Ram Krishan Gupta vs Rani Gupta & Ors.
2009 Latest Caselaw 5215 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                      CS (OS) No.1367/1998

                       Judgment reserved on:     10th November, 2009
%                      Judgment decided on :     15th December, 2009

Ram Krishan Gupta                                    ......Plaintiff
                       Through : Mr. Arvind Pandey, Adv.

                       Versus

Rani Gupta & Ors.                                    .....Defendants
                       Through: Mr. Y.D. Nagar, Adv. for Def. No.1(a)
                                & 1(b)
                                Mr. Ajay Talesara, Adv. for Def. No.3
                                Mr. M.L. Mahajan, Adv. with Mr.
                                Gaurav Mahajan, Adv. for Def. Nos.4,
                                5, 6 & 7(a) to 7(f)


Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   No

2. To be referred to Reporter or not?                                No

3. Whether the judgment should be reported                           No
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff filed the suit for declaration and partition of the

suit property bearing No.C-11 Green Park Extension, New Delhi

admeasuring about 400 sq. yds.

2. The plaintiff and defendants are descendants of a common

ancestor namely late Sh. Ganga Ram Gupta. Late Sh. Ganga Ram Gupta

had two sons namely Sh. Murani Lal Gupta and Sh. Girdhari Lal Gupta.

Plaintiff and defendants No.1 to 3 are descendants of late Sh. Murari Lal

Gupta, while defendants No.4 to 7 are descendants of late Sh. Girdhari

Lal Gupta. Sh. Murari Lal Gupta acquired the suit property. He

constructed a house comprising of ground floor and first floor with

partial construction over the second floor of the said house. The suit

property was registered in the name of Late Murari Lal Gupta but it is

the admitted position that half of the funds for purchase of plot as well

as for construction were contributed by late Girdhari Lal Gupta.

3. Late Sh. Murari Lal Gupta made a Will dated 30.11.1984

concerning the said house by virtue of which late Sh. Murari Lal Gupta

bequeathed first floor of the said house to the family members of his

younger brother namely Sh. Girdhari Lal Gupta while bequeathing the

rest of the entire property to his four sons. Sh. Murari Lal Gupta

expired on 6.12.1986.

4. Out of the 4 sons of late Sh. Murari Lal Gupta, plaintiff and

defendants No.2 and 3 are still alive while his 4 th son namely Sh. Radha

Krishan Gupta expired on 14.8.1997. He is now survived by his wife

and a married daughter who are being impleaded as defendant Nos. 1

(a) and (b) to this suit.

5. Sh. Girdhari Lal Gupta expired in the year 1966 and is

survived by his wife namely Smt. Sabaj Kali Gupta who is impleaded

as defendant No.4 and his two living sons have been impleaded as

defendant Nos.5 and 6. His third son namely Sh. Kishan Gupta expired

on 7.10.1994 and is presently survived by his widow, two sons and

three daughters who are being impleaded as defendants No.7(a) to (f)

respectively.

6. As per the Will left by late Sh. Murari Lal Gupta, only the

first floor of the suit property falls to the shares of defendant Nos.4 to 7

while rest of the house comprising of the ground floor and the second

floor and the land underneath is to be shared equally by plaintiff and

defendants No.2 and 3 in the proportion of one fourth each and to the

extent of one eight each by defendant Nos.1(a) and (b).

7. After the death of late Sh. Murari Lal Gupta and late Sh.

Girdhari Lal Gupta, the suit property still continues to be joint amongst

the parties to the present suit.

8. A preliminary decree was passed by the court on 23rd March,

2006 to the following effect :

"i. The plaintiffs together will get 1/4 th of the half share of the branch of Late Murari Lal Gupta.

ii. The defendant Nos.1(a) and 1(b) shall together get 1/4th out of the half share of Late Murari Lal Gutpa.

iii. The defendants No.2 and 3 shall each get 1/4 th of the half share of Late Murari Lal Gupta.

iv. The defendant Nos.5 and 6 will each get 1/3 rd of the half share of Late Girdhari Lal Gupta; and

v. The defendant Nos.7 (a to f) together get 1/3 rd of the half share of Late Girdhari Lal Gupta."

9. On the same date, a local commissioner was also appointed

to ascertain whether the suit property can be divided by metes and

bounds. The local commissioner filed a report on 21st April, 2006. After

taking measurements of all the rooms existing in the suit property and

the occupation and possession of the parties as regards the suit property,

it is stated that the suit property cannot be divided by metes and bounds

and the entire property would have to be demolished for that purpose.

10. The defendant No.3 Sh. Bhagwan Krishan Gupta aggrieved

by the abovesaid order of 23rd March, 2006 filed an appeal before the

Division Bench being FAO No.268/2006 which was dismissed on 23rd

May, 2006. Thereafter, a Special Leave Petition was filed by the

defendant No.3 in the Supreme Court and the matter was remanded to a

Division Bench of this Court to deal with the construction of the Will

executed by Sh. Murari Lal Gutpa.

11. The Division Bench heard the matter on merits and applying

the Arm Chair Rule to para 3 of the Will, dismissed the appeal on 20th

December, 2007 with cost of Rs.5,000/-. The defendant No.3 again

filed an appeal being Civil Appeal No.1186/2009 against this order in

the Supreme Court which was dismissed on 23th February, 2009 with

cost of Rs.25,000/-. A review petition filed by the defendant No.3 was

also dismissed on 20th October, 2009.

12. The only objection raised by defendant No.3 is that the

barsati floor of the suit property should be divided between the four

sons of late Sh. Murari Lal Gupta as the entire property except the first

floor stands bequeathed to them.

13. The defendant No.3 also raised objection to the report of

Local Commissioner stating that existing structures can be damaged and

new flats can be constructed in accordance with the shares determined in

the preliminary decree to divide the suit property by metes and bounds.

14. It is not disputed that the Will dated 30th November, 1984

was executed by late Sh. Murari Lal Gupta during his life time by virtue

of which he bequeathed first floor of the suit property in favour of the

family members of his younger brother Sh. Girdhari Lal Gupta and the

ground floor and second floor portion was bequeathed by him in favour

of his four sons in equal shares. It is also not in dispute that the suit

property was purchased by Sh. Murari Lal Gupta and registered in his

name. But a declaration has been made in the will by late Sh. Murari Lal

Gupta that both he and his younger brother, Girdhari Lal Gupta

contributed equally for purchase of the suit property. The cost of

construction in the said property was also contributed equally by both of

them. This makes one fact clear, that though the sale deed has been

registered in the name of Sh. Murari Lal Gupta, the suit property was

equally owned by both. The testator also issued a letter to the Revenue

Authority for mutation stating that the suit property is owned jointly by

him and his brother, Late Sh. Girdhari Lal Gupta. A similar statement

was made in the affidavit filed by late Sh. Murari Lal Gupta in the

affidavit filed with the application for mutation.

All the parties to the suit except defendant No.3 agreed that the suit

property be sold to effect the partition in the suit property as per the

preliminary decree passed on 23rd March, 2006.

15. The objection raised by the defendant No.3 to the report of

the Local commissioner that the suit property may be divided by metes

and bounds by demolishing the entire existing structure and building

new flats in the newly constructed building cannot be accepted as all the

parties have agreed to sell the suit property and divide the sale proceeds

as per the shares determined in the preliminary decree.

16. Accordingly, final decree is passed. The suit property be

sold by public auction and sale proceeds be divided in the shares

mentioned in the preliminary decree. Mr. Tanuj Khurana, Adv. (Mobile

No.9811009959, X-3, Civil Wing, Tis Hazari) is appointed as Local

Commissioner and is directed to take necessary steps for inviting offers

from the public for auctioning the suit premises. For the purpose of

ascertaining the value of the suit property, the local commissioner shall

be at liberty to engage a government approved valuer who will submit

his report to the local commissioner. After the government approved

valuer gives his report, the local commissioner shall fix the same as the

basic price for inviting offers from the public for sale of the suit

premises. He shall take all further steps in pursuance thereof by

publishing a proclamation of sale in the newspaper and inviting bids in

respect of the suit premises. The bids shall be accompanied by a token

amount toward earnest money. After finalizing the highest bidder, a

report shall be submitted by the local commissioner to the court.

17. The fee of the local commissioner is tentatively fixed at Rs.

50,000/- to be shared equally by the parties in proportion of their

entitlement in the suit premises. Fee of the government approved valuer

shall also be paid in the same manner.

Renotify on 20th April, 2010 in the category of „directions‟.

MANMOHAN SINGH, J DECEMBER 15, 2009 nn