1. The defendant no.1 vide this application has sought the dismissal of
the suit on the ground that the plaintiffs have no cause of action in their
favour. It is submitted that suit is based on a Will dated 31.05.2010 and its
Codicil dated 23.03.2011 executed by defendant no.4 and she is still alive.
No suit can be filed since the Will is enforceable only on the demise of
testator, and testator is still alive.
CS (OS) 1161/2015 Page 1
2. In their reply, the plaintiffs have submitted that although the
document is titled as Will (dated 31.05.2010) and Codicil (dated
23.03.2011) but in fact these documents are settlement documents and
pursuant to this the plaintiffs are in settled possession of the different
portions of the property No.4, Defence Colony Market, New Delhi. While
the plaintiff no.1 is in settled possession of the entire first floor, second floor
portions, the plaintiff no.2 is in the settled possession of 50% of the ground
floor of Shop No.4, Defence Colony Market in the capacity of partner of
M/s New Evergreen Store. It is submitted that the plaintiffs have sought a
decree of permanent injunction against their illegal dispossession as they
apprehend illegal dispossession by defendants and since they are in settled
possession they have cause of action in their favour. It is submitted that the
application is liable to be dismissed.
Source: Indian Kanoon