Delhi District Court
Smt. Chander Wati Sharma vs Smt. Vidyawanti Khurana on 1 April, 2010
IN THE COURT OF SH. PITAMBER DUTT, ADJ ( CENTRAL-17) : DELHI
Suit no. 401/03
In the matter of :
Smt. Chander Wati Sharma
W/o Late Shri N.K. Sharma
D/o Late Shri Dharambir Khurana
R/o K-4/12, Model Town-II,
Delhi- 110009
-------Plaintiff
VERSUS
1. Smt. Vidyawanti Khurana
W/o late Shri Dharambir Khurana
R/o K-4/12, Model Town-II,
Delhi - 1100 09
2. Shri Sheel Nijhawan
W/o Shri Yashpal Nijhawan,
R/o 80-A, New Theater Road,
Park Circus, Calcutta-17
3. Smt. Neelam Khurana
W/o late Shri Ranbir Khurana
4. Shri Deepak Khurana
S/o Late Shri Ranbir Khurana
( Both R/o K-4/12, Model Town-II,
Delhi- 110009)
5. Shri Nand Kishore Khurana
S/o late Shri Tulsi Dass Khurana
R/o K-4/12, Model Town-II
Delhi- 110009
6. (A) Smt. Vishan Devi Khurana
W/o Late Shri Jagan Nath Khuran
6. (B) Shri Sumer Chander Khurana
S/o Late Shri Jagan Nath Khurana
6. (C) Shri Cuckoo Khurana
S/o Late Shri Jagan Nath Khurana
6. (D) Smt. Ramesh Dua
D/o Late Shri Jagan Nath Khurana
6. (E) Smt. Yeena
Suit no. 401/03 Page 1/16
D/o Lte Shri Jagan Nath Khurana
( Service to be effected through their mother
Smt. Vishan Devi Khurana at
C/o Azizan Di Hatti, Talai Bazar,
Kaithal 136027, Haryana )
7. (A) Smt. Raj Rani Khurana
W/o Late Shri Har Bhagwan Khurana
7. (B) Shri Praveen Khurana
S/o Late Shri Har Bhagwan Khurana
7. (C) Shri Pradeep Khurana
S/o Late Shri Har Bhagwan Khurana
7. (D) Smt. Sushma Aneja
D/o Late Shri Har Bhagwan Khurana
7. (E) Smt. Meenu
D/o Late Shri Har Bhagwan Khurana
(Service to be effected through their mother
Smt. Raj Rani Khurana
Address: K4/12, Model Town- II,
Delhi- 110009)
-------Defendants
Date of Institution of Suit : 25.03.2003
Date when reserved for orders : 22.03.2010
Date of Decision : 01.04.2010
SUIT FOR PARTITION AND FOR RENDITION OF ACCOUNTS
JUDGEMENT :-
1 Vide this judgment I shall decide the suit for partition and for rendition of accounts filed by the plaintiff against the defendants.
2 The Brief facts, necessitating in filing the present case are given as under :- 3 As per the plaintiff, Late Shri Dharam Bir Khurana, Late Shri Jagan Nath Khurana, Late Shri Harbhagwant Khurana and Shri Nand Kishore Khurana were the owners of immovable property bearing No. K-4/12, measuring 645 sq yards, situated at Model Suit no. 401/03 Page 2/16 Town-II, Delhi-110009 and property bearing no. 1/602, Hamilton Road, Kashmere Gate, Delhi-110006, same were purchased by all of them jointly after paying the full consideration. During the life time of Shri Dharam Bir Khurana a deed of partition in respect to the immovable property bearing No. K-4/12, Model Town-II, Delhi was executed amongst all the co-owners whereby the said property was divided into four equal shares and late Shri Dharam Bir Khurana became the absolute owner of the front portion of the building consisting of two bed-rooms, one drawing-cum-dinning rooms, one attached bathroom-cum W.C., one kitchen, two bathrooms, one store opening in the bed room, open court-yard inside the building, one veranda, lawn in the open space, one Kolki and one store and W.C under the stairs and one Maine in the stair case upon the bath and store room, one garage and the entire construction over it. But, the another immovable property situated at Hamilton Road, Kashmere Gate could not be partitioned amongst the co-sharers during the life time of Shri DharamBir Khurana.
Unfortunately Shri Dharam Bir Khurana died on 08.12.1974 intestate leaving behind the plaintiff and defendant no. 2 who are his daughter and defendant no. 1 his widow and Shri Ranbir Khurana his son. Unfortunately, Shri Ranbir Khurana also expired on 6.12.1986 leaving behind defendant no. 3 & 4 as his widow and son. The defendant no. 5 is the brother of deceased Sh. Dharam Bir Khurana and defendant no. 6A to 6 E and 7 A to 7 E are the legal heirs of Late Shri Jagan Nath Khurana and late Shri Har Bhagwan Khurana who were the brothers of Shri Dharam Bir Khurana and co- owners of the property situated at Hamilton Road, Kashmere Gate.
The plaintiff and defendant no. 1 & 2 have inherited 1/16h share in the property situated at Model Town and defendant no. 3 & 4 being legal heir of Late Shri Ranbir Khurana have collectively inherited 1/16th share. Similarly the plaintiff, defendant no. 1, 2 are entitled to inherit 1/16 share whereas defendant no. 3 & 4 collectively entitled to inherit 1/16th undivided share in the immovable property bearing No. 1/602, Hamilton Road, Kashmere Gate, Delhi.
4. It is, further, averred that defendant no. 3 Smt. Neelam Khurana filed a civil suit before the Ld. Civil Judge for Declaration and Permanent Injunction thereby praying for Suit no. 401/03 Page 3/16 declaring her as owner of the suit property situated at Model Town on the basis of a forged and fabricated, unregistered Will dated 03.11.1974 allegedly executed by Shri Dharam Bir Khurana. It is further stated that Shri Dharam Bir Khurana had not executed any will during his entire life time and in order to grab the property, the defendant no. 3 have prepared a forged and fabricated will in her favour, therefore, the said suit was deligently contested by the plaintiff.
In December, 2001, the plaintiff was also constrained to file a civil suit against defendant no. 1 to 4 for seeking demolition of unauthorised construction and for restraining them to carry out any illegal construction and taking forcibly possession from the plaintiff. The said suit is still pending.
In the first week of March 2003, it came into the notice of the plaintiff that defendant no. 3 & 4 are trying to sell the immovable property without giving her due share in the said property. Besides this the defendant no. 1 & 5 have also denied the plaintiff to give her due share in the property situated at Himilton Road, Kashmere Gate, Delhi as per law.
On the basis of the aforesaid averments, the present suit has been filed by the plaintiff for seeking partition and rendition of accounts against the defendants. 5 In pursuance of the summons, defendant no. 1, 3 & 4 appeared and filed their written statement thereby taking various preliminary objections. It is stated that the suit is not properly framed. It is, further, stated that suit is not tenable and maintainable in law. It is, further, stated that the plaintiff herself filed a suit for mandatory and permanent injunction whereby she has sought a mandatory injunction with regard to the removal of wall and the room. It is, further, stated that plaintiff has failed to file any site plan or give any proper description of the properties. It is further stated that plaintiff has no cause of action for filing the present suit.
Averment on the merits have also been denied. It is denied that Sh. Dharam Bir Khurana died intestate. It is submitted that Sh. Dharam Bir Khurana in his sound state of mind had executed a will in favour of his son Sh. Ranbir Khurana and on his death the property was to devolve upon Smt. Neelam Khurana for her life time and thereafter in Suit no. 401/03 Page 4/16 favour of defendant no. 4. Therefore, the plaintiff has no right to file the present suit. It is denied that plaintiff inherited 1/4th share in the portion of the property situated at Model Town and any share in the property situated at Hamilton Road, Kashmere Gate, Delhi. It is also submitted that defendant no. 2 has also no right, title or interest in any of the suit properties and defendant no. 2 has never been in possession being a residence of Calcutta. It is stated that the immovable property bearing No. 1/602, Hamilton Road, Kashmere Gate, Delhi could not be partitioned, however, it is denied that plaintiff can seek any partition of the same as she has no right, title or interest therein. It is submitted that no probate is necessary for Hindus in Delhi and registration of will is also not necessary under the law. It is further submitted that though the plaintiff is not entitled to any right, title or interest in the property at Model Town but she having been deserted by her husband was accommodated by defendant no. 1 and husband of defendant no. 3. She is having a two room, kitchen, latrin and bathroom with an independent entrance from the back side. It is denied that defendant no. 3 & 4 have ever tried to sell or alienate the immovable property situated at Model Town. All other averments made in the plaint have also been denied.
6 The defendant n. 2 has also filed the written statement admitting the claim of the plaintiff. Defendant No. 5 has not filed any written statement and defendant no. 6A to 7E and 7 A to 7E have not put their appearance despite service. Thus, the Ld. Predecessor vide order dated 6.10.2005 proceeded defendant no. 6A to 6E and 7 A to 7 E ex-parte. The defendant no. 2 was also proceeded ex-parte subsequently.
7 The plaintiff filed replication to the written statement of defendant no. 1, 3 & 4 thereby denied the averment made in the written statement and reiterated the averment made in the plaint.
8 On the basis of the pleadings of the parties vide order dated 06.04.2005 my Ld. predecessors was pleased to frame following issues :-
Suit no. 401/03 Page 5/16Issue no. 1 Whether the suit is hit by section 23 of the Indian Succession Act? OPD Issue no. 2 Whether Sh. Dharmvir Khurana had executed any Will dated 3.11.197?
OPD Issue no. 3 Whether the plaintiff is entitled to a decree of partition, if so, to what extent of her share? OPP Issue no. 4 Whether the plaintiff is entitled to a decree of retention of true and correct amount of rent if received by the defendants? OPP Issue no. 5 Relief
9 After framing of the issues, defendant no. 1, 3 & 4 filed an application under Order 14 Rule 5 CPC for amendment of the issue no. 2, which was allowed vide order dated 10.11.2005 whereby the issue no. 2 was re-framed as under: -
"Whether the plaintiff has no right in the suit properties in view of the alleged Will dated 3.11.1974? OPD"
10 In order to prove her case, the plaintiff examined herself as PW-1 and reiterated the averment made in the plaint. The plaintiff has also examined Sh. Amar Singh Gupta as PW-2 and Shri Om Parkash Gupta as PW-3. Plaintiff has also examined Sh. Nand Kishore Khurana as PW-4.
11 To rebut the case of the plaintiff, defendant no. 3 Smt. Neelam khurana examined herself as a sole defendant witness and reiterated the averment made in the written statement.
12 I have heard ld. Counsel for the parties and perused the averment made in the plaint, written statement and also perused the testimony of witnesses produced by both the parties. My issuewise findings are as under:-
Issue no. 1 Whether the suit is hit by Section 23 of the Indian Succession Act?
OPD Suit no. 401/03 Page 6/16
13 The onus to prove issue no. 1 is upon the defendant. The plea of the defendant is that the plaintiff being the daughter of Sh. Dharambir Khurana is not entitled to seek any partition in the dwelling house as under Section 23 of the Hindu Succession Act, 1956 daughter cannot seek partition. During the pendency of this suit the Hindu Succession Act has been amended by the Hindu Succession Amendment Act 2005 and an amendment has been carried out in Section 6 of the Hindu Succession Act, thus thereby recognising the daughter as one of the co-parcener in the joint Hindu family. Pursuant to that Secstion 23 of the Act is also repealed so as to remove the disability of female legal heirs to seek partition in the dwelling house. In view of the above said legal preposition as Section 23 of the Hindu Succession Act has been abrogated by the Hindu Succession Amendment Act 2005. The issue no. 1 is become reductant and same is decided against the defendant and in favour of the plaintiff.
Issue no. 2 Whether the plaintiff has no right in the suit properties in view of the alleged Will dated 3.11.1974? OPD 14 The onus to prove this issue is upon the defendant. The case of the defendant is that Sh. Dharmvir Khurana, husband of defendant no. 1 and father-in-law of defendant no. 3 and grand-father of defendant no. 4 executed a will in favour of the husband of defendant no. 3 thereby bequeathing his share in the property bearing No. K-4/12, Model Town III, Delhi. It is mentioned in the will that the property shall devolve upon the husband of defendant no. 3 and after his death the property would be inherited by defendant no. 3 with restricted right to enjoy the possession but with no right to sell the said property other than for legal necessities and upon her death the property shall be inherited by the children of Sh. Ranbir Khurana and Smt. Neelam Khurana in equal shares. It is further the case of the defendant that the said will was executed on 3.11.1974 in the presence of Sh. Jaimni Lal and Sh. Sada Nand in a sound disposing state state of mind and, therefore, by virtue of the said will executed by Sh. Dharambir Khurana, defendant no. 3 after the demise of her husband became the owner for the said Suit no. 401/03 Page 7/16 property with restricted right and after her death the defendant no. 4 shall be entitled to have the property as an exclusive owner. Therefore, plaintiff has no right, title or interest in the suit property.
On the other hand the case of the plaintiff is that the said will is forged and fabricated procured by the defendant no. 3 and does not bear the signature of Sh. Dharambir Khurana.
15 In order to prove the said will the defendant no. 3 Smt. Neelam Khurana has examined herself as the sole defendant witness and reiterated the averment of the plaint during her examination in chief.
During her cross-examination she admitted that she got married to Mr. Randhir Khurana in November 1972. She also admitted that partition deed dated 19.02.1971 which was executed prior to her marriage and not in her presence. She also admitted that defendant no. 4 Sh. Deepak Kumar was not born when Sh. Dharambir Khurana died on 08.12.1974. She admitted that defendant no. 4 was born on 09.09.1976 and her husband expired on 06.12.1986. She further stated that her husband Sh. Ranbir Khurana had told the plaintiff and defendant no. 2 about the will dated 3.11.1974. Her husband had told her that everyone knew about the will dated 3.11.1974. She further stated that no intimation was given to the plaintiff or defendant no. 2 in writing about the said will. She, further stated that she did not think it necessary to inform the plaintiff or defendant no. 2 about the will 3.11.1974 after the death of her husband. She also admitted that for the first time she put up the will dated 3.11.1974 in the civil suit which was dismissed by the court of Sh. Jitender Mishra, Civil Judge, Delhi. She also admitted that the said suit was filed in the year 2000. She, further, stated that she did not think it necessary to raise a question of will after the death of her father-in-law Sh. Dharambir Khurana for about 30 years. She was not in the house when the said will dated 3.11.1974 was made. She admitted that the first and second page of the alleged will dated 3.11.1974 does not bear the signature of Sh. Dharambir Khurana. She denied that the signature as shown of Dharambir Khurana on the third page of the alleged will are forged and are not his signatures. She further stated that it is not in her knowledge Suit no. 401/03 Page 8/16 that Sh. Dharambir Khurana owned a plot bearing no. B-93, Roop Nagar, Loni District Ghaziabad and another plot of land across railway station, Bahadur Garh District Rohtak. She further stated that she does not know if defendant no. 1 had sold both plots in 1985- 86 before the death of her husband Sh. Ranbir Khurana. She denied that defendant no. 1 executed a will dated 03.08.1988. She further stated that she does not remember if she had sent any reply to Ex. PW-1/2. She, further stated that she did not sent any reply because the matter was settled in the house and the plaintiff had admitted her case. She, further stated that it is not in her knowledge, if her husband got the property mutated in his name after the death of Sh. Dharambir Khurana. She, further stated that neither she nor her son defendant no. 4 got the property mutated in their favour after the death of her husband in 1986. She admitted that first page of the alleged will dated 3.11.1974 is in double space whereas the second and third pages are typed 1.5 space. She denied that Sh. Jaimini Lal and Sh. Sada Nand were not known to Sh. Dharambir Khuran. She further stated that Jaimini Lal was doing the business of stickers. She does not remember what Sadanand was doing. She furher stated that she knew both Jaimini Lal and Sada Nand. She denied that the copy of the will dated 3.11.1974 and the will dated 03.11.1974 is forged. Besides DW1 the defendants No. 1, 2 & 4 has not examined any other witness in support of their case.
16 The plaintiff has examined herself as PW-1 and reiterated in her examination in chief that her father died intestate on 08.12.1974 and left behind defendant no. 1, one son, namely Ranbir Khurana and two daughters as his legal heirs. His four legal heirs equally inherited the property bearing No. K-4/12, Model Town, Delhi as owned by Sh. Dharambir Khurana.
During her cross-examination she admitted that defendant no. 3 had filed a suit for declaration and consequential relief. She, further admitted that defendant no. 3 had filed a will of Sh. Dharambir Khurana. She volunteered that was a forged will. She further stated that she had not filed any suit to declare the said will as forged. She, further volunteerd it was not required as no such will existed. She admitted that in November Suit no. 401/03 Page 9/16 1974 the mental status of Sh. Dharambir Khurana was perfectly alright. She can identify his signatures.
17 A careful examination of the evidence led by both the parties clearly shows that defendant no.1, 3 & 4 filed a joint written statement and the case of defendant no. 1, 3 & 4 is that late Sh. Dharambir Khurana executed a will dated 3.11.1974 by which he had bequathed his entire share in favour of his son Sh. Ranbir Khurana and after his death to the defendant no. 3 for her life and after her demise the property would fall in share of defendant no. 4 exclusively..
18 On the other hand the case of the plaintiff is that deceased Dharambir Khurana had not executed any will. The will sought to be propounded by the defendant is a forged and fabricated will which was never executed by her father Sh. Dharambir Khurana. Thus, the controversy involved in the suit revolves around the genuineness of the will dated 3.11.1974.
In order to prove the said will the defendant has examined defendant no. 3 as a sole witness . Admittedly the will propounded by the defendant is not a registered will. It is, however not in dispute that the will is not a compulsory registerable document. The only consequences attached with the registration of the will is that if the will is registered it can be assumed that it was in existence on the date of its registration and has not been subsequently prepared. However, a will is not a compulsory registerable document, therefore, it cannot be faulted on the ground that it is not a registered will. 19 As per law In order to prove, whether the will has been validly executed and is a genuine document the propounder has to show that the will was signed by the testator and that he had put his signatures to the testament of his own free will. That he was at the relevant time is a sound disposing state of mind and understood the nature and effect and that the testator had singed in the presence of two witnesses who attested it in his presence and in the presence of each other.
20 "Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It Suit no. 401/03 Page 10/16 in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient.
In term of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses While attesting, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signatures out of his own free will having a sound disposing of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof.
21 The Hon'ble Supreme Court 300 " Savithri V. Karthyayani Amma" reported as AIR 2008 S.C 300 has held " The legal requirements in terms of the said provisions are now well-settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his Suit no. 401/03 Page 11/16 presence or on the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.
Thus the law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstances, the obligation is cast on the propounder of the Will to dispel the suspicious circumstances.
22 A perusal of the will Ex. DW-1/2 shows that it does not bear the signatures of Dharambir Khurana on page no. 1 & 2. The first page of the said will is typed in double space whereas the second and third page of the said will has not been typed in double space but in one and a half space. The said fact creates doubt about the will, particularly because the will in question is not a registered will. DW-1 during her cross-examination has submitted that her husband told the defendant no. 2 and the plaintiff about the said will. She, however, has admitted that no intimation was given to the plaintiff or defendant no. 2 in writing qua the said will as she did not think it necessary to inform the plaintiff or defendant no. 2 about the will dated 3.11.1974. She has also admitted that for the first time she put up the will dated 3.11.1974 in the suit filed by her in the year 2000 that after 26 years of the execution of the said will.
The plaintiff has placed on record the will executed by Smt. Vidhyawati PW-1 which is Exhibited as Ex. PW-1/6 and also examined both the attesting witnesses of the said will. The said will, however, cannot be taken into consideration because the plaintiff has neither pleaded nor made any whisper qua the said will in the entire plaint. Thus, the evidence qua the said will executed by defendant no. 1 is beyond the pleadings and cannot be taken into consideration. However, the said will can be looked into for the only purpose that there is a mention in the said will that her husband had not executed any Suit no. 401/03 Page 12/16 will during his life time. The aforesaid assertion in Ex. PW-1/6 creates suspicious circumstances qua the will sought to be propounded by the defendant, therefore, it became incumbent for the defendant to explain this suspicious circumstances about the existence of Ex. DW-1/2 by examining DW-1. The Defendant no. 1 who was the most important witness, who could have explained the said circumstance by appearing as witness, however, defendants have not examined her to explain the said suspicious circumstances thus withhold the most important witness from the court for the reason best know to them. Moreover the defendant has also not examined any of the attesting witness of the will who could have proved the execution and attestation of the will. In the absence of any evidence of the attesting witness the requirement of Section 68 of the Evidence Act has not been fulfilled and the will in question remained unproved and cannot be looked into evidence.
In view of the aforesaid facts and circumstances, I am of the considered view that the defendant has failed to prove that Sh. Dharambir Khurana had executed any will dated 3.11.1974 in favour of the husband of defendant no. 3 and after his demise defendant no. 3 for his life and thereafter for defendant no. 4. Thus, in the absence of any will after the demise of Sh. Dharambir Khurana, the plaintiff being one of the class I legal heir of the deceased is entitled to have have share in the property owned and purchased by the deceased Sh. Dharambir Khurana.
In view of the aforesaid facts and circumstances, I am of the considered view that defendant has failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant.
Issue no. 3 Whether the plaintiff is entitled to a decree of partition, if so, to what extent of her share? OPP 23 The case of the plaintiff is that property bearing No. K-4/12, admeasuring 645 sq yards, situated at Model Town, Delhi and property No. 1/602, Hamilton Road, Kashmere Gate, Delhi -6 were purchased by the brother of her father after paying full consideration.
Suit no. 401/03 Page 13/16It is further, the case of the plaintiff that during the life time of her father Sh. Dharambir Khurana a deed of settlement was executed qua the immovable property situated at Model Town. Pursuant to which the said property was divided into four equal shares amongst the brothers of Sh. Dharambir Khurana. Consequently, Shri Dharambir Khurana became the absolute owner of the front portion of the building consisting of two bed-rooms, one drawing-cum-dinning rooms, one attached bathroom-cum W.C., one kitchen, two bathrooms, one store opening in the bed room, open court-yard inside the building, one veranda, lawn in the open space, one Kolki and one store and W.C under the stairs and one Maine in the stair case upon the bath and store room, one garage and the entire construction over it. It is further the case of the plaintiff that the another immovable property situated at Hamilton Road, Kashmere Gate could not be partitioned amongst the co-owners during the life time of Shri Dharambir Khurana.
On the other hand the defendant has admitted about the allocation of the front portion of the property situated at Model Town to Mr. Dharambir Khurana. However, defendant no. 1, 3 & 4 raise a plea that a will was executed but they have failed to prove the same. All the defendant have also admitted that the property at situated Hamilton Road belongs to Dharambir Khurana and his brothers and same could not be partitioned at that time. Thus, as per the provision after the demise of Sh. Dharambir Khurana, plaintiff being one of the daughter of late Sh. Dharambir Khurana is entitled to inherit her share in the property situated at Model Town and she is also entitled for the share in the property situated at Hamilton Road, Kashmere Gate under the occupation of the tenant being one of the L.R of Sh. Khurana. Admittedly after the demise of Sh. Dharambir Khurana he had left behind his wife, defendant no. 1, another daughter, defendant no. 2 and one sone who died living behind his wife defendant no. 3 and son, defendant no. 4, thus defendant no. 3 & 4 would collectively entitled for one share in the property of Model Town. The plaintiff and defendant no. 1 to 4 are also entitled to inherit their right in the property situated at Hamilton Road being the L.Rs of deceased Sh. Dharambir Khurana. Defendant no. 5 being the only survive brother of Sh. Khurana is entitled to inherit his right in the property situated at Hamilton Road, Kashmere Gate whereas defendant no. 6 Suit no. 401/03 Page 14/16 A to 6 E and 7 A to 7 E are also entitled to have their share in the said property being the L.Rs of late Sh. Jagan Nath Khurana and late Sh. Har Bhagwan Khurana.
In view of the aforesaid facts and circumstances, I am of the considered view that the plaintiff has proved on record that she is one of the Legal heir of the deceased late Sh. Dharambir Khurana who was admittedly the owner of the front portion of the property situated at Model Town and co-sharer in the property at Hamilton Road, thus, she is entitled to have her share in the suit property. Issue no. 3 is accordingly decided in favour of the plaintiff.
Issue no. 4 Whether the plaintiff is entitled to a decree of retention of true and correct amount of rent if received by the defendants? OPP 24 The plaintiff has filed a suit for rendition of account for the property situated at Hamilton Road which is under the occupation of the tenants and the rent of which is being realized by defendant no. 5. The defendant no. 1, 3 & 4 have also admitted in their written statement that the said property has not been partitioned and rent being realized by defendant no. 5 and defendant no. 1. The defendant no. 5 has not filed his written statement, thus, admitted the claim of the plaintiff. In view of the same, plaintiff being one of the L.R of Sh. Dharambir Khurana is entitled to her share in the rent so recovered or collected by defendant no. 5 from the property situated at Hamilton Road, Kashmere Gate, Delhi. Therefore, she is entitled for rendition of true and correct account of the said property. Plaintiff has accordingly discharged the onus of issue no. 4, same is accordingly decided in favour of the plaintiff.
Relief 25 In view of my findings on the above issues, I hold that the plaintiff is joint owner of the suit property bearing no. K-4/12, Model Town-II, Delhi alongwith defendant no. 1 to 4.
Suit no. 401/03 Page 15/16The plaintiff is entitled to 1/4th share in the same. The defendant no. 1 & 2 are also entitled for 1/4th share whereas the defendant no. 3 & 4 are jointly entitled for 1/4th share in the suit property situated at Model Town.
As regard the property bearing no. 1/602, Hamilton Road, Kashmere Gate, Delhi the plaintiff being the one of the L.R of deceased Sh. Dharambir Khurana who was admittedly one of the co-owner of the property, is entitled to have 1/16th share in the said property alongwith defendant no. 1 & 2 whereas defendant no. 3 & 4 are jointly entitled for 1/16th share in the said property and defendant no. 5 is entitled for 1/4th share in the property whereas defendant no. 6 A to 6 E are collectively entitled for 1/4th share and defendant no. 7 A to 7 E are also entitled for 1/4th share collectively in the said property.
I, further, hold that plaintiff is entitled to the partition of the suit property. She is also entitled for the rendition of account of the income of the suit property bearing No. 1/602, Hamilton Road, Kashmere Gate, Delhi from defendant no. 1 & 5.
The suit filed by the plaintiff is thus decreed against the defendants. No order as to cost. Decree sheet be drawn accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (PITAMBER DUTT) TODAY I.E. 01.04.2010 ADJ : DELHI Suit no. 401/03 Page 16/16 Suit no. 401/03 Page 17/16 Suit No. 401/03 31.03.2010 Present; None No time left today. Put up the case for orders on 01.04.2010. ( PITAMBER DUTT) ADJ; DELHI 31.03.2010 01.04.2010 Present; None for the plaintiff None for the defendant
Vide my separate judgment of the even date, the suit filed by the plaintiff has been decreed as regard the partition and rendition of the accounts against the defendants. Plaintiff has been declared joint owner of the suit property situated at K04/12, Model Town to 1/4th share in the same. She is also entitled to 1/16th share in the suit property situated at 1/602, Hamilton Road, Delhi. Preliminary decree be drawn accordingly.
Put up on 04.06.2010 for consideration and issue of rendition of accounts and partition by metes and bounds or otherwise.
( PITAMBER DUTT) ADJ; DELHI 01.04.2010 Suit no. 401/03 Page 18/16 Suit no. 401/03 Page 19/16