Delhi District Court
Satvinder Singh vs Joginder Singh & Ors on 29 September, 2014
IN THE COURT OF SH. RAJ KUMAR : ADJ-17 : THC : DELHI.
CS No. 525/14
Satvinder Singh. .........Plaintiff.
Vs.
Joginder Singh & Ors. .......Defendants.
ORDER
Vide this order, I shall dispose of an application U/o 7 Rule 10 & 11 of the CPC filed by the defendants no. 1 to 3 in the present suit.
2. The defendants, in the said application, have stated that the plaintiffs have valued the present suit for the purposes of jurisdiction at Rs. 15 Lacs. It has been further stated that the plaintiffs have valued the present suit for the purposes of the court fees at Rs. 200/- only. It has been further stated that one more suit bearing no. 374/11 filed by the plaintiffs herein is pending disposal before the Court of Sh. Rajesh Kumar Singh, Ld. ADJ, Tis Hazari Courts, Delhi, which is a suit for Declaration, Cancellation and Permanent Injunction. It has been further stated that the plaintiffs, in that suit, have amended the valuation clause and have valued the suit property at Rs. 20 Lacs. It has been further stated that the present suit has not been valued properly and this Court does not have Page no. 1 / 14 any jurisdiction to entertain and try the present suit. It has been further stated that the present suit is also hit by the law of limitation. It has been further stated that the Hon'ble High Court of Delhi has held in a number of judgments that the decision of a Probate Court is a judgment in rem and the probate granted by the competent Court is conclusive of the validity of such a Will until and unless it is revoked. It has been further stated that the plaintiffs were well aware about the probate granted in favour of the defendants no. 1 to 3 and as such, the present suit for partition does not lie. It has been prayed that the suit of the plaintiffs be rejected with costs.
3. Ld. Counsel for the defendants has relied upon the following judgments :
i) 196 (2013) DLT 7 (CN) titled as Puran Chand Oberoi vs. Jitender Oberoi & Ors. wherein, it has been held as under :
"Suit for Partition - Not maintainable - Self- acquired properties in the hands of plaintiff's father, who died leaving behind a Will in which plaintiff had not been given any share in properties - Suit for partition will not lie and wholly misconceived - As per Will, defendant No. 1 has been bequeathed the properties by father (deceased) to exclusion of plaintiff, who cannot ask for partition."
ii) 200 (2013) DLT 527 titled as Raj Kumar Devraj & Anr. vs. Page no. 2 / 14 Jai Mahal Hotels Pvt. Ltd. wherein, it has been held as under :
"(iv) Probate Proceedings - Judgment pronounced in a probate proceedings is a judgment in rem - It is binding on world at large."
(iii) 173 (2010) DLT 549 titled as Ram Dass, Chela of Late Mahant Net Ram vs. Thakurdwara Radha Krishan (Regd. Soc.) wherein, it has been held as under :
"(iii) Succession - Probate - Decision of a Probate Court is a judgment in rem - A probate granted by the competent Court is conclusive of the validity of such a Will until it is revoked; no evidence can be admitted to impeach it except the proceedings demanding revocation of the Will."
iv) 202 (2013) DLT 23B (CN) titled as Anita Kumari Gupta vs. Ved Bhushan & Ors. wherein, it has been held as under :
"Civil Procedure Code, 1908 - Order 7 Rule 11, Order 39 Rules 1, 2 - Rejection of plaint - Suit for partition, permanent injunction, damages and costs - Delay and laches - Plaintiff suppressed material facts of her agreeing to mutation of suit property in favour of defendant nos. 1 to 4 - DDA has not restored to any fabrication - Files not tampered - No averment in plaint that plaintiff was asked Page no. 3 / 14 to sign blank papers - Plaintiff has no satisfactory explanation as to what she was doing All these years after death of her mother and mutation carried in favour of defendant Nos. 1 to 4 admittedly to her knowledge- Plaintiff has not come to court with clean hands and suppressed material fact of mutation in favour of defendant Nos. 1 to 4 - Plaint does not disclose any cause of action giving rise to any reliefs as prayed for by plaintiff.
v) 204 (2013) Delhi Law Times 7B ( CN) titled as Iqbal Singh Arora & anr Vs. Amit Singh Arora & ors wherein, it has been held that:
"(i) Civil Procedure Code, 1908 - Order 7 Rule 11(d) - Limitation Act, 1963 - Articles 56, 59, 60 -
Rejection of plaint- Barred by limitation- Suit for declaration that Will was null and void ab initio- Limitation period is 3 years- suit filed after about 5 years of death of their father was barred by limitation and rightly held so by trial court- After death of their father defendant No. 1 started claiming himself to be sole legate in respect of estates left behind by his father on basis of Will in question and appellants came to know about it upon death of their father-Impugned order upheld.
(ii) Civil Procedure Code, 1908 - Order 7 Rule 11(d)
- Rejection of Plaint- Scope and ambit of provision- Court can exercise power under order 7 rule 11 (d) of CPC at any Page no. 4 / 14 state of suit before registering plaint or after issuing summons to defendant at any time before conclusion of trial- Order 7 rule 11 (d) , CPC mandates rejection of plaint if suit on face of it barred by any law."
vi) 188 ( 2012) Delhi Law Times 9 titled as Zahoor Ahmed Vs. Rakhi Gupta and others, wherein, it has been held that:
"Civil Procedure Code, 1908 - Order 7 Rule 10 - Return of Plaint-Jurisdiction-Partition suit- Valuation- Payment of Court fee-Determination-Valuation for the purposes of jurisdiction has to be the value of whole of the property which is subject matter of partition whereas valuation for the purpose of court fee would be such as provided under Court Fee Act- Plaintiff is not in possession of suit property and claiming 1/7th share by virtue of partition- Valuation has to be entire value of suit property- Plaint returned to be filed in court of competent authority.
3. Reliance by the learned Counsel for the petitioner has been placed upon a judgment of this court reported in 44 ( 1991) DLT 528 titled as Ramesh Chand Bhardwaja Vs. R.P. Sharma, as also another judgment of Bench of this court in CS ( OS) No. 2546/2010 titled as Anu Vs. Suresh Verma, delivered on 12-07-2011. There is no doubt that valuation for the purpose of jurisdiction has to be the value of the whole of the property which is the subject matter of Page no. 5 / 14 partition whereas the valuation for the purposes of court fee would be such as provided under the Court Fee Act. Since the plaintiff is not in possession of the suit property and she is claiming 1/7th share in the suit property by virtue of said partition admittedly, she has to pay court fee for her share in the suit property and valuation for the purpose of jurisdiction has to be the entire value of the suit property which is more than Rs. 60 lacs and as such in terms of order 7 rule 10 of the Code, the plaint has to be returned to the plaintiff; plaint be returned to be filed in the court of competent authority by following the procedure of the order 7 rule 10A of the Code."
vii) 187 (2012) Delhi Law Times 370 (DB) titled as Ram Chander Aggarwal and B.P. Aggarwal Vs. UOI and others wherein, it has been held that:
"(i) Re-litigation - Is an abuse of process of court-
Party cannot be permitted to re-litigate the issue which has been tried and decided earlier against them. "
4. In the reply to the said application filed by the plaintiffs, the plaintiffs have admitted that the value of the property for the purposes of the jurisdiction has been fixed at Rs. 15 Lacs, but the plaintiffs have denied that they are not in possession of the suit property. The plaintiffs have taken the stand that they are in the joint possession of the property Page no. 6 / 14 in question. The plaintiffs have admitted the pendency of the suit before the Court of Sh. Rajesh Kumar Singh, Ld. ADJ, Tis Hazari Courts, Delhi, but the plaintiffs have taken the stand that the subject matter of that suit is different from the subject matter of the present suit. It has been further stated that the suit bearing no. 374/11 has been filed for Cancellation of the Mutation granted in favour of the issueless lady Smt. Harbans Kaur and execution of the sale deed in favour of all the LRs of deceased Sujan Singh. It has been further stated that the applicants have declared the value of the property on the basis of which, the present application has been filed. It has been further stated that the applicants have obtained a probate on the basis of a false Will of Smt. Harbans Kaur. It has been further stated that no probate has been granted to the Will of late Sh. Sujan Singh and Sh. Sujan Singh did not leave behind any Will. It has been further stated that the mutation has been granted to some other relative, who was not the wife of late Sh. Sujan Singh and late Sh. Sujan Singh was having sons and daughter, who are the parties to the present suit. It has been prayed that the application filed by the applicants/ defendants no. 1 to 3 be dismissed.
5. I have carefully gone through the entire material available on record and heard the rival submissions of both the Ld. Counsels for the Page no. 7 / 14 parties.
6. Before discussing the present application on merits, it becomes imperative to have a glance at the pleadings of the parties as contained in the present suit for partition of property bearing no. 2/361, Subhash Nagar, New Delhi.
7. The plaintiffs have filed the present suit for Partition of the said property bearing no. 2/361, Subhash Nagar, Delhi on the ground that they are the legal heirs of late Sh. Prit Pal Singh, who was one of the son of late Sh. Sujan Singh. It has been further stated that the defendants are the other legal heirs of late Sh. Sujan Singh. It has been further stated that Sh. Sujan Singh expired on 27.01.1983 leaving behind the property bearing no. 2/361, Subhash Nagar, Delhi measuring 190 sq. yards, which was duly registered in the name of Sh. Sujan Singh at Sr. no. 927, Additional Book No. I, Volume No. 2625, on pages 105 to 107 dated 07.04.1976. It has been further stated that the deceased Sh. Sujan Singh did not leave behind any Will. It has been further stated that the said property is managed jointly by the parties to the present suit and the said property has not been partitioned so far. It has been further stated that the defendant no. 1 alongwith the defendants no. 2 and 3 had forged the Will of Smt. Harbans Kaur and declared her to be the owner of the Page no. 8 / 14 property bearing no. 2/361, Subhash Nagar, Delhi measuring 312 sq. yards. It has been further stated that the actual property is in the name of Sh. Sujan Singh and the same is measuring 190 sq. yards. It has been further stated that the cause of action arose in favour of the plaintiffs when the defendant no. 1 filed a petition for grant of a probate against the other LRs, but did not include the legal heirs of Sardar Prit Pal Singh in the petition for grant of a probate.
8. The defendants no. 1 to 3 have filed the written statement to the abovesaid plaint as filed by the plaintiffs categorically stating therein that the present suit is barred by Section 10 of the CPC because of the pendency of the Probate Petition in respect of the Will dated 01.03.1995 executed by Smt. Harbans Kaur, who expired on 27.11.1997. The said defendants further took the stand that the plaintiff no. 5, who was legal heir of late Smt. Harbans Kaur was added as one of the plaintiffs in the said petition, but the plaintiffs no. 1 to 4 herein were not the legal heirs and as such, they were not added as a party. Various other objections have been taken by the said defendants in the written statement. The defendants have denied that the Will of late Smt. Harbans Kaur was forged and fabricated. The defendants in the written statement have reiterated their stand that the exact measurement of the property was 312 Page no. 9 / 14 sq. yards and the plaintiffs were misleading this Court on this issue.
9. Copy of the orders dated 15.05.2009 in the Probate Petition, which was instituted by the defendants no. 1 to 3 herein in respect of the Will dated 01.03.1995 left behind by late Smt. Harbans Kaur is there on record. Perusal of the said orders reveals that the plaintiffs herein have been arrayed as the legal heirs of the deceased respondent no. 5 in the said Probate Petition. All the plaintiffs have been arrayed as the respondents in that Probate Petition. Copy of the orders dated 25.07.2007 passed by the then Ld. ADJ, Delhi presiding over the said Probate Court are there on record which categorically reveals that all the sons and daughter of Sh. Prit Pal Singh, who are the plaintiffs in the present suit were added as the legal heirs of the deceased respondent no. 5 in that Probate Petition. Perusal of the said orders dated 15.05.2009 clearly reveals that the Letters of Administration with respect to the Will dated 01.03.1995 executed by Smt. Harbans Kaur were directed to be issued in favour of the petitioners therein, who are the defendants no. 1 to 3 herein. The Ld. ADJ, in the Probate Petition, has described the property at internal page no. 5 of the said orders as property no. 2/361, Subhash Nagar, New Delhi, which was registered at Sr. No. 927, Addl. Book No. 1, Volume 2625 on pages 105 to 108 dated Page no. 10 / 14 07.06.1976. As such, going by the description as contained in the present suit for partition of the property in question and going by the description as contained in the said Probate Petition, to my mind, it is apparently clear that the property is one and the same. The measurement of the property has been disputed, but this Court cannot loose sight of the fact that the property is bearing the same municipal no. 2/361, Subhash Nagar, New Delhi. Even the registration number, which has been mentioned by the plaintiffs in the present suit i.e. bearing registration at Sr. No. 927, Addl. Book No. 1, Volume no. 2625 is also the same. As such, I am of the opinion that one thing is crystal clear that the property, which is the subject matter of the present suit was also the subject matter of the Probate Petition.
10. Perusal of the paras no. 9 and 10 of the said orders dated 15.05.2009 clearly reveals that the plaintiffs herein were added as respondents, when an application U/o 1 Rule 10 of the CPC was allowed by the Ld. Probate Court. The plaintiffs herein, who were the LRs of the deceased respondent no. 5 in that Probate Petition had filed their objections dated 11.09.2007 on the ground that the said property bearing no. 2/361, Subhash Nagar, New Delhi was not registered in the name of Smt. Harbans Kaur and she was not having any right, title or interest in Page no. 11 / 14 the said property and the said property was, in fact, in the name of Sh. Sujan Singh, who died intestate and the legal heirs of the respondent no. 5 had share in that property.
11. If the abovesaid stand of the legal heirs of the deceased respondent no. 5 as contained in the Probate Petition is carefully gone through, it becomes evidently clear that their stand was verbatim the same as is the stand of the plaintiffs in the present suit for Partition. Ld. Probate Court, after considering the abovesaid objections of the plaintiffs herein, granted the Probate vide orders dated 15.05.2009 in favour of the defendant no. 1 to 3 herein. Going by the abovesaid authorities relied upon by the Ld. Counsel for the defendants no. 1 to 3, it is apparently clear that the decision of a Probate Court is a judgment in rem and a probate granted by the competent Court is conclusive of the validity of such a Will until it is revoked and no evidence can be admitted to impeach it except the proceedings demanding revocation of the Will.
12. As such, I have no hesitation to hold that in the light of the abovesaid orders dated 15.05.2009, the present suit for Partition at the hands of the plaintiffs does not lie and the plaintiffs do not have any cause of action in their favour to file the present suit for partition of the property in respect of which the Letters of Administration have already Page no. 12 / 14 been granted by the Ld. Probate Court vide orders dated 15.05.2009 in favour of the defendants no. 1 to 3. The plaintiffs themselves have taken the stand that the cause of action for filing the present suit arose when the Probate Petition was filed by the defendants herein, but the legal heirs of Sardar Prit Pal Singh were not added as a party in the Probate Petition. It has already been observed that all the legal heirs of Sardar Prit Pal Singh were the parties in the Probate Petition and as such, the cause of action does not survive in favour of the plaintiffs.
13. Ld. Counsel for the defendants no. 1 to 3 has raised the further objection with respect to the valuation aspect of the present suit. It has to be seen that the issues in the present suit were framed by the Ld. Predecessor of this Court on 06.01.2011. Issue no. 3 has been framed on the valuation aspect of the matter. The present suit was already at the stage of PE, when the defendants no. 1 to 3 preferred to file on record the present application. As such, I am of the opinion that the valuation aspect of the present matter cannot be decided at this stage as an issue stand already framed on this aspect of the matter.
14. In the light of the abovesaid discussion, I hereby reject the plaint of the plaintiffs U/o 7 Rule 11 of the CPC because the plaintiffs do not have any cause of action in their favour to file the present suit. Page no. 13 / 14
File be consigned to Record Room after due compliance.
Announced in the open (RAJ KUMAR) Court today i.e. 29.09.2014. ADJ-17 (Central), THC, Delhi Page no. 14 / 14