PURNIMA SHARMA & ORS. vs RENU SHRMA & ORS.

$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th April, 2024
+ CS(OS) 209/2022 and I.A. 5847/2022
PURNIMA SHARMA & ORS. ….. Plaintiffs
Through: Ms. Rudrakshi Gautam, Adv. (M:9654925640)

versus

RENU SHARMA & ORS. ….. Defendants
Through: Mr. Dinesh Kumar & Mr. Vishal Sharma, Advs. (M: 9899393364)

CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
I.A. 5847/2022 (for stay)
2. The application for interim injunction is listed for hearing.  The present suit has been filed seeking partition and other ancillary reliefs in respect of the suit property being A-46, Dayanand Colony, Lajpat Nagar IV, New Delhi-110024, which belonged to the grandmother of the Plaintiffs, late Smt. Jai Mala Devi, who expired on 29th December, 2021.
3. Ld. Counsel for the Defendant prays that the injunction grated vide order dated 13th April, 2022 deserves to be vacated as the basic premise of the plaint itself was that the owner Ms. Jai Mala Devi had died intestate.  However, the said owner who is the testatrix had left a Will dated 23rd July, 2021 by which she had bequeathed the property to the Defendants. 
4. In fact, it is submitted on behalf of the Defendants that during her lifetime itself the testatrix/owner had entered into a collaboration agreement on 1st July, 2021 with one Mr. Pawan Kumar Dhanda for developing the entire property and had received a sum of Rs. 20 lakhs from the developer.  Ld. Counsel further submits that all these facts have not been brought to the notice of the Court and thus the interim order deserves to be vacated in view of the fact that the entire development of the property has come to a standstill due to the interim order.  On behalf of the Defendants, reliance is placed upon the registered Will dated 29th July, 2019 and the subsequent Will dated 23rd July, 2021.  The copy of the agreement dated 1st July, 2021 executed between the testatrix and the property developer i.e., Mr. Pawan Kumar Dhanda is also on record.
5. On behalf of the Plaintiffs, however, it is submitted by ld. Counsel – Ms. Rudrakshi Gautam, that it is not in dispute that the Plaintiffs are also the legal heirs of Ms. Jai Mala Devi through the daughter Smt. Indira Sharma. Smt. Jai Mala Devi, as per the plaint had three daughters and two sons.  The Plaintiffs’ mother late Smt. Indira Sharma had pre-deceased her mother Smt. Jai Mala Devi. 
6. According to the Defendants, the father of the Plaintiffs had remarried after the death of their mother Smt. Indira Sharma and thus the Plaintiffs – though the grandchildren, were not bequeathed any part of the estate by their grand mother. 
7. Heard. During the lifetime of Smt. Jai Mala Devi, had executed two Wills one dated 29th July, 2019 as per which the bequest was as under:
“33% of the Entire Property goes to my elder son Vivek Sharma;
33% of the Entire Property goes to my younger son Ashwani Sharma;
34% (remaining share) jointly goes to my both daughters Renu Sharma and Hemlata Sharma.

They shall have the full right to use and enjoy the same as absolute owner, but if they want to sell their respective portion in the said property the first offer is to be made to the remaining legal heirs/ beneficiary of this Will and on their refusal to buy the same at market value, he/she can sell it to a third party with the written consent of minimum two legatees/ beneficiary of this Will.

AND WHEREAS my legal heirs (sons and living daughters) want to construct the said property in future the said property same devolved and bequeath as under:

* Basement is equally divided/shared between my four Children (Vivek Sharma, Ashwani Sharma, Renu Sharma and Hemlata Sharma);
* Ground Floor with 2 car parking in the stilt to my elder son Vivek Sharma:
* First Floor with 2 car parking in the stilt) jointly goes to my both daughters Hemlata Sharma and Mrs. Renu Sharma;
* Third Floor with 2 car parking in the stilt to my younger son Ashwani Sharma, and roof is equally divided between both sons

* That the remaining floor i.e. Second Floor with 2 car parking goes to that person who will incurred and construct the said entire property at his own cost.”

8. As per the above Will, the Plaintiffs whose mother had passed away prior to the grandmother/ testatrix were not given any portion of the property. 
9. Thereafter, on 1st July, 2021, a development agreement was entered into, as per which, the redevelopment of the property was agreed upon by Smt.Jaimala Devi.  In terms of the said redevelopment agreement, the various floors which were to be redeveloped were to be allocated as under:
“14. That as mentioned hereinabove, the building shall be consisting of Basement, Stilt, Ground Floor, First Floor, Second Floor, Third Floor and Fourth Floor with Terrace. The portions falling to the share of the parties in the newly constructed building shall be as under:

That in lieu of the land made available by the Owner to the Developer for development of the said property, the Owner shall be entitled to:

OWNER ALLOCATION
i)
ENTIRE BASEMENT:
ii)
ENTIRE GROUND FLOOR
iii)
ENTIRE STILT (except ¼ space parking area)
iv)
ENTIRE FIRST FLOOR;
v)
ENTIRE THIRD FLOOR;
vi)
ENTIRE TERRACE OVER AND ABOVE THE ENTIRE THIRD FLOOR;
vii)
USE OF COMMON AREAS, FACILITIES AND SERVICES
viii)
77.5% UNDIVIDED, INDIVISIBLE AND IMPARTIBLE OWNERSHIP RIGHS IN THE PLOT OF LAND MEASURING 200 square yards

That in lieu of the Developer developing the property, using its infra-structural facilities and at its own cost paying the aforesaid amount to be the Owner, the Developer shall be entitled to :

DEVELOPER’S ALLOCATION
i)
ENTIRE SECOND FLOOR
ii)
¼ Parking Space In Stilt
iii)
USE OF COMMON AREAS, FACILITIES AND SERVICES
iv)
22.5% UNDIVIDED, INDIVISIBLE AND IMPARTIBLE OWNERSHIP RIGHS IN THE PLOT OF LAND MEASURING 200 square yards

Builder shall pay an amount of Rs 20,00,000/- (Rs Twenty Lacs Only) via cheque 684261 dated 1st July 2021 to the owner. Developer will construct the building and the ownership/registration of the entitled second floor will be transferred to the Developer by the owner after getting completion certificate and finishing the building in all aspects. Registration of the Second Floor in the name of developer or its Nominee along with handover of the possession of the owner part will happen as per annexure given in the Registrar office on the same day. Any deviation shall be as per written consent and pre approval of the land owner.”

10. Subsequent to this redevelopment agreement, another Will dated 23rd July, 2021 was executed which is also a registered Will.  In terms  of this Will, the following portions were bequeath to the various legal heirs:
“33% of the Entire Property goes to my elder son Vivek Sharma;
33% of the Entire Property goes to my younger son Ashwani Sharma,
34% (remaining share) jointly goes to my both daughters Renu Sharma and Hemlata Sharma.

They then shall have the full right to use and enjoy the same as absolute owner, but if they want to sell their respective portion in the said property the first offer is to be made to the remaining legal heirs/ beneficiary of this Will and on their refusal to buy the same at market value, he/she can sell it to a third party with the written consent of minimum two legatees/ beneficiary of this Will.

AND WHEREAS my legal heirs (sons and living daughters) want to construct the said property in future the said property same devolved and bequeath as under:

* Basement is divided and shared among my three children namely Vivek Sharma (elder son, Ashwani Sharma (younger son) and Hemlata Sharma (younger daughter) 50% share of the basement goes to Vivek Sharma elder son) and 25% basement share goes to Ashwani Sharma (younger son) and 25% basement share goes to Hemlata Sharma (younger daughter).
* Ground Floor with 2 car parking in the stilt to my younger son Ashwani Sharma.
* First floor with 2 car parking in the stilt jointly goes to my both daughters Mrs. Hemlata Sharma and Mrs. Renu Sharma.
* Third floor with full roof rights and two car parking in the stilt goes to my elder son Vivek Sharma.
* That the remaining floor i.e., Second floor with 2 car parking goes to the person who will incurred and construct the said entire property at his own cost.”

11. Even in this subsequent Will, no bequest was made in favour of late Smt. Indira Sharma’s children i.e., the grandchildren of the testatrix who are the Plaintiffs before the Court. 
12. After the disclosure of these documents with the written statement, and the replication that has been filed by all the Plaintiffs wherein the only allegation is that the Will is forged and fabricated, it is clear that, there is no challenge raised either to the agreement dated 1st July, 2021 or to the Will (s).  Even the Developer has not been impleaded. 
13. The stand of the Defendants is that the entire redevelopment has been brought to a standstill. 
14. In the opinion of this Court the Wills are registered documents and there is no challenge to the same by the Plaintiffs. A registered instrument such as the Will ought to be given some sanctity.  The agreement for development also having been entered into by the original owner/ testatrix herself, the clear intention was that the testatrix did not wish to give any portion of the property to the Plaintiffs.  Moreover, the Defendants who are heirs of Smt Jai Mala Devi are staying outside their own property due to the log-jam that has been created as they have moved out to enable redevelopment and even the construction has not been done in terms of the development agreement.
15. Under such circumstances, this Court is of the opinion that the interim order already granted deserves to be modified to the effect that the Defendants are permitted to continue with the redevelopment of the suit property in question.
16. However, insofar as the various floors are concerned, the possession of the floor which is to be handed over to the developer shall not be given without permission of this Court. 
17. In addition it is directed that the construction of the property is permitted, however, no title shall be transferred in respect of any floor of the suit property. 
18. The interim injunction application is  disposed of in these terms.
CS(OS) 209/2022
19. List before the Joint Registrar for completion of pleading and admission/denial on 27th May, 2024.
20. List before Court on 30th August, 2024.

PRATHIBA M. SINGH
JUDGE
APRIL 24, 2024
dj/bh

CS(OS) 209/2022 Page 2 of 2