Delhi High Court
Vijay Kawatra & Anr vs Virender Kawatra on 7 October, 2015
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1386/2015 & IA No.10384/2015
VIJAY KAWATRA & ANR. ..... Plaintiffs
Through: Mr. Jitin Sahni, Advocate.
versus
VIRENDER KAWATRA ..... Defendant
Through : Dr. D.C. Vohra, Advocate with
defendant in person.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 7.10.2015
1. The present suit has been instituted by the plaintiffs against the
defendant praying inter alia for a decree of partition in respect of
premises bearing no. S-407, Greater Kailash, Part-I, New Delhi, by
declaring him and his two brothers (plaintiff no. 2 and the defendant)
as owners of 1/3rd undivided share therein.
2. Summons were issued in the suit on 15.5.2015, returnable on
27.8.2015. The defendant has filed a written statement wherein he
does not deny that the parties have 1/3rd share each in the suit
premises.
3. Counsels for the parties state that the suit premises was owned
by the father of the parties, Sh. Dev Raj Kawatra who had executed a
will dated 28.06.1985, wherein he has devolved the right of residence
on his wife, Smt. Shankutala Kawatra. He had also desired that upon
her demise, the suit premises be divided between his sons in three
equal shares. Sh. Dev Raj Kawatra expired on 24.8.2002 and his wife
Smt. Shakuntala Kawatra expired after a decade, on 04.6.2012, thus
leaving the two plaintiffs and the defendant as the three class-I heirs.
4. Counsels for the parties state that defendant had filed a Probate
Petition No. 92/2012 before the Saket Court for seeking probate of the
will dated 28.06.1985, executed by Sh. Dev Raj Kawatra, which was
duly allowed vide judgment dated 19.02.2014. They submit that there
is no impediment in passing a preliminary decree in respect of the suit
premises, by determining the shares of each of the parties.
5. Accordingly, with the consent of the parties, a preliminary
decree is passed by declaring that the plaintiff no. 1, plaintiff no.2 and
the defendant are entitled to 1/3rd undivided share each in the suit
premises.
6. Counsels for the parties state that having regard to the nature of
the construction existing in the suit premises, it is not feasible to
partition the same by metes and bounds and the parties are agreeable
that it may be disposed of in the open market and the sale proceeds
be divided amongst them in proportion to their respective shares.
They request that the preliminary decree may be converted into a final
decree and the parties may be left to identify a suitable buyer on their
own and take further steps to dispose of the suit premises as agreed
above.
7. Accordingly, the preliminary decree passed above, is converted
into a final decree. The parties shall be at liberty to take joint steps to
identify a prospective buyer of the suit premises and share the sale
proceeds in proportion to their respective shares therein. If the parties
are unable to take joint steps or they do not co-operate with each
other or if the suit premises is not disposed of within six months from
today, then either party shall be entitled to seek execution of the
judgment and decree in accordance with law. Counsels for the parties
agree that the plaintiffs shall not take any steps to dispossess the
defendant from the suit premises for a period of six months.
8. Decree sheet be drawn accordingly.
9 The suit is disposed of, along with the pending application, while
leaving the parties to bear their own expenses.
File be consigned to the record room.
HIMA KOHLI, J
OCTOBER 07, 2015
mk/ap
