Mukta Gupta, J.

1. By this application under Order XIV Rule 15 CPC the plaintiff seeks deletion of issue No.9 and amendment of issue No.10 framed by this Court on 25th May, 2012.

2. The main contention of learned counsel for the plaintiff is that the Will dated 5th January, 1996 of late Smt. Jaswant Kaur i.e. the mother of plaintiff and defendantNo.1is not specifically denied by defendant No.1 in his written statement and hence the same is deemed to be admitted. Further in view of the admission made, the plaintiff is not required to prove the validity of the Will and thus issue No.9 is redundant and issue No.10 is required to be modified accordingly. Reference is made to Order VIII Rule 3, 4 and 5 CPC and Sections 58 and 68 of the Evidence Act. Reliance is placed on Balathandayutham and another v. Ezhilarasan, (2010) 5 SCC 770, Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others, AIR 1990 Kerala 226, Rajan Suri and another v. State and another, AIR 2006 Delhi 148, R. Vellingiri and Gokila v. S.R. Kannaian and others (Appeal No.828 of 2007 decided by High Court of Madras on 5th September, 2007) and Kanwarjitsingh R Chadha v. Sahebrao Gajanan Salve and others (Appeal No.826 of 2013 decided by Bombay High Court on 4th July, 2013).

3. Learned counsel for the defendants No.1 and 3 on the other hand contends that the defendants have not admitted the Will and have used the words „alleged Will? in the written statement. Thus, there is no admission by the defendants. Alternatively even if this Court holds that the defendants have not denied the Will specifically is thus deemed to be admitted, the same is not a proof of genuineness of the Will which is required to be proved as per Section 68 of the Indian Evidence Act. Execution of the Will and genuineness of the Will are different matters and to base his claim on the alleged Will of late Smt. Jaswant Kaur, the plaintiff is required to prove that a genuine and valid Will was executed by her. Reliance is placed on S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 SCC 274.

4. I have heard learned counsel for the parties. The issues sought to be deleted and modified are as under:-

“9. Whether Ms. Jaswant Kaur has validly executed the Will dated 5th January, 1996? OPP.

10. Whether the plaintiff is entitled to a decree of partition as prayed for? OPP”

5. In paras 4, 11 and 14 of the plaint, the plaintiff has pleaded that “In the year 1996, late Jaswant Kaur executed her last will and testament dated 5-1-1996. As per the said will, the said premises bearing No.60, Ring Road, Lajpat Nagar III, New Delhi was to devolve upon the Plaintiff and DefendantNo.1 in two equal shares. Further, the Defendant No.3 was to receive a sum of Rs.10,00,000/- from the Plaintiff and Defendant No.1 in equal shares. Further the Will settled all her other movable assets and bank balances as well as ornaments between the parties herein. The Plaintiff states that the said will dated 5-1-1996 was the last will and testament of late Jaswant Kaur and was executed by her with sound and deposing mind. It is only some time on or about 2006 that the late Jaswant Kaur became very unwell and with advancing age was incapable of managing her own affairs and was also incapable of forming a judgment as to what was in her own interest”. It is further pleaded that during the pendency of suit being CS(OS) No. 707/08 late Jaswant Kaur expired on 15-8-2008 and after her expiry, the plaintiff took up the matter with regard to partition of the premises as per the Will and defendant No.1 assured the plaintiff that wishes of their mother would be respected and requested the plaintiff to wait for a period of forty days. In para 14 of the plaint the plaintiff has stated, “the gift deeds dated 23rd May, 2007 and 2nd June, 2008 are not genuine and/or are void and no right, title or interest has been created in favor of defendants No.1 and 3 by virtue of the gift deeds. Late Jaswant Kaur had already executed a Wil