Prathiba M. Singh, J.

1. Late Shri Jiwan Dass Batra and Smt. Krishna Batra are the parents of the Appellant and the Respondent No.1 and Respondent No.2. Harish Kumar Batra/Respondent No.1/Plaintiff (hereinafter, ‘Plaintiff’) filed a suit for declaration, permanent injunction and in alternate, for partition and possession against his brothers Devender Kumar Batra/ Respondent No.2/Defendant No.1 (hereinafter, ‘D1’), Satish Kumar Batra/Appellant/ Defendant No.2 (hereinafter, ‘D2’) and Sabina Maini/Respondent No.3/Defendant No.3 (hereinafter, ‘D3’).

2. Father of the parties was the owner of property bearing No.20 Sector, 16A, Chandigarh, a residential house (hereinafter, ‘Chandigarh property’). Mother of the parties was the owner of property No.61, Old Gupta Colony, Delhi (hereinafter, ‘Delhi property’).

Plaintiff's case

3. Plaintiff submits that in March 1993, a family settlement was entered into, whereby the Plaintiff was given absolute rights in the Chandigarh property, D1 was given absolute rights in the ground floor of the Delhi property and D2 was given absolute rights in the first floor of the Delhi property. This family settlement dated 28th March, 1993 was drawn and executed by the father as his last Will and in supersession of his Will dated February, 1986. The father, the Plaintiff and D1 and D2 were the signatories to the said document and it was agreed between the parties that the wishes of father contained in the said document would be given effect to after his lifetime. Father of the parties passed away on 2nd March, 1996.

4. Plaintiff’s case is that he had exclusive possession of the Chandigarh property and that he had partly rented out the said property. He had retained a small portion of the property with himself. Plaintiff further pleads that in April 2008, he had sent a Power of Attorney to the Defendants in order to enable them to get the Delhi property mutated in their names. However, in that process the Defendants raised a claim to the Chandigarh property. The Defendants had, even applied for transfer of ownership of the Chandigarh property on the basis of an earlier Will of the father dated 6th February, 1986 which was superseded by the family settlement dated 28th March, 1993. The Estate Officer, Chandigarh had issued a notice in respect of the mutation request of the Defendants, which was replied to by the Plaintiff. The present suit for declaration was then filed. Plaintiff’s case in effect is that the family settlement should be given full effect to and in a situation where the Defendants continued to claim rights to the Chandigarh property, Plaintiff should be entitled to 1/3rd share of the Delhi property. Prayers are set out below:

“(a) A Decree declaring the document dated 28.03.1993 binding on the plaintiff and Defendants 1 & 2, whereby the Defendants 1 & 2 are the owners in respect of the Ground Floor and the First Floor with barsati of the Property No.61, Old Gupta Colony, Delhi and the Plaintiff is the owner of the property No.20, Sector-16-A, Chandigarh.

(b) A Decree of Permanent Injunction restraining Defendants 1 & 2, their legal heirs, assigns, servants etc. from disobeying the terms of the family arrangement and restraining them permanently from interfering in any manner or to deal with the Property bearing no.20, Sector 16-A, Chandigarh.

(c) The cost of the suit be awarded in favour of the Plaintiff.

In the alternative, if this Hon’ble Court comes to the conclusion that the document dated 28th March, 1993 is a partial testamentary in nature and the decree of declaration as prayed in Prayer (a) above about Property No. 61, Old Gupta Colony, Delhi only cannot be granted due to any reason what so ever then in that eventuality this Hon’ble Court may pass:

(d) A decree declaring the document dated 28.03.1993 to be partial testamentary document executed by Late Shri Jiwan Dass Batra respect of his property No.20, Sector-16-A, Chandigarh.

(e) A decree for partition to the extent of 1/3rd share by m