The importance of clear and specific pleadings, the doctrine of election allowing heirs to choose intestate succession despite a will, and the significance of admissions in pleadings.

PRADEEP NANDRAJOG, J.

1. Rakesh Gupta, the defendant in the suit instituted by his brother Ramesh Gupta is aggrieved by the impugned decree dated October 01, 2014 allowing IA No.14073/2014 filed by Ramesh Gupta praying for a decree to be passed on admission. Allowing the application, the suit has been decreed as regards prayer ‘A’ i.e. for possession of the suit property which is a portion on the second floor of property bearing No.R-34, South Extension (NDSE) Part-II, New Delhi.

2. Case pleaded by Ramesh Gupta in the plaint is that he and Rakesh are real brothers. Their father late Sh.Dina Nath was the owner of property No.R-34, South Extension (NDSE) Part-II, New Delhi. He was also the owner of other properties. He executed a will on March 18, 1986, bequeathing his properties to his sons and his daughter-in-law : Ms.Anuradha the wife of Rakesh Gupta. That under the will he bequeathed the entire property R-34, South Extension (NDSE) to him except the front portion on the second floor consisting of a drawing-cum-dining room, a bed room, a kitchen, a bath room and a terrace in the front. He pleaded that the will was accepted when late Sh.Dina Nath died on December 12, 1986 and was acted upon. Rakesh Gupta’s wife Anuradha sold the second floor of the property bequeathed to her at 2741, Gali Arya Samaj and in the sale-deed she claimed to be the owner under the will dated March 18, 1986 and that Rakesh Gupta signed as an attesting witness to the will. Ramesh Gupta further pleaded that in the year 1988 he constructed two rooms, a toilet-cum-bath, a store room and one dressing room on the rear open portion on the second floor of property No. R-34, South Extension (NDSE) Part-II, New Delhi because under the will said open space was bequeathed to him and out of love and affection permitted his brother to occupy the said portion without any consideration i.e. as a licensee. He pleaded that since he required the said portion of the property he asked his brother to vacate the same in the last week of November, 2011 and since his brother refused to vacate the same he had no option but to sue for a decree for possession and damages post the period the permission to occupy the suit property was withdrawn by him.

3. Rakesh Gupta filed a written statement-cum-counter claim. He made pleadings by way of preliminary objections and relevant would it be to note the pleadings in para 4 (a), (e), (f) and (i). They read as under:-

“4(a) That property No.R-34, South Extension Part-II was constructed in the year 1972 and the defendant has been residing in the said property for the last about 41 years. The defendant is residing for the last 25 years on the second floor. The plaintiff has stated that he requires the portion in possession of the defendant for his personal use, but, it is submitted that the plaintiff has already rented out the property and the plaintiff is claiming charges from the defendant and the defendant is residing in the property being member of the family as the property belongs to a family and he is not liable to pay any amount to the plaintiff or any other person.

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4 (e) That the father of plaintiff and defendant was expired on December 13, 1986 and after his death will was received by the plaintiff and defendant and the shares in the will were not equal. At that time, the defendant had only one son and wife. In June 1988 the defendant’s wife conceived a child and the defendant feeling paucity of accommodation and Mr.Girdhari Lal, Mr.T.C.Gupta who were elders in the family had allowed the defendant to raise construction on the back portion and this was done with the consent of other family members including his elder brother and the plaintiff It is further submitted that at the time of arriving the family settlement, following members were present:-

(i) Shri T.C. Gupta, samdhi of Sh.Dina Nath Gupta;

(ii) Sh. Girdhari Lal Gupta, brother of Sh. Dina Nath Gupta;

(iii) and Shri Girdhari Lal Gupta is also a witness of the sale d