Delhi High Court
Smt. Wanti Bai vs Sh. Baldev Raj Ahuja & Ors. on 23 September, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 377/2014
% 23rd September, 2014
SMT. WANTI BAI ......Petitioner
Through: Mr. Prayas Aneja, Adv.
VERSUS
SH. BALDEV RAJ AHUJA & ORS. ...... Respondents
Through: Mr. M.L.Kasturi, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this petition under Article 227 of the
Constitution of India is to the order dated 21.11.2013 by which the trial court
has decided the preliminary issue in favour of the petitioner/defendant no.1,
holding that the suit as framed is not maintainable and the trial court
simultaneously by the impugned order has allowed the plaintiff/respondent
no.1 to challenge the Will dated 7.2.1971 executed by Sh. Ram Chand Ahuja
in favour of his widow Smt. Talian Bai so as to remove the objection with
regard to maintainability of the suit.
CMM 377/2014 Page 1 of 4
2. The facts of the case as stated in the plaint are that respondent
no.1/plaintiff claims that the suit property bearing no. 2/101, Geeta Colony,
Delhi was owned by his father Sh. Ram Chand Ahuja, and after the death of
Sh. Ram Chand Ahuja his children being the respondent no.1/plaintiff/son
and the two daughters Smt. Wanti Devi/defendant no.1/petitioner herein and
another daughter Smt. Sheela Devi were equally 1/3rd co-owners of the suit
premises. Respondent no.1/plaintiff as per the plaint disputes that his
mother Smt. Talian Bai had become the exclusive owner of the property in
terms of the Will dated 7.2.1971 of Sh. Ram Chand Ahuja, but the
respondent no.1/plaintiff in the plaint did not challenge the registered Will
dated 7.2.1971 which was executed by Sh. Ram Chand Ahuja in favour of
Smt. Talian Bai with respect to the suit property, although in the plaint the
mutation done in favour of Smt.Talian Bai pursuant to the registered Will of
Sh. Ram Chand Ahuja dated 7.2.1971 was challenged.
3. The petitioner/defendant no.1 in the written statement has
disputed the case of the respondent no.1/plaintiff and has pleaded that Sh.
Ram Chand Ahuja had executed the Will dated 7.2.1971 in favour of his
widow Smt. Talian Bai and Smt. Talian Bai being the mother of the
petitioner/defendant no.1, as also of the plaintiff, had executed a Will in her
CMM 377/2014 Page 2 of 4
favour dated 31.12.1990 bequeathing the suit property in favour of the
petitioner/defendant no.1 thereby making her the exclusive owner of the suit
property.
4. In my opinion, no prejudice is caused by the impugned order to
the petitioner/defendant no.1 inasmuch as, by allowing the respondent
no.1/plaintiff to amend the plaint, it is not as if that the defences of the
petitioner/defendant no.1 to the amendment allowed are taken away or that
the case as is now allowed to be pleaded as per the amended plaint will be
treated as correct. Once the respondent no.1/plaintiff amends the plaint
pursuant to the impugned order of the court, the petitioner/defendant no.1
can take all objection of facts and law in the amended written statement to
be filed by petitioner/defendant no.1. If any of the objections raised in the
amended written statement raise preliminary issues covered under Order
XIV Rule 2 of the Code of Civil Procedure, 1908 (CPC), then the trial court
obviously in accordance with law can decide these preliminary issues
covered under Order XIV Rule 2 CPC.
5. Therefore, in view of all these observations, the rights of the
petitioner/defendant no.1 are protected and consequently no prejudice will
be caused to her by the impugned order deciding the preliminary issue
CMM 377/2014 Page 3 of 4
against the respondent no.1/plaintiff and permitting the respondent
no.1/plaintiff to amend the plaint to challenge the Will dated 7.2.1971 of late
Sh. Ram chand Ahuja.
6. The petition is thus disposed of in terms of the above said
observations and the petitioner/defendant no.1 will now file her written
statement to the amended plaint filed by the respondent no.1/plaintiff, as per
the directions of the trial court.
SEPTEMBER 23, 2014 VALMIKI J. MEHTA, J.
ib
