VINEETA SHARMA Vs. RAKESH SHARMA

JUDGEMENT

(1.) The plaintiff has filed this suit for partition against her brothers and mother in respect of built up premises A-53, South Extension, Part II, New Delhi.

(2.) The undisputed facts are that the suit premises was purchased and built up by the plaintiff's father, wherein he along with his family stayed for some time and also let out a portion thereof to the tenants. He died on 11.12.1999, leaving behind the plaintiff and three sons namely the defendants No. 1, 2, Dr. Shailendra Sharma (since deceased) and wife (defendant No. 3). Dr. Shailendra Sharma also expired on 01.07.2001. The plaintiff's case is that since her father and brother died intestate, she is entitled to one-fourth share in the suit premises. She states that she is also in possession of the suit premises as some of her goods/movable assets are lying there and that, whenever she visits her paternal home, she stayed there in the suit premises. She states that on 21.07.2001, it was orally decided with the defendants No. 1 and 2 that the suit premises will be divided by metes and bounds and that in case, it could not be divided, she would be given the entire Barasati floor with roof rights as towards her one-fourth share. She alleges that the defendants No. 1 and 2 had been avoiding to give her due share and thus, she got issued a notice dated 17.10.2001, calling upon them to partition the suit premises, and which notice was replied by them on 13.11.2001, alleging that the suit premises was HUF property and the father had executed a Will in their favour; but the said Will was not traceable now. The plaintiff avers that the suit premises were never treated as HUF property and no Will was ever executed by their father. She has valued the suit premises at Rs. 40 lakhs and states that as she is in possession thereof, the court fee of Rs. 19.50 only was payable for the relief of partition.

(3.) The defendants No. 1 and 2 contested the suit. They filed separate written statements on identical lines. Their case is that the plaintiff being the married daughter, had only restricted rights in the suit premises and could not seek its partition. They denied the plaintiff to be in possession of any portion of the suit premises and state that the suit being not properly valued, was liable to be dismissed. They aver that the plaintiff is also not entitled to any share, as the suit premises was a HUF property, and was so assessed by the Income Tax Department as also the Wealth Tax Authorities. It is averred that after the death of their father, their mother (defendant No.3) had been residing with defendant No. 2 and whenever the plaintiff visited her mother, she returned back to her matrimonial house on the same day. They denied their having had a meeting on 21.07.2001 or having agreed to the partition of one-fourth share of the plaintiff, as alleged. They aver that they were told about the Will by Sh. B.D.Sharma, the elder brother of their father in the presence of the plaintiff, but, he died before handing over the said Will to the defendants and so the said Will could not be made available to them. Defendant No. 1 also states having substantially contributed in the acquisition and development of the suit premises, as he paid Rs. 11000/- to his father for repayment of the loans taken for construction of the premises.