CS(OS) 2664/2014

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment Reserved on : 7^th September, 2022

Judgment Delivered on : 26^th September, 2022

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CS(OS) 2664/2014 & I.A. 11202/2016 (u/S 151 of CPC)

SHAKUNTLA & ANR

..... Plaintiffs

Through:

Mr.Ankit Jain, Ms. Bhoomija Verma,

Mr. Sarvesh R, Advocates

Versus

RAJINDER SINGH DESWAL

..... Defendant

Through:

Mr.

Harish

Malhotra,

Senior

Advocate with Mr. N. K. Kantawala

and Ms.Shloka Rawat, Advocates

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

1.

The present suit has been instituted seeking partition of the property

bearing No. 8, Northwest Avenue Road, Punjabi Bagh Extn., New Delhi -

110026, measuring about 300 sq. yds (hereinafter referred as the 'Suit

Property').

2.

The case set up by the plaintiffs in the plaint:

i)

The suit property was originally purchased by Sh. Mamchand Deswal,

who constructed a house thereupon. He executed a registered will

dated 24^th February, 1993. He passed away on 18^th October, 1993,

leaving behind a widow, Smt. Nanki Devi and three children, being

Shakuntala, Krishna Prakash and Rajender Singh Deswal. Before his

death, Sh. Mamchand Deswal constructed a house on the plot of land,

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which is the suit property in the present suit.

ii)

The plaintiff no.1 is a daughter, who is permanently settled in

Gurgaon, Haryana after her marriage in 1975; the plaintiff no.2 is

also a daughter, who is permanently settled in USA after her marriage

in 1981 and; the defendant is also permanently settled in Mumbai,

Maharashtra since 1968.

iii)

On the death of Sh. Mamchand Deswal, Smt. Nanki Devi became the

sole and absolute owner of the suit property on the basis of a Will

dated 24^th February, 1993, executed by Late Sh. Mamchand Deswal.

iv)

Smt. Nanki Devi expired on 20^th August, 2014 leaving behind a Will

dated 26^th August, 2013, wherein she bequeathed the suit property in

favour of all the three children i.e. the two plaintiffs and the defendant

in equal shares.

v)

The suit property was in the possession of Smt Nanki Devi till her

death. The first floor of the suit property was being let out by her from

time to time to different tenants.

3.

Based on the aforesaid pleadings, a decree of partition is sought in

respect of the suit property to the extent of 1/3^rd share each in favour of the

two plaintiffs and the defendant.

4.

Suit was contested by the defendant by filing a written statement, in

which it was pleaded that:

i)

The defendant is in sole possession of the suit property. The

defendant has always been paying the annual house tax of the suit

property and the renovation of the suit property has also been carried

out by the defendant out of his own funds from time to time.

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ii)

The suit property was in the name of the father of the parties and no

mutation has been carried out by the mother in her name after the

death of the father.

iii)

The mother had only the life/limited interest in the suit property as per

aforesaid Will executed by the father of the parties. Hence, in terms of

the Will dated 26^th August, 2013, executed by the mother of the

parties, the plaintiffs are not entitled to any share in the suit property,

as the mother had no right to bequeath the suit property.

5.

Counsel appearing on behalf of the plaintiffs has made the following

submissions:

i)

Clause 4 of the will dated 24^th February, 1993 specifically provides

that after the death of the father of the parties, all his movable and

immovable properties will be inherited by hi