IA No.6967/2014 (of defendant no.1 under Order VII Rule 11 CPC).

1. The counsel for the applicant/defendant no.1 and the senior counsel for the plaintiff have been heard.

2. Besides the defendant no.1, only the counsel for the defendants no.2&3 appears and who are supporting the plaintiff.

3. The plaintiff has instituted this suit inter alia pleading:-

(i) that the father of the plaintiff and the defendants no.1 to 6 (defendants) namely Major Khemraj Suri was allotted plot of land ad measuring 267.22 sq. yds. in the colony now known as Defence Colony, New Delhi by virtue of being a Defence Officer and had raised construction thereon;

(ii) that the father of the plaintiff and the defendants, with intention to convert the said property into a Joint Hindu Family (HUF) property, executed a Declaration dated 25th February, 1969 whereby he constituted a HUF comprising of himself, his wife and the plaintiff and the defendants and assumed the capacity of Karta of the said HUF; Major Khemraj Suri had voluntarily and unilaterally thrown the property aforesaid into common stock of family property, thereby abandoning his separate claim therein;

(iii) that by virtue of the said declaration dated 25th February, 1969, Major Khemraj Suri renounced his individual rights in the said property and all the members of the HUF had a right/share/interest in the property;

(iv) that the mother of the plaintiff and the defendants Smt. Shanta Kumari Suri died on 3rd December, 2009 and the father of the plaintiff and the defendants died on 5th January, 2011;

(v) that after the demise of the father, disputes and differences have arisen between the plaintiff and the defendants and the property is liable to be partitioned and the plaintiff is entitled to his 1/7th share therein;

(vi) that to the utter shock of the plaintiff, sometime in the year 2011, the plaintiff was for the first time made aware by the defendant no.1 about the existence of a Will dated 21st June, 2005 whereby the deceased father late Major Khemraj Suri had allegedly bequeathed his entire estate including the suit property in favour of the defendant no.1; accordingly a dispute arose between the parties;

(vii) that according to the terms of the Will, late Major Khemraj Suri had declared to sell off second floor of the said property without roof rights to a third party and the ground floor, first floor and the roof rights of the said property have been bequeathed solely to the defendant no.1 with full and absolute right over it;

(viii) it is therefore amply clear that the Will has been obtained by fraud, coercion and by undue influence mediated by the defendant no.1 over late Major Khemraj Suri who was under complete mercy of the defendant no.1;

(ix) even otherwise the said Will is void since it bequeaths the said property which late Major Khemraj Suri could not have done, it being an HUF property;

(x) that late Shri Major Khemraj Suri did not have the capacity to bequeath the said suit property in totality as the said property was property of HUF consisting of himself, Smt. Shanta Kumari Suri and the plaintiff and defendants herein as expressly declared vide Declaration dated 25th February, 1969; accordingly the Will dated 21st June, 2005 could not have been executed by late Major Khemraj Suri qua the suit property and with regard to the assets obtained by the income of the said property;

(xi) “the plaintiff crave leave of this Hon’ble Court to intervene in the present dispute and declare the Will dated 21st June, 2005 as null and void to the extent dealing with the said property which was declared as a HUF property; it is submitted that a Joint Hindu Family consists of all persons lineally descending from a common ancestor i.e. late Major Khemraj Suri, as such the plaintiff being the co-parcener of the HUF has a subsisting interest and right over the said property”; and, (xii) that defendant no.1 was sharing residence with late Shri Major Khemraj Suri and Smt. Shanta Kumari Suri in the suit pr