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2019 Supreme(Del) 377
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
DHIAN NATH KAPUR - Plaintiff
Versus
PRAN NATH KAPUR - Defendant
CS(OS) 2746 of 2014 & I.A. 9466 of 2015, 11813 of 2017 & 2287 of 2018
Decided On : 04-02-2019
For the Plaintiff :Mr. Alok K. Aggarwal and Mr. Apoorv Rastogi, Advocates.
For the Defendant :Mr. Jasmeet Singh, Advocate for LRs with Ms. Meera Bajaj.
Headnote:
Partition - Property Dispute - Will - 15th May, 1965 - [PROPERTY DISPUTE] - [WILL] - [15th May, 1965] - The court discussed the Will dated 15th May, 1965, which clearly gave equal share to both brothers. An undated letter, Exhibit-P-3, was relied upon by the Plaintiff wherein Sh. Pran Nath Kapur, himself, during his lifetime, had agreed that the house should be divided half-half and the Registry in two separate names ought to be made. The court held that the intention of the testator as contained in the Will and the letter Exhibit-P-3 should be considered at the stage of passing of the final decree. The final decree for partition was granted, dividing the property into two equal vertical halves, in the manner as suggested in the Local Commissioner’s report.
Fact of the Case:
The suit was filed by Shri Dhian Nath Kapur seeking a preliminary decree for partition of the property bearing No.14, Park Area, Karol Bagh, New Delhi-110005, declaring that the plaintiff and defendant are having 50% equal share each therein. The suit property was a rectangular plot owned by Late Shri Dina Nath Kapur, and the parties were in joint possession of the property as per the terms of the Will.
Finding of the Court:
The court found that the Will dated 15th May, 1965 clearly gave equal share to both brothers and that an undated letter, Exhibit-P-3, was relied upon by the Plaintiff wherein Sh. Pran Nath Kapur, himself, during his lifetime, had agreed that the house should be divided half-half and the Registry in two separate names ought to be made. The court also considered the intention of the testator as contained in the Will and the letter Exhibit-P-3 at the stage of passing the final decree.
Issues: The main issue was the determination of the final decree for partition and how the property needed to be partitioned, considering the intention of the testator as contained in the Will and the letter Exhibit-P-3.
Ratio Decidendi: The court held that the intention of the testator as contained in the Will and the letter Exhibit-P-3 should be considered at the stage of passing of the final decree. The final decree for partition was granted, dividing the property into two equal vertical halves, in the manner as suggested in the Local Commissioner’s report.
Final Decision: A final decree for partition was granted, dividing the property into two equal vertical halves, in the manner as suggested in the Local Commissioner’s report. Both parties shall enjoy ownership and possession of their respective portions of the property. They are permitted to apply to the Municipal Authorities for mutation in accordance with the judgment of the Court. The parties are permitted to get separate electricity and water connection installed and pay their respective taxes, charges, and other duties for their respective portions.
Prathiba M. Singh, J.
1. Late Shri Dina Nath Kapur was the owner of property bearing No.14, Park Area, Karol Bagh, New Delhi-110005 (hereinafter ‘Suit Property’). He had two sons, the Plaintiff-Shri Dhian Nath Kapur and the Defendant - Shri Pran Nath Kapur (hereinafter, ‘Pran Nath Kapur’). The property is a rectangular plot 170.4 feet long and 69.8 feet wide. Shri Dina Nath Kapur passed away on 20th March, 1978. He had executed a registered Will dated 15th May, 1965, registered on 29th May, 1965. There is no dispute between the parties that each of the parties owns and is entitled to 50% share in the property.
2. The present suit was filed by Shri Dhian Nath Kapur, through his duly constituted attorney, his daughter Dr. Anu Kapur (hereinafter, ‘Plaintiff’). The parties attempted mediation to amicably partition the property - however, no settlement could be arrived at. Accordingly, the present suit was filed seeking the following reliefs:-
“(i) pass a preliminary decree for partition of the aforesaid immovable property No.14, park Area, Karol Bagh, New Delhi-110005, declaring that the plaintiff and defendant are having 50% equal share each therein;
(ii) appoint a Local Commissioner preferably an Architect to suggest the mode of partition by metes and bounds of the suit property No.14, Park Area, Karol Bagh, New Delhi-110005 and after the report is submitted a final decree be passed dividing the aforesaid suit property and giving 50% equal share to the plaintiff in accordance with law;
(iii) a decree of permanent injunction against the defendant and in favour of the plaintiff thereby restraining the defendant, his agents, servants, employees, relatives, representatives, contractors, labourers, or any one claiming on behalf of the defendant from refurnishing and carrying out any construction activities in the suit property and/or selling, alienating, transferring, creating third party interest and/or parting with possession of the suit property in favour of any one including his relatives, descendants, representatives or agents or any other person or persons, in any manner whatsoever in whole or part of the suit property i.e., No.14, Park Area, Karol Bagh, New Delhi-110005;
(iv) award the costs of the present proceedings in favour of the plaintiff and against the defendant.”
3. The suit was initially listed on 10th September, 2014 on which date an ex-parte ad-interim injunction was granted in the following terms:
“Accordingly, till the next date of hearing, parties are directed to maintain status quo with regard to title and possession of the property bearing no.14, Park Area, Karol Bagh, New Delhi.”
4. The same was confirmed, during the pendency of the suit, vide order dated 1st October, 2014.
5. I.A. 23130/15 came to be filed, under Order XXII Rule 4 CPC as the Defendant - Shri Pran Nath Kapur passed away on 15th September, 2015. Thus, his wife-Smt. Swaran Kapur, son - Shri Jitender Kapur and his daughter - Smt. Meera Bajaj were impleaded as Defendant No.1, 2 and 3 (hereinafter, ‘Defendants’). The application for impleadment of legal heirs was, allowed on 15th July, 2016.
6. While disposing the application under Order XII Rule 6 being I.A.9465/2015, a preliminary decree was passed by this Court on 14th September, 2017. The Court held as under:-
“IA No.9465/2015
This suit is filed by the plaintiff against the defendant (his brother) for partition and injunction in respect of property that is a built up plot admeasuring 1302 sq. yards, bearing No.14, Park Area, Opp. Ajmal Khan Park, New Delhi -110005. This property originally belong to Mr. Dina Nath Kapur who died on 20th March, 1978 leaving behind a registered Will with the Sub-Registrar as document No.108 in book No.3, volume No.1, at pages 89 to 91 on 29th May, 1965.
All the assets which were left by the deceased father of the plaintiff and defendant were duly distributed in the ratios of 1/2:1/2 and only the suit property needs to be partitioned. Both the parties agree that the p
