Delhi District Court
Smt.Beena Malik vs Sh.Jeet Pal @ Jeet Lal on 4 September, 2009
IN THE COURT OF SHRI SANJEEV JAIN :ADDITIONAL DISTRICT
JUDGE: DELHI (CENTRAL DISTRICT)
Suit no.102/08
Date of Institution: 8.10.08
Final Arguments heard on : 18.08.09
Date of Decision: 04.09.09
1.Smt.Beena Malik,
w/o late Sh.Arjun Malik
2.Ms.Shalu,
D/o late Sh.Arjun Malik,
3.Ms.Shweta
D/o Late Sh.Arjun Malik,
4.Master Sonu,
s/o Late Sh.Arjun Malik,
5.Master Monu
s/o Late Sh.Arjun Malik,
6.Smt.Ram Kaur,
widow of late Sh.Attar Chand
1
(Mother of late Sh.Arjun Malik)
All r/o 20/3 (Ground floor)
Indra Vikas Colony,
Delhi.
.... Plaintiff.
Vs.
1.Sh.Jeet Pal @ Jeet Lal,
s/o late Sh.Sant Ram,
R/o 618, Mukherjee Nagar,
Delhi
Second Address:
Prop.of J.B., Cutlery Industry,
293, Ground floor, Dhaka Johar,
(Near Water Tank), Mukherjee Nagar,
Delhi110009
2.Sh.mahinder Lal,
son of late Sh.Sant Ram,
R/o 20/1 Ground floor,
Indra Vikas Colony, Delhi.
3.Sh.Hari Chand,
s/o late Sh.Sant Ram,
R/o H.No.61, ABlock, Pocket4,
Sector 16, Rohini, Delhi.
2
4.Sh.Kishori Lal,
s/o Late Sh.Sant Ram,
R/o 213BH, Poorvi Shalimar Bagh,
Delhi.
5.Smt.Chunia Devi,
w/o Sh.Babu Ram Narang,
D/o Shri Sant Ram.
R/o 123/2, Sant Nagar, Burari,
Delhi.
6.Smt.Krishna Devi
w/o Sh.Harjeet Kumar,
d/o Late Sh.Sant Ram
r/o1859, Outram Lines,
Kingsway Camp, Delhi.
7.Smt.Bimla Devi,
w/o Sh.Raj Kumar,
d/o Shri Sant Ram,
r/o C195196, IIIrd floor,
Gandhi Nagar, Delhi.
8.Smt.Usha Devi
d/o Sh.Sant Ram
c/o Sh.Mahender Lal,
3
R/o 20/1, Ground floor,
Indra Vikas Colony,
Delhi.
9.Smt.Shakuntala Devi
d/o late Sh.Atar Chand,
R/o B2, Sector15, Rohini,
Delhi.
10.Smt.Nirmal,
d/o late Sh.Attar Chand,
R/o 233, Ground floor,
Indra Vikas Colony,
Delhi.
11.Smt.Meenu Malik,
widow of late Sh.Pradeep Malik,
12.Master Bali (Minor)
s/o late Sh.Pradeep Malik,
through his Guardian Mother
Meenu Malik,
13.Miss Simran (Minor)
d/o late Sh.Pradeep Malik,
Through her Guardian Mother
Meenu Malik.
4
14.Miss.Simmi (Minor)
d/o late Sh.Pradeep Malik,
Through her Guardian Mother,
Meenu Malik
All r/o A8/215A, Gali no.8,
ABlock, Brij Puri,
Delhi110094
15.Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, New Delhi.
16.Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Chandni Chowk, Delhi.
.... Defendants
JUDGMENT
1 In brief, the plaintiffs have filed the suit against the defendants in respect of property bearing house no.618, Dr.Mukherjee Nagar, Delhi (hereinafter referred as 'suit property') for the relief of partition, 5 declaration, rendition of accounts, permanent and mandatory injunction. It is prayed that by decree of declaration the suit property be declared as joint Hindu Family Property, will dt.16.4.84 executed by late Sh.Sant Ram and will dt.11.3.91 executed by Smt..Ram Lubhai be declared null and void. It is prayed that the probate granted by the court of Smt.Bimla Makin, Ld.ADJ, Delhi in probate case no.109/95 dt.25.4.2007 be cancelled being illegal and nullity. Partition of the suit property prayed by meets and bound along with relief of permanent and mandatory injunction. 2 Brief facts as disclosed in the plaint are that plaintiffs are the legal heirs of late Sh.Sant Ram. Sh.Sant Ram was the owner of Quarter No.F100, Outram Lines, Kingsway Camp, New Delhi. As per the Government policy, MCD Delhi had taken over the 6 possession and in view of the same alloted the 'suit property' in favour of Sh.Sant Ram. The possession of the suit property was also handed over by MCD to Sh.Sant Ram. Sh.Sant Ram was required to pay the sale price of the suit property in 20 equal annual installments with interest. Late Sh.Sant Ram constructed the house over the suit plot and sons of late Sh.Sant Ram contributed equally in the construction of the house as it was a joint Hindu Family Property. Late Sh.Sant Ram debarred defendant no.1 from inheriting the property by a public notice published in newspaper "Nav Bharat Times". Sh.Sant Ram expired, leaving behind will dt.16.4.84 in favour of his wife Smt.Ram Lubai. It is stated that Sh.Sant Ram was not authorised and had not power to execute the will in respect of the entire house as it was a joint Hindu Family property. Smt.Ram Lubai also expired, leaving behind the will dt.11.3.91 which was executed 7 in favour of defendant no.1 and 2. It is alleged that will is a fabricated document which was obtained by undue influence by defendant no.1 and 2 and that Smt.Ram Lubai had no power and authority to execute the will in respect of the entire suit property. After the death of Smt.Ram Lubai, her one of the son Sh.Attar Chand died on 10.8.91, leaving behind five legal heirs. After death of Smt.Ram Lubai on 4.7.91, defendant no.1 and 2 filed a probate petition in respect of the will executed by their mother. It is stated that LR'S of Sh.Sant Ram and Attar Chand were not impleaded as party in the probate petition. It is also disclosed that after death of Sh.Sant Ram, his share was to be divided amongst the legal heirs and every legal heir was entitled for 1/9th share in the property of late Sh.Sant Ram. Vide order dt.25.4.07, the probate was granted by the court of Smt.Bimla Makin, the then Ld.ADJ, Delhi in respect of 8 the will executed by Smt.Ram Lubai. Sh.Hari Chand and Sh.Kishori Lal filed an appeal before the Hon.High Court of Delhi, challenging the order of Ld.Trial court in FAO no.254/07 which was dismissed by the Hon.High Court vide order dt.23.7.07. The main case of the plaintiffs is that Sh.Sant Ram and then his widow Smt.Ram Lubai had no power or authority to execute the will in respect of the entire suit property as it was a joint Hindu Family property and therefore the plaintiffs are entitled to their share in the joint Hindu Family property in accordance with law.
3 In written statement filed by defendant no.1 and 2, it is alleged in preliminary objections that plaintiff has no locus standi to file the suit and the defendant no.1 and 2 are the absolute owners of the property and in possession of the same. That there is no cause of 9 action in favour of plaintiffs and plaint is liable to be rejected under order 7 rule 11 CPC. That plaintiffs have not approached the court with clean hands and suppressed the material facts. That this court has no jurisdiction to declare the probate granted by the court of Smt.Bimla Makin, the then Ld.ADJ, Delhi as nullity in view of section 263 and 264 of Indian Succession Act 1925. On merits of the material averments of the plaint are disputed by defendant no.1 and
2. 4 In written statement filed on behalf of defendant no.3,4 and 7. It is alleged that suit property could not have been alloted in the name of late Sh.Sant Ram as the quarter at Kingzway Camp was alloted in favour of defendant no.3. It is stated that defendant no.3 was asked by his father to sign some documents for transfer of 10 quarter in favour of Sh.Sant Ram. It is also stated that all the members of the family contributed funds towards the construction of HUF property and therefore, late Sh.Sant Ram and his wife Smt.Ram Lubai has no power or authority to execute the will. It is also stated that late Sh.Sant Ram executed the will as life estate in favour of Smt.Ram Luabai and she was not entitled to execute the will. It is stated that defendant has appeared before the probate court, but the court refused to go into the question of title.
5 Written statement is also filed by defendant no.15/DDA. it is stated that on the basis of probate order dt.25.4.07 by the competent court the DDA mutated the suit property in the name of the beneficiaries. It is stated that no notice was served upon the DDA under section 53(B) of DDA Act and therefore, suit is not 11 maintainable. It is also stated that conveyance deed in respect of the suit property has already been executed by DDA and therefore, suit is not maintainable. As per written statement of DDA, the suit has not been properly valued for the purpose of court fee and jurisdiction. On merits the averments of the plaint are denied. 6 In their written statement defendant no.16/MCD alleged that suit is barred under section 477/478 of DMC Act for want of notice. It is stated that suit is pertaining to the immovable property between the family members and is not maintainable against the answering defendant/MCD. It is stated that building plan etc.has been sanctioned in the name of Mr.Jeet Lal and Mohinder Lal after followng the due process. The suit property stands in the name of Sh.Sant Ram as assessee since 21.7.72 till date. It is also alleged 12 by MCD that plaint is liable to be rejected under order 7 rule 11 CPC. On merits the material averments of the plaintiffs case has been denied.
7 Vide order dt.18.8.2009 following preliminary issue was framed "Whether the suit is maintainable in view of objections taken in preliminary objection no.4 of the WS of defendant no.1 and 2?"
As the issue was related to the jurisdiction of the court and does not require any evidence, it was fixed for arguments.
8 I have heard the Ld.counsels for parties on preliminary issues and carefully gone through the record.
13 9 As per the averments of the plaint in para 2, it has been stated that Smt.Sant Ram was the owner of Quarter no.F100, Kingsway Camp, New Delhi. The possession of the said quarter was taken by MCD and in lieu thereof plot no.618 Dr.Mukerjee Nagar was alloted in favour of late Sh.Sant Ram. As per the case of MCD, the property stands in the name of late Sh.Sant Ram as assessee. As per the averments of the plaint, the suit property was a joint Hindu Family Property and the house was constructed out of the funds equally contributed by all the sons of late Sh.Sant Ram. The main case of the plaintiff is that as it was joint Hindu Family property and the will executed by late Sh.Sant Ram and Smt.Ram Lubai be declared as null and void. It is also prayed that decree passed by the probate court may be cancelled being nullity. The relief of permanent and mandatory injunction depends upon the merits of the case pertaining 14 to the relief of declaration.
10 It is not in dispute that in respect of the will executed by Smt.Ram Lubai a probate case was filed by Sh.Jeet Pal @ Jeet Lal and Sh.Mahender Lal by impleading as many as 8 respondents which includes the state, Sh.Hari Chand, Sh.Kishori Lal, Smt.Chunia Devi, Smt.Krishna Devi, Smt.Bimla Devi, Smt.Usha Devi and Smt.Ram Kaur. The probate was granted by the Ld.Trial Court. Sh.Hari Chand and Kishori Lal challenged the judgment of the Ld.Probate Court and their appeal was dismissed by the Hon.High Court in FAO no.254/07 vide order dt.23.7.07.
11 Ld.counsel for plaintiff submitted that probate court has no jurisdiction to go into the question of title, therefore, the question of 15 title and respective rights of the parties can be decided only by the Civil Court. It was contended that Civil Court has jurisdiction in the subject matter of the suit. In support of his contentions, Ld.counsel for plaintiff has cited Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon and Others AIR 2008 SC 306. It was held by the Hon.Supreme Court that, "Mere fact that probate of will was granted by competent court in respect of property Does not bar civil suit for declaration of title and permanent injunction in respect of self same property Probate Court is not competent to decide title or whether property was joint ancestral property". I have carefully gone through the judgment cited before me. There can not be any dispute to the legal proposition from any side. The facts before the Hon'ble Supreme Court in the above mentioned 16 case were that property was alleged as joint ancestral property and therefore, it was contended that the testator was not entitled and authorised to execute the will.
In the present case, the facts are entirely different. As per the averments of the plaint itself the suit property was handed over in possession of late Sh.Sant Ram by MCD and was alloted in his name in lieu of another quarter which was also in the name of Late Sh.Sant Ram. In order to built up the case, plaintiffs has stated that house over the suit plot was built up and the funds were contributed by all the son of late Sh.Sant Ram. Merely, by contributing some funds by the sons, a property already in the name of the father does not become a HUF property. On the other side if any property is acquired out of the funds of HUF property, the property becomes the HUF property. In order to claim the HUF and the right of partition 17 HUF should be in existance. As per the case of the plaintiffs, it was a joint Hindu Family property. But, as per the records and written statement of DDA and MCD, the suit property stands in the name of late Sh.Sant Ram exclusively and it was assessed for the purpose of House tax etc.in his name only. No where it is the case of the plaintiff that the HUF was ever formed. The concept of Hindu undivided family (HUF) is derived from the tax laws. Merely by contributing the funds by one or the other member of the family, it can not form the HUF. The fact of HUF has to be established from the records that the members of the family had consciously formed the HUF. Under Income tax Act, there are provisions for assessment of HUF and recording of partitions of HUF. There is nothing in plaint that suit property was ever assessed as HUF. Nothing has been placed on record that Hindu Undivided Family was ever formed. In 18 my opinion, merely by contributing the funds by the sons for constructions of house over plot exclusively owned by father, HUF can not be formed as claimed by the plaintiffs.
12 More over as framed by the plaintiff, the suit of the plaintiff depends firstly on, whether the probate granted by the Ld.Court may be cancelled? Secondly, depends on the declaration that it was a joint Hindu family property. There can not be any dispute to the legal proposition that probate court can only decide the question of validity and genuineness of will and can not go into the question of title. There can not be any dispute to the legal proposition that question of title may be decided by the Civil Court and the mere fact that probate has been granted by the court in respect of the suit property does not bar the jurisdiction of the Civil court. Every case 19 has its own facts and the law laid down by the superior courts in various judgments may be applied, if the ratio of the case is applicable in the facts and circumstances of a particular case. In the present case, as per the averments of the plaint itself the suit property was alloted and assessed by MCD the name of late Sh.Sant Ram.
13 Ld.counsel for defendant has pointed out Chiranjilal Sherilal Goenka Vs. Jasjit Singh and Others, (1993) 2 Supreme Court Cases 507. it was held in this case that, "The grant of a probate by court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It 20 binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the probate court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh V Rammandan Prasad Naryana Singh the Judicial Committee was to consider whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court excercising original jurisdiction (civil court) in suit to declare the grant of probate illegal etc. The Privy counsel held that the civil court has no jurisdiction to impugn the grant of probate by the 21 court of competent jurisdiction. In that case the suordinate court of Muzafarbad was held to have had no jurisdiction to question the validity of the probate granted by the Calcutta High Court. In Narbheram Jivram Purohit V.Jevallabh Harjivan probate was granted by the High Court excercising probate jurisdiction. A civil suit on the original side was filed seeking apart from questioning the probate, also other reliefs. The High Court held that when a probate was granted, it operates upon the whole estate and establishes the will from the death of the testator. Probate is conclusive evidence not only of the factum, but also of the validity of the will and after the probate has been granted, it is incumbent of a person who wants to have the will declared null and void, to have the probate revoked before proceedings further. That could be done only before the probate court and 22 not on the original side of the High Court. When a request was made to transfer the suit to the probate court, the learned Judge declined to grant the relief and stayed the proceeding on the original side. Thus it is conclusive that the court of probate to the will annexed to the petition in the manner prescribed under the Succession Act. That court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed will. It should keep the original will in its custody. The probate thus granted is conclusive unless it is revoked. It is a judgment in rem.
In M/s.Seemax Construction (P)Ltd. Vs. State Bank of India and another, AIR 1992 Delhi 197. It was held by the Hon.High Court of Delhi that, "The suppression of material fact by itself is a 23 sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. The court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the court".
It was submitted by Ld.counsel for defendants that plaintiffs has suppressed the material facts. It is stated that probate case bearing no.129/06 remained pending for about 12 years and plaintiff no.6 Smt.Ram Kaur the widow of late Sh.Attar Chand, mother in law of 24 plaintiff no.1 and defendant no.11 and grand mother of plaintiff no.2 to 5 and defendant no.12 to 14 and mother of defendant no.9 to 10 was a party in the said probate case as respondent no.8. The plaintiff no.6 Smt.Ram Kaur has also filed her reply and objections dt.3.12.96 duly signed by her in probate proceedings and was represented by her counsel Sh.V.C.Sharma, Adv. It is stated that plaint signed and verified by all the plaintiffs has disclosed that all the legal heirs of late Sh.Sant Ram and Smt.Ram Kaur were not impleaded as a party in a probate case. It was stated by Ld.counsel for defendants that suit is filed by the plaintiffs by pleading false averments contrary to the record and therefore, plaintiffs are not entitled for the discretionary relief of declaration and permanent injunction. Ld.counsel for defendants submitted that in view of Section 263 and 264 of Indian Succession Act 1925, this court has 25 no jurisdiction to cancell the probate granted by the competent court. 14 As per averments of the plaint, plaintiff has admitted that Sh.Sant Ram was owner and in possession of the suit property and no case has been made out that suit property was ancestral joint Hindu Family property or the HUF was ever formed. The mere allegations (without any substantial material) that by contributing the funds towards the construction of suit property, the property has become the joint Hindu Family Property can not help the cause of the plaintiffs. It is apparent on the face of the record that the present plaintiffs through their predecessor in interest were impleaded as party before the probate court and they filed objections. Still, the material facts has been suppressed while alleging that the legal heirs of late Sh.Sant Ram and Smt.Ram Lubai were not impleaded as 26 parties. In my view, the main relief claimed by the plaintiffs in respect of the cancellation of probate granted by the competent court is beyond the jurisdiction of this court.
15 The plaint has been drafted in a manner that the one relief claimed by the plaintiffs dependents on the grant of another relief. From the facts as woven in the plaint, the relief of declaration is dependent on the grant of relief for cancellation of probate granted by competent court, whereas the relief of partition and injunction is dependent on the relief of cancellation of probate and declaration. In view of the above discussions, the relief of cancellation of probate is beyond the jurisdiction of this court, whereas for the relief of declaration, substantial facts has not been disclosed in the plaint to establish the suit property as joint Hindu Family Property. The 27 averments pertaining to the claim of joint Hindu Family Property are not supported by the material facts and documents on record. Therefore, the relief of declaration can not be granted. Moreover, there is also a question that until the probate granted by the competent court is not set aside by the competent court itself, whether it is open for this court to go into the question of title as claimed in the plaint? Until the probate granted by the competent court is in force, if declaration is granted by this court as claimed by the plaintiffs, there will be two contradictory and conflicting judgments/decrees by two competent courts which is not desirable in the scheme of the law.
16 As per the plaintiffs case Sh.Sant Ram expired in 1984 leaving behind the will in favour of his wife Smt.Ram Lubai and then 28 Smt.Ram Lubai expired in 1991, leaving behind the will. It was within the knowledge of the plaintiffs or their predecessors in interest. But, they failed to claim the suit property as joint Hindu Family Property before the competent civil court at the earliest opportunity. They file the suit in the year 2008 after lapse of more than 18 years when the probate granted by competent court has reached to its fanality and has been acted upon by the parties including DDA and MCD. In the factual matrix, I am convinced that at the one hand the jurisdiction of this court is barred to cancel the probate granted by the competent court, On the other hand this court is bound to check the abuse of process of law.
17 With these findings, the issue is decided in favour of defendants and against the plaintiffs while holding that in view of the 29 objections taken in preliminary objection no.4 of written statement of defendant no.1 and 2, the jurisdiction of this court is barred in respect of the main reliefs claimed by the plaintiffs. Consequently the suit filed by the plaintiffs is hereby dismissed with cost. Decree sheet be prepared accordingly. File be consigned to R/R after due compliance.
(SANJEEV JAIN) Additional District Judge:Delhi (Central District) Announced in open court on 04.09.09 30