The main legal point established is that a party cannot seek interlocutory relief based on a document contested in the plaint, emphasizing the principle of election and the inability to claim relief on the basis of a document denied in the plaint.

JUDGMENT

C.Hari Shankar, J. - Ia 3553/2021 in CS (OS) 147/2021 (under Section 151 of CPC, 1908- for directions)

1. This order disposes of Ia 3553/2021, whereby the plaintiff has sought interlocutory relief.

2. CS (OS) 147/2021, in which the present application has come to be filed, is a suit for declaration, partition and permanent injunction.

3. The plaintiff and the defendant are brothers. The suit seeks partition of the estate of their mother, Mrs. Vijaya Rajya Laxmi Choudhary. The property at I-1787, Chitranjan Park, New Delhi-110019, ('the CR Park property' hereinafter) forming subject matter of the present application, is one of the properties of which the suit seeks partition, and comprises of three floors including a ground floor, a first floor and a second floor/ barsati.

4. In 1997, the defendant started residing on the first floor of the CR Park property. The plaintiff is in possession of the second floor of the property; as per the plaint, since 1999, prior to which the plaintiff claims to have been residing on the ground floor with his mother.

5. as the situation stands at present, admittedly, the plaintiff's wife alone stays on the second floor, as the plaintiff is working in Singapore. It is an admitted position, that, till date, the plaintiff continues to work in Singapore and that it is his wife who is in occupation of the second floor.

6. Mr. Mehta, learned Senior Counsel for the plaintiff submits that, consequent to his retirement, the plaintiff is working in Singapore as a Consultant and periodically visits Delhi. The plaintiff, according to Mr. Mehta, is a diabetic, and 65 years of age. There is no lift in the CR Park property, and the plaintiff and his wife have, in order to obtain access to the premises in their occupation, to climb two floors.

7. as is customary in such cases, the plaintiff and the defendant lay individual claim, to the exclusion of the other, to have taken care of the mother during her lifetime. That aspect is, however, of no particular significance, in so far as the present application is concerned.

8. according to the plaintiff, their mother died intestate. as a result, the plaintiff claims that he, and the defendant have each succeeded to half of the estate of their mother. In the CR Park property too, therefore, according to the plaint and according to Mr. Mehta, the plaintiff and the defendant are each entitled to a half share.

9. after the demise of their mother, the defendant claimed rights on the basis of a will dated 19th august, 2017, stated to have been executed by their mother. as per the will, the defendant would be entitled to first and second floor of the CR Park property, whereas the plaintiff would be entitled to the ground floor of the CR Park property The plaintiff disputes the genuineness, validity and legality of the will which, according to the plaint, is a fabricated document.

10. The plaint further asserts that, as opposed to the aforesaid will, oral discussions were taking place between the plaintiff and the defendant, regarding the manner in which the estate of their mother should be divided. These discussions, avers the plaint, resulted in an oral family settlement dated 22nd December, 2018, under which the entire estate of their mother would be divided equally and for execution of a written family settlement executed in the said terms, and the CR Park property would be demolished and a new building with four floors constructed, to be equally divided between the plaintiff and the defendant. However, the plaint acknowledges that there were points of disagreement regarding inclusion, in the written family settlement, of the will dated 19th august, 2017, as well as the right of the defendant to choose the flats into which he would come into possession, consequent to re-development of the CR Park property.

11. Be that as it may, it is not in dispute that no written family settlement came to be executed at any point of time. Mr. Mehta, however, has drawn my attention to t