Vijay Kawatra & Anr. v. Virender Kawatra

1. The present suit has been instituted by the plaintiffs against the defendant praying inter alia for a decree of partition in respect of premises bearing no. S-407, Greater Kailash, Part-I, New Delhi, by declaring him and his two brothers (plaintiff no. 2 and the defendant) as owners of 1/3rd undivided share therein.

2. Summons were issued in the suit on 15.5.2015, returnable on 27.8.2015. The defendant has filed a written statement wherein he does not deny that the parties have 1/3rd share each in the suit premises.

3. Counsels for the parties state that the suit premises was owned by the father of the parties, Sh. Dev Raj Kawatra who had executed a will dated 28.06.1985, wherein he has devolved the right of residence 2015:DHC:8464 on his wife, Smt. Shankutala Kawatra. He had also desired that upon her demise, the suit premises be divided between his sons in three equal shares. Sh. Dev Raj Kawatra expired on 24.8.2002 and his wife Smt. Shakuntala Kawatra expired after a decade, on 04.6.2012, thus leaving the two plaintiffs and the defendant as the three class-I heirs.

4. Counsels for the parties state that defendant had filed a Probate Petition No. 92/2012 before the Saket Court for seeking probate of the will dated 28.06.1985, executed by Sh. Dev Raj Kawatra, which was duly allowed vide judgment dated 19.02.2014. They submit that there is no impediment in passing a preliminary decree in respect of the suit premises, by determining the shares of each of the parties.

5. Accordingly, with the consent of the parties, a preliminary decree is passed by declaring that the plaintiff no. 1, plaintiff no.2 and the defendant are entitled to 1/3rd undivided share each in the suit premises.

6. Counsels for the parties state that having regard to the nature of the construction existing in the suit premises, it is not feasible to partition the same by metes and bounds and the parties are agreeable that it may be disposed of in the open market and the sale proceeds be divided amongst them in proportion to their respective shares. They request that the preliminary decree may be converted into a final decree and the parties may be left to identify a suitable buyer on their own and take further steps to dispose of the suit premises as agreed above.

7. Accordingly, the preliminary decree passed above, is converted into a final decree. The parties shall be at liberty to take joint steps to identify a prospective buyer of the suit premises and share the sale proceeds in proportion to their respective shares therein. If the parties are unable to take joint steps or they do not co-operate with each other or if the suit premises is not disposed of within six months from today, then either party shall be entitled to seek execution of the judgment and decree in accordance with law. Counsels for the parties agree that the plaintiffs shall not take any steps to dispossess the defendant from the suit premises for a period of six months.

8. Decree sheet be drawn accordingly.

9 The suit is disposed of, along with the pending application, while leaving the parties to bear their own expenses. File be consigned to the record room. HIMA KOHLI, J OCTOBER 07, 2015 mk/ap