Rajan v. Poonam Khullar

1. For the reasons stated in the application, delay in re-filing is condoned. CM stands disposed of. CM No.2328/2014 (Exemption)

2. Exemption allowed subject to just exceptions. CM stands disposed of. RSA 37/2014 & CM No.2327/2014 (stay)

3. The only ground which is urged before this Court in this second 2014:DHC:672 appeal by the defendant-appellant is that, though partition has to be done and possession has to be granted to the respondent-plaintiff of her half share in the suit property, the defendant-appellant invokes the principle of owelty and claims equalization of the shares in the suit property bearing No.1/9454, Gali No.7, West Rohtash Nagar, Shahdara, Delhi-110032. It is pleaded that unless there is equalization of shares, the appellant-defendant will not have access to his property.

4. The subject suit was a suit filed by the respondent-plaintiff, sister of the appellant, for possession; partition etc of the suit property in terms of the Will of the mother Smt. Amrit Kaur which is dated 15.9.2004 and registered before the sub-Registrar. The Will has been proved on record through the attesting witness Sh. I.K.Nayyar, PW-3. The Will has been proved and exhibited as Ex.PW1/2. The property admittedly belonged to the mother who executed the Will (Ex.PW1/2). As per the Will specific areas of the ground floor and the first floor are given to the respondent-plaintiff and the appellant-defendant. The division is made in fact of the suit property by the Will almost by drawing a line right down through the middle of the plot which is of about 150 sq. yds.

5. In my opinion, argument urged on behalf of the appellant-defendant of owelty and equalization for getting 50% of the property is misconceived because the Will of the mother by which property has been bequeathed to both the appellant-defendant and the respondent-plaintiff specifically has bequeathed specific portions of the property to each of the appellantdefendant and the respondent-plaintiff. These portions are shown in the plan annexed to the Will. In such a case there is no question of granting equalization, or any issue of ingress and egress to the share of the appellantdefendant. The argument of ingress and egress is also misconceived because as per the Will the appellant can well construct an access to his first floor portion from his portion on the ground floor.

6. A second appeal lies under Section 100 CPC only if there arises a substantial question of law. There is no substantial question of law in the present case much less in terms of the arguments urged before this Court. The appeal is therefore dismissed, leaving the parties to bear their own costs.

FEBRUARY 04, 2014 VALMIKI J. MEHTA, J. ib