Wanti Bai v. Baldev Raj Ahuja

1. The challenge by means of this petition under Article 227 of the Constitution of India is to the order dated 21.11.2013 by which the trial court has decided the preliminary issue in favour of the petitioner/defendant no.1, holding that the suit as framed is not maintainable and the trial court simultaneously by the impugned order has allowed the plaintiff/respondent no.1 to challenge the Will dated 7.2.1971 executed by Sh. Ram Chand Ahuja in favour of his widow Smt. Talian Bai so as to remove the objection with regard to maintainability of the suit. 2014:DHC:4922

2. The facts of the case as stated in the plaint are that respondent no.1/plaintiff claims that the suit property bearing no. 2/101, Geeta Colony, Delhi was owned by his father Sh. Ram Chand Ahuja, and after the death of Sh. Ram Chand Ahuja his children being the respondent no.1/plaintiff/son and the two daughters Smt. Wanti Devi/defendant no.1/petitioner herein and another daughter Smt. Sheela Devi were equally 1/3rd co-owners of the suit premises. Respondent no.1/plaintiff as per the plaint disputes that his mother Smt. Talian Bai had become the exclusive owner of the property in terms of the Will dated 7.2.1971 of Sh. Ram Chand Ahuja, but the respondent no.1/plaintiff in the plaint did not challenge the registered Will dated 7.2.1971 which was executed by Sh. Ram Chand Ahuja in favour of Smt. Talian Bai with respect to the suit property, although in the plaint the mutation done in favour of Smt.Talian Bai pursuant to the registered Will of Sh. Ram Chand Ahuja dated 7.2.1971 was challenged.

3. The petitioner/defendant no.1 in the written statement has disputed the case of the respondent no.1/plaintiff and has pleaded that Sh. Ram Chand Ahuja had executed the Will dated 7.2.1971 in favour of his widow Smt. Talian Bai and Smt. Talian Bai being the mother of the petitioner/defendant no.1, as also of the plaintiff, had executed a Will in her favour dated 31.12.1990 bequeathing the suit property in favour of the petitioner/defendant no.1 thereby making her the exclusive owner of the suit property.

4. In my opinion, no prejudice is caused by the impugned order to the petitioner/defendant no.1 inasmuch as, by allowing the respondent no.1/plaintiff to amend the plaint, it is not as if that the defences of the petitioner/defendant no.1 to the amendment allowed are taken away or that the case as is now allowed to be pleaded as per the amended plaint will be treated as correct. Once the respondent no.1/plaintiff amends the plaint pursuant to the impugned order of the court, the petitioner/defendant no.1 can take all objection of facts and law in the amended written statement to be filed by petitioner/defendant no.1. If any of the objections raised in the amended written statement raise preliminary issues covered under Order XIV Rule 2 of the Code of Civil Procedure, 1908 (CPC), then the trial court obviously in accordance with law can decide these preliminary issues covered under Order XIV Rule 2 CPC.

5. Therefore, in view of all these observations, the rights of the petitioner/defendant no.1 are protected and consequently no prejudice will be caused to her by the impugned order deciding the preliminary issue against the respondent no.1/plaintiff and permitting the respondent no.1/plaintiff to amend the plaint to challenge the Will dated 7.2.1971 of late Sh. Ram chand Ahuja.

6. The petition is thus disposed of in terms of the above said observations and the petitioner/defendant no.1 will now file her written statement to the amended plaint filed by the respondent no.1/plaintiff, as per the directions of the trial court.

SEPTEMBER 23, 2014 VALMIKI J. MEHTA, J. ib