IMPORTANT POINT
The withdrawal of a probate petition does not prevent a party from asserting the Will as a defense in a subsequent suit, and the trial must proceed to resolve the issues.

JUDGMENT :

NAVIN CHAWLA, J.

I.A. 18629/2022

1. This application has been filed by the plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) praying for a decree to be passed in her favour based on the purported admissions of the defendant, estoppel, acquiescence, waiver, and abandonment of claim by the defendant in respect of the alleged Will dated 19th June, 2018 left behind by the mother of the parties, Late Smt. Kamla Mallick, by withdrawing the petition seeking grant of probate of said Will.

Claim of the Plaintiff in the Plaint:

2. The present suit has been filed by the plaintiff inter alia praying for a decree of partition of the property being plot bearing no. D-125, Saket, New Delhi, 110017, admeasuring 250 Sq. Yards and plot no. B-887, Greenfields Colony, Faridabad, Haryana, admeasuring 225.55 Sq. Yards (hereinafter collectively called ‘suit properties’).

3. The plaintiff asserts that the father of the parties, namely Sh. Gyan Chand Mallick, unfortunately passed away intestate on 25th July, 1998, leaving behind the plaintiff, the defendant, and their mother, Late Smt. Kamla Mallick, as his legal heirs. The property at Saket was mutated in favour of Late Smt. Kamla Mallick vide letter dated 21st January, 2014 issued by the DDA, after the plaintiff and the defendant relinquished their share in favour of their mother, Late Smt. Kamla Mallick. Later, the said property was converted into freehold, and Conveyance Deed dated 29th May, 2014 was executed by the DDA in favour of the mother of the parties.

4. As far as the property at Faridabad is concerned, the plaintiff asserts that the said property was originally owned by the plaintiff, defendant, and Smt. Shanti Devi, the grandmother of the parties, in equal share. On the death of Smt. Shanti Devi on 24th February, 1994, Late Sh. Gyan Chand Mallick, being her legal heir, succeeded to her 1/3rd share in the said plot. As Sh. Gyan Chand Mallick died intestate on 25th July, 1998, his 1/3rd share was succeeded by the plaintiff, the defendant, and the mother of the parties, thereby making the share of the three as under:

5. It is further claimed in the plaint that in May, 2014, the defendant approached the plaintiff stating that the mother of the parties is unhappy with him and he has an apprehension that she may bequeath the entire suit property to the plaintiff. As the plaintiff did not have any desire to take the share of her brother, the parties, that is the plaintiff and the defendant, entered into a Memorandum of Understanding dated 05th May, 2014, whereby it was stipulated that in case the mother of the parties executes any Will with respect to the suit properties, irrespective of the same, both the plaintiff and the defendant shall own the suit properties in equal share after the demise of their mother.

6. The plaintiff asserts that Late Smt. Kamla Mallick executed a registered Will dated 27th May, 2014 bequeathing entire suit properties to the plaintiff herein.

7. The plaintiff further asserts that in June, 2018, the mother of the parties complained to the plaintiff that the defendant had taken her to the office of the Sub Registrar of Documents and fraudulently got some documents signed from her without showing the contents thereof to her. On enquiry, the plaintiff learnt that the defendant had, without the knowledge and consent of late Smt. Kamla Mallick, dishonestly got executed a Registered Will dated 19th June, 2018 from her, bequeathing the suit properties to the defendant. Immediately on coming to know of the same, Late Smt. Kamla Mallick revoked the said Will dated 19th June, 2018 by way of a Registered Will dated 27th July, 2018, bequeathing the suit properties equally in favour of the plaintiff and the defendant. The plaintiff asserts that the defendant, however, started pressurizing and threatening Late Smt.