RAJENDRA SHANKER Vs. DEVENDRA SHANKER

JUDGEMENT

(1.) By this common judgment I shall dispose of all the three Suits referred above two of which are Probate Petitions (registered as suits) that were initially filed before the District Judge, Delhi but were withdrawn to this Court vide order dated 22nd August, 2005 to be tried along with the suit CS(OS) No.985/2002. Vide order dated 6th July, 2007 all the three matters were consolidated and it was directed that evidence will be read in all three matters.

(2.) Suit CS(OS) No. 985/2002 has been filed by Shri Rajender Shanker against his brother Shri Devendra Shanker seeking partition of the estate of their father late Shri Damodar Dass Mathur alleged to be comprising of house No.104, Jor Bagh, New Delhi, investments in FDRs, Units, Shares, jewellery, goods etc. it is alleged in the plaint that late Shri Damodar Dass Mathur died intestate on 7th February, 1995 leaving the plaintiff and the defendant as his class I legal heirs. It is also alleged that after the death of Shri Damodar Dass Mathur the defendant took custody of jewellery, household goods and documents relating to investments made by him. It is further alleged that the plaintiff being co-owner is in constructive possession of the house and has also been continuously in actual possession of a part of that property. The plaintiff has therefore sought a decree for partition of house No.104, Jor Bagh, New Delhi as also the moveable properties belonging to his father late Shri Damodar Dass Mathur. He has also sought rendition of accounts calling upon the defendant to disclose particulars of moveable assets of the deceased and render accounts.

(3.) In his objections to the petitions seeking probate, Shri Rajender Shanker, plaintiff in suit CS(OS) No. 985/2002 disputed the Will set up by the petitioner and claimed the same to be forged and fabricated documents. It has also been alleged by him that property bearing house No.104, Jor Bagh, New Delhi as also the moveable properties subject matter of the proceedings were properties of the HUF comprising of Shri Damodar Dass Mathur, Shri R.D.Mathur, Shri Devendra Shanker and he himself i.e. Shri Rajender Shanker and therefore Shri R.D.Mathur could not have executed the Will dated 26th April, 1994 propounded by the petitioner. In his objections to the petition seeking probate of the Will alleged to have been executed by late Shri Damodar Dass Mathur, it is alleged that since the aforesaid properties were owned by the HUF comprising of Shri Damodar Dass Mathur, Shri R.D.Mathur, Devendra Shanker and Rajender Shanker, Shri Damodar Dass Mathur could not have executed the Will set up by the petitioner.