Delhi High Court
Ajai Kumar Goel vs Dinesh Kumar Goyal & Ors. on 16 August, 2011
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No.339/2010
% Judgment decided on : 16.08.2011
Ajai Kumar Goel .......Plaintiff
Through: Ms. Amrita Sanghi, Adv. with
Mr. Dhruv Rohatgi, Adv.
Versus
Dinesh Kumar Goyal & Ors. .....Defendants
Through: Mr. Rakesh Kansal, Adv. for D-1
Mr. Divjyot Singh, Adv. for D-2 & 3
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
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?
MANMOHAN SINGH, J.
1. The present suit for partition has been filed by the plaintiff
for partition of the property bearing No. A-68, Swasthya Vihar, Vikas
Marg, New Delhi which belonged to Late Dr. S.S. Goyal. Plaintiff is
one of the four surviving sons of Late Dr. S.S. Goyal and thus, a class-
I heir.
2. Dr. S.S. Goyal died intestate in July, 2000 and was
survived by his wife, Smt. Lila Goyal and four sons i.e. the plaintiff
and defendant Nos. 1 to 3. Thus, the suit property was inherited by the
legal heirs each getting 1/5th share in the said undivided property. The
said arrangement remained unchanged until the death of Smt. Lila
Goyal.
3. It is stated by the plaintiff that before her death Smt. Lila
Goyal had executed a Will, dated 01.02.2007 and bequeathed her 1/5 th
share in the suit property to her sons in four equal parts. Therefore, by
virtue of the Will dated 01.02.2007 the plaintiff and defendants Nos. 1
to 3 became co-owners of said undivided suit property, each holding
1/4th share. The suit property includes a residential building consisting
of two floors built up on an area of 282 sq. yards. Further, it is stated
that the said arrangement is still continuing.
4. It is averred in the plaint that since 1985, defendant No. 1
has been in possession of the first floor of the suit property consisting
of two rooms, drawing room, one bathroom, lobby, one kitchen,
terrace, balcony and courtyard. The plaintiff is in possession of the
ground floor of the suit property. The defendant No. 2 lives in a
separate residence and defendant No.3 has moved outside the country,
however, both of them are entitled to 1/4th share each in the suit
property.
5. Further it is stated in the plaint that the co-owners of the
suit property want to sell their share in the suit property after the
partition but, since the rights of the parties on the suit property are
undivided, therefore, any decision with respect to the suit property can
only be taken by the consent of all the co-owners, but the defendant
No.1 is denying their requests for partition of the suit property and is
using his self acclaimed right with respect to possession of the suit
property to the exclusion of other legal heirs/co-owners. Therefore, the
plaintiff has filed the present suit.
6. Defendant Nos. 2 and 3 have also filed their written
statement wherein they have prayed that the suit of the plaintiff be
decreed as prayed for by the plaintiff.
7. The present suit has been contested by only defendant No.1
who has filed his written statement wherein it is stated that the suit of
the plaintiff is liable to be dismissed for non-joinder of a necessary
party as the real sister of the parties namely Smt. Usha Garg has not
been impleaded as a party to the present suit. Further it is stated that
the Will dated 01.02.2007 is a forged and fabricated document and the
same was not executed by Late Smt. Lila Goyal in her sound mind and
senses.
8. The plaintiff as also filed the relinquishment deed of their
sister Smt. Usha Garg. In the replication filed on behalf of the plaintiff
it is stated Smt. Usha Garg is not a necessary or proper party in the
present suit and she had already relinquished rights qua the suit
property vide relinquishment deed dated 02.08.2000 marked as
ANNEXURE-P-1, and was given an amount of Rs.10 lac by their
mother Late Smt. Lila Gayal and the fact is also mentioned in her will
dated 01.02.2007. The affidavit of Smt. Usha Garg, to this effect is
marked as ANNEXURE-P-2.
9. I have heard learned counsel appearing on behalf of
defendant No.1. In view of the admission made by the parties, it is
clear that the property bearing No. A-68, Swasthya Vihar, Vikas
Marg, New Delhi be divided in 4 equal shares i.e. plaintiff and the
three defendants.
10. The objections raised by the defendant No.1 are without
any merit, therefore the same are rejected. The defendant No.1 has
failed to assign any reason and not placed any material on record to
prove that the Will executed by mother is a forged document.
11. Accordingly, a preliminary decree is passed holding that
the property bearing No. A-68, Swasthya Vihar, Vikas Marg, New
Delhi shall be partitioned in four equal shares i.e. plaintiff and
defendants No.1 to 3.
12. As agreed by the parties Mr. Lalit Gupta, Advocate,
Telephone No. 011-23914140 is appointed as a Local Commissioner
to verify the suit property in dispute and to file a report with regard to
mode and manner in which the suit property could be partitioned by
metes and bound within 6 weeks. The fee of the Local Commissioner
is fixed at Rs.60,000/- which shall be shared by the parties.
13. List this matter on 09.01.2012 for awaiting the report of
the Local Commissioner.
MANMOHAN SINGH, J.
AUGUST 16, 2011
