JUDGMENT

Hon'ble Sudhanshu Dhulia, J. (Oral)

This first appeal arises out of judgment and decree of the Trial Court dated 27.05.2016 passed by the Civil Judge (Senior Division) Roorkee, District Haridwar in O.S. No.158 of 2012 “Smt. Shalni Prem Vs. Nupur Singh and others", whereby the suit for partition of the plaintiff/respondent no.1 has been decreed by giving 1/4th equal share of the property to the four legal heirs.

2. Brief facts of the case are that a piece of land was purchased by Shri Yudhisthir Singh way back in the year 1959, on which later a hotel called “Motel Polaris" was constructed in the year 1961-1962, and since then the hotel was being run on the said place. Shri Yudhisthir Singh and his wife Smt. Madhu Singh had four children, three daughters namely Shalini Prem, Shivani and Sunaina and one son Dhruv Singh.

3. The parties are related to each other as indicated by the subjoined pedigree given below.

4. Shri Yudhisthir Singh passed away in the year 1980 and his wife Smt. Madhu Singh later passed away on 15.03.1999. Admittedly the motel was being run by their son Dhruv Singh, at the relevant point of time. Dhruv Singh was married to Nupur Singh (the present appellant no.1), on 27.11.2000 and out of the said wedlock there is a daughter called Namya (Appellant No.2), who was born on 09.05.2008. Dhruv Singh died on 18.08.2012 and after his death a dispute arose regarding the property between the present appellants on the one hand and the three sisters of the deceased (Dhruv Singh) on the other.

5. Initially a suit for declaration and injunction was filed by Smt. Nupur Singh (Appellant no. 1 here), which was registered as Suit No.94 of 2012 before the civil court at Roorkee, which was dismissed for non prosecution. Admittedly no application for restoration or appeal was filed against the dismissal.

6. In the year 2012, another suit was filed by Shalini Prem (one of the three sisters) for partition of the property i.e. Motel Polaris, which was registered as Suit No.158 of 2012 “Shalini Prem Vs. Nupur Singh and others" in which she made her two sisters as defendant nos.3 and 4 respectively and her sister-in-law Nupur Singh as defendant no.1 and the minor daughter of Nupur Singh as defendant no.2. The contention of the plaintiff was that the property which was purchased by Shri Yudhistir Singh in the year 1959, on which the hotel called “Motel Polaris" was constructed in the year 1962 has to be equally divided between the three sisters and the appellant Nupur Singh i.e. her sister-in-law into four equal shares. It was also stated that there had been previous litigation regarding the said property where the property has always been shown to be a joint property of the family.

7. Inter alia, the contention of the plaintiff was that after the death of her father Shri Yudhistir Singh (in the year 1980), the loan which he had taken for the construction of the hotel was to be repaid to the UP Financial Corporation and since the loan was to be repaid, part of the property was sold in order to repay the loan for which permission was sought by Smt. Madhu Singh (his widow), on her behalf as well as on behalf of her minor children, to sell the property so that loan be repaid. At this point the property was described to be in joint ownership of the family.

8. The suit filed by plaintiff Shalini Prem being Suit No. 158 of 2012 was not contested by defendant nos. 3 & 4 who were the sisters of the plaintiff. The suit was contested by defendant nos.1 & 2 (from hereinafter for defendant nos. 1 & 2, the reference will be as defendant no. 1 alone which shall include defendant no. 2). Initially the stand taken by defendant no.1 in her written statement was that the entire property belonged to Shri Yudhisthir Singh i.e. her father in law, and thereafter it of the portion of the property and after his death the entire 2/5came to the share of his wife Smt. Madhu Singh and his son Shri. Dhruv Singh and the mother and the son had 50% share each