JANAK KAPOOR Vs. AMIT KAPOOR

JUDGEMENT

(1.) This appeal impugns an order dated 06.09.2017 passed by the learned Additional District Judge in dismissing the appellants application under Order 7 Rule 11 CPC, whereby the appellants-defendants had sought rejection of the suit, as being not maintainable. Respondent no.1 - Mr. Amit Kapoor had filed a suit for declaration, cancellation and permanent injunction against his mother - defendant/ appellant no.1 and his sister Ms. Roma Malhotra - defendant/ appellant no 2.

(2.) The brief facts of the case are that Late Mr. Kewal Krishan Kapoor had purchased a property bearing no.8A/140, WEA, Karol Bagh, New Delhi (hereinafter to be referred as the 'suit property') from one Mr. Dhruv Kumar in the year 1974. It was his self-acquired property. He had, by a Will dated 22.08.1994, bequeathed it to his wife Ms. Janak Kapoor - appellant no.1, with the observation that if she was not alive at the time of his death, the suit property would be inherited equally by his two sons i.e. Mr. Amit Kapoor and Mr. Rajiv Kapoor, the respondents herein. After his demise, it stood transferred in the name of his widow, Ms. Janak Kapoor with the 'No Objection' from all her children and a Conveyance Deed was executed by the Delhi Development Authority (DDA) on 01.06.2012; basically on the basis of the aforesaid Will and 'No Objection' issued by the children. In effect, by virtue of the said Conveyance Deed, Ms. Janak Kapoor became the absolute owner of the aforesaid property. Since the property was old, appellant no.1 - Ms. Janak Kapoor thought it appropriate to rebuild the same. A property developer was engaged, to whom one floor i.e. the second floor of the proposed new building was allocated. In other words, the entire property comprising a stilt parking, the upper ground floor, first floor, third floor and the roof rights would come to the share of Ms. Janak Kapoor, whereas the second new floor would be appropriated by the builder. After the super structure of the new building was built, due to delay in the completion of the project, the project was taken over and completed by Ms. Janak Kapoor. Nevertheless, the second floor was peacefully handed over to the property developer, who further sold it to a third party. There is no lis apropos the second floor. While the building was being constructed, the entire family was accommodated elsewhere, for which the rent was paid by the builder. After the building was completed, her sons Mr. Rajiv Kapoor and Mr. Amit Kapoor occupied the upper ground floor and the first floor at their own will. The mother gifted the third floor to her married daughter Ms. Roma Malhotra by the Registered Gift Deed dated 04.11.2015 and since the latter was living in her matrimonial home, while leaving the mother to occupy the top floor, much to her dislike, disapproval and discomfort as well as leaving her feeling ostracized. She was already a patient of acute arthritis and was having difficulty in moving about. Now, having been flung to the top floor, her sense of alienation has increased. Albeit, the building has a facility of lift, nevertheless, to her it does not have the same benefit and advantage of being on the upper ground floor that is closer to the earth. She was already 76 years.

(3.) The appellants i.e. the mother and daughter had contested the maintainability of the suit and sought its dismissal under Order 7 Rule 11 CPC on the ground that i) the absolute right having been conveyed to the mother in terms of the Will and accepted without any demur by the respondents - Mr. Amit Kapoor and Mr. Rajiv Kapoor, resulting in the Conveyance Deed in favour of the mother, it had extinguished all rights, if any, in favour of the sons; ii) that after the execution of the Conveyance Deed dated 01.06.2012 by the DDA, appellant no.1 - Ms. Janak Kapoor became the absolute owner of the suit property, it was for her to use, develop or dispose-off as she desired; iii) the Collaboration Agreement with the property developer did not create or suggest any rights in favour of the sons and iv) the mother's share would come to her except for the second floor, which was to be given to the property developer for his investment in developing the property.