Disposed

Deepak Khurana & Ors. v. Chander Wati Sharma & Ors.

Delhi HC15 Nov 2018RFA/591/2010

Case brief

AI extract

What is this about?

The Single Judge of the Delhi High Court disposed of a Regular First Appeal contesting a decree following a will's rejection. Noting the parties' acceptance of equal legal heirship but dispute over the deceased widow's share, the court remitted the matter for a fresh preliminary decree regarding the widow's share without deciding the original appeal.

What did the court decide?

This appeal is disposed of; the trial court shall pass a fresh preliminary decree regarding the share of the deceased widow, Smt. Vidyawanti Khurana.

Deepak Khurana & Ors. Vs Chander Wati Sharma & Ors. — Partition | Delhi HC (2018)

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 591/2010 and C.M. No.14416/2010 (stay)

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DEEPAK KHURANA AND ORS. ..... Appellants Through: Mr. J.C. Mahindro, Mr. Lovish Seth, Mr. Shubham Agarwal and Ms. Cherry Singh, Advocates (Mobile No. 9810138091).

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versus

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CHANDER WATI SHARMA AND ORS. ..... Respondents Through: Mr. V.K. Srivastava, Advocate for R-1 (Mobile No. 9810056905).

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CORAM: HON'BLE MR. JUSTICE VALMIKI J. MEHTA

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O R D E R % 15.11.2018

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This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant nos. 1, 3 and 4 in the suit impugning the Judgment of the Trial Court dated 01.04.2010 by which the trial court has decreed the suit for partition filed by the respondent no. 1/plaintiff and has granted the respondent no. 1/plaintiff 1/4^th share out of the 1/4^th share of the father late Sh. Dharam Bir Khurana in two properties bearing nos. K-4/12, Model Town-II, Delhi-110009 and 1/602, Hamilton Road, Kashmere Gate, Delhi-110006. Sh. Dharam Bir Khurana was one

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RFA No. 591/2010

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page 1 of 4

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out of the four brothers, the other three being Sh. Jagan Nath Khurana, Sh. Har Bhagwan Khurana and Sh. Nand Kishore Khurana. All the four brothers owned the aforesaid two properties at Model Town and Hamilton Road.

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Admittedly, the share of Sh. Dharam Bir Khurana was 1/4^th in the aforesaid two properties and the issue before the trial court was as to in whose favour the 1/4^th share of the Sh. Dharam Bir Khurana would vest. The case of the appellants/defendant nos. 1, 3 and 4 was that the defendant nos. 3 and 4/appellant nos. 1 and 2 were the sole owners of the 1/4^th share of Sh. Dharam Bir Khurana in two properties inasmuch as it was the case of the appellants that Sh. Dharam Bir Khurana had died leaving behind his Will dated 03.11.1974 whereby he bequeathed his 1/4^th share in the aforesaid two properties to his son Sh. Ranbir Khurana, the predecessor-ininterest of defendant nos. 3 and 4/appellant nos. 1 and 2.

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The case set up by the appellants before the trial court by relying upon the Will dated 03.11.1974 has been rejected by the trial court inasmuch as it has been held that the appellants have failed to prove the Will dated 03.11.1974 said to have been executed by Sh. Dharam Bir Khurana in favour of his son Sh. Ranbir Khurana.

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RFA No. 591/2010

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page 2 of 4

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Learned counsel for the appellant states that the issue with respect to 1/4^th share of Sh. Dharam Bir Khurana falling equally to his four legal heirs is now no longer disputed, with the four legal heirs being respondent no.1/plaintiff/daughter, appellant no. 3/defendant no. 1/widow, respondent no. 2/defendant no. 2/daughter and appellant nos. 1 and 2/defendant nos. 3 and 4, jointly.

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Learned counsel for the appellants however states that appellant no. 3/defendant no. 1/Smt. Vidyawanti Khurana has in the meanwhile expired and now the issue before the trial Court would be as to in whose favor would devolve the share of Smt. Vidyawanti Khurana i.e. 1/16^th share of Smt. Vidyawanti Khurana is still subject matter of passing of the fresh preliminary decree by the trial court in accordance with the ratio of the judgment of the Supreme Court in Phool Chand and Another v. Gopal Lal, 1967 AIR 1470.

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Therefore, while disposing of this appeal as not pressed it is observed that a fresh preliminary decree will be passed by the trial court as to on whom will devolve the share of appellant no. 3/defendant no. 1/Smt. Vidyawanti Khurana. Both the contesting parties being the respondent

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page 3 of 4

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RFA No. 591/2010

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no.1/plaintiff on the one hand and appellant nos. 1 and 2 on the other hand are claiming the share of Smt. Vidyawanti Khurana as per respective Wills of Smt. Vidyawanti Khurana propounded by appellant nos.1 and 2 on the one hand and plaintiffs on the other hand.

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In view of the aforesaid discussion, this appeal is accordingly disposed of and the trial court will now pass a fresh preliminary decree with respect to the share of appellant no. 3/defendant no. 1/Smt. Vidyawanti Khurana.

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VALMIKI J. MEHTA, J

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NOVEMBER 15, 2018

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page 4 of 4

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RFA No. 591/2010

Deepak Khurana & Ors. v. Chander Wati Sharma & Ors.

Case brief

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Deepak Khurana & Ors. v. Chander Wati Sharma & Ors.

Case brief

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