PERMINDER KAUR Vs. HARBANS SINGH GULATI

JUDGEMENT

(1.) THIS is a suit for partition and injunction. Late Dr. Prabh Dayal Singh Gulati was the lessee of land comprised in plot No.19/6, Kalkaji, New Delhi admeasuring about 200 sq.yds. having been leased out by Land & Development Office (L&DO). A residential house was constructed on the aforesaid plot of land by late Dr. Prabh Dayal Singh Gulati, who expired on 27 th December, 1990 leaving four sons and one daughter as his legal heirs, his wife having predeceased him. Defendant Nos.1 and 2 are the surviving sons of late Dr. Prabh Dayal Singh Gulati. Mr. Kuldip Singh Gulati is one of the three surviving sons of late Dr. Prabh Dayal Singh Gulati and his fourth son, Dr. Iqbal Singh Gulati has died. The case of the plaintiff is that in his life time, Dr. Iqbal Singh Gulati had bequeathed his share in the suit property to Smt. Sushil Kaur, who has also expired leaving defendant Nos. 3 & 5 and plaintiff as her legal heirs. THIS is also the case of the plaintiff that Shri Kuldip Singh Gulati had gifted his share in the suit property to her and defendant Nos. 3 and 4.

(2.) THE suit has been contested by defendant Nos. 1 and 2. Mr. Kirti Uppal, who appears for defendant No.1, states that they are disputing the Will alleged to have been executed by late Dr. Iqbal Singh Gulati in favour of Smt. Sushil Kaur as also the Gift Deed alleged to have been executed by Mr. Kuldip Singh Gulati in favour of plaintiff and defendant Nos. 3 and 4. This is also the case of defendant Nos. 1 and 2 that there was an oral partition allocating various portions of the suit property amongst legal heirs of late Dr. Prabh Dayal Singh Gulati and in that allocation, ground floor came to defendant Nos. 1 and 2, first floor came to Iqbal Singh Gulati and Kuldip Singh Gulati whereas future rights in the yet to be constructed basement alleged to have come to the share of defendant Nos. 1 and 2. Future rights in the 2nd and 3rd floors which do not exist as yet alleged to have come to the share of all the four sons of deceased Dr. Prabh Dayal Singh Gulati in equal proportion.

(3.) THE main dispute between the parties, as far as this application is concerned, is with respect to a takeaway restaurant, which is being run by the son of defendant No.1 on the ground floor of the suit property under the name and style of M/s Shekaza Restaurant. THE case of defendant No.1 is that such a user is permitted under the mixed land use provisions of master plan and they have already deposited requisite charges in this regard with the MCD. A perusal of the lease deed executed by the L&DO in respect of plot No.19/6, Kalkaji, Delhi would show that the building which is constructed on the demised land can be used only for residence. No use for any trade or business is permitted without prior permission of the Lessor. Clause I (vi) of the lease deed is relevant in this regard and reads as under:-