SARVINDER SINGH AND ORS. Vs. VIPUL TANDON

JUDGEMENT

(1.) This application has been preferred by the plaintiff under Order 12 Rule 6 CPC for passing of decree on the basis of admission. The plaintiffs have filed the present suit to seek the relief of possession and mesne profits/ damages from the defendant in respect of the suit property, i.e. flat having three floors with lawn and terrace and four servant quarters in property no.27, Rajpur, Delhi as shown in red colour in the site plan filed with the plaint. The plaintiffs have also claimed damages @ Rs. 2 lacs per month along with interest @ 15% p.a. against the defendant towards use and occupation charges in respect of the suit property from the date of filing of the suit till possession.

(2.) The case of the plaintiffs in the plaint is that the suit property was owned by their mother late Smt. Nirmal Satyendra Singh and she had spent most of her time in the said property. The plaintiff no.1 is settled in U.K. and plaintiff no.2 is settled in Canada for the last more than 44 years. The father of the plaintiffs had also settled in Canada in the year 1968. The plaintiffs state that their mother, namely, late Smt. Nirmal Satyendra Singh refused to shift abroad and she stayed back in India in the suit property. In these circumstances, the defendant was appointed as the caretaker of the mother of the plaintiffs. The plaintiffs claim that upon the death of their mother on 24.11.1994, they inherited the suit property being the only Class -I heirs of their late mother.

(3.) The plaintiffs state that on 13.05.1996, the defendant filed a probate petition being PC No. 182/1996 in the court of the District Judge, Delhi. This probate was filed in respect of an alleged will dated 15.08.1992 attributed to late Smt. Nirmal Satyendra Singh, whereunder, purportedly the suit property had been bequeathed to the defendant, to the exclusion of the plaintiffs who are her sons. The plaintiffs state that the defendant played a fraud while filing the said probate petition, since it was not disclosed therein that the plaintiffs are residing abroad since 1970. The defendant obtained service report qua the plaintiffs by manipulation, and forged the signatures of the plaintiffs on the summons. The plaintiffs state they were not even in India on 31.05.1996, when the service of summons was allegedly affected on them. On the basis of service report, since no objections were filed, on 13.08.1997 the learned District Judge granted probate to the defendant in respect of the alleged will dated 15.08.1992.