KAVITA SHARMA v. STATE OF DELHI — 1995 DIGILAW 525 (DEL)

S. K. MAHAJAN ( 1 ) THIS order will dispose of the application under Sections 213 and 216 of the Indian Succession Act filed by the objector seeking stay of the eviction petition filed by the. petitioner against the husband of the objector for his eviction from a portion of the property bearing No. 58, Navjivan Vihar, Mehrauli Road, New Delhi. ( 2 ) THE facts in short are that one Mr. Navratan Sharma was the owner of the plotbearing No. 58, Navjivan Vihar, Mehrauli Road, New Delhi. He died on 6th June. 1987. After his death, both his daughters namely the petitioner as well as the objector executed relinquishment deeds and the plot as such was mutated in the name of their mother Smt. Saraswati Devi. A house was constructed on the said plot of land. Front portion of the house was occupied by the objector and her husband while the rear portion was occupied by the petitioner and her mother. It is the case of the objector that her mother was suffering from various diseases and hence her husband, with a view to maintain her, had been paying a monthly allowance of Rs. 950. 00 p. m. to her though the said amount was designated as rent. Smt. Saraswati Devi, mother of the parties, died on 29th November, 1989. The petitioner has alleged that Smt. Saraswati Devi before her death had executed a "will"dated 22nd May, 1989 and she became entitled to the entire property by virtue of the said "will". ( 3 ) THE present probate proceedings have been filed by the petitioner on the basis of the said "will" dated 22nd May, 1989 purported to have been executed by Smt. Saraswati Devi. ( 4 ) THE petitioner claiming to be the owner of the property had issued a notice dated 27th March, 1990 to the husband of the objector demanding arrears of rent and also claiming his eviction from the portion of the property which was in his possession. On the husband of the objector having not paid rent even after the demand had been made, the petitioner filed an eviction petition in the Court of the Rent Controller. Reply to the said petition was filed by husband of the objector. On the husband of the objector having not paid rent even after the demand had been made, the petitioner filed an eviction petition in the Court of the Rent Controller. Reply to the said petition was filed by husband of the objector. ( 5 ) IN reply to the petition, the husband of the objector denied the relationship of landlord and tenant between him and the present petitioner. It was alledged by him that his wife was also one of the legal heirs of the deceased Smt. Saraswati Sharma and as such she also became a co-owner of the property and, therefore, he did not remain a tenant in the said property. In reply to the notice which had been sent by Smt. Saraswati Sharma to the husband of the objector, he did not deny the relationship of landlord and tenant between him and Smt. Saraswati Sharma and even the rate of rent was admitted in the said reply. On the basis of the pleadings before the Additional Rent Controller, an order under Section 15 (4) of the Delhi Rent Control Act was passed by him on 17. 8. 1993 directing the husband of the objector to pay or deposit a sum of Rs. 950. 00 p. m. as rent w. e. f. 1. 12. 1989. It was further directed that the petitioner will not withdraw the rent till the decision of the said eviction petition or till the decision of the Suit for declaration filedy the present petitioner in the High court of Delhi. Against this order of the Additional Rent Controller, the husband of the objector filed an appeal before the Rent Control Tribunal and in appeal the order was modified to the extent that the husband of the objector was directed to deposit rent w. e. f. 1. 12. 1989 to 30. 4. 1990 at the rate of Rs. 950. 00p. m. and with effect from 1. 5. 1990 at the rate of Rs. 1,045. 00p. m. The petition under Article 227 of the Constitution was filed challenging the said order of the Rent Control Tribunal in the High Court of Delhi and by order dated 9th February 1995, the said petition was dismissed. While dismissing the petition it has been observed that : - "this petition is directed against an order passed under Section 15 (4) of the Delhi Rent Control Act. While dismissing the petition it has been observed that : - "this petition is directed against an order passed under Section 15 (4) of the Delhi Rent Control Act. The Additional Rent Controller passed the order on 17th August, 1993. Appeal against that order was dismissed by the Rent Control Tribunal on 22nd January, 1994. Both the partries had gone in appeal. The Tribunal made slight modification in the order of the Additional Rent Controller. However, the order under Section 15 (4) containing direction regarding deposit of rent by the present petitioner was maintained. The petitioner is aggrieved against these orders and, therefore, has approached this Court under Article 227 of the Constitution of India by way of the present petition. The learned counsel for the petitioner has argued that in the facts and circumstances of the case, no order could be passed under Section 15 (4) of the Act. Section 15 (4) envisages a situation where there is dispute regarding ownership and the direction to be issued in an order requiring the tenant to deposit the amount of rent, with no one to withdraw the same. The impugned order is passed in same terms. So far as the petitioner is concerned, he has admitted himself to be a tenant in view of his reply to a notice served on him. My attention has been drawn to the said reply of the petitioner. In view thereof, this argument is not open to the petitioner. " ( 6 ) THE husband of the objector had also filed an application before the Additional Rent Controller under Section 151 Civil Procedure Code for stay of the proceedings before him pleading, inter alia, that as his wife filed a Suit for declaration in the High Court of Delhi claiming that she was the owner of one-half portion of the property by means of a "will" earlier executed by the deceased, the proceedings before the Additional Rent Controller were liable to be stayed as there was no relationship of landlord and tenant between the parties. The Additional Rent Controller, after hearing the parties, by his order dated 17th August, 1993 declined to stay the proceedings before him and dismissed the application with cost. The said order of the Additional Rent Controller has not been challenged and has become final. The Additional Rent Controller, after hearing the parties, by his order dated 17th August, 1993 declined to stay the proceedings before him and dismissed the application with cost. The said order of the Additional Rent Controller has not been challenged and has become final. ( 7 ) BY way of present application, the petitioner now wants to get the same proceedings before the Additional Rent Controller stayed. It has been alleged in the application that the "will" dated 22nd May, 1989 propounded by the petitioner is forged, asthe deceased was not in a position to execute any "will" on that date when the same had been allegedly executed. It has also been stated that an amount of Rs. 950. 00 p. m. was being paid by her husband to his mother only to give monetary help to her and the said amount was shown as rent so as to save house tax. It is stated that till such time, the matter regarding the "will" was adjudicated in the present Probate proceedings, the proceedings before the Additional Rent Controller were liable to be stayed. It is, therefore, prayed that eviction proceedings pending in the Court of Additional Rent Controller for eviction of her husband from the front portion of the property be stayed: pending disposal of this petition. Reply to the application has been filed by the petitioner. In the reply, it is stated that the application was an abuse of the process of the Court and in view of the orders passed by the Additional Rent Controller, the Rent Control Tribunal and the High Court of Delhi in the rent proceedings, there was no case for stay of the proceedings before the Additional Rent Controller. ( 8 ) IT has been urged by Mr. Nigam on behalf of the objector that there was a "will" dated 14th August, 1985 executed by the deceased whereunder the property was bequeathed in equal shares to both the petitioner as well as the objector. It has also been argued that on 22nd May, 1989, when the "will" in question is alleged to have been exeuted, the deceased was under dialysis right from the morning till about 4. It has also been argued that on 22nd May, 1989, when the "will" in question is alleged to have been exeuted, the deceased was under dialysis right from the morning till about 4. 30 p. m. and it was, therefore, highly improbable that the said "will" could have been executed in the Office of the Lawyer in Tis Hazari Courts, where the same is stated to have been executed, when the deceased was to undergo dialysis in Mool Chand Hospital and was to report there in the morning. Records of the hospital have also been referred to during the course of arguments by Mr. Nigam. According to him, on 17th May, 1989 after the dialysis had taken place, it had been mentioned on the form that next dialysis would take place on 22nd September, 1989. Accordingtohim. the deceased reached the hospital in the morning itself, though the dialysis had started in the afternoon. The argument, therefore, is that the "will" could not have been executed on the date when the same is alleged to have been executed. He has also drawn my attention to the "will" and it is argued thatthe deceased was afflicted with parkinson disease and the signatures appearing on the "will" cannot be said to be of a person who was afflicted with such disease. He has also drawn my attention to a book "brains Diseases of the Nervous System" 9th edition by Sir John Walton wherein at page 328 it is stated : - "there is often a close correlation between slowness of movement and slowness of mental processes (Mortimer, Pirozzolo, Hanseh, and Webster, 1982 ). Micrographia is common :the writing becomes progressively smaller and may trail away to nothing. " ( 9 ) THE argument is that the writing becomes progressively smaller in the case of a person who was afflicted with parkinson disease and the writing in the present case is such which cannot be said to be of a person who is suffering from the said disease. He has also argued that the validity of the "will" cannot be decided by the Rent Court and as such it will be proper that the proceedings before the Rent Court are stayed till the decision of the present proceedings. He has also argued that the validity of the "will" cannot be decided by the Rent Court and as such it will be proper that the proceedings before the Rent Court are stayed till the decision of the present proceedings. ( 10 ) IT has been asserted by the counsel for the objector that the thumb impressions at the place of execution of the "will" and at the back of the date when the same was registered did not tally and wants me to examine the same at this stage and to hold that on account of there being a difference in the thumb impression, the "will" is forgery. Mr. Gupta appearing for the defendant urges that two advocates have signed the "will" as attesting witnesses and he, therefore, asserts that there was no question of the "will" being a forged document. He also urges that as per the forms on record the deceased had gone to the hospital on 22nd May, 1989 at 12,30 p. m. and there was nothing which prevented her to go to Tis Hazari Courts in the morning and execute the "will" in the office of the advocate. ( 11 ) MR. NIGAM has referred to 1991 Rajdhani Law Reporter 329 and 1993 (50) DLT 266. In my. opinion none of the said judgments is relevant for purposes of the present case. It has also been argued that under Section 213 of the Indian Succession Act no right as executor or legatee can be established unless the Court of a competent jurisdiction has granted probate of the "will" under which the right has been claimed and has drawn my attention to a Supreme Court judgement reported as AIR 1962 S. C. 1471. I am afraid, the said judgement is not applicable to the facts and circumstances of the present case as Section 213 is not applicable to Delhi. In a Division Bench Judgment delivered by Circuit Bench of the Punjab High Court and reported as AIR 1968 Punjab 108, it has clearly been held that the provisions of Section 213 of the Indian Succession Act are not applicable to Delhi and it is not necessary to obtain probate of a "will" in Delhi before any claim is be based on that "will". It has in fact been very fairly conceded by Mr. It has in fact been very fairly conceded by Mr. Nigam that Section 213 is not applicable to Delhi and as such the said judgement may not be applicable. However, he says that the principles laid down in said Section will be applicable to the present case. He, therefore, submits that till such time the matter is finally decided in the present probate proceedings, the proceedings before the Additional Rent Controller should be stayed. ( 12 ) IN the present case, the Court is to decide whether the "will" dated 22nd May, 1989 was the last "will" of the deceased and whether the same was executed by her, while she was in her sound disposing mind. The Court is not to go into the question of title in the present proceedings nor the Court is going into the question whetherthe husband of the objector was a tenant in the premises during the lifetime of the deceased. The controversy about the tenancy of the husband of the objector is to be decided by the Rent Controller in the proceedings which are pending before him. ( 13 ) I am also of the opinion that this is not the stage to go into the questions as to whetherthe "will" has been validly executed by the deceased or whether the "will" is an act of forgery; or whether the thumb impression appearing at various parts of the "will" are of the executor. These are the questions which are to be decided only after the parties have an opportunity to lead their evidence. The only point for decision presently is whether the proceedings pending before the Additional Rent Controller for eviction of the husband of the objector are liable to be stayed till the decision of the probate proceedings. In the proceedings before the Additional Rent Controller, an order under Section 15 (4) of the Delhi Rent Control Act directing him to deposit rent which order has been upheld in appeal beforehe Rent Control Tribunal as well as High Court of Delhi. Even an application for stay of proceedings in the Court of the Additional Rent Controller has been dismissed and the said order has become final. This Court cannot decide in the present proceedings whether husband of the objector was a tenant in the premises or not and, therefore, it will be futile to go into the question whether the amount of Rs. This Court cannot decide in the present proceedings whether husband of the objector was a tenant in the premises or not and, therefore, it will be futile to go into the question whether the amount of Rs. 950. 00 p. m. admittedly being paid by the husband of the objector to the deceased was towards rent or towards her maintenance. These are the questions which can be appropriately decided by the Additional Rent Controller. In the application the objector has concealed the fact of the orders having been passed by the Additional Rent Controller, Rent Control Tribunal and the High Court of Delhi, prima facie, holding her husband to be a tenant in the premises. Present application, therefore, appears to be only a devise to get an order which has been refused by the Additional Rent Controller. ( 14 ) THE application has no merits and is, therefore, dismissed.