RAJNI SAXENA Vs. DEEPAK DIESH (DELHI)

JUDGEMENT

(1.) This application has been made by the plaintiff under Order 6. Rule 17. C.P.C. 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.

(2.) 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.

(3.) 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 grant-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. However, in the Will itself he had stated that in a 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.