Sudhir Trehan & Anr. vs Praveen Trehan And Ors
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 19 May, 2026
st
Pronounced on: 31 August, 2026
# CNR No : DLHC010414252023
+ RFA 846/2023, CM APPL. 53665/2023 & 32426/2024
and CAV 544/2023
1. SUDHIR TREHAN
S/o Late Shri B.D. Trehan …..Appellant No.1
2. SMT. ARADHANA TREHAN
W/o Shri Sudhri Trehan
Both R/o H.No. E-143, Amar Colony,
Lajpat Nagar-IV, New Delhi. ….Appellant No.2
Through: Mr. Bharat Deepak & Mr. Tarun
Kapoor, Advocates.
versus
1. SHRI PRAVEEN TREHAN
S/o Late Shri B.D. Trehan
R/o 31/22, Old Rajinder Nagar,
New Delhi. ….Respondent No.1
2. SHRI B.D. TREHAN (SINCE DECEASED)
…Respondent No. 2
3. SHRI SUNIL TREHAN
R/o No. 4/7, West Patel Nagar,
New Delhi.
…Respondent No. 3
Through: Mr. Karan Dua and Mr. Aman
Chawla, Advocates for R-1.
CORAM:
RFA 846/2023 Page 1 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Regular First Appeal under Section 96 read with Order 41 Rule 1 and
2 read with Section 151 of the Code of Civil Procedure, 1908 ( hereinafter
referred to as „CPC‟ ) has been filed on behalf of the Appellants against the
Judgment and Preliminary decree of Partition dated 22.09.2023
whereby the learned District Judge has decreed the Suit of the Plaintiff and
declared the Will dated 23.03.2004 of Smt. Smt. Krishna Trehan as null and
void and consequently, cancelled the Gift Deed dated 18.11.2008 and passed
a Preliminary Decree of Partition declaring the shares of the Plaintiff and
Defendant No. 3, namely, Mr. Sudhir Trehan as one half in the suit
property; and also assailed the Order dated 06.05.2022, whereby, upon the
demise of Defendant No. 1/Sh. B.D. Trehan during the pendency of the Suit,
the learned District Judge held that the Suit had abated qua Defendant No. 1.
2. The Plaintiff, Mr. Praveen Trehan had filed a Civil Suit bearing CS
DJ 7492/2016 for declaring the Will dated 23.03.2004 of Smt. Smt. Krishna
Trehan, as invalid and for cancellation of the Gift Deed dated 29.09.2008
executed by Mr. Sudhir Trehan , Defendant No. 3 in favour of his wife,
Smt. Aradhna Trehan , Defendant No. 4 and for Partition .
3. The facts in brief , as stated in the Plaint, are that Late Sh. Hans Raj
Trehan , grandfather of the Plaintiff and Defendant Nos. 2 and 3, and father
of Defendant No. 1, was a resident of Pakistan where he owned several
movable and immovable properties, which had to be left behind during the
RFA 846/2023 Page 2 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
partition, when he along with his family, migrated to India. In lieu thereof,
he was allotted a property at Karbala, Lodhi Road, New Delhi, in 1948 ,
which remained with him till his demise in 1976.
4. There existed a Hindu Undivided Family consisting of Late Sh.
Hans Raj Trehan and other family members. All the male members of the
family born thereafter, became coparceners/members of the HUF. The
Plaintiff, Sh. Praveen Trehan and the Defendant Nos. 2 and 3, Sh. Sunil
Trehan and Sh. Sudhir Trehan respectively, who were the sons of the
Defendant No. 1, Mr. B.D. Trehan , became the coparceners by birth in the
said HUF.
5. The Plaintiff, Mr. Praveen Trehan claimed that from the funds of
HUF, the Property bearing No. 4/7, West Patel Nagar, New Delhi-110008 ,
was purchased in the year 1956 in the name of Defendant No. 1, Mr. B.D.
Trehan (their father) only out of love and affection and being the youngest
member of the family. The Defendant No. 1 was working in the Post Office
and did not have income to purchase the suit property on his own. It was
only from the contributions made by the family members of the HUF
including the Plaintiff, that the West Patel Nagar Property was purchased
from the funds of the HUF.
6. After the purchase of the West Patel Nagar Property, the entire
Ground Floor and the two rooms on the First Floor , were constructed for
the residence and the benefit of the entire family.
7. Since the Property was purchased from the HUF funds, it was always
understood and treated to be belonging to the HUF. None of the parties ever
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Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
claimed any exclusive right in the said property and resided there and
enjoyed the benefits, being the members of HUF.
8. The Plaintiff claimed that a plot admeasuring 100 sq. yds., forming
part of property bearing No. E-143, Amar Colony, Lajpat Nagar-IV,
New Delhi , was purchased from HUF funds and contributions made by the
family members, in the name of Smt. Krishna Trehan , wife of Defendant
No. 1, Mr. B.D. Trehan , and mother of the Plaintiff and Defendant Nos. 2
and 3. Late Sh. Hans Raj Trehan , the paternal grandfather, and Sh. Jagan
Nath Marwah , the maternal grandfather of the Plaintiff and Defendant Nos.
2 and 3, had also contributed towards the purchase of the said plot and the
construction raised thereon.
9. The Plaintiff asserted that Smt. Krishna Trehan was a housewife
with no independent source of income and had no funds of her own to
purchase the property. According to him, the consideration had been paid
from HUF funds and the property was purchased in her name out of love
and affection, with the understanding that it would continue to belong to the
HUF and would not be her individual property .
10. The Plaintiff further claimed that in 1984, an adjoining plot
admeasuring 100 sq. yds. was acquired in the name of Smt. Krishna
Trehan from HUF funds, thereby increasing the total area of the Lajpat
Nagar-IV property to 200 sq. yds., (hereinafter referred to as the “suit
property” ). He asserted that he had also contributed towards its acquisition
with assistance from certain family friends, whose amounts were
subsequently repaid by him, from his own earnings.
RFA 846/2023 Page 4 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
11. The Plaintiff further claimed that after Defendant No. 1, Mr. B.D.
Trehan retired as an Inspector from the Post and Telegraph Department,
Government of India in 1986, additional construction was undertaken at the
West Patel Nagar property, to meet the growing residential needs of the
family. According to him, one room was constructed on the First Floor in
1987 , followed by further construction of the First and Second Floors
between 1990 and 1993 , entirely from his own funds, after which he shifted
to the Second Floor.
12. The Plaintiff stated that he was running a workshop under the name of
“Trix Electronics” from the Ground Floor of the West Patel Nagar
property . He claimed that, since Defendant No. 1 had already retired and
was dependent upon his pension; Defendant No. 2 was employed as a Bank
Clerk, and Defendant No. 3 was working as his Assistant, the expenditure
towards the additional construction at the West Patel Nagar property, was
borne by him.
13. The Plaintiff further claimed that with the growing residential
requirements of the family, additional construction was undertaken on the
suit property. While construction already existed on a portion thereof, in
1996, four floors and a barsati were constructed from HUF funds and
contributions made by the family members. According to the Plaintiff, it was
understood that the suit property would continue to belong to the HUF
and that all its members would have a share therein.
14. Upon completion of the construction, Defendant No. 1, Mr. B.D.
Trehan, along with his wife, Smt. Krishna Trehan, and Defendant No. 3, Mr.
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Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
Sudhir Trehan along with his family, shifted to the suit property in Amar
Colony. However, Defendant No. 2 occupied the First Floor of the West
Patel Nagar property , while the Plaintiff continued to reside on its Second
Floor and use the Ground Floor for his workshop .
15. In January 2010, Defendant No. 2 sought temporary use of a portion
of the Ground Floor of the West Patel Nagar property for the engagement
ceremony of his son . The Plaintiff claimed that he permitted such
temporary use while continuing to retain possession and control over the
said portion. However, after the ceremony, Defendant No. 2 allegedly
locked the portion and continued to occupy it, despite repeated requests to
vacate.
16. In the second week of April 2010 , when the Plaintiff again sought
restoration of the said portion of West Patel Nagar Property, Defendant No.
2 informed him that Defendant No. 1, Mr. B.D. Trehan, had executed a Gift
Deed dated 18.11.2008 in his favour, in respect of the entire West Patel
Nagar property and claimed exclusive ownership thereof. The Plaintiff
disputed the Gift Deed on the ground that the property belonged to the HUF
and that Defendant No. 1 had no authority to transfer it exclusively, in
favour of Defendant No. 2.
17. It is claimed that though, the Gift Deed was executed on 18.11.2008
but because of the mala fide intent, the Defendant No. 2 never informed the
Plaintiff about it. The Gift Deed was thus, liable to be declared as null and
void and cancelled.
RFA 846/2023 Page 6 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
18. In the month of January, 2010, the Defendant No. 2 had also informed
the Plaintiff that Smt. Krishna Trehan, their mother, had executed a Will in
respect of Amar Colony Property, in favour of the Defendant No. 3.
Though, the copy of the same was never shown to him.
19. The Plaintiff reiterated that the suit property was HUF property and
that Smt. Krishna Trehan had no independent ownership therein, so as to
validly bequeath it by Will. He claimed that the Plaintiff and Defendant Nos.
1 to 3 were each entitled to a 1/4th share in the HUF properties. His demand
for partition made on 04.05.2010 was, however, refused.
20. The Plaintiff accordingly sought a declaration that the Gift Deed
dated 18.11.2008 executed by Defendant No. 1 in favour of Defendant No.
2 and the Will , if any, executed by Smt. Krishna Trehan in respect of the
suit property, were null and void , along with consequential cancellation of
the Gift Deed . He also sought a Preliminary Decree of Partition , declaring
the Plaintiff and Defendant Nos. 1 to 3 entitled to a 1/4th share each in the
properties claimed to belong to the HUF.
21. The Defendant Nos. 1 and 3, in their Written Statement, took the
preliminary objection that the suit was liable to be dismissed as it was based
on vague and baseless allegations and was bereft of any material
particulars.
22. It was claimed that the suit was bad for non-joinder of proper and
necessary parties and if the Plaintiff‟s case was to be accepted, then the
other brothers and sisters of the Defendant No. 1, would also be necessary
party to the suit .
RFA 846/2023 Page 7 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
23. It was further asserted that the court fee paid was inadequate as the
declaration and injunction were being sought in regard to the Gift Deed
dated 18.11.2008 , which on the face of it has the recorded value of
Rs.53,68,886/- but the Plaintiff has valued the suit qua the Gift Deed as
Rs.50,00,000 /-. No Court fee has been paid in respect of the Declaration
and Injunction in respect of the suit property, the value of which is about
Rs.90,00,000/- in September, 2008 . The Plaintiff is liable to pay ad valorem
court fees.
24. It was claimed that the suit was contrary to Section 4 of the Hindu
Succession Act, 1956 and was liable to be dismissed. The Defendant No. 1,
Mr. B.D. Trehan had disowned the Plaintiff, by taking out a Public Notice
dated 04.01.2010 and had severed all his relationship because of bad
behaviour of the Plaintiff and his wife.
25. Moreover, the Defendant No. 3, Mr. Sudhir Trehan has gifted the
entire suit property to his wife, Ms. Aradhna Trehan, the Defendant No. 4
vide Gift Deed dated 29.09.2008.
26. On merits , the Defendants denied the Plaintiff’s claims. They
admitted that the Plaintiff was occupying a small portion of the Ground
Floor of the West Patel Nagar property , from where he was running an
electronic repair shop, but asserted that such occupation was merely
permissive and in the nature of a licence . The remaining portion was stated
to be in the possession of Defendant No. 1, who also occasionally stayed
with Defendant No. 3 and his family at the suit property.
RFA 846/2023 Page 8 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
27. Defendant No. 1 further asserted that he had transferred the West
Patel Nagar property to Defendant No. 2 by way of a Gift Deed dated
18.11.2008. It was contended that the Plaintiff continued to occupy portions
thereof, only by virtue of the family relationship and as a permissive
licensee, without any independent right or title in the property.
28. Defendant Nos. 1 and 3 denied the existence of any HUF comprising
of the family members . It was asserted that Defendant No. 1 had been living
separately since 1954 and had independent earnings from his service since
20.01.1948, while his brothers, Mr. Dwarka Dass Trehan and Mr. Pyare
Lal Trehan , were separately employed and residing at Meerut and Model
Basti, Delhi , respectively, and the sisters had been living in their
matrimonial homes since marriage. The plea of existence of an HUF was
denied as false.
29. Defendant No. 1 asserted that he had purchased the West Patel
Nagar property in an auction conducted by the Ministry of Rehabilitation
in 1952 from his own earnings, while serving as a Warrant Officer with
the Army . It was further claimed that the Ground Floor and part of the
First Floor were constructed in around 1955 at his expense, the remaining
First Floor around 1984 , and the Second Floor around 1990 . The
Defendants accordingly, denied the Plaintiff‟s claim of having contributed
towards either the purchase or construction of the property.
30. Defendant No. 1 further claimed that portions of the West Patel
Nagar property, including the Ground Floor and subsequently the First
Floor, had been let out by him and that the rental income was reflected in
RFA 846/2023 Page 9 of 29
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Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
his individual Income Tax Returns . He denied that the property had been
acquired from HUF funds or merely stood in his name as the youngest
member of the family.
31. As regards the suit property in Lajpat Nagar, the Defendants similarly
asserted that it had been acquired by Defendant No. 1 from his own funds,
without any contribution from the alleged HUF or other family members. It
was pointed out that at the time of its acquisition, the Plaintiff was about
four years old, Defendant No. 2 about nine years old, and Defendant No. 3
was not even been born, thereby disputing the claim that they had
contributed towards its purchase or construction.
32. Defendant No. 1 asserted that the suit property had been purchased by
him in the name of his wife, Late Smt. Krishna Trehan , to provide her
with financial security and a source of income, and that it was always treated
as her individual property.
33. It was stated that the Ground Floor, First Floor and Barsati were
constructed by 1969 and thereafter let out, with the rental income being
reflected in her Income Tax Returns . The family occupied the Ground
Floor for some time between 1976 and 1978, after which the property was
again let out till 1995 , when Defendant No. 3 shifted there and carried out
additions and renovations from his own funds.
34. The Defendants denied that either the purchase or construction of the
suit property was financed by HUF funds or by contributions from Late Sh.
Hans Raj Trehan , the Plaintiff, Defendant Nos. 2 and 3, or Sh. Jagan Nath
RFA 846/2023 Page 10 of 29
Signature Not Verified
Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
18:21:21
Marwa h. It was further asserted that the Plaintiff’s claim was barred under
Section 3(2)(a) of the Benami Transactions (Prohibition) Act, 1988.
35. Defendant No.2 Shri Sunil Trehan had already settled the matter
and had given a Statement on 26.09.2018 that he was not making any claim
in respect of the suit property.
36. The Plaintiff in the Replication , refuted the defence taken in the
Written Statement by the Defendants and reiterated the assertions made in
the Plaint.
37. From the pleadings of the parties, the Issues were framed, which are
as under:-
(i) Whether the Will Dated 23.03.2004 is liable to be
declared as illegal & void? OPP
(ii) Whether the gift deed dated 29.09.2008 is liable to be
declared as illegal & void? OPP
(iii) Whether the plaintiff is entitled to 1/4th share in the suit
property bearing no. E-143, Amar Colony, Lajpat Nagar-IV?
OPP
(iv) Relief.
38. The Plaintiff, Sh. Praveen Trehan , examined himself as PW-1 and
tendered his evidence by way of Affidavit, Ex.PW-1/A, reiterating the
assertions made in the Plaint.
39. The Defendants examined Defendant No. 3, Sh. Sudhir Trehan , as
DW-1, who tendered his evidence by way of Affidavit, Ex.DW-1/A. He
relied upon, inter alia, the Sale Deed dated 18.12.1967, Ex.PW-1/DA; Lease
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Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
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Deed dated 22.04.1965, Ex.PW-1/DC; Mutation Letter dated 22.04.1968,
Ex.DW-1/1; Revised Lease Deed dated 20.04.1985, Ex.PW-1/DB;
Conveyance Deed, Ex.PW-1/DE; Death Certificate of Smt. Krishna Trehan,
Ex.DW-1/8; Will dated 23.03.2004, Ex.PW-1/DF; Gift Deed dated
29.09.2008, Ex.DW-1/9; and Public Notice dated 04.01.2010, Ex.DW-1/10.
40. DW-2 Ms. Roopa Singh, one of the attesting witnesses to the Will
dated 23.03.2004, Ex.PW-1/DF, tendered her evidence by way of Affidavit,
Ex.DW-2/1, and deposed regarding the execution and attestation of the Will
by her.
41. The learned District Judge on appreciation of the evidence, held that
the Will dated 23.03.2004, Ex.PW-1/DF, executed by Smt. Krishna Kumari
in favour of the Defendant No. 1, Mr. B.D. Trehan, was shrouded with
suspicious circumstances and also did not find the testimony of DW-2, Smt.
Roopa Singh, as creditworthy.
42. The circumstances of the Will being drafted by Mr. B.D. Trehan,
husband of Smt. Krishna Kumari and non-examination of Dr. M.K. Gupta,
Cardiologist, who certified about the medical fitness of Smt. Krishna
Kumari, were all considered and it was held that the Will dated 23.03.2004,
Ex.PW-1/DF, was not genuine.
43. Consequently, the Gift Deed dated 29.08.2008, Ex.DW-1/9 executed
by the Defendant No. 3, Mr. Sudhir Trehan in favour of the Defendant No.
4, Ms. Aradhana Trehan, his wife, on the basis of the Will, was also held to
be null and void.
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Digitally Signed By:ANIL
KUMAR BHATT
Signing Date:31.08.2026
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44. It was further held that there was no evidence to show that the suit
property had been purchased from HUF funds. It was thus, concluded that
the Plaintiff and the Defendant No. 3 were entitled to one half share in the
suit property and the preliminary decree was accordingly passed, vide
Judgment dated 22.09.2023.
45. Aggrieved by the said Judgment, the present Regular First Appeal
has been preferred.
46. The grounds of challenge are that the preliminary decree of partition
is erroneous and contrary to the record. The Judgment has been delivered
on the Issues originally framed on 13.05.2019 and not on the reframed
additional Issue framed on 06.05.2023 . The Judgment is, therefore,
vitiated and not sustainable , in terms of under Order XIV Rule II read with
Order XX Rule V CPC which mandates that the findings on all the Issues,
must be given. No opportunity had been given to either party to lead any
evidence on the additional Issue, after it was framed on 06.05.2023.
47. It has further not been appreciated that the entire case of the Plaintiff
was based on the alleged claim of suit property being purchased from HUF
Funds, though he miserably failed to prove the alleged plea of HUF.
48. The Plaintiff had not approached the Court, with clean hands but had
filed the case on false, frivolous, baseless and untenable plea of HUF . The
Suit should have been dismissed on this premise itself and the Court cannot
assist a person, whose case is based on falsehood.
49. Furthermore, it has not been appreciated that Smt. Krishna Kumari
had left her last Will dated 23.03.2004, Ex.PW-1/DF , which was duly
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KUMAR BHATT
Signing Date:31.08.2026
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proved by the Appellants and the attesting witness, as per Section 63 of the
Indian Succession Act read with Section 68 of the Indian Evidence Act .
50. The onus of proving the suspicious circumstances around the Will,
was on the Plaintiff , which he miserably failed to discharge, in accordance
with law. The learned District Judge wrongly concluded that the Will was
not genuine and cannot be relied upon when in fact, the Will ought to have
been held as a genuine document. The onus to prove the Will propounded
by the Appellant as not genuine, was on the Plaintiff, which he had failed
to plead, prove or discharge.
51. It has not been appreciated that there were no averments in the
amended Plaint about the alleged suspicious circumstances in regard to the
Will of Smt. Krishna Kumari . In the absence of pleadings, no evidence
could have been led and thus, the finding of the learned Trial Court that the
Will was not genuine because of the alleged suspicious circumstances, is
contrary to well settled law and the facts, in the present matter.
52. It is further asserted that the circumstances of the margin left on top of
the page; the Will being hand written by Mr. B.D. Trehan, husband of Smt.
Krishna Devi and the Will being laminated, being termed as suspicious
circumstances , is not tenable . The Defendant/Appellant as DW-1 had
explained in his cross-examination that he cannot produce the second
attesting witness or Dr. M.K. Gupta, in his evidence. The Will as per Section
63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, is
required to be proved by examining one of the attesting witnesses and the
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KUMAR BHATT
Signing Date:31.08.2026
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examination of both the witnesses to prove the Will, is not the requirement of
law.
53. The circumstance of the signatures by different persons/witnesses on
the Will in different pen and ink, cannot be termed as a suspicious
circumstance. There is no requirement under law that all the persons and
witnesses signing the Will, should do so with the same pen and ink or that
they cannot use different pen.
54. Furthermore, drawing an adverse inference for the non-summoning
of the second attesting witness or Dr. M.K. Gupta , is erroneous. The
Plaintiff/Respondent could have also summoned these two witnesses, but he
did not do so because he was conscious that the Will was genuine.
55. It has been further contended that the defence of the Appellant was
that the suit property had been purchased by Mr. B.D. Trehan in the name of
his wife, Smt. Krishna Kumari, after paying the entire sale consideration. In
these circumstances , it was natural for Mr. B.D. Trehan to have
handwritten the Will, on behalf of his wife. The Will was, therefore,
asserted to be a valid and genuine document which ought to have been
relied upon, and the Suit filed by the Plaintiff, should have been in
dismissed.
56. The Will has been discarded without any positive finding that Smt.
Krishna Kumari did not intend or desire to bequeath the suit property
exclusively in favour of the Appellant, Mr. Sudhir Trehan . The learned Trial
Court also failed to appreciate that the Will reflected her intention to
exclude the other legal heirs and bequeath the suit property solely to the
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Appellant, particularly when Mr. B.D. Trehan had severed his relations with
the Plaintiff and disinherited him from his estate.
57. Furthermore, there were no discrepancies in the oral evidence of the
Defendant’s witnesses; if at all, the discrepancies noted by the learned
District Judge, were minor and bound to happen over the passage of time
and could not have been held fatal to the case of the Defendant
No.3&4/Appellants .
58. Moreover, on demise of the Defendant No. 1, Mr. B.D. Trehan, there
were two legal heirs i.e. the Plaintiff and the Defendant No. 3 already on
record on the date of his demise and only a formal Application was required
to be filed for bringing his LRs on record. The Suit could not have been
abated and, therefore, the observations in Order dated 06.05.2022 that the
Suit against the Defendant No. 1 stood abated, was incorrect.
59. The Settlement between the Plaintiff and the Defendant No. 2 Sh.
Sunil Trehan was arrived on 26.09.2018. However, after the demise of their
father, Mr. B.D. Trehan/Defendant No. 1, the impleadment of the Defendant
No. 2 was mandatory and necessary for just and proper decision of all the
disputes in the matter.
60. It has not been appreciated that at the time of demise of the Defendant
No. 1, Mr. B.D. Trehan, he was entitled to 1/4th share in the suit property
and on his demise, his 1/4th share had to go to the three legal heirs in equal
share i.e. 1/3rd of 1/4th each. The Plaintiff cannot become entitled to one
half share in the suit property, as has been held by the learned Trial Court.
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KUMAR BHATT
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61. The Suit of the Plaintiff was barred by limitation as Smt. Krishna
Kumari expired on 26.09.2005, but the Suit for Partition had been filed on
13.05.2010 i.e. after 4 years and 4 months, from her death. There is no
explanation given by the Plaintiff for the delay. A hyper technical view has
been taken in deciding the case and the evidence of the
Defendants/Appellants, has not been appreciated in the right perspective.
62. It is, therefore, submitted that the impugned Judgment be set-aside
and the Suit of the Plaintiff, be dismissed.
63. The Respondent No. 1/Plaintiff in his Written Submission s, has
reaffirmed that the testimony of the witnesses, has been rightly appreciated
by the learned District Judge. It is further reiterated that the Will had not
been proved in accordance with law, and there were suspicious
circumstances, as had been noted by the Learned District Judge.
64. It is further asserted that the Issues reframed on 06.05.2023
substantially related to the Will, Gift Deed and Preliminary Decree of
Partition, which were already covered by the Issues framed on 13.05.2019.
The only additional Issue was whether the Plaintiff was entitled to a final
Decree of Possession, which did not alter the nature of the evidence already
led by the parties. The objection regarding inconsistency in the framing of
Issues is, therefore, stated to be without substance and merely intended to
prolong the litigation, which the Plaintiff has been pursuing since 2010, to
secure his share in the suit property.
65. It is submitted that there is no merit in the present Appeal and is
liable to be dismissed.
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KUMAR BHATT
Signing Date:31.08.2026
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66. The Appellants/Defendants in the Written Submissions have
essentially reiterated the grounds as stated in the Appeal.
Submissions heard and record perused.
67. Plaintiff / Respondent No.1, Sh. Praveen Trehan had filed a Suit
for Partition, Declaration of the Will dated 23.03.2004 of his mother Smt.
Krishna Trehan bequeathing the suit property to the Appellant / Defendant
No.3 Sh. Sudhir Trehan , as null and void and sought Partition of the suit
property, which has been decreed in his name.
68. It is not in dispute that the initial 100 sq. yds . forming part of the suit
property, was purchased in the name of Smt. Krishna Trehan vide Sale
Deed dated 18.12.1967 . The construction was thereafter, raised on the
property, which remained tenanted till around 1976, whereafter Defendant
No. 1, Sh. B.D. Trehan, along with Smt. Krishna Trehan, shifted there.
Defendant No. 3, Sh. Sudhir Trehan, also subsequently, shifted to the suit
property along with his family. It is further undisputed that the adjoining
100 sq. yds . was acquired in 1984 in the name of Smt. Krishna Trehan ,
thereby making the total area of the suit property to 200 sq. yds.
69. Plaintiff Sh. Praveen Trehan asserted that although the suit property
stood in the name of his mother, Smt. Krishna Trehan , she was the
housewife with no independent source of income. According to him, the
consideration for its purchase came from the funds of the HUF of Late Sh.
Hans Raj Trehan , who had migrated from Pakistan. At the time of Partition,
he was allotted property at Karbala, Lodhi Road, New Delhi , in lieu of the
properties left behind.
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70. He claimed that the said HUF continued to exist after the death of
Sh. Hans Raj Trehan in 1976 and that the suit property had been acquired
from HUF funds.
71. Though the Plaintiff had asserted that there existed an HUF, but aside
from a bald assertion, there was no evidence whatsoever, of there being an
HUF of Shri Hansraj Trehan ever in existence or that there were any HUF
funds.
72. In his cross-examination as PW-1, Plaintiff Sh. Praveen Trehan
admitted that he did not know the name of the alleged HUF, whether it was
assessed to Income Tax or maintained any Bank Account, or what became of
it after the death of Sh. Hans Raj Trehan in 1976 . He was also unaware of
any other property acquired from the alleged HUF funds. PW-1 also
admitted that he had no documentary evidence to establish the existence of
the alleged HUF funds. Though he admitted that the initial 100 sq. yds. of
the suit property stood in the name of his mother, Smt. Krishna Trehan, he
was unable to substantiate the source of funds for its purchase.
73. As stated by the Defendants in their Written Statement, at the time of
acquisition of the suit property, the Plaintiff was about four years old,
Defendant No. 2 about nine years old, while Defendant No. 3 had not even
been born. These admissions, coupled with his inability to identify any
source or corpus of the alleged HUF, fail to substantiate the plea that the
suit property had been acquired from HUF funds.
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74. There is not an iota of evidence that the properties were ever pooled
in the HUF funds. The Ld. District Judge therefore, rightly held that there
existed no HUF or HUF Funds.
75. The suit property had admittedly been purchased by B.D. Trehan in
the name of his wife, Smt. Krishna Trehan. Section 3(2) of the Benami
Transactions (Prohibition) Act, 1988 provided that where a property was
purchased by a person in the name of his wife, it shall be presumed,
unless the contrary is proved, that the property had been purchased for
her benefit.
76. Merely because the funds for purchase of suit property were given by
Sh. B. D. Trehan, husband of Smt. Krishna Trehan, then too, it would not
make it an HUF property, especially when the existence of HUF itself, has
not been proved.
77. Significantly, PW-1 also admitted that the suit property stood in the
name of his mother, Smt. Krishna Trehan , and that she had the right and
capacity to bequeath the same. The documentary title also stood in her
name. Smt. Krishna Trehan was the owner of the suit property and, upon
her demise, was survived by her husband, Sh. B.D. Trehan/Defendant No.
1, and her three sons, namely the Plaintiff, Defendant No. 2 and
Defendant No. 3. Defendant No. 4, Smt. Aradhana Trehan, is the wife of
Defendant No. 3.
78. Once having concluded that the mother Smt. Krishna Trehan was the
exclusive owner of the suit property, then next comes the question about the
validity of the Will dated 23.03.2004 Ex.PW-1/DF executed by Smt.
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Krishna Trehan in the name of Defendant No.3 / Appellant No.1 Sh. Sudhir
Trehan.
79. The Plaintiff/Respondent No. 1 challenged the Will dated 23.03.2004,
Ex.PW-1/DF, as null and void. To appreciate the circumstances noted to
disbelieve the Will, it would be convenient to reproduce the Will, which is
as under:
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80. The two requirements are relevant for proving a Will are: its due
execution in terms of Section 63 of the Indian Succession Act, 1925 , and its
proof in accordance with Section 68 of the Indian Evidence Act, 1872 .
Section 63 requires the Will to be signed by the testator and attested by two
or more witnesses, whereas Section 68 requires that at least one of the
attesting witnesses be examined to prove its execution, if such witness is
alive, subject to the process of the Court and capable of giving evidence.
81. To prove the execution of Will , Defendant No. 3/Appellant No. 1,
Sh. Sudhir Trehan, while deposing as DW-1, stated that his shop was
situated on the Ground Floor and his residence on the First Floor of the suit
property. He admitted that he was not present when his mother, Smt.
Krishna Trehan, executed the Will dated 23.03.2004, Ex.PW-1/DF . He
further stated that, at the relevant time, he believed himself to be in his shop,
while his wife had gone to the market with their children, and that he was
unaware that his mother was executing the Will.
82. The ld. District Judge did not find the testimony of DW-1 inspiring
for the reason that despite it being an old event, he remembered with
precision. Pertinently, DW-1 admitted that Sh. Palinder Kumar Rattan , one
of the attesting witnesses to the Will, was his friend and had visited him both
before and after its execution. However, despite such acquaintance , Sh.
Palinder Kumar Rattan neither informed him that Smt. Krishna Trehan
was executing a Will nor disclosed that he had visited the suit property for
the purpose of attesting the same.
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83. Learned District Judge noted that testimony of DW-1 Sh. Sudhir
Trehan as self-demolishing and circumstances which emerge from his
testimony, raises a word of caution and calls for a closer scrutiny to the
execution of the Will.
84. The Will dated 23.03.2004, Ex.PW-1/DF , as put to the Plaintiff
during his cross-examination, is a single-page laminated handwritten
document. A bare perusal thereof, shows that nearly one-third of the upper
portion of the page has been left blank, before the recitals of the Will begin.
85. This circumstance is unusual, particularly since no satisfactory
explanation was offered for leaving such a substantial portion of the page
blank. This circumstance assumes significance as the Will was admittedly
drafted by Defendant No. 1, Sh. B.D. Trehan, the husband of Smt. Krishna
Trehan. The Plaintiff had deposed that Defendant No. 1, Sh. B.D. Trehan,
used to retain blank papers bearing the signatures of Smt. Krishna Trehan
for use in connection with matters concerning the suit property before
Government authorities. The execution of the Will, thus raised cogent
concerns.
86. The learned District Judge, therefore, rightly found that the
possibility of the Will having been prepared on a pre-signed blank paper,
could not be ruled out.
87. This is also evident from the manner, in which the Will is written and
the latter part where the witnesses have signed and the endorsement of the
Doctor is made, is not in a natural flow, but seems to have been adjusted to
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fit in a paper, clearly reflecting a document having the signatures, has
been created subsequently.
88. Furthermore, Section 68 of the Indian Evidence Act, 1872 provides
that a document which is required by law to be attested, cannot be used in
evidence unless at least one attesting witness has been called for the
purpose of proving its execution , provided such witness is alive and capable
of giving evidence, subject to the process of the Court.
89. In Daulat Ram & Ors. v. Sodha & Ors ., (2005) 1 SCC 40, the
Supreme Court observed that a Will, being a document required by law to be
attested, cannot be used in evidence unless at least one attesting witness has
been examined to prove its execution , provided such witness is alive,
subject to the process of the Court and capable of giving evidence.
90. Furthermore, in Janki Narayan Bhoir v. Narayan Namdeo Kadam ,
(2003) 2 SCC 91, para 10, where the Supreme Court explained that Section
68 requires an available attesting witness to be necessarily examined before
an attested document can be used in evidence. It further clarified that at least
one attesting witness must prove the due execution of the Will in the manner
contemplated by Section 63 of the Succession Act.
91. To prove the Will in terms of Section 68 of the Indian Evidence Act,
1872 , the Defendants examined Ms. Rupa Singh as DW-2 , one of the
attesting witnesses. She deposed that on 23.03.2004, she was called by Smt.
Krishna Trehan to the suit property, where Sh. B.D. Trehan, Dr. M.K.
Gupta and Sh. Palinder Kumar Rattan were already present. According to
her, the Will was executed voluntarily, without any force, fraud, pressure
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or coercion, and Smt. Krishna Trehan was in a sound state of mind and
understood the consequences of executing the Will .
92. DW-2 identified the signatures of Smt. Krishna Trehan at Point „A‟
and stated that the Will had been read over to her, by Sh. B.D. Trehan in
English as well as in the vernacular. She further deposed that Sh. B.D.
Trehan had stated that he had drafted the Will, at the request of his wife .
After Smt. Krishna Trehan signed the Will, DW-2 signed as an attesting
witness at Point „B‟ , followed by Sh. Palinder Kumar Rattan at Point „C‟.
She also identified the signatures of Dr. M.K. Gupta at Point „D‟ and of Sh.
B.D. Trehan at Point „E‟ , and stated that no other person was present at the
time.
93. In her cross-examination, however, DW-2 stated that although Smt.
Krishna Trehan had called her to the suit property , she came to know about
the execution of the Will, only after reaching there . She further admitted
that her name and address had already been written on the Will before she
signed it, but she did not know who had written them. She was also unable
to state who had written the endorsement relating to Dr. M.K. Gupta or
whether the said endorsement was already present, when she signed the
Will.
94. From her admission, it is quite evident that the Will was already
prepared at the time, when she reached the suit premises. She may have
signed the Will, but the circumstances clearly reflect that the Will had
been prepared, before she had reached the house of the Appellant.
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95. The testimony of DW-2 is not convincing about the fact that the
document having been executed during the lifetime of Smt. Krishna
Trehan and she had put her signatures, in the presence of two attesting
witnesses. Significantly, even though Sh. Palinder Singh Rattan happens to
be a close friend of Appellant No.1, he has not been examined . While there
is no requirement under Section 68 of Indian Evidence Act to examine both
the witnesses, but the close proximity of Defendant No.3 / Appellant No.1
to Sh. Palinder Singh Rattan, made him a more natural witness to have
been examined during the evidence.
96. The next significant aspect is Dr. M. K. Gupta , who had examined
Smt. Krishna Trehan and certified about fit condition of her health, to
execute the Will. Interestingly, DW-1 had admitted that Dr. M. K. Gupta
was not their regular treating Doctor, but was a Cardiologist, who was
living in their neighbourhood.
97. Pertinently, had he been a witness, who had genuinely examined the
Smt. Krishna Trehan, the endorsement about her fit condition would have
been made by him rather than it already being endorsed by Sh. B. D.
Trehan, husband of Smt. Krishna Trehan. The very fact that endorsement
had already been written, when Dr. M. K. Gupta has signed on it, creates a
doubt if he actually examined Smt. Krishna Trehan to certify about her
fitness, or merely signed a Will already prepared by Mr. B.D. Trehan.
98. Learned District Judge, while highlighting all the circumstances,
rightly held that the Will was manipulated on the blank signed paper of
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Smt. Krishna Trehan as available with Mr. B. D. Trehan and was not a
genuine document and rightly declared it as null and void.
99. Once the Will dated 23.03.2004, Ex.PW-1/DF was declared as null
and void , the Gift Deed dated 29.09.2008, Ex.DW-1/9, executed by
Appellant No.1 in favour of Defendant No.4 Smt. Aradhana Trehan, his
wife, automatically gets vitiated , for he could not have gifted a property, in
respect of which he did not have absolute ownership . The Gift Deed can be
held valid, only in respect of his half-share , which he has inherited on the
demise of his mother Smt. Krishna Trehan, but not in respect of the half-
share, which has devolved on the Plaintiff upon the demise of Smt. Krishna
Trehan.
100. Having held that there was no Will executed by Smt. Krishna Trehan,
on her demise, the suit property was inherited by her husband Sh. B. D.
Trehan and her two sons, who were Defendant Nos.2 and 3. Insofar as
Defendant No.2 Shri Sunil Trehan is concerned, he had already settled the
matter and had given a Statement that he was not making any claim in
respect of the suit property. Therefore, there remained only three claimants.
101. After demise of Sh. B. D. Trehan , there survived only two Legal
Heirs i.e. Plaintiff / Respondent No.1 and Defendant No.3 / Appellant No.1.
Thereby, Ld. District Judge has rightly granted half equal shares in the suit
property to both, i.e. Plaintiff and Defendant No.3.
102. The Appellant had taken an objection that the Issues were reframed
on 06.05.2023 , but the findings have been given on the Issues framed earlier
on 13.05.2019 , thereby vitiating all the findings.
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103. To appreciate this contention, the issues framed on two dates are
reproduced as under:
Issues framed on 13.05.2019
(i) Whether the Will dated 23.03.2004 is liable to be declared as illegal and
void? OPP
(ii) Whether the Gift Deed dated 29.09.2008 is liable to be declared as
illegal and void? OPP
(iii) Whether the Plaintiff is entitled to 1/4th share in the suit property
bearing No. E-143, Amar Colony, Lajpat Nagar-IV, New Delhi? OPP
(iv) Relief.
Issues reframed on 06.05.2023
(i) Whether the Will dated 23.03.2004 of Smt. Krishna Trehan is genuine or
not? Onus to prove upon respective parties.
(ii) Whether the Gift Deed dated 29.09.2008 is liable to be declared as
illegal and void? OPP
(iii) Whether the Plaintiff is entitled to a Preliminary Decree of Partition as
prayed for in Clause (cb)? OPP
(iv) If the answer to Issue No. (iii) is in the affirmative, whether the Plaintiff
is entitled to a Final Decree of Partition? OPP
(v) Relief.
104. The Respondent, however, has contended that there is no substantial
difference between the Issues originally framed on 13.05.2019 and those
reframed on 06.05.2023. According to the Respondent, Issues No. 1 to 3
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essentially remained the same and only their language and onus were
modified . It is further contended that the Issues were reframed in the
presence of the parties and, thereafter, the Appellants neither sought
permission to lead any additional evidence nor sought to file any
additional written submissions, but proceeded to address arguments on the
merits.
105. The aforesaid comparison would make it clear that the all the issues
were the same though differently worded and the only new issue was
whether the parties are entitled to decree of final partition, which is yet to
be considered. There is no prejudice caused to the parties, meriting any
interference on this ground.
Conclusion:
106. There is no infirmity in the reasoning given by the learned District
Judge to hold the Will as null and void and partitioning the suit property in
two equal shares between Resopndent No.1 / Plaintiff and Appellant No.1 /
Defendant No.3.
107. There is no merit in the present Regular First Appeal, which is
hereby, dismissed . Pending Applications are also disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
AUGUST 31, 2026 /RS/R
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