Rajiv Sahai Endlaw, J.

1. This judgment adjudicates the objections of the defendants in the suit and respondents in the testamentary case as to the very maintainability thereof.

2. The plaintiff Shri Bharat Kumar has instituted CS(OS) No.1517/2010, (a) for partition of property No.92, Golf Links, New Delhi; (b) for rendition of accounts with respect to the rental received by the defendants no.1&2 from the said house w.e.f. 17th January, 2008; (c) for perpetual injunction restraining the defendants no.1&2 from dealing with the property; and, (d) for a direction to the defendant no.5 McKinsey & Company to handover vacant peaceful physical possession of the said property upon termination of its lease, jointly to the plaintiff and the defendants no.1&2.

3. Summons of the suit were issued and vide ex parte ad interim order dated 28th July, 2010 the defendants were restrained from creating any third party interest in the property No.92, Golf Links, New Delhi. Separate written statements were filed by the defendants no.1&2 on the one hand and the defendants no.3&4 on the other hand. The counsel for the defendant no.5 McKinsey & Company on 19th November, 2010 informed that it was a tenant in the said property and had vacated the same and handed over possession to the defendants no.1&2 landlords; accordingly the name of McKinsey & Company as defendant no.5 was deleted; the defendants no.1 to 4, vide the same order, were permitted to negotiate with the prospective tenants in the property. Vide subsequent order dated 25th January, 2011 the defendants no.1&2 were permitted to let out the property to any tenant of their choice subject to furnishing a Bank Guarantee of Rs.5 crores and further subject to deposit of 1/8th of the rent in the Court. The defendants no.1 to 4 preferred FAO (OS) No.115-116/2011 and vide order dated 16th March, 2011 wherein the property was permitted to be let out to the Norwegian Embassy with 1/4th of the rent being deposited in the Court. The plaintiff sought amendment of the plaint, to claim share of 1/4th instead of 1/8th as originally claimed in the property on account of the stand of the defendants no.3&4 in the written statement filed by them and which amendment was allowed vide order dated 21st February, 2012. The defendants have filed IA No.6254/2012 under Order 7 Rule 11 of the CPC challenging the very maintainability of the suit. The counsels have been heard.

4. The plaintiff claims rights in property No.92, Golf Links, pleading:-

(a). that the plaintiff and the defendant no.1 are the sons and the defendant no.3 Ms. Prabha Manga and the defendant no.4 Ms. Shobha Manga are the daughters and only children of Shri Sahdev and Smt. Shakuntala Sahdev;

(b). the defendant no.2 Smt. Sarita Sahdev is the wife of the defendant no.1;

(c). that Shri Sahdev was carrying on business of paints and thinners in the name and style of India Trading House;

(d). upon the plaintiff coming of age Shri Sahdev asked him to start business in Chlorinated Paraffin Wax in the name and style of M/s. Vinspar Industries, as sole proprietor thereof;

(e). subsequently the defendant no.1 also joined as a partner in M/s.Vinspar Industries;

(f). that upon the marriage of the plaintiff, his wife at the instance of Shri Sahdev started business in garments in the name and style of Shakun International, with the wife of the plaintiff having a 90% share therein and the defendant no.1 having a 10% share therein;

(g). the defendant no.1 thereafter retired as partner of M/s. Vinspar Industries and Smt. Shakuntala Sahdev became a partner in the said business;

(h). that the parties had a common kitchen till then;

(i). that a Memorandum of Understanding (MoU) dated 24th October, 1980 was executed by Shri Sahdev as per which M/s. Vinspar Industries vested with the plaintiff and Sakun International with the defendant no.1; M/s. Vinspar Industries purchased plot No.119 in Badli Industrial Estate;

(j). that Shri Sahdev was managing the bu