VIRENDER GUPTA Vs. ROBINDER GUPTA

JUDGEMENT

(1.) The appellant filed a suit for partition and rendition of accounts against the respondents in respect of property bearing No.87, Sunder Nagar, New Delhi. The parties are brothers and sister. The partition was claimed on the basis that a family settlement dated 14/9/1982 had been recorded and the decree for partition should be passed in terms thereof and respondents 1 and 2 should be directed to render accounts. The suit was contested. The suit was opposed by respondent No.2 who set up a will dated 31/8/1982 of late father of the parties Sh.T.N.Gupta. Respondent No.2 claimed to be the beneficiary under the said will and claimed to be the owner of the entire share of the deceased father Sh.T.N.Gupta which was to the extent of 64% share in the total property. The execution of the family settlement dated 14/9/1982 was not disputed though it was claimed that the same was not valid and binding as it was under undue influence of the appellant and out of respect for him that the family settlement was signed.

(2.) A probate petition was also filed by respondent No.2 herein being Probate No.46/1983 seeking probate of the will dated 28/7/1982 stated to have been executed by late Sh.T.N.Gupta. In the said probate proceedings on 26/9/89 an order was passed on an application filed by respondent No.1 praying for readjustment in respect of portions in possession of all the parties of the suit property whereby the said application was dismissed. Aggrieved by the said order, respondent No.1 herein preferred an appeal which was registered as FAO (OS) 248/89. It may be stated at this stage that in terms of family settlement dated 14/9/82, respondent No.3 herein had agreed not to claim any share and the appellant, respondent Nos.1 and 2 were to have share in the proportion of 30:30:40.

(3.) It appears that endeavour was made by the court in the appeal FAO (OS) No.248/89 to settle the matter in controversy and on 14/2/90 the parties were directed to prepare a plan indicating the manner in which the property could be divided in the ratio of 40:30:30. This resulted in order dated 26/11/1990. The Court recorded that the parties are present in Court and it had been agreed between them that if the house in question being 87, Sunder Nagar, New Delhi was capable of physical division in three portions in the ratio of 30:30:40 and the 40% portion being on the ground floor, and that 40% portion going to the share of Mr.Nitendra Gupta, respondent No.2, then in that case the physical partition of the property will be final and binding on all the three brothers. In order to carry out this exercise, Sh.S.P.Bawa. Architect was appointed as Local Commissioner to give report suggesting physical partition of the property and to suggest additions and alternations which may be necessary to divide the house into three independent units. It was further recorded that in order to make the compromise effective and binding on all the parties, formal agreement will be drawn up and signed by the parties and filed in court before the next date of heading.