Delhi High Court

Sh. Shashi Kant Khosla & Anr. vs Smt. Mamta Dhawan & Anr. on 4 July, 2011

Author: Manmohan Singh

*            HIGH COURT OF DELHI : NEW DELHI

+                      CS (OS) No. 369/2009

%                      Judgment decided on :      4th July, 2011


SH. SHASHI KANT KHOSLA & ANR.                 ......Plaintiffs
                 Through: Mr. Atul Bandhu, Advocate

                       Versus

SMT. MAMTA DHAWAN & ANR.                                .....Defendants
              Through: None


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. After filing the suit the plaintiffs have also filed the

application being IA No.6398/2010 under Order 12 Rule 6 for passing

the decree in view of the admission made by the defendants in the written

statement.

2. In view of the statement made by the parties in order dated

10.11.2009, the matter was referred to Delhi High Court Mediation and

Conciliation Centre, however, the settlement could not be arrived at

between them.

3. I have gone through the present application and have also

heard the learned counsel for the parties.

4. The facts of the case are that the plaintiffs, Shri Shashi Kant

Khosla and Smt. Prem Ahluwalia, have filed the present suit for partition

against the defendants Smt. Mamta Dhawan and Shri Sanjay Khosla.

The facts of the case are that Shri Om Prakash Khosla, deceased, a Hindu

died on 03.12.2007 at New Delhi, leaving behind the following four

children:

i)Sh. Shashi Kant Aged 60 years Son Plaintiff No.1

ii)Smt. Prem Ahluwalia Aged 63 years. Daughter Plaintiff No.2 Khosla nee Prem Khosla W/o Sh.Sagar Ahluwalia D/o late Sh. Om Prakash

iii)Smt. Mamta Khosla Aged 50 years. Daughter Defendant 1 nee Mamta Dhawan W/o Sh. Naresh Dhawan, d/o Lt. Sh. Om Prakash Khosla

iv)Sh. Sanjay Khosla Aged 48 years. Son Defendant 2

5. It is the admitted case of the parties that the deceased Om

Prakash Khosla at the time of his death left behind both moveable and

immovable properties and assets, the details of which are given as under:-

"A. Immovable Properties

i) A one storeyed house, with one room bath

room and kitchen at the first floor, 325 Sq. Yards bearing No.C-592, Defence Colony, New Delhi;

ii) An Industrial Plot bearing No.66, Block II, Badli Industrial Estate, Delhi, by admeasurements 500 sq. yards.

            B. Moveable Properties

                I.      Security deposits
                II.     Saving Bank Accounts
                III.    Post Office Deposits
                IV.     Current Bank Accounts
                V.      Shares & Debentures
                VI.     Deposits in Banks
                VII.    UTI & Govt. Securities
                VIII.   LIC, ICICI, IDBI Banks, Bonds,
                IX.     Jewellery
                X.      Cash in Banks;
                XI.     Household goods & other Misc. assets or
                        movable properties."

6. It is not denied by the parties that the plaintiffs and

defendants, being heirs of the deceased late Shri Om Prakash Khosla are

the co-owners and co-sharers in the various moveable and immoveable

properties left behind by the deceased each having equal share. Shri Om

Praksh Khosla also left a Will, registered as at No.329, in Book No.3

Vol. N486 on pages 23 to 25 on 19.4.2006 with Sub-Registrar-VII, New

Delhi bequeathing the properties aforesaid and acquired thereafter to the

parties to the suit in equal shares.

7. Admittedly, the original of the said will was lying in the

locker with State Bank of Patiala, Defence Colony, New Delhi. In the

said will the deceased had recorded that:

"my heirs will be bound irrevocably by "my decision of 1/4th share in both the properties". Further the deceased also recorded that his "movable assets being security deposits, saving and current Bank Accounts, post office account, shares, debentures, deposit in bank, UTI, Govt. Securities, LIC, ICICI Bond, IDBI Bank Bonds, Jewellery, Cash, household and other assets over any other movable properties I may acquire during my life time, the same shall devolve upon my aforesaid four children in equal shares."

8. It is stated in the plaint that parties are in joint physical

possession of the immoveable property. The plaintiffs had made a

request to the defendants to amicably partition the properties by metes

and bounds in 4 shares, or to sell the said property and share the cash

proceeds thereof equally as the request of the plaintiffs was not acceded

to by the defendants, therefore, the present suit has been filed by

plaintiffs. Upon service, both the defendants have filed the written

statement raising certain pleas, the details of which are given as under:-

(i) That no site plan has been filed with the plaint, the

complete details of the immoveable properties i.e. the house

in Defence Colony and industrial plot bearing No.66, Block

II, Badli Industrial Estate, Delhi were not given by the

plaintiff in the plaint. It is denied by the defendant No.1 that

the properties are governed by the provisions of Hindu

Succession Act, the plaintiffs ought to have sought the

probate or administer the said registered Will rather to file

the present suit for partition which is not maintainable.

(ii) That the property situated at Defence Colony is in

the actual physical possession of the defendants. The

plaintiffs have merely put their locks on one room on the

ground floor and one room on the terrace but they are not in

actual physical possession of the said property. As regards

the other property i.e. industrial plot bearing No.66, Phase-

II, Badli Industrial Estate, New Delhi, it is in joint physical

possession of the plaintiffs and the defendants. At present

the beneficial enjoyment of the said property is with the

plaintiff No.2 and the defendant No.2. The father of the

parties had given one garage room of the Defence Colony

house to a widowed lady, namely Ms. Raj Kaur, as a

permissive licensee and that lady is still using the said room

at C-592, Defence Colony, New Delhi and unless Mrs. Raj

Kaur vacates the premises, the partition of the property of

the Defence Colony is not possible.

9. From the entire written statement filed by the defendant No.1

it transpired, that as far as the existence of immoveable properties as well

as moveable assets is concerned, the defendant No.1 has not denied the

factum of the same. The defendant No.1 has also not denied the

existence of the registered Will of late Shri Om Prakash Khosla rather the

defendant No.1 has stated in the written statement that the defendant

No.1 has been requesting the plaintiffs to get the Will dated 19.04.2006

probated or administered in accordance with law and divide the

properties in question. However, it was the plaintiffs who have refused

to accede to the demand of the defendant No.1.

10. The plea of the defendant No.2 in the written statement in

addition to grounds taken by the defendant No.1 is that the plaintiffs have

not been virtually residing in the property that is C-592, Defence Colony,

New Delhi. The plaintiff No.1 resides at Panchkula and the plaintiff

No.2 at Vasant Kunj, New Delhi. It is wrongly stated in the plaint that

they are in joint possession of the suit property. The objection was also

raised by the defendant No.2 that the suit has not been valued properly

for the purposes of court fee and the plaintiff has not approached the

Land and Development Authority, Government of India for mutation of

the plot of land i.e. House No.C-592, Defence Colony, New Delhi and

filed the suit in a great hurry even without serving the notice for partition

of the property, therefore, there is no cause of action for filing the present

suit. The other objection raised by the defendant No.2 is that the

possession of one portion of property at Defence Colony is occupied by

one lady tenant. The said fact has not been disclosed by the plaintiffs nor

the said tenant was evicted before filing of the suit, therefore, the

Defence Colony property cannot be partitioned, unless the said portion is

vacated by the tenant.

11. It appears from the order dated 08.02.2010 that with the

consent of parties Ms. Raashi Beri, Advocate was appointed as a Local

Commissioner to open the locker No.33 maintained with the State Bank

of Patiala, Defence Colony, New Delhi in the presence of the parties and

ordered that the Local Commissioner shall file the report of inventory to

this Court and parties agreed that the articles and documents, if any

found, be restored to the aforementioned locker.

12. The Local Commissioner filed her report on 24.02.2010. The

operative portion of the report reads as under:

"Pursuant to the order, on 17.02.2010, I sent notice to the parties as well as to Mr. J.B.Singla, Branch Manager, State Bank of Patiala, Defence Colony, requesting them to be present at the aforesaid bank on 22.02.2010 at 11 am. The plaintiffs and the defendants presented themselves at the bank on 22.02.2010 at 11 am. The document marking the presence of the parties to carry out the aforesaid order is attached as Annexure `I'.

The key to the disputed locker no.33 was produced by Plaintiff No.1 Sh. Shashi Kant Khosla. The disputed locker was opened by me in the presence of the plaintiffs and the defendants, as well as the Bank Manager. The locker contained one plastic pouch containing various pieces of jewellery. The inventory of the articles found in the locker is attached as Annexure `II'. As per the orders of the court, the aforesaid articles were perused by the parties and were restored to the locker thereafter.

The locker also contained a brown paper envelope containing an original will of Mr. Om Prakash Khosla, consisting of three pages. The details of the document found in the locker are attached as Annexure `III'. The parties wished to obtain copies of the said documents. As per the orders of the Hon'ble High Court of Delhi, copies were made of the aforesiad original will and I duly certified the copies and gave one copy each to all the parties. A copy of the original will found in the locker is attached as Annexure `IV'."

13. In the written statement filed by the defendants they have

admitted the fact that a registered will was left by their father. The said

admission was made by the defendant No.1 in para a & d of the

preliminary objection and in para 3 and 4 of the reply. Similarly, the

defendant No.2 in the written statement has specifically admitted that a

Will was executed by Shri Om Prakash Khosla, father of the parties

which was got registered with the Sub-Registrar.

14. In view of the admission made by the parties, it is clear that

the property of late Shri Om Prakash Khosla has to be divided in terms of

the Will as parties in the matter are the only legal heirs of late Shri Om

Praksash Khosla and the subject matter of the property has to be divided

in 4 equal shares i.e. two plaintiffs and two defendants. The other