VIKRAM KAUSHIK AND ORS. Vs. VIVEK KAUSHIK

JUDGEMENT

(1.) THE present suit is a suit for partition. It has been filed by the plaintiffs Vikram Kaushik and Jyotsna Kaushik. Defendant Vivek Kaushik is their brother. The immovable properties which are the subject matter of the present suit are - (i) L -19, Lajpat Nagar -III, Delhi -110024; (ii) Flat No. 1402, Marathon Galaxy -I, L.B.S. Marg, Mulund, Mumbai and (iii) Agricultural land in two pieces comprising of about 10 acres each in village and post office Shedawan, District Bulandshahar, Uttar Pradesh (hereinafter referred to as the suit property).

(2.) THE parties to the suit are legal heirs of deceased Hem Chandra Kaushik who had died intestate on 10.8.2008 leaving behind three Class -I heirs i.e. the two plaintiffs and the defendant. His wife had predeceased him on 15.11.1997. Contention is that the superstructure which has been erected in L -19, Lajpat Nagar -III, New Delhi consists of a basement, ground floor, first floor and second floor. The second floor is vacant which is under the constructive possession of the parties. The basement and the ground floor are in occupation of the defendant. The first floor is under tenancy. Rent of the first floor at Rs. 50,000/ - is being received by the defendant. The second floor had also been let out at monthly rental of Rs. 30,000/ - per month. The flat in Mumbai is a two bedroom, one hall, one kitchen with a super area of 978 sq. feets. The third property i.e. the agricultural in Bulandshahar inherited by late Sh. Hem Chandra Kaushik by virtue of a Will executed by his father Late Sh. Kishore Lal Sharma.

(3.) WRITTEN statement was filed by the contesting defendant. His submission is that the property at Lajpat Nagar is in his actual physical possession. The plaintiff no. 1 is in occupation of the flat at Mumbai. At the time of marriage of plaintiff no. 2 being the only daughter of the deceased she was given a huge fortune in order that she could purchase her own accommodation. She had purchased a flat in Dr.Mukherjee Nagar, Delhi and the money for the purchase of this property had been paid by their father. Contention of the defendant is that the parties had arrived at an oral family settlement by virtue of which the right in the Mumbai property had fallen to the share of plaintiff no. 1. There was a flat in Dwarka which has also been purchased from the funds of the plaintiff which also fell to the share of plaintiff no. 1 and which purchase had been financed by the deceased with an agreement that the balance installment will be paid by plaintiff no. 1. Submission is that in terms of this oral family settlement, which had been arrived at and acted upon between the parties, the present suit is not maintainable. It is liable to be dismissed.