MRS TEJINDER KHOSLA & ANR. vs MRS SUKHWANT KAUR & ANR.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10.11.2023
+ CS(OS) 535/2022
IN THE MATTER OF:
MRS TEJINDER KHOSLA & ANR ….. Plaintiffs
Through: Mr. Abhimanyu Mahajan, Ms Anubha Goel and Mr Mayank Joshi, Advocates
versus
MRS SUKHWANT KAUR & ANR ….. Defendants
Through: Mr J.S. Bhasin, Mr Nishant Shokeen and Mr Rahul Singh, Advocates.
CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT (ORAL)
I.A. 9613/2023 (under Order XII Rule 6 CPC)
1. By way of present application, plaintiffs seek a preliminary decree of partition with respect to assets left by Late Smt. Rajinder Kaur (mother of the parties) in light of the admission made by the defendants in their written statements.
2. Facts in nutshell are that plaintiffs and defendants are daughters of Late Sh. Jaswant Singh and Late Smt. Rajinder Kaur. In the captioned suit filed for partition, permanent injunction and rendition of accounts, the plaintiffs have claimed that Late Smt. Rajinder Kaur was the absolute owner of suit property bearing No. B-7/90, Extension, Safdarjung Enclave, New Delhi-110029 (hereinafter, the suit property). She expired intestate on 01.04.2022 leaving behind four legal heirs i.e., parties to the present suit. In the aforesaid backdrop, plaintiffs have filed the present suit for partition, permanent injunction and rendition of accounts seeking 1/4th share each in the assets left by the deceased including suit property comprising of ground, second floor and terrace.
3. In the written statement, defendants claimed that during her life time, Late Smt. Rajinder Kaur had entered into a Collaboration Agreement dated 07.07.1989 with one M/s A.K. Properties/builder. The builder was to carry out the construction in lieu of which ownership right of the first floor was to come in its share. In the year 1997, on account of her ongoing divorce proceedings, defendant No.1 started residing in the suit property alongwith her mother and father. The father of the parties expired on 28.12.2019. Late Smt. Rajinder Kaur executed a Will dated 26.03.2021 thereby bequeathing the suit property in favour of defendant No.1.
4. Plaintiffs contend that as per defendants own case, as per Collaboration Agreement, Smt. Rajinder Kaur was the owner of ground, second floor and terrace but vide the abovementioned Will, she bequeathed only ground and second floor to defendant No.1. Exclusion of terrace from the Will is a clear indication that defendant No.1 has not been bequeathed with the terrace. It is contended that since the defendants claim is based on the Will, it can be said that the defendants have admitted the claim of the plaintiff of partition at least to the extent of the terrace. Similar contention is raised in relation to the movable assets in the form of bank accounts/locker/demat account, which have not been mentioned in the Will.
5. Consequently, a preliminary decree of partition, on admissions, with respect to terrace and movable assets is prayed for.
6. Defendants, on the other hand, contest the submissions. It is contended that a reading of the Will would show that Late Smt. Rajinder Kaur executed the said Will with the intent to secure defendant No.1 as she was not settled in life being divorced. The expression second floor included the terrace and thats why it has not been mentioned as a separate floor in the Will. It is contended that there is no good reason for excluding the terrace from the bequeathal in view of the larger intent of Late Smt. Rajinder Kaur to secure the defendant No.1 for which purpose the Will was executed.
7. On the aspect of movable assets of Late Smt. Rajinder Kaur, learned counsel for the defendants submits that the defendants have no objection to the decree of partition with respect to serial Nos.1 to 7 of the list mentioned in paragraph 14 of the written statement filed by the defendant No.1. In locker No. 1285 in State Bank of India, Parliament Street Branch, defendant No.1 has safekept one article of her own jewelry. The defendants are not aware about the other contents of the said locker.
8. The parties are at ad idem on the partition of movable assets left by Late Smt. Rajinder Kaur that form part of serial Nos.1 to 7, as mentioned in paragraph 14 of the written statement filed by defendant No.1. The only dispute pertains to partition of the terrace, which is admittedly unconstructed. Both the sides have placed reliance on Collaboration Agreement as well as the Will. The relevant extract of the same are reproduced hereinbelow:-
Collaboration Agreement
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2. It is hereby agreed between first and second party that the entire covered area to be constructed on the plot No.B-7/90 Safdarjung Enclave (Extn.), New Delhi, will be divided between the first party and the second party as marked Red and Green in the attached building plan. In this connection it is also agreed that the entire ground floor and barsati floor alongwith terrace rights will go to the first party and the entire first floor will go to the second party. The first party will get their share in lieu of the land provided and the second party will get his share in lieu of the amount spent on construction.
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Will
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And, whereas I have during my lifetime and without anybody’s help, acquired and owned the property which do not include any ancestral property and thus the entire property is self acquired and I am the sole owner of my property. I feel it necessary that I shall make some suitable arrangement regarding my property i.e. Ground Floor and Second Floor situated at B-7/90 Extension, Safdarjung Enclave, New Delhi -110029.
In all fairness, my three married daughters- Mrs. Tejinder Khosla, Mrs. Ramanjeet Kaur Dua and Mrs. Harsimrat Kaur Pruthi are well settled and well provided for in their life with a secured future. I am deeply concerned about my divorced daughter Mrs. Sukhwant Kaur who has been living with me since the past 23 years now and has been taking good care of me since many years and therefore, I wish to bequeath my aforesaid property to my daughter Mrs. Sukhwant Kaur to secure her future, in the manner mentioned below. In the event of my death, I hereby give, devise and bequeath my property to my divorced daughter Mrs. Sukhwant Kaur who will be entitled to the Ground Floor in totality as rightful beneficial owner with all rights on it.
I bequeath the Second Floor to my daughter Mrs. Sukhwant Kaur who may on the sale of the Second Floor situated at B-7/90 Extension, Safdarjung Enclave, New Delhi- 110029, give the sale consideration in equal share to my three daughters Namely Mrs. Tejinder Khosla, Mrs. Ramanjeet Kaur Dua and. Mrs. Harsimrat Kaur Pruthi after her (Mrs. Sukhwant Kaur) right to retain 12% share from the sale consideration. The Ground Floor will continue to devolve on my daughter Mrs. Sukhwant Kaur absolutely and with full rights and power as owner.
I hereby further declare that if the aforesaid beneficiaries predeceases me, in that eventuality, their legal heirs shall acquire/inherit the share of the deceased in the above said property. No one other than the above named persons in the Will can have any title, right, interest, connection, concern of any nature whatsoever in the aforesaid property under any circumstances.
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9. Rival claims have been set up by the parties regarding the terrace. Plaintiffs sees the Will as an admission that the terrace does not belong exclusively to defendant No.1, and hence could be partitioned straight away, without any further enquiry. Defendant No.1, on the other hand, contends that the intent behind the Will was that the Second Floor would include terrace, and hence plaintiffs claim to terrace is unfounded. Under the circumstances, it cant be said that there is an admission by defendant No.1 regarding plaintiffs right to the terrace, which could entail a decree on admission. The purport of and intent behind the Will has to be proved by the parties at the trial.
10. In view thereof, preliminary decree of partition, based on admission, is passed only in relation to items mentioned at serial Nos.1 to 7 of the list of movable assets as mentioned in paragraph 14 of the written statement filed by defendant No.1.
11. The application is disposed of.
I.A. 14438/2022 (under Order XI Rule 12 CPC)
1. Mr. Abhimanyu Mahajan, learned counsel for the plaintiffs seeks leave to withdraw the present application on the ground that the same has become infructuous.
2. In view of the above, the application is disposed of having become infructuous.
I.A. 14439/2022 (under Order XXXIX Rules 1 & 2 CPC)
1. Mr. J.S. Bhasin, learned counsel for the defendants states upon instructions that the defendants undertake to abide by the statement given on 06.09.2022 till disposal of the present suit.
2. In view of the above, the interim order is made absolute.
3. The application is disposed of in above terms.
CS(OS) 535/2022
1. At this stage, learned counsels for the parties state, upon instructions, that another attempt would be made to explore the possibility of an amicable settlement.
2. In view of the above, list the matter before Samadhan, Delhi High Court Mediation & Conciliation Centre on 28.11.2023 for exploring the possibility of an amicable settlement before the earlier Mediator, who shall continue with the mediation process.
3. List before the Court for reporting settlement and/or framing of issues on 31.01.2024.
MANOJ KUMAR OHRI
(JUDGE)
NOVEMBER 10, 2023/rd
rd
CS(OS) 535/2022 Page 6 of 6