Vijay Gupta v. Rajinder Gupta & Anr

1. The present suit for permanent and mandatory injunction has been instituted by the plaintiff against his two brothers. The plaintiff and the defendants No.1 and 2 are the children of Shri R.S. Gupta and Smt. Kailash Wati. Apart from the plaintiff and the defendants No.1 and 2 (three sons), Shri R.S. Gupta and Smt. Kailash Wati had seven daughters. Shri R.S. Gupta had expired on 26.04.2003 and Smt.Kailash Wati had expired on 18.11.2001. Smt. Kailash Wati, mother of the parties was the owner of the suit premises bearing No.28, Block No.24 (No.24/28), Shakti Nagar, Delhi.

2. It is the case of the plaintiff that the mother had executed a registered will dated 16.09.2000, in respect of her immovable 2015:DHC:8915 properties including the suit premises, wherreunder she had divided the suit premises in a particular manner. Learned counsel for the plaintiff states that the manner in which the suit premises had been partitioned by the mother is reflected in the site plan filed by him at page 45 of the list of documents. He states that as per the will dated 16.09.2000 executed by the mother, the suit premises has already been mutated in the municipal records in favour of the plaintiff and the defendants No.1 and 2.

3. The cause of action for instituting the present suit in the year 2014, is based on an allegation that the defendant No.1 was trying to sell the entire suit premises and he had threatened the plaintiff that he would dispossess him. Summons were issued in the suit on 18.07.2014, on which date the defendant No.1 was restrained from creating any third party rights in respect of the portion marked in ‘green’ on the second floor of the suit premises as shown in the site plan filed with the plaint. Thereafter, appearance was entered by the defendants No.1 and 2. Written statements have been filed by both the defendants.

4. None is present on behalf of the defendant No.2 today. However, counsel for the plaintiff state that the grievance of the plaintiff is mainly directed against the defendant No.1. He submits that the defendant No.2 who is supporting the plaintiff, has admitted the execution of the will dated 16.09.2000 by the mother and he does not oppose the relief prayed for by the plaintiff. After admission/denial of documents was conducted, the suit is listed today for framing of issues.

5. Counsel for the defendant No.1 states at the outset that the defendant No.1 has propounded a will dated 25.10.2001 executed by the mother of the parties and has filed a probate petition in the Tis Hazari Courts for seeking probate of the said will. All the parties including the plaintiff herein have entered appearance in the said petition, which is pending adjudication. He further states that defendant No.1 disputes the submission made by the other side that any threat to dispossess the plaintiff was made by him and states that the defendant no.1 has no objection to the suit being decreed in terms of prayer clause (c) of the plaint.

6. As far as the remaining reliefs prayed for in the plaint are concerned, learned counsels for the parties jointly state that the same be kept open as much would depend on the outcome of the pending probate petition.

7. The parties agree that the suit may be decreed in terms of prayer clause (c) and the plaintiff be permitted to take out fresh proceedings with regard to the reliefs in prayer clauses (a) and (b) of the plaint after the probate petition is decided.

8. Accordingly, the defendant No.1 is restrained from dispossessing the plaintiff from the portions in his possession in the suit premises, as reflected in the site plan enclosed at page 45 of the list of documents filed by the plaintiff, except in accordance with law. Both the parties agree that till the probate petition is decided, they shall maintain status quo with regard to the title and possession of the suit premises. Decree sheet be drawn accordingly.

9. For the remaining reliefs, the parties shall be at liberty to seek their remedies against each other, after the disposal of the pending probate petition filed by the defendant No.1. HIMA KOHLI, J OCTOBER 28, 2015 rkb/ap