ATUL KUMAR Vs. RAM AVTAR GUPTA

JUDGEMENT

(1.) This is an application by the plaintiff under Order 12 Rule 6 of the Code of Civil Procedure praying for passing of decree on the basis of admission, alleged to have been made by defendant No.1 in the written statement.

(2.) The facts in brief are that the plaintiff has filed a suit claiming a decree for partition of the disputed property which is H.No.860-861, Gali Beriwali, Kucha Patiram, Bazar Sita Ram, Delhi. Plaintiff and defendant No.1 are two sons of late Krishan Lal. Defendants 2 to 7 are the married daughters and defendant No.8 is the widow of Krishan Lal. The property belonged to Krishan Lal and it is not in dispute that after death of Krishan Lal, the plaintiff and defendants have succeeded to the property to the extent of 1/9th share each, being class I heirs as specified in Schedule I of Hindu Succession Act. It is the plaintiff's case that he received a notice dated 31.5.1993 from defendants 2 to 7, copy of which was also addressed to defendants 1 & 8 calling upon them to partition the house, according to the shares of parties. Plaintiff claims that he is in possesion of the property in suit and parties are in joint and constructive possession. Plaintiff has also been ready and willing and is still ready and willing to partition the property in question, but defendant No.1 is not willing to partition the same. Therefore, he being an owner of 1/9th share in the house in joint occupation with defendants is entitled to seek partition of the property and has prayed for passing a decree declaring the shares of the parties and directing the property to be partitioned by metes and bounds.

(3.) Defendants 2 to 8 have chosen not to contest the suit. They have filed written statement admitting the plaintiffs claim. He has contested the suit and filed his written statement. Defendant No.1 has pleaded that property in question, as inherited from late Krishan Lal, who died in 1971 was in a dilapidated condition at the time of his death and the same was repaired and reconditioned and was also made worth living by him out of his own earnings and resources. At the time of death of his father he was aged 30 years and was the only earning member in the family. Plaintiff was minor aged 12 years and was getting education. Expenditure on his education was incurred by him. Marriage of plaintiff as well as of defendants 4 to 7 and remarriage of defendant No.6 who had become widow, during the life time of his father, was solemnised by defendant No.1. Defendant No.1 on death of his father inherited liability of bringing up and educating the plaintiff and performing marriages. Plaintiff with his family, defendant No.8 and defendant No.1 with his family members alone are residing in the house which is sought to be partitioned. Defendant No.1 does not want any partition of the property but has in the written statement stated that he will have no objection to any legal partition.