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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1568/2003
% Judgment Delivered on: 05.07.2011
D.R.GUPTA ..... Plaintiff
Through: Mr.Ravi Bassi, Advocate
versus
B.B.GUPTA AND OTHERS ..... Defendant
Through: Mr.Sushant Kumar, Adv. for defendant no.1
Mr.Pawan Kumar, Adv. for defendant
No.2A to 2D
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
G.S.SISTANI, J. (ORAL)
I.A.No.10289/2011
1. By present application defendants Nos.2A, 2B, 2C and 2D, seek leave to place on record Will dated 31st January, 2006 executed by deceased, defendant no.2 in favour of his wife, defendant No.2A and also seek to delete the names of defendants No.2B, 2C and 2D from the array of parties.
2. Notice. Counsel for non-applicants, accept notice and submits that plaintiff has no objection if this application is allowed. Accordingly, defendants No.2B, 2C and 2D are deleted from array of parties and the Will of late Sh.S.B. Gupta, defendant no.2 is taken on record. CS(OS) 1568/2003 Page 1 of 5
3. Application stands disposed of.
CS(OS)No.1568/2003 & IA.No.6962/2011
4. Present suit has been filed by the plaintiff for partition and permanent injunction. As per the plaint mother of the plaintiff, late Ram Pyari was the exclusive owner of the suit property bearing No.F-17, New Delhi South Extn.-I, hereinafter referred NDSE Part-I. Admittedly Smt.Ram Pyari died on 28.11.1986, leaving behind three sons, i.e. the plaintiff and defendants nos.1 and 2 and one daughter i.e. defendant no.3. It is the case of the plaintiff that late Smt.Ram Pyari had executed a registered Will dated 26th November, 1977 duly registered in the Office of Sub-Registrar, Delhi on 13th February, 1978. By virtue of this Will, the ground floor of the suit property was bequeathed in favour of Sh.S.B. Gupta, defendant no.2 herein (since deceased), first floor of the property was bequeathed in favour of Sh.B.B. Gupta, defendant no.1 herein and the second floor of the property was bequeathed in favour of the plaintiff. Since the plaintiff was not in possession of the suit property and the defendants had refused to partition the property in terms of the Will, the plaintiff was forced to knock the doors of this court for justice and claimed partition, as well as possession of his share in the suit property by metes and bounds.
5. Despite service none had appeared on behalf of defendant nos.2 and 3 and they were proceeded ex parte by order dated 18th March, 2009. Defendant no.1 in his written statement inter alia pleaded CS(OS) 1568/2003 Page 2 of 5 that Will dated 26th November, 1977 of the mother was superseded by the Will dated 16th March, 1985 whereby the plaintiff was not given any share in the property.
6. By present application (IA.No.6962/2011) plaintiff and the defendant no.2A have jointly prayed for recording compromise. It is submitted by counsel for defendant No.2A that her husband, Sh.S.B. Gupta has executed a registered Will dated 31st January, 2006 in her favour (Smt.Saroj Gupta) by which he bequeathed his share in the suit property in her favour. The plaintiff as well as defendant No.2A are present in court.
7. Counsel for the plaintiff and defendant no.2A submit that defendant No.2A has handed over possession of the second floor of the suit property vide Possession Handing Over Memorandum dated 16.04.2011, copy of which has been placed on record. Defendant No.2A, Smt.Saroj Gupta, who is present in court identifies her signatures at point A on the application, at points B and C on the affidavit, and at points D & E on the Possession Handing Over Memorandum. Original of the Possession Handing Over Memorandum is seen and returned. Defendant No.2A submits that she has no objection if the suit is decreed in favour of the plaintiff. Smt.Saroj Gupta also submits that she has voluntarily and on her own free will handed over possession of the second floor of the suit property to the plaintiff and she acknowledges the plaintiff to be the owner of the second floor, as per the Will of her late CS(OS) 1568/2003 Page 3 of 5 mother-in-law.
8. Counsel for defendant no.1 submits that defendant no.1 is in settled possession of the first floor of the suit property and he does not wish to contest the suit. Counsel for defendant no.1 also submits that defendant no.1 has admitted the Will dated 26th November, 1977 executed by late Smt.Ram Pyari in IA.No.1106/2011. The stand taken by defendant no.1 in paragraph 5 of the IA. No.1106/2011, reads as under: "5. That the Applicant states that the applicant is ready and willing to discharge all his obligations arising out of the Will dated 26.11.1977 and is agreeable to pay the sum of Rs.5,000/- to the plaintiff (Sh.D.R. Gupta). However, the applicant prays that alongwith the same the plaintiff and other Non applicants may also be directed to allow the Applicant (Shri B.B. Gupta) or his representative or his Legal heirs or their representative the unhindered use of the Front staircase leading to the First floor of the suit Property along with the right to access the terrace of the Second Floor along with the right to park their vehicle outside in front of the Suit Property. The applicant further prays that the plaintiff/ Non applicant shall also allow the applicant (Shri B.B. Gupta) to increase the Front and Rear Balcony of the First Floor after taking due approval from the Municipal Authorities or as per Municipal Bye Laws."
9. I have heard counsel for the parties. The Will of the deceased, Smt.Ram Pyari, dated 26th November, 1977 has not been disputed and the parties are now in settled possession of their respective shares i.e. plaintiff is in settled possession of the second floor of the suit property; defendant no.1 is in settled possession of the first floor of the suit property; and defendant no.2A is in settled possession of the ground floor of the suit property. As jointly CS(OS) 1568/2003 Page 4 of 5 agreed by counsel for the parties, the suit is decreed in terms of prayer made in the IA.No.6962/2011. The ground floor portion of the property shall fall in the share of defendant No.2A; first floor of the portion of the suit property shall fall in the share of defendant no.1; and second floor of the portion of the suit property shall fall in the share of plaintiff. I.A.No.6962/2011 is allowed. The suit is decreed, in above terms. The suit is decreed accordingly. IA.No.1106/2011
10. Dismissed as not pressed.
G.S. SISTANI, J.
JULY 05, 2011 'ssn' CS(OS) 1568/2003 Page 5 of 5