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2007 DIGILAW 1483 (DEL)

Y. L. SONI v. V. S. SONI

2007-07-26

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) THE plaintiff has filed a suit for partition and injunction against the defendants, his brothers. The case set up in the plaint is that late Smt. Krishna Devi, the mother of the parties, owned movable and immovable properties and on her demise, the properties devolved in equal share on the three sons. The plaint also states that a prior Probate Case No. 39/1985 had been filed by defendant No. 1 setting up an alleged Will left by late Smt. Krishna Devi stated to be executed on 03. 05. 1981. In terms of the said Will, the plaintiff had been excluded. ( 2 ) THE defendants filed a common written statement relying upon the Will. The written statement is signed and verified by both the defendants. ( 3 ) THE probate petition was dismissed on 28. 08. 2006. This Court taking cognizance of the same, thus, passed a preliminary decree on 01. 09. 2006 declaring the share of each of the parties to be 1/3rd. The plaintiff gave up the claim of jewellery and restricted the claim to the two immovable properties being property bearing No. D"sc/3, Mansarover Garden, New Delhi and House No. H"6/16, Malviya Nagar, New Delhi as also the amounts lying in credit in three savings bank accounts and the shares held by the deceased in two companies, namely, M/s. Mangalore Chemicals and Fertilizers Ltd. and M/s. Welcast Steels ltd. A Local Commissioner was appointed to suggest the mode of partition. ( 4 ) IN the subsequent proceedings, the submission of learned counsel for the defendants is noted that no appeal had been filed against the decree and that defendant No. 1 had paid his share of the Local Commissioner's fee, but the counsel was not receiving any instructions from defendant No. 2. The plaintiff, thus, agreed to pay the share of the Local Commissioner's fee of defendant No. 2. The Local Commissioner held the proceedings and has submitted the report dated 21. 04. 2007. ( 5 ) THE Local Commissioner's report states that she visited the property bearing no. H"6/16, Malviya Nagar, New Delh. The house was unnumbered measuring approximately 100 sq. yds. and was located through the adjacent property bearing no. H"6/15, Malviya Nagar, New Delh. The construction was of single-storeyed house with one mezzanine room, which could be accessed by means of an iron staircase. H"6/16, Malviya Nagar, New Delh. The house was unnumbered measuring approximately 100 sq. yds. and was located through the adjacent property bearing no. H"6/15, Malviya Nagar, New Delh. The construction was of single-storeyed house with one mezzanine room, which could be accessed by means of an iron staircase. The house was found locked. The neighbour informed the Local commissioner that the house has been rented out to one Mr. A. P. Aggarwal. The local Commissioner visited the residence-cum-office of an Advocate being no. H"6/12, Malviya Nagar, New Delhi, who indicated that the market rate as of present would be Rs. 1 lakh per sq. yd. and, thus, the property would be worth about Rs. 1 crore. The average rent for such a property was stated to be rs. 6,000/- to Rs. 8,000/- and the family staying in the property was stated to be residing for a number of years. No contact could be established with Mr. A. P. Aggarwal. ( 6 ) THE second property bearing No. D"sc/3, Mansarover Garden was also visited. It was found that the said property was divided into two offices of m/s. SJN Impex and M/s. Mohit Polymer. There were only members of the staff present. The first floor was stated to have been sealed by the MCD. The property was stated to be owned by Mr. Inder Sethi, who lived two lanes away from the property. The Local Commissioner visited the residence of Mr. Sethi nearby who indicated that he had bought the property from Mr. V. S. Soni, defendant No. 1 in the year 1985 for Rs. 3 lakhs and thereafter had constructed the office. The property is about 167 sq. yds. Mr. Sethi claimed to have the agreement to Sell and the Possession Deed for the property, but the same were kept in a bank locker. Mr. Sethi stated that the property had been purchased on the basis of the Will of late Smt. Krishna Dev. Mr. Sethi stated that the value of the property was Rs. 50 lakhs, but the Local Commissioner did not find the value plausible. The Local Commissioner visited a real estate agent by the name of Maini Properties at F"173, Mansarover Garden, New Delhi in the area and it was revealed that the market value of the property was Rs. 1. 5 lakhs per sq. yd. The total value would, thus, be Rs. 2,50,50,000/ -. The Local Commissioner visited a real estate agent by the name of Maini Properties at F"173, Mansarover Garden, New Delhi in the area and it was revealed that the market value of the property was Rs. 1. 5 lakhs per sq. yd. The total value would, thus, be Rs. 2,50,50,000/ -. ( 7 ) IN view of the aforesaid facts, the Local Commissioner's report states that the commercial property at D"sc/3, Mansarover Garden, New Delhi had already been divided equally into two offices by the owner, Mr. Inder Seth. The value of each of the two shares on the basis of the value of Rs. 2,50,50,000/- for the whole property would be Rs. 1,25,25,000/ -. The residential property at Malviya nagar was valued at Rs. 1 crore. It was, thus, stated that the Malviya Nagar property could be allotted to the plaintiff while the property at Mansarover garden could be divided equally between the defendants. ( 8 ) THE plaintiff has not filed any objections to the report, but both the defendants have separately filed objections. Defendant No. 2 has also filed a separate application being. A. No. 8271/2007 under Section 2 of the Partition act, 1893. In the application, it is stated that the probate petition was filed by defendant No. 1 where the present defendant No. 2 was impleaded as Respondent no. 3 and was examined as PW " 3. He had stated in the deposition that he had no knowledge of any Will made by his mother. Defendant No. 1 had not said anything about selling of the property to defendant No. 2. The application states that the property cannot be partitioned by metes and bounds. It is further stated that no documents were produced by Mr. Inder Sethi and, thus, the property cannot be partitioned and both the properties should be sold and the proceeds equally distributed. ( 9 ) IN the objections filed by defendant No. 2, it is stated that defendant No. 2 did not receive any notice as the letters were addressed only to the counsel. It is stated that defendant No. 1 had assured defendant No. 2 that he is looking after his interest, but the fate of the proceedings were never informed to him and it is only in May, 2007 that a letter was received from Mr. It is stated that defendant No. 1 had assured defendant No. 2 that he is looking after his interest, but the fate of the proceedings were never informed to him and it is only in May, 2007 that a letter was received from Mr. S. C. Singhal, advocate from where he came to know about the present suit. It is stated that defendant No. 2 has been cheated by defendant No. 1. Defendant No. 2 has also denied service in the suit and that defendant No. 2 had signed the documents in good faith. It is stated that proper enquiry was not made by the Local commissioner and the valuations of the properties are not correct. ( 10 ) THE objections filed by defendant No. 1 state that both the properties are separate properties and, thus, can be separately partitioned. Defendant No. 1 for the first time in the objections has admitted that he had sold the property for Rs. 4. 5 lakhs to Mr. Sethi, but only received Rs. 25,000/- as advance and the plot was to be sold only on grant of probate and not otherwise. It is stated that the Local Commissioner ought to have obtained the documents from Mr. Seth. ( 11 ) LEARNED counsel for the parties were heard on the objections. ( 12 ) INSOFAR as the objections of defendant No. 2 are concerned, it is to be noticed that defendant No. 2 has filed the written statement along with defendant No. 1. The pleas of defendant No. 2 now raised that he was not served with the summons in the suit or that he did not know what proceedings were going on are palpably false. Defendant No. 2 even appeared as a witness in the probate proceedings and contested both the probate proceedings and the present suit. The objections are clearly an oblique attempt to get over the report of the Local Commissioner, defendant No. 2 having given no assistance. ( 13 ) THE role of defendant No. 1 appears to be even worse. No assistance was rendered or proper suggestion of mode of partition. The most important aspect is that the interim orders were passed in the present suit on 30. 10. 1991 restraining the defendants from selling, disposing off or parting with possession of the suit property. ( 13 ) THE role of defendant No. 1 appears to be even worse. No assistance was rendered or proper suggestion of mode of partition. The most important aspect is that the interim orders were passed in the present suit on 30. 10. 1991 restraining the defendants from selling, disposing off or parting with possession of the suit property. If defendant No. 1 had dealt with the property prior to that date, it was the bounden duty of defendant No. 1 to have brought the same to the notice of the Court. This fact is undisputedly not brought out either in the reply or in the written statement and has come to light for the first time by the present objections after the Local Commissioner submitted the report to that effect. It is not understood as to how the property could have been dealt with on the basis of the said Will. ( 14 ) BE that as it may, there can hardly be any validity to such a transaction when the Will itself was in dispute. In fact, in view of the conduct of defendant No. 1, the said defendant ought not even to be heard on the objections. The conduct of defendant No. 1 is strongly deprecated. ( 15 ) IN my considered view, there are no merits in the objections. The Local commissioner to her best of ability has verified the price of the properties in the surrounding area. The defendants rendered no substantive assistance and, thus, cannot make any grievance about the same. It was the duty of the defendants to have produced the requisite material before the Local Commissioner both in respect of valuation and division of the properties. ( 16 ) IN my considered view, the Local Commissioner has rightly held that the property situated at H"6/16, Malviya Nagar, New Delhi should go to the plaintiff. It must also be noticed that the said property is stated to have an old tenant, which would also diminish the value. The plaintiff, however, has not filed any objections to the report. Insofar as the property situated at d"sc/3, Mansarover Garden, New Delhi is concerned, it has already been divided into two offices and half share each would fall to defendants No. 1 and 2. The plaintiff, however, has not filed any objections to the report. Insofar as the property situated at d"sc/3, Mansarover Garden, New Delhi is concerned, it has already been divided into two offices and half share each would fall to defendants No. 1 and 2. In view of the conduct of defendant No. 1, it would be defendant No. 2, who would have the option to pick up any one of the equally divided shares and the other half share would fall to defendant No. 1. The final decree is passed in respect of the two immovable properties and also the movable properties referred to in the Order dated 01. 09. 2006 in the aforesaid terms. ( 17 ) DEFENDANT No. 1 is also burdened with costs of Rs. 10,000/- payable to the plaintiff. The plaintiff would also be entitled to adjust the share of the local Commissioner's fee paid on behalf of defendant No. 2 from the share of defendant No. 2. ( 18 ) ON the requisite stamp paper being filed, decree-sheet be drawn up.