Jayant Nath, J.

1. The plaintiffs have filed the present suit for declaration, mandatory and permanent injunction. Plaintiff No. 1 is the son of plaintiff No. 2. Defendant No. 1 is the daughter of plaintiff No. 2 and the sister of plaintiff No. 1. Defendant No. 2 is the husband of defendant No. 1. Defendant No. 3 is a tenant stated to have been illegally inducted on the second and third floor of the suit property by defendant No. 1.

2. The property which is the subject matter of the present proceedings is property bearing No. D-246, Defence Colony, New Delhi. As per the plaintiffs, the suit property was the self acquired property of late Col. (Retd). B. R.Dewan who was the father of plaintiff No. 1 and defendant No. 1 and husband of plaintiff No. 2. Late Col. (Retd). B. R.Dewan is stated to have executed various Wills on different dates. His last Testamentary Will is dated 24.06.1984. He died on 16.09.1984. A probate case No. 16/1986 was filed before this Court by plaintiff No. 2, his wife. On 12.10.1987, this Court granted probate of the said Will dated 24.06.1984.

3. As per the Will dated 24.06.1984, the ground floor was willed to plaintiff No. 1 while the first floor was willed to defendant No. 1. Certain rights , however, were given to plaintiff No. 2. She was entitled to live and reside in the suit property free of rent and also enjoy the income from the tenants. She was entitled to dispose the tenants and/or take new tenant of her own will in the capacity of being the owner till her demise. It was further directed that in case, plaintiff No. 1 and defendant No. 1 sell their portions of the suit property, they would pay 1/5th of the sale consideration to Sh.Ashok Dewan, the son of the first wife of late Col. (Retd).B. R.Dewan. It was further directed that in case they want to construct a second storey in the defence colony property, then they would contribute equally and share the property equally unless they mutually desire otherwise.

4. In the meantime before the probate was granted, on 26.01.1986 a family settlement was entered into between the legal representatives of late Col. (Retd). B. R. Dewan including plaintiffs No.1, 2 and defendant No.1. Under the family settlement, a residential plot at R-7/189, Raj Nagar, Ghaziabad was settled as the exclusive property of Brig. Ashok Dewan, the son of late Col. (Retd). B. R.Dewan from his first wife. Certain other payments were also made to Brig. Ashok Dewan and Smt. Kamla Dewan. The said Brig. Ashok Dewan and Kamla Dewan relinquished all their claims to the property of the deceased.

5. Plaintiff No.1 in the plaint claims to be a largely self-made man who is happily married and has two children. On the other hand, it is claimed that defendants No.1 and 2 had severe marital problems for most of their married life. It is further stated that defendants No.1 and 2 could not manage their household expenses within the earnings of defendants No. 2 and this was the main reason for their marital problems. It is further stated that plaintiff No.2 had showered them with lavish gifts for which there was always a constant demands on weddings, birthdays and festivals. They were not satisfied. It was stated that this was a severe drain on the funds of plaintiff No.2.

6. Plaintiff No. 1 who was residing abroad is stated to have executed a General Power of Attorney in favour of plaintiff No. 2 on 27.09.1984 authorising her to deal on his behalf with respect to the suit property. The said Power of Attorney has been revoked on 04.05.2010.

7. It is sated that a need was felt to carry out repairs in the suit property as it was 45 years old. Plaintiff No. 1 claims that he offered to carry out the repairs and was also willing to pay 100% of the total cost to renovate the ground floor. However, it is stated that defendant No. 1 was not willing to contribute any capital to the repair of the first floor. Hence, as a practical solution a collaboration was entered into with a builder so that