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Harcharan Singh Hazooria v. Kulwant Singh Hazooria (Mukta Gupta, J.)

ILR (2014) I DELHI 22
CS (OS)
HARCHARAN SINGH HAZOORIA …PLAINTIFF
VERSUS
KULWANT SINGH HAZOORIA & ORS. ….DEFENDANTS
(MUKTA GUPTA, J.)
I.A.NO. : 13091/2013 IN DATE OF DECISION: 01.10.2013
CS (OS) NO. : 2244/2008
Civil Procedure Code, 1908—Order XIV, Rule 15—
Application for deletion of issue. Suit praying for
partition of the suit property in equal shares as per
the Will of the late mother of the parties made in 1996.
In the Written Statement Defendant have challenged
Plaintiff’s locus standi to file the present suit—Late
mother of the parties, who was admittedly absolute
owner of the property, had alienated the suit property
during her life time vide gift deed to the answering
Defendants—Therefore, alleged Will is irrelevant, since
property was alienated before the Will came into operations. Plaintiff has disputed the validity of the
gift deeds by which Defendants claim absolute
ownership of the suit property—Plaintiff submits that
in view of Defendants admitting to the Will, Plaintiff
was no longer required to prove validity of the Will,
therefore the relevant issues be modified accordingly.
Held: There is no admission about the genuineness of
the Will by the Defendants—The Defendants being
absolute owners of the suit property, the plaintiff
cannot claim partition thereof or claim any right, or
little therein—To base a claim on a will, Plaintiff has to
prove genuineness of the Will, apart from existence.
Admission about making a Will does not amount to
admission of due execution of the Will. Therefore,
Application dismissed.

A perusal of the written statement would thus show that
wherever there is an averment regarding the Will, the
defendants have used the term “alleged Will” and have in
general denied the averments relating to the alleged Will.
Undoubtedly there is no specific denial that the Will dated
5th January, 1996 was never made. However, at the same
time there is no admission about the genuineness or legality
of the Will. In light of these facts, it is thus to be examined
whether the plaintiff is required to prove the validity of the
Will.

Gautam Sarup v. Leela Jetly
[(2008) 7 SCC 85], wherein it was observed as
follows: (SCC pp. 90 & 94, paras 16 & 28)
“16. A thing admitted in view of Section 58 of the
Evidence Act need not be proved. Order 8 Rule 5 of
the Code of Civil Procedure provides that even a
vague or evasive denial may be treated to be an
admission in which event the court may pass a decree
in favour of the plaintiff. Relying on or on the basis
thereof a suit, having regard to the provisions of
Order 12 Rule 6 of the Code of Civil Procedure may
also be decreed on admission. It is one thing to say
that without resiling from an admission, it would be
permissible to explain under what circumstances the
same had been made or it was made under a mistaken
belief or to clarify one’s stand inter alia in regard to
the extent or effect of such admission, but it is
another thing to say that a person can be permitted
to totally resile therefrom. …

CASES REFERRED TO:

  1. Kanwarjitsingh R Chadha vs. Sahebrao Gajanan Salve and others Apeal No.826 of 2013.
  2. Balathandayutham and another vs. Ezhilarasan, (2010) 5 SCC 770.
  3. S.R. Srinivasa and others vs. S. Padmavathamma, (2010) 5 SCC 274.
  4. Gautam Sarup vs. Leela Jetly [(2008) 7 SCC 85].
  5. R. Vellingiri and Gokila vs. S R Kannaian and others (Appeal No.828 of 2007.
  6. Rajan Suri and another vs. State and another, AIR 2006 Delhi 148.
  7. Thayyullathil Kunhikannan and others vs. Thayyullathil Kalliani and others, AIR 1990 Kerala 226.