SANJEEV SARIN Vs. RITA WADHWA

JUDGEMENT

(1.) THERE is dispute between the parties with respect to the ownership of the property No.B-1/23, Vasant Vihar, New Delhi. The abovereferred property admittedly was owned by Smt. Madhurekha Sarin, the mother of the parties to the suit. The case of the plaintiff and defendant No.2 is that Smt. Madhurekha Sarin died intestate and accordingly the parties are entitled to one-third share each in the aforesaid property. The case of defendant No.1, on the other hand, is that vide Will dated 1st March, 1999, the aforesaid property along with other assets was bequeathed solely to her by Smt. Madhurekha Sarin.

(2.) IN IA No. 1008/2008, the case of the plaintiff is that the ground floor which defendant No. 1 is illegally occupying since 09.05.1999 when Smt. Madhurekha Sarin expired can fetch rent of about Rs 2,10,000.00 per month and the quantum of rent/damages/mesne profits calculated at the said rate for the period from 09.05.1999 to 09.01.2008 comes to Rs 2,18,40,000.00. He is seeking a direction to defendant No. 1 to pay 1/3rd of the total amount, i.e., 72,80,000.00 to him. He is also seeking a further direction to defendant No. 1 to pay future rent/mesne profit/damages at the rate of Rs 2,10,000.00 per month, for use of the aforesaid portion. The application has been opposed by defendant No. 1 on the ground that in terms of the Will executed by late Smt. Madhurekha Sarin, she is the owner of the whole of the aforesaid property and therefore is occupying the ground floor of the said property in her own right. It is also alleged in the reply that Smt. Madhurekha Sarin was totally neglected by the plaintiff and defendant No. 2 in her old age and it was left to defendant No. 1 to shoulder her entire responsibility. Thereafter, according to defendant No. 1, Smt. Madhurekha Sarin executed the Will dated 01.03.1994, bequeathing all her assets to her. It is also alleged in the reply that defendant No. 2 had illegally misappropriated Rs 3 lakh from the pension account and Rs 7 lakh from the PPF account of Smt. Madhurekha Sarin, whereas he as well as the plaintiff had illegally taken away important documents, including share certificates valued at Rs 60 lakh and having current market value of more than Rs 1 lakh. It is also alleged that they had sold Batala and Mussoorie properties without knowledge of defendant No. 1 though she was also entitled to equal shares in those properties. In IA No. 16447/2011, defendant No. 2, who is the brother of the plaintiff and defendant No. 1, has made a prayer similar to that made by the plaintiff in IA No. 1008/2008, except to the extent that he wants defendant No. 1 to pay future rent/damages/mesne profit at the rate of Rs 2.5 lakh per month. This application has been opposed by defendant No. 1 on the same grounds on which IA No. 1008/2008 has been opposed.

(3.) AS regards ground floor which is occupied by defendant No.1, the request of the learned counsel for the plaintiff is that two-third of the market rent of the aforesaid portion should be deposited by defendant No.1 in the Court. Considering the fact that defendant No.1 is setting up a Will in her favour and no finding with respect to execution or otherwise of the said Will can be returned without recording evidence, it would not be appropriate to pass any such order at this stage, but it is made clear that in the event of the suit being decreed, the Court would take into consideration the fact that the ground floor has been in sole possession of defendant No.1 since the time of death of her mother and shall consider making appropriate adjustments or account imposing suitable conditions of such occupation by defendant No.1. To demonstrate how it would be done, if the Court holds that no Will was executed by Smt. Madhurekha Sarin in favour of defendant No.1 and consequently, she is entitled only to one-third share of this property, the Court may, direct that she would be entitled to one-third share in the aforesaid property only on payment of such amount as the Court may deem it appropriate to the plaintiff and defendant No.2 on account of their being deprived of the ground floor portion of the property, since the time of death of their mother, till the date the occupation continues. IAs 1008/2008 & 16647/2011 stand disposed of in terms of this order. The observations made in this order being tentative and prima facie would not affect the decision of the suit on merits. No order needs to be passed in this application, whereby some reasons for absence of defendant No. 1 on 20.07.2012 were given.