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High Court Of Delhi
RAJIV OBEROI - Appellant
Versus
SANTOSH KUMAR OBEROI - Respondent
CS(OS) : 2721 of 1987
Decided On : 02/04/2005
Partition - Property Dispute - Ancestral Property - Delhi Development Authority - Court Fee - Mutation - Construction Contribution - Probate - Partition Decree - Local Commissioner - Rent Realization - Property Valuation
Fact of the Case:
The suit involves a dispute over the partition, accounts, and declaration of a property in East of Kailash. The plaintiffs claim a 9/24th share in the property, alleging it to be ancestral. The defendants assert that the property was self-acquired by the deceased and present a will dated 27.12.1983. The Delhi Development Authority (DDA) is involved due to mutation and valuation issues. The defendants argue that the plaintiffs are not in possession of the property, while the plaintiffs claim constructive possession through a tenant paying rent.
Finding of the Court:
The court found that the property was ancestral in the hands of the deceased and that the will dated 27.12.1983 was not proved. The DDA's mutation of the property was deemed illegal, and the court held that the suit was properly valued for court fee and jurisdiction. It was also established that the defendants failed to prove any contribution towards the construction of the property. The court directed the DDA to cancel the mutation and issued a preliminary decree for partition, appointing a Local Commissioner to assess the property's partition feasibility and oversee rent accounts.
Issues: The issues involved the ancestral nature of the property, validity of the will, DDA's involvement, property valuation for court fee, construction contribution, mutation legality, and partition decree.
Ratio Decidendi: The court relied on evidence to establish the ancestral nature of the property, discredited the will based on medical records and witness testimonies, and deemed the DDA's mutation illegal. It also emphasized the constructive possession of the property by the plaintiffs and the lack of evidence for construction contribution by the defendants.
Final Decision: The court issued a preliminary decree for partition, declared the plaintiffs' share in the property, and appointed a Local Commissioner to assess partition feasibility and oversee rent accounts. The DDA was directed to cancel the mutation, and the case was renotified for further proceedings.
( 1 ) THIS is a suit for partition, rendition of accounts and declaration. Plaintiff s claim 9/24th share in property bearing No. E-231, East of Kailash. Partition of said property is prayed for. Declaration sought is for nullification of mutation obtained by defendants 1 to 5 in their favour in records of DBA. Rendition of accounts is sought against defendants 1 to 5.
( 2 ) RECORDED owner of the suit property was late Shri Amolak Ram. Wife of late Shri Amolak Ram had pre-deceased him, having died in the year 1947 (a fact stated by counsel for the parties at the. bar ). Shri Amolak Ram was blessed with two sons named Shri Raj Kumar Oberoi and Shri Santosh kumar Oberoi (Defendant No. l ). He had six daughters. Defendants 6 to 11 are the daughters of late Shri Amolak Ram. Defendant No. l, Shri Santosh oberoi is the son of late Shri Amolak Ram. Defendant No. 2 is the wife of defendant No. l. Defendants 3 to 5 are the children of defendantsl and 2. Plaintiff No. l is the son of late Shri Raj Kumar Oberoi, the other son of late shri Amolak Ram. Plaintiff No. 2 and 3 are the wife and daughter, respectively, of later Shri Raj Kumar Oberoi.
( 3 ) CASE of the plaintiffs is that late Shri Gopi Chand, father of late Shri amolak Ram, had inherited ancestral properties in Pakistan which he left behind on account of partition. Gopi Chand lodged a claim with the rehabilitation Department of Union of India for compensation in respect of the ancestral properties left behind in Pakistan. After verification, rehabilitation Department held that Shri Gopi Chand was entitled to be compensated as a displaced person for properties left by him in Pakistan. Before claim could distributed, Shri Gopi Chand died on 1. 7. 1954 leaving behind 9 legal heirs, one of whom was Shri Amolak Ram. Compensation assessed in favour of Shri Gopi Chand was accordingly apportioned amongst the 9 legal heirs. 1/9th being apportioned in favour of Shri Amolak Ram. In stead of receiving cash, Shri Amolak Ram got the compensation adjusted by purchase of agricultural land in Village Kherera and allotment of property bearing No. B/253-255, West Patel Nagar in association With one Shri Mulkh raj. Shri Amolak Ram sold his share in the property at West Patel Nagar. Land at village Kherera was acquired and as per policy of Government of india, alternative residential plot, being E-231 East of Kailash New Delhi was allotted to him. Part premium was paid by him from out of the compensation received by him in respect of the acquired lands in Village kherera, balance premium was paid by him i. e. Shri Amolak Ram. Late Shri amolak Ram constructed a house on the plot. Accordingly plaintiffs claim that property No. E-231, East of Kailash is ancestral property.
( 4 ) SHRI Raj Oberoi, one of the two sons of late Shri Amolak Ram died on 9. 12. 1983. Shri Amolak Ram died on 8. 8. 1984. Being the wife, son and daughter of late Shri Raj Oberoi, plaintiffs claim that since property was ancestral, 1/3rd share each would belong to Shri Raj Oberoi, Shri Amolak ram and Shri Santosh Kumar Oberoi. On death of Late Shri Amolak Ram, his 1/3rd share would fall to the share of the plaintiffs, defendant No. 1 and defendants 6 to 11. In this manner, plaintiffs claim 9/24th share in the property.
( 5 ) DEFENCE of the defendants 1 to 5 as also defendants 6 and 7 is that the suit property was the self-acquired property of late Shri Amolak Ram. He bequeathed the same in favour of defendant No. 1 by and under a will dated 27. 12. 1983. Defence of defendants 9 and 10 is that later Shri Amolak ram died intestate. Said defendants have admitted that the plot in question was allotted to Shri Amolak Ram as per policy when his agricultural lands were acquired, which agricultural land were allotted by way of compensation for immovable properties left in Pakistan. However, said defendants have specifically stated that they neither admit nor deny that property bearing no. E-231, East of Kailash was an
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