The main legal point established in the judgment is the application of the tests of prima facie case, balance of convenience, and irreparable injury in granting an injunction, and the consideration of surrounding circumstances and evidence to determine possession in a property dispute.

G.S. Sistani, J.

IA.No.18453/2013 (u/O.39 Rs=1 & 2 CPC filed by plaintiff) IA.No.18860/2013 (u/O.39 R=4 CPC filed by defendant no.1)

1. A mother forgets the pain she suffers at child’s birth, the moment she hears the cries and sees the face of her child. A mother’s sleepless nights and countless sacrifices are not uncommon for her children. Smt.Sheela Ashok Nath gave birth to four children (three sons and one daughter). This mother even on her death has given a share of her property to each of her four children, in a residential house worth crores of rupees. In a wildest of her dreams she would not have expected that her dead body would lie in the Veranda of her own house and would not be placed in her living room which was locked on account of inter se disputes between her children.

2. This order shall dispose of IA No.18453/2013 & IA No.18860/2013.

3. Plaintiff has filed the present suit for injunction. Plaintiff is the brother of defendants no.1 to 3. Defendant no.4 is the maternal uncle of the plaintiff i.e. plaintiff’s mother’s brother. Plaintiff and defendants no.1 to 3 are the children of late Sh.Ashok Nath and Smt.Sheela Ashok Nath (hereinafter referred to as the ‘mother’). Smt.Sheela Ashok Nath died on 17.11.2013. The mother executed a Will dated 24.4.2009, which was presented before the Sub-Registrar–V, Delhi for registration on 27.4.2009. The Will was registered vide registration No.2630 in additional book no.3, volume no.1716 on pages 5 to 10 on 28.4.2009. The defendant no.4 has been named as the executor of the Will. Further as per the plaint, the immovable property bearing No.A-51, Nizamuddin East, New Delhi (hereinafter referred to as ‘the suit property’), which consists of ground floor, first floor and the second floor has been bequeathed in the following manner:

4. The Will is yet to be accepted by all the parties.

5. It is further stated in the plaint that at present the property comprises of ground floor (including a store-room in the basement), first floor and the second floor. The suit property was initially owned by the father of the plaintiff and defendants no.1 to 3, who expired on 6.1.1994, leaving behind a Will dated 15.9.1988 by which he bequeathed the suit property to his wife. A probate was granted with respect to the aforesaid Will on 8.7.1995. The matter remained uncontested. Consequent to the grant of probate, the name of Smt.Sheela Ashok Nath was substituted in the records of the Land and Development Officer on 5.12.1996; the property was also got mutated in her name in the records of Municipal Corporation of Delhi on 29.1.1997 and pursuant to the mutation house tax was being paid by her. Further as per the plaint during the life-time of the mother, the plaintiff along with his daughter (Aadya Nath) was and is in occupation and possession of the entire ground floor of the suit property. The plaintiff along with defendant no.2 was taking care of their ailing mother and serving her. The defendant no.1 was and is in possession of the first floor, and he was allowed to use one kitchen on the ground floor by the deceased mother. The defendant no.2 was and is in possession of the second floor.

6. It is the case of the plaintiff that since the contents of the Will were known to all the parties, they were occupying their respective portions in the suit property and plaintiff, defendants no.1 and 2 had given effect to the Will, even during the life-time of their mother. An averment has also been made in the plaint that when the health of the mother started deteriorating and since the plaintiff was running between the hospital and the house, the defendant no.1 with ulterior motives and mala fide intentions unauthorizedly started using the living room on the ground floor. In order to maintain peace and to avoid mental agony or tension to the mother, the plaintiff tolerated the mala fide activities of the defendant no.1. However, an apprehension had started to build up in the mind of the plaintiff