Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

I.A. 5847/2022 (for stay)

2. The application for interim injunction is listed for hearing.

The present suit has been filed seeking partition and other ancillary reliefs in respect of the suit property being A-46, Dayanand Colony, Lajpat Nagar IV, New Delhi-110024, which belonged to the grandmother of the Plaintiffs, late Smt. Jai Mala Devi, who expired on 29th December, 2021.

3. Ld. Counsel for the Defendant prays that the injunction grated vide order dated 13th April, 2022 deserves to be vacated as the basic premise of the plaint itself was that the owner Ms. Jai Mala Devi had died intestate. However, the said owner who is the testatrix had left a Will dated 23rd July, 2021 by which she had bequeathed the property to the Defendants.

4. In fact, it is submitted on behalf of the Defendants that during her lifetime itself the testatrix/owner had entered into a collaboration agreement on 1st July, 2021 with one Mr. Pawan Kumar Dhanda for developing the entire property and had received a sum of Rs. 20 lakhs from the developer. Ld. Counsel further submits that all these facts have not been brought to the notice of the Court and thus the interim order deserves to be vacated in view of the fact that the entire development of the property has come to a standstill due to the interim order. On behalf of the Defendants, reliance is placed upon the registered Will dated 29th July, 2019 and the subsequent Will dated 23rd July, 2021. The copy of the agreement dated 1st July, 2021 executed between the testatrix and the property developer i.e., Mr. Pawan Kumar Dhanda is also on record.

5. On behalf of the Plaintiffs, however, it is submitted by ld. Counsel - Ms. Rudrakshi Gautam, that it is not in dispute that the Plaintiffs are also the legal heirs of Ms. Jai Mala Devi through the daughter Smt. Indira Sharma. Smt. Jai Mala Devi, as per the plaint had three daughters and two sons. The Plaintiffs’ mother late Smt. Indira Sharma had pre-deceased her mother Smt. Jai Mala Devi.

6. According to the Defendants, the father of the Plaintiffs had remarried after the death of their mother Smt. Indira Sharma and thus the Plaintiffs – though the grandchildren, were not bequeathed any part of the estate by their grand mother.

7. Heard. During the lifetime of Smt. Jai Mala Devi, had executed two Wills one dated 29th July, 2019 as per which the bequest was as under:

“33% of the Entire Property goes to my elder son Vivek Sharma;

33% of the Entire Property goes to my younger son Ashwani Sharma;

34% (remaining share) jointly goes to my both daughters Renu Sharma and Hemlata Sharma.

They shall have the full right to use and enjoy the same as absolute owner, but if they want to sell their respective portion in the said property the first offer is to be made to the remaining legal heirs/ beneficiary of this Will and on their refusal to buy the same at market value, he/she can sell it to a third party with the written consent of minimum two legatees/ beneficiary of this Will.

AND WHEREAS my legal heirs (sons and living daughters) want to construct the said property in future the said property same devolved and bequeath as under:

 Basement is equally divided/shared between my four Children (Vivek Sharma, Ashwani Sharma, Renu Sharma and Hemlata Sharma);

 Ground Floor with 2 car parking in the stilt to my elder son Vivek Sharma:

 First Floor with 2 car parking in the stilt) jointly goes to my both daughters Hemlata Sharma and Mrs. Renu Sharma;

 Third Floor with 2 car parking in the stilt to my younger son Ashwani Sharma, and roof is equally divided between both sons  That the remaining floor i.e. Second Floor with 2 car parking goes to that person who will incurred and construct the said entire property at his own cost.”

8. As per the above Will, the Plaintiffs whose mother had passed away prior to the grandmother/ testatrix were not given any portion of the property.

9. Therea