose of proving the Will dt 22.10.2002 of late Sh. Des Raj Tiwari. Merely because plaintiff in her cross-examination admitted that she knew of the Will will not amount to prove of the Will. Testimony of other witness is not relevant for proving the Will therefore need not be discussed at all. Thus, defendants No. 1 and 2 have failed to prove the Will dt 22.10.2002 of late Sh. Des Raj Tiwari and accordingly additional issue is decided against the defendants and in favour of the plaintiffs.

ISSUE No. 2:- Whether plaintiffs are not in possession of any portion of the suit property? If so, its effect on court fees and jurisdiction? OPD3

36. Onus to prove this issue is upon defendant No. 3. Admittedly defendant No. 3 is not in possession of the suit property. Her stand in the present suit is not understandable because on the one hand she is bitterly opposing the plaintiffs but at the other hand she is not supporting defendants No.1 and 2 so far Will of her father is concerned.

37. Defendants No. 1 and 2 are in possession of the suit property but CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 12 of 14 they have not pleaded ouster of the plaintiffs from the suit property. Hon'ble Supreme Court in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Ahmed Mohiuddin Kamisul Quadri; (1971) 1 SCC 597 held that possession of one co-owner is presumed to be on behalf of all co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. 

It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them. It is thus only when such ouster is pleaded and established then such co-owner is required to pay advolerem court fee in a suit for partition and possession of separate possession of his/her share. 

The objection regarding plaintiffs not being in possession has been taken by defendant No. 3 who is admittedly resident out of the suit property. Admittedly, plaintiffs are settled in their matrimonial home but they do have legal right in the property in case their father was having share in the suit property. Defendant No. 3 did not dispute that plaintiffs are legal heirs but disputing that plaintiffs' father executed the Will in favour of plaintiffs. 

It has already been discussed herein before that irrespective of the Will plaintiffs being legal heirs are entitled to inherit the estate of deceased Sh. S.K. Tiwari particularly when no other Will is set up to have been executed by Sh. S.K. Tiwari. What defendant No. 3 is talking about is the physical possession of any part of the suit property by the plaintiffs but in the present suit neither defendants No. 1 and 2 nor defendant No. 3 have pleaded ouster of the plaintiffs from the suit property. 

In this circumstance principle that possession of one co-owner is on behalf of all co-owner is squarely applicable in the present suit and therefore plaintiffs being in legal possession are liable to pay fixed court fees. Hence, issue No.3 is decided in favour of the plaintiff and against the defendants.

Relief In view of the above discussion, suit of the plaintiffs is allowed and preliminary decree of partition is hereby passed in favours of the plaintiffs CS No. 9684/2016 Geetika Bahl Vs. Krishan Tiwari & Ors. Page No. 13 of 14 thereby declaring that plaintiffs are jointly and each of the defendants are individually entitled to 1/4th share in the suit property bearing No. 9-A/82, W.E.A. Karol Bagh, Delhi.

Decree of permanent injunction is also hereby passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, assignee, legal heirs etc not to part with possession of the suit property or create third party interest in any manner in the suit property till the time suit property is partitioned by meats and bound or otherwise partition takes place.

Preliminary decree sheet be prepared accordingly.