Delhi High Court - Orders
Ms. Simi Arun Pandeya vs Mr. Amit Mittal on 29 May, 2025
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 438/2022 & I.A. 11590/2025
MS. SIMI ARUN PANDEYA .....Plaintiff
Through: Mr. Preet Singh Oberoi and Mr.
Karan Singh Grewal, Advs.
versus
MR. AMIT MITTAL .....Defendant
Through: Mr. Suryakant Singla, Sr. Adv. with
Mr. Rajiv Kumar, Mr. Shambhu Nath
Singh and Mr. Prince Kumar, Advs.
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
ORDER
% 29.05.2025 I.A. 11590/2025 (Application on behalf of Plaintiff under Order XII Rule 6 read with Section 151 of Code of Civil Procedure ,1908 for judgment on admissions and for passing a decree of partition and permanent injunction)
1. The present application has been filed by the Plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 ('CPC') seeking judgment on admissions and for passing a decree of partition and permanent injunction with respect to property bearing No. B-102, Swasthya Vihar, Delhi-110092 ('suit property').
2. It is stated that the Plaintiff is the daughter of the deceased persons namely late Smt. Angoori Devi Mittal (i.e., deceased mother) and late Sh. Surendra Kumar Mittal (i.e., deceased father), while the original Defendant was the son of the deceased persons. It is stated that there are no other surviving legal heirs of the deceased persons. The original defendant expired and his Class-I legal heirs were brought on record.
CS(OS) 438/2022 Page 1 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 2.1. It is stated that the Will dated 17.06.1999 specifically bequeaths the First Floor of the suit property absolutely and exclusively to the Plaintiff to the exclusion of others. The Ground Floor of the suit property was to go to Sh. Surendra Kumar Mittal i.e., the deceased father absolutely and exclusively and after his death it was to devolve upon the original Defendant. The Second Floor of the suit property, which consisted of two (2) rooms and therefore, one (1) room each was to devolve upon the Plaintiff and the original Defendant.
2.2. It is stated that the father of the parties who was a beneficiary under the Will dated 17.06.1999, died intestate on 05.09.2019. 2.3. It is stated that in its affidavit of admission/denial of documents filed on 27.08.2022, the original Defendant had categorically admitted the Will dated 17.06.1999 executed by the mother thereby acknowledging the division of the suit property as per the Will dated 17.06.1999. 2.4. It is stated that as on the date of the filing of the suit, the witnesses to the Will dated 17.06.1999 were not alive.
2.5. It is contended in the suit that since the Ground Floor was bequeathed to the father, upon his dying intestate, the Ground Floor has devolved upon the plaintiff and defendant in equal shares as per the law of intestate succession.
The original Defendant has disputed this assertion and has contended that upon the demise of the father, the Ground Floor devolved absolutely on him as per the contingent bequest made in the Will.
Arguments of the parties
3. Learned counsel for the Plaintiff states that as per the Will dated 17.06.1999, the suit property would devolve upon Plaintiff and original Defendant as mentioned in paragraph '22' of the captioned application, CS(OS) 438/2022 Page 2 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 which reads as under:
"22. That on the basis of the Will of the mother (which stands admitted) coupled with the undisputed fact that the father died intestate, the immovable property would devolve in the following manner:
Property Details Devolution Basis
Ground Floor 50% each to Plaintiff On account of Will
and Defendants of the mother and
father dying intestate
First Floor Exclusively to the As specifically
Plaintiff bequeathed in the
Will
Second 50% each to Plaintiff On account of Will
Floor/terrace and Defendants of the mother
Common including Common access to all For practical usage
setbacks in the and as per
property established principles
of co-ownership
....."
3.1. He states that Clause 'I(a)' of the Will dated 17.06.1999 bequeaths Ground Floor to the husband, late Sh. Surendra Kumar Mittal. He states that after the death of Sh. Surendra Kumar Mittal, since Sh. Surendra Kumar Mittal died intestate, the said Ground Floor would devolve equally between the Plaintiff and the Defendant as per the law of intestate succession. 3.2. He states that it is the division of the Ground Floor, which is the only issue arising between the parties. He relies upon the following judgments i.e., Madhuri Ghosh & Anr. v. Debobroto Dutta & Anr.1 and Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors.2 to contend that the bequest in favour of late Sh. Surendra Kumar Mittal was absolute and therefore, after his death since no Will was executed by him, Ground Floor would devolve upon the Plaintiff and the Defendant equally, as per the law intestate succession.1
(2016) 10 SCC 805.2
(2002) 2 SCC 468.CS(OS) 438/2022 Page 3 of 16
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 3.3. He states that as per Plaintiff the suit property ought to be divided in the ratio of 2:1. He fairly stated that if this contention is rejected by this Court, the suit property has to be divided equally between the parties.
4. In reply, learned Senior Counsel appearing on behalf of the legal heirs of the original Defendant submits that the bequest at Clause 'I(a)' of the Will dated 17.06.1999 contemplated that Sh. Surendra Kumar Mittal would have an absolute and exclusive interest in the Ground Floor of the suit property throughout his life and in the event he dies without dealing with/disposing of the suit property, the Ground Floor would vest in Sh. Amit Mittal (the original defendant).
4.1. He relies upon the judgment of a Coordinate Bench in Rajeev Kumar & Anr. v. Sanjeev Kumar & Anr.3 to contend that in the identical facts, the Coordinate Bench has held that such a bequest is a conditional bequest and would operate in favour of his subsequent legatee mentioned in the Will. He states that in the facts of this case original Defendant is the subsequent legatee.
Analysis and Findings
5. This Court has considered the submissions of the parties and has perused the Will dated 17.06.1999.
6. At the outset, it is noted that both parties agreed that the only issue arising for consideration is the interpretation of Clause 'I(a)' of the Will dated 17.06.1999 and neither party wishes to lead evidence on the said clause.
7. Late Smt. Angoori Devi Mittal i.e., the deceased mother was the recorded owner of the suit property. She left behind a Will dated 3 2025 SCC OnLine Del 2519.
CS(OS) 438/2022 Page 4 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 03.07.1992, which was subsequently attested and registered on 17.06.1999. The execution of the said Will by the Testatrix is admitted between the parties and its validity is also accepted. It is the interpretation of the bequest in the said Will qua the Ground Floor of the suit property, which is the sole issue arising between the parties and for consideration of this Court.
8. Before proceeding ahead, it would be material to reproduce the Clause(s) 'I(a)', 'I(b)' and 'I(c)' of the Will which reads as under:
"I, hereby, desire and bequeath all my properties, moveable and immoveable, in the following manner:-
I. House No, B-102, Swasthya Vihar, Delhi-92, is my self-acquired property. It is a built-up house of 2 stories. I desire and bequeath the same as under:-
(a) After my death, my husband, Sh. S.K. Mittal, shall be entitled to the Ground Floor of my said house absolutely and exclusively. My husband shall be free to use and dispose of the said Ground Floor in any manner whatsoever. After the death of my husband, Sh. S. K. Mittal, I bequeath the said Ground Floor to my son Amit Mittal, as full owner thereof.
I may make it clear that the occupier of the house on upper floors shall be entitled to free passage from the ground floor without any kind of obstruction.
(b) I desire and bequeath that after my death, the first floor of my said house shall vest absolutely and exclusively in my daughter, Simi Pandeya, to the exclusion of all others.
(c) At present, on the second floor, only two rooms have been constructed. I, hereby, bequeath one room to my son, Amit Mittal and one room to my daughter, Simi Pandeya. Each of them shall be full owner of the portion bequeathed to them and shall have no right to object to the ownership of the other portion"
(Emphasis supplied)
9. The parties are ad-idem on the devolution of the First Floor and Second Floor as per Clause 'I(b)' and '(c)' of this Will dated 17.06.1999. 9.1. The dispute has arisen only with respect to Clause 'I(a)', which CS(OS) 438/2022 Page 5 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 bequeaths the Ground Floor. Clause 'I(a)' bequeaths the Ground Floor, firstly, upon Sh. Surendra Kumar Mittal (the husband) absolutely with the express right to dispose of the said floor. Secondly, the said Clause 'I(a)' bequeaths that after the death of Sh. Surendra Kumar Mittal the Ground Floor property shall vest in the son i.e., the original Defendant as a full owner.
9.2. The Testatrix, pre-deceased Sh. Surendra Kumar Mittal and therefore, Clause 'I(a)' came into operation and the ground floor was inherited by Sh. Surendra Kumar Mittal. However, admittedly Sh. Surendra Kumar Mittal did not dispose of the Ground Floor and expired on 05.09.2019 The original Defendant and his legal heirs contend that upon the demise of Sh. Surendra Kumar Mittal since the Ground Floor had not been disposed of by Sh. Surendra Kumar Mittal in his life time, the bequest in the Will vesting the Ground Floor absolutely in favour of the original Defendant came into operation.
9.3. On the other hand, the Plaintiff contends that with the vesting of the Ground Floor in Sh. Surendra Kumar Mittal, the remaining bequest in favour of the original Defendant lapsed and cannot be given effect to. The Plaintiff contends that the vesting of the Ground Floor shall be governed by law of intestate succession applicable to estate of Sh. Surendra Kumar Mittal. On this basis she claims 50% share in the Ground Floor of the Suit Property.
10. Before adverting to the controversy involved in the present case it would be relevant to refer to the relevant case laws applicable to the facts of the present case.
10.1. The Supreme Court in the case of Navneet Lal alias Rangi v.
CS(OS) 438/2022 Page 6 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 Gokul4, after analysing the entire case laws on the subject matter of construction of Will, highlighted the essential principles that should guide the Courts in interpreting Wills, the relevant paragraph of the said judgment reads as under:
"8. From the earlier decisions of this Court the following principles, inter alia, are well established:
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal [1950 SCC 702: AIR 1951 SC 139: (1950) SCR 766, 772]) (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v.
Parthasarathy [41 IA 51, 72: 21 IC 339: 15 Bom LR 1010]) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar [1950 SCC 978 : AIR 1951 SC 103 : (1950) SCR 949, 955] ) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7 : (1953) SCR 232, 240]) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every 4 (1976) 1 SCC 630.
CS(OS) 438/2022 Page 7 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das [AIR 1963 SC 1703 : 1963 Supp (2) SCR 834, 839, 842] ) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite Mrs [AIR 1964 SC 1323: (1964) 2 SCR 722, 735])"
(Emphasis supplied) 10.2. Further the Supreme Court in the case of Bay Berry Apartments (P) Ltd. v. Shobha5 held that when recitals in a document are unambiguous and not uncertain, then in that case the said recitals will have to be given literal meaning and the intent of the propounder of the said document will have to be given effect to. The relevant paragraph of the said judgment reads as under:
"34. When a document is not uncertain or does not contain an ambiguous expression it should be given its literal meaning. Only when the contents are not clear the question of taking recourse to the application of principles of construction of a document may have to be applied. It is also not a case where there exists any inconsistency between an earlier and later part of the document. What is necessary for a true, proper and effective construction of the will in question is to give effect to the intention of the propounder of the will."
(Emphasis supplied) 5 (2006) 13 SCC 73.
CS(OS) 438/2022 Page 8 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 10.3. In the case of Sadaram Suryanarayana v. Kalla Surya Kantham6 which was closely similar to the facts of the present case, the Supreme Court therein held as under:
"8. The English rendition of Clause 6 of the will executed by Smt Kalla Jaggayyamma is as under:
"(6) 2nd item tiled house situated in New Colony out of which eastern wing two rooms shall devolve to my second daughter, Chandaram Appalanarasamma and the western wing two rooms shall devolve upon my elder daughter, Chandaram Ramanamma with absolute rights of sale, gift, mortgage, etc., and this will come into force after my demise. After demise of my daughters the retained and remaining property shall devolve upon their female children only."
9. It is evident from a plain reading of the above that the testatrix had bequeathed in absolute terms the property mentioned in Clause 6 in favour of her daughters Chandaram Appalanarasamma and Chandaram Ramanamma with absolute rights of sale, gift, mortgage, etc. That the bequest was in absolute terms was made abundantly clear by the use of the words "absolute rights of sale, gift, mortgage, etc." appearing in Clause 6 above. To that extent there is no difficulty. What led to a forensic debate at the Bar was the latter part of bequest under which the testatrix has attempted to regulate the devolution of the property in question after the demise of her daughters. The testatrix has desired that after the demise of her daughters the property vested in them would devolve upon their female heirs only.
10. The question is whether the testatrix Smt Kalla Jaggayyamma, had made two bequests, one that vests the property absolutely in favour of her daughters and the other that purports to vest the very same property in their female offspring. If so whether the two bequests can be reconciled and if they cannot be, which one ought to prevail. .....
15. To the same effect is the decision of this Court in Mauleshwar Mani case [(2002) 2 SCC 468] where the question once again was whether an absolute interest created in the property by the testatrix in the earlier part of the will can be taken away or rendered ineffective by the subsequent bequest which is repugnant to the first bequest. Answering the question in the negative, this Court held that once the testator has given an absolute right and interest in his entire property 6 (2010) 13 SCC 147.
CS(OS) 438/2022 Page 9 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 to a devisee it is not open to him to further bequeath the very same property in favour of the second set of persons.
.....
19. In Kaivelikkal Ambunhi case [(1995) 5 SCC 444] (SCC p. 445, para 4), the Court applied the maxim cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est which means that in a will if there are two inconsistent provisions the latter shall prevail over the earlier.
.....
22. It is evident from a careful reading of the provisions referred to above that while interpreting a will, the courts would as far as possible place an interpretation that would avoid any part of a testament becoming redundant. So also the courts will interpret a will to give effect to the intention of the testator as far as the same is possible. Having said so, we must hasten to add that the decisions rendered by the courts touching upon interpretation of the wills are seldom helpful except to the extent the same recognise or lay down a proposition of law of general application. That is so because each document has to be interpreted in the peculiar circumstances in which the same has been executed and keeping in view the language employed by the testator. That indeed is the requirement of Section 82 of the Succession Act also inasmuch as it provides that meaning of any clause in a will must be collected from the entire instrument and all parts shall be construed with reference to each other.
23. Coming then to the facts of the case at hand it is evident from a careful reading of Clause 6 of the will extracted above that the same makes an unequivocal and absolute bequest in favour of the daughters of the testatrix. The use of words like "absolute rights of sale, gift, mortgage, etc." employed by the testatrix make the intention of the testatrix abundantly clear. The learned counsel for the plaintiff- respondents herein also did not have any quarrel with the proposition that the testatrix had in no uncertain terms made an absolute bequest in favour of her daughters. What was argued by him was that the bequest so made could be treated as a life estate not because the testament stated so but because unless it is so construed the second part of Clause 6 by which the female offspring of the legatees would get the property cannot take effect. It was on that premise contended that the absolute estate of Smt Sadaram Appalanarasamma ought to be treated only as a life estate. The contention though attractive on first blush, does not stand closer scrutiny. We say so because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor, in the present case the CS(OS) 438/2022 Page 10 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 testatrix.
24. We are not here dealing with a case where the testatrix has in one part of the will bequeathed the property to A while the same property has been bequeathed to B in another part. Had there been such a conflict, it may have been possible for the respondent-plaintiffs to argue that the latter bequest ought to take effect in preference to the former. We are on the contrary dealing with a case where the intention of the testatrix to make an absolute bequest in favour of her daughters is unequivocal. Secondly, the expression "after demise of my daughters the retained and remaining properties shall devolve on their female children only" does not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix.
25. The expression extracted above does not detract from the absolute nature of the bequest in favour of the daughters. All that the testatrix intended to achieve by the latter part of Clause 6 was the devolution upon their female offspring all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be no devolution of any such property upon the female offspring in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Seen thus, there is no real conflict between the absolute bequest which the first part of Clause 6 of the will makes and the second part of the said clause which deals with devolution of what and if at all anything that remains in the hands of the legatees."
(Emphasis supplied) 10.4. A conjoint reading of paragraphs 9, 23, 24 and 25 of the aforesaid judgment of the Supreme Court leaves no manner of doubt that the bequest made in favour of the original Defendant under Clause 'I(a)' of the Will in the present case is not in conflict with the bequest made in the same clause previously in favour of Sh. Surendra Kumar Mittal.
Pertinently, the judgment of Mauleshwar Mani (supra) relied upon by the Plaintiff was duly considered by the Supreme Court. 10.5. A co-ordinate Bench of this Court in the case of Jasbir Kumar v.
CS(OS) 438/2022 Page 11 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 Kanchan Kaur7 in a similar facts and circumstances held to the following effect:
"16. From the language used in the subject Will, it is evident that the testator had desired to devolve his movable and immovable properties in favour of the respondent No. 1, as an absolute bequest. Respondent No. 1 was not only a beneficiary under the Will, she was also made the executor of the Will: The moment the deceased had declared that all his movable and immovable properties would go to devisee, the respondent No. 1, inherent in the said declaration was his intention to bequeath an absolute interest in the property in favour of his wife including right to sell, transfer or alienate the same. That being the position, the second part of the relevant para of the Will, where the testator had stated that ".............. after her death, shall go to my two sons-Surinder Singh and Jasbir Kumar in equal shares." has to be construed to mean that if any part of the estate was available in the hands of the legatee, then the same would devolve on her two sons in equal share. If so interpreted, the conflict between the first part and the latter part of the para of the Will quoted above, stands reconciled, without any repugnance."
(Emphasis supplied)
11. Keeping in view the aforesaid principles of interpretation and more specifically the judgment of Supreme Court in Sadaram Suryanarayana (supra), Rajeev Kumar (supra) and Jasbir Kumar (supra), this Court is of the opinion that the contention raised by the Plaintiff is without any merit, considering the facts of the case at hand and recitals of the Will dated 17.06.1999.
11.1 Upon examining the Will dated 17.06.1999, it is evident that the Testatrix intended to confer absolute ownership of the Ground Floor of the suit property upon the late Shri Surendra Kumar Mittal with a specific right to dispose of the said property. However, the Testatrix also stipulated that in the event Shri Surendra Kumar Mittal died without disposing of the Ground 7 2017 SCC OnLine Del 13096.
CS(OS) 438/2022 Page 12 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 Floor then the said floor would devolve upon the original Defendant i.e., her son Sh. Amit Mittal. The legality of such a bequest in the Will has been acknowledged and deliberated upon by the Supreme Court in Sadaram Suryanarayana (supra), Rajeev Kumar (supra) and Jasbir Kumar (supra).
11.2 The bequest made in favour of the original Defendant is in the nature of the residuary bequest which takes effect only if the immovable property is not disposed of by the main legatee, i.e., the father during his life time. 11.3 In the judgment of Madhuri Ghosh (supra) relied upon by the Plaintiff, the Supreme Court was concerned with assertion of rights by the main legatee whose rights were being disputed and interfered with by the subsequent/contingent legatee, during her life time. However, in the facts of this case there has been no conflict between the main legatee and the residuary legatee.
11.4 In the present case, since the main legatee i.e., Sh. Surendra Kumar Mittal neither alienated nor sold the Ground Floor during his lifetime, second part of Clause 'I(a)' of the Will becomes operative upon his demise. Accordingly, the Ground Floor, which remained un-transferred, would devolve exclusively upon the original Defendant in terms of second part of Clause I(a) of the Will.
11.5 On the other hand, if the submissions of the learned counsel for the Plaintiff are accepted to hold that Ground Floor devolves upon Plaintiff and the original Defendant, it would operate against the intent of the Testatrix, which is unambiguously reflected in Clause 'I(a)'. A holistic reading of the Will dated 17.06.1999 shows that the Testatrix intended for her son and daughter to hold the property in equal shares and she had partitioned the CS(OS) 438/2022 Page 13 of 16 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 property in the manner set out in clause I(a), (b) and (c) of the Will. 11.6 Further, if the Plaintiff's submissions are accepted and the residuary bequest is ignored, the suit property will devolve in the ratio of 2:1 between the plaintiff and the original Defendant which would ex-facie run contrary to the intent of the Testatrix.
11.7 This Court, therefore, is unable to accept the submissions of the Plaintiff that prayer clause (a) in the suit is liable to be decreed in favour of the Plaintiff, declaring her owner to the extent of 2/3rd share in the suit property.
12. To sum up, as per the Will dated 17.06.1999 the Plaintiff is the absolute owner of the First Floor along with one room on the Second Floor in the suit property and original Defendant is the absolute owner of the Ground Floor along with one room on the Second Floor of the suit property. These are the rights of the parties in the super-structure. In the land as well the parties will be co-equal owners of 50-50 each.
13. Since this is a suit for partition and each party is a Plaintiff, in view of the findings returned hereinabove a preliminary decree is hereby passed declaring that the Plaintiff is entitled to First Floor along with one room on the Second Floor of the suit property and the original Defendant is held entitled to Ground Floor along with one room on the Second Floor of the suit property. These are the rights of the parties in the super-structure. The Plaintiff along with the original Defendant is the owner of the land in the ratio of 50:50.
14. The registry is directed to draw up a preliminary decree in terms thereof.
15. With the aforesaid directions, the application stands disposed of.
CS(OS) 438/2022 Page 14 of 16This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/06/2025 at 23:31:12 Movable Assets
16. Learned counsel for the parties' state that they are agreeable to a reference to mediation for division of the movable assets in the ratio of 50:50.
17. The parties state that there is no dispute between them that the movable estate of their deceased parents have to be divided equally between the parties in the ratio of 50:50. They state that the dispute was only with respect to the immovable property.
18. Learned counsel for the Plaintiff states that however for a meaningful mediation, both the parties need to make a full disclosure of the movables which they have collected/received from the estate of the parents.
19. Learned Senior Counsel for the defendant concedes with the aforesaid submission.
20. This Court also finds merit in the submission of the Plaintiff. Accordingly, the parties are directed to respectively file an affidavit of the movable estate, which came to their hands within four (4) weeks.
21. Learned counsel for the Plaintiff states that the Plaintiff is aware of specific accounts and policies which he believes were encashed by the original Defendant. He states that he will write an e-mail to the counsel for the Defendant within two (2) weeks seeking information on those accounts and policies.
The Defendant is directed to ensure that a full disclosure with respect to the said accounts and policies is also made in the affidavit.
22. With the consent of the parties, the parties are referred to Delhi High Court Mediation and Conciliation Centre ('Mediation Centre').
23. It is clarified that the reference to mediation is only with respect to the division of movable assets of the deceased parents; as the Plaintiff reserves CS(OS) 438/2022 Page 15 of 16 This is a digitally signed order.
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24. List before the Mediation Centre on 04.07.2025 at 3:00 P.M.
25. List before Court on 08.09.2025.
MANMEET PRITAM SINGH ARORA, J MAY 29, 2025/msh/sk Click here to check corrigendum, if any1 CS(OS) 438/2022 Page 16 of 16 This is a digitally signed order.
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