Delhi District Court
Cs No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar on 19 August, 2016
: 1 :
IN THE COURT OF SH. DEVENDER KUMAR JANGALA:
ADDL. DISTRICT JUDGE: WEST:TIS HAZARI: DELHI
SUIT NO. 608884/16
1. Sh. Dharam Pal Nayyar
S/o Late Sh. Ram Rakha Mal Nayyar
r/o GH1/185, Paschim Vihar,
New Delhi
2. Smt. Neera Nayyar
w/o Late Sh. Daljeet Nayyar
r/o A213/58, MIG Flats,
Paschim Vihar, New Delhi
3. Sh. Raman Nayyar
s/o Late Sh. Daljeet Nayyar
r/o A213/58, MIG Flats,
Paschim Vihar, New Delhi
4. Sh. Gaurav Nayyar
s/o Late Sh. Daljeet Nayyar
r/o A213/58, MIG Flats,
Paschim Vihar, New Delhi
5. Smt. Sudarshan Puri
w/o Sh Deshraj Puri
r/o AE/59, Tagore Garden,
New Delhi
6. Smt. Promila Arora
Through her legal representatives
6(a) Sh. Krishan Gopal Arora
s/o Late Diwan Chand
6(b) Sh. Tarun Arora
s/o Sh. Krishan Gopal Arora
6(c) Sh. Arun Arora
s/o Sh. Krishan Gopal Arora
CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar
: 2 :
(All r/o B3/29, Janakpuri,
New Delhi58) ...........Plaintiff
Versus
1. Sh. Madan Lal Nayyar
s/o Late Sh. Ram Rakha Mal Nayyar
r/o T48, Rajouri Garden,
New Delhi110027
2. Sh. Prem Sagar Nayyar
s/o Late Sh. Ram Rakha Mal Nayyar
r/o T48, Rajouri Garden,
New Delhi110027 .........Defendants
Date of filing : 26.09.2006
Date of arguments : 09.08.2016
Date of judgment : 19.08.2016
JUDGMENT
19.08.2016
1. All six plaintiffs filed the present suit for partition/possession and mesne profits. It is stated that the parties to the suit are legal heirs of predecessor in interest namely Sh. Ram Rakha Nayyar. That Sh. Ram Rakha Nayyar was the owner in possession of the H. no. T48, Rajouri Garden, New Delhi(herein after called as suit property). That the suit property is having the area admeasuring 207 Sq. yards and a double storey super structure built upon it by Sh. Ram Rakha Nayyar. That Sh. Ram Rakha Nayyar died intestate on 21.05.1972 leaving behind the CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 3 : following legal heirs:
(a) Smt. Laxmi Nayyar Wife
(b) ShMadan Lal Nayyar Son
(c) Sh. Dharam Pal Nayyar Son
(d) Sh. Prem Sagar Nayyar Son
(e) Sh. Daljeet Nayyar Son
(f) Smt. Sudhershan Puri Daughter
(g) Smt. Promila Arora Daughter
2. That on 26.11.1988 Sh. Daljeet Nayyar also expired and left behind plaintiff no. 2 to 4 as legal heirs
3. That Smt. Laxmi Nayyar w/o Late Sh. Ram Rakha Nayyar also died intestate on 04.03.1993 at the age of 87 years and as such the parties to the suit are the only remaining legal heirs of their predecessorininterest Sh. Ram Rakha Nayyar. That the interest in the suit property devolved upon the parties to the suit, after the death of Late Sh. Ram Rakha Nayyar, Sh. Daljeet Nayyar and Smt. Laxmi Nayyar.
4. That the suit property was in constructive and legal possession of parties to the suit, who become coowners. That the occupation and physical possession of the suit property of defendant no. 1 sand 2 are without consent of the other coowners of the property.
CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 4 :
5. That the plaintiff no. 1 has 1/6th share in the suit property . That the plaintiff no. 2 to 4 together are entitled to 1/6th share in the suit property. That the plaintiff no. 5 and 6 are also entitled for 1/6th share in the suit property. That the plaintiffs demanded partition of the suit property many times but the defendants always avoided the partition of the suit property. Hence, the plaintiffs filed the present suit against the defendants.
6. The summons of the suit were issued to the defendants and on being served the defendants filed their written statement. The defendant no.1 in his written statement raised the preliminary objections that the present suit is not maintainable and barred by time. That the present market value of the suit property is Rs. 1 Crore 50 Lacs but the plaintiff has valued the same for Rs. 30 Lacs. That the plaintiffs have not come to the court with clean hands. That recently while searching the old papers and documents, the defendant no.1 got a WILL dated 25.12.1990 executed by Smt. Laxmi Devi Nayyar (now deceased) who was mother of plaintiff no.1 , 5 and 6 and defendants. That as per the contents of the said WILL Smt. Laxmi Devi Nayyar was the absolute owner of the suit property which was mutated in her name after the death of her husband Sh. Ram Rakha Nayyar. That the Defendant no.1 also relied upon the original registered relinquishment deed stated 10.09.1981 which bears the CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 5 : signatures of Plaintiff no. 1, 5 and 6 and defendants and alsothe signatures of Sh. Daljeet Nayyar. That the plaintiffs have intentionally suppressed the registered relinquishment deed dated 10.09.1981.
7. It is submitted that the original plot was purchased in the year 1957 in the name of Sh. Ram Rakha Nayyar for Rs. 2,000/ but the defendant no.1 had give the entire money to his father for the purchase of plot. That Sh. Ram Rakha Nayyar has constructed the suit property on the ground floor. That Smt. Laxmi Devi has bequeathed the suit property in the name of her three sons i.e. Sh. Madan Lal Nayyar, Sh. Prem Sagar Nayyar and Sh. Dharampal Nayyar. That Smt. Laxmi Devi was competent to execute the WILL as she was the absolute owner . That she had not bequeathed any portion of the property in favour of her daughters i.e. plaintiff no. 5 and 6.
8. On the reply on merits, the relationship between the parties are not denied. The submissions made in the preliminary objections were reiterated. It is admitted that Sh. Ram Rakha Nayyar died intestate on 21.06.1972. It is stated that Smt. Laxmi Devi Nayyar expired on 02.03.1994. It is submitted that the suit property is liable to be partitioned as per WILL dated 25.12.1990.
9. The defendant no. 2 in his written statement stated that the originally a vacant piece of land was purchased in the name of CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 6 : Sh. Ram Rakha Nayyar in the year 1957 but the substantial amount towards sale consideration of the property was contributed by defendant no. 2. That the defendant no. 2 has also contributed the substantial amount of Rs. 8,000/ after taking as loan from Delhi Administration for constructing the ground floor of the property. It is admitted that Sh. Ram Rakha Nayyar died intestate on 21.05.1972 . It is submitted that the registered relinquishment deed dated 10.09.1981 was executed in favour of Smt. Laxmi Devi Nayyar. That Smt. Laxmi Devi Nayyar had become the absolute owner of the suit property. That the said relinquishment deed was deposited in MCD and the suit property was mutated in her name. That Smt. Laxmi Devi Nayyar had executed the registered WILL dated 24.07.1990. It is stated that the plaintiff has suppressed the material regarding the execution of the WILL and execution of the relinquishment deed and tried to mislead the court. It is stated that the defendant no. 2 had been paying House Tax and other charges regarding the suit property.
10. On the reply on merits, the relationship between the parties is not disputed. The submissions of the plaintiff are denied. The submissions made in the preliminary objections are reiterated. It is prayed that the suit of the plaintiff be decreed in terms of the registered 'WILL' dated 24.07.1990.
CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 7 :
11. The plaintiff filed the replication to the written statement of the defendants wherein reaffirms and reasserts the contents of the plaint and denied the submissions of the defendants.
12. After completion of pleadings, the issues were framed on 20.05.2008. thereafter, an additional issues was also framed on 07.08.2009 by hon'ble High Court. The issues framed vide order dated 20.05.2008 and 07.08.2009, are as under: Issue no.1: Whether each of the plaintiff is entitled to 1/6th share in the suit property no. T48, Rajouri Garden as claimed? OPP Issue no. 2: Whether the plaintiff is entitled to partition and separate possession of his share of the property as claimed in the suit? OPP Issue no. 3: Whether the plaintiff is entitled to claim mesne profits @ Rs. 3,000/ per month since February 1997 or at any other rate or for any other period? OPP Issue no. 4: Whether the suit has not been properly valued for purpose of court fees and jurisdiction? OPD Issue no. 5: Whether Late Smt. Laxmi Devi Nayyar had become an absolute owner of the property on the basis of alleged relinquishment deed dated 10.09.1981? OPD CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 8 : Issue no. 6: Whether Late Smt. Laxmi Devi Nayyar had execute a registered WILL dated 24.07.1990 bequeathing the property in support of the property in question and the effect thereof? OPD Issue no. 7: Whether the first defendant proves that Late Laxmi Nayyar had executed her WILL and testament on 25.12.1990, disposing of the property in question? OPD1 Issue no. 8: Relief
13. The plaintiffs to prove their case examined Plaintiff no.1 Sh. Dharam Pal Nayyar as PW1. The PW1 filed his evidence by way of affidavit Ex. P1 and deposed in terms of the plaint. The PW1 has also relied upon the documents Ex. PW1/1 to Ex.
PW1/314. The defendant no.1 examined DW Smt. Santosh Nayyar who filed her evidence by way of affidavit Ex. D1W1/A and relied upon the documents Ex. D1W1/1 to Ex. D1W1/4. The defendant no. 2 Sh. Prem Sagar Nayyar examined himself as D2W1 and filed his evidence by way of affidavit Ex. D2W1/A. The Defendant no.2 also examined another witness Ms. Rajni Sanghi in support of his stand who filed her evidence by way of affidavit ExD2W1/A
15. I have carefully perused the material on record an gone CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 9 : through the submissions of the counsel for the parties.
16. It is submitted by the counsel for the plaintiff that plaintiff no.1 has examined himself as PW1 and filed his evidence by way of affidavit. That the testimony of the plaintiff remained unrebutted and unchallenged. That the defendants has admitted the relationship of the parties to the suit. It is prayed that the suit of the plaintiff may kindly be decreed as prayed by the plaintiffs.
17. On the other hand, it is submitted by counsel for the defendants that plaintiff has failed to prove their case that the plaintiffs have admitted the existence of the relinquishment deed executed by Smt. Luxmi Devi Nayyar. Therefore, the suit filed by the plaintiff is not maintainable.
18. In view of the submissions made by the counsel for the parties and the material on record my issuewise findings are as under:
19. Issue no. 4: Whether the suit has not been properly valued for purpose of court fees and jurisdiction? OPD
20. The onus to prove this issue was upon the defendant. The defendant no.1 in his written statement raised the contention that the plaintiff has not properly valued, the suit for the purpose of court fees and jurisdiction. That the plaintiff has disclosed the valuation of the suit property of Rs. 30 Lacs but the actual value CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 10 : of the suit property on the date of filing the suit was Rs. 1 Crore 50 Lacs.
21. The defendant no.1 to prove its contention has examined DW Santosh Nayyar who filed her evidence by way of affidavit. The DW1 in her deposition has nowhere disclosed the valuation of the suit property. None of the witness examined by the defendants has disclosed the valuation of the suit property. The defendants have failed to produce on record any evidence to prove the valuation of the suit property. The defendants have failed to produce on record any material which shows that valuation of the suit property on the date of filing of the suit was Rs. 1 Crore 50 Lacs.
22. The plaintiff has disclosed the valuation of the suit property of Rs.30 Lacs on the date of filing the suit. The defendants has not produced on record any other valuation apart from the valuation disclosed by the plaintiff. It is well settled law that the court may accept the valuation disclosed by the plaintiff if any other valuation is not proved on record. The court should accept the valuation disclosed by the plaintiff if the same is not highly inadequate. The defendants has failed to prove anything contrary.
23. In view of the discussions, I am of the considered opinion that the defendants have failed to prove this issue . This issue is CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 11 : accordingly decided against the defendants and in favour of the plaintiff.
24. Issue no. 5: Whether Late Smt. Laxmi Devi Nayyar had become an absolute owner of the property on the basis of alleged relinquishment deed dated 10.09.1981? OPD
25. The onus to prove this issue was upon the defendants. The defendants in their written statement have disclosed that Smt. Luxmi Devi Nayyar had become the absolute owner of the suit property by virtue of the relinquishment deed dated 10.09.1981 executed by all the Lrs of deceased Sh. Ram Rakha Mal Nayyar. That Sh. Ram Rakha Mal Nayyar, original owner of the suit property had died intestate.
26. The plaintiffs in their plaint and replication have admitted that Sh. Ram Rakha Mal Nayyar was the original owner of the suit property who died intestate. It is also not disputed that on his death the suit property devolved upon his legal heirs who are the parties to the present suit. The plaintiffs have not disclosed the execution of the relinquishment deed dated 10.09.1981 but when the defendants have disclosed the existence of the relinquishment deed dated 10.09.1981, same is not disputed by the plaintiffs. The defendants have proved on record the original relinquishment deed as Ex. PW1/X1. The plaintiff no.1 during CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 12 : his crossexamination has admitted the execution of the relinquishment deed dated 10.09.1981. The provisions of Indian Evidence Act lays down that a fact admitted need not to be proved There is admission by parties regarding the execution of the relinquishment deed dated 10.09.1981 Ex. PW1/X1. The relinquishment deed was admittedly signed by all the legal heirs in favour of Smt. Luxmi Devi Nayyar. The relinquishment deed dated 10.09.1981 was duly registered before the SubRegistrar. Therefore, I have no hesitation to rely upon the relinquishment deed Ex. PW1/X1. It is clear that by virtue of relinquishment deed Smt. Luxmi Devi Nayyar had become absolute owner of the suit property. The defendants are able to prove this issue . This issue is accordingly decided in favour of the defendants.
27. Issue no. 6 : Whether Late Smt. Laxmi Devi Nayyar had execute a registered WILL dated 24.07.1990 bequeathing the property in question and the effect thereof? OPD
28. The defendant no.2 in his written statement has raised the contention that Smt. Luxmi Devi Nayyar had become the absolute owner of the suit property and she had executed a registered WIL dated 24.07.1990. That the suit property is liable to be partitioned as per the WIL dated 24.07.1990.
29. The defendant no. 2 to prove this issue has examined CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 13 : himself as D2W1 and another witness Ms. Rajni Sanghi as D2W2. The defendant no. 2 in his evidence by way of affidavit has deposed that Smt. Luxmi Devi Nayyar had executed a registered WILL dated 24.07.1990. The DW Smt. Rajni Sanghi has deposed that the WILL dated 24.07.1990 has been written by her on the instructions of Smt. Luxmi Devi Nayyar . That Smt. Luxmi Devi Nayyar was in sound mind and healthy at the time of execution of the WILL.
30. It is submitted by the counsel for the defendant no. 2 that the execution of the WILL dated 24.07.1990 is proved by the defendant. Therefore, the suit property is liable to be partitioned in terms of the said WILL. On the other hand, it is submitted by counsel for the plaintiff that the defendants have failed to prove the execution of the WILL as per the provisions of law.
31. Section 68 of the Indian Evidence Act is relevant to be considered regarding the proof of execution of the WILL. It lays down the mode of proof of execution of document required by law to be attested. This section shows that a document whose attestation is compulsory shall not be used as evidence. unless one attesting witness is called to prove the same. It is apparently clear from the words of this section that the said documents cannot be used as evidence even for collateral or incidental purpose, unless it is proved by a particular manner prescribed by CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 14 : this section.
32. The perusal of the WILL dated 24.07.1990 Ex. DW1/4 (D2W1/PA) reveals that the same was attested by two witnesses namely Ms. Kalpana Sharma and Sh. P.L. Monga, Advocate. The WILL was drafted by an advocate, but neither the attesting witnesses nor the person who drafted the WILL is examined by the defendant.
33. Section 68 of the Indian Evidence At is very strict . It specifically prescribed that the execution of theWILL is required to be proved by examining at lease one attesting witness. The defendants have fails to examine any attesting witness of the WILL. The witness examined by Defendant no. 2 are not the attesting witnesses of the WILL. Therefore, they could not prove the execution of the said WILL Ex. DW1/4 (D2W1/PA) dated 24.07.1990.
34. In view of the above discussions, I am of the considered opinion that the defendants has failed to prove the execution of the said WILL dated 24.07.1990 as per the provisions of Indian Evidence Act. Therefore, this issue is decided against the defendants.
35. Issue no. 7 (Additional Issue): Whether the first defendant proves that Late Laxmi Nayyar had executed her WILL and testament on 25.12.1990, disposing of the CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 15 : property in question? OPD1
36. The onus to prove this issue was upon the defendant no. 1. The defendant no.1 in his written statement has raised the contention that Smt. Luxmi Devi Nayyar had executed the WILL dated 25.12.1990.
37. The defendant no. 1 has failed to come in the witness box. The defendant no.1 has examined Ms. Santosh Nayyar to prove this fact. Ms. Santosh Nayyar filed her evidence by way of affidavit Ex. DW1/A. Ms. Santosh Nayyar has relied upon the 'WILL' dated 25.12.1990 Ex. DW1/2.
38. Section 68 of the Indian Evidence Act is relevant to be considered regarding the proof of execution of the WILL. It lays down the mode of proof of execution of document required by law to be attested. This section shows that a document whose attestation is compulsory shall not be used as evidence. unless one attesting witness is called to prove the same. It is apparently clear from the words of this section that the said documents cannot be used as evidence even for collateral or incidental purpose, unless it is proved by a particular manner prescribed by this section.
39. The perusal of the WILL dated 25.12.1990 Ex. DW1/2 reveals that the same was attested by two witnesses however neither the attesting witness nor the person who drafted the CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 16 : WILL is examined by the defendant.
40. Section 68 of the Indian Evidence At is very strict . It specifically prescribed the proof that the execution of theWILL is required to be proved by examining attesting one witness. The defendant has fails to examine any attesting witness of the WILL. The witness examined by Defendant no. 1 are not the attesting witnesses of the WILL. Therefore, she could not prove the execution of the said WILL Ex. DW1/2 dated 25.12.1990.
41. In view of the above discussions, I am of the considered opinion that the defendants has failed to prove the execution of the said WILL dated 25.12.1990 as per the provisions of Indian Evidence Act. Therefore, this issue is decided against the defendants.
42. Issue no. 1: Whether each of the plaintiff is entitled to 1/6th share in the suit property no. T48, Rajouri Garden, as claimed? OPP
43. The issue no. 5 has been proved by the defendants. It has been proved on record by the defendants that Smt. Luxmi Devi Nayyar had become absolute owner of the suit property on the basis of relinquishment deed dated 10.09.1981. It is not in dispute that the parties to the suit are legal heirs of deceased Smt. Luxmi Devi Nayyar. The parties to the suit have failed to prove any testament or 'WILL' executed by Smt. Luxmi Devi CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 17 : Nayyar as per the provisions of law. There is no valid WILL/Testament executed by Smt. Luxmi Devi Nayyar. Therefore, in the absence of same, it is clear that Smt. Luxmi Devi Nayyar had expired intestate leaving behind the parties to the suit as her legal heirs.
44. Section 15 of the Hindu Succession Act lays down the general rule of succession in case the female Hindu dies intestate.. It lays down that when a female Hindu died intestate her property shall devolve according to the rule set out in section
16. It also lays down that her property shall devolved upon her son and daughters including the children of any predeceased son or daughter and the husband.
45. It admitted fact that husband of Smt. Luxmi Devi Nayyar had already expired before her death. The plaintiff no. 2, 3 and 4 are the Legal heirs of the deceased Sh. Daljeet Nayyar (pre deceased son of Smt. Luxmi Devi Nayyar) It is clear that there are six branch of the legal heirs who are entitled to the property of deceased Smt. Luxmi Devi Nayyar as per section 15 and 16 of the Hindu Succession Act. The plaintiff no. 1 is having one share. The plaintiff no. 2 , 3 and 4 together are entitled for one share being legal heir of predeceased son of the plaintiff. The plaintiff no. 5 being daughter is having one share. The legal heirs of deceased Smt. Promila Arora (predeceased daughter of Smt. CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 18 : Luxmi Devi Nayyar) are having one share. The defendant no. 1 is also having one share and defendant no. 2 is also having one share. Therefore, the suit property is liable to be divided into six equal shares. Accordingly, it is held that by virtue of the provisions of section 15 and 16 of the Hindu Succession Act, the suit property is devolved upon the plaintiffs and defendants in following manner: i. Plaintiff no. 1 Sh. Dharam Pal Nayyar : 1/6th share ii. Plaintiff no. 2 Smt. Neera Nayyar, Plaintiff no. 3 Smt. Raman Nayyar and Plaintiff no. 4 Sh. Gaurav Nayyar (being legal heir of Sh. Daljeet Singh, predeceased son of Smt. Luxmi Devi Nayyar) : 1/6th share iii. Plaintiff no. 5 Smt. Sudhershan Puri : 1/6th share iv. Plaintiff no. 6 (a) Sh. Krishan Gopal Arora, plaintiff no. 6(b) Sh. Tarun Arora and plaintiff no. 6(c) Sh. Arun Arora (being Legal heir of Ms. Promila Arora predeceased daughter of Ms. Luxmi Devi Nayyar) : 1/6th share.
v. Defendant no.1 Sh. Madan Lal Nayyar : 1/6th share vi. Defendant no. 2 Sh. Prem Sagar Nayyar : 1/6th share CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 19 :
46. Accordingly, it is held that the parties to the suit are having 1/6th share in the suit property bearing no. T48, Rajouri Garden, New Delhi. This issue is accordingly decided
47. Issue no. 2: Whether the plaintiff is entitled to partition and separate possession of his share of the property as claimed in the suit? OPP
48. In view of the findings on issue no. 1, the plaintiff is entitled for preliminary decree of partition. The parties to suit are having 1/6th share each in the suit property in following manner:
i. Plaintiff no. 1 Sh. Dharam Pal Nayyar : 1/6th share ii. Plaintiff no. 2 Smt. Neera Nayyar, Plaintiff no. 3 Smt. Raman Nayyar and Plaintiff no. 4 Sh. Gaurav Nayyar (being legal heir of Sh. Daljeet Singh, predeceased son of Smt. Luxmi Devi Nayyar) : 1/6th share iii. Plaintiff no. 5 Smt. Sudhershan Puri : 1/6th share iv. Plaintiff no. 6 (a) Sh. Krishan Gopal Arora, plaintiff no. 6(b) Sh. Tarun Arora and plaintiff no. 6(c) Sh. Arun Arora (being Legal heir of Ms. Promila Arora predeceased daughter of Ms. Luxmi Devi Nayyar) : 1/6th share.
CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 20 : v. Defendant no.1 Sh. Madan Lal Nayyar : 1/6th share vi. Defendant no. 2 Sh. Prem Sagar Nayyar : 1/6th share
49. Issue no. 3: Whether the plaintiff is entitled to claim mesne profits @ Rs. 3,000/ per month since February 1997 or at any rate or for any other period? OPP
50. The plaintiff have claimed for mesne profits @ Rs. 3,000/ per month since February 1997.
51. In the present suit, the plaintiff have claimed the mesne profits from the defendants however the plaintiffs have concealed the existence of relinquishment deed dated 10.09.1981 executed in favour of Smt. Luxmi Devi Nayyar. The plaintiffs have pleaded that the suit property has devolved upon them directly from Sh. Ram Rakha Mal Nayyar. The plaintiff have admitted the execution of the relinquishment deed only after producing the same by the defendant. It is also not out of place to mention that the plaintiff have claimed to be in the constructive and legal possession of the suit property. The plaintiff by raising this plea in their plaint could not have sought the relief of mesne profits.
52. In view of the above discussions, I am of the considered opinion that the plaintiff are not entitled for mesne profits as prayed for. This issue is accordingly decided in favour of the CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 21 : defendant and against the plaintiffs.
53. Issue no 8: Relief
54. In view of the findings on the issues, the suit is decreed as under: i. A preliminary decree of partition of the suit property bearing no.
T48, Rajouri Garden, New Delhi is passed. The parties to suit shall have following share in suit property :
(a) Plaintiff no. 1 Sh. Dharam Pal Nayyar : 1/6th share
(b) Plaintiff no. 2 Smt. Neera Nayyar, Plaintiff no. 3 Smt. Raman Nayyar and Plaintiff no. 4 Sh. Gaurav Nayyar (being legal heir of Sh. Daljeet Singh, predeceased son of Smt. Luxmi Devi Nayyar) : 1/6th share
(c) Plaintiff no. 5 Smt. Sudhershan Puri : 1/6th share
(d) Plaintiff no. 6 (a) Sh. Krishan Gopal Arora, plaintiff no. 6(b) Sh. Tarun Arora and plaintiff no. 6(c) Sh. Arun Arora (being Legal heir of Ms. Promila Arora predeceased daughter of Ms. Luxmi Devi Nayyar) : 1/6th share.
(e) Defendant no.1 Sh. Madan Lal Nayyar : 1/6th share
(f) Defendant no. 2 Sh. Prem Sagar Nayyar : 1/6th share CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar : 22 :
ii) The relief sought by the plaintiff for the mesne profits is dismissed.
55. The parties to the suit are at liberty to work out the division of the suit property by metes and bounds (if possible) on or before the next date of hearing. In case of failure of the parties to divide the suit property by metes and bounds amicably, put up for appointment of Local Commissioner to suggest the mode of partition of suit properties by metes and bounds on 16.09.2016.
Devender Kumar Jangala ADJ/West/Delhi/ 19.08.2016 This order contains 22 pages and all pages are duly signed by me.
Devender Kumar Jangala ADJ/West/Delhi/19.08.2016 CS No: 608884/16 Dharam Pal Nayyar vs Madan Lal Nayyar