RAJENDRA SHANKER Vs. DAVENDRA SHANKER

JUDGEMENT

(1.) LATE Shri Damodar Das Mathur who died on February 07, 1995 and late Dr.R.D.Mathur who died on October 28, 1995 were real brothers. Whereas Dr.R.D.Mathur died issueless, Shri Damodar Das Mathur was blessed with two sons named Rajendra Shanker and Davendra Shanker.

(2.) WITH respect to property bearing Municipal No.104, Jor Bagh, New Delhi-110003, registered owner whereof was late Shri Damodar Das Mathur, a will was set up by Devendra Shanker, stated to have been executed by Damodar Das Mathur on April 12, 1994. He set up another will stated to have been executed by late Dr.R.D.Mathur on April 26, 1994. As per the first will, late Shri Damodar Das Mathur made a life term bequest of the property in question in favour of his brother Dr.R.D.Mathur, and thereafter his i.e. Dr.R.D.Mathur's wife. This was a life interest conferred. The ultimate beneficiaries were Rajendra Shanker and Davendra Shanker, sons of Damodar Das Mathur. He bequeathed the ground floor and first floor of the property to Davendra Shanker and the partly constructed barsati floor to Rajendra Shanker. This was also the bequest made by Dr.R.D.Mathur, probably for the reason, if there was any dispute to he having acquired a life interest in the property or a residual interest under the will executed by his brother.

(3.) VIDE impugned judgment and decree dated December 05, 2011, the learned Single Judge has held that the two wills were duly proved and hence has ordered a probate to be granted with will annexed. However, it has been held that the subject property was treated as the Joint Family Property by late Shri Damodar Das Mathur and his brother Dr.R.D.Mathur, in which the two sons of late Shri Damodar Das Mathur i.e. Rajendra Shanker and Davendra Shankar were co- parceners thereof. Thus, the view taken by the learned Single Judge is that Damodar Das Mathur, Dr.R.D.Mathur, Rajendra Shanker and Davendra Shanker would be 1/4th owner each of the property in question; as a result thereof, the learned Single Judge has held that under the two wills bequest would require the subject property to be partitioned by declaring the share of Rajendra Shanker as 1/4th and that of Davendra Shanker as 3/4th i.e. the two wills have been held to operate only qua the 1/4th interest each of Damodar Das Mathur and Dr.R.D.Mathur in the subject property.