SAMEER MAGOO Vs. VIJAY KR. MAGOO

JUDGEMENT

(1.) THE plaintiff is the son of late Suman Magoo. He sues for a decree of partition of ground floor of property E -613, Greater Kailash -II, New Delhi ("the suit property"). The said property belonged to Mr. Dharam Pal Puri father of the said late Suman Magoo. It is the admitted position that Mr. Dharam Pal Puri was the owner of the aforesaid property and died intestate leaving, -besides Ms. Suman Magoo (his daughter), two sons Mr. Anil Puri and Mr. Deepak Puri and his widow, Ms. Rup Lata Puri as his heirs. It is not in dispute that Ms. Rup Lata Puri also died intestate subsequently, before institution of the present suit.

(2.) THE plaintiff contends that Mr. Anil Puri, who died before filing of this suit (and whose legal representatives are defendants No. 2 to 4), his mother Suman Magoo aforesaid and Mr. Deepak Puri (whose legal representatives are Defendants No. 5 and 6) acquired 1/3rd equal share in the property.

(3.) THE defendants No. 5 and 6 in their written statement admitted that the plaintiff and the Defendant No. 1 are the son and husband of late Suman Magoo. They contested the suit on the ground that Ms. Suman Magoo during the lifetime of the father had been given enough money and gifts and thus was not left with any share in the property. They also contend that since Ms. Suman Magoo during her lifetime did not have any right of partition by virtue of Section 23 of the Hindu Succession Act, notwithstanding its repeal, the plaintiff cannot claim partition. It is further stated that the plaintiff and Defendant No. 1 prior to the institution of the present suit instituted a suit for declaration and mandatory injunction in the District Court with respect to the said property, which was withdrawn therefore, the present suit is not maintainable. The valuation for purposes of court fee was also challenged, the plaintiff not being in possession of the property.