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2008 DIGILAW 405 (DEL)

RAJNI SAXENA v. DEEPAK DIESH

2008-04-11

SHIV NARAYAN DHINGRA

body2008
ORDER IA No. 3717/2008 1. This application has been made by the plaintiff under Order 6 Rule 17, CPC seeking amendment of the plaint stating therein that on 16th March, 2008, the applicant/plaintiff met one Naresh Kumar Pande, known to the deceased father of the plaintiff and he told the applicant/plaintiff that her father had executed a Will dated 10th April, 2001 which was in his possession. On request, the original Will was delivered to her by Mr. Pande. She submitted that the contents of the Will dated 10th April, 2001 were of great importance and would be helpful in trial of the controversy between parties. She, therefore, intends to add Paragraph 19(c) in the plaint, mentioning the fact of discovery of another Will dated 10th April, 2001 and that this Will cancels all other Wills except the registered Will dated 22nd October, 2000 and gives the property to both i.e. plaintiff (daughter) and son defendant No.1 in equal share. 2. Plaintiff filed this suit for partition, declaration and permanent injunction qua property of her father late Sh. Janardhan Diesh who died on 9th June 2003 alleging therein that her late father had inherited the property in question from her grand-father Dr. Dwarka Diesh and the property in question was a joint family property. She being the daughter and defendant No.1 being the son, both were entitled to equal share in the property. However, defendant No. 1 started claiming himself to be the absolute owner of the property under a gift deed dated 18th July, 2001 allegedly executed by late Shri Janardhan Diesh deceased father of the parties in his favour. She pleaded that the gift deed was null and void in the eyes of law as late Shri Janardhan Diesh had no right to gift away the said property in favour of any person or persons as the property was an ancestral property and the gift deed was hit by provisions of Hindu Succession Act. It is also stated that the gift deed was a sham gift deed. Her father had also executed a registered Will dated 22nd October, 2000 and under the said Will he had bequeathed the said property in favour of both the plaintiff and defendant No.1, considering the property as his self-acquired property. It is also stated that the gift deed was a sham gift deed. Her father had also executed a registered Will dated 22nd October, 2000 and under the said Will he had bequeathed the said property in favour of both the plaintiff and defendant No.1, considering the property as his self-acquired property. However, in the Will itself he had stated that in case the property is held to be ancestral property, then his son would not be entitled to get any right, title or interest in the same and the same shall solely and exclusively vest in the plaintiff. 3. The plaintiff filed this suit for partition of the property claiming herself to be the owner of half of the property. She later on amended the suit and added few defendants on learning that part of the property had been sold away by defendant No.1 and also sought relief of cancellation of sale deed in favour of other defendants. It is apparent that the suit of the plaintiff is not based on the Will dated 22nd October, 2001 executed by her father but is based on the claim that the property was an ancestral property and could not have been gifted and on the same ground it can be said that the same could not have been bequeathed by way of a Will. The basis of the suit, therefore, is not the Will but the right of the plaintiff in the property on the ground that the property was an ancestral property and the gift deed, even if made by her father in favour of defendant No.2 was null and void. By the present application for amendment, the plaintiff now wants to propound another Will of her father wherein her father held reiterated that the Will executed by him dated 22nd October, 2000 shall be considered as the last Will. The defendant had also propounded a Will, which the plaintiff alleged was not a genuine Will. 4. By the present application for amendment, the plaintiff now wants to propound another Will of her father wherein her father held reiterated that the Will executed by him dated 22nd October, 2000 shall be considered as the last Will. The defendant had also propounded a Will, which the plaintiff alleged was not a genuine Will. 4. I consider that the since the basis of the claim of the plaintiff is not the Will, neither the Will dated 22nd October, 2000 is the subject matter of the suit nor a basis of right of plaintiff to property and no issue has been framed whether the Will dated 22nd October, 2000 could be acted upon, the subsequent Will now allegedly traced by the plaintiff cannot be allowed to be included in the pleadings and the suit cannot be allowed to be amended on the ground that the plaintiff now got hold of another Will of her father. The rights of the parties are to be determined on the basis of nature of the property in the hands of her late father and not on the basis of the Will. 5. I find no force in this application under Order 6 Rule 17, CPC. The same is hereby dismissed. CS(OS) No. 785/2007 List now on 24th July, 2008. Application dismissed.