Whether a son can claim an injunction against mother restraining her from dispossessing him from the property bequeathed to him in the mutual will?

Moreover, from the tenor of the judgments, it is evident that the rights in favour of the ultimate beneficiary under the mutual Will are crystallized on the demise of either of the executants and during the lifetime of the other executant of the mutual Will. Meera Dewan supra was also filed during the lifetime of the surviving spouse. Reference may also be made to Jagan Singh Vs. Dhanwanti MANU/SC/0046/2012 : (2012) 2 SCC 628 which was also a suit for injunction during the lifetime of the surviving spouse who along with the other, who had since died, had made a mutual Will. Resultantly it follows that the defendant No. 2 during her lifetime cannot sell, alienate, transfer or otherwise deal with the property, so as to deprive the plaintiffs of what has been devised in their favour under the mutual Will of their parents and the plaintiffs have a cause of action in praesenti to restrain the defendant No. 2 from doing so. Though the defendant No. 2, as per judgments aforesaid would be entitled to make a Will in contravention of the mutual Will but whosoever receives the property under the said Will of defendant No. 2 would also be bound to the plaintiffs in terms of the mutual Will.

25. The plaintiffs however besides seeking to so restrain the defendant No. 2, are also seeking to restrain the defendants from dispossessing the plaintiffs from the portion of the property in their occupation. The question is, whether the plaintiffs, during the lifetime of defendant No. 2, are entitled to continue in possession/occupation against the wish of defendant No. 2. The ownership of the portion of the property bequeathed under the mutual Will in favour of the plaintiffs comes into effect only on the demise of defendant No. 2. On first blush, it appears that the defendant No. 2, in praesenti being the owner of the property, is entitled to dispossessed the plaintiffs. However, on further consideration and finding it to be the admitted position that the plaintiffs, since the lifetime of Wing Commander N.N. Bahl have been residing on the upper floors of the property and not finding any provision in the mutual Will with respect to dispossession of the plaintiffs therefrom and in the light of use in the mutual Will of the words "shall rest", I am of the view that the resting of the property in the defendant No. 2, after the demise of Wing Commander N.N. Bahl, even though to the exclusion of his other heirs, is without any right to so dispossessed the plaintiffs from what has ultimately been bequeathed to them. Though the plaintiffs during the lifetime of defendant No. 2 have no ownership or other rights even in the portion ultimately bequeathed to them, so as to entitle them to deal therewith but in the absence of any right found in favour of defendant No. 2 to so dispossess the plaintiffs, the plaintiffs are entitled to permanent injunction against dispossession also, including through legal process. Though the counsel for the defendants cited Dilip D. Chowdhari supra in this context and contended that therein specifically right to continue in occupation had been conferred and which is not so in this case but I am unable to agree. In the present case, owing to the peculiarities pointed out, the plaintiffs even in the absence of any specific clause in the mutual Will permitting them to continue in occupation, are found to be entitled to continue in occupation.
 The plaintiffs, as aforesaid, are found entitled also to the relief of restraining the defendants from dispossessing the plaintiffs from the first and second floors of house No. D-859, New Friends Colony, New Delhi, which under the mutual Will, had been bequeathed to the plaintiffs

IN THE HIGH COURT OF DELHI

CS(OS) 78/2016, IAs Nos. 2362/2016 (u/O XXXIX R-1, 2 CPC), 

Decided On: 25.04.2020

 Vickram Bahl   Vs.  Siddhartha Bahl and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.
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