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2006 DIGILAW 1394 (DEL)

SHASHI ROY v. ARCHANA CHOPRA

2006-08-21

J.P.SINGH

body2006
( 1 ) THIS Civil Revision Petition under Section 115 of the Code of Civil Procedure is directed against the order dated 27. 4. 2005 passed by the Additional District Judge, Delhi deciding a preliminary issue "whether suit for permanent injunction as framed is maintainable", in favour of the plaintiff. ( 2 ) I have heard Mr. Harish Malhotra, Sr. Advocate learned counsel for the petitioner, mr. Sanjeev Narula, Advocate learned counsel for respondent No. 1. as well as Mr. B. S. Mann, advocate learned counsel for respondent No. 2 and have gone through the record. ( 3 ) BRIEFLY the facts are that respondent No. 1 - plaintiff (hereinafter referred to as plaintiff) filed a suit for perpetual injunction against petitioner - defendant No. 2 in the trial court (hereinafter referred to as defendant No. 2), kashulya Gulati, defendant No. l in the trial court (hereinafter referred to as defendant no. 1), Smt. Chandra Prabha defendant No. 3 in the trial court (hereinafter referred to as defendant No. 3) Smt. Kanchan Malhotra defendant No. 4 in the trial court (hereinafter referred to as defendant No. 4) and Sh. Sugata roy defendant No. 5 in the trial court (hereinafter referred to as defendant No. 5 ). ( 4 ) LATE Ms. Indu Gulati was sister of the plaintiff and defendants No. 2 to 4. The defendant No. l is mother of late Ms. Indu gulati and the plaintiff and defendants 2 to 4. defendant No. 5 is son of Defendant No. 2. Late Ms. Indu Gulati was unmarried. She was an officer in Indian Revenue Service and expired on 9. 5. 1994 at her residence C-76 panchsheel Enclave, New Delh. She was the owner of the said house. ( 5 ) SHE was suffering from cancer and undergoing treatment. It is alleged that defendant No. 1 and 2 were residing with her at the abovesaid house. After she transferred some of her moveable properties to defendant No. 3 and 4. defendant No. 2 felt offended and shifted to R. K. Puram, New delhi and thereafter only defendant No. 2 looked after Indu Gulati and was running the house. In January, 1994 Indu Gulati as mentioned in the plaint realized that not much time was left for her therefore she wrote a will dated 12. 1. 1994. The will was duly attested by two witnesses. In January, 1994 Indu Gulati as mentioned in the plaint realized that not much time was left for her therefore she wrote a will dated 12. 1. 1994. The will was duly attested by two witnesses. One was her immediate neighbour and the other was an old friend. She bequeathed her house C-76, Panchsheel enclave as under :- (a) Ground floor to defendant No. 5 with the directions that defendant No. 1 during her lifetime would have a right of residence in the said ground floor and defendant No. 5 will not be allowed to transfer the said ground floor. (b) The partially built and unbuilt first floor of the said house bequeathed in favour of the plaintiff. Unbuilt second floor was bequeathed to defendant no. 3 and unbuilt third floor to defendant no. 4. (c) The side entrance having the existing staircase which leads to existing partially constructed first floor was to be used exclusively by the occupants of the upper floors and access to the bore-well in the front courtyard was also available to all the occupants of the - upper floors. ( 6 ) THIS shows that she had bypassed defendant No. 2- the petitioner in this petition but had bequeathed the ground floor to her son defendant No. 5. ( 7 ) IN the suit it is alleged that plaintiff is the owner of the first floor. The plaintiff locked the passage leading to the first floor and the open terrace as also the single room construction and mumty on the first floor because according to her the first floor was bequeathed to her by the deceased. It is alleged that the defendants accepted the Will dated 12. 1. 1994 in various correspondence but now the will is being interpreted by some of the heirs so as to mean that as long as defendant No. 1 is alive, she will use the entire house including the first floor. Some disputes have arisen apparently about interpretation of the Will and ownership of the land under the existing construction. It is alleged that obstructions are being put by defendants no. 1,2 and 5 in the way of the plaintiff for going to the first floor. ( 8 ) IT is prayed in the suit that defendants no. Some disputes have arisen apparently about interpretation of the Will and ownership of the land under the existing construction. It is alleged that obstructions are being put by defendants no. 1,2 and 5 in the way of the plaintiff for going to the first floor. ( 8 ) IT is prayed in the suit that defendants no. l, 2 and 5 be restrained from interfering with the ownership and possession of the plaintiff in respect of the first floor of the above said property and they be also restrained from entering upon the common passage from where the staircase leads up to the first floor or from putting their lock at the door mark "a" in the site plan and they be also restrained from demolishing or causing structural alterations in the existing ground floor of the said house. ( 9 ) - Written statement was filed by defendant no. 2 (petitioner herein) raising preliminary objections that the plaintiff, ought to have applied for grant of probate and also alleged that the will was a forged and fabricated document and that the plaintiff had suppressed material facts from the court because earlier a civil writ petition was filed against defendant No. 2 and 5 which was dismissed in limine by the DB of Delhi High court. The suit was said to be collusive between plaintiff and defendant No. 3 and 4 to usurp the estate of late Ms. Indu Gulat. It is, however, admitted that Ms. Indu Gulati was suffering from cancer. ( 10 ) I may mention here that the suit was first filed in the High Court and on enhancement of the jurisdiction of the District Courts, it was transferred to District Courts, that is how it is being tried in the court of Additional District judge. ( 11 ) LEARNED counsel for the petitioner has submitted that the trial court has erred in deciding the preliminary issue in favour of the plaintiff. The suit ought to have been rejected being not maintainable as framed and because it was mandatory to obtain probate of the will because the very execution of the Will was in dispute and the Will forms the foundation of the suit, and that in fact it was a suit for declaration. Further, only the District judge or the High Court could grant probate and the jurisdiction of the civil court was barred. Further, only the District judge or the High Court could grant probate and the jurisdiction of the civil court was barred. ( 12 ) IN support learned counsel for the petitioner has cited the judgment titled "manmohan Singh and Anr. Vs. Joginder kaur and Ore. " reported in 2002 (V) AD (DELHI) 733 = 2002 (64) DRJ 293 . Briefly the facts in the said case are that a civil suit was consolidated with a probate petition because of common disputes and questions in both the matters. The suit was for declaration qua ownership of immoveable property on the basis of a Will executed by father of the plaintiff. As per Will the defendants had only limited right. There was however another alleged Will also. So, inter alia, the question before the court was as to which of the two Wills was valid and legally effective. The Will set up by the plaintiff was alleged to be forged after death of his father and similarly the plaintiff alleged that the other Will had been obtained by undue influence and coercion. The issues framed in the suit were 1. Whether the will dated 6. 8. 1990 executed by late Sh. Kartar Singh is true and valid? 2. Whether the suit for declaration is maintainable? 3. Relief and in the probate mater the followings issues were framed:- 1. Whether the Will dated 20. 9. 1985 is true and valid? 2. Relief. ( 13 ) IN the said judgment the High Court reaffirmed the legal position that probate court cannot confer title of the property to anyone nor the grant of probate establishes more than the valid execution of the Will and appointment of the executor and the title has to be established in the civil court. The issue before the court was as to whether the suit before the court was maintainable or not. It was held that the simplicitor suit was not maintainable and it could not be a substitute to a probate petition. The suit and the probate petition were consolidated. One of the wills was found to be invalid and letter of administration was issued. ( 14 ) AS against this learned counsel for the respondents have vehemently argued that the facts are distinguishable. The suit and the probate petition were consolidated. One of the wills was found to be invalid and letter of administration was issued. ( 14 ) AS against this learned counsel for the respondents have vehemently argued that the facts are distinguishable. Further, when the suit was filed initially in the High Court an application under Order XXXIX Rule 1 and 2 cpc was allowed after examining the report of the local commissioner and relying upon the Will and the admission of the Will by the contesting parties, the defendants No. 1,2 and 5 were directed not to cause any obstruction to the plaintiff from going to the first floor of the property. The said order was challenged in FAO but DB of the High Court also referred to the admission of the Will based on an affidavit filed in the Supreme court and dismissed the appeal reaffirming the prima facie view held by the Hon'ble single Judge. ( 15 ) IN support the learned counsel for the respondents have cited the judgment titled "rajan Suri and Ann Vs. State and Anr. " reported in 2005 (VIII) AD (DELHI) 878 = 125 (2005) DLT 433, where it has been held that Section 213 would have no applicability in Delhi and it is not necessary to obtain probate in Delhi before any claim is based on that Will and that person has a right to set up a will even in collateral proceedings and there is no need for obtaining a probate thereof. ( 16 ) NEEDLESS to say that facts and circumstances vary from case to case. In the present case the courts have already taken notice of the admissions, though only prima facie. Interim injunction Was granted implying thereby that there is a prima facie case in favour of the plaintiff. The balance of convenience is also in favour of the plaintiff and the plaintiff will suffer irreparable loss and injury if the interim inunction is not granted. In my view, in this case ultimately the parties will have to take recourse to civil suit and only a civil suit will decide all their disputes. The judgment cited on behalf of the respondents meets the points raised by the learned counsel for the petitioner. In my view, in this case ultimately the parties will have to take recourse to civil suit and only a civil suit will decide all their disputes. The judgment cited on behalf of the respondents meets the points raised by the learned counsel for the petitioner. I am, therefore, of the opinion that the mater should proceed for trial on merits because on the basis of the written statement and the preliminary objections other issues have already been framed. ( 17 ) CONSIDERING all the facts and circumstances of this case I am of the view that the suit is maintainable. Accordingly, I do not find any illegality or gross irregularity or jurisdictional error in the impugned order so as to invite interference under Section 115 of the Code of Civil Procedure. The petition is, therefore, dismissed. The parties are, however, left to bear their own costs. ( 18 ) THE suit relates to the year 1995. It has already got delayed for about a decade. The trial court is directed to dispose of the matter within six months. The parties are directed to appear before the trial court on 28th August, 2006. ( 19 ) NOTHING said herein will tantamount to expression of opinion on the merits of the case.