Delhi High Court
Rajendra Shanker vs Davendra Shanker on 11 April, 2012
Author: Pradeep Nandrajog
$~2, 3, 4, 7, 9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: April 11, 2012
+ RFA(OS) 15/2012
RAJENDRA SHANKER ..... Appellant
Represented by: Mr.M.M.Kalra, Advocate and
Mr.Kunal Kalra, Advocate.
versus
DAVENDRA SHANKER ....Respondent
Represented by: Mr.R.M.Sinha, Advocate and
Mr.Ashwani K.Dubey, Advocate.
FAO(OS) 64/2012
RAJENDRA SHANKER ..... Appellant
Represented by: Mr.M.M.Kalra, Advocate and
Mr.Kunal Kalra, Advocate.
versus
STATE & ANR. ....Respondents
Represented by:None for R-1.
Mr.R.M.Sinha, Advocate and
Mr.Ashwani K.Dubey, Advocate
for R-2.
FAO(OS) 65/2012
RAJENDRA SHANKER ..... Appellant
Represented by: Mr.M.M.Kalra, Advocate and
Mr.Kunal Kalra, Advocate.
versus
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
RFA(OS) Nos.15/2012 & 34/2012 Page 1 of 7
STATE & ANR. ....Respondents
Represented by: None for R-1.
Mr.R.M.Sinha, Advocate and
Mr.Ashwani K.Dubey, Advocate
for R-2.
RFA(OS) 34/2012
DAVENDRA SHANKER ..... Appellant
Represented by: Mr.R.M.Sinha, Advocate and
Mr.Ashwani K.Dubey, Advocate.
versus
RAJENDRA SHANKER ....Respondent
Represented by: Mr.M.M.Kalra, Advocate and
Mr.Kunal Kalra, Advocate.
FAO(OS) 147/2012
DAVENDRA SHANKER ..... Appellant
Represented by: Mr.R.M.Sinha, Advocate and
Mr.Ashwani K.Dubey, Advocate.
versus
STATE & ANR. ....Respondent
Represented by: None for R-1
Mr.M.M.Kalra, Advocate and
Mr.Kunal Kalra, Advocate for R-2.
FAO(OS) 148/2012
DAVENDRA SHANKER ..... Appellant
Represented by: Mr.R.M.Sinha, Advocate and
Mr.Ashwani K.Dubey, Advocate.
versus
STATE & ANR. ....Respondent
Represented by: None for R-1
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
RFA(OS) Nos.15/2012 & 34/2012 Page 2 of 7
Mr.M.M.Kalra, Advocate and
Mr.Kunal Kalra, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
PRADEEP NANDRAJOG, J. (Oral)
CM No.6328/2012 (exemption) and CM No.6329/2012 (delay)
in RFA(OS) No.34/2012; CM No.6368/2012 (exemption) and CM
No.6369/2012 (delay) in FAO(OS) No.147/2012; and CM
No.6374/2012 (exemption) and CM No.6375/2012 (delay) in
FAO(OS) No.148/2012
Allowed, subject to just exceptions.
RFA(OS) Nos.15/2012 and RFA(OS) No.34/2012; and
FAO(OS) Nos.64/2012, 65/2012, 147/2012 and 148/2012
1. Late Shri Damodar Das Mathur who died on
February 07, 1995 and late Dr.R.D.Mathur who died on
October 28, 1995 were real brothers. Whereas Dr.R.D.Mathur
died issueless, Shri Damodar Das Mathur was blessed with two
sons named Rajendra Shanker and Davendra Shanker.
2. With respect to property bearing Municipal No.104,
Jor Bagh, New Delhi-110003, registered owner whereof was
late Shri Damodar Das Mathur, a will was set up by Devendra
Shanker, stated to have been executed by Damodar Das
Mathur on April 12, 1994. He set up another will stated to
have been executed by late Dr.R.D.Mathur on April 26, 1994.
As per the first will, late Shri Damodar Das Mathur made a life
term bequest of the property in question in favour of his
brother Dr.R.D.Mathur, and thereafter his i.e. Dr.R.D.Mathur's
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
wife. This was a life interest conferred. The ultimate
beneficiaries were Rajendra Shanker and Davendra Shanker,
sons of Damodar Das Mathur. He bequeathed the ground floor
and first floor of the property to Davendra Shanker and the
partly constructed barsati floor to Rajendra Shanker. This was
also the bequest made by Dr.R.D.Mathur, probably for the
reason, if there was any dispute to he having acquired a life
interest in the property or a residual interest under the will
executed by his brother.
3. Rajendra Shanker sought partition of the said
property vide CS(OS) No.985/2002. He claimed intestate
succession. Davendra Shanker thereupon filed two Probate
Petitions seeking probate of the wills dated April 12, 1994 and
April 26, 1994, which Probate Petitions were transferred to the
Original Side of this Court and registered as CS(OS)
No.1701/2006 and CS(OS) No.1702/2006.
4. Needless to state, CS(OS) No.985/2002, CS(OS)
No.1701/2006 and CS(OS) No.1702/2006 were clubbed and the
main issue settled was: Whether the two wills propounded by
Davendra Shanker were the last legal and valid testaments of
late Shri Damodar Das Mathur and late Dr.R.D.Mathur and
their effect.
5. Vide impugned judgment and decree dated
December 05, 2011, the learned Single Judge has held that the
two wills were duly proved and hence has ordered a probate to
be granted with will annexed. However, it has been held that
the subject property was treated as the Joint Family Property
by late Shri Damodar Das Mathur and his brother
Dr.R.D.Mathur, in which the two sons of late Shri Damodar Das
Mathur i.e. Rajendra Shanker and Davendra Shankar were co-
parceners thereof. Thus, the view taken by the learned Single
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
Judge is that Damodar Das Mathur, Dr.R.D.Mathur, Rajendra
Shanker and Davendra Shanker would be 1/4th owner each of
the property in question; as a result thereof, the learned Single
Judge has held that under the two wills bequest would require
the subject property to be partitioned by declaring the share of
Rajendra Shanker as 1/4th and that of Davendra Shanker as
3/4th i.e. the two wills have been held to operate only qua the
1/4th interest each of Damodar Das Mathur and Dr.R.D.Mathur
in the subject property.
6. As per the impugned judgment, the learned Single
Judge has held that this 3/4th and 1/4th share in the property
would be vertically owned by the two brothers.
7. Yet in spite thereof, the final direction issued is that
a Local Commissioner stands appointed to suggest partition of
the property by metes and bounds.
8. Both brothers i.e. Rajendra Shanker and Davendra
Shanker are aggrieved by the impugned decree and this
explains two Regular First Appeals and four First Appeals
against Orders. Three appeals have been filed by Rajendra
Shanker and three by Davendra Shanker.
9. The appeals filed by Rajendra Shanker had come up
for hearing on February 10, 2012 when notice was issued to
his brother returnable for today. In the interregnum, Davendra
Shanker has filed three appeals which are listed for
preliminary hearing today.
10. When the appeals were taken up for hearing,
learned counsel for the parties informed that the two brothers
have entered into a settlement and in respect whereof a joint
statement of Shri Rajesh Mohan Sinha, Advocate and Shri
M.M.Kalra, Advocate has been recorded. The statement has
been signed by the two learned counsel. Separately,
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
statement of Davendra Shanker and Rajendra Shanker have
also been recorded in affirmation of the contents of the
statements made by the two learned counsel, which statement
embodies the terms of the settlement between the parties.
11. Needless to state, the six appeals stand disposed of
recording the settlement between the parties as recorded in
the joint statement made by Shri Rajesh Mohan Sinha and Shri
M.M.Kalra, Advocates. The said statement would require no
decree to be drawn up as regards CS(OS) No.1701/2006 and
CS(OS) No.1702/2006, which two suits, actually being Probate
Petitions, stand disposed of as compromised. No instrument
pertaining to succession need be issued.
12. RFA(OS) No.15/2012 and RFA(OS) No.34/2012 stand
disposed of decreeing CS(OS) No.985/2002 in terms of the
joint statement made by Shri Rajesh Mohan Sinha, Advocate
and Shri M.M.Kalra, Advocate.
13. Decree be drawn accordingly in the two appeals.
14. Since as per the settlement between the parties
Shri Rajendra Shanker has to occupy the barsati of property
No.104, Jor Bagh, New Delhi-110003, we take on record the
undertaking of Shri Davendra Shanker that he would, by today
evening, remove the lock at the entrance of the barsati floor
and would permit his brother Rajendra Shanker to put his lock
on the barsati floor. We also take on record the statement
made by Shri Rajendra Shanker and Shri Davendra Shanker
that they would not obstruct each other in the use and
enjoyment of the existing construction which as of today
consists of a ground floor, a first floor and a barsati floor, and
would co-operate with each other to ensure that within the
next four years the property is re-developed in sync with the
ethos of the mutual understanding of the parties as reflected
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
in the statement made by Shri Rajesh Mohan Sinha, Advocate
and Shri M.M.Kalra, Advocate.
15. No costs.
CM No.2590/2012 in RFA(OS) No.15/2012 (Stay);
CM No.2585/2012 in FAO(OS) No.64/2012 (Stay);
CM No.2596/2012 in FAO(OS) No.65/2012 (Stay);
CM No.6327/2012 in RFA(OS) No.34/2012 (Stay);
CM No.6367/2012 in FAO(OS) No.147/2012 (Stay);
CM No.6373/2012 in FAO(OS) No.148/2012 (Stay)
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(SIDDHARTH MRIDUL)
JUDGE]
APRIL 11, 2012
dk
FAO(OS) Nos.64/2012, 65/2012, 147/2012 & 148/2012 and
