JUDGMENT :

Preface:

1. The captioned suits and the testamentary case are inter-related and involve members of the family of one, Mr. Savitri Prasada and, hence, will be decided by a common judgment. For the sake of convenience, the genealogy of Mr. Savitri Prasada is shown hereafter.

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2. Thus, the parties will be referred hereafter by their names unless the context requires otherwise. Furthermore, Mrs. Dayavati and Mr. Arun Prasada will be collectively referred to as the contesting defendants while the Legal Representatives [in short “LRs”] of Mr. Aditya Prasada, LRs of Mrs. Sudha Garg, and LRs of Mrs. Rekha Garg will be referred to as the supporting defendants.

3. The two suits i.e. CS (OS) 1113/2008 [in short “2008 suit”] and CS (OS) 3452/2014 [in short “2014 suit”] seek, essentially, the partition of an immovable property described as plot number 12, Anand Lok, New Delhi [hereafter referred to as the “subject property”].

3.1. The reason that two suits have been filed qua the same immovable property is on account of the fact that when the first suit was filed in 2008, partition was sought of a portion of the subject property i.e. 396.65 sq. yards out of a total of 793.30 sq. yards [hereafter referred to as the “suit property”]. The partible portion i.e. the suit property, according to Brigadier (Retd.) Shyam Prasada i.e. the plaintiff in the 2008 suit, then, was the 50% share which was co-owned by Mr. Savitri Prasada along with his wife Mrs. Dayavati.

3.2. However, during the pendency of the 2008 suit, Mrs. Dayavati expired, which then led to the institution of the second suit i.e. the 2014 suit to seek partition of the remaining 50% of the subject property that fell to her share.

3.3. Since Mrs. Dayavati had executed a Will dated 09.11.1992 whereby the subject property, in its entirety, was bequeathed in favour of one of her sons i.e. Mr. Arun Prasada, he instituted the third proceeding which is the testamentary case no. 23/2014 [hereafter referred to as the "testamentary case”].

3.4. Apart from the prayer for partition, in the 2008 suit, whereby, Brigadier (Retd.) Shyam Prasada claims 1/7th share out of his deceased father share admeasuring 396.65 sq. yards i.e. the suit property, there is also a prayer for rectification of a conveyance deed dated 27.03.2000 – this conveyance deed was executed by the Delhi Development Authority [DDA] in favour of Mrs. Dayavati after the subject property was converted from leasehold to freehold.

3.5. The rectification sought, then, was for inclusion of the name of Brigadier (Retd.) Shyam Prasada and his siblings i.e. defendant nos. 2 to 6 in the 2008 suit along with Mrs. Dayavati; who was alive, at that juncture. Besides this, a prayer was also made, in the very same suit, for a decree for the rendition of accounts against Mrs. Dayavati and Mr. Arun Prasada in respect of shares, debentures, FDRs, bank accounts possessed by the deceased Mr. Savitri Prasada and a consequent share in the same.

3.6. Since on 14.02.2014, Mr. Arun Prasada had moved the testamentary case in which he sought probate of the Will dated 09.11.1992 and the codicil dated 24.02.2000 which was executed by Mrs. Dayavati, on 10.11.2014, the second suit i.e. the 2014 suit filed by Brigadier (Retd.) Shyam Prasada c