BHULLAN Vs. EHSAN ELAHI

JUDGEMENT

(1.) The present second appeal is directed against the judgment dated December 14, 1976, of Additional District Judge, Delhi. The learned Judge upheld the judgment dated March 31,1975 of the trial court in suit No. 424/75.

(2.) The brief facts of the case are that one Mehboob Elahi filed a suit for partition in respect of property bearing Municipal Nos. 7590 to 7592 situated in Gali Ghante Wali, Qasabpura, Delhi alleging that Badruddin was the owner of the aforesaid properties having obtained the same in family partition on September 18, 1944; that be had four sons, namely, Mehboob Elahi, Noor Elahi, Maqbool Elahi and Fazal Elahi and one daughter Smt. Bhullan appellant/defendant herein. Badruddin died on March 2, 1968 and, as a consequence, his sons and daughters became owners of the aforesaid properties; that the sons had 2/9th share each while Smt. Bhullan had 1/9th share; that Mehboob Elahi did not want to keep his share with other heirs and thus he filed a suit for partition. Mehboob Elahi died during the pendency of the suit and Noor Elahi, who was defendant no.l in the suit, was substituted as a plaintiff in his place, Lateron, Noor Elahi also died and his legal representatives were brought on record as plaintiffs. The municipal number of the property to be partitioned was also amended to 7589-7592 in place of the original municipal numbers 7590-7592. It is further stated that Mehboob Elahi sold his share to Noor Elahi on January 21, 1969, while Maqbool Elahi sold his share to Noor Elahi on March 23, 1971 and in this way Noor Elahi became owner of the 2/3rd share of the property. The share of the appellant/ defendant was held to be l/9th in respect of the property as mentioned above.

(3.) The suit was contested by Smt. Bhullan alleging that the suit for partition was not maintainable as it was for partial partition for estate of the deceased. Late Badruddin made a Will dated February 24, 1968 in favour of the appellant bequeathing property No. 7591 Qasabpura , Delhi in her favour; that the Will was registered with the Sub Registrar on February 28, 1968 and thereafter the deceased Badruddin called his sons, other relations and friends and asked his sons to admit and honour the Will made by him and that such an assurance was given by the brothers of the appellant to their father Badruddin. The appellant, accordingly, contended that she became the absolute owner of property No. 7591 which had been in her occupation; that the other heirs of Badruddin had no right, title or interest in the said property and the suit be dismissed.