Delhi District Court
Dr. J.K. Tandon vs Mr. Anand Tandon on 4 May, 2017
IN THE COURT OF SH. JITENDRA KUMAR MISHRA, ADDITIONAL
DISTRICT JUDGE - 01, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
CS No. 179/17
1. Dr. J.K. Tandon,
Flat No. 4, Doctors Co-operative Housing Society,
Plot No. 4, Vasundhara Enclave, Delhi110096.
2. Mrs. Uma Kapoor,
22B-Coachmen Square,
Twin Lake, Clifton Park, New York-12065, USA.
3. Mrs. Sarla Seth,
w/o Maj. Gen. (Dr.) M.K. Seth,
C5/13, Vasant Kunj, New Delhi-110070.
4. Mrs. Vijay Lakshmi Sikka,
3102, Fairway OAKS Lane,
Longview Texas-75605, USA.
5. Mrs. Geeta Tandon,
301, Sagar Darshan,
8, Worli Sea Face, Bombay-400025.
......... Plaintiffs
Versus
1. Mr. Anand Tandon,
H-3, Breach Candy Apartment,
Bhulabhai Desai Road,
Mumbai-400036.
2. Ms. Pushpa Tandon,
B3/22, Vasant Vihar,
New Delhi-57.
........ Defendants
Suit presented On : 20.08.2004
Arguments heard On : 02.05.2017
Judgment Pronounced On : 04.05.2017
CS no. 179/17
Dr. J.K. Tandon vs. Anand Tandon Page no. 1 of 17
JUDGMENT
1. The plaintiff has filed the present suit for partition, declaration and permanent injunction.
2. Brief facts as epitomized in the plaint are :
(a) Parties of the suit are the legal heirs of Late Sh. H.K. Tondon, Ex-Joint Secretary to the Government of India, Ministry of Food, Agriculture, CD & Coop. The present suit has been signed, verified and instituted on behalf of plaintiff no.2, 4 and 5 by their sister and duly constituted attorney plaintiff no.3. Plaintiff no.2 has executed a power of attorney dated 08.07.2004 in favour of plaintiff no.3. Plaintiff no.4 has executed a power of attorney dated 06.07.2004 in favour of the plaintiff no.3. Plaintiff no.5 has executed a power of attorney dated 08.07.2004 in favour of plaintiff no.3.
Plaintiff no.3 has also signed, verified and instituted the present suit in her own right.
(b) Late Sh. H.K. Tandon was a member of the Government Servants Co-operative Housing Society Ltd., a society registered under the Bombay Co-operative Societies Act, 1925 as in force in the Union Territory of Delhi and having its registered office at Barrack No.2, Room no.5, Talkatora Road, New Delhi (hereinafter referred to as the 'Society'). By and under a perpetual lease deed dated 28.05.1968, executed between the president of India as Lessor and the aforesaid society as lessee, the lessor demised unto the lessee in perpetuity the residential plots as stated therein. As per the terms of the lease, the Lessee Society had an authority to sub-lease, on such premium and yearly rent as could be fixed by the Lessor, one residential plot to each of the members of the CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 2 of 17 lessee approved by the Chief Commissioner of Delhi. The Lessor further had an authority to subsequently fix additional sum or sums payable towards premium and the yearly rent of the residential plot as per the terms of the sub-lease entered into between the lesser and sub-lesser.
(c) Late (Sh.) H.K. Tandon was a member of the Lessee Society and hence applied to be allotted a residential plot in Vasant Vihar. By a letter dated 21.08.1967 the society informed Mr. Tandon that he had been allotted plot No. 22 on Street No.B-3, ad measuring 400 sq. Yds. in Vasant Vihar (hereinafter referred to as the "said plot").
(d) At the time of applying for membership of the society Sh. H.K. Tandon had appointed his wife Mrs. Gomati Tandon as his nominee. Sh. H.K. Tandon died on 07.02.1971. In such circumstances, his widow Mrs. Gomati Tondon being his nominee wrote to the society in February 1971 to enroll her as a member of the society in place of her husband and register the said plot in her name. An agreement of lease was entered into between Smt. Gomati Tandon and the society dated 27.04.1971 by which the proposed sub-lease was allotted the said plot on payment of Rs.3948/- towards the premium paid by the Society to the Government and a sum of Rs.8847/- as her share of development and other charges in respect of the plot. Simultaneously, Smt. Gomati Tandon executed a perpetual sub-lease on 27.04.1971 in respect of the said plot. Pursuant to the terms of agreement dated 27.04.1971, Smt. Gomati Tandon was granted a perpetual sub- lease by the lessor the society. Smt. Gomati Tandon, however, was a house wife having no income of her own and she had never CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 3 of 17 worked in her life. The funds for payment of the above mentioned premium and the development charges came from the earnings of Late Sh. H.K. Tandon left by him.
(e) Construction in the aforesaid suit premises commenced on 20.11.1972 and was completed in October, 1973. The ground floor was let out in January, 1974 at the rate of Rs.1,100/- p.m. and the first floor was let out in November 1973 @ 800/- p.m. and advance of six months' rent amounting Rs.4,800/- was taken on 31.10.1973.
(f) Moreover, Late Sh. H.K. Tandon also received Rs.1,67,873/- which has received as PF, Insurance, sale of car and mortgage loan from LIC. A sum of Rs.1,48,620/- was spent on household expenses.
(g) Smt. Gomati Tandon passed away on 10.06.2003. At that time plaintiffs were enjoying the suit premises in joint possession. On or about June 2004, the plaintiffs contacted the defendants and suggested that the suit premises, being incapable of division, be sold and the sale proceedings be distributed equally amongst all the seven co-owners in the aforesaid ratio. However, to their utter shock and surprise, the plaintiffs were infromed by defendant no.1 that he was the owner of the entire suit premises, to the exclusion of all others, by virtue of an alleged Will executed by late Smt. Gomati Tandon. which upon enquiry, revealed that the said Will is dated 17.11.1996.
(h) In such circumstances, plaintiffs have left with no option but to institute the present suit for declaration to claim their respective shares in the suit premises and also for the partition of the property so that the share of each of the plaintiffs and the defendants can be CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 4 of 17 ascertained and divided.
(i) At present defendant no.2 is in occupation and use of first floor of the suit premises. The ground floor is occupied by plaintiff no.2 who upon her visit to India from USA had asked plaintiff no.3 to put essential furniture and amenities in the ground floor and layter accordingly has done the same, in consent with the other plaintiffs. The plaintiffs were, in or about 03.07.2004 informed by defendant no.1 that he is seeking to enter into and occupy the entirety of the suit premises, allegedly on the basis of the purported Will dated 17.11.1996. However, defendant no.1 has informed plaintiff no.3 on or about 22.07.2004 that since he was settled in Mumbai, he proposed to sell the suit premises and invest the proceeds in some real estate in Mumbai. As a matter of fact, on 24/25 July, 2004, defendant no.2 informed plaintiff no.3 that certain property brokers have visited the suit premises, apparently at the instance and behest of defendant no.1 and made enquiries regarding the sale of the suit premises. The plaintiffs have also learnt that defendant no.1 is taking steps to have the suit premises mutated in his own name to facilitate the proceeds of sale. The plaintiffs were compelled to lodge a letter with the DDA intimating that no such mutation be permitted without the consent of all seven brothers and sisters. Thus, the plaintiffs in the circumstances are also entitled to a decree of permanent injunction against defendant no.1.
3. Written statement filed by defendant no. 1 wherein preliminary objection is taken that suit is hopelessly time barred as the plaintiffs are seeking cancellation of lease deed in favour of Late (Smt) Gomati Tandon after 30 years. Relationship of the parties are admitted. It is further submitted that plaintiff no. 1 had no relationship with his mother Smt Gomati CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 5 of 17 Tandon for over 20 years as she has specifically cut him out of her Will. It is further submitted Smt Gomati Tandon was admitted as member of the society on 13.02.1971 and acquired that property with her own resources. The DDA agreed to enter into a perpetual sub-lease directly with Smt. Gomati Tandon and necessary litigation charges were paid directly by Smt. Gomati Tandon from her own resources. Smt. Gomati Tandon hailed from a family of jewellers and eminent lawyers with professional interest in various cities in India including New Delhi, Mumbai, Bareily, Shahjapur, Agra etc and was never without adequate resources at any time. Thus, Smt Gomati Tandon acquired the property with her own resources and was sole owner of the property as confirmed by the sub-lease agreement she signed with the government on 27.03.1971. It is further submitted that none of the plaintiffs have ever been a resident of the suit premises. It is further submitted that after Smt Gomati Tandon's death, defendant no. 2 had complete access to all the documents kept by Smt Gomati Tandon in a closet in suit premises and a share of contents with the plaintiffs since defendant no. 2 is sympathetic to the position of the plaintiffs. Defendant no.2 handed over copy of Will of Smt Gomati Tandon to defendant no. 1 on 01.06.2004 almost one year after death of Smt Gomati Tandon and said she had already given copy of Will to all other siblings. The Will of Smt Gomati Tandon has been drafted / witnessed by an eminent and respected lawyer Sh. K.L. Rathi of Delhi High Court who was also a close friend of Sh. H.K. Tandon and Smt Gomati Tandon. Smt Gomati Tandon often sought his guidance on personal matters. Sh. K.L. rathi was also member and former office bearer of Vasant Vihar Society. The Will was witnessed by four persons and is registered and is thus a legally valid Will. Mr. K.L. Rathi had handed over the original Will to defendant no. 2.
4. Replication to the written statement of defendant filed wherein it is submitted that the cause of action arose after alleged death of Smt. Gomati CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 6 of 17 Tandon and the copy of Will was obtained. Copy of said Will was handed over to the plaintiff. The rest of the contents of the written statement are denied and averments made in the plaint are reiterated and reaffirmed.
5. Written statement filed by defendant no. 2 wherein she has alleged that Smt Gomati Tandon had never worked in her life and she had received monthly pension of Rs. 300/-. She has admitted that Smt Gomati Tandon was a nominee in respect of the suit property. She has further stated that defendant no. 2 remained unmarried throughout her life and looked after her mother with heart and soul. She had always lived in the suit premises with her mother and was assured by her mother and by the plaintiffs that would have the right only to use and occupy the first floor of the property during her lifetime and no one would disturb her possession. She has further alleged that defendant no. 1 is wrongly claiming to be the owner of the suit property on the basis of alleged Will dated 17.11.1996 of Smt Gomati Tandon. She has further submitted that she is occupying a room with bathroom and kitchen in the suit property.
6. Vide order dated 03.03.2006 my Ld Predecessor framed following issues :
1. Whether the plaintiff is entitled for partition of property bearing No.B-3/22, Vasant Vihar, New Delhi, if so, what is the share of the plaintiff? OPP.
2. Whether the plaintiff is entitled for a decree of perpetual injunction as prayed for? OPP
3. Whether Late Smt. Gomti Tandon executed a legal and valid Will dated 17th November, 1996, if so, to what effect? OPD1
4. Whether the suit is barred as alleged by defendant No. 1? OPD1
5. Whether the suit has been properly valued for the purpose of court fee and jurisdiction and appropriate court fee has CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 7 of 17 been paid? OPP
6. Relief.
7. To prove their case plaintiffs examined plaintiff no. 1 as PW1 who tendered his evidence by way of affidavit Ex.PW1/A. He also tendered following documents :
➢ copy of letter dated 29.04.1959 by Sh. H.K. Tandon to join the society Ex. P/A ➢ original Admission form Ex. P/B ➢ sample page of register of members Ex. P/C ➢ allotment letter dated 21.08.1967 issued by Govt. Servants Co-operative House Building Society Ltd Ex. P/D ➢ copy of letter dated 12.02.1971 written by Smt Gomati Tandon to Govt. Servants Co-operative House Building Society Ltd Ex. P/E ➢ copy of letter dated 23.02.1971 written by Smt Gomati Tandon to DDA Ex. P/F ➢ copy of letter dated 17.08.1978 written by Smt Gomati Tandon to Income Tax Officer DDA Ex. P/G ➢ copy of valuation report Ex. P/H
7.1 Document Ex P1 to Ex. P5 have already been admitted which are :
➢ copy of letter No. F.6(1)/71/DDA/CS dated 27.03.1971 Ex. P1 ➢ Perpetual sub-lease Ex. P2 ➢ Agreement dated 27.04.1971 Ex. P3 ➢ allotment letter dated 22.10.1972 Ex. P4 ➢ death certificate of Smt Gomati Tandon Ex. P5 7.2 Regarding document Ex.PA to Ex.PH objection has been raised by Ld. Counsel for defendant being carbon copies and without bearing any signatures. He was cross examined by Ld counsel for defendant no.1.
Thereafter evidence of the plaintiffs was closed on 06.03.2013 by order passed by my Ld Predecessor.
CS no. 179/17Dr. J.K. Tandon vs. Anand Tandon Page no. 8 of 17
8. In defence, defendant no. 1 examined himself as DW1 and tendered his evidence by way of affidavit Ex. DW1/A. He was cross examined by Ld counsel for plaintiff.
8.1 Defendant no. 1 further examined Sh. Ravi Khandelwal as a witness. He was not cross-examined by Ld. counsel for plaintiff despite opportunity was given. Thereafter vide separate statement Ld counsel for defendant no. 1 closed evidence on behalf of defendant no. 1.
8.2 Defendant no. 2 examined herself as DW2 and tendered her evidence by way of affidavit Ex. DW2/A. She was cross examined at length by Ld counsel for defendant no.1 and Ld counsel for plaintiff did not cross examine her despite opportunity was given. Thereafter vide separate statement of Ld counsel for defendant no. 2 closed her evidence.
9. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
10. My issue-wise findings are hereunder :
ISSUE NO. 4Whether the suit is barred as alleged by defendant No. 1? OPD1 10.1 Since this issue is going to hit the crux of the case, therefore I am going to decide this issue prior to other issues. The onus to prove this issue is upon defendant no.1. During cross-examination, DW1 has admitted the signature of his mother at document Ex. P/E which is a letter dated 12.02.1971 wherein Smt. Gomati Tandon informed the Secretary of CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 9 of 17 Government Servants House Building Society, Vasant Vihar, New Delhi about the death of her husband Late (Sh) H.K. Tandon. She had admitted herself therein as nominee of her husband. She further requested to enroll herself as member of the society in the place of her Late husband and to register the plot in her name. Ld. counsel for the plaintiff relied upon Smt. Sarbati Devi and another vs. Smt Usha Devi AIR 1984 Supreme Court 346 :
"12. ......The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
10.2 Ld counsel for the plaintiff further relied upon judgment Manmohan Kishan Malik vs. Avtar Kishan Malik (Deceased) Through Legal Representatives & ors 165(2009) Delhi Law Times 151 :
"17. In my view once the court has come to the conclusion that the defendant No.1 as a nominee was entitled to have the perpetual lease deed executed in his favour on behalf of and/ or the benefit of all the legal heirs, the execution thereof would not give any right to the defendant No.1 and notwithstanding the execution of the perpetual lease deed he would continue to hold the property for and / or for the benefit of all the heirs as per the law of succession. The law being, that nomination is only for the purposes of discharging the society and/or the perpetual lessor of the land, mere execution of a perpetual sub lease in such situation cannot be said to be such an Act which would give a cause of action to others who may have a share in the property."
10.3 The Hon'ble Supreme Court further referred upon Smt Sarbati Devi vs. Smt Usha Devi (supra) in Indrani Wahi vs. Registrar of Co- operative Societies and others (2016) 6 Supreme Court Cases 440. The Hon'ble Delhi High Court while referring Smt Sarbati Devi (supra) held in para CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 10 of 17 no. 52 of Lata Chauhan vs. L.S. Bisht CS (OS) 2133/1989 & I.A. No. 13792/208 :
52. The Supreme Court, in Smt. Sarbati Devi (supra) emphasizing that nomination does not derogate from the normal line of succession, according to laws of inheritance (though in the case involving nomination to receive the proceeds of a life insurance policy) held that:
"We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer CS(OS) No.2133/1989 Page 28 gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."
This view was reiterated in Visshin N. Khanchandani and Anr v. Vidya Lachmandas Khanchandani and Anr., 2000 (6) SCC 724 where the Supreme Court observed that:
"The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all 'plus and minus points'. We find it difficult to treat a nominee as being equivalent to an heir or legatee.... In the light of what has been noticed hereinabove, it is apparent that though the language and phraseology of Section 6 of the Act is different from the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. The Act only makes the Provisions regarding avoiding delay and expense in making the payment of the amount of the National Savings Certificates, to the nominee of the holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after valid deductions becomes the estate of the deceased. Such an estate devolves upon all persons who are entitled to succession under law, custom or testament CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 11 of 17 of the deceased holder. In other words, the law laid down by this Court in Sarbati Devi case ((1984) 1 SCC 424 :
1984 SCC (Tax) 59) holds the field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of National Savings Certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those in whose favour the law creates a beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act."
In a later judgment Gayatri De v. Mausumi Co-operative Group Housing Society, 2004 (5) SCC 90, the Supreme Court again held as follows:
"The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid Section 85(3) and Rule 135(3) cannot have any application in the instant case."
In Pran Nath Mallick v. Dr. Netar Prakash Mallick & Ors., 2000 III AD (Delhi) 843, a Division Bench of this Court adopted an identical approach. It was held (in paragraph 12 of the Report) an allotment of a plot once made to a member of a society, it cannot be said that his nominee or legal representative is not entitled to hold or inherit the plot so allotted and that after allotment is made, legal rights get vested in the member and the society cannot stop the inheritance of those rights on the legal representatives and heirs.
10.4 In para no. 4 of Ex. DW1/A it is deposed by DW1 that the Managing Committee of Government Govt. Servants Co-operative House Building Society Ltd approved Smt. Gomati Tandon's application and she was given membership of the society. He further deposed that perpetual Sub- lease singed on 27.04.1971 was signed by Smt Gomati Tandon was witnessed by four witnesses that also included plaintiff no. 1, then aged 34 years. In para no. 6 of Ex. DW1/A the sub-lease of the property was executed by the society in favour of Smt Gomati Tandon not as a nominee but CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 12 of 17 as a member of the society. Similar deposition was given in rest of the paras of Ex. DW1/A by DW-1.
10.5 During cross-examination DW1 admitted that in 1959 his father had applied for membership in the society. He has further admitted that the property was alloted to his father in 1967. He has further admitted that his father Late (Sh) H.K. Tandon did not leave behind any Will at the time of his death. He further admitted that suit property was alloted to his father as a member of the society. He did not know whether his father has made his mother Late (Smt) Gomati Tandon as nominee while taking membership of the society. DW-1 was not aware whether the construction cost at the suit property was met from the funds received from the PF money, insurance, sale of car and savings of his father's bank account and loan from LIC since DW1 was not involved in the construction activities.
10.6 DW-1 has further admitted that his mother was not engaged in any profession or service. DW-1 has admitted that he has not placed any document on record showing that his mother had any independent source of income. He was not aware whether his mother was nominee member of Government Servants Co-operative House Building Society Ltd., Vasant Vihar.
10.7 During cross-examination of PW1 a specific question put by Ld counsel for defendant no. 1 that if the society bye laws do not permit substitute the name of the member then in that situation mother of defendant no. 1 was made member in her individual capacity and in reply to this question it is stated by PW1 that his mother was a nominee of his father and after his demise she became the member as a nominee. However, no suggestion is given to the effect that the mother became member of the CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 13 of 17 society as she had purchased the house out of her own funds. In such circumstances this court is of the considered opinion that the perpetual sub lease deed was executed in the name of Smt Gomati Tandon as a nominee of her husband Late Sh. HK Tondon and not in her individual capacity. Therefore, issue no. 4 is answered against defendant no. 1 as defendant no. 1 is not able to discharge the onus to prove this issue.
ISSUE NO. 3Whether Late Smt. Gomti Tandon executed a legal and valid Will dated 17th November, 1996, if so, to what effect? OPD1
11. Onus to prove issue no. 3 is upon defendant no. 1. In para 9 of Ex. DW1/A it is deposed by DW1 that on 17.11.1996 Smt Gomati Tandon as the sole and undisputed legal owner of the suit property for the previous 25 years, made her final Will and the same was duly registered. It was witnessed by Sh K.L. Rathi. However, original Will has not been brought on the record. During further cross-examination DW1 has admitted that he did not see his mother sign and execute the alleged Will dated 17.11.1996. He was not aware whether the alleged Will dated 17.11.1996 was read out or explained to his mother. He further deposed that he had not seen the attesting witness sign the Will of his mother.
11.1 Moreover, during cross examination of PW1 no signature upon any Will has been confronted by Ld counsel for defendant no. 1 and no opportunity has been given to the plaintiff to explain the signature of his mother by the defendant. Ld counsel further relied upon Smt Jaswant Kaur vs. Smt Amrit Kaur and others (1977) 1 Supreme Court Cases 369 :
"The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 14 of 17 claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satis- factory evidence to prove the due execution of the will by his grand-father Sardar Gobinder Singh."
11.2 Therefore, in the light of this deposition, this Court comes to the conclusion that defendants could not discharge the onus to prove this issue as neither the original Will is brought on the record nor DW1 had seen the signing of the alleged Will dated 17.11.1996 of his mother. No other person has come for deposition to prove Will dated 17.11.1996. Therefore, this issue is answered against defendant no. 1. Even otherwise, it is also proved that the suit property was not under the sole ownership of Late (Smt) Gomati Tandon. She was simply a legal heir of Late (Sh) H.K. Tandon.
ISSUE NO. 1Whether the plaintiff is entitled for partition of property bearing No.B-3/22, Vasant Vihar, New Delhi, if so, what is the share of the plaintiff? OPP.
12. In view of the observations made herein above, this court is of the opinion that relationship between the parties is admitted and the suit property is part of common joint stock of the family. The only contention raised by defendant no. 1 that instead of Sh H.K. Tandon, Smt Gomati Tandon was owner of the property. No Will allegedly executed by Smt. Gomati Tandon has been proved by defendant no. 1 before this court. Even if the plea of defendant no. 1 is to be accepted that Smt Gomati Tandon was the owner of the property then also after her death the suit property has to be CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 15 of 17 divided among legal heirs of Late (Smt.) Gomati Tandon. Admittedly the plaintiffs and defendants are LRs of Late Sh HK Tandon and Smt Gomati Tandon. Therefore, the plaintiff is entitled for preliminary decree for partition of property bearing no. B-3/22, Vasant Vihar, New Delhi i.e. all the parties to the suit are entitled for 1/7th share in the suit property. With these observations issue no. 1 is answered in favour of the plaintiff.
ISSUE NO. 2Whether the plaintiff is entitled for a decree of perpetual injunction as prayed for? OPP
13. Onus to prove this issue is upon the plaintiff. Since during disposal of issue no. 1, this court held that the plaintiff and all the parties to the suit are entitled for 1/7 th share in the suit property. Therefore plaintiff is entitled for perpetual injunction with the direction that all the parties to the suit including defendant no. 1 and / or his servants and agents from creating third party interest, transferring alienating and /or parting with possession of suit property and from raising any construction thereupon till the final decree is to be passed in this case.
ISSUE NO. 5Whether the suit has been properly valued for the purpose of court fee and jurisdiction and appropriate court fee has been paid? OPP
14. Onus to prove issue no. 5 is upon the plaintiff. The plaintiff has valued the suit for the purpose of pecuniary jurisdiction of approximately Rs. 50 lacs. However, it is defence taken by defendant no.1 that the suit property is approximately of Rs 4 crores according to market value. In affidavit of the plaintiff Ex. PW1/A there is no deposition made to prove this issue and thus this issue is answered against the plaintiff with the observation that at the CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 16 of 17 stage of drawing of final decree, the valuation shall be carried out of the suit property and the plaintiff shall be liable to pay the court fees in accordance with their share to be accessed in accordance with the market value of the suit property bearing no. B-3/22, Vasant Vihar, New Delhi.
ISSUE NO. 6RELIEF
15. In view of the observations made herein above a preliminary decree of partition is passed in respect of property bearing no. B-3/22, Vasant Vihar, New Delhi that the plaintiff and all the parties to the suit are entitled for 1/7th share in the suit property equally by metes and bounds. A decree of perpetual injunction is also passed in respect of property bearing no. B-3/22, Vasant Vihar, New Delhi with the direction that all the parties to the suit including defendant no. 1 and / or his servants and agents from creating third party interest, transferring alienating and /or parting with possession of suit property and from raising any construction thereupon till the final decree is to be passed in this case.
Preliminary decree sheet be prepared accordingly.
Pronounced in open Court on 04.05.2017 (Jitendra Kr. Mishra) Additional District Judge-01, NDD/PHC/New Delhi/04.05.2017 kp CS no. 179/17 Dr. J.K. Tandon vs. Anand Tandon Page no. 17 of 17