Delhi District Court
Jasbir Kumar vs Kanchan Kaur & Ors on 18 February, 2012
"In the court of Sh. V.K Yadav, ADJ-02 (North), Tis Hazari Courts, Delhi"
CS No. 21/12
Jasbir Kumar
........ Plaintiff
Versus
Kanchan Kaur & Ors
........ Defendants
ORDER
1. It is contended on behalf of the plaintiff that the defendants are required to be restrained from creating any third party interest in respect of the suit property bearing no. 7/2 and 7/3/C measuring 42 sq. yrds. in village Sindhora Kalan, also known as Sanjay Nagar, Delhi inasmuch as the plaintiff too has a right in the property by virtue of the Will of his late father Sh. Himmat Singh, dated 07.03.1980.
2. The indispensable facts which are relevant for the disposal of the application, as set up by the parties, are that the plaintiff and defendant no. 1, 2 and 3 are part of the same family. The father of the plaintiff and defendant no. 2 Himmat SIingh died on 12.06.1991, who had executed the Will on 07.03.1980, which was got registered as well the defendant no. 1 Smt. Kanchan Kaur, wife of Sh. Himmat Singh testator was made the executor in the Will as well as a beneficiary after the death of the testator Himmat Singh. It was also provided in the Will that the two sons of Himmat Singh i.e Plaintiff and defendant no. 2 shall share the CS No. 21/12 Page 1 of 6 properties under the Will equally after the death of their mother i.e defendant no. 1.
3. The grudge of the plaintiff is that the defendant has persuaded the defendant no. 2 to execute a Gift Deed in respect of the property in question in favour of defendant no. 3, wife of defendant no. 2 who inturn is in the process of selling the same, which the plaintiff came to know through the local property dealers. In fact, the Sale Deed, which was being contemplated by the defendant no. 3 was executed in favour of defendant no. 4 herein thereby frustrating the earlier suit filed by the plaintiff, which was withdrawn by him, with the liberty to file a fresh suit.
4. Against the backdrop of above facts and circumstances, the instant suit for declaration, possession, permanent injunction and for mandatory injunction was filed and an application under disposal was moved alongwith the same.
5. The defendants on the other hand while contesting the application submitted that the plaintiff has no right in the property left behind by Sh. Himmat Singh primarily for the reason that the Will, on the strength of which, the plaintiff is claiming his rights and seeking that the Gift Deed and the Sale Deed be declared null and void, does not conferr any right over the plaintiff. It is submitted that the defendant no. 1 i.e the wife of the testator Late Himmat Singh had become the absolute owner of the property in question after the death of Sh. Himmat Singh and she has chosen to gift away the same to her daughter in law i.e Defendant no. 3. The defendant no. 1 Kanchan Kaur had absolute and unbridled right to do what ever she wanted to do with the property being the absolute owner, CS No. 21/12 Page 2 of 6 therefore, no flaw can be attributed into the Gift Deed and the right of defendant no. 3 to further transact about the property . Defendant no. 3 has since become the owner of the property in question by virtue of the Gift Deed in her favour, therefore, she too has absolute and unqualified rights over the property and the Sale Deed, cancellation of which has been sought, is the outcome of the exercise of such rights over the property by defendant no. 3, thus, perfectly legal and valid and cannot be challenged or done away with.
6. Besides, the above factual aspects, certain legal objections have also been taken on behalf of the defendants primarily regarding valuation of the suit and that the suit being bad for mis joinder and non joinder of the parties, being barred by u/s 11 of CPC by virtue of operation of doctrine of resjudicata etc.
7. The counsel for plaintiff did not chose to file rejoinder / replication and chose to argue the application though reserved his right to file the replication later.
8. I have considered the submissions made by the Ld. Counsels for the parties and have gone through the record as well.
9. The plaintiff has primarily based his case on the Will executed by his late father Sh. Himmat Singh dated 07.03.1980, which is a registered document and has asserted that the mother of the parties i.e defendant no. 1 had no right to transfer or alienate the property in question to anyone inasmuch as the father of the plaintiff and husband of defendant no. 1 had clearly provided that the properties left behind by him shall go to his two sons, who would share them equally i.e the plaintiff and defendant no. 2 CS No. 21/12 Page 3 of 6 herein. Rather it is contended that neither the Gift Deed nor the Sale Deed thereafter could have come into existence to the detriment of the right of the plaintiff and that is the reason why declaration qua these two documents have been sought by the plaintiff. However, the relief in the application under disposal is confined with regard to the creation of third party interest in the suit property only.
10. The counsels for defendants while contesting the claim of the plaintiff have relied upon the judgment in Mauleshwar Mani and Ors Vs. Jagdish Prasad and Ors AIR2002SC727 wherein three questions arose before the court for consideration which are whether under the Will Jamuna Prasad bequeathed an absolute estate in favour of his second wife Smt. Sona Devi or restricted right; Whether the subsequent bequeath in the Will in favour of the sons of the daughters of Jamuna Prasad is invalid if it is found that Jamuna Prasad bequeathed an absolute interest in the property in favour of his second wife Smt. Sona Devi ; and whether all the sons of all the daughters of Jamuna Prasad would inherit under the Act, if it is found that Jamuna Prasad bequeathed an absolute estate in favour of his second wife Smt. Sona Devi. while taking into account the ratio of the judgment in Radha Sundar Dutta Vs. Mohd. Jahadur Rahim [1959]1SCR1309, the Hon'ble Court deduced the following legal principles where under a Will, a testator has bequeathed his an absolute interest in the property in favour of his wife any subsequent bequeath which is repugnant to the first bequeath would be invalid; and where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same Will. Thus, it is apparent that where the testator bequeaths his absolute CS No. 21/12 Page 4 of 6 interest in the property in favour of one person, the subsequent bequeathal is not proper and legal, unless the initial bequeathal was a restricted or limited right.
11. The above referred principles, when applied to the facts of the instant case, it emerges that the ratio of the judgment as sought and argued by the defendant to be applicable is not the case rather it goes against the defendants themselves and supports the cause of the plaintiff. The Will in question that is the one dated 07.03.1980, in its last paragraph makes clear that the movable and immovable property which may be left behind by Himmat Singh, the testator, would go to his wife Smt. Kanchan Kaur and thereafter upon her death, the property(s) shall go to the plaintiff and defendant no. 2 herein that is the son's of the testator in equal share. Smt. Kanchan Kaur has not been given absolute right in the properties by her husband, which can be inferred from the bare reading of the Will. She has been named as the executor of the Will, which further indicates the limited and restricted rights in her favour. In this context, para 6, 7, 8 and 9 of the judgment relied upon by the counsel for defendant no. 4 in Mauleshwar Mani and Ors Vs. Jagdish Prasad and Ors AIR2002SC727 clarify the mist around the absolute and restricted rights though refers to the fact of Radha Sundar Dutta case (Supra). Para no. 7, of the judgment in Mauleshwar Mani's case (Supra) contains some part of the Will, which was there in Hindi, and the relevant portion of the Will has been translated into English as given in Para no. 8 of the same judgment, which clearly provides that the wife of the testator was entitled to the entire assets and properties with the ''Right to Transfer'' and after the death of Sona Devi............................. It is clear that specific right to transfer was given to Smt. Sona Devi in the Will executed by her CS No. 21/12 Page 5 of 6 late husband, whereas no such right has been conferred upon the defendant no. 1 in the Will dated 07.03.1980. Thus, it is apparent that she had limited and restricted rights or say lifetime interest only in the property(s) and as such, it appears that she was not capable to gift away the property to defendant no. 3 and as such the subsequent rights if any flowing from the gift deed also come under cloud. Apparently, there is a prima facie case in favour of the plaintiff and the other two factors of balance of convenience and a irreparable loss also appears to be in support of the cause of the plaintiff.
12. Therefore, in view of the foregoing discussion, in order to preserve the subject matter of the suit and to avoid multiplicity of litigation, the defendants are hereby restrained from creating any third party interest in the suit property till the disposal of the suit. The application as such being maintainable is accordingly allowed.
13. Nothing stated herein above shall tantamount to any expression on the merits of the case.
Announced in the open court today i.e 18.02.2012 Vimal Kumar Yadav ADJ-02 (North) 18.02.2012 CS No. 21/12 Page 6 of 6 CS No. 21/12 18.02.2012 Present : None Vide separate order dictated and announced, the application u/o 39 rule 1 and 2 CPC filed on behalf of the plaintiff is allowed.
List on 07.05.2012 for filing replication, A/D of documents and for framing of issues.
Vimal Kumar Yadav Adj-02(North) 18.02.2012 CS No. 21/12 Page 7 of 6