SURAJ PRAKASH SINGH Vs. KAMLESH PRAKASH

JUDGEMENT

(1.) THE learned counsel for the plaintiff gives up defendants No.5 and 6, who are stated to be tenants in one of the property, subject matter of the suit. THEir names are deleted from the array of parties. Amended memo of parties be filed.

(2.) THIS is an application under Order XII Rule 6 of the Code of Civil Procedure. The admitted position is that late Sh. Manmohan Prakash was the sole owner of properties No.D-2/2586, Vasant Kunj, New Delhi and C-13, Green Park Extension, New Delhi. Sh. Manmohan Prakash died on 5th January 2006, leaving the plaintiff, who is his son, defendant No.1, who is his widow, defendant No.2, who is his other son and defendant No.3, who is his daughter, as his Class 1 legal heirs. The case of the plaintiff is that late Sh. Manmohan Prakash died intestate. A probate petition being Probate Case No. 195/2001 was filed by late Sh. Manmohan Prakash in his lifetime seeking probate of the Will, which is father had executed in his favour. The probate was granted in favour of late Sh. Manmohan Prakash on 19th April 2004. According to the plaintiff, defendant no.1 in this suit Smt. Kamlesh Prakash filed an application in the above referred probate case admitting therein that her husband had died intestate. The plaintiff has accordingly sought a preliminary decree of partition in view of the admission made by defendants 1 to 3.

(3.) IT has been alleged in the written statement of defendants 1 and 2 that property No.C-13, Green Park Extension, New Delhi was inherited by late Shri Manmohan Prakash from his father by virtue of a registered Will executed in his favour. A probate in respect of the above- referred Will has already been granted on a petition which was filed by late Shri Manmohan Prakash. Since property No.C-13, Green Park Extension, New Delhi admittedly belonged to the grandfather of the plaintiff and was bequeathed to his father, the plaintiff had no right, title or interest in this property in the lifetime of his father. Therefore, the Relinquishment Deed, if any, executed by him in favour of his father, would be meaningless and would not deprive him of a share in the aforesaid property, on the death of his father. Assuming however that the plaintiff had a share in property No.C-13, Green Park Extension, New Delhi, which he relinquished in favour of his father in his lifetime, that would not take away his legal right to a share in that property on the death of his father, in his capacity as one of his Class I legal heirs. Of course, this is on the assumption that either late Shri Manmohan Prakash died intestate or he did not execute a valid Will in respect of the aforesaid property.