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2019 DIGILAW 1025 (PAT)

Sangita Sinha v. Bhawana Bhardwaj

2019-07-24

SANJAY PRIYA

body2019
ORDER : Re. Interlocutory Application no. 01 of 2019 (Kept at Flag-A) Heard Mr. Radha Mohan Pandey learned counsel for appellant and Mr. J.S. Arora learned senior counsel for respondents. 2. The instant interlocutory application under Order 41, Rule 5 read with Section 151 of CPC has been filed by appellant making prayer to stay the operation of judgment and decree dated 27.04.2018, passed by Subordinate Judge-4, Patna, in Title Suit No. 176 of 2008. 3. It has been submitted that plaintiff-respondent 1st set instituted Title Suit No. 176 of 2008 seeking relief of specific performance of unregistered agreement for sale dated 25.01.2008 with assertion that they have paid an amount of Rs. Patna High Court FA No.83 of 2018(7) dt.24-07-2019 2/20 10 lacs against total consideration amount of Rs. 25 lacs. The alleged unregistered agreement for sale dated 25.01.2008 has been executed by Kusum Kumari, the original vendor (now deceased) in favour of plaintiff after receiving an amount of Rs. 10 lacs in advance. 4. The plaintiff and defendant entered into an agreement dated 25.01.2008 which was duly signed by plaintiff and defendant no.1 (now deceased) and witnessed by Deepak Kumar Sinha and Smt. Sangeeta Sinha (grandson and grand daughter-in-law of the defendant no.1 Kusum Kumari). The further case of the plaintiff is that out of total consideration amount of Rs. 2,51,000/- was paid to the defendant in cash and also issued cheques of Rs. 7,50,000/- in favour of the defendant. Rest consideration amount was agreed to be paid by the plaintiff prior to registration of the sale deed. The defendant acknowledged the receipt of Rs. 10,00,000/- against the sale of the property. The plaintiff’s further case is that the defendant agreed to obtain “No objection Certificate” from People’s Cooperative Grih Nirman Samittee for transferring the membership of Samittee in the name of plaintiff and also agreed to transfer the property to the plaintiff by executing a registered sale deed in favour of the plaintiff. The defendant also agreed to take responsibility to get the property vacated from possession of the tenant prior to registration. As per the terms of the agreement, defendant applied for issuance of a form for transfer of membership in the name of plaintiff (Member no. 710, plot no. A.164) which contained written agreement by the grand daughter-in-law Smt. Sangeeta Sinha in favour of whom the defendant had executed registered Will of the property. 5. As per the terms of the agreement, defendant applied for issuance of a form for transfer of membership in the name of plaintiff (Member no. 710, plot no. A.164) which contained written agreement by the grand daughter-in-law Smt. Sangeeta Sinha in favour of whom the defendant had executed registered Will of the property. 5. Further case of the plaintiff is that she visited the house of the defendant on 11.02.2008 at about 4.00 PM along with her husband to discuss the matter further and, during discussion, the tenants of defendant, namely, Ajay and wife of Amar interfered and started scuffling and abusing the plaintiff and her husband and forced them to go back. The plaintiff became surprised and shocked to see that the defendant instead of preventing her tenants supported them although it was agreed that the defendant would get the property vacated from the possession of the tenants prior to registration. This incident gave plaintiff clear understanding that the defendant is intending to avoid the agreement dated 25.01.2008 and does not want to perform the agreement on her part. Subsequently, the defendant flatly refused to act in terms of the agreement to sell dated 25.01.2008. Then, the plaintiff sent a legal notice dated 23.02.2008 under registered cover with A/D. Thereafter, The plaintiff expressed her desire and willingness to pay the rest amount of consideration, as agreed. In reply to the said legal notice, the defendant did not deny the agreement entered into with the plaintiff. The reply has been sent that defendant is intending to return the said advance money with change of her mind. Thereafter, the plaintiff again sent a reply notice after receiving the same on 23.04.2008 under registered cover with A/D reminding the defendant no.1 (now deceased) to act as per the agreement and execute the sale deed in favour of the plaintiff within a period of one week from the date of receipt of the notice but, in spite of expiry of the aforesaid period, the defendant no.1 ( now deceased) did not come forward to perform the agreement dated 25.01.2008. 6. Learned counsel for plaintiff submitted that original defendant no.1 landlord Kusum Kumari after notice has appeared in Title Suit No. 176 of 2008 and filed written statement. It is also submitted by plaintiff-respondent that defendant no.1 Kusum Kumari has already encashed five demand drafts and two cheques on 16.07.2008. 7. 6. Learned counsel for plaintiff submitted that original defendant no.1 landlord Kusum Kumari after notice has appeared in Title Suit No. 176 of 2008 and filed written statement. It is also submitted by plaintiff-respondent that defendant no.1 Kusum Kumari has already encashed five demand drafts and two cheques on 16.07.2008. 7. A counter affidavit has been filed on behalf of respondent no.1 in the instant Interlocutory Application, wherein, it has been stated that plaintiff-respondent no.1 had entered into an agreement for sale on 25.01.2008 with regard to the property in Suit, being a land and house, being A-164, P.C. Colony, Kankarbagh, Patna, with Kusum Kumari ( since deceased), who was the title holder of the said property. The total consideration money of the said property agreed upon between the parties was Rs. 25,00,000/-. The respondent, at the time of entering into the agreement for sale, had made payment of a sum of Rs. 2,51,000/- in cash and had given three post dated cheques of Rs. 2,50,000/- each. However, said Kusum Kumari wanted to back out from the said agreement for sale and declined to execute the deed of sale in favour of this respondents even after receiving the remaining amount of consideration money. The respondents was always ready and willing to get the sale deed executed on making payment of the remaining amount of consideration money but, Kusum Kumari declined to execute the sale deed in terms of the said agreement for sale. Thereafter, the respondents had filed Title Suit bearing Title Suit no. 176 of 2008 for specific performance of the contract. Kusum Kumari being the defendant no.1 had appeared and filed her written statement wherein she had admitted that on the request of her grandson Deepak Kumar Sinha she had put her signature on blank paper under the bonafide impression and belief that she is confirming the Will, which she had executed in favour of her grandson Deepak Kumar Sinha and grand daughter-in-law Sangeeta Sinha. She has also contended that Deepak Kumar Sinha is her grandson and she has executed a registered Will in favour of her said grandson, Deepak Kumar Sinha and grand daughter-in-law, Sangeeta Sinha. She has also contended that Deepak Kumar Sinha is her grandson and she has executed a registered Will in favour of her said grandson, Deepak Kumar Sinha and grand daughter-in-law, Sangeeta Sinha. She has further admitted in her written statement that immediately after the knowledge of the execution of so-called agreement for sale on 05.02.2008 she lodged Sanha on 06.02.2008 before Kankarbagh police station and intimated the People’s Cooperative Society, Kankarbagh, and thereafter, with all bonafide and prudent manner, she thought it legal to avoid future complication to return the money which the plaintiff under undue influence and coercion upon her grandson had given for grabbing her property without her consent. She further admitted that she deposited cash for preparation of Bank draft in favour of the plaintiff-respondent no.1 and altogether five Bank drafts were issued in the name of this plaintiff-respondent no.1 for an aggregate sum of Rs. 2,11,000/-. After preparation of the Bank Draft along with two post dated cheques of Rs. 2,50,000/- each she had sent the same to plaintiff-respondent no.1. 7. Learned counsel for the respondents has submitted that in this manner, Kusum Kumari has admitted the agreement for sale and receipt of the earnest money from the plaintiff respondent no.1 in the written statement. It has further been submitted that after death of Kusum Kumari her grandson, Deepak Kumar Sinha, being the respondent no.2, was substituted as defendant no.1 in the court below. Sangeeta Sinha the appellant herein, was not substituted, at that point of time since there was no necessity. 8. Deepak Kumar Sinha, the respondent no.2, had filed his written statement in the suit in the court below. He has stated in the written statement that he had negotiated with husband of respondent to sale the said property and contended that for execution of the sale deed as a buyer he would be required to wait till the death of Kusum Kumari. It was further stated that the agreement in-question executed with regard to the suit property in favour of this plaintiff-respondent no.1 is signed by Kusum Kumari but, without understanding the same. He has further admitted in paragraph no. 17 of his written statement that he has stated that Deepak Kumar Sinha received part payment of money in cash in lieu of the agreement for sale. He has further stated in paragraph no. He has further admitted in paragraph no. 17 of his written statement that he has stated that Deepak Kumar Sinha received part payment of money in cash in lieu of the agreement for sale. He has further stated in paragraph no. 19 of his written statement that he had informed about the said agreement for sale to Kusum Kumari and handed over money to her, which was received by him from this plaintiff-respondent no.1. Deepak Kumar Sinha, in his written statement in paragraph no. 32, has further stated that one Will was executed by Kusum Kumari whereby she has bequeathed the ground floor of the said property including the unconstructed portion of the house in favour of one Amar Kumar, a tenant and further in paragraph no. 33 he admitted that the first floor of the said property was Willed in favour of Sangeeta Sinha ( appellant). 9. Learned counsel for the respondents has submitted that in view of the contention of Deepak Kumar Sinha that alleged Will with respect to the property in- question which was partly in favour of Amar Kumar and partly in favour of Sangeeta Sinha, both were impleaded as defendant in the aforesaid suit. Later on, Amar Kumar had appeared as a witness and had accepted that he has got no claim on the said property and his name was ordered to be expunged from the aforesaid suit by the order of this Hon’ble Court dated 11.03.2014 passed in C.W.J.C. No. 2416 of 2014. Learned counsel for respondents has further submitted that Sangeeta Sinha being the wife of the Deepak Kumar Sinha, the respondent no.2, either on facts or in law, has got no title to the said property as per the provisions of the Hindu Succession Act. However, said Sangeeta Sinha on being impleaded as defendant no.3 has filed written statement in the court below. She has stated in paragraph nos. 24 to 26 of her written statement that husband of this defendant had led to execution of the said agreement for sale which had been executed under a mistaken belief and execution became possible only after taking undue advantage of the advanced age of the original defendant no.1 in a manner which can be termed as fraud. 24 to 26 of her written statement that husband of this defendant had led to execution of the said agreement for sale which had been executed under a mistaken belief and execution became possible only after taking undue advantage of the advanced age of the original defendant no.1 in a manner which can be termed as fraud. The original defendant no.1 Kusum Kumari had used all means within her power to return the money received by the husband of this defendant and the same was returned back to the plaintiff. 10. Learned counsel for the respondents has further submitted that when the hearing of the suit commenced, the grandson, Deepak Kumar Sinha did not appear as a witness. Sangeeta Sinha (appellant herein) appeared and in her deposition she supported the contentions as made in her written statement. She had also stated that she and her husband Deepak Kumar Sinha have also agreed to sell the said property in favour of Amar Kumar and has also received full consideration money of Rs. 6,000,000/- from him. The said statement was made in paragraph no. 14 of the examination- inchief of Sangeeta Sinha (appellant). Learned counsel for respondents has further submitted that so-called Will executed by Kusum Kumari as mentioned in her written statement was allegedly executed in favour of Deepak Kumar Sinha and Sangeeta Sinha. As pleaded by Deepak Kumar Sinha in his written statement, the Will was allegedly executed for ground floor in favour of Amar Kumar and for first floor in favour of Sangeeta Sinha. The aforesaid Will has never been probated . 11. As such, on the death of Kusum Kumari the only successor of the said property is Deepak Kumar Sinha, who did not contest the suit by appearing as a witness in the Court below although he had filed written statement. Sangeeta Sinha (the appellant) has got no concern whatsoever in the said property. 12. The appellant has filed a Probate case being Probate case no. 98 of 2015 on the basis of so-called Will which is allegedly executed in favour of Sangeeta Sinha alone which was never the case of either party in the Court below. Kusum Kumari died in the year 2009. As per the judgment of the Hon’ble Apex Court, the limitation for filing of a probate case is only three years which got expired way back in the year 2012. 13. Kusum Kumari died in the year 2009. As per the judgment of the Hon’ble Apex Court, the limitation for filing of a probate case is only three years which got expired way back in the year 2012. 13. It has further been submitted that in agreement for sale, which is Annexure-1 to Interlocutory application, the appellant Sangeeta Sinha herself is one of witness and another witness is her husband Deepak Kumar Sinha. 14. Pursuant to the agreement for sale, the said Kusum Kumari had also given letter to the Secretary of People’s Cooperative Society for grant of permission to sale, since she has agreed to sale the said property in favour of the plaintiffrespondent no.1. The appellant has also made endorsement on the said document on 27.01.2008 that her consent for transfer is there and has duly signed the same by putting the date below signature. The said letter was duly received by the Secretary of the People’s Co-operative Society and his endorsement and signature of receipt of the said letter also finds mentioned on the said document. The said document was also duly proved and exhibited in the Court below vide Exhibit 1/a. The photocopy of aforesaid letter has been annexed as Annexure- C to the counter affidavit. 15. Learned counsel for respondents has further submitted that the Court below in its judgment in paragraph no. 15 has held that it is only Deepak Kumar Sinha who is the successor of late Kusum Kumari. He has admitted the agreement for sale and has not come to the court to contest the relief sought by the plaintiff-respondent no.1and, therefore, the plaintiff is entitle for the decree and relief sought for. 16. In the light of the said finding of the Court below the plaintiff- respondent no.1 has taken steps to get the sale deed executed from Deepak Kumar Sinha who is not the appellant in this appeal. In the light of finding of the Court below and in view of the clear cut provisions of the Hindu Succession Act, Sangeeta Sinha (appellant) has got no concern whatsoever from the property in question nor the plaintiff- respondent no.1 has proceeded to get the sale deed executed from Sangeeta Sinha. The sale deed has been sought to be executed only from Deepak Kumar Sinha. 17. The sale deed has been sought to be executed only from Deepak Kumar Sinha. 17. Learned counsel for respondents has further submitted that no case has been made out by the appellant to maintain the appeal or to make a prayer for grant of an order of stay. It is a settled- law that the person seeking an order of stay in appeal must show an irreparable loss, and, in the present case, the appellant has not been able to show any irreparable loss, and, therefore, she is not entitled for an order of stay. 18. It is the case of appellant herself in the court below while appearing as a witness that she has already agreed to sell the suit property and has already received the full consideration money from Amar Kumar. Therefore, there can be no question of any loss, much less, irreparable loss to the appellant in the light of her said admission. 19. Learned counsel for appellant, in reply to the aforesaid submission of the respondent, has submitted that the original defendant Kusum Kumari got prepared five demand drafts amounting to Rs. 2,11,000/- which was resent to the plaintiff which was encashed by the plaintiff on 16.7.2008 but, the plaintiff made misrepresentation in this regard and not amended pleadings of the plaint. The decree holder has also presented draft of sale deed, and as such, for the interest of justice, operation of impugned judgment and decree in the matter of execution of sale deed be stayed otherwise appellant will suffer irreparable loss. 20. The counsel for appellant has submitted that the appellant has already filed probate case no. 98 of 2015 pending in the court of District and Sessions Judge, Patna on the basis of registered Will dated 23.9.2002 executed by testator Most. Kusum Kumari. The plaintiff respondent of this appeal has also filed her petition for her impleadment as opposite party in the aforesaid Probate case. The respondent Smt. Bhawana Bhardwaj has filed Caveat in the Probate case no. 98 of 2015 on 23.4.2019. Kusum Kumari. The plaintiff respondent of this appeal has also filed her petition for her impleadment as opposite party in the aforesaid Probate case. The respondent Smt. Bhawana Bhardwaj has filed Caveat in the Probate case no. 98 of 2015 on 23.4.2019. Deepak Kumar Sinha is step grandson of Kusum Kumari ( now deceased) and wife of Deepak Kumar Sinha, namely, Smt Sangeeta Sinha is successor in interest over the suit land under registered Will dated 23.09.2002 executed by testator Kusum Kumari whose right has already accrued in her favour in the year 2002 itself and only approval of the learned court below is required in order to prove the registered will as genuine Will . 21. In this regard, learned counsel for the respondents has relied on Section 213 of the Indian Succession Act which creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained whether that right is claimed by the person as a plaintiff or defendant. 22. In support of said submission, he has relied on a decision of the Hon’ble Apex Court reported in AIR 1962 Supreme Court 1471 (Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson vs. Mrs. Isolyne Sarojsbashini Bose and others.). 23. Learned counsel for the appellant has further pointed out that this Hon’ble Court in its decision reported in 1992 (2) PLJR 129 ( Suresh Singh and Anr. vs. Dr. Raja Ram Singh) has held “that a legatee or executor of an unprobated Will making a claim on the basis of the same can institute a suit or take a defence in a suit on the basis of such a Will, but his claim cannot be established in a court of law unless and until a probate or letters of administration is granted meaning thereby that neither any decree can be passed in favour of a plaintiff nor defence can be accepted in such a suit unless probate or letters of administration is obtained before its disposal. If such a legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be substituted in place of the testator or added as a party if he makes a claim on the basis of an unprobated Will.” 24. If such a legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be substituted in place of the testator or added as a party if he makes a claim on the basis of an unprobated Will.” 24. Learned counsel for the appellant has relied on a decision of this Hon’be Court report in 2005(1) BBCJ 444 ( Teka Roy and others. vs. Bhagwan Roy and others) wherein it has been held that if a lis has been admitted for adjudication, then it becomes the duty of the court to preserve the subject matter of the same by an appropriate order so that it is available at the time of final adjudication and the decree does not become a barren one. 25. This Court, after hearing the rival submission of both the parties in detail, finds that Kusum Kumari (since deceased) had entered into an agreement for sale with plaintiff respondent no.1 on 25.01.2008 for a consideration of Rs. 25,00,000/- which was duly signed by the plaintiff and defendant no.1 ( since deceased) and witnessed by Deepak Kumar Sinha and Smt. Sangeeta Sinha ( grandson and grand daughter-in-law of the defendant no.1). This Court also finds that out of total consideration amount a sum of Rs. 2,51,000/- was paid to the defendant in cash and also issued cheques of Rs. 7,50,000/- in favour of the defendant and rest consideration amount was agreed to be paid by the plaintiff prior to registration of the sale deed. The defendant agreed to obtain “No Objection Certificate” from People’s Co-operative Grih Nirman Samittee for transferring the membership of Samittee in the name of plaintiff and also agreed to transfer the property to the plaintiff by executing a registered sale deed in favour of the plaintiff. The appellant Sangeeta Sinha has also made endorsement on the said document dated 27.01.2008 that her consent for transfer is there and has duly signed the same by putting the date below signature. The said letter was duly received by the Secretary of the People’s Co-operative Society and his endorsement and signature of receipt of the said letter also finds mentioned on the said document. The said documents was also duly proved and exhibited in the Court below vide Exhibit -1/a. The photocopy of letter dated 27.1.2008 has been annexed as Annexure C to the counter affidavit. 26. The said documents was also duly proved and exhibited in the Court below vide Exhibit -1/a. The photocopy of letter dated 27.1.2008 has been annexed as Annexure C to the counter affidavit. 26. From the pleadings of the parties, it also becomes admitted that appellant is daughter in-law of late Kusum Kumari who did not appear as a witness in the Court below although she had filed the written statement. The appellant has been impleaded as defendant no.3 in the Court below on the basis of the registered Will executed in her favour by late Kusum Kumari dated 23.09.2002. Sangeeta Sinha (appellant herein) has already filed Probate case no. 98 of 2015 which is pending in the court of District and Sessions Judge, Patna. The respondent no.1 has filed a caveat in the aforesaid Probate case no. 98 of 2015 on 23.4. 2019. 27. The Court below, after looking into evidence produced on behalf of both the parties, has given finding in page 21 of the judgment, that “Kusum Kumari died during the pendency of the suit and Deepak Kumar is the only her successor in the eye of law. Hence, the property has devolved on him and in view of the defence taken in the written statement he has negotiated with the plaintiff in regard to the suit property and had received money but he never appeared before the Court to contradict the facts. The agreement for sale i.e. Exts. 1 and 5 automatically becomes binding on him as per law.” 28. The appellant has been impleaded in the suit as defendant no.3 on the ground that Most. Kusum Kumari had executed a registered will in her favour on 23.09. 2002. 29. The Hon’ble Supreme Court in the case of Mrs. Hem Nolini Judah (since deceased ) and after her legal representative Mrs. Marlean Wilkinson (supra) reported in AIR 1962 SC 1471 has held that Section 213 creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained whether that right is claimed by the person as a plaintiff or defendant. Marlean Wilkinson (supra) reported in AIR 1962 SC 1471 has held that Section 213 creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained whether that right is claimed by the person as a plaintiff or defendant. This Hon’ble Court in the case of Suresh Singh (supra) reported in 1992(2) PLJR 129 , has held that a legatee or executor of an unprobated Will making a claim on the basis of the same can institute a suit or take a defence in a suit on the basis of such a Will, but his claim cannot be established in a court of law unless and until a probate or letters of administration is granted meaning thereby that neither any decree can be passed in favour of a plaintiff nor defence can be accepted in such a suit unless probate or letters of administration is obtained before its disposal. If such a legatee or executor can institute a suit or set up a claim by way of defence, he can be allowed to be substituted in place of the testator or added as a party if he makes a claim on the basis of an unprobated will. 30. As per own case of the appellant, she has already filed a Probate case no. 98 of 2015, on the basis of registered Will dated 23.09.2002 executed by testator Most. Kusum Kumari in her favour, which is pending in the Court of District and Sessions Judge, Patna. The plaintiff respondent of this appeal has filed her petition for her impleadment as opposite party. The respondent, namely, Smt. Bhawana Bhardwaj has also filed a caveat on 23.4.2019. As such, the aforesaid Probate case no. 98 of 2015 is still pending in the Court of District and Sessions Judge, Patna. 31. Section 213 of the Indian Succession Act creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained whether that right is claimed by the person as a plaintiff or defendant. 31. Section 213 of the Indian Succession Act creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained whether that right is claimed by the person as a plaintiff or defendant. 32 Therefore, at this stage, this Court is of the view that the appellant has no prima facie case for staying the operation of judgment and decree dated 27.04.2018 passed by Subordinate Judge-IV, Patna in Title Suit no. 176 of 2008. 33. In such circumstances, I.A. No. 1 of 2019 filed on behalf of the appellant is hereby dismissed.