ADITI UPADHYAY Vs. LALIT KUMAR & ORS

JUDGEMENT

(1.) Suit seeking declaration, permanent injunction and partition filed by the appellant has been dismissed by the learned Single Judge vide impugned judgment and decree dated August 27, 2015.

(2.) Defendants No.1 and 2 are the brothers of the appellant. Defendant No.3 is the sister of the appellant. Defendant No.4 is her mother. The common link would be late Sh.Om Prakash Kumar, the father of the appellant and defendants No.1 to 3 and husband of defendant No.4. It is the case of the appellant that her grandfather Hira Lal was the owner of property bearing municipal No.R -298, Greater Kailash, Part -I, New Delhi on which he had constructed a three storyed building. He had four sons, one of whom was late Om Prakash Kumar. During his life time late Sh.Hira Lal desired to partition the property owned by him and desired to give to late Sh.Om Prakash the second floor with roof rights above, but Om Prakash expressed a desire to his father to bequeath said floor in favour of his i.e. Om Prakash's sons : defendants No.1 and 2 and therefore Hiral Lal bequeathed the second floor and the roof rights above to defendants No.1 and 2. That late Om Prakash was the owner of property bearing Municipal No.U -11, Green Park (Main), New Delhi. The suit property was treated as a family asset. On April 22, 1999, with the consent of all family members, under an oral settlement Om Prakash gave the second floor of house bearing No. No.R -298, Greater Kailash, Part -I, New Delhi to the appellant and divided his house at Green Park between the defendants, which oral settlement was accepted and recognized by all defendants evidenced by a relinquishment deed dated April 22, 1999 executed by defendants No.1 and 2 concerning the second floor of property No.R -298, Greater Kailash, Part -I, New Delhi in appellant's favour. She pleaded that upon Om Prakash's death on August 09, 2005 the defendants started questioning the settlement.

(3.) In a joint written statement filed the defendants admitted that under a will dated September 24, 1986 executed by late Sh.Hira Lal, defendants No.1 and 2 inherited the suit property, but denied any understanding between Hira Lal and his son Om Prakash as pleaded in the plaint. They pleaded that under a will dated November 12, 2002, Om Prakash gave a life interest to his wife in the property in Green Park while making a bequest thereof in favour of his sons. Concerning the relinquishment deed it was pleaded that because their sister wanted to reside in the suit property they executed the relinquishment deed without an intention to create any right in favour of the appellant and for this reason the same was not got registered. Its execution was explained on the plea that the family of other sons of Hira Lal were residing in the ground and the first floor of R -298, Greater Kailash, Part -I, New Delhi and therefore the document was created lest they raise any issue with the appellant to reside on the second floor.