Full Text
HIGH COURT OF DELHI
Date of Decision: 10th May, 2022.
PANKAJA PANDA & ORS. ..... Plaintiffs
Through: Ms. Manmeet Arora with Mr. Ashish Kumar and Mr. Kartikey Sharma, Advocates.
Through: Mr. Vaibhav Agnihotri with Ms. Niharika Ahluwalia, Advocates for
D-1 & 2.
Ms. Mansi Sharma, Advocate for D-3.
Mr. Ananya Kumar with Ms. Shriya Luke, Advocates for D-4 & 5.
JUDGMENT
1. The present suit has been instituted seeking partition of the property bearing No. D-897, New Friends Colony, New Delhi admeasuring about 471 square yards (suit property).
PLEADINGS IN THE PLAINT
2. It has been stated in the plaint that: i. The suit property belonged to Mrs. Sheila Kapila, who expired intestate on 8th April, 2003. ii. Late Mrs. Sheila Kapila left behind four children, being Mrs. 2022:DHC:1873 Sudha Panda, Mrs. Leela Kapila, Dr. Rajendra Kapila and Mr. Jitendra Kapila, who inherited the aforesaid property equally. iii. Mrs. Sudha Panda, the eldest daughter of late Mrs. Sheila Kapila died intestate on 10th November, 2019. At present, the three plaintiffs are the sole legal heirs of late Mrs. Sheila Kapila. iv. The defendant no.1, Mrs. Leela Kapila is settled in England and is entitled to 25% undivided share in the suit property. v. The defendant no. 2, Mr. Jitendra Kapila is settled in the United States of America (USA) and is entitled to 25% undivided share in the suit property. vi. Late Dr. Rajendra Kapila, being one of the sons of late Mrs. Sheila Kapila, was a resident of USA and expired on 28th April, 2021, in New Delhi. Before his death, he executed a Will in terms of which he bequeathed all his estate to his second wife, the defendant no.3. The defendants no.4 and 5 are the son and daughter of late Dr. Rajendra Kapila respectively, from his first wife. vii. Legal proceedings are going on in USA between the defendant no.3 on one hand and the defendants no.4 and 5 on the other hand, in respect of the estate of late Dr. Rajendra Kapila. viii. The suit property is not capable of division by metes and bounds. ix. The plaintiffs no.1 to 3 together, defendant no.1, defendant no.2, and the defendants no.3, are entitled to 25% undivided share each in the suit property.
3. Based on the aforesaid pleadings, a decree of partition is sought in respect of the suit property.
PLEADINGS IN THE WRITTEN STATEMENTS
4. The defendants no.1, 2 and 3 have filed separate written statements supporting the case of the plaintiffs.
5. The defendants no.4 and 5 have filed separate written statements opposing the reliefs claimed in the suit. The main contention of the defendants no. 4 and 5 in their written statements is that late Mrs. Sheila Kapila had executed a Will dated 18th November, 1999 in terms of which the defendants no.1 and 2 only have a beneficial life interest in the suit property and not an absolute interest.
SUBMISSIONS OF THE PLAINTIFFS
6. Ms. Manmeet Arora, counsel appearing on behalf of the plaintiffs has made the following submissions. i. The 25% share of the plaintiffs in the suit property has not been disputed by the defendants no.4 and 5 in their written statements. ii. The defendants no.4 and 5 have admitted in their written statements that they are only entitled to 25% share in the suit property. iii. In the email dated 2nd November, 2021 the defendants no.4 and 5 along with their mother have admitted to the 25% shares of the plaintiffs and the defendants no.1 and 2. iv. The original of the Will dated 18th November, 1999 of late Mrs. Sheila Kapila has not been produced by the defendants no.4 and 5 before the Court, though they have placed reliance on the same. v. Even if the said Will is admitted, a reading of the Will shows that each of the children of late Mrs. Sheila Kapila were bequeathed 25% share in the suit property. vi. In the probate proceedings for the estate of late Mr. Rajendra Kapila in USA, a schedule of assets of late Dr. Rajendra Kapila has been filed on behalf of the defendants no.4 and 5, wherein it is admitted that late Dr. Rajendra Kapila’s share in the suit property was to the extent of 25%. vii. The defendant no.3 in her written statement admits that the plaintiffs, defendant no.1 and defendant no.2 are each entitled to 25% undivided share in the suit property. viii. The defendants no.4 and 5 have not disputed the fact that the suit property cannot be divided by metes and bounds. ix. The defendants no.4 and 5 do not reside in India and therefore, there can be no objection to the sale of the aforesaid property. x. In view of the fact that the suit property cannot be divided by metes and bounds, the suit property should be directed to be sold. Reliance in this regard is placed on Section 2 of the Partition Act, 1893 (Partition Act).
7. The counsel for the plaintiffs invokes the provisions of Order XV Rule 1 and Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC) to seek a decree in view of the fact that no triable issues arise in the present suit.
SUBMISSIONS OF THE DEFENDANTS
8. Counsels appearing on behalf of the defendants no.1, 2 and 3 support the submissions made on behalf of the plaintiffs.
9. In addition, counsel appearing for the defendants no.1 and 2 submits that in the email dated 2nd November, 2021, the mother of the defendants no.4 and 5 has admitted that the original Will of late Mrs. Sheila Kapila is in their possession, however, in the affidavit of Ms. Bina Kapila filed along with the written statement, it has been stated that “the original will may therefore have been handed over by Mrs. Sheila Kapila to Mrs. Sudha Panda.”
10. On behalf of the defendants no.4 and 5, the following submissions have been made. i. There has been no admission on behalf of the defendants no.4 and 5. Therefore, no decree can be passed at this stage and the suit requires a trial. ii. In terms of the Will of late Mrs. Sheila Kapila, the defendants no.1 and 2 are not entitled to any share in the suit property since they have only been given beneficial life interest and not an absolute interest in the said property.
ANALYSIS AND FINDINGS
11. The reference to the alleged Will of late Mrs. Sheila Kapila was made by the mother of the defendants no.4 and 5 for the first time in her email dated 29th July, 2021 written to the plaintiffs, wherein she had claimed that “she has a valid Will duly signed by late Mrs. Sheila Kapila”. The subsequent e-mail dated 2nd November 2021 sent by the defendants no.4 and 5 along with their mother to the plaintiffs also suggests that the original Will of late Mrs. Sheila Kapila is with the mother of the defendants no.4 and 5.
12. However, in the affidavit of Mrs. Bina Kapila, placed on record by the defendants, it has been vaguely stated that “the original will may therefore have been handed over by Mrs. Sheila Kapila to Mrs. Sudha Panda.”
13. The contradictory stance taken by the defendants no.4 and 5 in respect of the possession of the Will, as noted above, creates a serious doubt regard to the existence of the alleged Will. The fact of the matter is that the original Will has not been produced before the Court. The plaintiffs and the defendants no.1 and 2 completely deny the knowledge or existence of the aforesaid Will.
14. Even though I have expressed my reservations with regard to the existence of the Will, I have proceeded to consider the alleged Will. Reference may be made to some of the provisions of the said Will, which are reproduced as under: “I, hereby declare that I shall remain the owner of my house and my other properties that I may acquire during my life time. To avoid any confusion after my demise, I hereby devise my property in the following manner:
(i) The house shall belong to all the four children with each having 25% share in the property.
(ii) The beneficiaries will not have any power to dispose of their share of the property in any manner whatsoever. They will have the right to enjoy their share of the property but will not have the right to make any will with respect to their share.
(iii) If any of the four beneficiaries die then his/her share of property shall devolve upon his/her children who will have the full ownership of the property with the power of disposal. However, if the children of the deceased beneficiary intend to dispose off their share of the property then they shall first share of the property then they shall first offer it to the other beneficiaries or their children in case they are dead.”
15. Counsel for the defendants place reliance on Clauses (ii) & (iii) of the alleged Will set out above to submit that the four children of late Mrs. Sheila Kapila had only a limited interest in the suit property and upon the death of any of the children of late Mrs. Sheila Kapila, his/her share in the property would devolve upon his/her children, who alone would have the full ownership of the suit property.
16. I am unable to agree with this submission. In my reading of the alleged Will, in terms of Clause (i), late Mrs. Sheila Kapila had bequeathed the suit property equally to all her four children. Clause (iii) of the said Will would not take away the absolute vesting of the property by late Mrs. Sheila Kapila in favour of her children in terms of Clause (i). In this regard, counsel for the plaintiffs has placed reliance on the judgment of the Supreme Court in Madhuri Ghosh and Another v. Debobroto Dutta and Another,
17. In the aforesaid case before the Supreme Court, there were similar clauses in the alleged Will, wherein the testator had vested the property in favour of his wife and elder daughter jointly and it was further provided that upon the death of his wife and the daughter, the property would devolve upon his grandson. The issue before the Supreme Court was whether or not in light of the aforesaid clauses in the Will, a limited interest was created in favour of the testators’ wife and the elder daughter. In respect thereof, the Supreme Court observed as under: “10. It will be noticed on a reading of Para 2 of the said will that the testator has chosen his language very carefully. He makes it clear that after his death, House No. 77 shall “vest” on my wife Smt Madhuri Ghosh and my elder daughter Sunanda Ghosh jointly. With this declaration he goes on to further state that after the death of his wife, the said daughter shall become the “exclusive” owner of the said House No. 77 and that if his daughter was to predecease his wife, then his wife shall become the “exclusive” owner. A reading of this paragraph, therefore, leaves no manner of doubt that what is granted jointly in favour of the widow and the elder daughter is an absolute right to the property, namely, House No.77. There are no words of limitation used in this paragraph and we, therefore, find it very difficult to agree with the High Court in its conclusion that what is bequeathed by Para 2 is only a limited interest in favour of the widow and the elder daughter.
11. However, it remains to consider the argument on behalf of the respondent that the will should be read as a whole and that the testator's intention should be given effect so that the grandchildren are “not on the road” as is argued by the counsel for the respondents. In law, the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect. This is clearly laid down in Ramkishorelal v. Kamal Narayan [Ramkishorelal v. Kamal Narayan, 1963 Supp (2) SCR 417: AIR 1963 SC 890] as follows: (AIR pp. 893-94, para 12)
18. The aforesaid observations of the Supreme Court would be squarely applicable towards the interpretation of the alleged Will of late Mrs. Sheila Kapila. Clause (i) of the alleged Will clearly states that the suit property “shall belong” to all her four children equally. This is an absolute grant in favour of her four children without any limitations. Therefore, once an absolute bequest has been made under Clause (i), the subsequent Clauses (ii) and (iii) of the alleged Will, even if seeking to take away the absolute title given in Clause (i), will not be of any effect.
19. In the present case, the defendant no.1 is unmarried and does not have any children. This fact would have been known to late Mrs. Sheila Kapila when the alleged Will was executed on 18th November, 1999 as on the said date, the defendant no.1 was already 61 years of age. Therefore, in terms of Clause (iii) of the alleged Will, there could not have been any devolution upon the children of the defendant no.1. Such a bequest would be void in terms of Section 113 of the Indian Succession Act, 1925. Section 113 of the Indian Succession Act is reproduced below: “113. Bequest to person not in existence at testator’s death subject to prior bequest.—Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. ”
20. Since no child of the defendant no.1 was in existence at the time of the testator’s death, any such bequest made in the Will in favour of such a person who was not in existence would be void and the grant made in favour of the defendant no.1 would be absolute.
21. Even the understanding of the defendants no. 4 and 5 was that in terms of the alleged Will, the suit property was to devolve equally upon all the four children of late Mrs. Sheila Kapila. The relevant extracts from the email dated 29th July, 2021 written by the mother of the defendants no. 4 and 5 to the plaintiff no.1 are set out below: “I have a Valid will duly signed by Shiela Kapila and duly witnessed by your Uncle (sneha’s husband). The will is very clear that the property be divided into 4 equal parts and the benificiaries are the children and the grand children.”
22. The same understanding is also reflected in the email dated 2nd November, 2021 sent by the defendants no.4 and 5 along with their mother Bina Kapila, to plaintiffs no.1 to 3, defendant no.1 and defendant no.2. The relevant extracts are set out below: “Since I have not heard from any of you regarding the disposal of the property and equal distribution of the proceeds. I am making this last attempt for you to cooperate. My attorney is suggesting what needs to be done if we do not hear from you that involves division by construction into 4 halves. I would not want to destroy the property as we have all enjoyed it over the years.”
23. Even in the joint statement of assets of late Dr. Rajendra Kapila and the mother of the defendants no.4 and 5 filed in the probate proceedings before the competent Court in USA, the share of late Dr. Rajendra Kapila in respect of the suit property is shown as 25%.
24. At this stage, reference may also be made to the written statements filed on behalf of the defendants no.4 and 5, wherein the defendants no.4 and 5 have only claimed 25% share in the suit property. Paragraph 26 of the written statement of the defendant no.4 is set out below: “26. The contents of paragraph 13 of the Plaint are incorrect and therefore denied. It Is denied that the claim of Defendant No. 4 and 5 is barred by delay and laches. It is clear from the Will that the Defendant No. 4 and 5 had no right in the Suit Property till the time Late Dr. Rajendra Kapila was alive. Defendant No. 4 and 5 became entitled to 25% share in the Suit Property only upon the demise of Late Dr. Rajendra Kapila.”
25. The same averment has also been made in paragraph 26 of the written statement filed on behalf of the defendant no.5. The 25% share of the plaintiffs in the suit property has been admitted in the written statement filed on behalf of the defendants no.4 and 5.
26. The defendant no.3, being the second wife of late Shri Rajendra Kapila, has also admitted to the fact of the plaintiffs and the defendants no.1 and 2 having 25% share each in the suit property.
27. Even though the defendants no.4 and 5 have claimed in their written statements that the defendants no.1 and 2 only have a beneficial interest in the suit property till the time they are alive, the defendants no.4 and 5 have not claimed that the 25% share in the suit property in respect of the defendants no.1 and 2 belongs to them, or to anyone else.
28. The interpretation placed by the defendants no.4 and 5 in respect of the alleged Will therefore raises an ambiguity as to who would be entitled to the 25% share of each of the defendants. It could not have been the intention of late Mrs. Sheila Kapila that there would be no beneficiary in respect of the portions of the property if any of her children did not have a child. It does not emerge from a reading of Clause (iii) of the alleged Will that if one of the children of late Mrs. Sheila Kapila does not have a child, the share would go to a grandchild from another child.
29. In view of the aforesaid discussion, there is no doubt in my mind, whether on the principles of intestate succession or in terms of the Will dated 18th November, 1999 propounded by the defendants no.4 and 5 that the plaintiffs no.1 to 3 together, defendant no.1, defendant no.2, and the legal heirs of late Dr. Rajendra Kapila, have an absolute 25% undivided share each in the suit property.
30. It is submitted by the counsel for the defendants no.4 and 5 that there is a dispute with regard to the shares of the defendants no.1 and 2 and therefore, issues should be framed and the suit should proceed for trial. It has vehemently been contended on behalf of the counsel for the defendants no.3 and 4 that the present suit cannot straightaway be decreed as there are no admissions made on behalf of the defendant no.4.
31. I do not agree. In my view, the only defence raised on behalf of the defendants no.4 and 5 is with regard to interpretation of the clauses of the alleged Will propounded by them. This does not require any evidence to be led. In this regard, counsel for the plaintiffs has correctly placed reliance on Jasbir Kumar v. Kanchan Kaur and Ors., (2017) DLT 305 [against which the special leave petition preferred by the appellant/plaintiff was dismissed vide order dated 11th December, 2017], wherein it has been observed that the interpretation of a will does not require any evidence and it is for the Court to evaluate the will on the basis of the settled principles of construction.
32. This Court has the power under Order XII Rule 6 of the CPC as well as Order XV Rule 1 of the CPC, to pass a decree without going through a trial. In this regard, counsel for the plaintiffs has aptly placed reliance in the judgment of a Co-ordinate Bench of this Court in Santosh Kumar v. Col. Satsangi’s Kiran Memorial Aipeccs Educational Complex and Anr., 2018 SCC Online Del 12089 [against which Special Leave Petition (Civil) No.1831/2019 preferred by the appellant/defendant was dismissed vide order dated 28th January, 2019]. Relevant observations of the Court are set out below: “12. The court cannot frame an issue and put a suit to trial when the parties, on perusal of the pleadings, are not found to be on issue at any question of law or fact. Attention of the counsel for the appellant/defendant in this regard is drawn to Order XV of the CPC which has been referred to in several of the judgments under Order XII Rule 6 of the CPC. In Ashoka Estate Pvt. Ltd. v. Dewan Chand Builders Pvt. Ltd., 159 (2009) DLT 233, reiterated in Vireet Investments Pvt. Ltd. v. Vikramjit Singh Puri, 2017 SCC OnLine Del 11183 and again reiterated in Bhupinder Jit Singh v. Sonu Kumar, 2017 SCC OnLine Del 11061, it was held (i) that the plaintiff, if otherwise found entitled to a decree on admission, cannot be deprived thereof by astute drafting of the written statement and/or by taking pleas therein which have no legs to stand upon; (ii) the Court is to read the pleadings of the parties meaningfully; (iii) issues are to be framed on ‘material’ and not all propositions of law and fact which may be contained in the pleadings and which are not material i.e. on the outcome whereof the outcome of the suit does not depend; (iv) a plea, which on the face of it is found by the Court to be untenable, does not require the framing of any issue. In Adarsh Kumar Puniyani v. Lajwanti Piplani, 2015 SCC OnLine Del 14022 it was held that material propositions of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved; if a plea is not valid and untenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time; (v) the Court is not obliged to, on finding pleas to have been raised in the written statement, mechanically frame issues thereon. If issues were to be framed in such manner, the same would be in disregard of the word ‘material’ in Order XV Rule 1 of the CPC; (vi) the enquiry thus to be made at the time of framing of issues is, whether the pleas raised in the written statement, purportedly in defence to the claim in the plaint, have any material bearing to the outcome of the suit and if it is found that irrespective of the findings thereon, the plaintiff would be entitled to the relief, the parties are not to be put to trial in the suit. Similarly, in Zulfiquar Ali Khan v. Straw Products Ltd., 87 (2000) DLT 76, it was observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. Reference in this regard may also be made to Kawal Sachdeva v. Madhu Bala Rani, 2013 SCC OnLine Del 1479, P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd., (2013) 205 DLT 302, Vansons Footwear (P) Ltd. v. USP Fashion Weaves (P) Ltd., 2018 SCC OnLine Del 6998 and A.N. Kaul v. Neerja Kaul, 2018 SCC OnLine Del 9597. xxx xxx xxx
15. As far as the argument of the counsel for the appellant/defendant of there being no admission in the written statement of the appellant/defendant is concerned, in Vijaya Myne v. Satya Bhushan Kaura, 2007 SCC OnLine Del 828 (DB), Rajesh & Co. v. Ravissant Pvt. Ltd., 2012 SCC OnLine Del 2197 (DB), ING Vysya Bank Ltd. v. Vikram Hingorani, 2014 SCC OnLine Del 478 (DB) (SLP(C) Nos. 8694-8696/2014 preferred whereagainst was dismissed on 25th April, 2018) and A.N. Kaul supra, it has been held that rarely is there any admission in express terms but the Court has to read the written statement meaningfully and then see whether it raises any defence; the court is not required to mindlessly and mechanically frame issues in all the suits and relegate the parties to trial when a meaningful reading of the written statement does not disclose any defence and the suit is bound to be decreed.”
33. Reference may also be made to the observations of a Division Bench of this Court in Savita Anand v. Krishna Sain and Ors., 276 (2021) DLT 468. “21. The purpose of a trial is no doubt to allow the parties to prove their pleas by leading evidence. However, the Court has the power to dispense with oral evidence where the facts are admitted, the case rests on documents which are admitted or where the case is to be decided on interpretation of such admitted documents. In the present case, the determination of the rival claims is possible on the basis of the admitted documents that have been placed on the record. The material documents relate to the allotment of the suit property. That these stand in the name of D[1], is not disputed. What is claimed is that D[1] had held the suit property in trust and in the interest of her family and in the capacity as Karta of the HUF. The claim of the appellant is that on the demise of her father, D[1] and her children had inherited his assets in equal shares and as D[1] had no resources of her own, joint funds had been used to purchase the property. Therefore, the matter required a trial. We do not share this view. It may be noticed that the pleadings do not disclose what assets had been left behind by late Yashapal Sain. Therefore, there is no detail as to what share had come into the hands of the appellant or to the other legal heirs. So what evidence can be brought on record in the absence of the relevant averments? But again, even if such evidence was to be brought on record in the face of the Benami Act, it would be an exercise in futility. The learned Single Judge rightly framed the preliminary issue and decided that the matter required no trial.”
34. Order XII Rule 6 of the CPC vests this Court with the power to pass an order/judgement as it may think fit, on its own motion, where admissions of fact have been made by a party, either in the pleadings or otherwise. Relying upon the express language of Order XII Rule 6 of the CPC, a Division Bench of this Court in Keshav Chander Thakur v. Krishan Chander, (2014) 211 DLT 149 (DB) has held that there is no requirement in Order XII Rule 6 of the CPC for filing of a formal application. The Court can on its own motion without any application by a party proceed to pass a decree on admissions as stated in Order XII Rule 6 of the CPC. An analysis of the aforesaid judgments would show that a trial in the suit is not necessary when the parties are not at issue with regard to any disputed questions of fact. The Court has to read the pleadings of the parties carefully to determine whether or not admissions have been made therein. A pleading which is vague and unsubstantiated and does not raise a genuine defence does not require for the Court to frame an issue. The Court has to read the written statements in a meaningful manner to determine whether or not any defence has been raised on behalf of the defendants. The Court can apply principles of Order XII Rule 6 of the CPC as well as Order XV Rule 1 of the CPC to pass a decree in a suit without trial.
35. From the above, the factual position that emerges is as follows: i. The defendants no.4 and 5 have failed to produce the original of the alleged Will dated 18th November, 1999. ii. The defendants no.4 and 5 admit that their share in the suit property is only to the extent of 25%. iii. The defendants no.4 and 5 do not dispute that 25% share in the suit property belongs to the plaintiffs. iv. While denying the share of the defendants no.1 and 2, the only defence raised by the defendants no.4 and 5 is based on the interpretation of the alleged Will dated 18th November, 1999. The defendants no.4 and 5 do not claim the share of the defendants no.1 and 2 in respect of the suit property. v. The defendants no.4 and 5 do not state as to who would be the beneficiary of the said share, if not the defendants no.1 and 2. vi. The defendants no.4 and 5 have not denied the various e-mails filed by the plaintiffs along with the plaint, wherein the defendants no.4 and 5 themselves have admitted that all the children of late Mrs. Sheila Kapila, including the defendants no.1 and 2, would be entitled to 25% share in the suit property. vii. The defendants no.4 and 5 have also not disputed the joint schedule of assets filed before the Supreme Court of New Jersey, Chancery Division, Essex County, wherein the defendants no.4 and 5 themselves have submitted that their father, late Dr. Rajendra Kapila was entitled to 25% share in the suit property.
36. A reading of the Will leaves no doubt in my mind that the late Mrs. Sheila Kapila had bequeathed 25% undivided share in the suit property in respect of all of her four children. The entire defence of the contesting defendants rests on the interpretation of the Will, for which no oral evidence is required.
37. Accordingly, the plaintiffs no. 1, 2 and 3 together, defendant no. 1, defendant no. 2, and the legal heirs of late Dr. Rajendra Kapila, would be entitled to 25% undivided share each in the suit property.
38. In view of the above, a preliminary decree is passed in the above terms, declaring that the parties shall each have undivided shares in the suit property in the manner indicated below:
Particulars of the Property Share of the plaintiffs no.1 to 3 Share of the defendant no.1 Share of the defendant no.2 Share of the legal heirs of late Dr. Rajendra Kapila i. D-897 New Friends Colony New Delhi 25% 25% 25% 25%
39. The decree sheet be drawn up.
40. Counsels for the parties agree that the suit property cannot be divided by metes and bounds. In fact, in paragraph 14 of the plaint, the plaintiffs have specifically averred that it is not possible to divide the suit property by metes and bounds. There has been no denial by the defendants no.4 and 5 of the aforesaid averments in their written statements. Further, in reply to I.A. No.17202/2021, it has been stated by the defendants no.4 and 5 that they have only visited the suit property from time to time but have never lived there. They are permanent residents of the United States of America.
41. In view of the above and in terms of Section 2 of the Partition Act, the only option available would be to sell the property as a whole and divide the proceeds between the parties thereto.
42. Vide order dated 14th March, 2022, this Court had asked the counsel for the defendants no.4 and 5 to take instructions with regard to purchasing the respective shares of all the other parties in the suit property at the circle rate. On the next date of hearing on 22nd March, 2022, counsel for the defendants no.4 and 5 had informed the Court that the defendants no.4 and 5 are not inclined to purchase the shares of the remaining parties in the suit property.
43. In light of the above, I am of the view that the aforesaid property should be put to sale and the proceeds thereof be distributed equally amongst the parties in terms of their shares as determined above.
44. Since there is a dispute in respect of the 25% share of the legal heirs of late Dr. Rajendra Kapila, it is directed that the proceeds of sale received in respect of his share be deposited in the Court and the same shall be subject to the outcome of any legal proceedings between the defendant no.3 and the defendants no. 4 and 5.
45. In view of the above, Ms. Gurmeet Bindra, Advocate (Mobile No.9810155549) is appointed as a Local Commissioner to carry out conversion from leasehold to freehold and to conduct the sale of the suit property. Following directions are passed in this regard:
I. At first, the Local Commissioner shall take steps to get the property converted from leasehold to freehold.
II. The statutory fees/charges for conversion of the suit property from leasehold to freehold shall be borne by the plaintiffs and the defendants no.1 and 2 in proportion to their share in the suit property.
III. It is agreed that the defendants no.1, 2 and 3 will execute a power of attorney in favour of the plaintiff no.1 to sign all the requisite documents, forms, applications, and the like for the conversion of the suit property from leasehold to freehold.
IV. The Local Commissioner shall be authorized to sign all the requisite documents, forms, applications, and the like on behalf of the defendants no.4 and 5 for the conversion of the suit property from leasehold to freehold.
V. The Delhi Development Authority (DDA) shall accept all the aforesaid requisite documents executed by the Local Commissioner on behalf of the parties for conversion of the suit property from leasehold to freehold.
VI. After conversion of the suit property from leasehold to freehold, the Local Commissioner will conduct a private sale of the suit property in which the parties hereto shall be given opportunity to participate.
VII. The Local Commissioner is requested to carry out the private sale within three months.
VIII. In the event that the private sale is not successful, the Local
IX. The fees of the Local Commissioner is fixed at Rs.5,00,000/plus out of pocket expenses, which shall be borne by the plaintiffs and the defendants no.1 and 2 in proportion of their share in the suit property in the first instance.
X. The fees paid to the Local Commissioner as well as any other statutory fees/charges paid towards conversion of the suit property from leasehold to freehold shall be recovered by the plaintiffs and the defendants no.1 and 2 from the sale proceeds of the suit property as a first charge.
XI. The parties to the suit shall render all assistance to the Local
46. List on 21st September, 2022 before the Joint Registrar. AMIT BANSAL, J. MAY 10, 2022 Sakshi R./at