Delhi High Court
Kulbir Singh vs State And Ors. on 7 September, 1993
Equivalent citations: 1993IIIAD(DELHI)773, 52(1993)DLT57, 1993(27)DRJ267
JUDGMENT Mohd. Shamim, J.
(1) This is an application under Section 151 of the Code of Civil Procedure for issue of an ad interim injunction restraining respondent No.2. Mrs. Indra Paintal, or any other person who might be inducted into the property by the said respondent, her servants and agents from carrying out any construction or parting with possession over the plot bearing No. A-2/121, Safdarjang Development Residential Scheme, New Delhi, till the disposal of the probate petition.
(2) Brief facts which gave rise to the present case are as under: that the petitioner has filed a probate petition No. 45/89 where through he seeks probate in respect of the registered will dated February 19,1973 made by the deceased Smt. Dhan Kaur i.e. his mother in favor of the petitioner. The deceased left behind a plot bearing No. A-2/121, Safdarjang Development Residential Scheme, New Delhi. The deceased breathed her last on January 13,1977 at Holy Family Hospital. New Delhi. The deceased through the said will bequeathed to the petitioner the said plot of land.
(3) The petitioner is not a resident of India and has been residing continuously abroad. The petitioner received from the Delhi Development Authority, respondent No.5, addressed to the testatrix Smt. Dhan Kaur that the lease in respect of the said plot of land would be cancelled if the constructions were not raised on the said plot of land as the lease in respect of the said plot was granted for the purpose of raising construction for residential purposes. In the above said circumstances the petitioner requested his sister i.e. respondent No.2 to approach the Dda for the property being mutated in favor of the heirs of the testatrix i.e. the petitioner and respondents No.2 and 3 as the petitioner at that time was not in possession of the original will nor a copy thereof. In view of the above, the said property was got mutated in the joint names of the petitioner and respondents No.2 and 3 in order to preclude the Dda from cancelling the lease deed in favor of the deceased. Later on, certain constructions were raised on the said plot of land (for short 'the disputed property'). A completion certificate was also issued.
(4) The petitioner came to India on November 26,1992 and inspected the disputed property. To his dismay and horror he found that the whole of the structure raised thereon has been demolished and the entire disputed property had been dag up. On enquiries it was revealed that respondent No.2 was purporting to induct certain strangers into the said property known as Harmeet Singh Ghai, Pankaj Chaudhary and A.K. Jain. The petitioner in this connection tried to contact respondent No.2 who refused to meet him. He informed the Municipal Corporation of Delhi with regard to the proposed unauthorised construction being carried on. The petitioner is thus likely to suffer irreparable loss and injury in case strangers are inducted into the said property and rights are created in favor of third parties in the said property. It has thus been prayed that an ad interim injunction be issued restraining respondent No.2, her servants, agents and representatives to make any construction over the disputed property, (5) Respondent No.2 filed a reply to the said application. According to her, she has sold and disposed of her share in the disputed property in favor of Shri Harmeet Singh Ghai for a total consideration of Rs. 12,50,000.00 . It has further been averred that she has neither raised any construction nor demolished any. Thus, if the petitioner has got any cause of action it is against Harmeet Singh Ghai.
(6) Respondent No.3 Smt. Loveleen Mehta has supported the case of the petitioner. According to her, the respondent No.2, her servants, agents and representatives be restrained from raising any construction over the disputed property.
(7) The application has been vehemently opposed on behalf of the objector i.e. Business Associates. It has been urged for and on behalf of the objector that the disputed property has been sold to the objector. In fact, they have purchased it from the respondent No.2 who has now joined hands with the petitioner and respondent No.3 in order to bring pressure on the objector to extract further money from them. It is false and preposterous that the deceased made any will. The impugned will is a forged and fabricated document In fact, the objector have purchased the disputed property for a consideration of Rs. 4.50 lacs. The construction is being raised on the said property after obtaining sanction from the municipal authorities. Smt. Indra Paintal, respondent No.2 sold the disputed property to the objector in her personal capacity as an attorney for and on behalf of the petitioner and respondent No.3. The objector are in actual and physical possession over the disputed property for the last two years. The Court while dealing with the probate petition is not competent enough to grant any injunction. The injunction application is thus false and frivolous and is liable to be dismissed.
(8) Learned counsel for the objector Mr. G.L. Rawal during the course of his arguments has raised a preliminary objection with regard to the maintainability of the present petition. According to the learned counsel, the present Court is dealing with a probate petition and, as such, this Court is not competent enough to grant an injunction. According to the learned counsel, the inherent powers of the High Court on its Original Side cannot be invokved in such.a case. The application, according to the learned counsel, is thus liable to be dismissed on this short ground alone.
(9) Learned counsel for the petitioner Mr. Endlaw, on the other hand, has contended that this Court even in a probate matter is fully competent under its inherent jurisdiction to grant an injunction for the preservation of the disputed property. The learned counsel in support of his argument has tried to draw sustenance from Sections 247,266 and 300 of the Indian Succession Act. It would be thus just and proper to examine the provisions of the said Sections before proceeding any further in the matter. "247.Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of the such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction"
(10) Section 266 of the Indian Succession Act provides as under:- "THE District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person".
(11) According to the provisions of Section 300 of the Indian Succession Act the High Court enjoys all the powers which are vested in the District Judge. I am tempted here to reproduce Section 300(1). It envisages as follows:- "300(1). The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge"
(12) It is fully manifest from the relevant provisions extracted above, that a High Court has got the concurrent jurisdiction with the District Judge in the matter of grant of probate and the District Judge under Section 266 while acting as a Probate Court has got all the powers of a Civil Court as is abundantly clear from Section 266 of the Indian Succession Act. A close scrutiny of Section 247 of the Indian Succession Act reveals that the object behind the enactment of the said section is to preserve the disputed property from being destroyed, dissipated and frittered away.
(13) I am tempted over here to cite a few authorities in support of my above view. It was observed in Air (38) 1951Cal.561 (Atula Bala Dasi and others V. Nirupama Devi and another). "It is open to the Probate Court not only to appoint an administrator pendente lite but also to issue an order of injunction, temporary in character, pending the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a probate court, there is no reasonable chance of any property being dissipated, pending the actual grant of a probate or the appointment of an administrator".
(14) To the same effect are the observations of their Lordships of the Supreme Court as (Manohar Lal Chopra V. Rai Bahadur Rao Raja Seth Hiralal).... "Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the fact of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has but been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code".
(15) In view of the above, I conclude that the present application is maintainable and this Court can grant injunction while exercising its inherent powers even in a probate case.
(16) It has next been urged for and on behalf of the objector that the impugned will is alleged to have been executed by Smt. Dhan Kaur on February 19,1973. The present petition for the grant of probate was filed on January 20,1989. This casts grave suspicion on the will itself and this very fact is sufficient enough to hold that the said will is forged and fictitious and thus cannot be acted upon. The contention of the learned counsel, I feel, though an ingenious one, but can be brushed aside without any difficulty. This Court while disposing of an injunction application need not go into that controversy as it would be premature to adjudicate upon this point at this stage. The question as to whether the impugned will is a forged or fictitious one or a genuine one would be gone into at a proper stage when the parties have led their evidence in full. However, even then I would like to observe that a probate petition cannot be thrown away merely on the ground of delay. Delay is not fatal to the grant of probate particularly in the circumstances obtaining in this country where the illiteracy is permeating every nook and corner of this country.
(17) There is yet another aspect of the matter. In the present case, admittedly, the petitioner is not a resident of India. He lives abroad in connection with his employment and he occasionally visits lndia.Assuch,he could not trace the original will till about December, 1986 (vide para 9 of the petition). Thus, there is nothing strange that delay was caused in the presentation of the petition for probate. I am supported in my above view by the observations as (Raj lakshmi Dassi Bechulal Das V. Krishna Chaitanya Das Mohanta). "If there is positive proof of execution of the will by oral and documentary evidence delay, by itself cannot be a ground for refusing grant of probate. Further, if suspicious circumstances can be given a possible explanation court should not refuse grant of probate when the attesting witnesses have otherwise proved voluntary execution of the will and the testamentary capacity of the testator".
(18) The next contention raised for and on behalf of the objector by Mr. Rawal is that the present petition has been filed without the verification of at least one of the two attesting witnesses as required under Section 281 of the Succession Act. Hence, the present petition is liable to be flung away to the winds on this short ground alone. It is true that the present petition has been filed without the verification by one of the two as required under Section 281 of the Succession Act. However, to my mind the said require- ment is not mandatory but only directory and no petition can be dismissed on the said score. The petitioner has himself explained (vide para 8 of the petition) as to under what circumstances the present petition was filed without the verification from one of the said two witnesses. According to him, Shri Bhola Dutt, one of the attesting witnesses is not traceable. The other attesting witness Shri Yogender Pal was not coming forward to verify the petition.
(19) The above view was given vent to in (Nand Kishore Rai and another V. Mst. Bhagi Kuer and others). It was observed "Verification of a petition required under S. 281 similar to verification required of pleadings, including a plaint, under 0.6 R.15, Civil Procedure Code .. and has no greater effect or value. Omission to verify, or defective verification of, a pleading is a mere irregularity within S.99.C.P.C., and is never fatal. The provision of S .281 of the Succession Act is less drastic than that of 0.6 R.I 5 and an omission to verify, or a defective verification of, a petition for probate cannot have a more serious effect than that of a plaint. The provision in S.281 is merely directory and not mandatory, i.e. non-compliance with it is not intended to lead to the rejection of the petition".
(20) It is manifest front above that provisions of Section 281 of the Indian Succession Act are in pari materia with the provisions of Order 6 Rule 15 Civil Procedure Code . An omission to verify the pleadings is not fatal to the case of aparty and is curable under Section 99 Civil Procedure Code . The same principle is thus applicable to a probate case.
(21) The next contention put forward by the learned counsel for the objector is that the objector has become absolute owner of the disputed property by virtue of the agreement to sell dated March 5, 1991 executed by Mrs. Indra Paintal, respondent No.2, for self and for and on behalf of the petitioner and respondent No. 3, Smt. Loveleen Mehta, and the special power of attorney executed by Mrs. Indra Paintal, respondent No.2, in favor of Harmeet Singh Ghai. He is, in fact, in actual physical possession over the disputed property and started raising constructions thereon after obtaining the sanction from MCD. Hence, the balance of convenience is in favor of the objector. In case an injunction is granted he is likely to suffer irreparable loss and injury. I am sorry I am unable to agree with the contention of the learned counsel. Respondent No.2, Indra paintal, has placed quite a good number documents on record to show to the contrary. Admittedly, Indra Paintal, assuming arguendo, there is no will in favor of the petitioner, even in that eventuality, she is the owner of one-third share only in the disputed property. According to her, she is alleged to have sold only her one-third share in the disputed property in favor of the objector. She has stated so in her reply to the injunction application and written statement. She has also stated so in her agreement to sell dated March 15,1991 which she executed in favor of Harmeet Singh. A close scrutiny of para 5 of the said agreement to sell reveals that the purchaser was specifically asked not to do or caused to be done anything in or upon the property which would be derogatory to the rights of the co-owners Kulbir Singh and Smt. Loveleen Mehta. A perusal of the same further reveals that she executed that agreement to sell in respect of her one-third share only. As I have already observed above, it is not open to this Court to go into the validity of title particularly so while dealing with an injunction application, it is premature to adjudicate upon the rights of the parties at this stage.
(22) There is yet another aspect of the matter. Learned counsel for respondent No. 1, Mr. K.R. Gupta, during the course of his arguments has placed on record an order dated July 7, 1993 passed by the Additional Commissioner (Engg), Mr, Pradeep Singh. A perusal of the same shows that the sanction to raise any construction on the disputed property has been revoked. Thus, the objector cannot raise any construction in the absence of a permission from the municipal authorities to do so.
(23) The petitioner by the institution of the present petition has raised a substantial question that Smt. Dhan Kaur i.e. the mother of the petitioner executed a will in his favor on February 19,1973. He thus wants that a probate be granted on the basis of the said will. The said question is to be gone into by this Court. In case, the disputed property is allowed to be destroyed, dissipated and wasted and to pass hands and if the petitioner ultimately succeeds, and a probate is granted in his favor, in that eventuality he would not be in a position to have any thing which was bequeathed to him through the impugned will. Thus, he would suffer irreparable loss and injury in case the injunction is not granted. The balance of convenience is thus in favor of the petitioner. Moreover, if the petitioner succeeds he cannot be adequately compensated by damages in case the injunction is not granted.
(24) Learned counsel for the objector during the course of arguments has led me through certain authorities. I have very carefully gone through the said authorities. I find that the same are not applicable to the facts and circumstances of the present case.
(25) Air (36) 1949 Madras 45 (Namagiri Ammal v. T. Subba Rao). According to the facts of the said case an application for probate was converted into a suit. The suit was decreed and the probate was granted. Hence, the High Court refused to grant injunction as the property was not in danger of being wasted or damaged inasmuch as the person to whom the probate is granted becomes clothed with all authority to administer the estate. He, as such, can look after the property. Thus, there was no necessity to issue an injunction.
(26) (Thomas Ben v. Parvathy Ommini). It was observed where in a suit the plaintiff applies for an injunction restraining the defendant from constructing any building on the suit land and the defendant gave an undertaking that he was raising construction at his own risk and cost and he would pull the same down in case of his failure without claiming any compensation, in such a case the injunction would not be granted.
(27) (T. Krishnaswamy Chetty v. C. Thangavela Chetty and others). This authority deals with the cases as to when a receiver is to be appointed.
(28) (Ishwardeo Narain Singh v. Smt. Kamta Devi and others). It was observed... "The Court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind".
(29) In the circumstances stated above the application is allowed. The respondents, their servants and agents, including the present objector are hereby restrained from raising any construction or parting with possession over any part of the plot bearing No.A-2/121, Safdarjang Development Residential Scheme, New Delhi, till the disposal of the probate petition.