USHA RANI GAUTAM Vs. DEVENDER GAUTAM

JUDGEMENT

(1.) THIS is a suit for partition for partition of the property bearing number J&K- 66, admeasuring 100 square yards out of Rect. No.63-Kila No.15 situated at Laxmi Nagar, Delhi-92 in the area of Village Khureji Khas, Delhi-92. It is alleged in the plaint that the aforesaid property was purchased by late Smt. Sushila Devi, mother of the parties to the suit vide Sale Deed dated 13.07.1970. Late Smt. Sushila Devi expired on 17.2.1995. It is alleged in the plaint that after death of Smt. Sushila Devi, the plaintiffs relinquished their respective share in the suit property in favour of their father Shri Gauri Shankar Gautam. As a result of the aforesaid relinquishment, the share of late Shri Gauri Shankar Gautam in the suit property increased to 4/5th. It is also alleged that late Shri Gauri Shankar Gautam executed a registered Will dated 19.12.2008 whereby he bequeathed all his immovable/moveable properties to the plaintiffs. Shri Gauri Shankar Gautam is also alleged to have executed registered Gift Deed2.9.2009 in favour of the plaintiffs, in respect of the suit property. The plaintiffs are now seeking partition of the aforesaid property.

(2.) THE defendant filed written statement contesting the suit. He took a preliminary objection that the suit was liable to be dismissed being hit by Section 23 of the Hindu Succession Act, 1956. It has been specifically stated in the written statement that the suit property was purchased by the mother of the plaintiffs and the defendant by virtue of the Sale Deed dated 13.7.1970. It is further stated in the written statement that the defendant contributed from his own funds for construction of the suit property. In para 2 of the reply on merits, it is alleged that the suit property was purchased by late Smt. Sushila Devi. It is further alleged that the suit property was purchased by late Smt. Sushila Devi from her own funds and the character of the suit property was self-acquired. The relinquishment by the plaintiffs in favour of their father was alleged to be illegal. The Will of the father dated 19.12.2008 is also stated to be illegal. As regards Gift Deed dated 2.9.2009, the same is alleged to be extraordinary exercise of the plaintiffs and it is stated that the person who has no right against gifting/ giving the suit property.

(3.) IT would be seen from a perusal of the pleadings that as far as the suit property is concerned, it measures only 100 sq yards and not 200 sq. yards. Therefore, the scope of the present suit is confined to the property measuring 100 sq yards and not to the whole of the land which was jointly purchased by Shri Mahabir Prasad Gautam and late Smt. Sushila Devi. The defendant has expressly admitted in the written statement that as far as the suit property was concerned, the same was purchased by late Smt. Sushila Devi from her own funds and was her self-acquired property. Therefore, as far as property in question, which measures only 100 sq yards, since there is an admission that the same was owned only by late Smt. Sushila Devi and there is no averment in the averment in the written statement that the whole of the property measuring 200 sq. yards was jointly owned by late Smt. Sushila Devi and Mr. Mahabir Prasad Gautam, it would not be correct to say that Shri Mahabir Prasad Gautam is a necessary party to the present suit. He would have been a necessary party to the suit, had the partition been claimed in respect of the whole of the 200 sq yards of land purchased by late Smt. Sushila Devi and Shri Mahabir Prasad Gautam. But, as far as the property admeasuring 100 sq yards is concerned, it is the admitted case in the pleadings that the same was self-acquired property of late Smt. Sushila Devi. If the defendant made some contribution for construction being raised on the aforesaid property, that would make no difference as far as the title of the suit property is concerned, as such contribution in construction would not confirm any right upon the defendant in the title of the property and it would be taken only either as a gift or loan from him to his mother who admittedly was the owner of the property.