Mr. Arjun Som Dutt & Anr v. Mrs. Madhvi Bery & Others

RAJIV SAHAI ENDLAW, J. APRIL 01, 2014 Bs..

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 1st April, 2014. + CS(OS) 1412/2007, I.As. No.8817/2007 (u/O 39 R-1&2 CPC), 6357/2010 (u/O 22 R-4 CPC), 6358/2010 (for condonation of 350 days delay), 14452/2012 (of D-1&2 u/O 7 R-11 CPC) & 8414/2013 (u/O 22 R-4 CPC) ARJUN SOM DUTT & ANR ..... Plaintiffs Through: Ms. Payal Juneja, Advocate. Versus MADHVI BERY & ORS ..... Defendants Through: Ms. Sagari Dhanda, Adv. for D-1&2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The two plaintiffs have filed this suit, (i) for declaration of the purported Codicil dated 7th April, 2006 executed by Ms. Kunti Verman as invalid ab initio, illegal and null and void; (ii) for partition of the movable and immovable assets of the said Ms. Kunti Verman including property No.2A, Friends Colony (West), New Delhi; and, (iii) for ancillary reliefs of injunction and rendition of accounts, pleading: (a) that Ms. Kunti Verman aforesaid was the sister of the paternal grandmother Ms. Parmeshwari Som Dutt of the two plaintiffs; (b) that Ms. Kunti Verman made a Will dated 1st August, 1994 whereunder she bequeathed her property No.2A, Friends Colony (West), New Delhi jointly and equally to her two sisters Ms. Umi Khanna and defendant No.1 Mrs. Madhvi Bery; (c) that the paternal grandmother of the plaintiffs Ms. Parmeshwari Som Dutt was also one of the beneficiaries of the aforementioned Will dated 1st August, 1994 of Ms. Kunti Verman; (d) that Ms. Parmeshwari Som Dutt, the paternal grandmother of the two plaintiffs died on 29th September, 2005 leaving inter alia the plaintiffs as her legal heirs. (e) that Ms. Umi Khanna aforesaid also died on 1st March, 2006 and since she was unmarried and had no issue, the share in the property aforesaid bequeathed by Ms. Kunti Verman under her Will aforesaid to Ms. Umi Khanna, devolved upon the brothers and sisters of Ms. Umi Khanna and their legal heirs including the plaintiffs; (f) that Ms. Kunti Verman died on 31st May, 2006; (g) that after the death of Ms. Kunti Verman, the defendant No.1 has taken possession of the property aforesaid setting up the Codicil dated 7th April, 2006 aforesaid of Ms. Kunti Verman whereunder the entire property has been bequeathed to the defendant No.1; (h) that the defendant No.1 has fabricated the Codicil aforesaid and if at all the thumb impression thereon is of Ms. Kunti Verman, the same has been obtained through undue influence, fraud and coercion; (i) that the Codicil dated 7th April, 2006 was purportedly executed barely 53 days before the demise of Ms. Kunti Verman and Ms. Kunti Verman was seriously ill at that time and not in a position to dispose of her property; (j) that the Codicil aforesaid is not executed in accordance with law; (k) that the plaintiffs are entitled to their lawful share in the assets of Ms. Kunti Verman including those bequeathed by Ms. Kunti Verman to Ms. Umi Khanna under the Will dated 1st August, 1994. 2. Summons of the suit and notice of the application for interim relief were issued though no interim relief granted to the plaintiffs. 3. Only the defendants No.1&2 (defendant No.2 is the husband of the defendant No.1) have filed their written statement and to which a replication has been filed by the plaintiffs. 4. Else, the suit has been languishing for the last nearly seven years for service of the other defendants (i.e. the other brothers/sisters of Ms. Kunti Verman and their legal heirs) and for service of the legal heirs of the defendants No.3 & 6 who are stated to have died during the pendency of the suit. 5. It is inter alia the plea of the defendants No.1&2 in their written statement that the plaintiffs have no cause of action for the reliefs of challenging the Codicil dated 7th April, 2006 of Ms. Kunti Verman and/or for claiming partition of the property No.2A, Friends Colony (West), New Delhi which admittedly belonged to Ms. Kunti Verman, because, (I) Ms. Parmeshwari Som Dutt, grandmother of the plaintiffs through whom the plaintiffs c