Satish Kumar Chojar v. Subhashni Chopra & Ors

RAJIV SAHAI ENDLAW, J. JULY 01, 2014 aa/bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st July, 2014. + CS(OS) 2190/2011 & IA.No.7476/2013 (of plaintiff to lead additional evidence SATISH KUMAR CHOJAR ..... Plaintiff Through: Mr. Prabhjit Jauhar, Ms. Anupama Kaul and Mr. Jeevan Sharma, Adv. Versus SUBHASHNI CHOPRA & ORS. ..... Defendants Through: Mr. G.D. Chopra, Adv. for D-1 & 3. Mr. Manuj Aggarwal, Adv. for D-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit, for partition of property bearing No.29/19, East Patel Nagar, New Delhi ("suit property"), and for permanent and mandatory injunctions with respect to the property, pleading:- I) that late Sh. Shanti Sarup Chojar (father of the plaintiff and the three defendants) was granted leasehold rights in the suit property vide registered perpetual lease deed dated 23.01.1981 executed in his favour by the President of India through the Land & Development Office; II) that late Sh. Shanti Sarup Chojar executed a registered Will dated 18.11.1991 recording that the plaintiff had been financially helpful to him during his lifetime and bequeathing 55% share in the suit property to the plaintiff and 5%, 20% and 20% to defendants No.1,2 &3 respectively; III) that it was also envisaged under the Will that the wife of Sh. Shanti Sarup Chojar (Smt. Sushila Chojar) would be entitled to possession of the suit property and to realise rent therefrom during her lifetime and upon her demise, the property would devolve upon the legal heirs as per the ratio provided in the Will aforesaid; IV) that Sh. Shanti Sarup Chojar expired on 18.11.1998 leaving behind his wife, the plaintiff (son), and the defendants (daughters) as his only natural heirs; the wife of Sh. Shanti Sarup Chojar also expired on 30.01.2007; V) that the plaintiff is in possession of the ground floor of the suit property whereas the defendant No.3 is in occupation of the first and second floors; the defendants No.1&2 reside in their respective matrimonial homes; VI) that though the plaintiff is also in occupation of a room on the second floor of the suit property but the entry thereto has been blocked by defendant No.3 by putting a lock on the entrance of the second floor; VII) that a meeting was arranged on 02.06.2011 between the plaintiff and the defendants where the plaintiff expressed the desire to partition the suit property as per the Will of Sh. Shanti Sarup Chojar but the said request was refused by the defendants No.1 to 3 who insisted that the property be divided between the four legal heirs in equal shares; VIII) that the request of the plaintiff to get the suit property mutated in the ratio contained in the Will and thereafter have the same converted into freehold from leasehold was also turned down; IX) that the plaintiff was thus constrained to get issued a legal notice dated 15.06.2011 calling upon the defendants to partition the suit property in the said ratio and the same was duly served on all the defendants; and, X) that though the defendants No.1&3 refused to accept the notice but a reply dated 24.06.2011 was received from the defendant No.2 who in paragraph 3 thereof has accepted the fact that her late father Sh. Shanti Sarup Chojar had left behind a Will whereunder she was entitled to 20% share in the suit property and that she has no objection to the said Will. The plaintiff has accordingly prayed for a decree, of partition of the suit property, declaring the shares of the plaintiff and the defendants therein as per the Will aforesaid, of permanent injunction restraining the defendants from creating third party rights in the suit property and of mandatory injunction directing the defendants to join in applying for mutation of the property as per the shares under the Will aforesaid and to thereafter in applying for getting the leasehold rights in the suit property converted into freehold. 2. The defendants No.1&3 have contested the suit, by disputing the existence of any Will and further claiming