* HIGH COURT OF DELHI : NEW DELHI
+ IA No.9761/2009 in CS (OS) No.138/2008
Amar Nath Dhawan & Ors. ......Plaintiffs
Through : Mr. Jayant K. Mehta, Adv.
Versus
Satish Dhawan & Ors. .....Defendants
Through: Mr. Rajesh Bhatia, Adv. for
Defendant Nos.1-2
Mr. Sameer Dewan, Adv. for
Defendants No.3-9
Judgment reserved on: 7th December , 2009
% Judgment decided on : 15th December, 2009
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. The application under consideration being IA No.9761/2009
has been filed by the plaintiffs under Section 151 of the Code of Civil
Procedure, 1908 praying for a preliminary decree of partition and for
appointment of a Local Commissioner to suggest a mode of partition of
the property bearing No.18UA (Municipal No.5931), Jawahar Nagar,
Delhi-110007 (hereinafter referred to as the „suit property‟) in
proportion of the parties‟ respective ownership.
2. The plaintiffs filed the present suit for partition of the suit
CS (OS) No.138/2008 Page 1 of 7
property for mandatory injunction against the defendants. The plaintiffs
and defendants are members of the same family.
3. The plaintiffs submit that they are lawful and admitted
owners of 2/3rd portion of the suit property while the defendants are the
owners of the remaining 1/3rd portion of the suit property. The
plaintiffs further submit that they are in physical possession and
occupation of only half portion of the suit property and the defendants
who are owners of 1/3rd portion possess and occupy half portion. It is
stated that the property should be physically partitioned to bring it in
conformity with their proportionate ownership.
4. The case of the plaintiffs is that late Smt. Tulsi Devi
(testatrix) during her lifetime executed a registered Will dated 8th June,
1989 during her life in respect of the following estate :
(i) 1/3rd share in property bearing No.18UA
(Municipal No.5931) Jawahar Nagar, Delhi-7 and
(ii) 50% share in property No.38-UA (Municipal
No.5905-5907), Jawahar Nagar, Bungalow Road,
New Delhi.
5. The testatrix expired on 8th February, 1995 bequeathing the
aforesaid estate in the follow manner :
(a) 50% of her share in the aforesaid properties in favour of her
daughter-in-law namely Smt. Karuna Dhawan (Plaintiff No.2
herein); and
(b) Remaining 50% share to be divided equally amongst her
grandsons namely Prashant and Aditya (Plaintiff Nos.3 and
4).
6. The plaintiff No.1 is the sole executor of the Will of the
testatrix. The plaintiff No.2 is the wife of the plaintiff No.1 and plaintiff
CS (OS) No.138/2008 Page 2 of 7
Nos.3 and 4 are his sons. Plaintiff No.2 was bequeathed 1/3rd share in
the suit property while 1/3rd share in the suit property came in the hands
of plaintiffs No.3 and 4. Therefore, the plaintiffs became the owners of
2/3rd share in the suit property. The defendant Nos.1 to 8 are the sons
and daughters of late Sh. Chand Kishan Das, brother of the plaintiff
No.1.
7. The plaintiff No.1 being the sole executor of the Will filed
the probate case bearing No.188/2001 before the District Court which
was contested by late Sh. Chand Kishan Das and the defendants herein.
Vide judgment dated 23rd February, 2004, the learned Additional
District Judge, Delhi granted probate of the Will in favour of the
plaintiff No.1. The plaintiff No.1 filed a valuation report and paid a
court fee in respect of the suit property in terms of the aforesaid
judgment. The plaintiffs also executed an administration cum surety
bond in respect of the property which were accepted by the District
Court.
8. The plaintiffs alleged that the suit property is still undivided
and is in joint occupation of the parties. The defendants who are in
occupation of more than half share in the suit property are seeking to
create third party interest in the property. The plaintiffs thus filed the
present suit seeking partition of the suit property by metes and bounds
and a permanent injunction restraining defendants from interfering in
any manner with the possession of the plaintiffs is their 2/3rd share in
the suit property.
9. The defendants No.1 and 2 who are sons of late Sh. Chand
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Kishan Das contended that the suit property has already been
partitioned by virtue of a memorandum of family settlement (MFS)
dated 18th August, 1980 between Sh. Chand Kishore Das, Sh. Amar
Nath Dhawan and Smt. Tulsi Devi. The defendants No.1 and 2 denied
the alleged Will dated 8th June, 1989 executed by the testatrix. The
contention of defendants No.1 and 2 is that Smt. Tulsi Devi during her
life time executed a Will dated 25th July, 1974 and distributed her 1/3 rd
share between plaintiff No.1 and the defendants No.1 and 2.
10. The site plan relied upon by the plaintiffs was also denied.
The defendants No.1 and 2 however, admitted that the District Court
vide order dated 23rd February, 2004 allowed the petition for grant of
probate bearing No.188/2001 in respect of Will dated 8th June, 1989
and no appeal has been preferred against the same. The defendant
Nos.1 and 2 admitted that plaintiff No.1 is the owner of 1/3 rd share of
the suit property but denied any right, title or interest of the plaintiffs
No.2 to 4 in the suit property. It is submitted that late Smt. Tulsi Devi
during her life time had partitioned the property in question between her
two sons namely late Sh. Chand Kishan Dass and Sh. Amar Nnath
Dhawan by virtue of Memorandum of Family Settlement dated 18 th
August, 1980 and since then the parties are in possession of their
respective shares.
11. The defendants No.3 to 9 (daughters of late Sh. Chand
Kishan Das) have not claimed any right, title or interest in the suit
property and have submitted that their share in the suit property belongs
to defendants No.1 and 2 by virtue of the Will dated 26th October, 1981
CS (OS) No.138/2008 Page 4 of 7
made by their father of the defendants. It is denied that they are in
possession of the suit property.
12. Status quo was granted on 25 th January, 2008 directing the
defendants not to alienate the suit property or create any third party
rights. Notice was issued to the defendants by way of a newspaper
publication in the „Statesman‟ dated 25th December, 2008 and „The
Tribune‟ dated 26th December, 2008 respectively. The interim orders
were made absolute on 28th August, 2009.
13. In probate case No.188/2001 filed by the plaintiff No.1
before the district court wherein late Sh. Chand Kishan Das was the only
objector, the following two issues were framed on the basis of pleadings
of the parties :
“(1) Whether the Will dated 8th June, 1989 propounded by the
petitioner is the last Will and testament of late Smt. Tulsi
Devi and was it validly executed by her while she was in
her sound disposing mind ?
(2) Relief.”
14. I have considered the rival submissions of the parties.
Apparently, in the probate case filed by the plaintiff No.1 in the district
court, the defendants herein contested and raised objection against the
grant of probate in favour of the plaintiff No.1. The Additional District
Judge dismissed the objections raised by the defendants and probate was
granted in favour of plaintiff No.1. It was held by the learned
Additional District Judge on issue No.1 that the Will dated 8 th June,
1989 had been validly executed by the testatrix, Smt. Tulsi Devi while
she had a sound disposing mind and it was the last Will and testament of
CS (OS) No.138/2008 Page 5 of 7
the testatrix.
15. The contention raised by defendants No.1 and 2 that the suit
property has already been partitioned during the life time of testatrix by
virtue of Memorandum of Settlement dated 18th August, 1980 was not alleged
by the defendants in the abovementioned probate case before the district
court. It is to be noted here that this objection was raised by the defendant
Nos.1 and 2 for the first time in the present suit for partition though the MFS
was allegedly executed in the year 1980. I accept the contention of the
learned counsel for the plaintiff that Memorandum of Settlement was
executed only for the purpose of temporary arrangement for the purpose of
residence of the family members in the suit property and was not a partition
of the property.
16. As the Will dated 8th June, 1989 propounded by the plaintiffs
has already been declared as a validly executed Will of the testatrix by the
probate court in the probate case filed by the plaintiff No.1, the contention
raised by the defendants No.1 and 2 that this Will is a forged and fabricated
document was also negated by the court after trial of the case. The contention
urged by the defendants No.1 and 2 regarding the propounded Will dated 25 th
July, 1974 as the last testament of the testatrix has also been considered by
the learned Addl. District Judge in the probate case.
17. Prima facie, I find that the plaintiffs are entitled to 2/3 rd share in
the suit property as provided in the Will. A preliminary decree is therefore,
passed in terms of the Will dated 8th June, 1989. The plaintiffs are the owners
of 2/3rd share in the suit property and the defendants No.1 and 2 are the
owners of remaining 1/3rd portion in the suit property.
CS (OS) No.138/2008 Page 6 of 7
18. Mr. J.S. Bakshi, Advocate (Mobile No.9811025921) is
appointed as a Local Commissioner to inspect the suit property and
submit a report as to whether the suit property can be partitioned by
metes and bounds. The Local commissioner shall be paid a sum of Rs.
60,000/- to be paid by the parties in proportion of their respective shares
in the suit property apart from administrative charges, if any, incurred
by the Local commissioner.
19. The parties shall give access of the suit property to the Local
commissioner for the purposes of execution of the commission.
20. List the matter on 19th April, 2010 awaiting the report of the
Local Commissioner. Copy of the order be given dasti to the Local
Commissioner for information and compliance.
MANMOHAN SINGH, J
DECEMBER 15, 2009
nn
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