Pran Nath Kapur (Decd) Thr. Lrs vs Dhian Nath Kapur

C. HARI SHANKAR, J.

The appellant and the respondent, in this appeal before us, were the plaintiff and defendant, respectively, in CS (OS) 2746/2014.

The appellant and respondent are brothers, and children of Dina Nath Kapur, who died on 20th March, 1978. Consequent on his demise, the

respondent filed CS (OS) 2746/2014, against the appellant, for partition and injunction in respect of a property bearing No.14, Park Area, opposite

Ajmal Khan Park, New Delh-110005, admeasuring 1302 sq. yards. The said property originally belonged to Dina Nath Kapur, who died on 20th

March, 1978, leaving behind a will dated, 29th May, 1965, whereunder all the assets of Dina Nath Kapur were to be divided between his sons, i.e. the

appellant and the respondent, in equal proportions.

The appellant and respondent were, admittedly, in joint possession of the suit property. There is no dispute that the shares of the appellant and

respondent in the suit property were each 50%. In these circumstances, the respondent, in CS (OS) 2746/2014 sought partition of the suit property by

metes and bounds.

The relevant conditions, of the Will, dated 15th May, 1965 (supra), executed by Dina Nath Kapur, read thus:

“1. Property No.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 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.â€​

The appellant admitted the Will, but contended that the Will specifically required the parties, i.e. appellant/respondent, to reside in, and use, their

respective portions of the suit property, and that the question of equal distribution of the sale proceeds would arise only on the suit property being sold

by mutual consent. The legal heirs of the appellant, who came on record consequent to the demise of the appellant, during the course of proceedings

before the learned Single Judge were agreeable to sell the suit property. The respondent, however, sought partition thereof, by metes and bounds, as

already noted hereinabove.

The respondent relied for the said purpose, inter alia, on an undated letter written by the appellant, which 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

Dhian Nath and Pran Nath be made so that there will be no dispute after my death.

In these circumstances, the learned Single Judge, adjudicating IA 9465/2015, filed in the suit, ordered thus, on 14th September, 2017:

“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 20th March, 1978 leaving behind a registered Will with the Sub- Registrar as document No.108 in book No.3, volume No.1, at pages 89 to 91

on 29th May, 1965. All the assets which were left by the deceased father of the plaintiff and defendant were duly distributed in the ratios of ½ : ½

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 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 metes 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

metes and bounds. The question if the property can be divided/partitioned by metes 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 defendantPran 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 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.â€​

According to the appellant, 50% share would devolve, on the appellant and the respondent each, only on sale of the suit property, consequent on the

demise of Dina Nath Kapur, and the will, dated 29th May, 1965, executed by Dina Nath Kapur, did not permit partition of the suit property.

This contention of the appellant has been negated by the learned Single Judge in the impugned order; paras 19 to 23 whereof are reproduced 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 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.

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.

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.

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 dispute after his death.

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 propertyâ€​

The appellant is in appeal thereagainst.

Having perused the impugned order and heard the learned counsel for the appellant, we are of the considered opinion that no infirmity whatsoever

is discernible therein. The learned Single Judge has returned a prima facie finding, interpreting the will, dated 29th May, 1965 (supra), of Dina Nath

Kapur, that the condition, therein, to the effect that the appellant and respondent were to live in, and use, the said property, subsisted only during the

life of both of them and would not continue beyond the death of either. According to the learned Single Judge, the will did not visualize a situation

whereupon, consequent on the death of either of the sons of the Dina Nath Kapur, i.e. the appellant and respondent, the legal heirs of the deceased

son would be bound by the condition of user of the accommodation. The right of residential use, according to learned Single Judge was a right in

personam and in praesenti, conferred only on the appellant and respondent during their lifetime, and would automatically stand waived on the demise

of either of them. Consequently, according to the learned Single Judge, the surviving son would be entitled to maintain a suit seeking partition of the

suit property half and half, between his brother (or his legal heirs) and himself.

To arrive at this conclusion, the learned Single Judge has also taken stock of the aforesaid extracted undated letter, by the appellant to the

respondent, which too, justifies partition of the suit property half and half with separate registration in the names of the appellant and the respondent.

In these circumstances, we find that the prima facie view expressed by the learned Single Judge is unexceptionable, and calls for no interference.

Beyond expressing the said view, the learned Single Judge has merely appointed a local commissioner, to suggest the modes in which partition of the

suit property could be effected. We do not find any ground to interfere with the said direction, either.

For the above reasons, the present appeal is, according to us, entirely bereft of merit and is, therefore, dismissed, without any order as to costs.