Delhi High Court
Ajai Kumar Goel vs Dinesh Kumar Goyal & Ors. on 16 August, 2011
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No.339/2010
% Judgment decided on : 16.08.2011
Ajai Kumar Goel .......Plaintiff
Through: Ms. Amrita Sanghi, Adv. with
Mr. Dhruv Rohatgi, Adv.
Versus
Dinesh Kumar Goyal & Ors. .....Defendants
Through: Mr. Rakesh Kansal, Adv. for D-1
Mr. Divjyot Singh, Adv. for D-2 & 3
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. The present suit for partition has been filed by the plaintiff for partition of the property bearing No. A-68, Swasthya Vihar, Vikas Marg, New Delhi which belonged to Late Dr. S.S. Goyal. Plaintiff is one of the four surviving sons of Late Dr. S.S. Goyal and thus, a class- I heir.
CS (OS) No.339/2010 Page 1 of 5
2. Dr. S.S. Goyal died intestate in July, 2000 and was survived by his wife, Smt. Lila Goyal and four sons i.e. the plaintiff and defendant Nos. 1 to 3. Thus, the suit property was inherited by the legal heirs each getting 1/5th share in the said undivided property. The said arrangement remained unchanged until the death of Smt. Lila Goyal.
3. It is stated by the plaintiff that before her death Smt. Lila Goyal had executed a Will, dated 01.02.2007 and bequeathed her 1/5 th share in the suit property to her sons in four equal parts. Therefore, by virtue of the Will dated 01.02.2007 the plaintiff and defendants Nos. 1 to 3 became co-owners of said undivided suit property, each holding 1/4th share. The suit property includes a residential building consisting of two floors built up on an area of 282 sq. yards. Further, it is stated that the said arrangement is still continuing.
4. It is averred in the plaint that since 1985, defendant No. 1 has been in possession of the first floor of the suit property consisting of two rooms, drawing room, one bathroom, lobby, one kitchen, terrace, balcony and courtyard. The plaintiff is in possession of the ground floor of the suit property. The defendant No. 2 lives in a CS (OS) No.339/2010 Page 2 of 5 separate residence and defendant No.3 has moved outside the country, however, both of them are entitled to 1/4th share each in the suit property.
5. Further it is stated in the plaint that the co-owners of the suit property want to sell their share in the suit property after the partition but, since the rights of the parties on the suit property are undivided, therefore, any decision with respect to the suit property can only be taken by the consent of all the co-owners, but the defendant No.1 is denying their requests for partition of the suit property and is using his self acclaimed right with respect to possession of the suit property to the exclusion of other legal heirs/co-owners. Therefore, the plaintiff has filed the present suit.
6. Defendant Nos. 2 and 3 have also filed their written statement wherein they have prayed that the suit of the plaintiff be decreed as prayed for by the plaintiff.
7. The present suit has been contested by only defendant No.1 who has filed his written statement wherein it is stated that the suit of the plaintiff is liable to be dismissed for non-joinder of a necessary party as the real sister of the parties namely Smt. Usha Garg has not CS (OS) No.339/2010 Page 3 of 5 been impleaded as a party to the present suit. Further it is stated that the Will dated 01.02.2007 is a forged and fabricated document and the same was not executed by Late Smt. Lila Goyal in her sound mind and senses.
8. The plaintiff as also filed the relinquishment deed of their sister Smt. Usha Garg. In the replication filed on behalf of the plaintiff it is stated Smt. Usha Garg is not a necessary or proper party in the present suit and she had already relinquished rights qua the suit property vide relinquishment deed dated 02.08.2000 marked as ANNEXURE-P-1, and was given an amount of Rs.10 lac by their mother Late Smt. Lila Gayal and the fact is also mentioned in her will dated 01.02.2007. The affidavit of Smt. Usha Garg, to this effect is marked as ANNEXURE-P-2.
9. I have heard learned counsel appearing on behalf of defendant No.1. In view of the admission made by the parties, it is clear that the property bearing No. A-68, Swasthya Vihar, Vikas Marg, New Delhi be divided in 4 equal shares i.e. plaintiff and the three defendants.
10. The objections raised by the defendant No.1 are without CS (OS) No.339/2010 Page 4 of 5 any merit, therefore the same are rejected. The defendant No.1 has failed to assign any reason and not placed any material on record to prove that the Will executed by mother is a forged document.
11. Accordingly, a preliminary decree is passed holding that the property bearing No. A-68, Swasthya Vihar, Vikas Marg, New Delhi shall be partitioned in four equal shares i.e. plaintiff and defendants No.1 to 3.
12. As agreed by the parties Mr. Lalit Gupta, Advocate, Telephone No. 011-23914140 is appointed as a Local Commissioner to verify the suit property in dispute and to file a report with regard to mode and manner in which the suit property could be partitioned by metes and bound within 6 weeks. The fee of the Local Commissioner is fixed at Rs.60,000/- which shall be shared by the parties.
13. List this matter on 09.01.2012 for awaiting the report of the Local Commissioner.
MANMOHAN SINGH, J.
AUGUST 16, 2011 CS (OS) No.339/2010 Page 5 of 5