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IN THE HIGH COURT OF DELHI AT NEW DELHI

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I.A. No. 2166/2014 (Order XII Rule 6 CPC) in CS (OS)

No. 3048/2011

KAMLA NIJHAWAN

..... Plaintiff

Through

Mr. Ved Prakash Sharma, Advocate,

with

Ms.

Amrit

Kaur

Oberoi,

Advocate and Ms. Shubhani Jain,

Advocate.

versus

SUSHIL KUMAR NIJHAWAN AND ORS.

..... Defendants

Through

Mr. Manish Vashisht, Advocate and

Mr. Dhruv Rohtagi, Advocate.

CORAM:

HON'BLE MR. JUSTICE G.P. MITTAL

1.

This is an application under Order XII Rule 6 read with Section 151 of

the Code of Civil Procedure, 1908 (CPC) seeking a decree in favour of

the Plaintiff and against the Defendants on admission.

2.

A suit for possession, declaration, permanent and mandatory

injunction, mesne profits and damages has been filed by the Plaintiff

against the Defendants. Plaintiff Smt. Kamla Nijhawan is the

grandmother of Defendant no. 1 and mother of Defendant no. 2.

Defendants no. 3 and 4 are the government bodies and lessors of

property no. 13/27, West Patel Nagar, New Delhi-110008.

2014:DHC:4372

3.

The sum and substance of the averments made in the plaint is that Late

Shri Balwant Rai Nijhawan, the deceased husband of the Plaintiff had

executed a Will dated 22.08.1995 whereby he bequeathed various

properties owned by him at the time of his death including ground

floor of property no. 13/27, West Patel Nagar, New Delhi upon the

Plaintiff. The Plaintiff’s grievance is that Defendant no. 2 has

fraudulently got the ground floor of the suit property mutated in his

name on the basis of the earlier said Will, whereas the Plaintiff was to

be the owner of the entire estate of the deceased Balwant Rai

Nijhawan including the ground floor of the property. The Plaintiff,

therefore, sought a decree requiring Defendants no. 1 and 2 to

handover the vacant and peaceful possession of the ground floor of

property no. 13/27, West Patel Nagar, New Delhi and declaration that

the mutation procured by Defendant no. 2 in his favour is null and

void.

4.

The Plaintiff also sought a restraint order against Defendants no. 1 and

2 from creating any third party interest and the mesne profits till the

vacant and peaceful possession of the ground floor is handed over to

the Plaintiff.

2014:DHC:4372

5.

Defendants no. 1 and 2 have contested the suit by way of filing written

statement and they have denied the averments made in the plaint.

Defendants no. 1 and 2, however, did not dispute the Will dated

22.08.1995 purported to have been executed by the deceased Balwant

Rai Nijhawan.

6.

In reply to the present application, the Defendants have not disputed

the execution of the Will dated 22.08.1995. The Defendants have

admitted that the Will dated 22.08.1995 is the last Will of Late Shri

Balwant Rai Nijhawan. The Defendants have, however, taken up a

plea that the ground floor of property no. 13/27, West Patel Nagar,

New Delhi was bequeathed in favour of Defendant no. 2 and

thereafter, the Plaintiff was granted a life estate thereby postponing the

bequeath in favour of Defendant no. 2 till the Plaintiff was alive. It is

thus, stated that the Plaintiff is not entitled to any decree on admission.

7.

In the rejoinder to the reply, the Plaintiff has reiterated that she got the

property absolutely on the death of her husband and Defendants’ plea

that the Plaintiff was given only life estate is misconceived.

8.

For appreciating the application under Order XII Rule 6 CPC, it will

be apposite to extract relevant paragraphs of the Will propounded by

the Plaintiff and not disputed by Defendants no. 1 and 2, hereunder:-

2014:DHC:4372

“WILL

2014:DHC:4372

2014:DHC:4372

this Will shall have effect after her death”

x”

TESTATOR”

9.

Referring to Section 124 of the Indian Succession Act, 1925 (Act of

1925) and illustration (i) to the Section, Advocate Ved Prakash

Sharma, learned counsel for the Plaintiff has urged t