V. Kameswar Rao, J.

IA 17395/2013

1. By this order, I would decide the application i.e. IA 17395/2013 filed by the original plaintiff under Order 6 Rule 17 CPC read with Section 151 CPC for amendment of the plaint.

2. I may note here that vide order dated May 29, 2014 the defendant No.3 has been transposed as plaintiff in the suit. The amended memo of parties has been filed which reveals Beena Sharma and Vinay Paul as the plaintiffs. I may also note here the order dated May 29, 2014 has been challenged by the defendants No.1 and 2 in O.A. No.137/2014 which is pending consideration. The present application has been filed by the plaintiff No.1 before the order dated May 29, 2014 was passed and shall be referred as “plaintiff” in this order.

3. The plaintiff, by this application, is seeking to add paragraphs 18(a), 18(b), 18(c) and 18(d) to 18(h), then, para 20A, para 21A and prayer clauses (g) to (j) to the plaint.

4. The reply has been filed to this application by the defendant Nos. 1, 2 and 5.

5. Rejoinder to the replies filed by the defendant Nos. 1 and 2, has been filed by the plaintiff.

6. It is the submission of Mr. Harish Malhotra, learned Senior Counsel for the plaintiff that the property i.e. C-291, Defence Colony, New Delhi was purchased by Late Wg Cdr Rajinder Paul, son of Late Niranjan Dass from L&DO and the same was got converted from leasehold to freehold during the lifetime of Late Wg Cdr Rajinder Paul. It is submitted that Late Wg Cdr Rajinder Paul died intestate on November 4, 2002 and on his demise, the property devolved on his wife Mrs. Sarla Paul (defendant No. 1) as well as his two sons and two daughters, named in the suit, and thus, the plaintiff became the co-owner of equal share in the suit property.

7. It is the case of the plaintiff in the application that the defendant Nos. 1 and 2 in their written statement have alleged that there exists a registered will dated March 25, 1998, whereby the property in question has been bequeathed to defendant No. 1, mother of the parties to the exclusion of all heirs. According to the plaintiff, it is also alleged by the defendant Nos. 1 and 2, in their written statement that based on some family settlement dated April 3, 2010, the defendant Nos. 1 and 2 have already secured mutation in their favour in the municipal records without furnishing the documents required by MCD in law. It is also stated by the plaintiff that it has been alleged in the written statement that the defendant No. 1 has gifted the second floor with terrace rights of the said property to defendant No. 2 vide registered gift deed alleged to have been executed by the defendant No. 1 in favour of defendant No. 2 on January 11, 2011, registered as document No. 623 in book No. 1 on pages 183 to 191 on January 13, 2011.

8. It is averred by the plaintiff in the application that no will was ever executed and the father of the parties died intestate; the alleged will dated March 25, 1998 is forged and fabricated which has now been produced by the defendant Nos. 1 and 2 only to oust the plaintiff of her valuable right in the property; the said will came to have been executed on March 25, 1998 has now been produced for the first time in the present suit proceedings by the defendant Nos. 1 and 2. It if further averred that the letter dated July 16, 2012 written jointly by plaintiff and defendant Nos. 3 and 4 to defendant No. 1 makes it abundantly clear that no will of father was ever propounded by anyone. It is also averred that the subsequently gift deed allegedly executed on January 11, 2011 based on the mutation is a void-ab-initio. The will and the subsequent gift deed was never in the knowledge of plaintiff nor was it ever disclosed to the plaintiff and it is for the first time that the plaintiff has come to know about the aforesaid documents from written statement filed by the defendant Nos. 1 and 2. It is averred that in view of the aforesaid facts coming to the knowledge of the plaintiff on receipt of