ANITA ROY Vs. SAMIR MAJUMDAR & ORS

JUDGEMENT

(1.) The plaintiff, in this suit for partition of property bearing No.G-1425, Chittaranjan Park, New Delhi, vide IA No.3273/2019 seeks to withdraw the suit.

(2.) The counsel for the defendants No.2 & 4 i.e. Shipra Chakraborty and Chitra Kapoor contends that this application has been filed to prevent the defendant No.4 Chitra Kapoor from transposing herself as plaintiff in the suit and for which purpose, the application has been filed and which is likely to come up before this Court tomorrow.

(3.) The counsel for the defendant No.1 has argued, (i) that late Shri B.B. Majumdar, father of the plaintiff and defendants No.1 to 4 and husband of defendant No.5, was the owner of the aforesaid property; (ii) that Shri B.B. Majumdar left behind a validly executed last registered Will with respect to the said property; (iii) that defendant No.2 first filed a petition before the District Judge, Delhi seeking Letters of Administration with respect to the aforesaid property, claiming that Shri B.B. Majumdar died intestate; defendant no.1 produced the Will in the said proceedings and whereupon the defendant No.2 Shipra Chakraborty, on 29th March, 2005 withdrew the said petition, without prejudice to her rights and the petition was dismissed as withdrawn, without prejudice to the rights of the said Shipra Chakraborty; attention in this regard is drawn to pages 33 and 43 of Part III-B file; (iv) that the said defendant No.2 Shipra Chakraborty thereafter filed a suit before the Civil Judge, Delhi, for declaration as null and void of the document claimed by defendant No.1 to be the Will and for permanent and mandatory injunction with respect to the property; preliminary issues were framed in the said suit as to the maintainability thereof on account of withdrawal of earlier petition for Letters of Administration and on the ground of limitation; though the issue qua the bar under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) was decided in favour of the defendant No.2 Shipra Chakraborty but it was held that the suit was barred by limitation and the suit was dismissed; attention in this regard is drawn to pages 53 and 34 of Part III-B file; (v) thereafter, defendant No.5, being the mother of the parties, instituted a suit against the defendant No.1 and which suit was disposed of in terms of the Settlement Agreement dated 16th May, 2014 at page 75 of Part III-B file; (vi) that under the Will claimed by the defendant No.1, defendant No.5 has a right of residence during her lifetime and else the house has been bequeathed only to the defendant No.1, subject to defendant No.1 paying certain amounts to the sisters; and, (vii) that defendant No.1 has paid the named amount to the defendant No.2, as evidenced from the documents at page 23 of Part III-B file.