KAMAL PARTI Vs. SMT. RAJ KUMAR PARTI

JUDGEMENT

(1.) The plaintiff Kamal Parti has instituted this suit, for declaration and permanent and mandatory injunctions against his mother Smt. Raj Kumar Parti and his brother Deepak Parti, pleading that (i) Om Parkash Parti, being the father of the plaintiff and defendant no.2 and husband of defendant no.1, was allotted by the Delhi Development Authority (DDA) a plot of land ad-measuring 200.13 sq. yds. bearing No.B-2/84, Safdarjung Enclave, New Delhi and constructed a two and a half storey house thereon; the leasehold rights in the land underneath the property (subject property) were also got converted into freehold by the said Om Parkash Parti in his name; (ii) the said Om Parkash Parti died on 23rd July, 2008 leaving besides his wife defendant no.1, the plaintiff, defendant no.2 and Arun Parti as his sons; (iii) Om Parkash Parti left a registered Will dated 13th April, 2002 whereunder he has bequeathed absolute rights in various other properties and lifetime rights in the subject property to his wife defendant no.1, with the condition that the defendant no.1 cannot transfer any right in the subject property without the written consent from her three sons namely plaintiff, defendant no.2 and Arun Parti; (iv) the defendant no.1, without obtaining prior written consent of the plaintiff and Arun Parti, has transferred the second floor portion with roof rights of the subject property, to defendant no.2, by way of Gift Deed dated 12th November, 2015 affecting the rights of the plaintiff in the property; and, (v) the defendant no.2 is intending to transfer the rights in his favour to outsiders. The plaintiff thus seeks (a) declaration as null and void of the Gift Deed dated 12th November, 2015; (b) permanent injunction restraining the defendants from creating any third party rights in the property or any part thereof and/or from interfering in the plaintiff's use and occupation of the property; and, (c) mandatory injunction directing the defendants to allow the plaintiff use of indivisible rights in the property.

(2.) The suit came up first before this Court on 26th April, 2016 when the counsel for the defendants being on caveat appeared and summons of the suit and notice of the application for interim relief were issued and the defendants restrained from selling or encumbering the property till further orders; the defendant no.1 was however permitted to let out the property and receive rents thereof.

(3.) The defendants have filed a joint written statement pleading that, (i) under the Will dated 13th April, 2002, the property has been bequeathed solely in favour of the defendant no.1; (ii) the Will places limited condition upon the defendant no.1, of not selling the property except with the consent of the plaintiff, defendant no.2 and Arun Parti; (iii) the said Will has been accepted and duly acted upon by all the family members of late Om Parkash Parti; (iv) at the time of construction of the property by Om Parkash Parti, he with his family was residing in another property; (v) only in the year 1984, Om Parkash Parti along with the defendants started residing on the first floor and subsequently in the year 1990 also occupied the second floor of the property; (vi) the plaintiff has never lived in the property; (vii) the defendant no.2 shifted to USA in the year 2003 and the second floor was again let out by Om Parkash Parti who continued to reside with the defendant no.1 on the first floor of the property; (viii) the rental income derived from the property was to provide living and maintenance of the defendant no.1; (ix) the defendant no.1, after the death of Om Parkash Parti, has been letting out the property to tenants from time to time and the property was her only source of maintenance; (x) even if the property were to be sold by the defendant no.1 after obtaining written consent of her three sons, the entire sale consideration was to belong to the defendant no.1 only; (xi) under the Transfer of Property Act, 1882, sale is distinct from a gift; (xii) the defendant no.1 is the sole owner of the property after the demise of Om Parkash Parti and is thus fully entitled to execute gift thereof or of any portion thereof; (xiii) the condition of not selling the property without the consent of the sons does not in any way take away the ownership rights of the property; (xiv) the defendant no.1 is also the absolute owner of the property under Section 14 of the Hindu Succession Act, 1956; and, (xv) the defendant no.1, out of her natural love and affection for defendant no.2, has executed the gift deed in favour of defendant no.2 and the suit is misconceived.