RAJINDER KUMAR RAKYAN Vs. JITENDER KUMAR RAKYAN

JUDGEMENT

(1.) This appeal is an off-shoot of acrimonious family litigation between two brothers, to which the father aged 82 years is a mute and helpless witness. The appellant No. 1 Mr. Rajinder Kumar Rakyan is the elder brother, the appellants No. 2 and 3 Mr. Ravi Rakyan and Mr.Pankaj Rakyan are his sons. The respondent No. 1 is Mr. Jitender Kumar Rakyan. The present appeal is against the order of the learned Single Judge dated 26.7.1996 and 31.7.1996. By the order dated 26.7.1996, learned Single Judge as an interim measure pending the suit had directed that the disputed barsati room bedivided byerecting a partition wall with 2/3 of the barsati room being allotted to the appellants and 1/3 to the respondent, who would in addition have the use of the adjoining store room and the toilet on the barsati floor.

(2.) The facts leading to the appeal are that respondent No. 1 and late Smt. Krishna Kumari Rakyan had purchased property bearing No. W/114, Greater Kailash, Part-I, New Delhi -110 048 in 1971. Smt Krishna Kumari Rakyan expired in December, 1981 bequeathing her half share in favour of appellant Nos. 2 and 3. Thus the appellant No. 1 and the respondent Nos. 2 and 3 became owners in equal shares.

(3.) The case of the appellants is that on 20.4.1991, the appellant No. 1 as guardian of appellant Nos. 2 and 3 entered into a memorandum of partition dividing the property in question, by metes and bounds and providing for user of the different portions. The stamp paper to the said memorandum is claimed to have been produced by respondent No. 1. The memorandum is duly witnessed by one Mr. Vijay Kumar Jain and a family friend and partner of M/s. Indian Art Palace. The memorandum is accompanied with plan, wherein different portions of the property which fell to the share of the parties are duly delineated and marked. The plan is duly signed by the respondent.