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2015 Supreme(Del) 4560
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN SINGH, J.
NIRMAL KAUR - Decree Holder
Versus
SURJIT KAUR & ORS - Judgment Debtors
Ex.P. No.233/2010
Decided on : 4-11-2015
Advocate Appeared:
For the Decree Holder : Mr.Raman Kapur, Sr.Adv. with Mr.Dhiraj Sachdeva and Mr.R.P.Singh, Advs.
For the Judgment Debtors : Ms.Meenakshi Chopra, Adv. for JD-4.
Mr.Dinesh Kapoor, Adv. for Objector Karishma.
Mr.Dinesh Agnani, Sr.Adv. with Ms.Urvashi Singh, Adv. for Objector Harinder Singh.
The main legal point established in the judgment is the validity of the Will and the rights of legal heirs in the partition of the property.
Headnote:
E.A.(OS) - Property Dispute - Indian Partition Act, 1893, Delhi Municipal Corporation Act, DDA Act - The court discussed the objections filed by judgment-debtors and other objectors regarding the physical division of the suit property, the validity of the Will, and the rights of legal heirs. The court dismissed the objections and directed the physical division of the property by metes and bounds in accordance with the final decree.
Fact of the Case:
The case involved a property dispute regarding the partition of a suit property among legal heirs based on a Will dated 27th March, 1979. The decree-holder filed a suit for partition, and the judgment-debtors contested the ownership and division of the property. The court issued a preliminary decree and a final decree for the partition of the property.
Finding of the Court:
The court found that the objections raised by the judgment-debtors and other objectors were frivolous and filed with malafide intention to delay the enforcement of the decree. The court dismissed the objections and directed the physical division of the property by metes and bounds in accordance with the final decree.
Issues: The main issues included the validity of the Will, the rights of legal heirs, and the feasibility of physically dividing the suit property among the parties.
Ratio Decidendi: The court upheld the validity of the Will dated 27th March, 1979, and emphasized that the probate of the Will was not required as it had already been admitted by the judgment-debtors and dealt with in the proceedings. The court also held that the objections were filed with malafide intention to delay the proceedings and dismissed them with costs.
Final Decision: The court directed the physical division of the property by metes and bounds in accordance with the final decree and dismissed all objections with costs.
MANMOHAN SINGH, J.
E.A.(OS) No.122/2011 (objections filed by JD-4),
E.A. (OS) No.114/2011 (objections filed by Objector Karishma),
E.A. (OS) No.728/2014 (objections filed by objector Harinder Singh) & E.A. (OS) No.729/2014 (for stay)
1. By way of this order, I propose to decide the objections filed by judgment-debtor No.4 being E.A.(OS) No.122/2011 as well as on behalf of Ms.Karishma daughter of Late Mr.Vijay Virdhi and grand-daughter of Late Sh.Joginder Singh Dhiman, being E.A.(OS) No.114/2011 and also on behalf of another Objector Mr.Harinder Singh, being E.A.(OS) No.728/2014 and his application for stay being E.A.(OS) No.729/2014.
2. Brief facts of the case are that the Sale Deed of plot No.C-18, Mansoraver Garden, New Delhi (hereinafter referred to as the “suit property”) was executed on 10th May, 1965 by Bharat Builders & Colonizers, in favour of Late Sh.Chanan Ram, for sale consideration of Rs.12,800/- which was registered on 20th May, 1965.
3. Late Sh.Chanan Ram by his last Will and Testament dated 27th March, 1979, bequeathed the suit property in equal shares to his two sons i.e. Sh.Joginder Singh, predecessor in interest of the judgment-debtors and Sh.Inderjit Singh, predecessor-in-interest of the decree-holder.
4. The suit property was mutated by MCD in the names of late Inderjeet Singh and Sh.Joginder Singh on 21st March, 1988.
5. Late Inderjit Singh vide his last Will and Testament dated 2nd December, 2004, duly registered, bequeathed his half share in the suit property to his wife, decree-holder.
6. Since the suit property had not been partitioned, the decree-holder filed a suit for partition bearing CS (OS) No.593/2006 on 4th April, 2006 for partition of the suit property, stating that the decree-holder on the one hand and the judgment-debtors on the other as legal heirs of late Joginder Singh, were owners of 50% share each of the suit property in view of the Will dated 27th March, 1979 of Late Chanan Ram. The suit was listed for hearing on 4th April, 2006 and this Court issued notice to the judgment-debtors (defendants in the suit) and directed the parties to maintain status quo with regard to the possession and title of the suit property.
7. Written statement was filed by all the defendants/judgment-debtors on 24th August, 2006, admitting ownership of 50% of the suit property by decree-holder and 50% by judgment-debtors. The suit was mainly contested by judgment-debtor No.4, Mr.Ravi Dhiman who is using the suit property.
8. In the order dated 5th October, 2006, it was recorded that there was no dispute as to ownership and in view of the above admitted position, a Local Commissioner was appointed to visit the suit property, make a site plan and to report respective occupation of the suit property by the parties. The Local Commissioner submitted his report on 8th November, 2006 that the suit property was in occupation of judgment-debtor No.4 and entry to the same was only from the front side.
9. On 8th August, 2007, another Local Commissioner, Sh.Y.D.Nagar, Advocate, who is also an Engineer, was appointed by this Court to inspect the suit property and to ascertain whether the same can be divided into two equal shares by metes and bounds. On 29th October, 2007, Sh.Y.D.Nagar carried out measurements of the suit property and found the same to be 611 sq. yards instead of 800 sq. yards. He found that the front of the property facing the main 30 meter vide Rama Road (East) is 50 feet in width and the plot stood reduced to 28 feet at the rear of the property. He prepared a site plan which is on page No. 14 of the report of Mr.Y.D.Nagar dated 29th October, 2007. Mr.Y.D.Nagar clearly opined in his report that the property can be divided into two equal parts from the front to the back in the centre, horizontally giving 25 feet each to the plaintiff/decree-holder and defendants/judgment-debtors on the front side and 14 feet each on the rear side, each of the parties getting 50% coming to 305.5 sq. yards, total ar
