Delhi District Court
Madhu Gupta vs . Ajay Kumar Gupta on 4 May, 2011
IN THE COURT OF MS. SEEMA MAINI : ADDITIONAL DISTRICT JUDGE -03
(NORTH): DELHI
CS No.275/10
Madhu Gupta Vs. Ajay Kumar Gupta
ORDER:
1. Vide this order I shall dispose off the application dated 25.10.2010, u/o 39 rule 1 and 2 CPC, moved on behalf of the plaintiff/applicant, for grant of an ad- interim injunction.
2. The brief facts, relevant for the efficacious disposal of the application, are that the plaintiff Ms. Madhu Gupta has filed a suit against the defendant Sh. Ajay Kumar Gupta, for mandatory and permanent injunction, with the submissions that the defendant is the real brother of the plaintiff, both being the children of late Sh. Brij Bhushan Gupta. Late Sh. Brij Bhushan Gupta was the owner of plot bearing no. 190, sitauted at Vivekanand Puri, Delhi, which was purchased by him, from his own sources and subsequently got constructed the same from his own sources and funds. The property at Vivekanand Puri is a built up property, comprising of the ground floor, first floor, second floor and Terrace floor. The terrace floor was sold by Sh. Brij Bhushan Gupta to his youger son Sh. Anil Kumar Gupta by virtue of a registered Sale Deed on 27.12.1993. The ground floor portion of the said property, (hereinafter called the suit property), was under the permissive possession of the defendant.
CS No. 275/10 Page no. 1/7
3. Late Sh. Brij Bhushan Gupta, during his life time, signed and executed a registered Will, which was duly registered with Sub-Registrar-I, Delhi on 03.12.2002 in favour of his legal heirs. By virtue of the said registered Will, Sh. Brij Bhushan Gupta bequeathed his ground floor of the suit property in favour of the plaintiff. Sh. Brij Bhushan Gupta expired on 07.10.2009 and thereafter in the first week of October, 2010, the plaintiff came to know about the said Will. However, when she asked the defendant, who was in possession of the suit premises, (ground floor), to deliver the possession of the same to him, the defendant refused to handover the possession of the same. Subsequently, the plaintiff got a legal demand notice dated 12.10.2010 served upon the defendant, whereby delivery of the suit premises was demanded, but despite the service of the notice, the defendant refused to handover the possession of the suit premises, but rather started giving threats to the plaintiff for creating third party interest in the suit premises.
4. It was stated that the defendant had no right, title or interest in the suit premises and his acts were unlawful and illegal. Having no other efficacious remedy available, the instant suit has been filed by the plaintiff, seeking mandatory injunction in her favour and against the defendant, whereby the defendant be directed to handover the actual physical and vacant possession of the suit premises i.e ground floor of the property bearing no. 190, Vivekanand Puri, Delhi to the plaintiff. A decree of permanent injunction has also been prayed by the plaintiff in her favour and against the defendant thereby restraining the defendant from creating any third party interest in the suit property or creating any lien in the suit CS No. 275/10 Page no. 2/7 property and also for restraining the defendant from making any addition, alteration and structural changes in the suit property, in any manner.
5. Written statement was filed by the defendant, taking several other preliminary objections, besides the objection that the suit was not maintainable as the relief, which was sought for, was on the basis of a Will had not been got probated. It was also stated that as per the Will dated 03.12.2002 the plaintiff only had the life rights in the suit property and upon her death, the same would again devolve upon other legatees, who would become the absolute owner of the suit property. It was also stated that the said Will has not been executed by the deceased Sh. Brij Bhushan Gupta out of his free Will, but rather he was pressurized and coerced by the plaintiff to execute the said will in lieu of the money, which had been lent by her to the other son of the deceased Brij Bhushan Gupta, as a loan for construction, which he had not returned. It was also stated that Late Sh. Brij Bhushan Gupta, during his last days, realized that he made a mistake and revoked the alleged Will by executing a fresh Will, vide which he had bequeathed the suit property in favour of the wife of the defendant, who had since filed a separate petition seeking probate of the last and final Will of deceased Brij Bhushan Gupta dated 30.08.2009.
6. In reply, on merits, the defendant has also claimed that the property in question was constructed from his funds, since he was the only earning member at the relevant time, after the retirement of his father and that the plaintiff is not CS No. 275/10 Page no. 3/7 entitled to any relief. It was prayed that the suit be dismissed.
7. Replication was filed on behalf of the plaintiff to the written statement of defendant, wherein the assertions made by the defendant were denied and the facts narrated by the plaintiff, in the plaint, were reiterated.
8. Vide the instant application, it is submitted on behalf of the plaintiff/applicant that the assertions made by her in the suit be treated as part of the application. It has been stated that the plaintiff has a prima-facie case in her favour as well as the balance of convenience also lies in her favour and that if the injunction is not granted, then the plaintiff shall suffer irreparable loss and injury, which cannot be compensated in terms of money. It was stated that an ad-interim injunction be passed in favour of the plaintiff and against the defendant thereby restraining the defendant not to creat any third party interest in the suit premises to any person in any manner, including creating any lien in the suit property. It is also prayed that the defendant be restrained from making any addition, alteration and structural changes in the suit premises i.e ground floor of property bearing no. 190, Vivekanand Puri, Delhi, till the final disposal of the instant suit.
9. Reply to the application has been filed by the defendant, wherein the objections raised by him in the WS, have been prayed, to be read as a part of the reply. It was also stated that if the interim injunction is granted, it would tantamount to grant of a decree in favour of the plaintiff, at this stage, without adducing any evidence. It was stated that the plaintiff does not have any prima-facie case in her CS No. 275/10 Page no. 4/7 favour nor does the balance of convenience lies in her favour, nor any irreparable loss is likely to be caused in her favour.
10. I have heard Sh. Ajay Gupta counsel for plaintiff/applicant and Ms. Suman Malhotra counsel for defendant, perused the record and have gone through the rival contentions of the parties and the relevant case laws.
11. The plaintiff has filed the instant suit for mandatory and permanent injunction against the defendant on the basis of a Will of Late Sh. Brij Bhushan Gupta dated 03.12.2002, vide which the alleged suit property comprising of ground floor portion of the property bearing no. 190, Vivekanand Puri, Delhi, was bequeathed to the plaintiff. The execution of the said Will by Late Sh. Brij Bhushan Gupta is not denied but rather admitted by the defendant in para no.9 of his written statement, though the execution of the same is challenged by the defendant on the ground that the same was not executed, out of free will, but out of coercion.
12. His second defence is that the said Will dated 03.12.2002 was subsequently revoked by Late Sh. Brij Bhushan Gupta and in its place another Will dated 30.08.2009 was executed, for the probate of which the wife of the defendant has already filed a separate probate petition. Therefore, admittedly by the defendant, the Will, on the basis of which the instant suit has been filed, was duly executed by Late Sh. Brij Bhushan Gupta. Whether the same was out of free will or not remains to be decided after both the parties have led their evidence. At the CS No. 275/10 Page no. 5/7 same time, if the alleged subsequently executed Will, if any, dated 30.08.2009 of Late Sh. Brij Bhushan Gupta was his last Will and in affect, revoked the Will on the basis of which the instant suit is based, would again remain a triable issue and is already sub-judice before the appropriate probate Court. Therefore, till the final outcome of the probate petition, wherein the present plaintiff has also been made a party, or till the instant suit, in which the plaintiff would inevitably have to prove that this Will dated 03.12.2008 was the only and the last Will of Late Sh. Brij Bhushan Gupta, the property in question definitely needs to be preserved. Admittedly, the defendant is in possession of the suit property bearing no. 190, Vivekanand Puri, Delhi. Till the issue of the beneficiary of the said suit property can be decided, the property needs to be preserved and should not change hands. In my opinion, therefore, the plaintiff has a prima-facie case in her favour and the balance of convenience also lies in her favour and if the property is parted possession with, by any act of the defendant, irreparable loss is definitely likely to be occasioned to the plaintiff.
13. In view of my above discussion, the applicable u/o 39 rule 1 and 2 CPC dated 25.10.2010, moved on behalf of the plaintiff is allowed and the defendant is restrained from creating any third party interest in respect of the ground floor portion of the property bearing no. 190, Vivekanand Puri, Delhi, (suit property) and from creating any lien in the suit property as well as from making any addition, alteration and structural change in the suit property, till the disposal of the instant suit. No orders as to costs.
CS No. 275/10 Page no. 6/7
14. Application is accordingly disposed off. No orders as to costs. Nothing mentioned in this order shall tantamount to an expression of any opinion on the merits of the case.
Announced in open Court today (SEEMA MAINI) i.e on 04.05.2011 ADJ-03 (North)Delhi CS No. 275/10 Page no. 7/7 CS No. 275/10 04.05.2011 Present: None
Vide my separate order of even date, the applicable u/o 39 rule 1 and 2 CPC dated 25.10.2010, moved on behalf of the plaintiff is allowed and the defendant is restrained from creating any third party interest in respect of the ground floor portion of the property bearing no. 190, Vivekanand Puri, Delhi, (suit property) and from creating any lien in the suit property as well as from making any addition, alteration and structural change in the suit property, till the disposal of the instant suit. Application is accordingly disposed off. No orders as to costs. Nothing mentioned in this order shall tantamount to an expression of any opinion on the merits of the case. Now to come up for PE for 18.07.2011.
(SEEMA MAINI) ADJ-03(North):Delhi CS No. 275/10 Page no. 8/7