Wed. Apr 21st, 2021

Rakesh Gupta & Anr. vs Sushil Kumar Gupta & Ors. on 23 May, 2017

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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

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