DEVENDRA GARG Vs. YOGENDER KUMAR GARG AND ANR.

JUDGEMENT

(1.) PLAINTIFF , who is brother of Defendants No. 1 to 5 filed this suit for partition, rendition of accounts and permanent injunction seeking a decree of partition in respect of ground floor of property No. BK -1/21 East Shalimar Bagh, Delhi between himself and his brother Shri Yogender Kumar Garg in equal shares and seeking partition of gold jewellery and silver coins, which he alleged in the suit, were handed over and entrusted to defendant No. 2 (Shri Mahavir Prasad Garg) by the mother of the parties. He also prayed that defendant No. 2 be directed to render accounts of shop No. 4635 -36 Deputy Ganj, Sadar Bazaar w.e.f. 1st April, 1982 i.e. after death of father of the parties.

(2.) THE case put up by the plaintiff is that the property No. BK -1/21 East Shalimar Bagh was purchased out of the sale proceeds of property No. 1160, Baradari, Behind Novelty Cinema, owned by the grandmother of the parties. Defendants No. 1 to 3 and plaintiff were living in this property together with their mother and mother divided this property in four equal parts before her death in a oral family settlement and gave ground floor to the plaintiff and defendant No. 1 and first floor to defendants No. 2 & 3. Regarding shop, he submitted that the shop was being run in the name of M/s Sat Narayan Ravinder Kumar by the father of the plaintiff and defendants and after death of the father in 1982, the shop was looked after all alone by defendant No. 2 Shri Mahavir Prasad Garg and no account of earnings of the shop have been given by defendant No. 2. The total profit earned from the shop from 1982 till filing of the suit was about Rs. 33,00,000/ - and share of the plaintiff would come to Rs. 8,25,000/ -. plaintiff had deposited Rs. 35,000/ - as property tax of the house, which defendants No. 1 to 3 were to share equally but they refused to share. plaintiff also invested approximately Rs. 1,00,000/ - in the shop by purchasing goods for the shop and for paying Rs. 15,000/ - towards sales tax. plaintiff had also spent around Rs. 2,00,000/ - on the construction of a room on the second floor. When the plaintiff asked defendants No. 1 -3 for his share in the shop and share in the property, defendant No. 1 refused to partition the ground floor in equal share and refused to give back the money spent by plaintiff on construction and defendant No. 2 refused to account for the earnings of the shop. He also submitted that mother of the parties had entrusted gold jewellery and silver coins worth Rs. 8,00,000/ - and Rs. 12,500/ -respectively with defendant No. 2 and his wife and the same was also not accounted for and divided.

(3.) IN the WS filed by the defendants 1, 2, 4 & 5, it was stated that Smt. Ram Dulari, mother of the parties had executed a Will dated 8.5.1986 and bequeathed property No. BK1/21, East Shalimar Bagh to her four sons in equal shares. The claim of the plaintiff that there was an oral family settlement effected by the mother was denied. Regarding shop it was stated that defendant No. 2 was the tenant in the shop in his individual capacity and the landlord was issuing rent receipts in favour of defendant No. 2. plaintiff had no right over the shop. It was further submitted that after death of the father in 1982 mother of the parties became proprietor of the firm M/s Sat Narayan Ravinder Kumar in the year 1982, however, no work was done in the firm from year 1987 onward as sale of the firm became nil. The mother of the parties had suffered a paralytic attack in the year 1985 and ever since remained on bed and she ultimately died on 29.9.1998. M/s Sat Narayan Ravinder Kumar stopped its work from the year 1993 -94. All earlier assets of the firm had been utilized in the treatment of the mother and not a single paisa was left. There was nothing left to be distributed among the family members. After closure of earlier business, it was defendant No. 2, who had been running the shop in his individual capacity. The assertion made by the plaintiff that the firm earned profits of Rs. 33,00,000/ - between 1982 -1997 was denied and it was submitted that defendant No. 2 was doing petty business of selling utensils in the shop and the goods lying in the shop were on the credit basis. It was denied that the plaintiff spent any amount on the construction of the house. It was stated that a room and bathroom were constructed on the second floor of the house from the joint funds and the plaintiff had not spent anything from his individual funds. It was denied that plaintiff deposited Rs. 35000/ - as property tax of the house or he made any other payment. It is submitted that the house was only built on 72 sq. m. and the annual property tax was Rs. 1320/ -. Even if the entire house tax from the date of construction was counted, the same would not come to Rs. 35000/ -. It was also denied that plaintiff invested Rs. 1 lac in the shop or paid any sales tax of the shop. It was denied that plaintiff was entitled for any accounts of the shop or he was entitled to receive any amount.