Delhi High Court
Raminder Ahluwalia vs Sandeep Walia & Anr. on 20 February, 2019
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 106/2019
RAMINDER AHLUWALIA ..... Plaintiff
Through: Mrs. Avnish Ahlawat, Adv.
versus
SANDEEP WALIA & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 20.02.2019
IA No. 2632 & 2633/2019 (for exemptions)
1. Allowed, subject to just exceptions.
2. The applications are allowed.
CS(OS) 106/2019 & IA No.2631/2019(u/O.XXXIX R.1 & 2 CPC)
3. The plaintiff has sued the wife and son of the brother of the plaintiff
for partition of property no.11/11, East Patel Nagar, New Delhi claiming
that the plaintiff has a two-third share therein and the two defendants
together have the remaining one-third share therein.
4. According to the plaintiff, the property aforesaid belonged to the
father of the plaintiff who died leaving a validly executed last Will
bequeathing the property for lifetime to his wife and after the demise of his
wife to his three sons including the plaintiff, in separate divisible portions as
detailed in the Will. It is further the case of the plaintiff that the mother of
the plaintiff survived the father of the plaintiff and after the demise of both
parents, the three sons got the Will probated and also got the leasehold rights
in the land underneath the property mutated in their names. It is further
pleaded that the living arrangement of the parties in the property is not as
provided in the Will.
5. It is yet further the case of the plaintiff that another brother of the
plaintiff in his lifetime, for consideration agreed to sell his portion of the
property to the plaintiff and executed a Will, registered Agreement to Sell,
Power of Attorney, etc. in favour of the plaintiff but the said brother died
before the sale deed could be executed and the plaintiff, under the Will of
the said brother, has become the owner of the portion/share of the said
brother in the property.
6. I have enquired from the counsel for the plaintiff, that the plaintiff
having pressed title to the property under the Will of the father whereunder
separate divisible portions of the property were bequeathed to three sons,
how is the suit for partition maintainable. A suit for partition does not lie
when the parties are owners of separate divisible portions of the property.
Reference in this regard can be made to Uma Shankar vs. Anand Prakash,
2018 SCC OnLine DEL 12867, Rajeev Chhabra vs. Surinder Khurana,
2018 SCC OnLine DEL 7109, order dated 1st February, 2019 in
CS(OS)63/2019 titled Uma Gupta vs. Indu Gupta and orders dated 7th
January, 2019 and 16th January, 2019 in CS(OS) 566/2016 titled Sukh
Sagar Sahni vs. Salil Sagar Sahni.
7. The counsel for the plaintiff states that the property is not divided by
metes and bounds.
8. Even if that be so, a suit for partition would not lie and a suit for
recovery of possession of own portion of the property and for direction to
the other owners of the property to allow the plaintiff to demarcate own
portion would lie.
9. I have further enquired from the counsel for the plaintiff, that if the
plaintiff claims title to the portion of his deceased brother under his Will,
whether not the natural heir of the said deceased brother are a necessary and
proper party.
10. I have yet further enquired form the counsel for the plaintiff that once
the father of the plaintiff under his Will has bequeathed life interest to his
wife i.e. mother of the plaintiff and the mother of the plaintiff survived the
father, whether not under Section 14 of the Hindu Succession Act, 1956, the
said limited interest of the mother would become absolute property of the
mother and on the demise of the mother, the property will be inherited in the
absence of her Will, by all her legal/natural heirs which would also include
the two sisters of the plaintiff who have not been impleaded.
11. The counsel for the plaintiff has contended that the Will of the father
has been probated and mutation has also been carried out.
12. Probate does not determine the entitlement under the Will and the
mutation, it is well settled, does not divest title.
13. Counsel for the plaintiff seeks time to consider and if required to
amend the plaint.
14. I am of the opinion that no purpose would be served by adjourning the
matter. It is deemed appropriate to reject the plaint with liberty of course to
the plaintiff to file an appropriate suit addressing all the aforesaid questions,
if according to the plaintiff, the plaintiff is still entitled to maintain a suit for
partition. However, the plaintiff along with the fresh suit, if any, to file a
copy of this order.
15. The plaint is rejected in terms of the above.
RAJIV SAHAI ENDLAW, J
FEBRUARY 20, 2019
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