Mr. Rajesh Bindal J.: - One of the defendants is before this court challenging the order dated 15.11.2011, passed by the learned court below, whereby the application filed by him under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC for rejection of the plaint was dismissed.

2. Learned counsel for the petitioner submitted respondent No. 1- plaintiff filed a suit for declaration, inter-alia, challenging clause 5 of the Will dated 13.10.1993 executed by deceased-Kartar Kaur, in which application was filed by the petitioner-defendant No. 1 under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC for rejection of the plaint on the ground that the Will in question had already been upheld upto this court, hence, the suit filed for challenging the clause thereof was barred by law. Reliance was placed upon Chaman Lal Kapur and others v. Kundan Lal Kapur, AIR 1979 Delhi 240 Amar Singh and others v. Lal Singh and others, (1997) 11 SCC 570 in support of the submission that the Will has to be read in its spirit as is executed by the testator and none of its clause can be challenged by the beneficiaries.

3. On the other hand, learned counsel for respondent No. 1- plaintiff submitted that parties to the earlier litigation were different than the parties to the present suit. Earlier the suit was filed by Manjit Kaur Kalra, daughter of deceased-Kartar Kaur challenging the Will by raising the plea that in fact Pritam Singh Ahluwalia, husband of deceased-Kartar Kaur, had executed a Will dated 7.12.1989, vide which 2/5th share of H. No. 116, Sector 16-A, Chandigarh was given to her and 1/5th share each was given to the defendants in the suit, namely, S. P. S. Ahluwalia, Brig. S. S. Ahluwalia and H. S. Walia. He further submitted that the issue sought to be raised in the suit presently filed was not under consideration before the court in the earlier litigation as it was simpliciter challenge to the Will executed by Pritam Singh Ahluwalia claiming that in terms of an earlier Will executed by deceased-Pritam Singh Ahluwalia, she was entitled to more share in the property. Placing reliance upon Umrao Singh v. Baldev Singh and another, AIR 1933 Lahore 201 and Smt. Rajrani Sehgal v. Parshottam Lal, AIR 1992 Delhi 134, it was submitted that any clause in the Will putting restriction on the sale of property by the beneficiary thereof can always be challenged and the court can adjudicate thereupon.

4. Heard learned counsel for the parties and perused the paper book.

5. The suit was filed by respondent No. 1-plaintiff with the following prayer:

“Suit for declaration to the effect that clause 5 of the Will dated 13th October, 1993 of Smt. Kartar Kaur registered at Sr. No. 2555, Book No. 3, Volume 20 dated 13th October, 1993 containing a clause causing embargo on the sale of property bearing House No. 116, Sector 16-A, Chandigarh to any body except defendant No. 1 is void and plaintiff is entitled to sell the property to any other person than defendant No. 1 and for permanent injunction restraining defendant from interfering in the sale of the said property to any other vendee.”

6. By filing the application, it was claimed by the petitioner that in fact the Will in question was challenged by Manjit Kaur Kalra daughter of deceased-Kartar Kaur by filing a civil suit in which respondent No. 1- plaintiff was one of the defendants. The suit was dismissed by Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 6.5.2005. The same was upheld in appeal by Additional District Judge, Chandigarh vide judgment dated 13.4.2010. The said judgment was affirmed by this court in R.S.A. No. 3449 of 2010, decided on 16.5.2011.

7. Clause 5 of the Will, which is sought to be challenged by respondent No. 1 in the suit, is extracted below:

“5. Four rooms set of second floor of Kothi No. 116, Sector 16, servant quarter consisting of room and bathroom on the ground floor which is connected with the servant l