SURESHTA MALHOTRA Vs. URMILA RANI CHADHA AND ORS.

JUDGEMENT

(1.) I.A. 15350/2013.

(2.) BY the present application filed under Order VII Rule 11(a)(b) and (c) CPC defendant no. 5 pays that the plaint be rejected. Plaintiff has filed the present suit for declaration, mandatory and permanent injunction against the defendants seeking a declaration, inter alia, that the plaintiff is the absolute owner of second floor and terrace of the property bearing No. E -65, Greater Kailash Enclave, Part -I, New Delhi. A declaration is also sought declaring the Agreement to Sell dated 5.5.2010 entered into between the plaintiff and defendant no. 4, for which the earnest money was paid by defendant no. 5, as null and void and unenforceable. The main thrust of the arguments of learned counsel for the applicant/defendant no. 5 is that late Sh. Rajinder Nath Chaddha, father of plaintiff and defendants no. 1 and 2 had left behind a Registered Will dated 7.2.1996. As per the said Will, the property was bequeathed to his wife. Based on the Will his wife entered into a Collaboration Agreement with defendant no. 4, as per which the builder was entitled to basement, second floor, third floor and terrace of the property in question together with stilt parking, except two parkings, which were to fall into the share of the owner, besides the ground floor and the first floor. It is further the contention of counsel for the applicant that since upon the death of late Sh. Rajinder Nath Chaddha his wife became the absolute owner she had full right over the property in question. Portion of the Will dated 7.2.1996, which is sought to be relied upon by counsel for the applicant, reads as under:

(3.) IN view of the above submission and based on the Will it is submitted by counsel for defendant no. 5 that there is no cause of action for filing the present suit.