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13th October
 IN THE COURT OF CIVIL JUDGE SENIOR DIVISION,

NAGPUR

CIVIL SUIT NO____/2021

MR. ABHAY DESAI

S/o Ashok Desai, Aged 44 years old, Occ. Business,

R/o Plot 15, Khasra No.16, City Survey No.17,

Ayodhya Nagar, Nagpur (Maharashtra)

----PLAINTIFF

VERSUS

MR. ALOK DESAI

S/o Ashok Desai. Aged 48 years old, Occ, Business,

R/o Plot 12, city survey No. 17,

Pratap Nagar, Nagpur (Maharashtra)

MRS. VIDHI

D/o of Late Alok Desai, Aged 40 years, Occ, Homemaker

R/o of Plot 10, Pandey Layout, Amaravati.

------ DEFENDANT
SUIT FOR DECLARATION, PARTITION, POSSESSION OF ALL THE MOVABLE
AND IMMOVABLE PROPERTIES

(The suit is valued at above Rs. 3,00,000/- for the purpose of the court fees and accordingly
the court fee of Rs. has been paid)

The plaintiff above named beg to submit as under;

1. The plaintiff and the defendant are real brothers’ sons of late Mr Ashok Desai and late Mrs
Vibha Prabhu. The plaintiffs had equal right in the property as co-owner of the suit properties
and seeks partition of the suit properties. The properties are mentioned under

(i) Plot 12, City Survey No. 14, Pratap Nagar, Nagpur admeasuring about 5000 sq. Ft. in
1980, for a consideration of Rs 100,000/-, (bought in the name of his wife Mrs Vibha Desai
as a token of love) [ Referred as Property 1]

(ii) Plot 15, Khasra No. 16, City Survey No. 17, Ayodhya Nagar, Nagpur admeasuring about
5,000 sq. Ft. in 1985 for a consideration of Rs.100,000/-, [Referred as property 2]

2. The following is the family tree: -

That, plaintiff is the real brother of defendant No.1 Alok Desai and is a business man by
profession and is a resident of the addresses as stated in the cause title. The defendant No.1 is
real brother of the Plaintiff and is the resident of the address stated above. The birth date of
both the Plaintiff and defendant as follows

Plaintiff i.e., Mr Abhay Desai is – (04.04.1976)

Defendant i.e., Mr Alok Desai is- (03.03.1972)

3. Late Ashok Desai, married Vibha Prabhu in Nagpur in 1970, out of the wedlock they had
two sons and one daughter, Ashok stated a transport business, named as Desai Transports in
Nagpur. Vibha remained as an housewife, later with his savings he bought many properties
namely (1) Plot 12, City Survey No. 14, Pratap Nagar, Nagpur calculating approximately
5000 sq.ft. in 1980 on behalf of his wife Vibha for love and affection, to be considered
Rs.100,000 / -, (2) Plot 15, Khasra No. 16, City Survey No. 17, Ayodhya Nagar, Nagpur
measuring approximately 5,000 sq .ft. in 1985 consideration of Rs.100,000 / -, and (3)
agricultural land owned by Kasra No. 18, Sheet No. 19, Mouza Hingna, Nagpur measuring
approximately 10 hectares in 1990 for Rs.100,000 / - (hereafter 1, 2 & 3 respectively).

4. Both the plaintiff and defendant after their graduation joined Late Mr Ashok in his
business and the defendant (2) was married to Mr Vijay Chauhan and since then she has been
residing in her matrimonial house at Amaravati. at 2003 after the marriage of both Plaintiff
and Defendants one more floor was constructed above the already existing house at property
1 where the family resided from 1982, where Late Mr Ashok and Plaintiff occupied the
ground floor and Defendant Occupied the First floor.

5. During the year of 2008 it all started from the small disputes that took place between the
families which later led the Plaintiff to move out the place along with his wife and Daughter
and started leaving separately in a rented premises. And during the same year Late Mr Ashok
and Defendant decided to stay together and Ashok transferred another property which was an
agricultural land bearing Khasra No. 18, Sheet No. 19, Mouza Hingna, Nagpur admeasuring
about 10 hectares in 1990 for a consideration of Rs.100,000/- in the name of Plaintiff by way
of a gift Deed.

6. By the end of 2008 Plaintiff started his own business and in January 2009 he started
construction of a house on property 2 which was completed by June and he moved there
within is family and the plaintiff is residing in the same house (for past 11 years) without any
interruption till the day.

7. Later on, 1/01/2020, Father executed a will under which he bequeathed all his movable
and money held in bank account and property 1&2 to Defendant (1) which excluded the
business. on 1/07/2020 Mr Ashok Desai passed away which was followed by the death of his
wife Mrs Vibha Desai in October 2020 due to covid-19 Vibha dies intestate.
8. Later on, December 2020 Defendant (1) served a notice to the Plaintiff alleging him to be
in illegal possession of property 2 and demand its vacation forthwith, and in retaliation
Plaintiff also served a notice on Defendant demanding the partition of all the movable and
immovable properties left behind by their parents.

9. 1/01/2020 on the day when Father of Defendant and Plaintiff executed his will in which it
was stated that all his property (Property 1 and property 2) will belong to the defendant (1)
(his eldest son) after his death, and here the Plaintiff feels that his father has not made a
correct will and he doubts that his father came up with this will due to undue influence from
the side of the defendant and he was not in his correct sense when the will was made. We can
also notice the fact that the plaintiff was living in the Property 2 from past 11 years and his
father had no issues when he built his own house in the second property past in 2009 and all
of a sudden, we can see that his father gave the second property to his brother who is the
defendant which clearly shows that his brother has manipulated his father to come up with
such a will.

10. And by making such a will he is refraining the Plaintiff from His legal right of equally
enjoying his father’s property because as a full blood child he is equally entitled to his
parent’s property and deprived of this right gives the Plaintiffs the reason to go to court.

11. Here in the facts, it has been mentioned that Late Mrs Vibha Desai died on October 2020
due to covid -19 and she died intestate, which means that Property 1 which was bought on
her name have no legal heir till now as she has not mentioned any in particular. So, giving
Property I as a whole to the defendant is not valid, the property must be equally given to all
her legal heirs which include the plaintiff as well in a ratio of 1/3 to each of them, since the
will its self is not valid considering the Property 1 the defendant has no right to ask the
Plaintiff to vacate the property on any grounds.

12. Hence the plaintiff submits that since there are both immovable and movable property
left behind by their father there should be a valid division of the properties and further the
defendant must be ordered to pay the plaintiff his share in income and the profits received
from the suit properties. The counsel on behalf of the client claims that the will is invalid as
property number 1 is in the name of Vibha Desai wife of Ashok Desai and that too the will
was made before the death of Vibha Desai. The property No. 1 is in the name of Vibha Desai
and for this reason the will is invalid and incorrectly drafted.

13. The plaintiff is entitled to receive his equal share in all the movables and immovables of
the father of the plaintiff and the defendant. Since the will is invalid there is no question of
execution and therefore the counsel on behalf of his client pleads partition of all the
movables and immovables of Ashok Desai which is to be shared equally amongst the two
brothers.

14. The suit properties are situated in Nagpur, and the defendant also reside in Nagpur
therefore the Hon’ble court has the jurisdiction to entertain and decide the suit. The plaintiffs
value the subject matter of the suit for the purpose of jurisdiction in excess of Rs. 200000
And same for the court fees.

15. The cause of action for filing the present suit arose in the year 2020 when the Defendant
served a legal notice to the plaintiff asking him to vacate the property in the month of
December.
 PRAYER

It is therefore, most respectfully prayed that the Hon’ble court be pleased to:

(i) To pass a decree in the favour of the plaintiff by determining the shares of the plaintiff in
the said suit property mentioned in the paragraph 3.

(ii) To pass a final decree for the partition of the said suit properties (mentioned in para 3)
and also to allow separate shares of the said suit properties be ordered and decreed to be
given to the plaintiff;

(iii) Declare that plaintiff has equal share in the suit properties described in para3(I) and 3(ii)

(iv) To direct the defendant to render true account of income, consideration, rent or profile
arising from all the suit properties described in para 3(I) and 3(ii), and upon such
determination of such account the defendant be further ordered and decreed, to pay to the
plaintiff their respective share in such income consideration, rent or profit;

(v) By an order of injunction, permanently restrain the defendants their agents and servants
from developing any suit property described in the above facts and or crating any third Party
rights or restrain in respect thereof;

(vi) The plaintiff also humbly prays that there must be equal partition of their father’s
business as well because its nowhere mentioned that the business belongs to plaintiffs’ elder
brother (defendant) alone.

(vii) Grant any other relief that this Hon’ble court may deem fit and proper in the facts and
circumstances of the present case;

PLAINTIFF

NAGPUR

DATE: 13/11/2021
 SOLEMN AFFIRMATION

I Abhay Desai, s/o Ashok Desai, Age: Major, Address: Plot 15, Khasra No. 16, City Survey

No. 17,Ayodhya Nagar, Nagpur do hereby take oath and state on solemn affirmation as
under:

i. I say that I have read and understood the contents of the above paragraph from 1-12
and say that they are true and correct to the best of my knowledge, information
gathered from the record and belief.

ii. I say that the aforesaid submissions are drafted by my counsel under my instructions
and they are true and correct.

Hence, verified, signed and affirmed on this 13th day of October 2021 at Nagpur.

DEPONENT

I know and identify the deponent

ADVOCATE