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2019 (9) TMI 1319 - HC - Benami PropertyBenami transaction - partition of properties - joint family business - properties are purchased from monies earned from the grocery store - constitution of the business of the grocery store i.e. whether it was a proprietary or a partnership - HELD THAT:- The counsel for the defendants no.1 and 2 states that it is the plea of the defendants no.1 and 2 that there was no such joint family business of a grocery store and it is the defendants no.1 and 2 who are running grocery store in their own name in their properties. Thus, no case for putting the claim of the plaintiff for partition of any of the properties, save for property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi, is made out. The suit for partition of all the other properties save property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi is dismissed. As far as property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi is concerned, there is no dispute that the same belonged to the mother of the parties and on her demise, all her heirs would have a share therein. Accordingly, a preliminary decree for partition of property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi is passed, declaring (i) the plaintiff Anil Kumar, defendant no.1 Devender Kumar, defendant no.11 Rajender Kumar, defendant no.12 Sunita Mittal and defendant no.13 Sushila Goel to be having one-seventh undivided share therein; (ii) the defendants no.3 to 5 together to be having one-seventh undivided share therein; and, (iii) the defendants no.5 to 10 together to be having the remaining one- seventh share therein. Both counsels agree that the property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi is not divisible by metes and bounds. In view of the submission that the property is impartible by metes and bounds, a final decree for partition of property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi is also passed, of sale thereof and of distribution of sale proceeds amongst the parties as per shares declared in the preliminary decree for partition. Before the property is sold to outsiders, the party/s shall be entitled to make inter se bids with respect thereto, with the party/s bidding the highest acquiring the share of others on payment of consideration, execution of requisite documents and delivery of possession. On any of the party/s in possession / occupation of the property No. H-75/14, Khasra No.419,428 and 429, Gamri Road, Jai Prakash Nagar, Ghonda, Delhi failing to vacate the property and deliver possession thereof to the highest bidder or to the purchaser, the said party/s shall also be liable to be dispossessed therefrom as if in pursuance to a decree for recovery of possession of immovable property. The stamp duty / court fees for drawing up of the final decree for partition be borne by the parties in proportion to their shares under the preliminary decree for partition.
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