Rajeev Kshetrapal vs Dr. Vinay Kshetrapal
2014 Latest Caselaw 2579 Del

$~ 19
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 1319/2012

%                                     Judgment dated 20.5.2014

      RAJEEV KSHETRAPAL                        ..... Plaintiff
               Through: Mr.Rajinder Aggarwal, Advocate

                          versus
      DR VINAY KSHETRAPAL                     ..... Defendant
               Through: Mr.B.S. Mor, Advocate
      CORAM:
             HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (Oral)

1. Plaintiff has filed the present suit for permanent injunction.

2. As per the plaint, plaintiff and defendant are the real brothers. Defendant is the elder brother of the plaintiff. Further, as per the plaint, father of the parties, late Sh.A.N. Kshetrapal, was the owner of a residential property bearing no.8A, Poorvi Marg, Vasant Vihar, New Delhi, comprising of ground floor and one bed room at the first floor. It was his self acquired property. The father of the parties died leaving behind a Will dated 9.6.1988 by which he bequeathed his entire estate to his wife, the mother of the parties. As the parties to the suit and the sister did not object, the property was mutated in the name of the mother of the parties, for which the parties.

3. It is the case of the plaintiff that the mother of the parties initially executed a registered Will dated 8.4.1996 wherein she bequeathed the entire property in favour of the plaintiff with the right to reside on the second floor during his life time. Since the defendant was unhappy with the Will, he started exerting pressure on the mother.

The mother executed another Will dated 26.6.2000 by which it was provided that the plaintiff would live on the ground floor, the defendant would continue to live on the second floor, the first floor would be given on rent and the sale proceeds will be divided 40%, each, to the plaintiff and the defendant, and 20% to the mother. This Will was revoked and another Will dated 14.3.2009 was executed by which only living rights were given to the defendant.

4. It is also the case of the plaintiff that the parties had accepted the Will of the mother but the defendant has been acting in a very hostile manner and has been threatening to sell part of the property and has also been threatening to interfere in the peaceful possession of the plaintiff in the ground floor and first floor of the suit property.

5. Summons were issued in the suit on 9.5.2012. Parties were directed to maintain status quo with regard to title and possession of the suit property. In the order dated 7.11.2012 it was recorded that defendant had refused to accept summons, however, fresh process was issued. On 6.5.2013 four weeks' time was granted to the defendant to file written statement. None appeared for the defendant on the next date of hearing i.e. 12.12.2013. Another three weeks' time was granted to the defendant to file written statement on 12.3.2014. Right to file written statement was closed on 15.5.2014 as no written statement had been filed. Written statement has not even been filed till today. Counsel prays for a decree under Order VIII Rule 10 CPC.

6. Learned counsel for the defendant submits that 50% of the property stands bequeathed to him. This fact is disputed by counsel for the plaintiff. Both parties agree that the rights and share of the parties with respect to the suit property cannot be decided in the present proceedings, which is simpliciter a suit for permanent injunction filed by the plaintiff. In the

absence of any opposition and taking into consideration the fact that despite several opportunities having been granted no written statement has been filed, the present suit is decreed in favour of the plaintiff and against the defendant. Let a decree sheet be drawn up accordingly. I.A. 8812/2012

7. In view of the order passed in the suit, application stands disposed of.

G.S.SISTANI, J MAY 20, 2014 ssn