Mrs. Sushma Thadani vs Mr. Yatish Kumar Satija and Another

Vipin Sanghi, J.—By this common order, I propose to deal with the aforesaid applications. Parties have addressed common arguments.

The plaintiff is the daughter while defendant No. 1 is the son of late Lt. Col. Ram Krishna Satija and late Smt. Bimla Satija. Late Lt. Col. Ram

Krishan Satija was admittedly the owner of the suit property bearing No. B-44, defense Colony, New Delhi. He had acquired the leasehold rights

in respect of the suit property vide perpetual lease deed dated 3.6.1978. Lt. Col. R. K. Satija expired on 25.2.1991. The mother of the plaintiff

and defendant No. 1 thereafter passed away on 15.2.1995.

The plaintiff avers that she has been in occupation of the first floor, barsati and the garage block of the suit property and that she has been

residing with her family and parents therein since the year 1971. The ground floor of the property was let out to tenants even during the lifetime of

the father. It is claimed that defendant No. 1 never resided on the ground floor of the property, since he was permanently residing in Mumbai and

is engaged in his shipping business. After the death of the mother, the ground floor was let out and defendant No. 1 was receiving the rents from

the said letting.

It is averred that late Lt. Col. R.K. Satija executed a registered Will on 8.2.1982 (herein referred to as the ''Will'') and bequeathed the property

in dispute to the plaintiff and defendant No. 1. It is further stated that the plaintiff got the first floor and the barsati floor whereas defendant No. 1

got the entire ground floor of the suit property. It is further stated that on 13.10.1993 the plaintiff and defendant No. 1 applied for mutation of the

suit property in their joint names on the basis of the registered Will dated 8.2.1982 left by their father. The MCD mutated the suit property in favor

of plaintiff and defendant No. 1 on 3.7.1995. It is further stated that the parties got the leasehold rights converted to free hold in joint names and

for that purpose, defendant No. 1 took away the title documents. The expenses for conversion were also borne by both the plaintiff and defendant

No. 1. On 7.3.2005, the conversion of the property took place and a conveyance deed was executed jointly in the names of plaintiff and

defendant No. 1.

It is further stated that in the month of May, 2005 the ground floor of the property was vacated by the tenant. plaintiff states that defendant No.

1 desired to induct only a foreigner as a new tenant. Since that did not happen, the ground floor remained vacant. It is claimed that in December,

2005, defendant No. 1 suggested to the plaintiff that the suit property be sold to a builder, or in the alternative suggested that the plaintiff sell her

share to defendant No. 1. However the plaintiff was not interested to sell the suit property. It is further claimed that defendant No. 1 vide letter

dated 15.2.2006 asked the plaintiff to vacate the garage portion. Defendant No. 1 took the keys of the ground floor from the plaintiff and

thereafter refused access to the plaintiff to the backyard where the plaintiffs water meter, water tank and the water pump are installed. It is claimed

that on 17.5.2006, defendant nos. 1 and 2 came to the property and on 18.5.2006, a few strangers came and occupied the ground floor of the suit

property. The strangers appeared to be anti social elements brought only to threaten the plaintiff and to put pressure upon her to sell her portion.

In paragraph 35, it is stated that the plaintiff and defendant No. 1 are co-owners of the suit property and that the suit property had not been

divided by metes and bounds and hence the defendant No. 1 has no right to sell and/or create any third party interest in the suit property.

The plaintiff filed this suit claiming a decree of restraint against defendant No. 1 from selling and/or creating any third party interest in the ground

floor of the suit property, and at the same time also claimed a decree of restraint against defendant No. 2 from entering the ground floor portion of

the suit property. Decree was also sought in the nature of a mandatory injunction directing defendant nos 1 and 2 to either hand over the keys of

the back door of the ground floor of the suit property, or to provide duplicate keys thereof to the plaintiff.

The suit came up before the court on 24.5.2006 when this Court issued summons to the defendants and also passed an ex parte ad interim

order of injunction restraining defendant No. 1 from selling, transferring or creating any third party rights in the property or transferring the

possession of any portion of the property to any person. The Court also took notice of the averments made by the plaintiff that the plaintiff has a

preferential right in the property and that till the property is partitioned, there is unity of possession and Therefore the defendant cannot claim

exclusive possession of any portion of the property, nor can he transfer any portion of the property to any one.

Defendant No. 1 entered appearance and filed his written statement dated 22.7.2006. In his written statement, defendant No. 1 stated that the

suit is not maintainable and liable to be dismissed since defendant No. 1 had already sold the ground floor of the suit property on 17.5.2006 to a

company called Citi-Mates Builders & Promoters (P) Ltd., vide a registered sale deed. It was stated that the suit had become infructuous since the

physical possession of the ground floor of the suit property had also been delivered to the vendee on 17.5.2006 itself. Defendant No. 1 stated that

since he was residing in Mumbai, he was not able to manage his portion of the suit property and he had even offered the plaintiff to buy his share

but the plaintiff pleaded lack of funds. Defendant No. 1 Therefore had no option but to sell his portion of the property, which he accordingly sold

to the said vendee.

The plaintiff, faced with this situation, moved applications under Order 1 Rule 10 C.P.C (IA No. 8432/06) for impleading M/s. Citi Mates

Builders & Promoters Pvt. Ltd, the purchasers of the ground floor of suit property and under Order 6 Rule 17 C.P.C (I.A.No.8431/06) for

amendment of the plaint seeking amendment by substitution and insertion of new averments and introduction of a new prayer clause in the plaint.

The case now sought to be set up by the plaintiff is that a limited estate in the suit property was created by the ''Will'' in favor of the mother of

the plaintiff (proposed para 13). The mother died intestate and the property devolved upon the plaintiff and defendant No. 1 as co-owners

(proposed para 14A). A pre-emptory right to purchase the share of defendant No. 1 is now sought to be made as a ground to seek a declaration

of invalidity of the sale concluded on 17.5.2006 by defendant No. 1 in favor of M/s. Citi Makes Builders & Promoters Pvt. Ltd (proposed para

35). By proposed paras 36 to 41 the plaintiff is seeking to include averments as to events/matters which have occurred/have been discovered after

the filing of the instant suit. The proposed paras 42 to 44 pertain to the additional relief(s), which as per the plaintiff, she is now entitled to. Para 45

contains averments as to the cause of action and when it arose. Para 46 pertains to the averment in relation to the jurisdiction and court fee.

The defendant No. 1 has filed reply to the application for amendment of the plaint. He has opposed the application on the ground that the

plaintiff is, by the proposed amendments seeking to alter the nature of the entire suit by setting up a new case in order to defeat the stand taken by

the defendant in his written statement. The counsel for the defendant further argued that the plaintiff cannot be permitted to withdraw her own

admissions with respect to the mode of devolution of the suit property, or the factum of physical division of the suit property between the plaintiff

and defendant No. 1 by virtue of the ""Will"" of their father, by these amendments.

The defendant No. 2 has also raised similar objections.

Though no explicit averments are sought to be made to this effect, during the course of arguments the plaintiff submitted that since, according to

the plaintiff a life estate or a limited estate was created under the will dated 8.2.1982 in favor of her mother, by virtue of Section 14(1) of the Hindu

Succession Act, (for short `the Act''), the same blossomed into a full estate. Thus, the suit property devolved upon the plaintiff and defendant No.

1 by way of ordinary law of intestate succession through their mother in accordance with Section 15 of the Act, and not in the manner specified in

the Will.

The plaintiff in support of its amendment application contended that the dispute is in relation to the construction of the Will. The averments in

the plaint with regard to the effect of the Will are averments of law and not of fact. If the Hindu Succession Act provides otherwise, then the

statements/averment made in the original plaint, cannot be taken as admissions or constitute estoppel.

In support of the case now sought to be introduced by the plaintiff, she refers to the following extract from the Will dated 8.2.1982 left by her

father:

But my said children shall have no right to dispose of the property without the permission of my wife Smt. Bimla Satija who will take possession of

the entire house after my death and will be entitled to recover the entire rental income of the house.

The plaintiff has relied upon the Supreme Court decision in Gulwant Kaur and Another Vs. Mohinder Singh and Others, . Reliance is also

placed on Thota Sesharathamma and Another Vs. Thota Manikyamma (Dead) by Lrs. and Others, ; C. Masilamani Mudaliar and Others Vs. The

Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and Others, and on Mangat Mal (Dead) and Another Vs. Smt. Punni Devi (Dead) and

Others,

The defendants on the other hand contend that the suit property came in the hands of the plaintiff and defendant No. 1 under the ''Will'' which

specifically allocates ground floor to defendant No. 1 and the first floor to the plaintiff, and there was no question of their interest in the property

being undivided. They further contend that though some interest in the property was created in favor of the mother of the plaintiff by the ''Will''

dated 8.2.1982 for her life time, the bequest would be squarely covered by Section 14(2) of Hindu Succession Act since the ''Will'' for the first

time created only a limited/life estate in favor of mother of the plaintiff and defendant No. 1, and there is no claim of any pre-existing right in her

favor in the suit property which could have blossomed into a full estate by virtue of Section 14(1) of the said Act. Reliance is placed by the

defendants upon the recent decision of the Hon''ble Supreme Court in Sadhu Singh Vs. Gurdwara Sahib Narike and Others,

In my view, in the absence of any dispute, that the mother of the plaintiff had no preexisting interest in the suit property, (since there is no

pleadings or proposed pleadings claiming that the mother had a preexisting interest in the suit property), and in absence of any dispute with regard

to the existence of the ''Will'' in question, the manner of devolution of interest in suit property by the ''Will'' dated 8.2.1982 is a pure question of

law. The parties have also addressed their arguments on the aforesaid undertaking. Moreover, if the stand now sought to be taken by the plaintiff is

found not to be tenable in law, it cannot be permitted to be now introduced by way of amendment. Under Order 6 Rule 16 CPC, pleadings made

may be struck out if they are scandalous, frivolous or vexatious. This is to ensure that a litigation which is meaningless and bound to prove abortive,

should not be permitted to occupy the time of the court and cause embarrassment to the opposite party. [See Sathi Vijay Kumar Vs. Tota Singh

and Others, Pleadings based on a legal proposition which is erroneous should be struck off. Consequently, amendments which are obviously

vexatious, frivolous or obviously unsustainable ought not to be permitted on the same principle in the interest of justice. Thus, the application

seeking amendment of the plaint can be disposed of on the basis of an answer to the question, as to whether, under the ''Will'' the mother of the

plaintiff and Defendant No. 1, acquired the suit property by application of Section 14(1) of the Act, or the case falls u/s 14(2) of the Act.

Section 14 of the Hindu Succession Act reads as follows:

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner

thereof and not as a limited owner.

Explanation - In this sub-section, ""property"" includes both movable and immovable property acquired by a female Hindu by inheritance or devise,

or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her

marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held

by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a

decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a

restricted estate in such property.

A three judge Bench of the Apex Court in Mst. Karmi Vs. Amru and Others, speaking through Justice Hegde held that the life estate given to

a Hindu woman (in that case by a husband to his widow) under a Will cannot become an absolute estate under the provisions of the Hindu

Succession Act.

A similar view was expressed in G. Appaswami Chettiar and Another Vs. R. Sarangapani Chettiar and Others, wherein it was observed that

when a female Hindu gets a property under a Will, Section 14(2) of the Act would be applicable and the life estate would not be enlarged into an

absolute estate.

In Bhura and Others Vs. Kashiram, this proposition was once again reiterated in the following words:

The recitals in the Will (Ex.P-4) go to show that the testator wanted to provide his daughter, Sarjabai interest in the estate but at the same time

intended that the property should ultimately be retained in his family for which purpose, he was soon to take Gopichand in adoption and was also

hopeful of begetting a natural son through one of his wives. ...... The bequeath in favor of Sarjabai (as extracted above) clearly speaks of the

testator''s intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are

reconcilable only with the hypothesis that the testator was creating an estate in favor of Sarjabai only for her lifetime and not an absolute estate.

We, Therefore, agree with the High Court that under the Will Sarjabai did not get more than a lifetime estate because the language of the Will is

inconsistent with her having got an absolute right over the land.

The limited estate conferred upon Sarjabai by the Will (W.P.4) could not even be enlarged into an absolute estate under the Hindu Succession

Act, 1956, even though she was possessed of that property at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2)

of the Act mandates that nothing contained in Sub-section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to any property

acquired by way of gift or under a Will or by any other instrument prescribing a restricted right in such property. In view of our finding that the Will

(Ex.P.4) itself prescribed a restricted right or life estate in the property in favor of Sarjabai, that estate could not be enlarged into an absolute estate

in view of the express provisions of the Hindu Succession Act, 1956

I may now refer to the judgments cited by the plaintiff to contend that the case is covered by Section 14(1) and not Section 14(2) of the Act .

In Gulwant Kaur (supra), the Apex court was dealing with the case of a female Hindu who had been allotted certain lands in lieu of

maintenance by her husband during his lifetime which lands were later on sold by her husband to the respondent. The Court held that the land was

given to the appellant in lieu of maintenance by husband and when a female Hindu is put in possession of property pursuant to, or in recognition of

a right to maintenance, the limited right given to her gets enlarged to a full ownership u/s 14(1) of the Act. The Court also defined Sub-section (2)

to Section 14 as an exception to Sub-section (1) which comes into operation when property is acquired by a female Hindu under a gift or will or

any instrument etc, conferring a restricted estate and where the acquisition is not traceable to any antecedent right.

The ratio of the said case is that only where property is given in lieu of maintenance, arrears of maintenance and in recognition of pre-existing

right, the provisions of Section 14(1) of the Act would be applicable and Section 14(2) applies where the property is acquired under an instrument

for the first time and the acquisition cannot be traced or is not based on any antecedent right to hold that property. Since it is not the plaintiffs case

that her mother had any preexisting right in the suit property, prior to the coming into operation of the Will, this decision does not advance the case

now sought to be set up by the plaintiff.

In Thota Sesharathamma and Another(supra), it was held that a life estate granted to a Hindu woman by a `Will'' would become her absolute

estate if she was already in possession of the property as a limited owner and the Will recognised the pre-existing right in her favor.

I may notice that in this case, the Hon''ble Supreme Court made an observation that the decision in Mst. Karmi(supra) was a short judgment,

without adverting to the provisions of Section 14(1) and 14(2) of the Act. The judgment neither makes any mention of any argument made in this

regard, nor is there any mention of the earlier decision in Seth Badri Prasad Vs. Srimati Kanso Devi, . It was held that the decision in Mst. Karmi

(supra) cannot be considered as an authority on the ambit and scope of Section Section 14(1) and 14(1) of the Act.

The aforesaid observation to my mind, does not tantamount to the decision in Mst. Karmi (supra) being overruled. Pertinently, the Hon''ble

Supreme Court itself notices that two of the Hon''ble Judges that decided Badri Pershad (supra) viz., Shah J. and Grover J. were also on the

Bench that decided Mst Karmi (supra). The Decision in Badri Pershad (supra), in any event, was a decision rendered in a different fact situation.

In that case, the widow had been put in possession of the property under a decree which gave her a limited/ life estate. That decree was in

recognition of her right to be maintained out of the property. In those circumstances, the Hon''ble Court had held that upon coming into operation

of the Act, by the Application of Section 14(1). the life estate blossomed into a full estate.

However, the facts in Mst. Karmi (supra) were materially different. In Mst. Karmi (supra) the Husband had executed a ''will'' in favor of his

widow giving her a life estate in the year 1937, and thereafter he died in 1938. The question was, whether upon coming into force of the Act, the

life estate blossomed into a full estate under S. 14(1) or it remained a life estate, and the collaterals-beneficiaries under the ''will'' succeeded to the

property upon the demise of the widow. The Supreme Court answered the question by holding that the life estate of the Widow did not get

enlarged into an absolute ownership under the provisions of the Act.

It is a settled proposition of law that a case is authority on only what it decides. A decision often takes colour from the question involved in the

case in which it is rendered. The only thing binding as an authority upon a subsequent judge is the principle upon which the case was decided.(see

The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another,

Consequently, I am of the view that the decision in Mst. Karmi(supra) cannot be disregarded. It is settled that the law laid down by the

Supreme Court in a decision delivered by a Bench of Larger strength is binding on any subsequent Bench of lesser or coequal strength (See Babu

Parasu Kaikadi (Dead) by Lrs. Vs. Babu (Dead) through Lrs., are decisions of Co-equal strength. At the cost of repetition I may state that, in any

case, the decision in Mst. Karmi (supra) was not overruled by the Supreme Court in Thotha Sesharathammma (supra). Moreover, in its later

decision in Sadhu Singh (supra), relied upon by the defendants, the Hon''ble Supreme Court has in fact, relied upon Mst. Karmi (supra).

This decision is, Therefore, of little assistance to the plaintiff''s case.

In C. Masilamani Mudaliar''s (supra) case the court gave full effect to the intention of the testator as envisaged by the Will and held ""in the light

of the facts and circumstances of the case and the legal setting, we are of the considered view that she having had under the Shastric law, as

envisaged in the Will, the properties in recognition of her pre-existing right to maintenance, it is not a right acquired for the first time under the

instrument will, but it is a reflection of the pre-exiting right under the Sastric law, which was blossomed into an absolute ownership after 1956 u/s

14(1) of the Act.""(emphasis supplied).

The testator had in that case indicated that he was bequeathing the properties, for life to his wife and cousin''s widow in lieu of their pre-existing

right to maintenance. Thus, the court in those facts and circumstances of the case interpreted the bequest to be one u/s 14(1) of the Act.

The decision in Mangat Mal (supra) can also be distinguished on facts, as it pertains to a property given to the widow of a deceased co-

parcener for residence in lieu of her pre-existing right to be maintained out of joint family property. The aforesaid two decisions are also of no

assistance to the plaintiff.

On the other hand, the decision relied upon by the defendants in Sadhu Singh Vs. Gurdwara Sahib Narike and Others, fully supports the case

of the defendants. The Hon''ble Supreme Court in this decision held as follows:

An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose

it of by a testament. Section 30 of the Act, not only does not curtail or affect this right, it actually reaffirms that right. Thus, a Hindu male could

testamentary dispose of his property. When he does that, a succession under the Act stands excluded and the property passes to the testamentary

heirs. Hence when a male Hindu executes a Will bequeathing the properties, the legatees take it subject to the terms of the Will unless of course,

any stipulation therein is found invalid. Therefore, there is nothing in the Act which affects the right of a male Hindu to dispose of his property by

providing only life estate or limited estate for his widow. The Act does not stand in the way of his separate properties being dealt with by him as he

deems fit. His Will hence could not be challenged as being hit by the Act.

When he thus validly disposes of his property by providing for a limited estate to his heir, the wife, or widow has to take it at the estate falls. This

restriction on her right so provided, is really respected by the Act. It provides in Section 14(1) of the Act, that in such a case, the widow is bound

by their limitation on her right and she cannot claim any higher right by invoking Section 14(1) of the Act. In other words, conferment of limited

estate which is otherwise valid in law is reinforced by this Act by the introduction of Section 14(1) of the Act and excluding the operation of

Section 14(1) of the Act even if that provision is held to be attracted in the case of a succession under the Act. Invocation of Section 14(1) of the

Act in the case of a testamentary disposition taking effect after the Act, would make Sections 30 and 14(2) redundant or otiose. It was also make

redundant, the expression ''property possessed by a female Hindu'' occurring in Section 14(1) of the Act. An interpretation that leads to such a

result cannot certainly be accepted. Surely, there is nothing in the Act compelling such an interpretation. Sections 14 and 30 both have play.

Section 14(1) applies in a case where the female had received the property prior to the Act being entitled to it as a matter of right, even if the right

be to a limited estate under the Mitakshara law or the right to maintenance.

From these judgments, it is amply clear that when the grant is not in satisfaction of a pre-existing right of maintenance or otherwise, and a right

is created for the first time by an instrument of the nature expressed in Section 14(2) of the Act, the limitations prescribed in the grant would bind

the beneficiary and govern and control the nature of interest created by the said instrument.

Turning to the facts of the present case, firstly, it is not even the plaintiff''s case that her mother had a pre-existing right in, or that she was

possessed of the suit property in pursuance of any pre-existing right in the suit property. It is not her case that the limited protection granted by her

father in favor of her mother in his Will dated 8-2-1982 was in recognition of any such pre-existing right in the suit property. The Will dated 08-

02-82 only intends to make provision for the spouse of the testator, at the fag end of her life after the death of her husband.

Thus, the Will in question only created an interest within the realm of Section 14(2) of the Act which is limited in nature and the property

devolved upon the plaintiff and the defendant No. 1, after the demise of their father in accordance with the intention of their father as expressed in

the `Will''. The `Will'' of the father bequeaths the suit property to the plaintiff and defendant No. 1 in the following manner:

That the effect of this Will be that after my death my said two children, i.e. my son Shri Yatish Kumar Satija and daughter Smt. Sushma Thadani

would become the co-owners of the house bearing No. B-44, defense Colony, New Delhi. The ownership rights of the entire ground floor

consisting of garage, passage, front lawn, rear set back and one servant quarter upon the garage will devolve, after my death, to my son Shri

Yatish Kumar Satija, whereas the ownership rights of the entire first floor and Barsati and two servant quarters shall devolve upon my daughter

Smt. Sushma Thadani. But my said children shall have no right to dispose of the property without the permission of my wife Smt. Bimla Satija who

will take possession of the entire house after my death and will be entitled to recover the entire rental income of the house after my death and will

be entitled to recover the entire rental income of the house.

In my view, the case now sought to be pleaded by the plaintiff that her mother became the absolute owner of the suit property upon the demise

of her father, by operation of Section 14(1) of the Act is not tenable in law, in the light of the facts already pleaded, and those sought to be pleaded

by way of amendment. The amendment sought by the plaintiff to the aforesaid effect also tantamounts to withdrawing the case initially set up and

setting up a case inconsistent with pleadings contained in para 13 of the plaint as originally filed. The plaintiff is now seeking to set up a new case

not originally pleaded in the plaint. The averments made in the existing para 35 of the plaint are to my mind of no avail, since they are not only

contrary to those contained in the existing para 13 but also contrary to the plaint and clear language of the `Will'' dated 8.2.1982 admittedly

executed by the father of the plaintiff. Such amendments cannot be allowed [See Municipal Corporation for Greater Bombay Vs. Lala Pancham of

Bombay and Others,

Thus, the proposed amendments in paras 13, 14A and 35 would not assist in resolving the real controversy between the parties, and on the

contrary would hamper administration of justice by causing unnecessary delay. Same are without any substance. It is equally settled that a party

will not be permitted to set up an entirely new case to defeat the defense raised by the other party. Consequently they are rejected.

The plaintiff has proposed to insert an additional relief of declaration, that the sale deed dated 17-05-06 be declared as null, void and illegal.

The relevant averments are in proposed paras 42. The sale deed dated 17.5.06 cannot be said to be a void contract. At best it is a voidable

contract. (Kindly see Valliyil Sreedevi Amma Vs. Subhadra Devi and Others,

The aforesaid relief now sought to be included is founded upon yet another declaration (though not explicitly sought by the plaintiff) to the

effect that the plaintiff has a pre-emptory right to purchase the share of defendant No. 1 in the suit property. However, no consequential relief i.e to

enforce the so-called right of pre-emption has been sought by the plaintiff by way of amendment, assuming that such a relief could, in law, be

claimed by her in the facts of this case. The relief of declaration in respect of the sale deed dated 17.5.06 cannot be granted by the court in view of

the proviso to Section 34 of the Specific Relief Act, 1963.

In P. Srinivasamurthy Vs. P. Leelavathy and six others, , the Madras High Court held that the remedy of the non alienating co-heirs, will be to

seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heirs in violation of Section

22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favor of strangers becomes relevant in such an action as

an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him

against his co-heirs in enforcement of the right conferred by Section 22(1) of the Act.

However, in this case the amendment sought is only in respect of the said ""incidental matter"", whereas the relief of enforcement of the claimed

right of pre-emption, that ought to have been prayed has not even been prayed for in the suit as originally framed or as sought to be amended. I,

Therefore, reject the amendment sought by the plaintiff as proposed in paras 42 and in the prayer clause as well. The proposed valuation of the

said relief in para 46 is also consequently rejected. I also find that, in view of my finding that the suit property was bequeathed to the plaintiff and

defendant No. 1 by their father by virtue of the `Will'' dated 8.2.1982, the claim half heartedly set up by the plaintiff on the basis of Section 22 of

the Act does not, in fact, lie. Section 22 applies only in a case where the inheritance between the co-sharers is through intestacy. However, in this

case the suit property had devolved upon the plaintiff and defendant No. 1 through the aforesaid Will. The plea based on Section 22 of the Act is

Therefore, in any case not tenable in law and cannot be permitted to be pleaded.

Since proposed paras 36 to 41 pertains to events that have occurred after the filing of the present suit and are related to prayer clause (b) and

(c) of the original plaint and are anyway material to the present controversy, the same are allowed in order to shorten the litigation between the

parties and resolve the real matter/controversy between the parties. Proposed para 44 is also allowed to be inserted for same reason. Prayer

clause ''B'' so far as it relates to and is incidental to the amendments permitted to be carried out hereinbefore is also allowed. The said prayer

clause be inserted to the following extent:

B...restraining the defendants, their agents, legal heirs, servants, assigns, nominees, representatives, etc. from carrying out any

changes/alterations/additions in the suit property.

Corresponding valuation clause in proposed para 46 is also allowed. The application is thus, partially allowed. Amended plaint be filed within

three weeks.

IA No. 8432:

Since the proposed defendant No. 3 M/s. Citi-Mates Builders & Promoters Pvt. Ltd. are the owners of ground floor property and the relief now

is claimed substantially against the said proposed defendant, its presence before the court is necessary and proper. This application is, Therefore,

allowed. Let amended memo of parties be filed within a week.

IA Nos. 6197/2006, 11178/2006 and 8433/072:

In view of the discussion and findings arrived at while disposing of is 8431, I am of the view that suit property having devolved upon the plaintiff

and defendant No. 1 by way of testamentary succession through Will dated 8.2.1982, the plaintiff has failed to make a case for grant of an

interlocutory injunction directing defendants to maintain status quo with regard to title and possession. However, the plaintiff has prima facie

satisfied me that suit property must be preserved from any structural damage, alteration, modification. The defendant is also liable to be, and is

hereby restrained from disconnecting or tampering with the water, electricity or other essential services/amenities being enjoyed by plaintiff in her

portion of the property. I accordingly restrain the defendants or any person claiming through them from carrying out any structural

modification/alteration/damage to the suit property (including the area in their possession) and also injunct them from interfering with the plaintiff''s

enjoyment of the portion of property in her possession. The defendants are also directed to remove all malba/building material etc. from the

common areas of the suit property till the disposal of the suit. The defendant shall provide access to the plaintiff to the backyard on the ground

floor only for the purpose of attending to repairs and maintenance of the water pump motor, water meter and water tank of the plaintiff. All other

reliefs as are not specifically granted are rejected. Applications are disposed of accordingly.

In this view of the matter the ex-parte injunction order passed against the defendant No. 1 is vacated as being infructuous on the date the same

was passed, and also on account of the failure of the plaintiff to make our a prima facie case in her favor.