Delhi High Court
Rupendra Chaturvedi vs Shailendra Chaturvedi on 25 July, 2016
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 78/2014
RUPENDRA CHATURVEDI .... Plaintiff
Through: Mr. Vikram Saini, Mr. Manish
Aggarwal, Ms. Chhaya Sharma and
Ms. Prerna Ajmani, Advocates.
versus
SHAILENDRA CHATURVEDI .... Defendant
Through: Ms. Ruchi Singh, Advocate with
defendant in person.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 25.07.2016
IA No. 15239/2015 (by the plaintiff u/O XII R6 CPC)
1. The plaintiff has filed the accompanying suit against his brother for
partitioning premises bearing No.F-10/11, Vasant Vihar, New Delhi
measuring 405 sq. yds., on which a built up structure was raised by the
deceased father of the parties.
2. It is an undisputed position that the subject premises was owned by
Sh. S.K. Chaturvedi (father of the parties) who had died intestate on
20.10.1973, leaving behind his widow, three daughters and two sons.
3. As per the averments made in the plaint, Smt. Pushp Lal Chaturvedi
(mother of the parties) had predeceased her husband. However, the correct
factual position which is not disputed by the other side is that the mother of
the parties had expired on 21.4.1992, long after her husband's demise.
4. Counsels for the parties state that all three sisters had relinquished
their rights and interest in the suit premises in favour of the plaintiff and the
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defendant, by virtue of a registered Relinquishment Deed dated 26.8.1992
and as a result, 50% undivided share has devolved on each of them. Based
on the aforesaid averments, that the plaintiff seeks a decree of partition in
respect of the suit premises.
5. Learned counsel for the plaintiff states that in his written statement,
the defendant has admitted to the fact that he and the plaintiff are the "joint
owners in respect of their undivided 50% share each therein". He
particularly refers to para 5 of the "background facts" set out in the written
statement of the defendant and also relies on a reply dated 25.7.2011,
addressed by the defendant's counsel to the legal notice dated 15.7.2011
issued by the plaintiff (Annexure P-1 to I.A. No. 8571/2014).
6. Learned counsel for the plaintiff argues that in view of the categorical
admissions made by the defendant in the written statement filed on 1.5.2014
and his reply to the legal notice dated 25.7.2011, a preliminary decree may
be passed declaring that the plaintiff and the defendant are entitled to 50%
undivided share each in the suit premises.
7. A reply in opposition to the present application has been filed by the
defendant, wherein it is stated that upon the demise of the parents of the
parties, they along with their respective spouses and sisters had executed a
Memorandum of Family Settlement dated 25.04.1992, duly signed by all the
parties and this was done only to avoid any future dispute between family
members. It is thus argued on behalf of the defendant that the suit premises
already stood partitioned, and since the said fact has been denied by the
plaintiff, it raises a triable issue for which issues must be framed in the suit
and evidence led by them.
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8. The Court has heard the counsels for the parties and carefully perused
the averments made by the defendant in the written statement. In para 5 of
the background facts, the defendant has stated as below:-
"5. ....Thereafter, the plaintiff and the defendant together entered
into two separate Agreements to Sell dated 21.6.1993 with Sh.
Ajay Mehra and his wife Mrs. Rekha Mehra. Though these were
described as Agreements to Sell, but in effect the same were for
redevelopment/reconstruction of the entire property and sale of
specified portion therein. Execution of two separate Agreements
to Sell was occasioned because of the fact that the plaintiff and
defendant were already in absolute possession of their respect
50% share of the suit property, viz. the rear portion with the
plaintiff and the front portion with the defendant. However, in the
records of the Municipal Corporation of Delhi the parties are
joint owners of the suit property in respect of their undivided
50% share each in the said property, in view of the fact that the
property still continues to be leasehold property in their joint
names...."
9. Further, in para 1 of the reply dated 25.7.2011, addressed by the
defendant's counsel to the plaintiff's legal notice dated 15.7.2011, it was
stated as under:
"1. ....it is notified to you that your client as per your version is
attorney of her husband namely Sh. Rupendra Chaturvedi. It is
notified to you that my client along with his brother Sh.
Rupendra Chaturvedi are joint co-owners of the property
bearing No.F-10/11, Vasant Vihar, New Delhi with undivided
50% share each...."
10. Apart from the admissions made by the defendant in the written
statement and the reply to the plaintiff's legal notice, there is no dispute with
regard to the fact that even as per the Memorandum of Family Settlement
CS(OS) 78/2014 3 of 4
dated 25.4.1998 relied on by the defendant, the parties had agreed that they
are entitled to 50% share each in the suit premises. The only issue left for
adjudication is as to whether possession of the parties in the different
portions of the premises presently under their occupation is on the basis of
the settlement recorded in the Memorandum of Family Settlement dated
25.4.1992 and if so, whether the plaintiff is entitled to ask for partitioning of
the suit premises by metes and bounds.
11. In view of the averments made by the defendant in para 5 of the
background facts set out in the written statement and in the reply dated
25.07.2011 addressed by his counsel in response to the legal notice dated
15.07.2011 issued on behalf of the plaintiff, it is deemed appropriate to pass
a preliminary decree in respect of the suit premises under Order XII Rule 6
CPC on the basis of the admissions made by the defendant and declare that
the plaintiff and the defendant are entitled to 50% undivided share each in
the suit premises. Accordingly, the suit is decreed in terms of prayer clause
(a) of the plaint.
12. The application is allowed and disposed of.
13. Decree sheet be drawn accordingly.
HIMA KOHLI, J
JULY 25, 2016
mk/rkb/ap/tp
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