LAWS(DLH)-2012-2-562

KANAK LATA JAIN Vs. SUDHIR KUMAR JAIN

Decided On February 24, 2012
Kanak Lata Jain Appellant
V/S
SUDHIR KUMAR JAIN Respondents

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 31.1.2011 which decreed the suit of the respondent Nos.1 and 2/plaintiffs for partition of the suit property belonging to the mother of the parties, Smt. Rajmati Jain. The trial Court passed a preliminary decree declaring all the legal heirs of Smt. Rajmati Jain including the plaintiffs to be 1/8th co-owners in the suit property. The plaintiffs/respondent Nos.1 and 2 were also held entitled to rendition of account of the rental income received by the defendant Nos.1 to 3/appellants.

(2.) The facts of the case are that admittedly Smt. Rajmati Jain was the owner of the property bearing plot No. 67, Mauza Shakurpur, Delhi bearing Municipal No. WZ-16 & 17, Golden Park, Rampura, Delhi admeasuring 224 sq. yds. Smt. Rajmati Jain expired on 6.4.1987 leaving behind eight legal heirs. The husband of Smt. Rajmati Jain i.e. Sh. Jagmohinder Lal Jain expired on 27.6.1987. In the plaint, it was pleaded that Smt. Rajmati Jain did not execute any Will during her lifetime, and since she died intestate, all her eight legal heirs being the plaintiffs and the defendant Nos.2 and 4 to 8 became 1/8th co-owners of the suit property. It was pleaded in the plaint that the plaintiffs with the defendant Nos.2 and 4 had been carrying on a partnership business in the name and style of M/s. J.K. Medical Products since 1977 at 94-Darya Ganj, New Delhi and the suit property was used as a godown upto the year 1999. It was then pleaded in the plaint that when in August 2003 the plaintiffs/respondent Nos.1 and 2 approached the defendant No. 2/appellant No. 2 for partition, the matter was delayed on one pretext or the other. It was pleaded that it transpired that the defendant No. 1/appellant No. 1 claiming herself to be the owner of the suit property sold the same to defendant Nos.2 and 3 by a sale deed. Defendant No. 2 is the husband of defendant No. 1 and defendant No. 3 is the real sister of defendant No. 1. The plaintiffs were shocked and surprised to receive the certified copy of the sale deed on 25.9.2003 in which it was alleged that the defendant No. 1 had become owner of the suit property by virtue of the Will dated 10.1.1987 of the mother-late Smt. Rajmati Jain. It was pleaded that there was no valid Will of Smt. Rajmati Jain dated 10.1.1987 and consequently it was pleaded that the suit property was liable to be partitioned.

(3.) The suit was contested by the appellants/defendant Nos.1 to 3 while relying upon the Will dated 10.1.1987 allegedly executed by the mother Smt. Rajmati Jain. It was pleaded that by virtue of the Will dated 10.1.1987, Smt. Rajmati Jain bequeathed the suit property in favour of her daughter-in-law i.e. defendant No. 1 and thereby she became sole owner of the suit property. It was pleaded that the defendant No. 1 finally sold the property on 14.5.1998 to her husband-defendant No. 2 and her sister, defendant No. 3.