9911796707
TMI Blog2011 (7) TMI 1383X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff herein filed the petition under Section 276 of the Indian Succession Act, 1925 on 23.2.1999 for grant of Letter of Administration on the ground of mother having died intestate bearing Probate Case No. 291/06/99. Defendant No. 1 propounds a Will dated 18.08.1984. The Defendant Nos. 2 3 support the case of the Plaintiff herein. 5. The Defendant No. 3 (Sister) on 26.3.1999 relinquished her share in favour of all three brothers and executed a registered Relinquishment Deed which is duly admitted and even relied upon by all the parties including contesting Defendant No. 1. 6. The Defendant No. 2 herein filed Civil Suit No. 120/2004 on 12.07.2004 for partition of the same property before Additional District Judge which was contested only by Defendant No. 1. 7. In the written statement filed by the Defendant No. 1 it was contended on merits that the properties stood partitioned by virtue of the Will dated 18.8.1984 and in view thereof the parties are already in possession of their respective shares. It was also alleged that since the probate case was pending wherein the issue of validity of Will is sub judice, therefore, the suit filed by the defendant No. 2 cannot be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty in possession of the Plaintiff and Defendant No. 2 are having a higher market value then the portion of the suit property in possession of the Defendant No. 1. In other words, an equitable and fair metes and bounds partition of the suit property will, in fact, result in greater allocation of area of the suit property in favour of the Defendant No. 1. E. That the suit is misconceived as it is contrary to the last Will and Testament dated 18.08.1984 executed by late Smt. Janki Devi, who passed away on 03.03.1995. The suit property earlier belonged to Smt. Janki Devi. Smt. Urmila Gupta, the daughter of deceased Smt. Janki Devi relinquished her rights equal in favour of her brothers. This is an admitted possession. In other words, Rameshwar Prasad Gupta (Plaintiff herein), Rajinder Gupta (Defendant No. 1 herein) and Rajesh Gupta (Defendant No. 2 herein) have equal rights in the suit property. This position was upheld in the late Smt. Janki Devi's Will. In the Will it was declared by the testatrix Smt. Janki Devi that the possession as it stood on the day of the execution of the Will, which continues to be so, even today should be continued even after her death. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.09.2009, the Plaintiff's I.A. No. 11209/2009 was allowed by the Court thereby appointing local Commissioner i.e. Assistant Engineer, P.W.D. inter-alia observed that: (a) The report of the Architect would only ascertain the factual position as to the feasibility of the division of the property by metes and bounds (b) In either event the report of the Architect after visiting the premises and ascertaining the feasibility of the division of the property by metes and bounds will be of assistance in the proceedings (c) The Assistant Engineer will be permitted to take along with him a person to take photographs/video of the premises and also a qualified person for preparing the drawings (d) The Mediators are also requested to examine such report and make suggestions to the parties of the possible ways of resolving the disputes including the appropriate mode of partition 15. The Local Commissioner appointed by the court has given his suggestion about the mode of partition on 1.9.2009. 16. It was observed by the court in its order dated 26.10.2009 that the Defendant No. 1 is now opposing the said arrangement and did not permit the execution of the commission. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant No. 1 has been disbelieved by the Probate Court. Property of a deceased can only devolve upon legal heirs in two ways i.e. either through a testament namely a Will and in the absence of the Will, by natural succession. After rejection of Will admittedly the Defendant No. 1 challenged the judgment dated 13.10.2008 by filing of an appeal, F.A.O. 430/08 which was dismissed by this Court. Therefore, as a natural corollary, the property would equally devolve upon three brothers since sister has already relinquished her share. 23. The judgment given by Probate Court is a judgment in rem which is binding not only upon the parties but against the whole world and thus there is no need to send the parties to trial once again by this Court being a Civil Court on the same issue of Will since the Will has already been rejected. 24. In the present case, the Defendant No. 3 has already relinquished her right in favour of the Plaintiff and Defendants 1 and 2. The Defendant No. 2 is supporting the case of the Plaintiff. The Defendant No. 1 filed his written statement wherein it was, inter alia, claiming as under: In other words, Rameshwar Prasad Gupta (Plaintiff herein), Rajinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 4 AD Del 124 dealt with the same point. Relevant para 18 and 20 are reproduced hereinbelow: 18. Contention of the Counsel for the Defendant that oral partition has been acted upon inasmuch as portions in the suit property are in separate occupation and the parties have carried out additions, alterations, renovations in their respective portions without any objection and interference by other party and that he along with the Plaintiff has been pooling equal share towards payment of house tax and further he had also made addition, alterations or renovations in their portions almost at the same time when the Defendant has done it some 20 years back has no significance so far as suit for partition is concerned as there is common entrance and staircase in the property. The parties are in possession of portions on ground floor, first floor, second floor and terrace and suit property cannot be partitioned as these are not vertically or otherwise single unit. All these facts when taken in totality make out a case of two brothers living peacefully in their respective portions but not a case of oral family agreement of partition of the property. Had there been any intention on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso dismissed on 27th July, 2008. Still not feeling satisfied the Defendants chose to file a special leave petition in the Supreme Court assailing that the statement of the learned Counsel for the Defendants could not be treated to be a valid statement or a valid concession as the same was made on the basis of misunderstanding. The Supreme Court vide judgment dated 25.02.2009 dismissed the special leave petition by observing as under: 15. A decree can be passed on the basis of a concession of the parties. Such a concession can also be made through a counsel. The parties were present in court on 14.10.1999. They, thus, could instruct their counsel. As on the basis of the statements made by a counsel for all intent and purport, a preliminary decree has been passed and the parties thereafter had been exploring the possibilities of partitioning the property by meets and bounds and/or taking recourse to sale thereof there cannot be any doubt whatsoever that they had knowledge of the said order dated 14.10.1999. The parties acted upon it. It is, therefore, in our opinion, too late in the day to allow the parties to take a stand contra. Having regard to the fact that they were present in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment of Code of Civil Procedure brought in 1976. 34. The next point i.e. the plea of limitation has been taken by Defendant No. 1 in his fresh application under order VII Rule 11 CPC, though the said plea was not taken in the written statement or in his previous application being IA No. 1359/2009 under Order 7 Rule 11 Code of Civil Procedure which was dismissed as withdrawn. 35. The contention of Defendant No. 1 is that the Plaintiff was put to notice of denial of his entitlement for partition by way of reply dated 5.6.1999 filed by the Defendant No. 1 in probate proceedings. The present suit is filed in November 2008 and the same is barred by limitation under the Limitation Act. It is also alleged that the suit is also barred by doctrine of estoppel due to the reason that the Plaintiff's petition under Section 276 of Indian Succession Act was dismissed wherein the issue was similar, thus, the present suit is barred by the principles of res judicata as the Plaintiff is litigating the same issue in a different form through different proceeding. 36. It is a matter of fact that the said plea was never raised by him in the written statement filed by him. Furthermore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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