Delhi District Court
Jai Singh vs Delhi Development Authority & Anr on 1 November, 2014
Jai Singh v. DDA & Anr.
IN THE COURT OF MS SURYA MALIK GROVER
SENIOR CIVIL JUDGECUMRENT CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
CS No. 121/13
IN THE MATTER OF:
JAI SINGH
....PLAINTIFF
VERSUS
DELHI DEVELOPMENT AUTHORITY & ANR.
....DEFENDANTS
ORDER
1. By virtue of this order, application under Order 7 Rule 11 CPC is being disposed off.
2. A brief back ground of the case is necessary to be spelt out in order to adjudicate the instant application. It is the case of the plaintiff that he is one of the sons of Late Smt. Roopo who was the only legal heir of Smt. Jhalo Devi (also spelt as Jalo/Lajo in the body of plaint CS No. 121/13 Page 1 of 15 Jai Singh v. DDA & Anr.
and henceforth being referred to as 'Jhalo Devi' in order to maintain uniformity and to avoid any confusion).
2.1 It is averred that Late Smt. Jhalo Devi was the owner of property bearing Khasra No. 482/2 and 638/564/265, Village Shahpur Jat, admeasuring 4 bigas and 14 biswas (henceforth, referred to as 'suit property'). It is averred that the said property was acquired by the Delhi Administration and in lieu of the same, Smt. Jhalo Devi was entitled to allotment of a residential plot in South Delhi. However, the DDA vide letter sanctioned an alternative plot on perpetual lease hold basis on 16.10.1982. Further, defendant no.1 sanctioned another alternative plot on account of non availability of sufficient plots in Dwarka.
2.2 It is further alleged that after the death of Smt. Jhalo Devi, one Smt. Saraswati by filing a fraudulent case obtained probate of the alleged Will dated 12.01.1983 vide judgment dated 31.10.1985. However, the said fact came to the knowledge of the plaintiff vide publication dated 26.04.2012 by defendant No.1 that the latter was intending to give possession of the suit property to Smt. Saraswati. CS No. 121/13 Page 2 of 15 Jai Singh v. DDA & Anr.
Thereafter, a legal notice dated 23.07.2012 was sent to the defendant No.1 by the plaintiff raising objections and requesting them not to allot the suit property to anyone. Further, the plaintiff has also filed a petition for revocation of probate/letter of administration granted in favour of Smt. Saraswati which is pending before Ld. ADJ, South, Saket Court.
2.3 It is further alleged that the plaintiff has come to know that defendant No.1 has initiated the process of giving allotmentcum possession of the plot in Dwarka to the defendant No.2, even though the Will of Smt. Jhalo Devi is under challenge before the Probate Court. Hence, in view of the aforesaid, it has been prayed that a decree of permanent injunction may be passed restraining the defendant No.1 from giving possession of the plot in Dwarka in lieu of the suit property belonging to the deceased Smt. Jhalo Devi to Smt. Saraswati or her legal heirs etc.
3. The application under Order 7 Rule 11 CPC was moved by defendant No.2 raising primarily the following grounds: CS No. 121/13 Page 3 of 15
Jai Singh v. DDA & Anr.
a) Firstly, it is argued that this court is not having territorial jurisdiction to entertain the present suit as it relates to immovable property in Dwarka, which does not fall within the jurisdiction of this Court.
b) Secondly, it is argued that the plaintiff has failed to disclose that his brother one Shivji Ram had also filed an application for stay of operation of the Letters of Administration, during the pendency of revocation probate proceedings in probate case No. 191/84 before Ld. ADJ Court, District Court Dwarka and the same was rejected vide order dated 29.01.2013.
c) Thirdly, it has been argued that as revocation of probate proceedings are pending before Ld. ADJ Court, Saket the plaintiff has an alternatively efficacious remedy to present his application seeking injunction before the same Court.
d) Fourthly, it has been argued that the present suit is a premature suit, as no cause of action accrues in favour of the plaintiff till the time CS No. 121/13 Page 4 of 15 Jai Singh v. DDA & Anr.
the petition for revocation of probate proceedings is disposed of on merits and this court shall be exceeding its jurisdiction, if it chooses to entertain the injunction suit during the pendency of the revocation case as it would amount to adjudicate the question of title of the suit property, which issue is already pending disposal before Ld. Probate Court.
e) Finally, it is argued that the present suit for injunction is not maintainable in its present form as the plaintiff has failed to seek the relief of declaration of allotment by defendant No.1 in favour of defendant No.2 as null and void and in such circumstances, relief of injunction simplicitor cannot be granted.
4. I have given careful consideration to the arguments advanced by Sh. Anshu Mahajan, Ld. counsel for defendant No.2/applicant, Sh. Parminder Singh, Ld. counsel for plaintiff and Sh. P. M. Bhatt, Ld. counsel for defendant No.1.
5. At the outset, as far as the question of jurisdiction of this Court to grant injunction with respect to allotment of immovable property in CS No. 121/13 Page 5 of 15 Jai Singh v. DDA & Anr.
Dwarka by defendant No.1 is concerned, proviso to Section 16 of CPC clearly provides that where the relief sought can be entirely obtained through personal obedience, the suit can be instituted in the Court where the defendant resides or carries on his business or personally works for gain. In the present facts and circumstances, relief of injunction has been sought against defendant No.1 restraining them from giving possession of the plot in Dwarka in lieu of the suit property belonging to the deceased Smt. Jhalo Devi to defendant No.2 Smt. Saraswati or her legal heirs etc., which relief can be entirely obtained through personal obedience, and hence, the defendant No.2 being a resident of Safdarjung, which falls within the jurisdiction of this Court, the plea raised by defendant No.2 is having no merits. Furthermore, the originally allotted suit property was in Village Shahpur Jat which also falls within the jurisdiction of this Court and hence, the arguments is liable to be rejected.
6. As far as the argument that the factum that an application for stay on letters of administration during pendency of revocation of probate proceedings by the brother of the plaintiff one Shivji Ram has already been dismissed by the Court of Ld. ADJ, Dwarka has been CS No. 121/13 Page 6 of 15 Jai Singh v. DDA & Anr.
concealed by the plaintiff is concerned, the said argument carries no weight as the plaintiff was neither a party in the said petition nor the said order is binding upon him in any manner, as he has filed the instant suit seeking revocation of grant of probate in his own independent right.
7. Coming to the third argument, that as revocation of probate proceedings are pending before Ld. ADJ Court, the plaintiff has an alternative efficacious remedy to file the present application for injunction before the same Court under Section 269 (2) or Section 192 of the Indian Succession Act, in my considered opinion, the plaintiff is not having any efficacious remedy with him in order to preserve the suit property under the provisions of the Indian Succession Act or the Code of Civil Procedure.
8. I say so as firstly, relief has been sought against DDA by the plaintiff, which is not a party in the revocation of probate proceedings. Moreover, Section 269 of Indian Succession Act is not applicable to CS No. 121/13 Page 7 of 15 Jai Singh v. DDA & Anr.
the present case in view of the express bar which is contained in Section 269(2) Indian Succession Act as under:
"S.269(2) This Section shall not apply when the deceased is a Hindu, Muhammadn, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate."
9. As far as Section 192 of Indian Succession Act is concerned is concerned, the same is being reproduced as under for the sake of clarity:
"192. Person claiming right by succession to property of deceased may apply for relief against wrongful possession (1) If any person dies leaving property, movable or immovable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the district where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.
10. Section 192 falls under part VII of Indian Succession Act wherein order for protection of a property is made by the court in summary proceedings and court can make such an order when it finds CS No. 121/13 Page 8 of 15 Jai Singh v. DDA & Anr.
that urgent orders are necessary and the court cannot wait for the party to secure that order by adopting an ordinary remedy of a civil suit. Hence, the order under Section 192 can be made only to prevent the person having no rights in relation to the property from taking forcible possession or after such possession has already been taken. Needless to say, as the possession of the flat in dispute is still with the defendant No.1, Section 192 of Indian Succession Act is not attracted.
11. It is further argued by Ld. Counsel for the defendant No.2 that the suit is a premature one, and fails to disclose any alive cause of action, as revocation of probate proceedings are pending before Ld. ADJ Court, and unless probate order is revoked, no cause of action arises in favour of the plaintiff. Ld. counsel for defendant No.1 has relied upon the judgment titled as 'Vithalbhai (P) Ltd. Vs. Union Bank of India', (2005) 4 SCC 315, wherein the law on the subject was settled in Para 22 as under :
"22. We may now briefly sum up the correct position of law which is as follows:
A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff CS No. 121/13 Page 9 of 15 Jai Singh v. DDA & Anr.
became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of ac tion, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying th ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to nonmaintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsi bility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not CS No. 121/13 Page 10 of 15 Jai Singh v. DDA & Anr.
exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular events; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained."
12. Another judgment relied upon by Ld. Counsel for the defendant No.2 is that of 'Ram Singh Batra Vs. Sharan Premi' 2006 (133) DLT 126, wherein it was held that where a recovery suit had been filed against the defendant on account of damage for tort of malicious prosecution, no cause of action has accrued to the plaintiff to file a CS No. 121/13 Page 11 of 15 Jai Singh v. DDA & Anr.
suit for the reason that the plaintiff has yet to obtain an acquittal or discharge in his favour. Again, in 'Masyc Projects Private Ltd. Vs. Rajiv Rai Sachdev', 2008(152) DLT 762, it was held that when a suit for possession and mesne profits is pending disposal, a suit for recov ery of certain amounts towards damages for breach by defendant of a contract of permanent tenancy in favour of the plaintiff is not main tainable, as the cause of action, if any would accrue to the plaintiff only when he is ejected from the premises and not prior thereto.
13. I am afraid that the judgments cited by the Ld. counsel for the defendant shall not be applicable to the present facts as the cause of action arose in favour of the plaintiff as the defendant No.1 published and invited objections for allotment of the Dwarka flat granted in lieu of the suit property in favour of Smt. Saraswati. The situation that emerges is that as the plaintiff is challenging the entitlement of the defendant no.2 to the allotment of flat in Dwarka in the present proceedings, and even though the final outcome of the present proceedings may be dependent upon the decision of the revo cation of the probate case, the plaintiff cannot be nonsuited, as it is CS No. 121/13 Page 12 of 15 Jai Singh v. DDA & Anr.
his legitimate right to pursue his remedy to preserve the suit property till the time the probate proceedings are pending.
14. I place reliance upon various judgments of the Hon'ble Supreme Court viz. 'Ishwardeo Narain Singh Vs. Kamta Devi', 3 AIR 1954 SC 280; 'Chiranjilal Shrilal Goenka (deceased) through LRs Vs. Jasjit Singh', 4 (1993) 2 SCC 507; and 'Delhi Development Authority Vs. Mrs. Vijaya C. Gurshaney', (2003) 7 SCC 301, wherein the controversy on the issue as to whether the probate court was having jurisdiction to decide the title of a property was set at rest and it was pronounced that a Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased.
15. I am further supported in my view with regard to inability of the Probate Court to adjudicate upon the title of the suit property by the CS No. 121/13 Page 13 of 15 Jai Singh v. DDA & Anr.
judgment of 'Thrity Sam Shroff vs. Shiraz Byramji Anklesaria', AIR 2007 Bom 103, a Division Bench judgment of Hon'ble Bombay High Court, which has been quoted in judgment of 'Ramchandra Ganpatrao Hande Alias vs Vithalrao Hnde & Ors.', AIR 2011 Bombay 436 as under:
".... It would not be permissible, in the face of the specific provision of subsection (2) of Section 269 to read into the provisions of Section 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on behalf of the Appellate to rely upon the provisions of the Act, to which a reference has been made earlier, the Court in this case is essentially concerned with the powers of the testamentary Court when it exercises its jurisdiction in a petition for the grant of probates. In view of the express provision which is contained in Section 269 (2), there can be no recourse to the exercise of the inherent powers of the Civil Court.CS No. 121/13 Page 14 of 15
Jai Singh v. DDA & Anr.
16. Finally, coming to the last argument, I am in agreement with Ld. Counsel for the defendant no.2 that the suit is not maintainable in its present form as the relief seeking injunction simpliciter without seeking declaration of ownership rights in the suit property cannot be granted. I am strengthened in my view by the celebrated judgment of 'Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs & Ors.', AIR 2008 SC 2033. In view of the aforesaid, opportunity is granted to the plaintiff to claim the comprehensive relief of declaration and injunc tion, failing which this Court shall be constrained to proceed in accor dance with law.
17. Accordingly, the application is disposed of.
(Announced in the open (Surya Malik Grover)
Court on 01.11.2014) SCJcumRC (South), Saket Courts,
New Delhi
CS No. 121/13 Page 15 of 15