The need for evidence to establish divestment of property and the inadmissibility of defenses in determining the cause of action.

PRADEEP NANDRAJOG, J.

( 1 ) 1. Defendant's application IA No. 1617/2004 is being disposed of by the present order.

( 2 ) APPLICATION invokes Order 7 Rule 11 (a) praying that the plaint be rejected.

( 3 ) GROUNDS on which rejection of the plaint is sought is that case of the plaintiff is based on a will dated 6. 7. 1999 executed by Late Rajmata kamalendumati Shah. It is stated in the application that the deceased died of brain cancer while staying at Dehradun on 15. 7. 1999. She was aged 97 years. The will relied upon has been executed at a place called Chuwari in Himachal pradesh which is at a distance of 600 kms from Dehradun. Accordingly, it is stated that the will is shrouded in mystery.

( 4 ) MEDICAL record of the deceased is sought to be relied upon to show that on 9. 7. 1999 the deceased was at Dehradun.

( 5 ) SECOND ground taken is that the will has not been probated and therefore cannot be used as a document of title.

( 6 ) THIRD ground for rejection of the plaint is that vide deed of trust dated 31. 9. 1970 the suit properties were vested in a trust and the deceased had completely divested herself from the property. Accordingly, it is stated that the deceased could not have made a bequest by way of a will in respect of the suit property. It is urged is that prior to execution of the sale deeds dated 27. 8. 1987 permissions had been obtained from the income tax department and earlier on, the deceased had entered into a collaboration agreement on behalf of the trust with M/s. Builder Combine vide collaboration agreement dated 15. 4. 1979. That under the said agreement sum of Rs. 7. 5 lacs was paid by M/s. Builder Combine to the trust.

( 7 ) FOURTH ground urged is that the suit is barred by limitation.

( 8 ) THE next ground urged is that the cause of action hinges on the will dated 6. 7. 1999 which refers to 3 khasras, viz. , 91, 92 and 93, but the relief prayed is only qua khasras 91 and 92. It is further stated that while referring to khasra Nos. 91 and 92, plaintiffs have concealed the facts that defendants 1 to 5 are in possession of land comprised in khasra No. 91 and half portion of khasra No. 92 and that balance half land comprised in khasra No. 92 and entire khasra No. 93 is in possession of other persons or roads have come up thereon. That these third persons have purchased different portions of land comprised in part khasra No. 92 and khasra No. 93 from the trust.

( 9 ) REFERRING to certain criminal proceedings before a learned Metropolitan magistrate it is stated that crime branch has filed a report on 9. 7. 2003 to the effect that the defendants were bona fide purchasers and that the will relied upon is a fabricated document.

( 10 ) CASE of the plaintiff is that land comprised in khasra Nos. 91, 92 and 93 in the revenue estate of village Masjid Moth belonged to late Rajmata kamlendumati Shah who executed a will on 6. 6. 1999 which was registered on 6. 7. 1999. Plaintiff claims to be the beneficiary under the will. That when the plaintiff sought mutation in the revenue records in her favour as per the will, defendants filed objections on 12. 10. 2000 opposing the mutation and claiming ownership under the sale deeds dated 27. 8. 1987.

( 11 ) IT is pleaded by the plaintiff that no consideration was received by the deceased under the sale deeds and it is wrongly mentioned that under the sale deeds sum of Rs. 8. 5 lacs and Rs. 6 lacs respectively was received as sale consideration.

( 12 ) IT is further the case of the plaintiff that in the sale deeds it is wrongly mentioned that Rs. 4. 5 lacs and Rs. 3 lacs respectively were received by assignment of advance received from M/s. Builder Combine and that balance sale consideration was received in cash. It is stated that no cash was received.

( 13 ) CAUSE of action pleaded is that on 12. 10. 2000 when defendants filed objections before the Revenue Assistant challenging the will and claiming a right under the sale deeds, plaintiff had to obtain certified c