The main legal point established in the judgment is the onus of proving the will and the need to remove all legitimate suspicions before accepting the document as the last will of the testator.

JAYANT NATH, J.

I.A. 15473/2013

1. The present application is filed by the plaintiffs seeking an injunction to restrain the defendants from selling, transferring or alienating the suit property.

2. The plaintiff has filed the accompanying suit for a decree declaring the relinquishment deed dated 27.02.2004 and the Will dated 11.12.2008 in respect of the suit property i.e. House No.93, Surya Niketan, Vikas Marg, New Delhi, as void and also to declare that the plaintiffs are the owner of ¼ share of the suit property.

3. It is the case of the plaintiffs that the plaintiffs are the legal heirs of late Sh. Ishwari Datt Sharma S/o late Sh. Hari Datt Sharma. Defendants No.1 to 3 are the brothers of late Sh. Ishwari Datt Sharma. The said late Sh. Hari Datt Sharma had five sons namely, defendants No.1 to 3, late Sh. Ishwari Datt Sharma who is now represented by his legal heirs i.e. the plaintiffs and Sh. Sunil Sharma who expired in 2007 without any children or spouse. Shri Hari Datt Sharma was a member and shareholder of defendant No.5 – a Cooperative House Building Society. The suit property being a land, was allotted to Sh. Hari Datt Sharma consequent to draw of lots. The plot was thereafter constructed upon. It is urged that Sh. Hari Datt Sharma had a joint Hindu Family and the said plot was constructed as coparcenary property. Sh. Hari Dutt Sharma died on 30.01.1997.

4. All the sons of late Sh. Hari Dutt Sharma namely late Sh. Ishwari Dutt Sharma, defendants no.1 to 3 and late Sh. Sunil Sharma executed a relinquishment deed dated 27.02.2004 in favour of their mother Smt. Kamla Sharma, which was duly registered. The said Smt. Kamla Sharma on the basis of the said relinquishment deed got lease hold rights of property mutated in her name. The plaintiffs challenge the relinquishment deed arguing that being coparceners of Hindu Undivided Family, late Sh. Ishwari Dutt Sharma and his brother could not execute relinquishment deed in favour of Smt. Kamla Sharma.

5. It is further stated that under the influence and under coercion from the defendant no.1, late Smt. Kamla Sharma executed a Will dated 11.12.2008 which was duly registered in favour of defendant no.1 whereby the rights of the suit property were allegedly bequeathed to defendant no.1. The plaintiffs challenged the Will stating it to be a sham document and also submitting that defendant no.1 influenced and took advantage of his old mother and got the Will executed. It is urged that the Will was executed under the influence, duress. Other discrepancies are also said to exist. Hence the present suit was filed.

6. The above application came up for hearing on 25.09.2013. This Court had prima facie held that the contention of the plaintiff that the suit property is an HUF property, is untenable in view of the judgment of this Court dated 30.01.2013 in CS(OS)823/2010. However, in view of the fact that the plaintiff had challenged the Will of late Smt. Kamla Sharma, this Court passed an ex parte ad interim injunction restraining defendant no.1 from selling alienating or transferring the suit property till further orders.

7. Learned senior counsel for the defendant no.1 vehemently argued that the present case is entirely without any merits and unwarranted. He strongly submits that the suit is frivolous one and no prima facie case is made out. He urges that the stay order be vacated to permit defendant no.1 to enjoy the suit property.

8. It is firstly urged that as far as the challenge to the relinquishment deed dated 27.02.2004 is concerned, the challenge is absolutely without any merits. It is urged that the ground of challenge to the said relinquishment deed namely that the property is an HUF property, is legally untenable. It is further urged that as far as the challenge to the Will is concerned the plaint is vague and the challenge is misplaced. He stated that the execution of the Will by late Smt. Kamla Sharma the testator is not denied in the plaint. The only ground for challenge al