Smt. Swaran Katyal And Ors. vs Sh. Surinder Pal Kapoor And Ors.
2012 Latest Caselaw 6374 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.432/1999

%                                                      31st October, 2012

SMT. SWARAN KATYAL AND ORS.                   ..... Plaintiffs
                    Through: Mr. Hemant Malhotra, Advocate
                             with Mr. Pankaj Malhotra,
                             Advocate.
             versus


SH. SURINDER PAL KAPOOR AND ORS.              ..... Defendants
                   Through: Mr. Mahesh Srivastava, Advocate
                            with Mr. Vaibhav Srivastava,
                            Advocate for defendant No.1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?    Yes


VALMIKI J. MEHTA, J (ORAL)

1.

This suit for partition is filed by four plaintiffs with respect

to the property bearing No.A-5, C.C. Colony, opposite Rana Pratap Bagh,

on G.T. Road, in the revenue estate of village Rajpur Chhawani, Delhi

(hereinafter referred to as the „suit property‟). Plaintiff Nos.1, 3 and 4

and defendant Nos.2 and 3 are daughters of late Sh. Ram Sahai Kapoor

and late Smt. Satyawati Kapoor. Plaintiff No.2 and defendant No.1 are

sons of late Sh. Ram Sahai Kapoor and late Smt. Satyawati Kapoor. The

property is a building built on a plot of 321.25 sq. yds. Admittedly, the

suit property was originally owned by Sh. Ram Sahai Kapoor who was

the father of the parties. The suit property after the death of the father Sh.

Ram Sahai Kapoor fell to the exclusive/sole ownership of the mother

Smt. Satyawati Kapoor, and since this is an admitted position before me

(as per the statement of the respective counsel), therefore, I am not giving

other factual details as to how the mother Smt. Satyawati Kapoor became

the sole owner of the suit property.

Smt. Satyawati Kapoor died on 5.9.1998. In law, on Smt.

Satyawati Kapoor dying intestate, all the parties would be equal co-

owners of the suit property, however, in the present case there are two

aspects which can change this position. The first aspect is of Smt.

Satyawati Kapoor having during her life-time executed and registered a

sale deed dated 24.4.1990 in favour of the plaintiff No.1/Smt. Swaran

Katyal with respect to front portion of first floor of the suit property. The

second aspect is as to whether late Smt. Satyawati Kapoor had executed

and registered the set of documents including the sale deed dated

12.8.1998 in favour of the defendant No.1 of the suit property. Therefore,

if there is a valid sale deed dated 24.4.1990 in favour of the plaintiff No.1

of the front portion of first floor of the suit property, the property which

would remain at the time of death of Smt. Satyawati Kapoor on 5.9.1998

would be the property less this front portion of first floor. Also, if the

sale deed dated 12.8.1998 is found to have been duly executed by late

Smt. Satyawati Kapoor in favour of the defendant No.1, then, there would

be no estate of late Smt. Satyawati Kapoor for devolving on the parties to

the suit. In sum and substance, this Court in order to decide the disputes

in the present suit has to essentially examine the validity of the sale deeds

dated 24.4.1990 (in favour of the plaintiff of the front portion of first

floor) and 12.8.1998 (in favour of the defendant No.1 qua the entire suit

property).

2. In view of crystallizing of the main disputes between the

parties in terms of the aforesaid facts, I need not set out in detail the

respective arguments made in the pleadings of the parties. Suffice to

state that defendant No.1 challenges the sale deed dated 24.4.1990 in

favour of the plaintiff No.1 qua the front portion of first floor as bogus

whereas the plaintiffs challenge the sale deed dated 12.8.1998 in favour

of the defendants no.1 as being null and void inasmuch as the same was

obtained by fraud and/or when late Smt. Satyawati Kapoor was not in a

position to understand or did not understand the nature of the documents

on 12.8.1998. The plaintiffs also additionally plead the facts of lack of

passing of consideration and the inadequacy of consideration as grounds

to challenge the sale deed dated 12.8.1998 which is relied upon by the

defendant No.1.

3. The following issues were framed in this suit on 8.10.2002:-

"1. Whether defendant No.1 is the absolute owner of the suit property in question? If so its effect? OPD

2. Whether the sale deed executed by late Smt. Satyawati Kapoor in favour of defendant No.1 was obtained by fraud or misrepresentation? OPD

3. Whether the plaintiff No.1 is the owner of front portion of the first floor of the suit property? OPP

4. If issue No.1 is decided against defendant No.1, whether the unsold portion of the suit property is liable to be partitioned amongst the plaintiffs and defendants? If so to what effect? OPD

5. Whether late Smt. Satyawati Kapoor was competent to sell, or transfer or dispose of the entire suit property? OPD

6. Whether late Smt. Satyawati Kapoor was physically and mentally fit to execute the documents on 12.8.1998? OPP

7. Whether the sale deed dated 12.8.1998 executed by late Smt. Satyawati Kapoor in favour of the defendant No.1is null and void? OPP

8. If issue No.1 is decided in favour of the plaintiff, whether the defendant No.1 is liable to render the accounts to the plaintiffs in respect of the rent realised from the various tenants in the suit property? If so from which date and to what amount? OPP

9. Whether the plaintiffs are entitled to injunction as prayed for against the defendant No.1? OPP

10. Relief."

4. Issue nos. 3 and 5 are as regards the validity of the sale deed

dated 24.4.1990 executed by Smt. Satyawati Kapoor in favour of the

plaintiff no.1. These issues therefore can be decided together and are

accordingly being decided together.

5. The certified copy of the sale deed dated 24.4.1990 has been

proved on record and exhibited as Ex.PW1/2 by both Sh. Jogender Pal

Kapoor as PW-1 and Smt. Swarn Katyal as PW-2. I may at this stage

hasten to clarify that as per the affidavits by way of evidence filed, the

plaintiff no.1 Smt. Swaran Katyal was PW-1 however, subsequently, she

was treated as PW-2 and Sh. Jogender Pal Kapoor who originally was

PW-2 was treated as PW-1. This took place during the cross-examination

of these plaintiff Nos. 1 and 2 on 25.11.2003 and 26.3.2004 respectively.

There is no cross objection by the defendant no.1 to the

mode and manner of proof of the sale deed Ex.PW1/2. Once there is no

objection to exhibition of this document, this document would stand

validly proved and there was no requirement to get the original in terms

of the judgment of the Supreme Court in the case of R.V.E.

Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple &

Anr., (2003) 8 SCC 752. I would like to further state that in fact there is

no cross-examination also of both the witnesses PW-1 and PW-2 that the

sale deed dated 24.4.1990, Ex.PW1/2 is not a valid document but a bogus

document as is alleged in para-7 of the written statement and pursuant to

which, issue nos. 3 and 5 which are being disposed of were framed.

6. At this stage of final arguments the counsel for the plaintiffs

wanted the case to be adjourned to file the income tax records of the

plaintiff no.1 from 1990 to 1998, and which income tax records were

sought to be relied upon to show that the plaintiff no.1 had in fact shown

the sale deed dated 24.4.1990, Ex.PW1/2 in her income tax records,

however, since there is no plea of the defendant no.1 that the sale deed

Ex.PW1/2 is a paper/nominal transaction, I need not adjourn the case

inasmuch as once the sale deed is duly proved and there is no cross-

examination to this aspect I need not examine the issue of acting upon the

sale deed by filing of the income tax returns by the plaintiff no.1

7. I therefore, hold that the plaintiff no.1 has duly proved the

sale deed Ex.PW1/2 and therefore plaintiff no.1 would be the owner of

the front portion of first floor of the suit property as specified in the sale

deed dated 24.4.1990, Ex.PW1/2. These issue Nos. 3 and 5 are therefore

decided in favour of the plaintiffs, more particularly, plaintiff no.1 and

against the defendant no.1

8. Issue nos. 1, 2,6 and 7 can be dealt with together inasmuch

as these are issues which will decide the validity of the sale deed dated

12.8.1998 relied upon by the defendant no.1 for claiming ownership of

the suit property. The sale deed dated 12.8.1998 has been proved and

exhibited in the evidence led by the defendant no.1. This sale deed has

been proved and exhibited as Ex.DW1/1. This sale deed is duly

registered and therefore, the fact that the same exists in the records of the

sub-Registrar cannot be, and was in fact not disputed on behalf of the

plaintiffs. What the plaintiffs contend is that the sale deed is null and

void for the following reasons:-

(i) The suit property as in the year 1998 was worth about ` 70 lacs and

therefore, the mother late Smt. Satyawati Kapoor would not have sold

this property to the defendant no.1 for paltry sum of ` 4.5 lacs, and,

taking note of the fact that it is not the case of the defendant no.1 that the

paltry consideration is on account of any love and affection of the mother

Smt. Satyawati Kapoor, and because of which the sale price was at a

drastically low figure of ` 4.5 lacs.

(ii) The fact that the transaction encompassed in the sale deed dated

12.8.1998 in fact was not understood or valid becomes clear from the fact

that even this stated amount of ` 4.5 lacs is not proved to have been paid

by the defendant no.1 to the mother Smt. Satyawati Kapoor.

(iii)(a) The mother late Smt. Satyawati Kapoor when she executed

the sale deed dated 12.8.1998 in favour of the defendant no.1 was not in

that state of physical and mental condition so as to understand the nature

of the document which she was executing and that this document was got

fraudulently executed from the mother late Smt. Satyawati Kapoor by the

defendant no.1.

(b) That the sale deed dated 12.8.1998 has not been executed by the

mother late Smt. Satyawati Kapoor in sound mind becomes clear from the

fact that the sale deed dated 12.8.1998 if executed knowingly would only

have been for the suit property less the front first floor portion which was

already sold under the sale deed dated 24.4.1990 by the mother Smt.

Satyawati Kapoor to the plaintiff No.1. The fact of the matter is that

there is no reference of the earlier sale deed dated 24.4.1990 in the sale

deed dated 12.8.1998 thus showing that the executant thereof (viz the

mother late Smt. Satyawati Kapoor) did not understand and hence was

not in knowing of the document being a sale deed for the suit property,

and which sale deed is therefore accordingly void and of no legal effect.

9. In response to the arguments urged by the counsel for the

plaintiff, the counsel for the defendant no.1 argues that once the sale deed

dated 12.8.1998 is duly proved to have been executed and registered

legally it makes no difference as to whether consideration is or is not

transferred to mother Smt. Satyawati Kapoor. It is also argued that merely

because the mother Smt. Satyawati Kapoor was 84 years of age, it cannot

be presumed that she was not in a sound mental state to execute the sale

deed dated 12.8.1998. The judgments of the Supreme Court in the cases

of Vidhyadhar Vs. Mankikrao and Anr. JT 1999 (2) SC 183 and Subhas

Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Ors. AIR

1967 SC 878 are relied upon for the aforesaid respective propositions.

10(i). Let us now examine each of the three contentions as stated in

para 8 above to determine the validity of the sale deed dated 12.8.1998

Ex.DW1/1.

(ii) So far as the first aspect is concerned, the plaintiffs have led

affirmative evidence that the value of the suit property was ` 70 lacs on

12.8.1998. Counsel for defendant no.1 admits that there is absolutely no

cross-examination as to the value of the property being ` 70 lacs in the

year 1998. Therefore, it stands established that the suit property was of

the value of ` 70 lacs in August, 1998. Once the value of the suit

property was of ` 70 lacs in August, 1998, the onus of proof shifted upon

defendant no.1 to show that as to what was the reason why the mother

Smt. Satyawati Kapoor would execute the sale deed of this property on

12.8.1998 for a drastically low amount of `4.5 lacs and not in and around

the figure of ` 70 lacs. Counsel for defendant no.1 again conceded before

me that there is no pleading in the written statement that the mother late

Smt. Satyawati Kapoor executed the sale deed Ex.DW1/1 at a low price

of ` 4.5 lacs on account of motherly love and affection. The only plea

raised in the written statement is that the mother executed this sale deed

dated 12.8.1998 in full senses and gave ownership of the suit property to

the defendant no.1.

(iii) Accordingly, in my opinion, this fact is proved by the

plaintiffs and against the defendant no.1 that it does not stand to reason as

to why the sale deed of a property of ` 70 lacs would be executed for an

amount of ` 4.5 lacs, and that too which amount as will be subsequently

discussed, in fact has not been transferred by the defendant no.1 to the

mother Smt. Satyawati Kapoor. I therefore, hold that the execution of the

sale deed for a paltry amount of `4.5 lacs is an extremely strong ground

to hold that the mother at the age of 84 years was not knowing that she

was in fact executing a sale deed of the suit property in favour of the

defendant no.1 inasmuch as, there is no reason why if there were normal

circumstances, there would be transfer of a property valued at ` 70 lacs

only for a sum of ` 4.5 lacs duly considering that it is not the case of the

defendant no.1 that the mother Smt. Satyawati Kapoor executed the sale

deed dated 12.8.1998 at a low consideration on account of motherly love

and affection.

11(i) The next aspect is whether the defendant no.1 has proved on

record that this sale consideration of ` 4.5 lacs was paid by him to the

mother Smt. Satyawati Kapoor, and if not then to what effect. The

applicability of the judgment of the Supreme Court in the case of

Vidhyadhar (supra) will also have to be examined so far as the facts of

the present case are concerned.

(ii) So far as the principle of law laid down in the case of

Vidhyadhar (supra) is concerned, the same cannot be disputed that mere

not passing of the sale consideration or a part of the sale consideration

may not in itself be enough to invalidate the sale deed, however, it is not

the stand of the defendant no.1 that the sale deed is valid although, the

consideration of ` 4.5 lacs is not paid, because in fact the stand of the

defendant no.1 is that consideration of ` 4.5 lacs was in fact transferred to

the mother late Smt. Satyawati Kapoor by the defendant no.1. On facts,

therefore, the judgment in the case of Vidhyadhar (supra) will have no

application where the admitted position was that part of the sale

consideration was not paid. Also, I may state that in the case of

Vidhyadhar (supra) it was only part of the sale consideration which was

not paid and therefore the Supreme Court relied upon provision of

Section 55(4)(b) of the Transfer of Property Act, 1882 to hold that if the

balance sale consideration is payable, then, the sale deed itself does not

become void but the remedy of the seller is to file a suit for recovery of

the balance sale consideration and the sale deed itself cannot be

challenged. Therefore on facts, once again, the judgment in the case of

Vidhyadhar (supra) will not apply to the facts of the present case where

not a single rupee is proved (as is discussed later) to have been paid to the

mother Satyawati Kapoor by the defendant no.1.

(iii) The sale deed Ex.DW1/1 cannot be said to have been proved

by the defendant No.1 as having been executed by the mother late Smt.

Satyawati Kapoor inasmuch as the defendant No.1 has failed to prove that

any consideration was transferred from the defendant No.1 to late mother

Smt. Satyawati Kapoor. One thing is non-payment of part of sale

consideration and another is non-payment of entire sale consideration.

Non-payment of part is indication of sale deed being executed in proper

senses, however when no consideration is at all paid, not even a paisa, in

itself this will be a strong factor to hold that the issue then becomes not of

passing of consideration but execution of the document in full senses.

Once the defendant No.1 fails to prove the passing of consideration to the

mother Smt. Satyawati Kapoor, this very strong factor leads this Court to

hold that the sale deed was not a sale deed executed in such a state of

mind by the mother that the mother understood what she was doing,

otherwise, the mother would have surely insisted and ensured that amount

of ` 4.5 lacs (assuming the sale deed could be for an amount of ` 4.5 lacs

instead of ` 70 lacs as stated above) would have been received by her and

which aspect of passing of consideration, as discussed below, the

defendant No.1 has miserably failed to prove.

(iv) The main reason for non-applicability of the judgment in the

case of Vidhyadhar (supra) to the facts of the present case is that the

judgment in the case of Vidhyadhar (supra) proceeds on the basis that

there was a valid sale deed whereas in the facts of the present case the

existence of the sale deed itself is questioned and it is alleged that the

same is null and void for reasons that the mother late Smt. Satyawati

Kapoor had no knowledge that she was in fact executing a sale deed

Ex.DW1/1 dated 12.8.1998 as regards the suit property. The judgment in

the case of Vidhyadhar (supra) accordingly has no application to the

facts of the present case.

12(i). The aspect now to be examined is as to whether the

defendant No.1 paid a sum of ` 4.5 lacs to the mother pursuant to the sale

deed Ex.DW1/1 dated 12.8.1998.

(ii) So far as this aspect is concerned, defendant No.1 has sought

to prove this factum by making an oral statement in his evidence as DW-

1 and by oral statements of his two witnesses i.e Sh. Ramesh Chander

Kaushik as DW-2 and Sh. Ravi Chopra as DW-3, and all of whom orally

without any documentary proof state that the defendant No.1 paid the

amount in cash to the mother after taking the loan of ` 2 lacs from the

DW-2 Sh. Ramesh Chander Kaushik and a sum of ` 2.5 lacs from the

witness DW-3 Sh. Ravi Chopra.

In my opinion, since the proof of payment of consideration is

a very vital aspect in this case, mere oral statements by the witnesses

including the defendant No.1 of having paid the sale consideration to the

mother is not sufficient evidence to discharge the onus of proof of

payment of ` 4.5 lacs to the mother. This is more so because even the

witnesses DW-2 and DW-3, who alleged to have given a loan of ` 2 lacs

and ` 2.5 lacs respectively to the defendant No.1, have not filed even a

single document on record to show that they had with them amounts of `

2 lacs and ` 2.5 lacs respectively which they could pay to the defendant

No.1. Also, there is no contemporaneous evidence that the amounts of `

2 lacs and ` 2.5 lacs by the DW-2 and DW-3 respectively in fact were

transferred to the defendant No.1 at any point of time. Once the

defendant No.1 fails to prove that DW-2 and DW-3 gave any loans

totaling to ` 4.5 lacs, there does not arise the issue of defendant No.1

paying further this amount to his mother Smt. Satyawati Kapoor. I may

note that the plaintiffs have exhaustively cross-examined both the

witnesses DW-2 and DW-3 whereby the necessary suggestions were put

with respect to their not having filed any documents on record to show

that they ever had moneys with them which were given as loans to the

defendant No.1. In fact, it is even admitted by both the witnesses that no

receipts are in their possession of their having been given loans to the

defendant No.1 totaling to ` 4.5 lacs. As already stated above, oral

statements made by the witnesses cannot be discharge of heavy onus of

proof with respect to existence and payment of sale consideration

moneys.

(iii) I therefore hold that the defendant No.1 has hopelessly failed

to prove that in fact he had moneys with him of ` 4.5 lacs which he took

on loan from DW-2 and DW-3, and that such moneys were in fact paid

over by the defendant No.1 to the mother late Smt. Satyawati Kapoor. I

finally note that counsel for the defendant No.1 admits that there is no

record filed by the defendant No.1 to show that this amount of ` 4.5 lacs

was at any point of time credited to the bank account of the mother during

her lifetime. I therefore hold for the fact that defendant No.1 has failed to

prove existence and passing of the sale consideration, the sale deed dated

12.8.1998 thus was not understood by late Smt. Satyawati Kapoor as

being a document of sale deed for transfer by her of the suit property to

the defendant No.1.

13(i). The next aspect for challenge to the validity of the sale deed

dated 12.8.1998 is with regard to the physical and mental conditions of

late Smt. Satyawati Kapoor being such that she had not understood the

nature of the document Ex.DW1/1 as being a sale deed of the suit

property in favour of the defendant No.1.

(ii) On this aspect, firstly the most important aspect is that if

really the mother executed the sale deed dated 12.8.1998 consciously then

in such a sale deed what would have been sold to the defendant No.1

would be suit property less the front portion of the first floor which was

already sold to the plaintiff No.1 under the sale deed dated 24.4.1990. A

reference to the sale deed Ex.DW1/1 shows that it is for the entire suit

property and not for the suit property minus the front portion of the first

floor. In the earlier part of this judgment, I have already held that the sale

deed dated 24.4.1990, Ex.PW1/2, stands duly proved whereby plaintiff

No.1 had been sold the front portion of first floor of the suit property.

Accordingly, since this vital aspect is missing in the sale deed dated

12.8.1998, in my opinion, this itself is a very strong reason to hold that

the mother late Smt. Satyawati Kapoor did not execute the sale deed

dated 12.8.1998 in such mental and physical condition so as to

understand the nature of the transaction encompassed in the sale deed

dated 12.8.1998.

(iii) On the aspect that whether the mother Smt. Satyawati

Kapoor was in such sound state of mind to understand the nature of

Ex.DW1/1 dated 12.8.1998, there is no documentary evidence on record.

Plaintiffs through the affidavits by way of evidence of the witnesses PW-

1 Sh. Jogender Pal Singh and PW -2 Smt. Swaran Katyal have affirmed

to the fact that the mother Smt. Satyawati Kapoor was not in a sound

mental and physical condition at the ripe old age of 84 years to

understand the nature of the document Ex.DW1/1. What is important to

note most surprisingly is that when we read the cross examination of

these witness PW-1 and PW-2, there is no suggestion in the cross

examination of these witnesses that the mother in fact was in such a

sound state of mind so as to understand the nature of Ex.DW-1/1. Once

there is no cross examination, that part of the testimony to which there is

no cross examination ordinarily ought to be believed. In the facts of the

present case, in my opinion, the absence of cross-examination is an

important factor to hold that the mother was not in a sound mental state

for knowing the nature of Ex. DW1/1 when she executed the same on

12.8.1998.

(iv) Another reason to hold that the mother was not in such

mental state to understand the nature of Ex.DW1/1 is from the fact that

immediately within about 5-6 days of the sale deed having been executed,

it being admitted by the defendant no.1in his cross-examination, that the

mother was admitted to the hospital for a period of as much as 6 days.

The defendant no.1 in his cross-examination admitted that he had the

papers with respect to the medical record of the hospital for this period

and he can produce the same however such medical papers of the illness

of the mother has not seen the light of the day inasmuch as defendant

no.1 failed to file such medical records. No doubt, as held by the

Supreme Court in the case of Subhash Chandra(supra) as cited by the

counsel for defendant no.1 that old age in itself is not sufficient to hold

that the person did not have the mental faculties to understand what

he/she does, however, this aspect being a factual aspect will have to be

seen in the peculiar facts of each case. In the present case, besides the

fact that there is no cross-examination of the witnesses of the plaintiff

with regard to the mother not lacking mental state; the fact that the

mother was admitted to hospital within a few days of execution of the

sale deed and medical record of which was not produced by the defendant

no.1 are strong factors against the defendant no.1. An extremely

important fact then is that mother in fact died just within 23 days of

execution of the sale deed dated 12.8.1998 Ex.DW1/1.

When we cumulatively take all the aforesaid factors, taken

with the fact that the defendant no.1 has quite clearly failed to prove that

he paid the alleged consideration of ` 4.5 lacs , in the facts of the present

case, it ought to be held, and I so hold, that the mother did not execute the

sale deed Ex.DW1/1 in such mental state that she had understood the

nature of the same. In fact, even assuming that she was in such a mental

stage to ordinarily understand other set of facts and documents, at least so

far as the document Ex.DW1/1 facts and circumstances were so created

that qua this document Ex.DW1/1 the mother did not understand that the

document was in fact a sale deed transferring the entire suit property to

the defendant no.1. As already stated above, this becomes all the more so

because there is no reason why a mother would transfer a property of the

value of ` 70 lacs for miniscule percentage of the actual price i.e ` 4.5

lacs out of the ` 70 lacs when admittedly the transaction is not a

transaction based on natural love and affection. Why would every other

legal heir of the mother was ousted does not stand established. Once

again at the cost of repetition not only the mother would have no reason

to sell a property of ` 70 lacs for ` 4.5 lacs only, but also, this payment of

` 4.5 lacs has also been in no manner proved by the defendant no.1

14. I therefore, hold that the mother Smt. Satyawati Kapoor was

either not in such mental and physical state so that she could understand

the document Ex.DW1/1 or even if she was otherwise in a reasonable

mental and physical condition to otherwise know the normal state of

affairs, qua this document Ex.DW1/1, she did not understand that she was

in fact executing the sale deed of the suit property in favour of the

defendant no.1.

15. I therefore, decide issue nos. 1,2,6 and 7 in favour of the

plaintiffs and against the defendant no.1 and it is held that the sale deed

dated 12.8.1998 Ex.DW1/1 is null and void and of no legal effect.

16(i). Since I have held issue nos. 1 to 3 and 5 to 7 in favour of the

plaintiffs and against the defendants, these issues 4, 8 and 9 also will have

to be decided in favour of the plaintiffs and against the defendant no.1. It

is held that the plaintiffs will be entitled to partition of the suit property

less the front portion of the first floor of the suit property. The plaintiffs

will also be entitled to injunction against the defendant no.1 from in any

manner creating third party interest or transferring possession of the suit

property except for the purpose of implementation of the preliminary and

final decree in the present case.

(ii) Counsel for the plaintiffs at this stage on instructions from

the plaintiffs states that since the defendant no.1 is a real brother they

would not like to prolong the disputes and the issue with respect to the

rendition of accounts therefore they give up against defendant no.1 in

order to promote good relations. Accordingly, the issue no.8 would stand

disposed of as not pressed.

Relief:

17. In view of the above, the suit of the plaintiffs stand decreed.

A preliminary decree is passed giving each of the seven parties to the

present suit, and who are the sons and daughters of late Sh. Ram Sahai

Kapoor and late Smt. Satyawati Kapoor, equal 1/7th share in the suit

property bearing No.A-5, C.C. Colony, opposite Rana Pratap Bagh, on

G.T. Road, in the revenue estate of village Rajpur Chhawani, Delhi, less

the front portion of the first floor which is the subject matter of the sale

deed dated 24.4.1990 Ex.PW1/2. Defendant no.1 is also restrained from

in any manner creating any third party interest or transferring possession

of any portion of the suit property in his possession to any third party,

except of course subject to orders of the Court for implementation of the

preliminary and final decree in the suit. Parties are left to bear their own

costs. Decree sheet be prepared.

18. For taking further steps for passing of a final decree, let the

parties give their necessary suggestions within a period of six weeks from

today as to whether the property should be partitioned by metes and

bounds or should be sold or what should be the method and manner for

passing of a final decree of partition with respect to the aforesaid suit

property.

19. List for further proceedings on 10th December, 2012 at the

end in „After Notice Miscellaneous Matters‟.

VALMIKI J. MEHTA, J OCTOBER 31, 2012 Ne/ib