Amar Nath Dhawan & Ors. v. Satish Dhawan & Ors.

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 application under consideration being IA No.9761/2009 has been filed by the plaintiffs under Section 151 of the Code of Civil Procedure, 1908 praying for a preliminary decree of partition and for appointment of a Local Commissioner to suggest a mode of partition of the property bearing No.18UA (Municipal No.5931), Jawahar Nagar, Delhi-110007 (hereinafter referred to as the „suit property‟) in proportion of the parties‟ respective ownership. 2009:DHC:5441 property for mandatory injunction against the defendants. The plaintiffs and defendants are members of the same family.

3. The plaintiffs submit that they are lawful and admitted owners of 2/3rd portion of the suit property while the defendants are the owners of the remaining 1/3rd portion of the suit property. The plaintiffs further submit that they are in physical possession and occupation of only half portion of the suit property and the defendants who are owners of 1/3rd portion possess and occupy half portion. It is stated that the property should be physically partitioned to bring it in conformity with their proportionate ownership.

4. The case of the plaintiffs is that late Smt. Tulsi Devi (testatrix) during her lifetime executed a registered Will dated 8th June, 1989 during her life in respect of the following estate: (i) 1/3rd share in property bearing No.18UA (Municipal No.5931) Jawahar Nagar, Delhi-7 and (ii) 50% share in property No.38-UA (Municipal No.5905-5907), Jawahar Nagar, Bungalow Road, New Delhi.

5. The testatrix expired on 8th February, 1995 bequeathing the aforesaid estate in the follow manner: (a) 50% of her share in the aforesaid properties in favour of her daughter-in-law namely Smt. Karuna Dhawan (Plaintiff No.2 herein); and (b) Remaining 50% share to be divided equally amongst her grandsons namely Prashant and Aditya (Plaintiff Nos.[3] and 4).

6. The plaintiff No.1 is the sole executor of the Will of the Nos.[3] and 4 are his sons. Plaintiff No.2 was bequeathed 1/3rd share in the suit property while 1/3rd share in the suit property came in the hands of plaintiffs No.3 and 4. Therefore, the plaintiffs became the owners of 2/3rd share in the suit property. The defendant Nos.[1] to 8 are the sons and daughters of late Sh. Chand Kishan Das, brother of the plaintiff No.1.

7. The plaintiff No.1 being the sole executor of the Will filed the probate case bearing No.188/2001 before the District Court which was contested by late Sh. Chand Kishan Das and the defendants herein. Vide judgment dated 23rd February, 2004, the learned Additional District Judge, Delhi granted probate of the Will in favour of the plaintiff No.1. The plaintiff No.1 filed a valuation report and paid a court fee in respect of the suit property in terms of the aforesaid judgment. The plaintiffs also executed an administration cum surety bond in respect of the property which were accepted by the District Court.

8. The plaintiffs alleged that the suit property is still undivided and is in joint occupation of the parties. The defendants who are in occupation of more than half share in the suit property are seeking to create third party interest in the property. The plaintiffs thus filed the present suit seeking partition of the suit property by metes and bounds and a permanent injunction restraining defendants from interfering in any manner with the possession of the plaintiffs is their 2/3rd share in the suit property. Kishan Das contended that the suit property has already been partitioned by virtue of a memorandum of family settlement (MFS) dated 18th August, 1980 between Sh. Chand Kishore Das, Sh. Amar Nath Dhawan and Smt. Tulsi Devi. The defendants No.1 and 2 denied the alleged Will dated 8th June, 1989 executed by the testatrix. The contention of defendants No.1 and 2 is that Smt. Tulsi Devi during her life time executed a Will dated 25th July, 1974 and distributed her 1/3rd share between plaintiff No.1 and the defendants No.1 and 2.

10. The site plan relied upon by the plaintiffs was also denied. The defendants No.1 and 2 however, admitted that the District Court vide order dated 23rd February, 2004 allowed the petition for grant of probate bearing No.188/2001 in respect of Will dated 8th June, 1989 and no appeal has been preferred against the same. The defendant Nos.[1] and 2 admitted that plaintiff No.1 is the owner of 1/3rd share of the suit property but denied any right, title or interest of the plaintiffs No.2 to 4 in the suit property. It is submitted that late Smt. Tulsi Devi during her life time had partitioned the property in question between her two sons namely late Sh. Chand Kishan Dass and Sh. Amar Nnath Dhawan by virtue of Memorandum of Family Settlement dated 18th August, 1980 and since then the parties are in possession of their respective shares.

11. The defendants No.3 to 9 (daughters of late Sh. Chand Kishan Das) have not claimed any right, title or interest in the suit property and have submitted that their share in the suit property belongs made by their father of the defendants. It is denied that they are in possession of the suit property.

12. Status quo was granted on 25th January, 2008 directing the defendants not to alienate the suit property or create any third party rights. Notice was issued to the defendants by way of a newspaper publication in the „Statesman‟ dated 25th December, 2008 and „The Tribune‟ dated 26th December, 2008 respectively. The interim orders were made absolute on 28th August, 2009.

13. In probate case No.188/2001 filed by the plaintiff No.1 before the district court wherein late Sh. Chand Kishan Das was the only objector, the following two issues were framed on the basis of pleadings of the parties: “(1) Whether the Will dated 8th June, 1989 propounded by the petitioner is the last Will and testament of late Smt. Tulsi Devi and was it validly executed by her while she was in her sound disposing mind ? (2) Relief.”

14. I have considered the rival submissions of the parties. Apparently, in the probate case filed by the plaintiff No.1 in the district court, the defendants herein contested and raised objection against the grant of probate in favour of the plaintiff No.1. The Additional District Judge dismissed the objections raised by the defendants and probate was granted in favour of plaintiff No.1. It was held by the learned Additional District Judge on issue No.1 that the Will dated 8th June, 1989 had been validly executed by the testatrix, Smt. Tulsi Devi while the testatrix.