Parneet Kaur vs Baljeet Kaur & Ors on 21 July, 2026

July 29, 2026

Delhi High Court – Orders

Parneet Kaur vs Baljeet Kaur & Ors on 21 July, 2026

1. This application under Order XVIII Rule 1 read with Section 151 of
CPC has been filed on behalf of Defendant No.18 for a direction to
Defendant No.21 to first lead evidence and prove the Will dated 18.12.1974
executed by Late Mrs. Rukman Kaur.

SPONSORED

2. The instant Suit is one for partition of a property bearing G-34, Green
Park, New Delhi (hereinafter referred to as “Suit Property”).

3. The facts as stated in the Plaint reveal that the Suit Property belonged
to one Late Mrs. Rukman Kaur. It is stated that Late Mrs. Rukman Kaur
died intestate on 18.12.1974 and her husband Late Sobha Singh also died

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intestate on 19.03.1984. It is stated that they both died intestate, leaving
behind 10 children i.e., six sons and four daughters. It is stated that the
Plaintiff and the Defendants herein are grandchildren of Late Mrs. Rukman
Kaur. In paragraph No.6 of the Plaint, the Plaintiff has apportioned the share
which according to the Plaintiff is the share of each of the Parties i.e., the
Plaintiff and the Defendants, barring Defendant No.21. It is the case of the
Plaintiff that Defendant No.7 has refused the claim of the Plaintiff for
partition and, therefore, the present Suit seeking partition of the Suit
Property has been filed.

4. Defendant No.21 in its written statement states that Late Mrs.
Rukman Kaur executed a Will dated 18.12.1974, written in Gurmukhi,
whereby she bequeathed 2/7th share in the Suit Property in favour of her one
son namely Sh. Surinder Singh and the remaining 5/7th share in the Suit
Property to her other 5 sons namely Sh. Mohinder Pal Singh, Sh. Khushwant
Singh, Sh. Davinder Singh, Sh. Yashpal Singh and Sh. Harjeet Singh
(having 1/7th share each). It is stated that subsequent to passing away of
Late Mrs. Rukman Kaur, there were some family arrangements between the
family and Release Deeds were executed by a few family members and
ultimately Defendant No.7 became the absolute owner of the Suit Property
who, thereafter, sold the Suit Property to one Mr. Dhankesh Yadav and Mr.
Ajit Kumar from whom Defendant No.21 has purchased the Suit Property.
Therefore, Defendant No.21 claims the entire Suit Property in the said
fashion.

5. After completion of pleadings and admission/denial of documents,
this Court vide Order dated 29.01.2026 had framed the following issues:

i. Whether Late Mrs. Rukman Kaur was the exclusive

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owner of property bearing Municipal No.G-34, Green
Park, New Delhi [“Suit Property”] and whether the Suit
Property devolved intestate upon the heirs/branches as
pleaded in the plaint? (OPP)

ii. Whether the Plaintiff is entitled to a share in the Suit
Property; if so, what is the Plaintiff’s share? (OPP)

iii. Whether any of the heirs/branches (including Plaintiff’s
branch and/or other Defendants) have validly
transferred/ relinquished/alienated their respective
undivided shares in the Suit Property by registered
instruments; if so, to whom and to what extent, and with
what legal effect on the Plaintiff’s claim for partition?
(OPD/OPD-21)

iv. Whether Defendant No. 21 (M/s Rubel Florist Pvt. Ltd.)
has acquired lawful right/title/interest in the Suit
Property (wholly or in part), and if so, whether it is
binding on the Plaintiff and other parties? (OPD-21)

v. Whether the Suit Property (or any share therein) stood
sold /alienated prior to institution of the Suit (including
the alleged sale in June 2022)? (OPD-21)

vi. Whether the Plaintiff is or has been in joint possession of
the Suit Property as pleaded? (OPP)

vii. Whether the Suit has been properly valued for purposes
of court-fee and jurisdiction; and whether the court-fee
paid is sufficient in view of the finding on Issue No. 6?
(OPP/OPD-21)

viii. Whether the Plaintiff has a valid and subsisting cause of
action for partition as pleaded (including the alleged
refusal in/after October 2022), or whether the Suit is
barred/liable to be dismissed in view of prior transfers
and/or absence of subsisting co-ownership? (OPP/OPD-

21)

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ix. Whether the Suit is barred by limitation, delay, laches,
acquiescence and/or estoppel (as pleaded by Defendant
No. 21), and with what effect? (OPD-21)

x. Whether the Plaintiff is entitled to a preliminary decree
declaring shares and directing partition of the Suit
Property by metes and bounds? (OPP)

xi. Whether the Plaintiff is entitled to partition/division of
movable assets as prayed? (OPP)

xii. Whether Plaintiff’s mother and other Defendants (i.e., the
daughters of Late Mrs. Rukman Kaur) have issued a valid
No-Objection Certificate in respect of the Will dated
18.12.1974? (OPD-21)

xiii. Whether the Suit is maintainable, in view of the fact that
the Plaintiff has not challenged the Registered documents
executed by Defendants in favour of Sh. Yash Pal Singh
Oberoi in view of Section 90 of the Indian Evidence Act,
1872? (OPP)

xiv. Relief.”

(emphasis supplied)

6. After issues were framed, the instant application has been filed by
Defendant No.18 for a direction that Defendant No.21 should be first
directed to lead evidence and prove the Will dated 18.12.1974.

7. It is the case of Defendant No.18 that if the Will is proved then the
Plaintiff and other Defendants will have no case, and if the Will is proved
then the Suit Property will be available for partition to all the grandchildren
of Late Mrs. Rukman Kaur.

8. Order XVIII of CPC deals with hearing of Suit and examination of
witnesses. Order XVIII Rules 1& 2 of CPC, which is relevant for

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“1. Right to begin.–The plaintiff has the right to begin
unless the defendant admits the facts alleged by the
plaintiff and contents that either in point of law or on
some additional facts alleged by the defendant the
plaintiff is not entitled to any part of the relief which he
seeks, in which case the defendant has the right to begin.

2. Statement and production of evidence.–(1) On the
day fixed for the hearing of the suit or on any other day
to which the hearing is adjourned, the party having the
right to begin shall state his case and produce his
evidence in support of the issues which he is bound to
prove.

(2) The other party shall then state his case and produce
his evidence (if any) and may then address the Court
generally on the whole case.

(3) The party beginning may then reply generally on the
whole case.

[(3A) Any party may address oral arguments in a case,
and shall, before he concludes the oral arguments, if any,
submit if the Court so permits concisely and under
distinct headings written arguments in support of his
case to the Court and such written arguments shall form
part of the record.

(3B) A copy of such written arguments shall be
simultaneously furnished to the opposite party.

(3C) No adjournment shall be granted for the purpose of
filing the written arguments unless the Court, for reasons
to be recorded in writing, considers it necessary to grant
such adjournment.

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*[(3A) A party shall, within four weeks prior to
commencing the oral arguments, submit concisely and
under distinct headings written arguments in support of
his case to the Court and such written arguments shall
form part of the record.

(3B) The written arguments shall clearly indicate the
provisions of the laws being cited in support of the
arguments and the citations of judgments being relied
upon by the party and include copies of such judgments
being relied upon by the party.

(3C) A copy of such written arguments shall be furnished
simultaneously to the opposite party.

(3D) The Court may, if it deems fit, after the conclusion
of arguments, permit the parties to file revised written
arguments within a period of not more than one week
after the date of conclusion of arguments.

(3E) No adjournment shall be granted for the purpose of
filing the written arguments unless the Court, for reasons
to be recorded in writing, considers it necessary to grant
such adjournment.

(3F) It shall be open for the Court to limit the time for
oral submissions having regard to the nature and
complexity of the matter.]”

9. A perusal of Order XVIII Rules 1 & 2 of CPC reveals that the
Plaintiff has the right to begin unless the Defendant admits the facts alleged
by the Plaintiff and contends that either in point of law or on some
additional facts alleged by the Defendant, the Plaintiff is not entitled to any

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10. Learned Counsel for Defendant No.21 places reliance upon a
Judgment passed by the High Court of Judicature at Madras in Periyasamy
v. Soliammal, 2021 SCC OnLine Mad 17361 to contend that it is the
Plaintiff who should first commence to lead evidence and the Defendants
cannot be forced to first commence the evidence. In the said Judgment, the
High Court of Judicature at Madras has referred various judgments, and
more particularly placed reliance upon a Judgment passed by the High Court
of Bombay in Bhagirath Shankar Somani v. Rameshchandra Daulal Soni,
2007 SCC OnLine Bom 458. Paragraph Nos.15 and 16 of the said
Judgment passed by the High Court of Bombay reads as under:

“15. The first issue to be decided is whether by
placing reliance on Rule 1 of Order XVIII of the said
Code, the Court can give direction to the defendant to
enter the witness box before the plaintiff leads his
evidence. The said issue is no longer res integra. The
learned single Judge of this Court in the case of Haran
Bidi Suppliers v. V.M. and Company, Bhandara2001 (4)
Mh. L.J. Page 112 had occasion to deal with the said
issue. This Court was dealing with a revision Application
where the challenge was to an order by which the trial
Court had directed the defendants to enter the witness
box before the plaintiff leads the evidence. This Court
considered the provisions of Order XVIII of the said
Code and in particular Rule 1 thereof. After considering
Rule 1, the learned single Judge held thus:

“On the plain language of the said provisions, it
would appear that it is only an enabling provision
entitling the defendant of right to begin. In my view,

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this provision cannot be interpreted to mean that the
Court would be competent to direct the defendant to
enter the witness-box before the plaintiff and lead
evidence in support of its case. In the circumstances,
the impugned order passed by the trial Court cannot
be sustained in law”.

(Emphasis added)

16. There is one more decision of another learned
single Judge on this aspect. The said decision is rendered
in the case of Gouri Food Products, Nagpur v. Priya
Trading Company, Nagpur, 2002 (4) Mh. L.J. page 880.
The same issue arose before this Court regarding power
of the trial Court to give direction to the defendant to
lead evidence before the plaintiff leads his evidence. This
Court considered the provisions of Order XVIII and in
particular Rules 1 to 3 thereof. This Court also
considered the decision of the Gujarat High Court in the
case of Keshavlal Durlabhasinbhai’s Firm (supra) on
which reliance has been placed by the learned counsel
for the first respondent. In paragraph No. 7, the learned
single Judge held thus:

“The plain reading of Rule 1 would show that the
plaintiff, undoubtedly, has a right to adduce evidence
first in the suit. However, in view of certain
contingencies mentioned in Rule 1, the defendant
gets right to begin, and is entitled to adduce evidence
first in the suit. This is, undoubtedly, an enabling
provision entitling the defendant of right to begin.
However, nothing in this provision confers any
power on the Court under this Rule to direct
defendant to adduce evidence first in the suit if the
defendant himself has not claimed such right in view
of the contingencies mentioned in Rule 1”.

(emphasis supplied)

11. After considering the aforesaid judgment – Bhagirath Shankar Somani

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“12. On consideration of the facts and circumstances
of the present case in the light of the principles laid down
in the above decisions, it is seen that in this case, the
plaintiff had filed the suit for partition. The revision
petitioner/defendant filed written statement claiming that
his father left a Will in his favour and apart from that the
the revision petitioner/defendant also stated that the
plaintiff is well aware of the Will executed by their father
Nallappa Gounder and that after the demise of his father,
the revision petitioner/defendant made huge
improvements in the suit properties, levelled the lands,
made improvements, constructed a terraced house in the
B schedule property, laid pipelines for more than 3000
feet, got new electricity connection by spending huge
amounts, got the revenue records mutated and planted
500 coconut trees and the plaintiff is ousted from the suit
property and the defendant has also become absolute
owner by adverse possession and he had also purchased
items 4 and 5 of the suit B schedule properties in his
name and spent huge amounts towards improvements.

13. Thus, while considering the Application under
Order 18 Rule 1 CPC, the court has to consider the
plaint and written statement in its entirety and it is not a
case where the revision petitioner/defendant placed
reliance on the Will alone. Since several other defences
are taken in the written statement, the Trial Court was
not correct in directing him to lead evidence at the first
instance. This court is, therefore, of the view that the
impugned order is liable to be set aside. Accordingly, the
civil revision petition is allowed. The order passed by the
Trial Court is set aside. No costs. The connected
Miscellaneous Petition is closed.”

12. It is, therefore, the case of Defendant No.21 that it cannot be asked to

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13. Per contra, learned Counsel appearing for Defendant No.18 places
reliance upon a Judgment passed by the Apex Court in Jami Venkata
Suryaprabha v. Tarini Prasad Nayak, 2024 SCC OnLine SC 3862.
Paragraph No.18 of the said Judgment reads as under:

“18. Order XVIII Rule 1 indeed provides for plaintiff’s
right to begin the evidence but not the court’s obligation
to ask the plaintiffs to begin first. There is no
impediment for the court to call upon either party to
lead evidence first, depending upon the facts and
circumstances of the case and the nature of the issues
framed. Neither party can insist that the other one
should be asked to lead it first. It all depends upon what
the Court deems proper in the circumstances. Where it
finds that defendant’s plea strikes of the root of the
case, there would be no hitch in asking him/her to prove
such plea first which can lead to disposal of the case.
There can be no watertight compartmentalisation in
matters of justice and all rules of procedure are
designed and directed to achieve and secure ends of
justice.”

(emphasis supplied)

14. A perusal of the aforesaid Judgment passed by the Apex Court,
therefore, makes it clear that it cannot be said that the Defendants under no
circumstances can be compelled by the Court to first commence evidence
and that only after the Defendants choose to, they can be permitted to
commence the evidence first, provided the ingredients of Order XVIII Rules
1 & 2 of CPC are satisfied. Therefore, in the opinion of this Court, the
Judgment – Periyasamy (supra) passed by the High Court of Judicature at

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Madras does not state the correct law, more particularly, in view of the
Judgment passed by the Apex Court in Jami Venkata Suryaprabha (supra)
which in categorical terms states that there is not impediment for the Court
to call upon either party to lead evidence first, depending upon the facts and
circumstances of the case and the nature of the issues framed and it all
depends upon what the Court deems proper in the circumstances.

15. Issues which have been framed by this Court shows that right of
Defendant No.21 emanates only from the Will dated 18.12.1974 executed by
Late Mrs. Rukman Kaur. If the Will is not proved, the case of Defendant
No.21 fails and if the Will is proved then all Plaintiff and the Defendants,
barring Defendant No.21, who is a subsequent purchaser, will have a right in
the Suit Property. Late Mrs. Rukman Kaur by the said Will had bequeathed
the Suit Property to her six sons and these six sons later entered into various
Release Deeds by which only Defendant No.7 alone became the owner of
the Suit Property. Defendant No.21, therefore, traces its right through
Defendant No.7 who became the owner of the Suit Property because of the
various Release Deeds and the Will. Other contentions raised by the learned
Counsel for Defendant No.21 challenging the right of the Plaintiff regarding
documents which are over 30 years old etc., will all become secondary.

16. It is further pertinent to mention that the argument raised by
Defendant No.21 that the Court cannot compel the Defendants to first lead
evidence has been rejected by a Co-ordinate Bench of this Court in Achala
Mohan v. Jayashree Singh, 2020 SCC OnLine Del 2538. The relevant
portion of the said Judgment read as under:

“15. In Vikram Kaushik v. Vivek Kaushik (supra) a
ld. Single Judge of this Court, after perusing the issues,
discussed the question of who should lead evidence

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first. The Court in the said case held that when the
Defendant pleaded oral partition as its defense, the
Defendant ought to be directed to lead evidence first.
Since the main defense of the Defendant, if proved,
would have dis-entitled the Plaintiffs to any relief, the
Court directed the Defendant to commence evidence in
the said case. Similar was the view taken by various
other High Courts in the judgments cited by the
Respondents including the Madhya Pradesh High
Court in Jagran v. Basanti Bai (supra), wherein the
Court observed as under:

“8. …Applying the aforesaid enunciation of law
to the obtaining factual matrix it becomes
graphically clear that Issue No. 2 (b) is answered in
favour of the defendants then the plaintiff’s suit is
bound to fail, and therefore, the learned Trial Judge
has rightly directed the contesting defendants to lead
the evidence first.”

16. In Purastam @ Purosottam
Gaigouria v. Chatru @ Chatrubhuja
Gaigouria (supra), the Orissa High Court also
observed as under:

“6. In this case, the plaintiff sought partition
alleging that the property was joint family
property and had not been decided by metes and
bounds. The defendant-petitioners placed a
previous partition since 1960-1961 to defeat the
plaintiff’s suit. In view of the plea of the
defendants that there was a previous partition, the
learned Subordinate Judge called upon the
defendants to begin. The plaintiff’s plea that the
property was joint family property having been
admitted by the defendants and the latter having
pleaded previous partition, the defendants are to
lose if neither party adduced evidence, the burden
being on the defendants to prove previous

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partition. Only when the defendants lead some
evidence in proof of previous partition, the
plaintiff would be obliged to lead evidence in
rebuttal. Rightly, therefore, the learned
Subordinate Judge called upon the defendants to
begin. We, therefore, see no merit in this revision
which is accordingly dismissed. There would be
no order as to costs.”

17. In Keshavlal Durlabhasinbhai’s Firm v. Shri
Jalaram Pulse Mills (supra), the Gujarat High Court
observed as under:

“7. In view of the fact that the plaintiff’s claim
is substantially admitted and the plaintiff-firm is
also prima facie shown to be a registered firm, the
trial court has rightly directed the defendant to
lead the evidence first. The trial Court is entitled
even to record the statements of the parties before
framing issues under Order XIV, Rule 1 read with
Order X, Rule 2. …

8. These provisions enable the trial Court to
narrow down the controversy and focus the
attention of the parties to the barest minimum. In
large number of cases, the matters would be
expeditiously disposed of. This is a very salutary
provision for expeditious disposal of suits and it
should ordinarily be resorted to and followed, by
all trial courts.

9. In the present case, though this procedure is
not followed and though the stage of framing of
issues has passed, the trial court has on correct
appreciation the rival contentions of the parties
come to a proper conclusion that the defendant
should lead the evidence first. This order is
perfectly legal and proper and no interference is
called for on any of the grounds canvassed by the
learned advocate for the petitioner. Though the

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defendant has chosen to deny the claim of the
plaintiff in totality, that is a denial without any
substance in view of the other admitted facts of
receipt of goods, part payments, issuance of
cheques and a claim of having made further
payments and, therefore, onus lies on the
defendant. The denial of registration of
partnership is also prima facie frivolous. The
plaintiff has given the registration number of the
partnership firm of the plaintiff.”

18. In Krishnakumar v. V. Seethalakshmi (supra),
the Madras High Court observed as under:

“7. In this case too, the burden of proof lies on
the party, who asserts a particular fact. The
particular fact, which is asserted is, whether the
property belonged to Narayana Asari absolutely.
That fact has been asserted by the plaintiffs and
also admitted by the defendants. Therefore, there
is no burden of proof on the plaintiffs to prove
that fact. Insofar as the onus of proof is
concerned, it is held in that judgment, referred to
above, that onus of proof by a party would cease,
the moment, the opposite party admits the
transaction. In this case, the onus of proof is on
the defendants to prove the execution of the Will,
that has been denied by the plaintiffs. Once
defendants are able to prove the Will to the
satisfaction of the court, the suit filed by the
plaintiffs will be dismissed and there is no
necessity to go into the further aspects of the
matter, by letting evidence by the plaintiffs.
Considering all these aspects, the Court below
initially directed the defendants to lead evidence
first and that was properly appreciated, while
considering the Review Application. Further, I do
not find any infirmity in the order passed by the

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Court below in the Review Application and there
is no error apparent on the face of record to
interfere with the same. In the result, the Civil
Revision Petition fails and it is dismissed. No
costs. Consequently, connected Miscellaneous
Petition is closed.”

19. Thus, the consistent view has been that if the
Defendant sets up a case, the proving of which, would
completely decide the issues which have been raised in
the suit itself, then the Defendant under Order XVIII
Rule 1 CPC can be directed to lead evidence first.

xxx

25. The ld. counsel for the Defendant submits that
unless and until the Defendant voluntarily opts for
leading evidence first, the Court would not have the
power to direct so. This would not be in accordance
with law inasmuch as the Court has the power to
curtail the trial of any suit at the time of framing of
issues. The manner in which the issues have been
framed in the present case shows that insofar as the
issue no. 1 and issue no. 2, the onus has been cast
clearly on the Defendant. If the Defendant is able to
prove or not prove these issues, the decision in the suit
would get quite expedited.

26. Under these circumstances, it is not necessary
that in every suit, unless and until, the Defendant
opts, the Court cannot direct the Defendant to lead
evidence first. The question as to whether who should
lead evidence first, would have to be decided by the
Court after ascertaining the respective stands of the
parties and after seeing as to what are the actual
issues which arise for adjudication in the suit itself.”

(emphasis supplied)

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17. The aforesaid Judgment – Achala Mohan (supra) has been further
quoted with approval by another Co-ordinate Bench of this Court in Poonam
Bhanot v. Virender Sharma, 2022 SCC OnLine Del 2156.

18. In view of the above, and specifically in view of the fact that the
entire case of Defendant No.21 rests on the Will and that only after the Will
is proved, other defences raised by Defendant No.21 regarding question of
limitation etc., will arise, the present application filed by Defendant No.18
for a direction that Defendant No.21 should be first directed to lead evidence
and prove the Will dated 18.12.1974 which forms the sole foundation of
Defendant No.21’s claim, deserves to be allowed.

19. Defendant No.21 is directed to first lead evidence to substantiate the
Will dated 18.12.1974.

20. With these observations, the application is allowed.

SUBRAMONIUM PRASAD, J
JULY 21, 2026
S. Zakir

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Parneet Kaur vs Baljeet Kaur & Ors on 21 July, 2026

Delhi High Court – Orders