RANI DEVI Vs. ASHOK KUMAR NAGI

JUDGEMENT

(1.) Late Lala Karam Chand Nagi was the owner of the properties being Shop Nos. 290 to 296, Bazar Ajmeri Gate, Near New Amar Talkies, Delhi. The said property comprised of not only the shops on the ground floor but also comprised of the first, second and third floors. After the death of Lala Karam Chand Nagi, the plaintiff who is the daughter of the deceased Karam Chand Nagi, filed this suit for partition of the property against defendant No. 1 who is her brother and defendant No. 2 who is the other daughter of the deceased Karam Chand Nagi. It was alleged in the plaint that the deceased died intestate and as such parties to the suit being the legal heirs of the deceased were entitled to I /3rd share each in the said property. While the shops on the ground floor are under the tenancy of the different persons named in the plaint, in a portion of the first floor, the Municipal Corporation of Delhi was running a primary school. The remaining portion of the first floor as well as the second floor and third floor were in exclusive-possession of defendant No. 1. The rent from the shops on the ground floor as well as from Municipal Corporation of Delhi for its occupation on the first floor was being recovered by defendant No. 1 alone. In paragraph 4 of the plaint, the plaintiff has admitted that the entire property in suit was in possession of defendant No. 1 alone. The plaintiff is alleged to have demanded her I/3rd share in the properties from defendant which he refused and this suit was, therefore, filed by the plaintiff for partition of the aforesaid properties. Though, it is mentioned in the plaint that the value of the suit for purposes of Court Fee and jurisdiction was Rs. 21,00,000.00 which was the approximate value of the suit property, however, a fixed Court Fee of Rs. 20.00 has been fixed on the plaint.

(2.) Defendant No. 2 filed her written statement supporting the claim of the - plaintiff while the suit is being contested only by defendant No. 1. In his written statement, defendant No. 1 besides raising a preliminary objection about the suit having not been properly valued for Court Fee and jurisdiction, also denied the locus standi of the plaintiff to file the suit. It was stated in the written statement by defendant No. 1 tha tthe deceased had left a Will dated 22nd November, 1984which was duly registered bequeathing the property in suit to defendant No. 1 alone. Plaintiff was alleged to be fully aware of the said Will and as such, according to defendant No. 1, the plaintiff was not entitled to any share in the property and the suit was, therefore, alleged to be misconceived. After the replication was filed by the plaintiff, the Court framed the following issues on 11th August, 1995:

(3.) Issue No. 1: Besides herself appearing as Public Witness 1, plaintiff also produced one Mr. Kripal Singh as a witness. The plaintiff in her statement stated that after the death of her father, she did not demand any share in the property from defendant No. 1 but had sent a notice Ex. P-l claiming that she owned a share in the property. Reply Ex. P-2 to the said notice was received from defendant No.l.Shedenied any knowledge of the Will alleged to have been executed by her father. In cross-examination she stated that she was married 2-3 years before partition of the country and the suit property was purchased by her grandfather partly from his claims of compensation and partly from his own earnings. She denied the suggestion that the property was purchased by her father and not by her grandfather. She, however, had not read the sale deed of this property. She denied that there was any dispute between her and her father or that she had stopped visiting her father. She denied that her father got her constructed rooms, kitchen, bathroom and latrine in her house for residence. She admitted that in connection with the murder of her son-in-law, her son and husband were arrested, however, she denied that because of this reason her father was not having good relations with her and had disinherited her from the property.