V.K. Shali, J.

1. This is an appeal filed by the appellant under Section 96 of the CPC read with Order 41 Rules 1 and 2 and Section 10 of the Delhi High Court Act, 1966 against the preliminary decree dated 7th January, 2008 passed by the learned Single Judge in case titled as Abhay Sapru v. Chitralekha Bukshi and Anr. bearing No. CS (OS) 192/1999.

2. By virtue of the impugned judgment, the learned Single Judge has held that both the plaintiff and defendant No. 1 have equal shares i.e. - share in the property bearing No. 16A, Westend, New Delhi and further that they are bound by the family settlement Ex.D1/3 till the time the final decree for partition is not passed by metes and bounds by the Court.

.3. Briefly stated the facts leading to the filing of the present appeal are that property No. 16A, Westend, New Delhi measuring 1205 sq. yards was sub-leased to Late Lt. General B.M. Kaul by Diplomatic Enclave Extension Cooperative House Building Society Ltd. Lt. Gen. Kaul built a single storied house on the said piece of land and passed away on 18th April, 1972 leaving behind his widow Smt. D.K. Kaul and two daughters namely Smt. Chitralekha Bukshi respondent and Smt. Anuradha Sapru both being defendant Nos. 1 and 2 in the suit. It may be pertinent here to mention that after the death of Lt. Gen. Kaul, the leasehold rights of the aforesaid plot in question were mutated in the name of Smt. D.K. Kaul and her two daughters namely Smt. Chitralekha Bukshi, respondent (defendant No. 1 in the suit) and Smt. Anuradha Sapru (defendant No. 2 in the suit) (since deceased) on 20th November, 1978. The Diplomatic Enclave Extension Cooperative House Building Society also carried out necessary mutations in respect of the aforesaid plot in the name of the aforesaid three persons. Since Lt. Gen. Kaul had not made any Will accordingly and the aforesaid three legal heirs i.e. his widow and two daughters namely Smt. D.K. Kaul, Smt. Chitralekha Bukshi and Smt. Anuradha Sapru (since deceased) had inherited the aforesaid property in the proportion of 1/3rd share each according to the Hindu Succession Act. The plaintiff further stated in the plaint that Smt. D.K. Kaul who happened to be his maternal grand mother had made nomination in favour of the appellant herein to the extent of her respective share which was to the tune of 1/3rd each. Smt. D.K. Kaul died intestate on 25th November, 1993 and accordingly it was claimed by the appellant that he became the owner of 1/3rd share in the suit property being the only nominee of Smt. D.K. Kaul in terms of Section 26 of the Delhi Co-operative Societies Act, 1972 and the bye-laws framed thereunder. The Society on the request of the appellant however refused to accede to the request of the appellant to substitute his name as a legal heir to the extent of 1/3rd share so far as the deceased Smt. D.K. Kaul was concerned. This resulted in filing of the suit for partition by the appellant claiming his share to the extent of 1/3rd in the suit property.

4. The respondent (defendant No. 1 in the suit) who happened to be the Masi (real sister of the mother of the appellant) filed her written statement and took a plea that an oral family settlement was arrived at oh 12.2.1998, i.e., after 16 years from the date of the death of their father Lt. Gen. Kaul. According to the said family settlement, the respondent had got exclusive possession of the entire ground floor except common facilities/areas and the right of access to the first floor so far as defendant No. 1/respondent is concerned. It was denied that so far as the appellant is concerned, he had become the owner of 1/3rd share being the only nominee of Late Smt. D.K. Kaul, and also the owner to the extent of 1/3rd share of his mother Smt. Anuradha Sapru (since deceased) who was the defendant No. 2 in the suit and thereafter expired during the pendency of the suit itself. Thus in effect, the appellant/plaintiff was claiming 2/3rd share in the suit property as ag