1. Application of the defendants, being IA No.12861/2016 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), for rejection of the Counter Claim is for adjudication.

2. This Counter Claim, inter alia for partition of property no.B-9, West End Colony, New Delhi – 110 021, was filed in CS(OS) No.1352/2012 filed for partition of property no.C-31, West End Colony, New Delhi – 110 021.

3. Vide order dated 5th December, 2013 on application under Order XII Rule 6 of the CPC of the defendants herein (who were plaintiffs in the suit), a preliminary decree for partition was passed in the suit declaring the two defendants herein and the counter-claimant to be having 1/3rd undivided share each in the property no.C-31, West End Colony, New Delhi and this Counter Claim ordered to be tried separately. Since then, the suit has been disposed of vide order dated 4th December, 2017, by passing a final decree for partition of property no.C-31, West End Colony, New Delhi, by sale thereof and distribution of sale proceeds in terms of the shares declared in the preliminary decree dated 5th December, 2013 of partition.

4. The Counter Claim, as per amended Counter Claim dated 5th August, 2016, pleads,-

(i) that late Col. R.K. Tandon, maternal grandfather of the counter-claimant and father of the two defendants Priti Tandon and Premlata Mehrotra had purchased two plots of land ad measuring 2000 sq. yds. and 1200 sq. yds. in village Basant, New Delhi; the land ad measuring 2000 sq. yds. was purchased by Col. R.K. Tandon in his own name and the land ad measuring 1200 sq. yds. was purchased as benami by late Col. R.K. Tandon in the name of his elder daughter defendant no.2 herein Premlata Mehrotra;

(ii) that the defendant no.2 Premlata Mehrotra was then only 20 years of age and had no source of income and the plots aforesaid were purchased solely out of the own exclusive funds of late Col. R.K. Tandon; the plot of land purchased in the name of defendant no.2 Premlata Mehrotra was held by defendant no.2 Premlata Mehrotra as a trustee in a fiduciary capacity;

(iii) Col. R.K. Tandon died on 8th December, 1986, leaving besides the counter-claimant Snehlata and the two defendants as his daughters, a son and a widow; the son of Col. R.K. Tandon died unmarried and intestate and the widow of Col. R.K. Tandon also died intestate leaving the counter-claimant and the two defendants as her daughters;

(iv) that though the estate of Col. R.K. Tandon comprised of two properties i.e. property no.C-31 and B-9, West End Colony, New Delhi but the defendants had filed the suit for partition only in respect of C-31, West End Colony, New Delhi;

(v) both the aforesaid plots of land were purchased by Col. R.K. Tandon;

(vi) that the West End Colony was developed by the Diplomatic Enclave Extension Co-operative House Building Society;

(vii) Col. R.K. Tandon being desirous of becoming a member of the said Society, wrote letters to the Society surrendering both plots of land aforesaid at village Basant, for re-development; both letters were in identical language save that on one of the letters the name of the defendant no.2 Premlata Mehrotra was written and her signatures obtained;

(viii) at that time, of the three daughters of Col. R.K. Tandon, only the defendant no.2 Premlata Mehrotra was married and thus not counted in the dependents of Col. R.K. Tandon as the rules of the Society required none of the dependents of a member to be owning any land or residential house in Delhi; thus Col. R.K. Tandon used the name of defendant no.2 Premlata Mehrotra to be able to secure two plots in the West End Colony;

(ix) development charges of both the plots were also paid by Col. R.K. Tandon;

(x) that originally plot no.C-31 West End Colony, New Delhi ad measuring 500 sq. yds. was allotted in the name of defendant no.2 Premlata Mehrotra and plot no.B-9, West End Colony, New Delhi ad measuring 800 sq. yds. was allotted in the name of Col. R.K. Tandon; however subsequently an exchange