Important Point – Courts are not required to reject a plaint on the basis of allegations made by defendants in written statement.

I.A.12175/2016 (on behalf of defendant no.1 under Order VII Rule 11 (d) CPC)

1. The defendant no.1 vide this application has sought the dismissal of the suit on the ground that the plaintiffs have no cause of action in their favour. It is submitted that suit is based on a Will dated 31.05.2010 and its Codicil dated 23.03.2011 executed by defendant no.4 and she is still alive. No suit can be filed since the Will is enforceable only on the demise of testator, and testator is still alive.

2. In their reply, the plaintiffs have submitted that although the document is titled as Will (dated 31.05.2010) and Codicil (dated 23.03.2011) but in fact these documents are settlement documents and pursuant to this the plaintiffs are in settled possession of the different portions of the property No.4, Defence Colony Market, New Delhi. While the plaintiff no.1 is in settled possession of the entire first floor, second floor portions, the plaintiff no.2 is in the settled possession of 50% of the ground floor of Shop No.4, Defence Colony Market in the capacity of partner of M/s New Evergreen Store. It is submitted that the plaintiffs have sought a decree of permanent injunction against their illegal dispossession as they apprehend illegal dispossession by defendants and since they are in settled possession they have cause of action in their favour. It is submitted that the application is liable to be dismissed.

3. I have heard the arguments and have perused the relevant record.

4. The plaintiffs have filed the present suit against defendant no.1, their brother and defendant no.2, brother’s wife and also their mother. They have also made Sub-Registrar as a party to the suit. The suit relates to the declaration and permanent injunction. The case of the plaintiffs is that Mrs. Angoori Devi Gupta (defendant no.4), their mother is presently residing at A-305, First Floor, Defence Colony, New Delhi. Defendant No.1 (Sushil K. Gupta) is brother of plaintiffs. Defendant No.2, Anjali Gupta is wife of defendant No.1. Anjali Gupta is made a party because defendant no.1 fraudulently persuaded defendant No.4 to execute certain documents in her favour. It is submitted that their mother defendant no.4 is suffering with multiple diseases and she cannot even identify her close relatives including her only daughter Renu Gupta. She had remained admitted during the period 23.02.2015 to 04.03.2015 in intensive care in Moolchand Hospital and although discharged but under prescription takes strong sedative medicines. She is the absolute owner of the immovable and movable property including property bearing shop no.4, Defence Colony Market and Shop No.19, LSC, Naraina and share in house no.2/43, Sarvapriya Vihar, New Delhi as well as other movable properties. It is submitted that for many years immovable properties were used and maintained with the consent of defendant no.4 and defendant no.1. Plaintiff No.2 Mukesh Kumar Gupta is occupying the ground floor of property bearing shop no.4, Defence Colony and the plaintiff No.1 has been in exclusive occupation of the first and second floor of the said property and using it as his residence-cum-office for his company M/s Simsona Technology Private Limited. They are maintaining the portions of the said properties in their possession. It is submitted that the plaintiff no.2 is running his business in the name of M/s New Evergreen in partnership with defendant no.1 in the said property and had spent lakhs of rupees in the development of the property and its maintenance and also paying property tax etc. of the portions which are in their use and occupation. The plaintiff no.1 is presently in possession of the entire ground floor of the property no.2/43, Sarvapriya Vihar, New Delhi which is presently lying vacant and he is paying all the dues of the said property including property tax, electricity and water charges. The defendant no.4 has even issued a No Objection Certificate in favour of plaintiff no.1 permitting him to