Dismissal of plaint

Querist : Anonymous (Querist) 21 August 2011 This query is : Resolved
Sir,
In a property dispute case in Delhi, initially the plaintiff has filed a suit for possession and damages against her elder married daughter on the basis of a Will typed on a plain paper, but never produced the Will in original despite several orders. Now the plaintiff has filed a another suit for granting probate in her favour. The suit property is basically allotted to displaced persons of East Pakistan who had forced to come in India leaving behind their ancestral properties there. Please clarify the following points:-

1. Before filing the probate case the plaintiff had all the opportunity to file initially the original will in any of the courts including Delhi High Court and prove the Will. Since the plaintiff has failed to submit the original will during this years, can I move an application for dismissal of plaint mentioning various grounds including ancestral clause.

2. If my above said point No.1 is not so valid, then in that case, can I move an application for stay of proceedings. Kindly advise me appropriately. Thanks

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adv. rajeev ( rajoo ) (Expert) 21 August 2011
Will can be proved in the suit which is pending, it was not necessary to file another case to get it probated. You can produce the court order sheet in the probate case and can seek for the dismissal of the petition.
You could have proceeded with the sit which is for possession and damages, because when she failed to produce the will suit could have been dismissed.

sanjay kumar patibandla (Expert) 21 August 2011
Here the point is weather they explained or not about the cause of non filing of original will. If they not explained you can file a petition by seeking direction to file original will. I f they failed you can file a petition for rejection of plaint under Order 7 Rule 11. But chances are very low.

ajay sethi (Expert) 21 August 2011
when did the testator die? after how many years was will produced ?
. when the plaintiff made application for probate you can challenge genuineness of will on grounds that inspite of various court orders will was not produced . it does create suspicion in mind ofthe court as to why delay in applying for probate and why were earlier court orders not complied with . the court after considering various factors , after evidence is led pass appropriate orders

you cannot make application for stay of proceedings