DURGA PRASAD Vs. OM PRAKASH

JUDGEMENT

(1.) A suit for partition was filed by Om Prakash son of Nanu Ram in the Court of Civil judge, Delhi against his brother Durga Prasad and his sister Smt. Sona Devi in respect of moveable and immoveable properties as described in paragraph 2 of the plaint. In the written statement filed by Durga Prasad, he alleged that his late father Nanu Ram had left behind not only the properties described in paragraph 2 of the plaint, but one other property bearing No. 2/126, Nakul Gali, Pandav Road, Vishwas Nagar, Shahdara, Delhi and, therefore, that property should also have been included in the suit for partition. On the other hand, Sona Devi who had filed separate written statement stated therein that property situated at 2/126, Nakul Gali, Pandav Road, belonged exclusively to her as by a Will dated July 4, 1978 executed by Shri Nanu Ram, it was she alone who was given over the property in question.

(2.) On the pleadings of the parties, as many as 9 issues were framed, but subsequently it was agreed between the parties that they were at variance with each other only with regard to issues nos. 5, 8 and 9, which read as under :-

(3.) The controversy which really arises between the parties is with regard to issue no. 5 and it is, 'whether Smt. Sona Devi acquired property bearing no. 2/126, Nakul Gali, Pandav Road, Vishwas Nagar, Shahdara, Delhi, on the basis of Will executed in her favour by her late father to the exclusion of her brothers and, if so, whether the said property was rightly left out from the suit for partition'. The learned Civil Judge after discussing the evidence that was brought on record decided the issue in favour of Smt. Sona Devi, and consequently, held that she alone had claim over the property bearing no. 2/126, Nakul Gali, Pandav Road, Vishwas Nagar, Shahdara, Delhi. As regard the rest of the properties, the details of which as noticed above were contained in paragraph 2 of the suit, the learned Civil Judge passed a preliminary decree holding that each of the three children of Shri Nanu Ram were entitled to one third share each in the suit properties. The judgment of the learned Civil Judge was challenged in appeal by Durga Prasad before an Additional District Judge, but without success.