Shri Rajan vs Smt. Poonam Khullar
2014 Latest Caselaw 685 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 37/2014

%                                              4th February,2014

SHRI RAJAN                                                ......Appellant
                          Through:       Mr. Ramesh K. Sharma, Adv.

                          VERSUS

SMT. POONAM KHULLAR                                        ...... Respondent
                 Through:

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

CM No.2329/2014(delay in refiling)

1.    For the reasons stated in the application, delay in re-filing is

condoned.

    CM stands disposed of.
CM No.2328/2014 (Exemption)

2.    Exemption allowed subject to just exceptions.

      CM stands disposed of.


RSA 37/2014 & CM No.2327/2014 (stay)

3.    The only ground which is urged before this Court in this second

RSA 37/2014                                                                    Page 1 of 3
 appeal by the defendant-appellant is that, though partition has to be done and

possession has to be granted to the respondent-plaintiff of her half share in

the suit property, the defendant-appellant invokes the principle of owelty

and claims equalization of the shares in the suit property bearing No.1/9454,

Gali No.7, West Rohtash Nagar, Shahdara, Delhi-110032. It is pleaded that

unless there is equalization of shares, the appellant-defendant will not have

access to his property.

4.    The subject suit was a suit filed by the respondent-plaintiff, sister of

the appellant, for possession; partition etc of the suit property in terms of the

Will of the mother Smt. Amrit Kaur which is dated 15.9.2004 and registered

before the sub-Registrar. The Will has been proved on record through the

attesting witness Sh. I.K.Nayyar, PW-3. The Will has been proved and

exhibited as Ex.PW1/2. The property admittedly belonged to the mother

who executed the Will (Ex.PW1/2). As per the Will specific areas of the

ground floor and the first floor are given to the respondent-plaintiff and the

appellant-defendant. The division is made in fact of the suit property by the

Will almost by drawing a line right down through the middle of the plot

which is of about 150 sq. yds.

5.    In my opinion, argument urged on behalf of the appellant-defendant

of owelty and equalization for getting 50% of the property is misconceived
RSA 37/2014                                                                   Page 2 of 3
 because the Will of the mother by which property has been bequeathed to

both the appellant-defendant and the respondent-plaintiff specifically has

bequeathed specific portions of the property to each of the appellant-

defendant and the respondent-plaintiff. These portions are shown in the plan

annexed to the Will.     In such a case there is no question of granting

equalization, or any issue of ingress and egress to the share of the appellant-

defendant. The argument of ingress and egress is also misconceived because

as per the Will the appellant can well construct an access to his first floor

portion from his portion on the ground floor.

6.    A second appeal lies under Section 100 CPC only if there arises a

substantial question of law. There is no substantial question of law in the

present case much less in terms of the arguments urged before this Court.

The appeal is therefore dismissed, leaving the parties to bear their own costs.




FEBRUARY 04, 2014                               VALMIKI J. MEHTA, J.

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