V.K. Shali, J.

IA Nos. 7093-94/2009 & 10546/2009

1. This order shall dispose of three applications bearing IA Nos. 10546/2009 under Order VII Rule 11 (a) CPC filed by the defendant No. 1, IA No. 7093/2009 under Order XXXVIII Rule 5 CPC and IA bearing No. 7094/2009 under Order XL Rule 1 CPC filed by the plaintiffs.

2. Briefly stated the facts of the case are that the plaintiffs are four daughters of Late Shri Rajendra Vikram Singh. The suit was filed for partition of two properties bearing No. B-10, West End, New Delhi and a commercial property bearing No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi marked in green in Schedule-I. The Surya Kiran Property was purchased from the defendant No. 6. So far as the property in West End is concerned, it was alleged that it was a joint property of their deceased father Rajendra Vikram Singh and his brother Jaswant Singh (since deceased). The defendant No. 1 Jaswinder Singh is the son of Late Shri Jaswant Singh. The defendant No. 2/Ms. Surinder Kaur is the widow of Jaswant Singh. The defendant Nos. 3 and 4 and 5 Jasdeep Kaur, Harpreet Kaur and Hardeep Kaur are the daughters of Late Shri Jaswant Singh. The defendant No. 6 is stated to be Ansal Properties from whom the commercial property bearing No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi was purchased. The defendant No. 7 is the tenant in respect of rear half portion of the West End property while as the defendant No. 8 is the tenant in respect of the commercial property bearing No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi.

3. It was the case of the plaintiffs that their father was the joint owner of West End property and two separate buildings were constructed on the said plot. The front portion of the building belonged to Late Shri Jaswant Singh, predecessor-in-interest of defendant Nos. 1 to 5 while as the rear portion of the building facing towards the South End side owned by Rajendra Vikram Singh father of the plaintiffs, which is presently under the occupation of a tenant paying rent to the defendant No. 1. Similarly, the property Surya Kiran Building is also under tenancy. Though the names of the tenants are given but it is stated that as of date they are not the tenants.

4. It is not in dispute that the father of the plaintiffs who had settled in USA died on 02.01.2001 in India. It is alleged that their father had made an unregistered WILL dated 05.12.2000 and bequeathed all the immovable properties to the plaintiffs and in any case even if the WILL is not taken into consideration the property passed by operation of law and succession as envisaged under Section 8 of the Hindu Succession Act according to which the plaintiffs get the share in the said property. The plaintiff has also stated in the plaint that earlier they had filed a suit bearing No. CS (OS)1207/2001 claiming half ownership of the West End property which was rejected on the ground that the requisite court fees was not paid, and accordingly, the present suit has been filed by the plaintiffs.

5. So far as the defendant No. 1 to 5 are concerned, they have contested the claim of the plaintiffs for partition of the suit property. The defendant No. 1 has taken the plea that so far as the deceased father of the plaintiffs is concerned as his daughters were settled permanently in USA, he had bequeathed the aforesaid immovable properties vide WILL dated 05.12.2000 in favour of the defendant No. 1, who happen to be the nephew (brother's son) out of natural love and affection. It is alleged by him that the property situated in West End accordingly was got mutated by him in his own name on the basis of the WILL and it has been let out by him to the tenant from whom an amount of Rs. 6/7 lakhs or so is being realized per month.

6. So far as the commercial property bearing No. 510, Suryakiran Building, 19, Kasturba Gandhi Marg, New Delhi is concerned, it is stated by the defendant No. 1 that this property was also bequeathed by