Rajiv Sahai Endlaw, J.:—

IA No.18813/2012 (of the plaintiffs under Order 12 Rule 6 of the CPC).

1. The plaintiffs in this suit, (i) for recovery of possession of property No.6, Kautilya Marg, Chanakyapuri, New Delhi – 110 021; (ii) for permanent injunction; and, (iii) for mesne profits, seek judgment qua the relief of possession on admission. The senior counsel for the plaintiffs and the counsel for the defendants have been heard.

2. The case of the plaintiffs is:-

(a). that Smt. Bhagwati Talwar, mother of the plaintiffs, was the owner of the said property; (b). the said Smt. Bhagwati Talwar died on 29th November, 2006 leaving last Will and testament dated 3rd January, 1995, whereunder she bequeathed the said property to her two sons, the plaintiffs herein and to her daughter Smt. Neena Sarin in equal proportion, subject however to the condition that in the event of Smt. Neena Sarin predeceasing her, the property shall go to the plaintiffs in equal shares; (c). Smt. Neena Sarin predeceased her mother Smt. Bhagwati Talwar and died on 16th May, 2003; (d) probate of the aforesaid Will of Smt. Bhagwati Talwar has been granted by the High Court of Calcutta vide order dated 10th January, 2008; (e). Smt. Bhagwati Talwar in her lifetime had allowed her daughter Smt. Neena Sarin to use and occupy the said property and the three defendants being the husband and daughters of the said Smt. Neena Sarin continue to occupy the said property; The plaintiffs as owners of the property, have sued for recovery of possession thereof and for injunction restraining the defendants from parting with possession of the property and for mesne profits.

3. The defendants have contested the suit by filing a written statement pleading:-

(i). that the defendants no.2&3 being the daughters of Smt. Neena Sarin, predeceased daughter of Smt. Bhagwati Talwar, have applied to the Calcutta High Court for revocation of the probate granted of the Will dated 3rd January, 1995 aforesaid of Smt. Bhagwati Talwar and which proceedings are pending and the plaintiffs who claim title to the property under the said Will of Smt. Bhagwati Talwar, cannot during the pendency of such revocation proceedings recover possession of the property;

(ii). that Smt. Bhagwati Talwar was residing at Calcutta and Smt. Neena Sarin and her husband, defendant no.1 herein, were managing the said property at Delhi on behalf of Smt. Bhagwati Talwar and the said property was being let out from time to time to different tenants;

(iii). that in or around the year 1977 Smt. Neena Sarin along with the defendants shifted into the said property at the asking of Smt. Bhagwati Talwar;

(iv). Smt. Bhagwati Talwar always told everybody that the said property belonged to her daughter Smt. Neena Sarin, though the property continued to be recorded in the name of Smt. Bhagwati Talwar;

(v). Smt. Bhagwati Talwar also executed a Power of Attorney dated 15th March, 1986 in favour of the defendant no.1 to facilitate the management of affairs of the said property and the defendant no.1 only was paying the House Tax and other dues of the said property and also having the same renovated and re-furbished as his own property;

(vi). though Smt. Bhagwati Talwar wanted to gift the said property to Smt. Neena Sarin but since no one ever doubted the intention of the plaintiffs in interfering with the said decision of Smt. Bhagwati Talwar, need was not felt to execute the Gift Deed;

(vii). the defendant no.1 only carried out litigation for getting the ground floor of the said property vacated from the tenant and the defendant no.1 was taking independent decisions with respect to the said property; however since the property was in the name of Smt. Bhagwati Talwar, a Power of Attorney in favour of the defendant no.1 was filed in the said eviction proceedings; that upon the vacation of the ground floor by the tenant in the year 1984, the defendants and Smt. Neena Sarin occupied the entire property;

(viii). Even after the demise of Smt.