JUDGEMENT

NEENA BANSAL KRISHNA, J. CS(OS) 1728/2011 Page 2 of 11 I.A. 11438/2022 (under Order XXII Rule 1 on behalf of the plaintiff seeking Withdrawal of the Civil Suit) & I.A. 12077/2022 (under Order XXIII Rule 1-A read with Order I Rule 10 of CPC on behalf of LR No.(iii) of Defendant No.1 for Transposition as a plaintiff).

1. The present suit has been filed by the plaintiff Ms. Mukti Dutta for Declaration that the Mutation dated 06.06.1952, Will dated 07.06.1976 and Letter of Probate are null and void, Partition of the property, Mandatory and Permanent Injunction against the defendants in respect of the property bearing No.13, Barakhamba Road, New Delhi (hereinafter referred to as “suit property”), which is pending trial.

2. The two applications have been filed, one by the plaintiff for withdrawal of the Suit and other by Mr. Amit Bhushan LR No.(iii) of Defendant No.1 for Transposition as a plaintiff.

3. Briefly stated, the Suit property was exclusively owned by late Shri Narain Dutta, who died intestate and was survived by his wife, late Shri Karam Devi, three daughters namely late Vidyawati, Sumitra Sahai, & Kaushalya and one son late Shri Krishan Dutta. After the demise of late Shri Narain Dutt, despite the fact that their mother late Shri Karam Devi was surviving then, the son late Shri Krishan Dutta had got the entire suit property mutated in his name on 06.06.1952. Thereafter, he executed a Will dated 07.06.1976 bequeathing the suit property in favour of defendant No. 17, Arya Orphanage. Late Sumitra Sahai and the other siblings gave their NOC to the issuance of a Letter of Probate in favour of the executor of the Will, Smt. Rani Dutta, wife of late Shri Krishan Dutta who had assured that no share beyond what late Shri Krishan Dutta was legally entitled to would be alienated by way of the Will.

CS(OS) 1728/2011 Page 3 of 11

4. However, when Defendant No. 17 Arya Orphanage sent a Notice for vacating the suit property, Late Sumitra Sahai then filed Suit No. 785 of 1994 for Mandatory Injunction against Arya Orphanage. Late Sumitra Sahai later withdrew the suit due to her old age and the suit was dismissed as withdrawn.

5. Subsequently, when the plaintiff Ms. Mukti Dutta, who is a daughter of late Smt. Vidyawati (sister of Late Sh. Krishan Dutta) became aware of her right in the suit property, the present suit was filed.

6. Defendant Nos. 1, 2 and 12 in their Written Statement had admitted the contents of the plaint in support of the prayer for partition of the Suit Property.

7. The plaintiff has filed I.A. 11438/2022 under Order XXIII Rule 1 CPC for the withdrawal of the suit. It is submitted that she is completely satisfied with the Will dated 07.06.1976 wherein late Shri Krishan Dutta (plaintiff’s mother’s brother) bequeathed his property in favour of defendant No. 17 Arya Orphanage. Therefore, the plaintiff does not wish to contest the case anymore and has sought permission to withdraw the Suit.

8. Shri Amit Bhushan LR (iii) of deceased defendant No.1 in his reply to the application for withdrawal has asserted that the suit was filed by Ms. Mukti Dutta to contest the Will dated 07.06.1976 that was executed by Sh. Krishan Dutta in favour of defendant No.17. The submissions made by Ms. Mukti Dutta in the application stating that she is fully satisfied about the genuineness of the Will, clearly reflects that it is not a case of simplicitor and unconditional withdrawal. It is contrary to her own earlier proceedings. The application for simplicitor withdrawal is opposed more so because Ms.

Amit Bhushan, LR No.1 of deceased defendant No.1 has already moved an CS(OS) 1728/2011 Page 4 of 11 application for transposition.

9. Defendant No. 3 Shri Arun kau