Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on : 2 November, 2018
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Date of decision : 4 February, 2019
+ CS(OS) 2746/2014 & I.A. 9466/2015, 11813/2017 & 2287/2018
DHIAN NATH KAPUR ..... Plaintiff
Through: Mr. Alok K. Aggarwal and Mr.
Apoorv Rastogi, Advocates.
(M:9899068509)
versus
PRAN NATH KAPUR ..... Defendant
Through: Mr. Jasmeet Singh, Advocate for LRs
with Ms. Meera Bajaj/LR1 in person.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. Late Shri Dina Nath Kapur was the owner of property bearing No.14,
Park Area, Karol Bagh, New Delhi-110005 (hereinafter „Suit Property‟) . He
had two sons, the Plaintiff- Shri Dhian Nath Kapur and the Defendant - Shri
Pran Nath Kapur ( hereinafter, „Pran Nath Kapur‟ ). The property is a
rectangular plot 170.4 feet long and 69.8 feet wide. Shri Dina Nath Kapur
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passed away on 20 March, 1978. He had executed a registered Will dated
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15 May, 1965, registered on 29 May, 1965. There is no dispute between
the parties that each of the parties owns and is entitled to 50% share in the
property.
2. The present suit was filed by Shri Dhian Nath Kapur, through his duly
constituted attorney, his daughter Dr. Anu Kapur ( hereinafter, „Plaintiff‟ ).
CS(OS) 2746/2014 Page 1 of 19
The parties attempted mediation to amicably partition the property -
however, no settlement could be arrived at. Accordingly, the present suit
was filed seeking the following reliefs:-
“i) pass a preliminary decree for partition of the
aforesaid immovable property No.14, park Area,
Karol Bagh, New Delhi-110005, declaring that
the plaintiff and defendant are having 50% equal
share each therein;
ii) appoint a Local Commissioner preferably an
Architect to suggest the mode of partition by
metes and bounds of the suit property No.14, Park
Area, Karol Bagh, New Delhi-110005 and after
the report is submitted a final decree be passed
dividing the aforesaid suit property and giving
50% equal share to the plaintiff in accordance
with law;
iii) a decree of permanent injunction against the
defendant and in favour of the plaintiff thereby
restraining the defendant, his agents, servants,
employees, relatives, representatives, contractors,
labourers, or any one claiming on behalf of the
defendant from refurnishing and carrying out any
construction activities in the suit property and/or
selling, alienating, transferring, creating third
party interest and/or parting with possession of
the suit property in favour of any one including
his relatives, descendants, representatives or
agents or any other person or persons, in any
manner whatsoever in whole or part of the suit
property i.e., No.14, Park Area, Karol Bagh, New
Delhi-110005;
iv) award the costs of the present proceedings in
favour of the plaintiff and against the defendant.”
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3. The suit was initially listed on 10 September, 2014 on which date an
ex-parte ad-interim injunction was granted in the following terms:
CS(OS) 2746/2014 Page 2 of 19
“Accordingly, till the next date of hearing, parties are
directed to maintain status quo with regard to title and
possession of the property bearing no.14, Park Area,
Karol Bagh, New Delhi.”
4. The same was confirmed, during the pendency of the suit, vide order
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dated 1 October, 2014.
5. I.A. 23130/15 came to be filed, under Order XXII Rule 4 CPC as the
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Defendant - Shri Pran Nath Kapur passed away on 15 September, 2015.
Thus, his wife-Smt. Swaran Kapur, son - Shri Jitender Kapur and his
daughter - Smt. Meera Bajaj were impleaded as Defendant No.1, 2 and 3
( hereinafter, „Defendants‟ ). The application for impleadment of legal heirs
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was, allowed on 15 July, 2016.
6. While disposing the application under Order XII Rule 6 being
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I.A.9465/2015, a preliminary decree was passed by this Court on 14
September, 2017. The Court held as under:-
“ IA No.9465/2015
This suit is filed by the plaintiff against the
defendant (his brother) for partition and injunction in
respect of property that is a built up plot admeasuring
1302 sq. yards, bearing No.14, Park Area, Opp. Ajmal
Khan Park, New Delhi -110005. This property
originally belong to Mr. Dina Nath Kapur who died on
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20 March, 1978 leaving behind a registered Will with
the Sub-Registrar as document No.108 in book No.3,
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volume No.1, at pages 89 to 91 on 29 May, 1965.
All the assets which were left by the deceased
father of the plaintiff and defendant were duly
distributed in the ratios of 1/2:1/2 and only the suit
property needs to be partitioned. Both the parties
agree that the plaintiff and defendant are in joint
possession of the property as per the terms of the Will
and there is no dispute qua their shares in the property
CS(OS) 2746/2014 Page 3 of 19
being 50% each per the registered Will. It is alleged
that since the defendant was coming in the way of the
plaintiff‟s enjoying of the premises he filed this suit for
partition by meets and bounds.
The defendant though had admitted the Will dated
29.5.1965 to be the last and final Will of their deceased
father, but alleged that as per the said Will the parties
could make use of this property for residing
themselves, letting on rent or sale with mutual consent
and divide sale proceeds among themselves half and
half, but so long as the property remains in joint
possession, the share of each for its use or rent income
will be governed by the Will itself. It is alleged that
since, the parties have not agreed mutually to sell the
property, the suit is premature. The legal heirs of
defendant though have shown their inclination to sell
the property and distribute the proceeds equally but the
same is opposed by the plaintiff as he insist the
property needs to be partitioned by meets and bounds.
The question if the property can be
divided/partitioned by meets and bounds or needs to be
sold can be looked into while passing the final decree.
However one thing which stands admitted by both the
parties is per Will dated 29.5.1978 both brothers are
entitle to equal shares in premises in dispute and hence
have consented to passing of the preliminary decree.
The learned counsel for the plaintiff has even
referred to an admitted undated letter Ex.P3 written by
the defendant-Pran Nath Kapur and it read as under:-
“You have decided to not to sell the house
and therefore I suggest you house land should be
divided half half and the two registry in separate
names of Dhian Nath and Pran Nath be made so
that there will be no dispute after my death.”
In the circumstances, I feel there is no impediment
in passing of a preliminary decree declaring both the
plaintiff and his brother to be the owners of the subject
CS(OS) 2746/2014 Page 4 of 19
property in equal shares and hence a preliminary
decree of partition is passed in favour of the plaintiff -
Dhian Nath Kapur to be owner of 1/2 share in the
subject property per Will dated 29.05.1978 and the
other 1/2 goes to the legal heirs of Late Sh.Pran Nath.
The application stands disposed of in terms of the
above.”
7. After the preliminary decree was passed, I.A. 11813/2017 has been
filed praying for passing a final decree. The said I.A. was filed by the
Plaintiff seeking vertical division of the suit property. Notice was issued to
the North Delhi Municipal Corporation ( hereinafter, „NrDMC‟ ), which
thereafter, filed an affidavit. Suggestions were given by both parties. Review
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petitions were filed in respect of order dated 14 September, 2017. On 5
July, 2018, this Court, while considering the intention of the testator, as
contained in the Will, appointed a Local Commissioner for suggesting the
modes of partition. The Local Commissioner filed his report. Parties concur
that no oral evidence is required. Thereafter, submissions were heard on
behalf of both sides.
8. The short question that needs to be addressed is only in respect of the
final decree that is required to be passed and how the property needs to be
partitioned. The preliminary decree already determines the share of the
parties, and there is no dispute in this regard. The findings of the Court in
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order dated 14 September, 2017 are: -
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(i) That the Will dated 15 May, 1965 clearly gave equal share to
both brothers;
(ii) An undated letter i.e. Exhibit-P-3 is relied upon by the Plaintiff
wherein Sh.Pran Nath Kapur, himself, during his lifetime, had
CS(OS) 2746/2014 Page 5 of 19
agreed that the house should be divided half-half and the
Registry in two separate names ought to be made.
9. While considering the review petition filed by the Defendant, the
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Court observed in order dated 8 January, 2018 as under:
“Hence, the issue qua partition by metes and
bounds if can be effected prior to the sale in terms of
the specific condition given in the Will or the effect of
undated letter of the defendant noted in the impugned
order dated 14.09.2017 only shall be considered at the
time of final decree, as agreed earlier and hence in
view of above, there is no error apparent on the face of
record. The application is disposed of in terms of the
above.”
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10. In order dated 5 July, 2018, while considering the applications filed
by the parties including I.A.11813/2017, the Court observed as under: -
“18. Thus, it is the intention of the testator which is
paramount importance and to cull out the intention the
first step is to give literal meaning to the words
expressed/used in the Will”
11. Thus, the Court had held that the intention as contained in the Will, as
also the letter Exhibit-P-3, which is of paramount importance, should be
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considered at the stage of passing of the final decree. Again on 5 July,
2018, this Court considered three further applications moved by the parties
and observed as under: -
“19. Now if one gives a literal meaning to each and
every word as written in the Will dated 15.05.1965 it
says after the death of the wife of the testator this
house shall be the sole property of his two sons namely
Mr.Pran Nath Kapur and Mr.Dhyan Nath Kapur and
they can make use of it for residing themselves, letting
it on rent or sell with mutual consent, but as long as
CS(OS) 2746/2014 Page 6 of 19
the house remains as their joint property share of each
for its use or rental income will be as stipulated viz.,
Ground floor with Western side flat, Garrage etc. will
remain in possession of Sri Dhian Nath Kapur and first
floor with Barsati and three flats of Eastern side will
remain in possession of Shri Pran Nath Kapur. Both
Shri Pran Nath and Dhian Nath will be entitled to use
open ground and live peacefully.
20. A bare perusal of the above would reveal the
intention of the testator was as long as both the sons
are alive and are living together in peace and as long
as the house remains their joint property, each one
shall use their respective portions allotted to them as
per the Will. The condition stipulated is applicable
only upon the sons living and using the property and is
not extendable upon death of anyone of the sons.
Hence on death of one of the sons, the condition
stipulated viz., use of respective portions for residing
themselves shall automatically go away.
21. The Will dated 15.05.1965 do not visualize a
situation if upon the death of any of the son(s), their
legal heirs shall be bound by such condition of user of
respective accommodation; the right of residential use
being a personal right was given to Mr.Pran Nath
Kapur and Mr.Dhyan Nath Kapur only, hence upon
death of any of the two brothers, such condition would
automatically be waived as a deceased brother cannot
use the property for his residence. Thus upon death of
any one of the son(s) the remainder would not be
bound to use the property in such particular manner,
as stipulated in Will.
22. Moreso both the plaintiff and defendant being
legatees of the testator, during their lifetime entered
into a settlement vide an undated letter viz. Exhibit P-3
which notes as the plaintiff has decided not to sell the
property the house be divided half and half and two
registries in separate name be made so that there is no
CS(OS) 2746/2014 Page 7 of 19
dispute after his death.
23. If the legal heirs of the defendant insist the
intention of the testator be respected then why they
resist to the intention of their own father/husband who
during his lifetime had agreed to divide/partition the
property. Thus there is no impediment to move towards
passing a final decree. However at this stage the Court
is not to decide how the property is to be divided into
two units since as a comprehensive report of the Local
Commissioner would be needed who shall in his report
would consider all factual/legal aspects qua division of
property in two units viz. super structure or otherwise,
if possible or lest sale is the only alternative. Hence
before passing a final decree of partition it would be
appropriate to appoint a Local Commissioner to
suggest the various modes of partition. Mr. Amit
Chadha, Advocate (Mobile No.9911116613) is
therefore appointed as a Local Commissioner to visit
the property and suggest modes of partition. The fee of
the Local Commissioner is fixed at ₹ 1,25,000/-,
besides incidental and out of pocket expenses, to be
shared by the parties equally. The commission be
executed within ten weeks from today and report
thereof be filed thereafter. Needless to say that learned
Local Commissioner shall put the parties to advance
notice prior to his visit/inspection of the suit property.”
12. Thus, this Court has already held that so long as the sons of Late Shri
Dina Nath Kapur are alive, each one has the right to “use their respective
portions of the said property” . This is the clear intention of the Will dated
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15 May, 1965. The letter Exhibit-P-3, written by the Defendant to the
Plaintiff also reads as under: -
“You have decided to not to sell the house and
therefore I suggest you house land should be divided
half half and the two registry in separate names of
CS(OS) 2746/2014 Page 8 of 19
Dhian Nath and Pran nath be made so that there will
be no dispute after my death.”
13. In this background, the Court had appointed a Local Commissioner to
suggest the mode of partition by metes and bounds.
14. While the Plaintiff seeks vertical division of the property, the
Defendants pray for either horizontal division or sale of the property. An
objection was raised by the Defendants that vertical partition of the property
would not be as per the building bye-laws and would not be acceptable to
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the Nr.D.M.C. Thus, on 2 February, 2018, the Court had also called for an
affidavit by Nr.D.M.C. The parties thereafter submitted reports by their
respective Architects.
15. Thus, in order to pass a final decree, the following material is to be
considered by the Court: -
Affidavit of Nr.D.M.C.
Report of the Local Commissioner
Architect’s report submitted on behalf of the Plaintiff
Architect’s report submitted on behalf of the Defendant
16. The crux of each of these documents is set out below: -
A. Nr.D.M.C. Affidavit: -
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17. The affidavit filed on behalf of Nr.D.M.C. dated 23 April, 2018
states as under: -
That under clause 4.4.3 of the Terms and Conditions (iv) of the
Master Plan of Delhi 20-21, sub-division of plots is not permissible;
If parties, for their own mutual convenience decide to divide the
property as per their own arrangements, the Nr.D.M.C. would not be
CS(OS) 2746/2014 Page 9 of 19
bound by the same;
From the perspective of Nr.D.M.C., the plot would be treated as a
single entity. If any sanction, regularisation or modification is
required, both co-owners have to make a joint application for the
entire property.
However, the Nr.D.M.C. does not dispute the fact that there are
several plots on that very road which are sub-divided.
B. Local Commissioner’s Report: -
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18. The local commission was executed on 28 July, 2018. A perusal of
the report reveals that the Commissioner undertook a full inspection of the
various structures located in the plot. The Local Commissioner, after
visiting the property and inspecting the various areas and the locality, gave
the following findings:
The parties, under Sections 312 and 313 of the MCD Act can apply
for sub-division.
Parties can also apply for sanction/modification/regularisation of the
building plans, considering the plot as one entity.
There is no impediment to the parties possessing separate independent
portions of the said property.
The division of the property in a vertical manner would be feasible.
The structural engineer, representing the Defendants has submitted a
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report dated 27 January, 2018 which suggests as to how the structure
can be vertically divided.
The property can be divided into 2 portions 14A and 14B, in the
following manner:
CS(OS) 2746/2014 Page 10 of 19
CS(OS) 2746/2014 Page 11 of 19
The Plaintiff is willing to take either 14A or 14B.
The party which takes 14B would have to construct a new staircase
for access to the first floor.
There are 4 other properties being plot Nos.3, 4, 6 and 7, on the same
street, which have been divided vertically.
19. The Local Commissioner concludes as under: -
“It is submitted that in view of the above
inspection/study of the suit property and the existing
built up condition of the property in question, I am,
CS(OS) 2746/2014 Page 12 of 19
certain that Vertical Division and Partition of the
super structure of the property bearing No. 14, Park
Area, Karol Bagh, New Delhi-110005 can be initiated
and carried out by Meters and Bound in the proportion
as per the order passed by the Hon‟ble High Court in
the present suit.”
C. Architect’s Report Submitted on Behalf of the Plaintiff: -
20. The structural engineer on behalf of the Plaintiff has placed on record
photographs of various plots having two separate gates i.e. plot Nos.3, 4, 6,
7, 11, and 12. According to the Plaintiff, plot No.14 i.e. the suit property can
also have two gates. The plot faces the Ajmal Khan Park on Gangeshwar
Dham Marg, Karol Bagh and is a freehold property. The Plaintiff is 84 years
of age and his wife is 81 years of age. Both parties can have an independent
access and the property can be partitioned.
21. The Plaintiff’s engineer has also given the plans for the ground, first
and the second floor after vertical division. Thus, according to the Plaintiff,
it is practically possible to have a vertical division of the plot.
D. Architect’s Report Submitted on Behalf of the Defendants: -
22. According to the Defendants’ engineer, since the building bye-laws
do not permit division of the plot, any sub-division would be unauthorised,
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as per MPD 20-21. He relies on a reply by Nr.D.M.C. dated 27 April, 2015
where, in response to the query as to whether partition of plots is allowed,
the corporation stated “no partition is allowed as per MPD 20-21” .
23. In this report, even the vertical division is not practical as it would
require erecting of new structural members like columns and beams and
would also involve substantial costs.
24. Thus, the engineer recommends that it is not advisable to make
CS(OS) 2746/2014 Page 13 of 19
vertical division. The conclusion in the said report reads as under:-
“Due to the above serious structural concerns it is not
advisable to make vertical division by simply erecting a
wall but proper structural measures as suggested
above and shown in structural drawings attached shall
be taken. However it‟s better to demolish the whole
structure and reconstruct it after getting proper
approval from the concerned authority. Any such
partition with addition and alteration without the
authority approval deemed illegal and also detrimental
to the safety and stability of structure and its
occupants.
Due to above observations and conclusions it is
recommended to go for reconstruction of the building
after carrying out necessary structural design changes
as per prevalent BIS codes.”
Analysis & Findings:-
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25. A perusal of the Will dated 15 May, 1965 and Exhibit-P-3 read with
the reports of the Architects, shows that the parties are not willing to come
to any consensus on the manner in which the suit property is to be
partitioned, despite the shares being determined.
26. Late Shri Dina Nath Kapur was the absolute owner of the property.
Presently, the Plaintiff’s family is in possession of the ground floor portion
of the front building as also the western side flats. The Plaintiff is 84 years
old and his wife is 81 years of age. They live together with their unmarried
daughter.
27. On the other hand, the Defendant has passed away. His wife, Smt.
Swarna Kapur who is 87 years of age, lives with her grandson (daughter’s
son), Shri Aditya Bajaj and his wife, Smt. Tanvi Bajaj. The son of Shri Pran
CS(OS) 2746/2014 Page 14 of 19
Nath Kapur – Jitender Kapur lives in Canada and the daughter – Meera
Bajaj lives in Paschim Vihar, Delhi. Thus, from the Defendant’s side, apart
from Pran Nath Kapur’s wife, his extended family is using the property. On
the other hand the Plaintiff and his wife reside in the suit property with their
daughter.
28. The Defendants submit that the suit property deserves to be sold and
the sale proceeds be divided between the Plaintiff and the Defendant
equally. It is thus clear that since the Defendant-Shri Pran Nath Kapur has
passed away, his family is interested in selling the property.
29. At this stage, the intention of the testator Shri Dina Nath Kapur - the
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original owner, as per his Will dated 15 May, 1965 deserves to be
considered. The relevant portions in the Will relating to the suit property
read:
“1. PROPERTY N O.1 Bungalow at 14, Park Area,
Karol Bagh, New Delhi
On my death in case my wife, Vidyavati is still
alive she will have full rights of its use but no power of
sale, mortgage, transfer or donate or to make gift. She
will have full authority to reside, or to lease it on rent
and recover its rent and append the same as she likes
none of my sons, daughters or other relations would
have any concern with it.
After death of my wife this house will be sole
property of my two sons Shri Pran Nath and Dhian
Nath and they can make use of it for residing
themselves , letting on rent or sell with mutual consent
as they think fit and divide its sale proceeds among
themselves half and half , but as long as the house
remains as their joint property share of each for its use
or rent income will be as under:-
Ground floor with Western side flat, Garrage etc.
will remain in possession of Sri Dhian Nath Kapur and
CS(OS) 2746/2014 Page 15 of 19
first floor with Barsati and three flats of Eastern side
will remain in possession of Shri Pran Nath Kapur.
Both Shri Pran Nath and Dhian Nath will be entitled to
use open ground and live peacefully.”
Thus, under the Will, both sons of the original owner could make use of the
property for residing themselves. It is only with mutual consent that the
property could be sold and the proceeds divided half-half.
30. Further, during the lifetime of Shri Pran Nath Kapur, he had written a
letter to his brother – the Plaintiff agreeing that the land should be divided
half-half and two separate registries in the names of the two brothers ought
to be made. The said document, Exhibit P-3 is extracted in paragraph 12
above. These two documents were considered by this Court in order dated
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5 July, 2018, where the clear finding of this Court was that as per the Will,
the intention of the testator was that both the sons can make use of the
property for residing themselves. Thus, the Plaintiff’s submission that the
Plaintiff cannot be forced to sell the property and the Plaintiff ought to be
permitted to reside in the suit property, is valid and justified. The same in
fact reveals the true intention of the Testator.
31. The question arises as to what should be the final decree that should
be passed in the matter. A perusal of the Local Commissioner’s report along
with the reports of the structural engineers submitted by both sides shows
that vertical division of the property is not impossible. It may require some
construction/modifications here and there. However, the same is feasible.
The age of the Plaintiff and his wife as also Defendant No.1, clearly shows
that any order of sale or demolition or reconstruction would result in
uprooting them completely. From the submissions addressed by the parties,
CS(OS) 2746/2014 Page 16 of 19
it appears that they do not have the resources for re-building or re-
constructing the entire property. The Court has to bear these circumstances
in mind while passing the final decree.
32. The purpose of filing of the present suit, on behalf of the Plaintiff, is
to primarily have a determination on the shares of the parties, and to the
extent possible, have independent access and live comfortably in the place
where they are already residing. It is submitted, on behalf of the Plaintiff,
that the Plaintiff is also emotionally and sentimentally attached to the suit
property, which was purchased by his father. Thus, this Court cannot ignore
the wishes of the Plaintiff while passing the final decree.
33. The intention in the Will, the letter, Exhibit-P-3 as also that of the
Plaintiff, who is before the Court, is that he would like to enjoy living in the
suit property and does not intend to sell the same.
34. The material on record shows that several properties in the vicinity
have been vertically divided and thus, the vertical division of the property is
the best mode of partition that would be appropriate taking the overall facts
and circumstances into consideration. Though the Court, in an appropriate
case, does have the power to direct sale of the property and distribution of
sale proceeds under Section 2 of the Partition Act, this is not a case where
such a course of action ought to be adopted. The age of the Plaintiff and his
wife as also the wife of late Shri Pran Nath Kapur i.e. the Defendant No.1
who is residing in the property dissuades the Court from passing an order for
sale as the same would deprive the parties of the enjoyment of the suit
property in their ripe old age.
35. The vertical division of the property as suggested by the structural
engineer of the Plaintiff and by the Local Commissioner is accordingly held
CS(OS) 2746/2014 Page 17 of 19
to be feasible and practical in the facts and circumstances of the present
case.
36. A final decree for partition is accordingly granted dividing the property
into two equal vertical halves, in the manner as suggested in the Local
Commissioner’s report at Annexure-F. The western part of the property,
shown as ‘14B’ in Annexure F to the LC Report, is already substantially in
the possession of the Plaintiff and the Plaintiff shall, therefore, retain the
western portion of the property. The Defendant shall have exclusive
possession and ownership of the eastern portion of the property. The western
portion shall be numbered as 14-B and the eastern portion shall be numbered
as 14-A. The suit property shall be divided as under:
Plaintiff’s portion Defendants’ portion
CS(OS) 2746/2014 Page 18 of 19
37. Both parties shall enjoy ownership and possession of their respective
portions of the property. They are permitted to apply to the Municipal
Authorities, as per the prevailing bye-laws, for mutation in accordance with
the judgment of this Court in Lubhaya Kapoor Vs. J.R. Chawla & Ors.,
(1986) 10 DRJ 359 . The authorities shall process any such application made
on behalf of the parties expeditiously. The parties are permitted to get
separate electricity and water connection installed and pay their respective
taxes, charges and other duties for their respective portions. However, for
the purpose of construction, the plot shall be considered as a whole and the
construction shall be within the permissible FAR Limits. The said plot shall
not, however, be saleable except as a whole. The parties and their legal heirs
would be entitled to enjoy possession of their respective portions of the
property at least during the lifetime of the Plaintiff and his wife as also
Defendant No.1. If, either during or after the lifetime of Shri Dhian Nath
Kapur and his wife, as also Smt. Swaran Kapur wife of Shri Pran Nath
Kapur, the suit property is to be sold, the same shall be only with the mutual
consent of the parties or their legal heirs.
38. Decree sheet be drawn accordingly in terms of Paragraph 36 above.
Annexure – F to the Local Commissioner’s report at page 233 of the paper-
book, shall form part of the decree. No order as to costs. All pending
applications also stand disposed of.
PRATHIBA M. SINGH
Judge
FEBRUARY 04, 2019
Rekha
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