MS. SUSHMA BHAMBARI vs SMT. TARUNA JUNEJA & ORS.

2024-02-21 Information

$~45

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 21st February, 2024
+ CS(OS) 180/2019, IA. 2586/2024
MS. SUSHMA BHAMBARI ….. Plaintiff
Through: Mr. Praveen Suri & Mr. Shubam Jhunjhunwala, Advocates.

versus

SMT. TARUNA JUNEJA & ORS. ….. Defendants
Through: Mr. Sharad Pandey, Ms. Priyanka Singh & Ms. Preeti Shah, Advocates for D-1.
Mr. Anshuj Dhingra & Ms. Muskan Banga, Advocates for D-2 & 3.
Ms. Shubhangda Singh, Advocate for D-4.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 15507/2021 (u/O XII Rule 6 r/w Section 151 of CPC, 1908 by plaintiff)

1. The application under Order XII Rule 6 read with Section 151 CPC, has been filed on behalf of the plaintiff seeking a Preliminary Decree and a Final Decree, in respect of the property bearing No. B-137, Ashok Vihar, Phase-1, Delhi-110052.
2. Briefly stated, the plaintiff had filed a suit for Partition, Declaration, Permanent Prohibitory Injunction, Rendition of Accounts, Damages and Mesne Profits against the defendants. The subject matter of the suit are three properties namely, (i) B-137, Ashok Vihar, Phase-1, Delhi-110052 (hereinafter referred to as the subject property), (ii) 16-D, Dayanand Nagar, Ghaziabad, Uttar Pradesh and (iii) M-212, Shastri Nagar, Delhi. The plaintiff had asserted that the subject properties were originally owned in the name of his father, Sh. Chaman Lal Malhotra, though subsequently, various bequests by way of Wills, had taken place.
3. The present application under Order 12 Rule 6 CPC pertains to the property in Ashok Vihar (hereinafter referred to as the “subject property”).
4. It is asserted in the application that this property was admittedly the exclusive property of Sh. Chaman Lal Malhotra, the father of plaintiff and grand-father of defendant Nos. 1, 3 and 4. Sh. Chaman Lal Malhotra died on 23.07.2006 and his wife Smt. Janak Dulari died on 02.03.2010. His one son, namely, Sh. Satish Kumr Malhotra, who died on 19.07.1991 ( is survived by his wife, her son and daughter), had separated from the family of Sh. Chaman Lal Malhotra and in lieu of their share, the property bearing No. M-216, Shastri Nagar, Delhi, was given to him and therefore, the family of Sh. Satish Kumar Malhotra, got partitioned. The family of Sh. Chaman Lal Malhotra, his wife, two daughters and son, continued to be joint.
5. It is further submitted that on the demise of Sh. Chaman Lal Malhotra, the Ashok Vihar property was mutated in the name of Late Smt. Janak Dulari, vide Mutation Letter dated 30.07.2007. Smt. Janak Dulari also died on 02.03.2010, leaving behind her last and final Will dated 19.11.2009, vide which the suit property has been bequeathed equally to the plaintiff and the mother of defendant No. 1(now represented by defendant no.1) and father of defendant Nos 2 to 4 (now represented by defendant no.2 to 4 ) in equal share, whereby each branch has become entitled to 1/3rd share in the suit property.
6. It is further stated that as per the Will, the branch of the mother of defendant No. 1 and the father of defendant Nos. 2 to 4 were given the front portion of the subject property and the plaintiff was given the back portion of the said property. These facts are admitted by the defendants and thus, a Preliminary declaring the shares of the plaintiff and the defendants, as 1/3rd share for each branch be passed. Also, the suit property be divided by metes and bounds in separate portions be given to the respective parties, in Ashok Vihar property and Final Decree be accordingly, made.
7. The defendant No. 1 Ms. Taruna Juneja, who is the daughter of Smt. Shobha Khurana (sister of the plaintiff), in her Written Statement had admitted the genuineness of the Will dated 19.11.2009 of Smt. Janak Dulari. However, she has taken the plea that the right way of proceeding for partition is to obtain the Probate of the Will.
8. She has further asserted in her Written Statement that much water has flown since 2017, as she has already sold a part of the property at Ashok Vihar to which the plaintiff is a privy and is willing to share the proportionate sale proceeds with the plaintiff.
9. The defendant Nos. 2 & 3 as well as the defendant No. 4, in their respective replies the application, have admitted the genuineness of the Will dated 19.11.2009 of Smt. Janak Dulari and have not disputed that in terms of the said Will, the Ashok Vihar property has to be divided equally in 1/3rd share between each branch i.e. the plaintiff, the defendant No. 1 and defendant Nos. 2 to 4.
10. Though, they have admitted the genuineness of the Will, it has been explained that an earlier Will dated 03.05.2007, had been executed by Smt. Janak Dulari, whereby she had bequeathed the Ashok Vihar property equally to the plaintiff and the mother of defendant No.1. The Dayanand Nagar Property was bequeathed to Baldev Kumar whose legal heirs are defendant Nos. 2 to 4.
11. It is further submitted that by virtue of the Will dated 19.11.2009, the earlier Will dated 03.05.2007 has been amended to the extent of the Ashok Vihar property by vesting it equally on all three branches. Thus, Will dated 19.11.2009 is a codicil to Will dated 03.05.2007. Therefore, unless a Will is proved, a Codicil cannot stand on its own.
12. Submissions heard.
13. It is admitted by all the parties that vide her last and final Will dated 19.11.2009 Smt. Janak Dulari, in whose name the property of Ashok Vihar, Delhi stood mutated, had distributed the subject property equally amongst the three branches of her children. A reference has been made to an earlier Will dated 03.05.2007 of Smt. Janak Dulari, wherein she had bequeathed determined the shares for the Ashok Vihar property as well as the Dayanand Nagar property. The Ashok Vihar property was bequeathed equally to the plaintiff and the mother of defendant No. 1. But admittedly, in the final Will dated 19.11.2009, the subject property was bequeathed equally to the plaintiff, late Smt. Shobha (mother of defendant No. 1) and late Shri Baldev Kumar (survived by defendant Nos. 2 to 4).
14. The plaintiff is seeking a preliminary decree of Partition of the subject property based on the admissions of the defendants with respect to Will dated 19.11.2009 as they have categorically admitted to the shares specified in the Will dated 19.11.2009.
15. Pertinently, the plaintiff/applicant is only seeking a relief with respect to the Ashok Vihar property which is a subject matter of the Will dated 19.11.2009. The pleadings of the defendant unequivocally admit to the execution of the Will dated 19.11.2009 and only go on to supplement the pleadings of the plaintiff by describing about an earlier Will dated 03.05.2007. Thus, admittedly, the subject property is to be divided equally in 1/3rd share each between the plaintiff, defendant No. 1 and defendant Nos. 2 to 4.
16. The defendant No. 1 in her Written Statement had also vaguely claimed that this property had been sold to the knowledge of the plaintiff, but without giving any particulars or producing any document of Sale or even mentioning the alleged Sale consideration. The plea taken on behalf of the defendant No. 1 is as vague as it can be and therefore, it is not tenable in law.
17. Considering that the Will of Smt. Janak Dualri, dated 19.11.2009, is admitted to be her last genuine Will, in respect of the Ashok Vihar property, it is held that the plaintiff, defendant No. 1 and defendant Nos. 2 to 4 together, are entitled to 1/3rd share for each branch in the said property. A Preliminary Decree is accordingly made in respect of the subject property.
18. Be listed for further consideration of division of Ashok Vihar property by metes and bounds on
I.A. 2586/2024 (under Section 151 of CPC for early disposal of I.A. 15507/2021)

19. The application is hereby disposed.

CS(OS) 180/2019
20. List on 15.03.2024 for completion of pleadings.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 21, 2024/RS

CS(OS) 180/2019 Page 1 of 6