Vipin Sanghi, J.

1. The Plaintiff has filed the present suit for partition and permanent injunction in respect of property bearing No. 16A, Westend, New Delhi. The substantive reliefs prayed for in the suit reads as follows:

pass a preliminary decree of partition declaring that the Plaintiff and Defendants each have 1/3rd share in property No. A-16, Westend, New Delhi - 110021; and thereafter appoint a Local Commissioner to partition the suit property by metes and bounds and pass a final decree after considering the report of the Local Commissioner ; and pass a decree of permanent injunction in favor of the Plaintiff and against the Defendants restraining them from creating any third party rights/interest in any manner whatsoever in the property No. A-16, Westend, New Delhi - 110021;

pass a decree of permanent injunction in favor of the Plaintiff and against the Defendants restraining them from making any additional construction and/or alterations in the property No. A-16, Westend, New Delhi - 110021; and

2. Defendant No. 2, now deceased, was the mother of the Plaintiff, while Defendant No. 1 is the sister of deceased Defendant No. 2. Defendant No. 2 passed away on 28.12.2005 and the Plaintiff being the only legal representative of Defendant No. 2, exclusively succeeded to her estate.

3. The admitted facts are that Late Gen. B.M. Kaul acquired perpetual leasehold rights in respect of Plot No. 16A, West End, ad measuring 1205 sq. yds. New Delhi, vide a registered sub-Lease Deed. Late Gen. B.M. Kaul built a single storied house on the said plot. He passed away on 18.04.1972 leaving behind his widow Smt. D.K. Kaul and two daughters, i.e. the two Defendants herein as his only class I heirs. The mother of Late Gen. B.M. Kaul had predeceased him. The Delhi Development Authority (DDA) mutated the leasehold rights in respect of the leased plot in the name of Smt. D.K. Kaul and the two Defendants on 20th November 1978. The Diplomatic Enclave Extension Cooperative House Building Society Ltd., in the year 1979, also mutated the said property in the name of Smt. D.K. Kaul, Smt. Anuradha Sapru defendant No. 2, and Smt. Chitralekha Bukshi Defendant No. 1. Consequently, late Smt. D.K. Kaul, defendant No. 2 and defendant No. 1 became entitled to 1/3rd share each in the suit property.

4. The Plaintiff states that in the year 1985, Smt. D.K. Kaul and Defendant No. 2 i.e. his mother nominated the Plaintiff as the nominee with respect to their 1/3rd share each in the suit property. Smt. D.K. Kaul died intestate on 25.11.1993. The Plaintiff states that since Smt. D.K. Kaul died intestate, the Plaintiff became owner of her 1/3rd share in the suit property being her only nominee in terms of Section 27 of the Delhi Cooperative Societies Act, 1972 and bye laws framed by the society. When he requested the society for recording his name in place of Smt.

D.K. Kaul in the records of the society, the same was refused by the society on the ground that nomination by a member does not give a right of inheritance to the nominee and the same is governed by the normal law of the inheritance. This stand of the society, according to the Plaintiff, was contrary to law. The Plaintiff, by asserting his right to succeed to the 1/3rd share left by Smt. D.K. Kaul, filed the present suit for the reliefs as aforesaid.

5. Defendant No. 1 filed her written statement. She admitted the facts as recorded aforesaid in paragraphs 2 and 3. She further states that after about 16 years of her fathers death, there were simmering of dispute. An oral family settlement was arrived at, which was recorded in a memorandum on 12th February 1988 duly signed by late Smt. D.K. Kaul and the two daughters, namely Defendant No. 1 and 2. She further states that as per the family settlement, she took exclusive possession of the terrace and above the ground floor, while the mother late Smt. D.K. Kaul and Defendant No. 2 retained the ground floor and continued to live in it. She further sta