Full Text
CS (OS) No.1367/1998
JUDGMENT
Through : Mr. Arvind Pandey, Adv.
Through: Mr. Y.D. Nagar, Adv. for Def. No.1(a)
& 1(b)
Mr. Ajay Talesara, Adv. for Def. No.3 Mr. M.L. Mahajan, Adv. with Mr. Gaurav Mahajan, Adv. for Def. Nos.4, 5, 6 & 7(a) to 7(f)
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No in the Digest? MANMOHAN SINGH, J.
1. The plaintiff filed the suit for declaration and partition of the suit property bearing No.C-11 Green Park Extension, New Delhi admeasuring about 400 sq. yds.
2. The plaintiff and defendants are descendants of a common ancestor namely late Sh. Ganga Ram Gupta. Late Sh. Ganga Ram Gupta had two sons namely Sh. Murani Lal Gupta and Sh. Girdhari Lal Gupta. 2009:DHC:5440 Gupta, while defendants No.4 to 7 are descendants of late Sh. Girdhari Lal Gupta. Sh. Murari Lal Gupta acquired the suit property. He constructed a house comprising of ground floor and first floor with partial construction over the second floor of the said house. The suit property was registered in the name of Late Murari Lal Gupta but it is the admitted position that half of the funds for purchase of plot as well as for construction were contributed by late Girdhari Lal Gupta.
3. Late Sh. Murari Lal Gupta made a Will dated 30.11.1984 concerning the said house by virtue of which late Sh. Murari Lal Gupta bequeathed first floor of the said house to the family members of his younger brother namely Sh. Girdhari Lal Gupta while bequeathing the rest of the entire property to his four sons. Sh. Murari Lal Gupta expired on 6.12.1986.
4. Out of the 4 sons of late Sh. Murari Lal Gupta, plaintiff and defendants No.2 and 3 are still alive while his 4th son namely Sh. Radha Krishan Gupta expired on 14.8.1997. He is now survived by his wife and a married daughter who are being impleaded as defendant Nos. 1 (a) and (b) to this suit.
5. Sh. Girdhari Lal Gupta expired in the year 1966 and is survived by his wife namely Smt. Sabaj Kali Gupta who is impleaded as defendant No.4 and his two living sons have been impleaded as defendant Nos.[5] and 6. His third son namely Sh. Kishan Gupta expired on 7.10.1994 and is presently survived by his widow, two sons and three daughters who are being impleaded as defendants No.7(a) to (f)
6. As per the Will left by late Sh. Murari Lal Gupta, only the first floor of the suit property falls to the shares of defendant Nos.[4] to 7 while rest of the house comprising of the ground floor and the second floor and the land underneath is to be shared equally by plaintiff and defendants No.2 and 3 in the proportion of one fourth each and to the extent of one eight each by defendant Nos.1(a) and (b).
7. After the death of late Sh. Murari Lal Gupta and late Sh. Girdhari Lal Gupta, the suit property still continues to be joint amongst the parties to the present suit.
8. A preliminary decree was passed by the court on 23rd March, 2006 to the following effect: “i. The plaintiffs together will get 1/4th of the half share of the branch of Late Murari Lal Gupta. ii. The defendant Nos.1(a) and 1(b) shall together get 1/4th out of the half share of Late Murari Lal Gutpa. iii. The defendants No.2 and 3 shall each get 1/4th of the half share of Late Murari Lal Gupta. iv. The defendant Nos.[5] and 6 will each get 1/3rd of the half share of Late Girdhari Lal Gupta; and v. The defendant Nos.[7] (a to f) together get 1/3rd of the half share of Late Girdhari Lal Gupta.”
9. On the same date, a local commissioner was also appointed to ascertain whether the suit property can be divided by metes and bounds. The local commissioner filed a report on 21st April, 2006. After taking measurements of all the rooms existing in the suit property and the occupation and possession of the parties as regards the suit property, and the entire property would have to be demolished for that purpose.
10. The defendant No.3 Sh. Bhagwan Krishan Gupta aggrieved by the abovesaid order of 23rd March, 2006 filed an appeal before the Division Bench being FAO No.268/2006 which was dismissed on 23rd May, 2006. Thereafter, a Special Leave Petition was filed by the defendant No.3 in the Supreme Court and the matter was remanded to a Division Bench of this Court to deal with the construction of the Will executed by Sh. Murari Lal Gutpa.
11. The Division Bench heard the matter on merits and applying the Arm Chair Rule to para 3 of the Will, dismissed the appeal on 20th December, 2007 with cost of Rs.5,000/-. The defendant No.3 again filed an appeal being Civil Appeal No.1186/2009 against this order in the Supreme Court which was dismissed on 23th February, 2009 with cost of Rs.25,000/-. A review petition filed by the defendant No.3 was also dismissed on 20th October, 2009.
12. The only objection raised by defendant No.3 is that the barsati floor of the suit property should be divided between the four sons of late Sh. Murari Lal Gupta as the entire property except the first floor stands bequeathed to them.
13. The defendant No.3 also raised objection to the report of Local Commissioner stating that existing structures can be damaged and new flats can be constructed in accordance with the shares determined in the preliminary decree to divide the suit property by metes and bounds.
14. It is not disputed that the Will dated 30th November, 1984 of which he bequeathed first floor of the suit property in favour of the family members of his younger brother Sh. Girdhari Lal Gupta and the ground floor and second floor portion was bequeathed by him in favour of his four sons in equal shares. It is also not in dispute that the suit property was purchased by Sh. Murari Lal Gupta and registered in his name. But a declaration has been made in the will by late Sh. Murari Lal Gupta that both he and his younger brother, Girdhari Lal Gupta contributed equally for purchase of the suit property. The cost of construction in the said property was also contributed equally by both of them. This makes one fact clear, that though the sale deed has been registered in the name of Sh. Murari Lal Gupta, the suit property was equally owned by both. The testator also issued a letter to the Revenue Authority for mutation stating that the suit property is owned jointly by him and his brother, Late Sh. Girdhari Lal Gupta. A similar statement was made in the affidavit filed by late Sh. Murari Lal Gupta in the affidavit filed with the application for mutation. All the parties to the suit except defendant No.3 agreed that the suit property be sold to effect the partition in the suit property as per the preliminary decree passed on 23rd March, 2006.
15. The objection raised by the defendant No.3 to the report of the Local commissioner that the suit property may be divided by metes and bounds by demolishing the entire existing structure and building new flats in the newly constructed building cannot be accepted as all the parties have agreed to sell the suit property and divide the sale proceeds
16. Accordingly, final decree is passed. The suit property be sold by public auction and sale proceeds be divided in the shares mentioned in the preliminary decree. Mr. Tanuj Khurana, Adv. (Mobile No.9811009959, X-3, Civil Wing, Tis Hazari) is appointed as Local Commissioner and is directed to take necessary steps for inviting offers from the public for auctioning the suit premises. For the purpose of ascertaining the value of the suit property, the local commissioner shall be at liberty to engage a government approved valuer who will submit his report to the local commissioner. After the government approved valuer gives his report, the local commissioner shall fix the same as the basic price for inviting offers from the public for sale of the suit premises. He shall take all further steps in pursuance thereof by publishing a proclamation of sale in the newspaper and inviting bids in respect of the suit premises. The bids shall be accompanied by a token amount toward earnest money. After finalizing the highest bidder, a report shall be submitted by the local commissioner to the court.
17. The fee of the local commissioner is tentatively fixed at Rs. 50,000/- to be shared equally by the parties in proportion of their entitlement in the suit premises. Fee of the government approved valuer shall also be paid in the same manner. Renotify on 20th April, 2010 in the category of „directions‟. MANMOHAN SINGH, J DECEMBER 15, 2009 nn