Umesh Chander v. Mukesh Sharma & Ors.

1. The present I.A. No. 16892/2021 is an Application under Order XII Rule 6 CPC, filed by the Plaintiff seeking a preliminary decree in terms of the admissions made by the Defendant No. 1 in CS(OS) 647/2019 as filed by the Plaintiff for partition of several movable and immovable properties amongst the parties herein, the four children of Late Makhan Lal Saras and Late Pushpa Devi.

2. Shorn of unnecessary details, the facts leading to the filing of the present Suit are as follows: i. The Plaintiff, Defendant No. 1, and Defendant No. 2 are the sons of one Makhan Lal Saras and his wife Mrs. Pushpa Devi; and Defendant No. 3 is the daughter of the said couple. ii. Admittedly, Mr. Makhan Lal Saras is the owner of the following immovable properties as declared in the plaint: a) Built up property No. C-1, Lok Sewak Co-Operative Housing Building Society, Geetanjali Enclave, New Delhi – 110017, admeasuring 347.44 square meters, hereinafter referred as Immovable Property No. 1. b) Built up property No. 311, bearing Khasra No. 619/21 admeasuring 132 square yards, within abadi of Lal Dora, Village Chhattarpur, New Delhi – 110074, hereinafter referred to as Immovable Property No. 2. In addition to the above-said immovable properties, there are several movable properties owned by the parents of the parties which has been detailed in the pleading and the same are as under: a) Savings Bank Account number 600912100002804 in the name of Sh. Makhan Lal Saras and Smt. Pushpa Devi (either or survivor) in Bank of India, 4/6D Deshbandhu Gupta Road, Paharganj, New Delhi – 110055; b) Savings Bank Account Number 1546000100089815 in the name of Shri Makhan Lal Saras and Smt. Pushpa Devi (either or survivor) in Punjab National Bank, A-9 Geetanjali Enclave, New Delhi-110017; c) Savings Bank Account Number 10628667310 in the name of Shri Makhan Lai Saras in State Bank of India, Main Market, Mehrauli, New Delhi-110030; d) Savings Bank Account Number 1546000100082405 in the name of Smt. Pushpa Devi in Punjab National Bank, A-9 Geetanjali Enclave, New Delhi-110017; e) FDR Account No. 1546003103141074 in the name of Smt. Pushpa Devi in Punjab National Bank, A-9, Geetanjali Enclave, New Delhi - 110017. f) FDR Account No. - 1546003103141083 in the name of Smt. g) FDR Account No. - 1546003103141092 in the name of Smt. (The above-mentioned movable and immovable assets of the parents of the parties are hereinafter referred to as ‘Suit Properties’) iii. Mr. Makhan Lal Saras passed away on 27.04.2010. Further, Mrs. Pushpa Devi passed away on 31.08.2011; leaving behind the Plaintiff, and Defendant No. 1-3 as their class-1 Legal Heirs. There is nothing in the pleadings to indicate that Mr. Makhan Lal Saras or Mrs. Pushpa Devi had executed any Will in their lifetime. iv. The Plaintiff sought for partition of the Suit Properties amongst the siblings claiming 1/4th share. v. The Plaintiff sent an Open Letter dated 04.07.2019 addressed to all the Defendants for equitable distribution of the Suit Properties of their late parents as per law. vi. The Plaintiff received responses to the said letter from Defendant No. 2 and 3 vide reply letter dated 23.07.2019 and 24.07.2019, by way of which the said Defendant No. 2 and 3 accepted the proposal of the division of the Suit Properties in an amicable manner qua a deed of family settlement. However, Defendant No. 1 did not reply to the said letter. vii. The Plaintiff then sent letters dated 16.08.2019 and 16.09.2019 to all the Defendants regarding legal opinion sought by him with respect to distribution of the Suit Properties and requested the Defendants for their suggestions. viii. The Defendant No. 3 agreed to the Plaintiff’s suggestions vide letter dated 29.09.2019 to distribute the Suit Property of their deceased parents equally amongst the four legal heirs and expressed her desire to use and occupy the third floor of Immovable Property No. 1. Defendant No. 3 informed the other parties that she will take possession of the third floor of the said property. The Defendant No. 2 provided his assent to Plaintiff’s proposal and agreed to Defendant No. 3 taking possession of the third floor of the said property vide his letter dated 30.09.2019. Further, the Plaintiff also agreed to the proposal of Defendant No. 3. ix. Defendant No. 1 did not to reply to any of the letters addressed to him. x. On 04.10.2019, the Defendant No. 3 reached the Immovable Property No. 1 to take possession of the third floor. However, Defendant No. 1 obstructed her entry. xi. Defendant No. 3 consequentially sent a Legal Notice dated 09.10.2019 to the Plaintiff, and the Defendant No. 1, and 2, to partition the assets left behind by their deceased parents. xii. Defendant No. 2, and 3, with exception of Defendant No. 1, agreed to the said arrangement of distributing all the Suit Properties of the deceased parents in 1/4th share. xiii. The present Suit has been filed for partition of the Suit Properties. Written Statements have been filed by all the Defendants. Defendant No.2 and 3 have admitted to the claim of the Plaintiff to partition the Suit Properties in four equal shares.

3. The present Application has been filed under Order XII Rule 6 CPC, by the Plaintiff.

4. Defendant No.1 in his written statement has averred as under:

"III. The plaintiff had not disclosed very vital and material facts in the present suit. It is submitted that by the present suit the plaintiff has sought partition of the properties left behind by the parents of plaintiff and defendants namely Shri Makhan Lal Saras (since deceased) and Smt Pushpa Devi (since deceased). This is most respectfully stated that Shri. M. L. Saras worked as principal in a senior secondary school and had retired from his services in 1988. Thereafter, he survived on his pension. During his lifetime, he had purchased immovable Property being Property No.C- 1, Lok Sewak Cooperative House Building Society, Geetanjali Enclave, New Delhi 110017 [refer to "immovable property no.1" in the suit]. Then he purchased property being Property No.311, bearing Khasra No.619/21 measuring 132 sq yards within abadi of Lal Dora village Chhattarpur, New Delhi 110074[hereinafter "Immovable Property no.2"in the present suit) by Shri. M. L. Saras along with his three sons by equal contribution. Late shri. M. L. Sarashad purchased the Property being Khasra no. 161/ 162 B- 1091 Ward no. 1 Mehrauli New Delhi - 110030 [refer to as "Immovable property no. 3" in the present suit) out of his funds and savings. Shri. M. L. Saras died in April 2010. Immovable property no.1 was reconstructed between years 2009 to 2011 the expenses incurred on the reconstruction of immovable building (immovable property no.1) were borne by the three sons and Defendant no. 3 did not contribute in any form. In addition to the above properties, Shri. M. L. Saras had also purchased a flat in Dwarka, which is in the possession of defendant no.2. It is pertinent to point out that late shri M.L. Saras had provided with necessary funds to the plaintiff towards purchase of property at Abhay Khand in Indirapuram, Uttar Pradesh. It is submitted that immovable property no.1, 2, 3, flat at Dwarka and property in Abhay Khand Indirapuram, U.P., under the pool of properties inheritable by plaintiff and defendants. In addition to the immovable properties, late shri M.L. Saras and Late Smt Pushpa Devi had left behind movable properties in the form of cash, jewellery, household articles, FDRs etc. The plaintiff had not disclosed all the properties in the present suit and has sought partition and distribution of selected properties.

IV. The plaintiff has also not disclosed about the announcement of WILL by late Shri M.L. Saras during his lifetime when the plaintiff and Smt Pushpa Devi were present. Therefore, the process of partition of properties cannot go on further and no partition can be sought by the plaintiff till the fact of existence or nonexistence of WILL is properly clear and established. ***

VIII. Without prejudice to the above, the defendant no.1 now proceeds to reply to the statements of the plaintiff made in various paragraphs of the plaint in seriatim as under;-

1. With regard to statements made in paragraph 1, it is submitted that the plaintiff while filing the above suit or partition of his 1/4th share in movable and immovable assets left behind his parents has not mentioned and disclosed in the suit all the properties, which shall also fall in the pool of the properties to be divided/shared/partition amongst plaintiff and defendants.

2. The statements made in paragraph 2 (i) are correct that plaintiff, defendant no.1 and 2 are sons and defendant no.3 is daughter of Late Makhan Lal Saras and Late Pushpa Devi. 2(ii) With regard to statements made in paragraph 2(ii) it is submitted that paragraph 2(ii) that Late Shri Makhan Lal Saras was the sole and absolute owner of the property [refer to as immovable property no.1 in paragraph 2(ii)] is correct. The facts and details mentioned about the conveyance deed for immovable property no.1 are matter of record. It is submitted that the immovable property no. was reconstructed between 2009 to 2011. All the expenses on account of reconstruction were borne by three sons i.e. plaintiff and defendant no.1 & 2 and defendant no.3 had not made any contribution towards reconstruction in any form. 2(iii) With regard to statements made in paragraph 2(iii) it is submitted that Late Shri Makhan Lal Saras was the sole and absolute owner of the property [refer to as immovable property no.2 in paragraph 2(iii)] is correct. The facts and details mentioned in paragraph 2(iii) about the sale deed executed for immovable property no.2 are matter of record. It is stated that the plaintiff has not included and mentioned in the suit other properties in which late Shri Makhan Lal Saras and Late Smt Pushpa Lata Devi had interest, which properties is also inheritable in the same way in which the properties (movable and immovable) mentioned in the suit are inheritable by plaintiff and defendants. The plaintiff has also not disclosed in the suit particulars and details of property(s) purchased out of the funds provided by Late Shri Makhan Lal Saras, which too are inheritable by legal heirs of Late Makhan Lal Saras and Late Smt Pushpa Lata Devi. 2(iv) With regard to the statements made in paragraph 2(iv), it is submitted that the statements made by the plaintiff in paragraph 2(iv) as stated are not correct, hence denied. It is incorrect to state that Shri Makhan Lal Saras died intestate. It is correct that Shri Makhan Lal Saras died on 27.04.2010 and he was survived by his wife Smt Pushpa Devi (since deceased), the plaintiff and defendant no.1, 2 and 3 as-his class 1 legal heirs. It is stated that before Shri Makhan Lal Saras died on 27.04.2010 he had announced the presence of the plaintiff, defendant no.l and his wife that he had prepared a WILL which would be disclosed after his death. It is, therefore, submitted that the present suit for partition, having been instituted on the assumption that there is no WILL by Late Shri Makhan Lal Saras, is not maintainable till it is decided whether the present case is a case of "testamentary" or "nontestamentary". 2(v) The statements made in paragraph 2(v) of the plaint as stated incorrect, hence denied. It is submitted that Smt. Pushpa Devi (since deceased), during her lifetime stayed in the front side/portion of Ground Floor of immovable property no.1 and Plaintiffs family was shifted to back side of Ground Floor of immovable property no.1. It is submitted that so far as the first floor is concerned, the front side of the first floor of immovable property no.1. was occupied by Defendant no. 2 and back side of the first floor of immovable property no.1 was occupied by Defendant no. 1. The other floors were under construction. It is denied that Smt Pushpa Devi was taking care of by the plaintiff alone. It is submitted that SmtPushpa Devi (since deceased) was duly taken care of by all the three sons equally. 2(vi) The statements made in paragraph 2(vi) are correct except the statement that Smt Pushpa Devi dies intestate. It is submitted that the present suit cannot proceed further till it is decided by proper pro or adjudication whether the present case is a case of "testamentary" or "Non testamentary" succession and what are the other properties or right or interest over the properties which form the pool of the properties of Late Shri Makhan Lal Saras and Smt Pushpa Devi, inheritable by plaintiff and defendants. 2(vii) The statements made in paragraph 2(vii) of the plaint are denied. It is denied that plaintiff has been looking after the well being of his brothers and sisters as alleged or at all. It is submitted that all the siblings of plaintiff are self-dependent, therefore, the statements by the plaintiff that he looked after the defendants including defendant no.1 is incorrect, hence denied. It is denied that the plaintiff did anything to ensure and atmosphere of peace, harmony and cooperation amongst family members as alleged or at all. 2(viii) Each and every statements made by the plaintiff in paragraph 2(viii) is denied. It is submitted that the plaintiff has not disclosed the correct and complete facts in paragraph 2(viii) of the plaint. It is submitted that Smt Pushpa Devi (since deceased), during her lifetime stayed in the front side/portion of Ground Floor of immovable property no.1 and Plaintiff's family was shifted to back side of Ground Floor of immovable property no.1. It is submitted that so far as the first floor is concerned, the front side of the first floor of immovable property no[1]. was occupied by Defendant no. 2 and back side of the first floor of immovable property no.1 was occupied by Defendant no. 1. The other floors were under construction. It is denied that Smt Pushpa Devi was taking care of by the plaintiff alone. It is submitted that Smt Pushpa Devi (since deceased) was duly taken care of by all the three sons equally. Late Pushpa Devi had suffered the stroke and she remained bedridden for about three months, she was duly taken care of by all the four siblings (three sons and one daughter), at home as well as during her hospitalization. Soon after the death of Smt Pushpa Devi, the Plaintiff forcibly took the possession of the entire ground floor of immovable property no.1, furniture and other household articles like on the ground floor of immovable property no.1. the plaintiff also took forcible possession of all movables, jewellery, cash left behind by Late Shri Makhan Lal Saras and Smt Pushpa Devi. It is stated that the plaintiff has always been imposing for trying to impose his decisions on the siblings saying that he is eldest and the plaintiff now wants the partition of properties mentioned in the suit in the way he wants, without disclosing the complete detail and particulars of other properties or rights over the other properties possessed by Late Shri Makhan Lal Saras and Late Smt Pushpa Devi, which are also inheritable. It is denied that the plaintiff was regularly depositing the rent collected by you for the third floor of immovable property no.1 in the joint account as alleged or at all. It is submitted that money collected towards rent of third floor of immovable property no.1 was not regularly deposited by the plaintiff and defendant no.2 in the joint account opened in the name of the plaintiff, defendant no.1 and defendant no.2. 2(ix) The statements made in paragraph 2(ix) of the plaint is incorrect, hence denied. It is denied that the rent for immovable property no.2 was deposited in the joint accounts of plaintiff and defendant no.1 and 2 for future needs of the family. It is submitted that money collected as rent towards immovable property no.2 was not regularly deposited by the plaintiff and defendant no.2 in the joint account opened in the name of plaintiff, defendant no.1 and defendant no.2. 2(x) With regard to statements made in paragraph 2(x) of the plaint, it is submitted that the plaintiff has not disclosed and mentioned in the suit complete detail and particulars of the properties left behind by Late Shri Makhan Lal Saras and Late Smt Pushpa Devi. It is submitted that in addition to the movable properties mentioned as Item no. A, B, C, D, E, F and G, there are other movable properties which belonged to Late parents of the plaintiff and defendants, however, those other movable properties have been left out by the plaintiff while giving particulars and details of movable properties left behind by the parents. Without prejudice to the contention that the present suit cannot proceed further till it is decided whether is it a case of "testamentary" and "Non testamentary" succession, it is submitted that in order to ensure that all properties, movable and immovable and/or rights in properties possess by Late Parents, it is necessary to appoint a local commissioner to conduct an appropriate survey and enquiry to the details of immovable and movable properties which are inheritable by plaintiff and defendants. The plaintiff is not entitled to seek partition or distribution of properties based on his disclosure, which is not true and complete disclosure. 2(xi) The statements made in paragraph 2(xi) of plaint are denied. It is submitted that the plaintiff while sending the letter dated 04.07.2019 mentioned by him in paragraph 2 (xi) did not mention in the letter all the immovable and movable properties left behind late Shri Makhan Lal Saras and Late Smt Pushpa Devi, inheritable by the plaintiff and defendants. It is denied that there was any family arrangement with regard to immovable property no.1 as alleged by the plaintiff in the letter dated 4.7.2019. It is denied that there was any family understanding that based on conduct and acquiescence as alleged or at all with regard to partition of any of the immovable or movable properties left behind Late Shri Makhan Lal Saras and Late Smt Pushpa Devi. It is submitted that the Plaintiff in the letter dated 4.7.2019 has deliberately not disclosed and omitted to disclosed cash, Jewellery and an immovable property no. 3 in Khasra no. 161/ 162 B- 1091Ward no. 1 Mehrauli New Delhi - 110030 which was purchased by Late Shri M.L. Saras in 1992. It is submitted that the immovable property no. in Khasra No.161/162-B-1091 Ward No.1 Mehrauli New Delhi 110030 was purchased by Late Shri M.L. Saras out of his fund and he himself paid full amount to purchase this property. It is also pertinent to point out that the Plaintiff fraudulently got the power of attorney registered in his own name and not in the name of our father Shri. M. L. Saras who had paid the full amount to purchase the above mentioned property at Mehrauli. It is further submitted that Late Shri M.L. Saras, on discovering that the plaintiff had got the power of attorney registered in his name, was deeply shocked and he warned the plaintiff to disown from all his properties and consequently forced him to transfer the said property in our father's name. Later, Shri. M. L. Saras donated the said Mehrauli property to St. John's School of which the Plaintiff later became the Manager. The said property though donated, has been mortgaged by the Plaintiff to H.D.F.C bank against a personal loan. The objection by the Defendant no.1 is that in case the school closes down or is seized by the bank on any ground, how will the rights of the other inheritors be secured. In the alleged open letter dated 4.7.2019, the Plaintiff had mentioned only those facts that suited his own interest that is why the Defendant no.1 had always requested to him verbally that first of all it should be ascertained that there is no WILL and then only divide all properties equally and let there be a fair division of everything. Having possession of all documents, the Plaintiff his taking undue advantage of the same and not disclosing the properties which in addition to the properties mentioned in the plaint are distributable and inheritable by legal heirs of Late M.L. Saras and Late Pushpa Devi. 2(xii) Each and every statement made in paragraph 2(xii) of the plaint as stated is not correct, hence denied. It is submitted that until and unless the plaintiff discloses all an immovable properties, the question of equitable sharing of parental properties does not arise. It is also submitted that in order to settle the properties there has to be necessary probe or enquiry with regard to existence and non existence of WILL left behind Late M.L. Saras and Late Pushpa Devi and then all the properties movable and immovable both left behind Shri M.L. Saras and Late Pushpa Devi should be brought into the pool of the properties left behind the parents of plaintiffs and defendants which are heritable by them. It is reiterated that the plaintiff has not disclosed in the present suit/plaint other properties which form the pool of the property distributable among legal heirs. It is submitted that the letters dated 23.07.2019 and 24.07.2019 does not exempt the plaintiff from his obligation to give true and complete disclosure of all the immovable and movable properties inheritable by plaintiff and defendants, in case there is no WILL. It is also submitted that there cannot be any equitable and fair distribution of properties left behind the parents of plaintiff and defendants till each and every property, irrespective of the cost, is disclosed by the plaintiff and brought into the pool of distributable and inheritable properties. It is also submitted that rights and/or claims or interest which Late parents of plaintiff and defendants had in any other movable or immovable property, should also be brought into the pool of inheritable properties. 2(xiii) With regard to the statements made in paragraph 2(xiii) of plaint, it is submitted that the same is of no significance and relevant for the present matter. It is submitted that the first issue that needs to be considered and settled is whether the present case is a case of "Testamentary" or "Non Testamentary" succession as it is only in the event of present case being a case of non-testamentary succession, movable or immovable properties left behind the parents of plaintiff and defendants would be inherited by them in equal shares. So as to divide the properties equally and fairly in accordance with the law, each and every property, irrespective of the cost and nature of right possessed by late parents, should be disclosed and be distributed among the plaintiff and defendants as per the law. The letters dated 16.08.2019 and 16.09.2019 are of no significance as the question of pursuing a legal remedy to distribute the movable and immovable assets of the late parents as per the law arises when the fact pertaining to existence or non existence of WILL by late parents is settled and each and every property wherein the late parents had right, title and interest should be make part of the pool of the properties which would be inheritable by legal heirs as per the law. 2(xiv) With regard to the statements made in paragraph 2(xiv) of the plaint, it is submitted that the rights of defendant no.1 are not dependent upon the agreement between the plaintiff and other defendants. It is submitted that the letter dated 23.07.2019 of defendant no.2 and letters dated 24.07.2019 and 29.09.2019 of defendant no. does not bind defendant no.1. it is submitted that the plaintiff, defendant no.2 and defendant no. are not entitled to decide the distribution of inheritable properties in the way they want as the distribution of all the inheritable properties has to be fair and in accordance with the law. It is submitted that the statements made in paragraph 2(xiv) goes on to demonstrate that the plaintiff was imposing his decision on other defendants for his benefit. It is also submitted that any proposal to distribute immovable property no.1 mentioned in paragraph 2 (xiv) is of no significance in law and the same does not bind defendant no.1. 2(xv) With regard to the statements made in paragraph 2(xv) of plaint, it is submitted that the plaintiff is not expected to obtain willingness of defendant no.1 for family settlement to distribute the movable and immovable assets of late parents because before that the situation with regard to the existence or non existence of WILL by late parents has to be clear and when this situation is clear and there is no WILL then each and every property should be brought into the pool of the properties or distribution among legal heirs as per the law. The disclosure of the properties by plaintiff in the present suit is incomplete and it is part disclosure. Many other movable or immovable properties which belonged to late parents have not been disclosed by the plaintiff in the plaint despite the fact that such other left out movable and immovable property are also inheritable and they also need to be distributed equally and fairly among legal heirs. 2(xvi) and (xvii) With regard to the statements made in paragraph 2(xvi) and (xvii) of plaint, it is submitted thatin any situation the plaintiff has no authority or right to decide about distribution of any property left behind by late parents including the immovable property no.1. The plaintiff has no authority and/or right to allocate the different floors of immovable property no.1 between himself and three defendants as per his own decisions. It is submitted that the decision refers to by the plaintiff in paragraph 2(xvi) in something. which he has done and taken to benefit himself without considering the point of view of others including defendant no.1. 2(xviii) With regard to the statements made in paragraph 2(xviii) of plaint, it is submitted that the plaintiff on the one hand had alleged in paragraph 2(xviii) that the third floor of immovable property no.1 was leased out and the rent collected from the same was being deposited in the joint accounts of plaintiff, defendant no.1 and 2, on the other hand he allegedly decided to give third floor to defendant no.3. It is submitted that the plaintiff is vested with no authority either in law or otherwise to decide about the allocation of floors between the plaintiff and the defendants. It is submitted that the alleged decision of the plaintiff that defendant no. would occupy the third floor is not tenable and does not bind the defendant no.1. It is also submitted that the defendant no.1 had enquired from defendant no.3 (Mrs Sandhya Sharma) about the basis of her taking possession of third floor and how she has been permitted to occupy third floor, however, there was no answer to that except the answer it was the command and decision of plaintiff. 2(xix) Each and every statements made in paragraph 2(xix) of plaint is denied and it is submitted that when the plaintiff himself maintains that the third floor was in joint possession of plaintiff, defendant no.1 and 2 and it was leased out and also maintains that the rent collected for third floor was being deposited in a joint account then how could the plaintiff decide to allocate third floor to Defendant No.3. As regards the legal notice dated 09.10.2019 mentioned in paragraph 2(xix) it is submitted that in the said legal notice is devoid of any merit and substance as the defendant no.3 does not have any absolute and exclusive legal right over third floor that too in absence of pending clarity on the existence or nonexistence of WILL by late parents.

3. With regard to the statements made in paragraph 3 of the plaint, it is denied that the attitude of defendant no.1 had been adamant as alleged or at all. It is denied that the defendant no.1 had been non cooperative in the resolution of inheritance as alleged or at all. It is submitted that the defendant no.1 has already mentioned in the written statement about the announcement of WILL by Late Shri Makhan Lal Saras in the presence of plaintiff and late Smt Pushpa Devi, therefore, till the issue of existence WILL attains finality, it is not tenable to go ahead with the distribution of properties on the assumption that there is no WILL. Furthermore, plaintiff had not disclosed all properties in the plaint, therefore, until full, true and complete disclosure of all properties is available before this court by conducting an enquiry or survey by appointing a Commissioner, it is untenable to go ahead with the distribution of the properties without ensuring whether there are other properties which are also inheritable and distributable among legal heirs. xxx

5. Each and every statement made in paragraph 5 of the plaint is denied. It is denied that the plaintiff has any cause of action to file the present suit seeking partition and distribution of the properties mentioned in the suit among plaintiff and three defendants. It is denied that the cause of action arose on 04.07.2019, 23.07.2019 and 24.07.2019 as alleged by the plaintiff in paragraph 5. It is denied that the cause of action also arose on 16.08.2019 and 16.09.2019 as alleged by the plaintiff in paragraph 5. It is denied that the cause of action arose on 30.09.2019 when defendant no.2 consented to the proposal of plaintiff. It is denied that the cause of action arose on 04.10.2019 and 09.10.2019 as alleged by the plaintiff in paragraph 5 of the suit. It is denied that the cause of action is still subsisting as defendant no.1 is deliberately not cooperating in distribution of the properties to be inherited as alleged or at all. It is submitted that there is no cause of action in favour of the plaintiff to seek partition and distribution of the properties mentioned in the suit. It is submitted that the plaintiff is not justified to institute the present suit till a proper enquiry about the existence of nonexistence of WILL and also a proper enquiry about the properties which shall form the pool of the properties to be inherited by plaintiff and defendants is ordered, conducted and over. The plaintiff has not approached this Court with clean hands. 6-9. With regard to the statements made in paragraph 6, 7, 8 & 9 of the plaint, it is submitted that the defendant no.1 reserves his right on the territorial and pecuniary jurisdiction of this Hon'ble Court and submits that the present suit is not maintainable before this Hon'ble Court. 10-13 With regard to the statements made in paragraph 10, 11, 12 & 13 and prayer clause of the plaint, it is submitted that the plaintiff has no legal basis to seek relief and prayers prayed by him in the suit. It is submitted that from the written statement of defendant no.1 it is clear that the defendant had not disclosed true facts before this Court and has also not disclosed the fact of enhancement of WILL by late Shri M.L. Saras and Late Smt Pushpa Devi and the plaintiff had also not disclosed all the properties which are inheritable and distributable among plaintiff and defendants. Therefore, the suit is not maintainable in the present form and the plaintiff cannot seek partition in the way that suits him, therefore, the suit may be dismissed with costs."

5. A perusal of the Written Statement filed by the Defendant No.1 shows that the Defendant No.1 has admitted that the Plaintiff and Defendant No.1 to 3 are the only siblings. Defendant No.1 has also admitted that the Suit Properties as mentioned in the pleadings belong to the parents. Defendant No.1 is not relying on any Will and is only going on a conjecture that there might be a Will. Other than Suit Properties as mentioned in the pleadings, Defendant No.1 has not filed any document to establish the existence of the properties mentioned in the Written Statement. A mere averment will not suffice to include the properties in the Written Statement to make them available for the partition.

6. Counsel for the Plaintiff submits that the said Family Compromise entered into between the parties pending the filing of the Suit mentioned that the deceased parents of the parties have died intestate. Defendant No. 1 being the signatory of the said document has admitted to the contents of the document rendering the prime contention of the Defendant No. 1 baseless.

7. It is the case of the Counsel for the Plaintiff that the deceased parents of the Parties in the present Suit died intestate. Since, the parties in the present Suit are the Class-1 Legal Heirs of the deceased parents, all the assets should be divided equally amongst the four children, that is, the Plaintiff, and the Defendant No. 1 to 3.

8. The Counsel for the Plaintiff states that in lieu of the admissions made by the Defendant No. 1 in their pleadings, as well as the Family Compromise dated 09.02.2020, this court can grant a decree without holding trial. The Counsel for the Plaintiff has placed reliance upon Gautam Sarup v. Leela Jetly & Ors. 2008 (7) SCC 85, Delhi Jal Board v. Surendra P. Malik, 2003 SCC OnLine Del 292, Anupama Bansal vs. Suraj Bhan Bansal &Anr., 2019 SCC OnLine Del 8846, Rajeev Tandon and Another v. Rashmi Tandon, 2019 SCC OnLine Del 7336, Amit Agarwal v. Tanuj Agarwal, 2024 SCC OnLine Del 2075, Monika Tyagi and Others v. Subhash Tyagi and Others, 2021 SCC OnLine Del 5400, Sh. Dinesh Sharma v. Mrs. Krishna Kainth, 2022 SCC OnLine Del 1142 in support of his contention.