VALMIKI J.MEHTA, J.

I.A.No.20104/2014 (under Order XII Rule 6 CPC by the plaintiff)

1. This is an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC) filed by the plaintiff in this suit for partition etc. The suit for partition is filed for the property of Smt. Gobind Kaur Sabharwal namely 12, Kohat Enclave, Pitampura, Delhi-34. Plaintiff is the daughter of Smt. Gobind Kaur Sabharwal. Defendant nos.1 and 3 are the brothers of the plaintiff and also the children of Smt. Gobind Kaur Sabharwal. Defendant nos.2 and 4 are also the sister and brother of the plaintiff and again children of Smt. Gobind Kaur Sabharwal.

2. In the plaint, it is pleaded that the mother Smt. Gobind Kaur Sabharwal died on 4.11.2002 and that the mother died leaving behind the registered Will dated 16.4.2001 whereby 1/5th share in the suit property at Kohat Enclave was given to each of the plaintiff and the four defendants who are the children of Smt. Gobind Kaur Sabharwal. The alternative case which is set up in the plaint vide para 8 is that even if there is no Will of the mother, the parties to the suit, being the children of late Smt. Gobind Kaur Sabharwal, they will inherit 1/5th right in the suit property at Kohat Enclave, Delhi.

3. The suit is essentially contested by defendant no.3 who pleads that the suit property was purchased in the name of the mother from the funds which were provided by the defendant no.3 on account of love and affection of the defendant no.3 towards the mother. This aspect inter alia is stated in para 3 of the preliminary objections as also para 1 of the reply on merits of the written statement of defendant no.3 and these paras read as under:-

Para 3 of preliminary objections

“3. That the plaintiff has not come to the Hon’ble Court with clean hands and has suppressed material facts while instituting the instant suit as such the plaintiff is not entitled to any relief either in equity or in law and the suit instituted by the plaintiff merits dismissal. As a matter of fact the suit property was acquired by answering defendant with funds contributed by him which out of love, affection and regard towards her and deceased mother of the answering defendant had no independent financial source to own and acquire the property in dispute. It is humbly submitted that thus the plaintiff has deliberately concealed the fact that since the plaintiff and defendant no.2 had been well settled in their family life with their husbands and further, there has been substantial contribution made by defendant no.3, in assisting the defendant no.4 to acquire assets in his name at Indore, late Smt. Gobind Kaur Sabharwal & father of the parties had expressly communicated their desire to the legal heirs, the suit property shall remain in exclusive domain of defendant no.3 who had been even taking care of their well and was extending support to Sardar Surjeet Saingh Sabharwal arrayed as defendant no.1 herein. Thus, the instant suit instituted by the plaintiff is a gross abuse of process of law and the plaintiff is not entitled to claim any right in the suit property.

Para 1 of reply on merits

1. That the contents of para 1 of the Plaint are not disputed to the extent that the suit property was acquired in the name of Smt.Gobind Kaur Sabharwal, mother of the parties to the instant suit. However, it is clarified that the aforesaid plot was purchased and further developed from the funds contributed by the defendant no.3, which had been purchased in the name of his mother out of share respect and his life and affection. Since, the mother of the plaintiff was a house wife had no source of income to own and acquire the aforesaid plot and to raise construction thereon. But, since the answering defendant was into business, the funds were being raised and contributed by him to acquire the said property and to develop it as desired by his parents, in the name of Smt. Gobind Kaur Sabharwal, mother of the answering defendant. Thus, the averme