Urmil and Others v. Savitri Devi

1. This suit for partition has been filed by the Plaintiffs against the Defendant with the averments that Late Shri Tek Chand was the owner of property bearing no.C-2, Shivaji Park, West Punjabi Bagh, New Delhi measuring 438 sq. yds. The property was purchased by the earlier said Late Shri Tek Chand from its previous owner for valuable consideration on the basis of two sale deeds dated 19.07.1962 and 20.07.1962 duly registered in the office of the Sub-Registrar. It is averred that said Late Shri Tek Chand during his life time executed a 2014:DHC:6679 Will dated 02.04.1986 and on the basis of the said Will, the three Plaintiffs and the sole Defendant who are the four daughters-in-law of Late Shri Tek Chand became owners of the property in equal shares. Thus, it is the case of the Plaintiffs that each of the Plaintiff is entitled to 1/4th share in the property. Similarly, Defendant is also entitled to 1/4th share and the property may be partitioned by metes and bounds.

2. In the written statement, the Defendant has not disputed that Late Shri Tek Chand was the absolute owner of the earlier said property or that he had executed a Will dated 02.04.1986 bequeathing the said property in equal shares to the three Plaintiffs and the Defendant. In para 5 of the written statement, the Defendant averred as under:

3. Today, the suit was listed for framing of issues. The learned counsel for the Plaintiffs pointed out that no issue arises on the basis of pleadings of the parties and a preliminary decree for partition is liable to be passed. The prayer is opposed by the learned counsel for the Defendant. The learned counsel for the Defendant while referring to the preliminary objections in the written statement has submitted that there were other properties of Late Shri Tek Chand in the shape of his share in a partnership firm in respect of which a Civil Suit CS(OS).89/2013 has been filed by Savitri Devi against the other partners of the partnership firm. It is urged that the Plaintiffs herein have placed an obstacle in partition of the partnership firm’s property which was earlier bequeathed by Late Late Shri Tek Chand in favour of his four sons making their share in the partnership firm equal i.e. 25% to each of the four sons, although three sons of Late Shri Tek Chand were also partners in the partnership firm.

4. The learned counsel for the Defendant has referred to the judgment of the Calcutta High Court in Rajendra Kumar Bose v. Brojendra Kumar Bose, 1923 (77) Indian Cases (Calcutta High Court) to urge that all the property of joint family should be included in the suit to claim partition. The judgment cited is not applicable to the facts of the present case as the property, subject matter of the suit is not a joint family property at all. Learned counsel for the Defendant referring to Himani Alloys Limited v. Tata Steel Limited, (2011) 15 SCC 273 has further submitted that judgment on admission is always in the discretion of the Court and since the Plaintiffs are not acting equitably, they are not entitled to the judgment.

5. I have considered the ratio of this judgment. The same also does not apply to the facts of the instant case. In fact, today the case was listed only for settlement of issues. A perusal of the Will dated 02.04.1986 which is admitted by the Defendant clearly shows that property bearing no.C-2, Shivaji Park, West Punjabi Bagh, New Delhi was bequeathed in favour of four daughters-in-law i.e. the partition claimed in the instant suit. Of course, in para 2 of the Will, Late Shri Tek Chand also dealt with his share in the partnership firm M/s Tek Chand & Sons, 38 Rama Road, Shivaji Marg Industrial Area, New Delhi. But admittedly, the Plaintiffs and the Defendant were neither the partners in the said partnership firm nor any of them has been given any interest in the said partnership firm. The testator has separately dealt with those properties in paras 1 and 2 of the Will, English translation of which is extracted hereunder: