Mr. Ramesh Arya v. Mr. Pawan Arya and Ors

RAJIV SAHAI ENDLAW, J SEPTEMBER 05, 2019 "gsr"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 5th September, 2019 + CS(OS) 520/2018, IA No.14303/2018 (u/O XXXIX R-1&2 CPC) & IA No.4492/2019 (u/O VII R-11 CPC) RAMESH ARYA ..... Plaintiff Through: Mr. Pulkit Thareja, Adv. Versus PAWAN ARYA AND ORS. ..... Defendants Through: Mr. Anil Garg, Adv. for D- 1,2,6&7. Mr. R.S. Kela & Mr. Bharat Prakash, Advs. for D-3 to 5. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit for partition of property No.A-135, Priyadarshini Vihar, New Delhi, pleading that (i) Sh. Paramanand Arya, being the father of the plaintiff, defendants no.1,2 and 7 and of Shiv Kumar Arya, another brother of the plaintiff and defendants no.1,2 and 7 was the owner of the said property constructed over land ad-measuring 360 sq. yds.; (ii) Shiv Kumar Arya has died leaving the defendants no.3 to 6 as his widow, sons and daughter respectively; (iii) Sh. Parmanand Arya has left a validly executed registered Will dated 8th September, 2005 bequeathing the entire property in favour of his five children; and, (iv) thus the plaintiff, defendants no.1,2 and 7, each have a 1/5th undivided share in the property and the defendants no.3 to 6 together have remaining 1/5th share in the property. 2. The suit was entertained and vide ex parte ad-interim order dated 14th November, 2018, which continues to be in force, the parties restrained from alienating, encumbering or parting with possession of, or any part of, property No.A-135, Priyadarshini Vihar, New Delhi. 3. One joint written statement has been filed by defendants no.1,2,6 and 7 and another joint written statement has been filed by defendants no.3 to 5. 4. The defendants no.1,2,6 and 7 have filed IA No.4492/2019 under Order VII Rule 11 of the CPC. 5. The counsel for the defendants no.1,2,6 and 7 has drawn attention to the Will dated 8th September, 2005 of the father Parmanand Arya inter alia providing as under: "I have the following sons and daughters: 1. Shiv Kumar Arya 2. Satish Arya 3. Ramesh Arya 4. Pawan Arya 5. Mrs. Anju Nijhawan. I have great love and affection for all my legal heirs. So long as I am surviving I shall continue to be the sole and absolute owner of the property bearing no.A-135, Priydarshini Vihar, Delhi and none of my legal heirs, relatives shall have any kind of right or interest in the said property in any manner whatsoever. Now I bequeath that after my death the said property shall subsequently devolve upon my sons and daughter and that none of them shall have any right to get the property partitioned, mortgaged or alienated in respect of the whole or any part in any manner whatsoever. I state that after my death the property No.A-135, Priydarshini Vihar, Delhi shall be shared in equal proportion by all the 5 legal heirs equally. This Will is made by me voluntarily wilfully without any force or coercion from any side and the same has been made to set at rest all the controversies, claims or interference of any relative, person or legal heirs in any manner whatsoever and to save any family members from any kind of litigation which may accrue due to the mischief of any person in the family or outside. I have gone through the contents of the Will and understood the same very well and thereafter the Will is being signed." and has argued that since the father Parmanand Arya has willed that none of his children, including the plaintiff, will have any right to get the property partitioned, this suit for partition of the property does not lie. Attention is drawn to Section 122 of the Indian Succession Act, 1925 providing as under: 122. Onerous bequests.- Where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully. Illustration A, having shares in (X), a prosperous joint stock company and also shares in (Y), a joint stock company in difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint stock compani