The probate court exclusively adjudicates the validity of a will, while partition suits can proceed simultaneously, but without seeking will validity declarations in the partition suit.

JUDGMENT :

VIKAS MAHAJAN, J.

I.A. 37440/2024 (filed by plaintiff under Order XXXIX Rule 1 & 2 read with Section 151 CPC for grant of ad-interim ex-parte injunction)

1. With the consent of the parties the present application is taken up for disposal.

2. The present suit has been filed seeking partition, rendition of accounts and injunction of the estate left behind by late Capt. Satish Sharma. The plaintiff is the son whereas the defendant nos.1 & 2 are wife and daughter of late Capt. Satish Sharma.

3. Along with the present suit, plaintiff has also filed the present application for ad interim ex-parte injunction praying for restricting the defendants from creating any third-party interest in immovable properties mentioned in Schedule-A to the plaint.

4. Mr. Shaunak Kashyap, the learned counsel appearing on behalf of the plaintiff submits that the assets which form part of the estate of late Capt. Satish Sharma have been enumerated in Schedule-A to the plaint and one of the contentious properties is agricultural land.

5. He submits that the present suit has been filed by the plaintiff on the ground that late Capt. Satish Sharma passed away intestate and the plaintiff being class I legal heir is a co-owner in all the properties mentioned in Schedule-A.

6. He submits that plaintiff is residing in property bearing nos. 28 and 30 Dera Mandi Road, New Delhi and eviction notice was served upon him by defendant no.1 on 09.09.2022. Subsequently, another notice was served upon the plaintiff on 12.07.2024 asking him to evict premises by December 2024.

7. He submits that prior to filing of the present suit a probate petition has been filed in this Court by the defendant no.1 being TEST CAS. 60/2021 titled “Sterre Sharma Vs State Govt of NCT & Ors” with regard to registered Will dated 19.06.2018 allegedly executed by late Capt. Satish Sharma in favour of defendant no.1 and disinheriting plaintiff and defendant no.2.

8. He further submits that since the defendant no.1 has also filed a probate petition with regard to the said Will, therefore, the entire estate of late Capt. Satish Sharma needs to be preserved.

9. He submits that in any case, the plaintiff has filed his objections in the TEST. CAS. 60/2021 with regard to the validity of the Will inter alia on the ground that late Capt. Satish Sharma was suffering from Cancer which had metastasized to his brain, therefore, he was not in a fit state of mind to execute the Will. He submits that the objections are still pending consideration before this Court.

10. On the other hand, Mr. Rajat Wadhwa, the learned counsel appearing on behalf of defendant no.1 submits that the present suit is not maintainable inasmuch as no prayer seeking declaration that the Will is illegal, null and void has been sought in the present suit. He submits that the prayer for declaration has deliberately not been sought in the present suit inasmuch as the said prayer would have been barred by limitation. In addition, he submits that the probate petition in the present case was filed as early as on 06.07.2021 whereas the present suit came to be filed only in August, 2024 which is clearlybarred bylimitation.

11. He submits that since there exists a registered Will in favour of the defendant no.1, therefore, the prima facie case is not in favour of the plaintiff.

12. He further submits that since the plaintiff has indulged into forum shopping, therefore, for this reason too, the plaintiff is not entitled to inte