Delhi High Court
Lalit Mohan Bhakhry vs Smt. Suikhshna Bhakhry And Ors. on 2 April, 2008
Author: S N Dhingra
Bench: S N Dhingra
ORDER
Shiv Narayan Dhingra, J.
1. By this order I shall dispose of above said two connected applications. By IA No. 14828/2007 plaintiff has sought leave of the Court to permit the plaintiff to place on record original Will of the deceased dated 27.6.1999. She submitted that the suit was originally filed by Mr.Lalit Mohan Bhakhry who died on 27.7.1999. After his death, plaintiff filed an application I.A No. 10993/99 for substitution. Defendant also filed I.A. No. 6736/2000 claiming to be one of the legal heirs and seeking substitution Along with plaintiffs as LR. Plaintiff filed a rejoinder to the reply filed by the defendant in February 2001 and in that rejoinder she pleaded about the Will dated 14.06.1999 left behind by the deceased and filed a photo-stat copy of the Will along with rejoinder. This Court ordered substitution of the plaintiffs as well as the defendant as LRs of deceased on 18.11.2003 and issues were framed on 19.4.2005. However, plaintiff did not get an opportunity to file original Will executed by the deceased (original plaintiff) although the photo copy was on record. She wants to file the original Will and prove the same stating that evidence of the plaintiff was yet to be closed.
2. Vide application I.A. No. 11808/2007 defendant has stated that case was fixed for evidence on 22.11.2007. Plaintiff wants to bring on record the Will, original of which has not been filed. It be ordered that she has no right to do so.
3. The claim of the plaintiff of partitioning of the suit property was resisted by the defendant alleging a family settlement. During pendency of the proceedings, original plaintiff Mr.L.M. Bhakhry died on 27.7.1999 and Smt.Madhu Bhakhry filed an application alleging that she and her minor daughter were the legal representatives. On 27.5.2000 defendants filed an application I.A.6736/2000 in the counter claim alleging that mother of the deceased was also an LR. In reply to the application, Smt.Madhu Bhakhry came up for the first time with a stand that her husband had executed a Will dated 27.6.1999 and filed a photo copy of the same. She is now relying on this Will and filed affidavits of the marginal witnesses to prove the Will. It is stated that there was no issue framed to the effect that Mr.L.M. Bhakhry left behind a Will which was witnessed by marginal witnesses. Neither the original Will was filed in the Court, the plaintiff should therefore, be debarred from filing the Will and leading evidence.
4. A perusal of the issues framed on 19.4.2005 would show that all issues were framed in respect of right of Mr.S.N. Bhakhry in property No. M-12, NDSE Part II and shop No. 110, Yashwant Place, Chanakya Puri and car No. DAQ-4649. The LR have stepped into the shoes of the plaintiff. However, no issue has been framed as to whether any of the LRs was entitled to the share of the property of the deceased on the basis of the Will. The genuineness and validity of the Will in question is not before the Court, neither the suit is in respect of the Will. The suit is only in respect of the partition of the property. The substituted LR of the plaintiff, namely, Madhu Bhakhry claims right over the property of deceased through the Will to the exclusion of others. She has not amended the pleadings to the effect that after death of Mr.Lalit Mohan Bhakhry she would be the absolute and only legal heir entitled to the properties of the deceased. After substitution of LR she had filed additional documents and she had sufficient opportunity to amend the pleadings. She took no steps.
5. I consider that in order to avoid multiplicity of proceedings, it would have been necessary that she should have amended the pleadings and had pleaded her right under the Will at the earliest. Even if the Will is taken into consideration, the issues would remain the same unless the pleadings are amended. A perusal of the Will shows that she has only been given a limited right to enjoy the property with no right of ownership of the property. The property ultimately has to go to the daughter when she attains the age of 18.
6. I consider that in order to resolve the issue finally between the parties, plaintiff should be given an opportunity to amend the pleadings according to the Will and Will can be taken on record only after amendment of pleadings so that the defendants have an opportunity to refute the Will, if they want to do so. The plaintiff, if so advised, may take steps to amend the plaint within two weeks.
Both the applications stand disposed of.
CS(OS) No. 1631/1995
List the suit for further proceedings on 28th April, 2008.
