The main legal point established in the judgment is that in a partition suit, the entitlement of lady members to a share in the property as per the Hindu Succession Act, 1956, must be recognized, and the absence of evidence of partition can lead to the passing of a preliminary decree without framing issues.

JUDGMENT :

JAYANT NATH, J.

1. This suit is filed by the plaintiff seeking partition of the suit property bearing No.18, Doctors Lane, Gole Market, New Delhi. A preliminary decree of partition is sought determining the shares of the Plaintiff No. 1 & Defendant no. 9 as 1/4th each; the shares of Plaintiff Nos. 2, 3 and 4 as 1/12th each; the shares of defendants No.1 to 5 as 1/24th each and the shares of Defendant Nos. 6-8 as 1/72nd each.

2. The case of the plaintiff is that the father of plaintiff No.1 Shri Narayan Agarwal acquired huge wealth during his life time. The suit property was bought by Sale Deed dated 7.4.1942 in the name of his other son Shri Chand Ratan Agarwal. The father Shri Narayan Agarwal died in January 1947 leaving behind his wife Mrs. Mohandevi and four sons, namely, Late Shri Chand Ratan Agarwal, Late Shri Bishanswarup Agarwal, Late Shri Suraj Narayan Agarwal and plaintiff No.1 as his legal heirs. The dispute here pertains only to the suit property as it is stated that other assets forming part of the estate of the deceased have been distributed except the suit property which is a joint property of the sons to the exclusion of the mother.

3. It is further stated that on 5.3.1962 on the intimation of the sons of late Shri Narayan Agarwal the property was mutated jointly in their names. Reliance is also placed on a declaration deed dated 31.12.1960 said to have been executed by the four brothers where they have declared that they are the owners of the said property in equal shares i.e.1/4th share each.

4. Late Shri Chand Ratan Agarwal is said to have died intestate on 15.3.2006 leaving behind eight legal heirs including his wife, five daughters and two sons. All her legal heirs executed a relinquishment deed on 10.2.2012 by which they relinquished their 1/8th share of the 1/4th share of late Shri Chandratan Agarwal in the suit property in favour of Defendant No.9 Shri Rajesh Agarwal and as such defendant No.9 has 1/4th share in the suit property.

5. Late Shri Bishanswarup Agarwal died intestate on 28.4.1992 leaving behind three sons including late Shri Prakash B. Agarwal and plaintiffs No.2 and 3 and four daughters. Hence, the heirs were entitled to 1/7th share of late Shri Bishanswarup Agarwals 1/4th share of the suit property. The daughters executed a relinquishment deed dated 15.07.1994 in favour of the brothers. Consequentially late Shri Prakash Agarwal, plaintiff No.2 and plaintiff No.3 became entitled to 1/12th share in the suit property. The daughters of late Shri Bishanswarup Agarwal have been impleaded as defendants No.10 to 13. Late Shri Prakash Agarwal died on 2.12.2011 leaving behind a Will dated 9.12.2008 whereby he bequeathed his 1/12th share in the suit property to his son Dhiraj Agarwal. Consequentially, Shri Prakash Aggarwal’s 1/12th share now belongs to plaintiff No.4. Hence, late Shri Bishanswarup Agarwal’s 1/4th share now belongs to the plaintiffs No.2, 3 and 4 each getting 1/12th each.

6. Late Shri Suraj Narayan Agarwal died intestate on 25.01.2001 leaving behind defendants No.1 to 5 and late Shri Raj Kumar each entitled to 1/6th share of late Shri Suraj Narayan’s 1/4th share in the suit property. On the death of late Shri Raj Kumar his share devolved in equal part to his children defendants No.6 to 8 who were entitled to 1/72nd share in the suit property. Hence, it is pleaded that defendants No.1 to 5 are entitled to 1/24th share and defendants No.6 to 8 are entitled to 1/72nd share in the suit property.

7. Plaintiff No.1 being the son of late Shri Narayan Agarwal is entitled to 1/4th share in the suit property.

8. It is stated that since 2014 the plaintiffs alongwith other members of the family have repeatedly approached the defendants so that the suit property could be sold and proceeds could be divided amongst the respective independent HUFs/parties. On 14.3.2017 a legal notice was served upon defendant No.1 for partition of the suit property. Defendant No.1 has refused to co-operate in the pa