Delhi High Court - Orders
Mrs. Parvinder Kaur vs Ms. Jasvinder Kaur Alias Pinky & Anr on 7 July, 2021
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 294/2021 & I.A. 7855/2021, I.A. 7856/2021, I.A.
7857/2021
MRS. PARVINDER KAUR ..... Plaintiff
Through Mr. Divjyot Singh, Ms. Avsi
Malik Sharma and Mr. Nipun Dwivedi,
Advs.
versus
MS. JASVINDER KAUR ALIAS PINKY & ANR.
..... Defendants
Through: Mr. Naushad Ahmed Khan,
ASC(Civil) and Ms. Manisha Chauhan,
Advs. for GNCTD
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 07.07.2021
(Video-Conferencing)
I.A. 7857/2021 in CS(OS) 294/2021
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
I.A. 7856/2021 in CS(OS) 294/2021 In view of the fact that Defendant No. 2 is represented, this application does not survive for consideration, which is accordingly disposed of.
Signature Not Verified CS(OS) 294/2021 Page 1 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37CS(OS) 294/2021
1. Let the plaint be registered as a suit.
2. Issue summons.
3. Summons are accepted by Mr. Naushad Ahmad Khan, learned ASC (Civil), on behalf of Defendant No. 2.
4. Let summons issue to Defendant No. 1 by all means possible at this time including dasti. The plaintiff is permitted to effect dasti service on Defendant No. 1 without processing through the process server of this Court.
5. Affidavit of service along with proof thereof be placed on record before the next date of hearing.
6. Written statement, accompanied by affidavit of admission/denial of documents filed by the plaintiff be filed within a period of four weeks, with advance copy to the learned Counsel for the plaintiff, who may file replication thereto, if any, accompanied by affidavit of admission/denial of documents filed by the defendant within two weeks thereof.
7. List before the Joint Registrar (Judicial) for completion of pleadings, admission/denial of documents and marking of exhibits on the documents on 6th September, 2021.
Signature Not Verified CS(OS) 294/2021 Page 2 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37I.A. 7855/2021 (under Order XXXIX Rules 1 & 2 CPC) in CS(OS) 294/2021
1. Issue notice.
2. Notice is accepted by Mr. Naushad Ahmad Khan, learned ASC (Civil), on behalf of Defendant No. 2.
3. Notice would issue to Defendant No. 1 as directed in the main suit hereinabove.
4. Response, if any, be filed within two weeks of service of notice on the application with advance copy to learned Counsel for the applicant/plaintiff, who may file rejoinder thereto, if any, before the next date of hearing.
5. Mr. Divjyot Singh, learned Counsel for the plaintiff, presses for ex-parte ad interim relief, by way of status quo regarding the property forming subject matter of the estate of the deceased.
6. The plaint essentially disputes the validity of a Will dated 14th June, 2016, purportedly executed by late Air Commodore Mahinder Singh ("the deceased", in short), the father of the plaintiff and the Defendant No. 1. The plaintiff and Defendant No. 1 are the only surviving heirs of the deceased.
7. The plaint avers that the deceased died intestate on 25th April, 2021 and that, therefore, the plaintiff and Defendant No. 1 would be Signature Not Verified CS(OS) 294/2021 Page 3 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37 entitled to one-half share each in the property of the deceased at 46-A, Co-operative Housing Society, South Extension Part-1, Delhi-110049.
8. In order to assert this claim, the plaintiff disputes the validity of a Will, purported to have been executed by the deceased on 14th June, 2021, whereby the entire property of the deceased stands bequeathed to Defendant No. 1. The validity of the bequest is disputed, essentially, on the two grounds which usually are cited in such cases, namely, that the bequest is unnatural and illogical and, secondly, that the deceased was not possessed of sound dispositive mind at the time when the Will was executed.
9. Urging these contentions, Mr. Divjyot Singh, learned Counsel for the petitioner, submits that the plaintiff and the deceased were on good terms and that, therefore, there was no rational justification, whatsoever, for the deceased to exclude, entirely, the plaintiff from his estate and property while executing the Will. He could, to quote Mr. Divjyot Singh, at least have bequeathed, to the plaintiff, a trinket or an heirloom. The complete exclusion of the plaintiff from the property of the deceased, submits Mr. Divjyot Singh, casts serious doubts on the validity of the Will.
10. Insofar as the dispositive capacity of the deceased is concerned, Mr. Singh has drawn my attention to the averments contained in paras 16 to 27 of the plaint, in which, essentially, the plaintiff has sought to rely on condition of health of the deceased at the time of execution of the Will, to question his dispositive capacity. It is alleged that the deceased was 87 years old at that time, suffering physically as well as Signature Not Verified CS(OS) 294/2021 Page 4 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37 mentally, suffering from "high blood pressure, heart problem, diminished strength, deficient mental alertness, forgetfulness, memory problems, defective hearing and eyesight problems.". It is further asserted that the deceased was a victim of seizures, could not differentiate between day and night, was prone to hallucinations and had also undergone a heart surgery in March, 2021.
11. However, not a shred of material, by way of documentary evidence to support any of these assertions, is forthcoming on record. Mr. Singh's submission, in this regard, is that all the documents are in the possession of Defendant No. 1 and that, therefore, his client was not in a position to place the material on record.
12. Mr. Singh presses into service the considerations of balance of convenience and irreparable loss, to assert the right of his client to ad interim relief and relies, for the said purpose, on the order of a Coordinate Bench of this Court in Divya Mubayi v. Krishna Mubayi1 as well as the judgment of a Coordinate Bench of this Court in Vijay Manchanda v. Ashok Manchanda 2.
13. I regret that the arguments at the bar, read with the material placed on record, cannot, in my opinion, make out a case for ad interim ex-parte stay of execution of the disputed Will.
14. It is trite that a stay can follow only if, apart from balance of convenience and irreparable loss, a prima facie case is found to exist 1 MANU/DE/1041/2009 Signature Not Verified CS(OS) 294/2021 Page 5 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37 in favour of the applicant seeking stay.
15. I have examined the submissions of Mr. Singh along with the material on record and I am unable to convince myself that, at this stage, and in the absence of any response from the defendant, it could be said that a prima facie case, meriting grant of stay as sought, exists. Inasmuch as the allegedly unnatural nature of the disposition of the disputed Will is concerned, I may merely reproduce the following passages therefrom:
"I do hereby leave, devise bequeath and give to my daughter Miss Jasvinder Kaur (Pinky) all my property, moveable and immovable described above in the 'Schedule of Property' of this 'WILL' and also any other property, both moveable and immovable, which I may be possessed of or entitled to at the time of my death, absolutely to be held and enjoyed by her with full and absolute power of alienation.
If my daughter Miss Jasvinder Kaur (Pinky) pre-deceases me, then I will bequeath fresh all my above said property (immoveable and moveable) as deemed fit at that time.
It is mentioned that my elder daughter Ms. Parvinder Kaur (Babal) was married to Capt. Bairinder Singh (now Colonel) in a very decent manner on 20th April, 1975 at Delhi. A sufficient amount of money was spent by me on her marriage (Jewellery, Clothing, Cash etc.). Since she is well happily settled in life and my daughter Miss Jasvinder Kaur (Pinky) is yet to be settled in life and is also not married and also not keeping good health, my property as mentioned above will belong only to Miss Jasvinder Kaur (Pinky) after my demise and my daughter Ms. Parvinder Kaur (Babal) shall have no claim whatsoever to any of my properties mentioned above.
No property, movable or immovable is bequeathed to my elder daughter Ms. Parvinder Kaur (Babal) as she is happily settled in life. However, Miss Jasvinder Kaur (Pinky) is fully dependent on me and a Dependent Identity Card bearing 2 2010 (114) DRJ 467 Signature Not Verified CS(OS) 294/2021 Page 6 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37 No.AV/AFND/0356 has also been issued to her by Indian Air Force."
16. The afore-extracted passages from the disputed Will, in my mind, reveal that the bequest of the property of the deceased to Defendant No. 1, and the exclusion of the plaintiff, was on sound grounds, especially the straitened circumstances in which Defendant No. 1, who was unmarried and dependent on the deceased, found herself, as opposed to the plaintiff who was married, content, and staying separately. I find nothing prima facie unnatural in this disposition, as should justify a stay of the operation of the Will.
17. Apropos the condition of health of the deceased, and his consequent lack of dispositive capacity, as urged by Mr. Divjyot Singh, mere allegations in the plaint, sans any shred of material in support thereof, cannot, in my opinion, make out a prima facie case, justifying stay of the Will. The requirement of producing at least some material, in support of the said allegations, cannot be avoided by merely stating that all documents are in the possession of Defendant No. 1.
18. In taking this view, the court is acutely conscious of the fact that the plaintiff is married and well-settled, staying with her family apart from the deceased and that Defendant No. 1, on the other hand, is unmarried and was dependent on the deceased. She is residing in the suit property and, therefore, at an ex parte stage, the court is not inclined to interfere with the bequest in the Will.
Signature Not Verified CS(OS) 294/2021 Page 7 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:3719. Needless to say, this is a view which has been taken at an ex parte stage, and, after a response is forthcoming from Defendant No. 1, the court may take a contrary view and would not be bound by the order which is being passed today.
20. Insofar as the decisions of this Court, in which Mr. Singh has placed reliance are concerned, neither of the said decisions can, in my view, support grant of an ex parte injunction in the facts of the present case. Divya Mubayi1 was a decision rendered after a reply was filed by the defendant in that case and, though the decision refers to the passing of an earlier ex parte interim injunction, the circumstances in which the interim injunction was passed are not forthcoming in the said decision. Besides, it is not readily apparent, from the decision, that circumstances, such as those which are cited in the impugned Will for bequeathing the entire property to Defendant No. 1, were forthcoming in that case.
21. The decision in Vijay Manchanda2 does not deal with testamentary disposition at all, and involves a contested sale deed. That decision cannot, therefore, come to the aid of the plaintiff in the present case, insofar as the prayer for ex parte interim relief is concerned.
22. In view of the aforesaid, I am unable to accede to the request of Mr. Divjyot Singh for an ex parte ad interim stay of operation of the disputed Will.
Signature Not Verified CS(OS) 294/2021 Page 8 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:3723. Subject to service being effected on Defendant No. 1 in accordance with the directions hereinabove, Defendant No. 1 shall be bound by the time schedule fixed for filing the reply, which shall, ordinarily, not be extended or relaxed.
24. List the application before the court for disposal on 30th July, 2021.
C. HARI SHANKAR, J.
JULY 7, 2021 dsn Signature Not Verified CS(OS) 294/2021 Page 9 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:13.07.2021 13:20:37