- (1.) One of the defendants is before this court challenging the order dated 15.11.2011, passed by the learned court below, whereby the application filed by him under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC for rejection of the plaint was dismissed. Learned counsel for the petitioner submitted respondent No. 1- plaintiff filed a suit for declaration, inter-alia, challenging clause 5 of the Will dated 13.10.1993 executed by deceased-Kartar Kaur, in which application was filed by the petitioner-defendant No. 1 under Order 7 Rule 11 read with Section 151 CPC and also under Section 11 CPC for rejection of the plaint on the ground that the Will in question had already been upheld upto this court, hence, the suit filed for challenging the clause thereof was barred by law. Reliance was placed upon Chaman Lal Kapur and others v. Kundan Lal Kapur, 1979 AIR(Del) 240 Amar Singh and others v. Lal Singh and others, 1997 11 SCC 570 in support of the submission that the Will has to be read in its spirit as is executed by the testator and none of its clause can be challenged by the beneficiaries.
(2.) On the other hand, learned counsel for respondent No. 1- plaintiff submitted that parties to the earlier litigation were different than the parties to the present suit. Earlier the suit was filed by Manjit Kaur Kalra, daughter of deceased-Kartar Kaur challenging the Will by raising the plea that in fact Pritam Singh Ahluwalia, husband of deceased-Kartar Kaur, had executed a Will dated 7.12.1989, vide which 2/5th share of H. No. 116, Sector 16-A, Chandigarh was given to her and 1/5th share each was given to the defendants in the suit, namely, S. P. S. Ahluwalia, Brig. S. S. Ahluwalia and H. S. Walia. He further submitted that the issue sought to be raised in the suit presently filed was not under consideration before the court in the earlier litigation as it was simpliciter challenge to the Will executed by Pritam Singh Ahluwalia claiming that in terms of an earlier Will executed by deceased-Pritam Singh Ahluwalia, she was entitled to more share in the property. Placing reliance upon Umrao Singh v. Baldev Singh and another, 1933 AIR(Lah) 201 and Smt. Rajrani Sehgal v. Parshottam Lal, 1992 AIR(Del) 134, it was submitted that any clause in the Will putting restriction on the sate of property by the beneficiary thereof can always be challenged and the court can adjudicate thereupon.
(3.) Heard learned counsel for the parties and perused the paper book.;