Delhi District Court
Pawan Johar vs . Rajinder Khanna & Others on 31 August, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI
CS DJ NO. 720/2017
PAWAN JOHAR VS. RAJINDER KHANNA & OTHERS
Sh. Pavan Johar
Coparcener and SPA Karta,
M/s Inderjit Johar & Sons, HUF
S/o Late Sh. Inderjit Johar
D-69, Defence Colony,
New Delhi - 110024 .......... Plaintiff
Versus
1. Sh. Rajinder Khanna
D-2, Greater Kailash Enclave-II,
LGF, New Delhi
2. Sh. Alok Khanna
A-127, Defence Colony,
New Delhi - 110024
Also at:
D-2, LGF Greater Kailash Enclave-II,
New Delhi
3. Smt. Alka Sethi
D-2, Greater Kailash Enclave-II,
LGF, New Delhi
4. Sh. Khadka Bahadur Khatri/Rajan
S/o Unknown
D-69, 2nd Floor, Defence Colony,
New Delhi - 110024
5. Smt. Jamuna W/o Sh. Khadka Bahadur Khatri
D-69, 2nd Floor, Defence Colony,
New Delhi - 110024
6. Ms. Babita D/o Sh. Khadka Bahadur Khatri
D-69, 2nd Floor, Defence Colony,
New Delhi - 110024 .......... Defendants
CS DJ NO. 720/2017 Page No. 1 of 40
PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
Date of Institution of suit: 06.05.2017
Date of Filing of Application: 19.03.2019
Date of Order: 31.08.2021
ORDER:
1. An application under Order 7 Rule 11 read with Section 151 CPC dated 19.03.2019 has been filed on behalf of the defendant No. 2 Sh. Alok Khanna for rejection of the suit for Possession, Damages, Injunction and Cancellation of three Wills filed by the plaintiff.
2. The case of the plaintiff is that Late Sh. Inderjeet Singh Johar was born on 10.02.1911 in Rawal Pindi, Pakistan from the wedlock of Sh. Rai Sahab Ishwar Dass Johar and Smt. Shiv Devi. In the year 1938 Sh. Inderjeet Johar got married to Smt. Raj Johar and from their wedlock son Sh. Ramesh Johar and daughter Smt. Kadambari Johar (of whom defendants No. 1 is the husband & 2 & 3 are the son and daughter/legal heirs), were born on 12.06.1941 and 03.07.1944 respectively. The third son i.e. plaintiff Sh. Pavan Johar was born on 28.10.1948 after the family shifted to India. Due to the partition in the year 1947, Sh. Rai Sahab Ishwar Dass Johar along with his family came to India and within one year he left for his heavenly abode. Sh. Rai Sahab Ishwar Dass Johar was Karta of Joint Hindu Family property left behind in Pakistan. Sh. Inderjeet Singh Johar filed a claim in lieu of the property left in Pakistan. The affidavit dated 28.06.1956 was filed on which reliance has been placed. Sh. Inderjeet Singh Johar was allotted 3 SA, acres 6-3/4 units of land in Village Sheikhan Pur, Tehsil and District Karnal, the physical CS DJ NO. 720/2017 Page No. 2 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS possession of which was eventually delivered to him. In the year 1960 Sh. Inderjeet Singh Johar was also allotted vide letter of allotment dated 15.03.1962 Plot No. D-69, Kilokari (now Defence Colony measuring 325 square yards), New Delhi against his claim for ancestral property that was left in Pakistan and registered Perpetual Lease Deed for a period of 99 years was executed in favour of Sh. Inderjeet Singh Johar on the same day. Sh. Inderjeet Singh Johar died in Netherland on duty on 06.04.1962 and after his demise the property at D-69, Defence Colony, New Delhi and the agricultural land in Karnal, both continued to be treated as HUF properties having been purchased by Late Sh. Inderjeet Singh Johar from the proceeds of the claim against the ancestral properties left behind in Pakistan. Plot No. D-69, Defence Colony, New Delhi was constructed in the year 1964 with the balance of the proceeds of the claim of Sh. Inderjeet Singh Johar that were left. The two properties are in the name of HUF as can be taken out from various Income Tax Returns and documents received from the Income Tax Department.
3. After the demise of Sh. Inderjeet Singh Johar, Smt. Raj Johar, his wife along with her three children continued to live in smaller house and property in question D-69, Defence Colony, New Delhi was given on rent to be able to get the expenses of the family. It is further submitted that in the year 1968 the agricultural land at Karnal, which was owned by Inderjeet Singh Johar & Sons, HUF was sold and money was utilised for meeting the expenses of marriage of daughter Smt. Kadambri Johar with the defendant No. 1. The 900 CS DJ NO. 720/2017 Page No. 3 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS square meters of land in Bhopal which was purchased by Sh. Inderjeet Singh Johar from his own separate funds was also sold to meet the marriage expenses. Defendant No. 2 Sh. Alok Khanna and defendant No. 3 Smt. Alka Sethi were born from the wedlock of Smt. Kadambri Khanna and defendant No. 1 Sh. Rajender Khanna.
4. In 1970 Sh. Ramesh Johar married Smt. Mahjabeen and since then plaintiff along with his brother and mother shifted to the ground floor of the property in question. The 1 st floor continued to be on rent while the possession of the 2 nd floor, which is the suit property, was retained. In 1978 plaintiff Sh. Pavan Johar got married to Smt. Amita Johar and they both shifted to USA. Sh. Ramesh Johar had also moved to Dubai in April, 1984 and thereafter to Canada. Although, Sh. Ramesh Johar and Sh. Pavan Johar shifted abroad but they continued to maintain their residence at D-69, Defence Colony, New Delhi as they periodically came to New Delhi to stay with their mother as a Hindu Undivided Family.
5. Smt. Kadambri Khanna along with her husband and children was residing in the tenanted premises bearing No. A-167, Defence Colony, New Delhi from where they were evicted and on her request she was permitted by her mother Smt. Raj Johar to live on the 2 nd floor together with roof of Property No. D-69, Defence Colony, New Delhi hereinafter referred to as "suit property" for a period of few months as her own house in Sarita Vihar, New Delhi was under renovation. While residing in the suit property along with the defendants No. 1 to 3, she got some blank papers signed from Smt. Raj Johar in CS DJ NO. 720/2017 Page No. 4 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS order to grab the suit property as the two sons were living abroad.
6. On 20.06.2002 the property in question was got converted into freehold for which the Conveyance Deed was executed. Though, the property in question was HUF property but because the Conveyance Deed was being executed between the President of India and Smt. Raj Johar and since the HUF property can be registered in the name of any member of HUF and Smt. Raj Johar being the member of HUF, the property was registered in her name vide Conveyance Deed dated 20.06.2002. Smt. Raj Johar died on 11.05.2003 and after her death Smt. Kadambri Khanna shifted to the house of her son at Greater Kailash Enclave-II, New Delhi. It is asserted that while residing in the suit property without the knowledge and permission of Smt. Raj Johar or Karta of Inderjeet Singh Johar & Sons, HUF she retained the duplicate keys of the 2nd floor and retained the possession with her.
7. In August-September, 2003 plaintiff came to know from his elder brother Sh. Rakesh Johar that there were three Wills dated 14.05.1997, 05.08.2002 and 29.01.2003 executed by Smt. Raj Johar. The Wills are contradictory to each other and in the Will dated 14.05.1997 it was mentioned by Smt. Raj Johar that Smt. Kadambri Khanna has got signed some blank papers singed from her and the use of same in any manner would be wholly without any authority. The other two Wills have been forged and fabricated by Smt. Kadambri Khanna. It is asserted that the last two Wills were neither registered nor spoken about at any time prior to the death of Smt. Raj Johar CS DJ NO. 720/2017 Page No. 5 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS during her lifetime. In both the last Wills it has been correctly acknowledged that the property D-89, Defence Colony, New Delhi is HUF property. However, her statement that she left her entire share in the HUF property to Smt. Kadambri Khanna has no merit since Smt. Raj Johar was a lady member and not a coparcener.
8. Section 30 of the Hindu Succession Act, 1956 as applicable in 2003 gives right only to a coparcener or male member (now amended in 2005 to "any Hindu") to write a Will in regard to any portion of the HUF property. Smt. Raj Johar not being a coparcener but only a member of HUF had no right to Will her share in HUF in favour of Smt. Kadambri Khanna. It was asserted that after the death of Smt. Raj Johar, the plaintiff and his brother have been asking Smt. Kadambri Khanna to handover the vacant possession but she has failed to do so. She suffered from medical complications and died on 30.11.2016 and since last three years some servants i.e. Defendants No. 4, 5 and 6, who have been residing in the property in question, have illegally obstructed and blocked the passage of free entry of the plaintiff and his brother to their water tanks at the roof top of the suit property. It is claimed that the defendants No. 1 to 3 have illegally trespassed and have no right to continue in the property. They have failed to vacate the same despite service of Legal Notice dated 20.02.2017. Hence, the suit has been filed for claiming possession of the 2 nd floor of the property in question. Aside from claiming possession, plaintiff has sought a decree of permanent injunction for restraining the CS DJ NO. 720/2017 Page No. 6 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS defendants from creating any third party interest. Damages have also been claimed in the sum of Rs. 60,000/- per month w.e.f. 26.04.2014 till 25.04.2017 @ Rs. 5,000/- per day, totalling Rs. 21,60,000/-, thereafter till the date of handing over of the possession along with interest @ 24% per annum. A Prayer has also been made for declaration and cancellation of the Wills dated 14.05.1997, 05.08.2002 and 29.01.2003.
9. Defendant No. 2 has claimed in the application under O7 R11 that daughter i.e. Smt. Kadambri Khanna was alive on 09.09.2005 when Hindu Succession Act was amended. The daughter is a coparcener in terms of Section 6 of the Hindu Succession (Amendment) Act. It is a settled proposition of law that relief of possession cannot be sought against the co-owner. The present suit for possession against the defendants No. 1 to 3 who are co-owners, is not maintainable.
10.It is further submitted that Smt. Kadambri Khanna died on 30.11.2016 and upon her death by way of natural and intestate succession right, title or interest in the HUF property devolved upon the defendants No. 1 to 3. Assuming though not admitting, upon the death of Smt. Kadambri Khanna, the HUF stood disrupted, her legal heirs collectively became entitled to 1/3rd of the share in the property in question which is owned by Sh. Inderjeet Singh (HUF). The plaint is therefore liable to be rejected along with the cost.
11.Plaintiff in his reply to the application took the preliminary objections that Hon'ble Supreme Court of India in Prakash & Others vs. Phulavati & Others in Civil Appeal CS DJ NO. 720/2017 Page No. 7 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS No. 7217/2013 has held that rights of a daughter as amended in 2005 under Section 6 of the Hindu Succession Act, 1956, would be applicable to living daughters of living coparcener as on 09.09.2005 irrespective of when such daughters are born.
12.Sh. Inderjeet Singh, father of Smt. Kadambri Khanna from whom the defendants are deriving their title had died on 06.04.1962. Smt. Kadambri Khanna, mother of the defendant No. 2 would not get the status of coparcener in Inderjeet Singh Johar & Sons (HUF) by virtue of amendment of the said Act. Therefore, Smt. Kadambri Khanna did not have any right in the suit property nor would any other defendants have any right through her.
13.It is further claimed by the plaintiff that defendant No. 2 himself has no right in the suit property as his mother Smt. Kadambri Khanna and his grandmother Smt. Raj Johar both had no right or ownership in the suit property as they were only the family members of the HUF. Only the male members i.e. plaintiff and his brother were the coparceners and had a right in the suit property. The application of defendant No. 2 is therefore liable to be rejected.
14.It is further submitted that the grounds taken by the defendant No. 2 in his application are mixed question of fact and law and cannot be decided at this stage in relation to the plaint alone. The written statement, framing of issues and evidence of both the parties are very much essential for the disposal of the suit and cannot be rejected under Order 7 Rule 11 CPC.
CS DJ NO. 720/2017 Page No. 8 of 40PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
15.It is further claimed that the defendant No. 2 had purchased his own apartment in Greater Kailash Enclave-II, New Delhi thereafter and shifted in Panchsheel Park, New Delhi and then to D-385, Defence Colony, New Delhi and then went to Indian Institute of Management, Bangalore and once in Tihar Jail. He has ceased to live in the suit property altogether since prior to the death of Sh. Rajender Khanna. Defendant No. 1 Sh. Rajender Khanna is last known to be residing at D-2, LGF, Greater Kailash Enclave-II, New Delhi, the property owned by the defendant No. 2. Defendant No. 2 has never been in actual possession of the 2nd floor of D-69, Defence Colony, New Delhi i.e. the suit property ever since he moved out much before the death of Smt. Raj Johar. The application under Order 7 Rule 11 CPC is therefore not maintainable.
16.On merits, all the averments made in the application are denied. It is denied that one co-owner cannot claim relief of possession against the other co-owner and the suit for possession is not maintainable and liable to be dismissed.
17.Ld. Counsel for the plaintiff has essentially relied on the case Prakash vs. Phulavati (2016) 2 SCC 36 wherein it has been clarified that the amendment brought in by the Amendment Act, 2005 w.e.f. 09.05.2005 under the Hindu Succession Act are prospective in nature. They would be applicable only if the coparcener through whom the daughter is claiming coparcenary rights is alive on 09.09.2005 from which date the Amendment has become effective.
18.It is argued on behalf of the plaintiff that Sh. Inderjeet Singh Johar, Karta of HUF had died on 06.04.1962 i.e. before the CS DJ NO. 720/2017 Page No. 9 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS amendment was introduced. It has been further pointed out that Section 23 of the Hindu Succession Act, 1956 also clarifies that a daughter merely had a right of residence and would be entitled to share in case of partition but she could not claim partition in dwelling house. Proviso to Section 23 provides that the right of residence was available to a daughter only if she was unmarried or separated or divorced from her husband. Though Section 23 has been repealed by way of Amendment in 2005 but in this case Smt. Kadambari Khanna got married much prior to the date of Amendment. Smt. Kadambri Khanna being a married daughter having a husband and children was not a coparcener at the time the right accrued and was happily married and therefore not entitled to any share in the HUF property.
19.Ld. Counsel for the respondent, however, has argued that the scope of amendment carried out in the year 2005 in Hindu Succession Act and the observations of Prakash vs. Phulavati (Supra) have been clarified by the Hon'ble Supreme Court of India in Vineeta Sharma vs. Rakesh Sharma & others, 2020 9 SCC 1 wherein it has been observed that a daughter of coparcener if alive on 09.09.2005 i.e. the date of commencement of the Amendment then she would be considered/entitled to the existence of the coparcenary irrespective of the death of her father or coparcener prior to 2005, from whom she is claiming title. It has been further submitted that Smt. Kadambri Khanna had died on 30.11.2016 i.e. after the Amendment in 2005 and therefore was coparcener entitled to a share in the property, CS DJ NO. 720/2017 Page No. 10 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS which is admittedly a HUF property and her legal heirs are living in the property in their own independent right and are not tress-passers. It has been further argued that as per the plaintiff himself, it is a HUF property in which Smt. Kadambri Khanna also had a right being coparcener by virtue of law and therefore her legal heirs cannot be evicted. It is therefore submitted that even if all the averments made in the plaint are admitted, no cause of action is disclosed against Late Smt. Kadambri Khanna and now her legal heirs Defendant No.1to 3 and the suit is liable to be rejected.
20. I have heard the arguments and perused the record. My findings are as under:
I. RELIEF OF POSSESSION:
21.The consistent case of the plaintiff as pleaded in his plaint is that the property in question is HUF property of which Late Sh. Inderjeet Singh Johar was the Karta and after his demise on 06.04.1962 his son Sh. Ramesh Johar became the Karta of HUF property. Since beginning, the property was shown as HUF property and in the Income Tax Records and other records and from own admission of the plaintiff, it is HUF property till date and no partition ever took place. It is not in dispute that the defendant No. 1 is the husband of deceased Smt. Kadambri Khanna and defendants No. 2 & 3 are the son and daughter. Smt. Kadambri Khanna was the daughter of Sh. Inderjeet Singh Johar, Karta of the HUF property and after his death Sh. Ramesh Johar became the Karta of HUF property. As per the case of the plaintiff himself, the HUF had continued even after the enactment of Hindu Succession Act, CS DJ NO. 720/2017 Page No. 11 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS 1956 and it continues till date. The suit property according to the plaintiff is a HUF property in which the coparceners have an undivided share as no partition has ever taken place.
22.To understand the rival contentions of the parties, it is first significant to consider the concepts of coparcenary and joint Hindu Family. Hindu Joint Family consists of all persons who lineally descend from the common ancestor and includes their wives and unmarried daughters. It is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha vs. Sri Brozo Kishore, 1876 (1) Madras 69 .
23.Hindu coparcenary is a narrower concept and consists of propositus and three lineal descendants. Before Amendment in Hindu Succession Act in 2005, it included only those persons like sons, grandsons, and great-grandsons, who were the holders of joint property. It is only on demise of the son i.e. first generation that the next lineal descendant would get included in the coparcenary. Further, all the three male lineal descendants acquired interest in the property by birth. The right in the property of the coparcenary was thus protected upto third generation and extended on the death of any such male lineal descendants to the next generation. As earlier, a woman could not be a coparcener, but she could still be a joint family member.
24.Hon'ble Mr. Justice Bhashyam Ayyangar in Sundaranam Maistri vs. Harasimbhulu Maistri & Another (1902) ILR 25 Madras explained the legal position. He stated that the CS DJ NO. 720/2017 Page No. 12 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS Mitakshara doctrine of joint family property is founded upon the existence of an undivided family as a corporate body and the possession of the property by such corporate body. The first requisite therefore is the family unity and the second requisite is the possession of property by it. Female members of the family were left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is undivided, it forms a corporate body, which is purely a creature of law and cannot be created by act of parties save in so far by adoption, a stranger may be affiliated as a member of that corporate body.
25.In Controller of Estate Duty, Madras vs. Alladi Kuppuswamy, (1977) 3 SCC 385 it was further explained that until partition each member has got ownership extending over the entire property, conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive. The result of such co-ownership is that the possession and enjoyment of the property is common.
26.Coparcenary is the creation of law. Only a coparcener has a right to demand partition. The test is if a person can demand a partition, he is a coparcener not otherwise. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. By Amended Section 6 with effect from 09.09.2005 CS DJ NO. 720/2017 Page No. 13 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS daughters are recognised as coparceners in their rights, by birth in the family like a son.
27.The question is whether the rule of Hindu law as stated above, was altered by the provisions of the Hindu Succession Act. Section 4 of the Act provides as follows :
"4. (1) Save as otherwise expressly provided in the Act -
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
28.The Act provides a self-contained and comprehensive code relating to both testate and intestate succession of persons defined as "Hindu" in the Act. This means that the provisions of the Act replace the pre-existing rule text, or any custom or usage or interpretation appertaining to Hindu law if the subject-matter of such rule or law is covered by the Act. So far as any law contained elsewhere is concerned, the Act will abrogate it only to the extent of inconsistency as provided by Section 4 (1) (b) of the Act. The purpose behind the Act was obviously to introduce uniformity in the law relating to succession.
29.In Commissioner of Income-Tax, U. P. v Ram Rakshpal, Ashok Kumar. 1968 67 ITR 164 All the following observations in the Introductory Note on the Hindu Succession Act in Mullas Commentary (13th Edition, Pages 762 to 763) on Hindu law were quoted:
CS DJ NO. 720/2017 Page No. 14 of 40PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS "Probably the best solution would have been to abolish the ancient legal formulae of right by birth and devolution by survivorship since the logical way was to assimilate the Mitakshara to the Dayabhaga in this respect. This would also have the merit of equable treatment of the nearest female heirs of a coparcener and of bringing about uniformity in the law in all parts of India. Sentiment in favour of retention of the Mitakshara coparcenary even in an attenuated form seems to have been respected and the rules laid down in Section 6 are a compromise having some of the merits and all demerits which attend such adjustive legislation."
30.In Ram Rakshpal (Supra) it was noted that the observations in Mullas Commentary on Hindu Law as quoted above, relate only to what was attempted to be achieved by Section 6 of the Act. Section 6 of the Act is the only provision of the Act which deals with the devolution of interest in a Mitakshara coparcenary property on the death of a male Hindu after the commencement of the Act. The other sections apply equally to all Hindus as defined in the Act whether governed by the Mitakshara or Dayabhaga law.
31.Section 6 of the Hindu Succession Act, 1956 provided for devolution of interest in coparcenary property. It provides that when a male Hindu dies after the commencement of the Act having interest in the Mitakshara coparcenary property, his interest shall be devolved by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
32.Section 6 unamended read as under:
6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the CS DJ NO. 720/2017 Page No. 15 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS surviving members of the coparcenary and not in accordance with this Act: Devolution ol interest In coparcenary property Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1--For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would haw been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
33.Section 6 (unamended) thus, dealt with devolution of interest in coparcenary property and it makes it clear that when a male Hindu dies after the commencement of the Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The proviso indicates that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. From the proviso of the unamended CS DJ NO. 720/2017 Page No. 16 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS section itself it is evident that if the coparcerner is survived by a female heir, the inheritance then also would be by succession and not survivor ship. This implies that even before Amendment, 2005 the rights of female heirs were protected and they were not ousted and had a defined share by way of succession.
34.The Amendment Act, 2005 has practically reframed the entire Section 6 and provides that daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and would have same rights in the coparcenary property as she would have had she been a son. By virtue of Amendment Act, 2005 the daughter has been recognised as coparcener having the same right as the son and the differential status of son and daughter in coparcenary property stands obliterated.
35. Section 6 (after amendment) now reads as under:
[6 Devolution of interest in coparcenary property. -
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.CS DJ NO. 720/2017 Page No. 17 of 40
PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may be.
Explanation--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4)....
Explanation. ...
(5) ...
36.The most conspicuous change brought by the Amendment, 2005 is that the concept of inheritance by survivorship has practically been done away with and inheritance shall CS DJ NO. 720/2017 Page No. 18 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS essentially be by way of succession even in case of Coparcenary property.
37.Section 8 of the Act is one of the general provisions applicable to all Hindus. The two sections namely Section 6 & Section 8 deal with different subject-matter. One deals with the devolution of an "interest" in a Mitakshara coparcenary property and the other with the devolution of "property" itself of a male Hindu, falling outside the purview of Section 6 of the Act upon the death of a male Hindu intestate. Therefore, observations made about the provisions of Section 6 of the Act cannot be appropriately used in interpreting Section 8 of the Act at all.
38.Section 8 of the Act embodies the concept of individual owners of property succeeding each other as owners of that property. It lays down that the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. The word "succession" is ordinarily understood to mean a stepping into the shoes of the previous owner or holder of property. Section 8 provides the line of devolution of property upon heirs who are divided into two classes mentioned in the Schedule to the Act. In class I, the son shares only with the grandson through a pre-deceased son an equal right in the inheritance together with other heirs. The grandson through a son who is alive does not find a mention at all anywhere in the Schedule.
39.In Ram Rakshpal (Supra) it was explained that the clear effect is that what has been described as unobstructed heritage CS DJ NO. 720/2017 Page No. 19 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS under the Mitakshara law was converted into an obstructed and not merely "obstructible" heritage by the operation of Section 8 of the Act inasmuch as the rights of the son, to the exclusion of the grandson whose father is alive, now obstruct what was technically described as "unobstructed heritage"
under the Mitakshara law.
40.The mode and manner of distribution of property is further explained in Section 9 which makes it clear that the heirs of class-I take simultaneously and exclude all other heirs. Section 9 also prescribes that the heir in the first entry of class-II will be preferred to the heirs in the second entry, and, similarly, the heirs in the second entry will be preferred to those in the third entry. Section 10 of the Act contains certain rules of distribution of property among the heirs in Class-I of the Schedule. In other words, the Hindu Succession Act makes a clear distinction between the rules regulating the succession of heirs and the rules of distribution and provides for both separately.
41.The full bench of Madras High Court in Additional Commissioner of Income-Tax, Madras vs. P.L. Karappan Chettiar, 114 I.T.R. 523 , held that under the Hindu law, the property of a male Hindu devolved on his death on his sons and grandsons as the grandsons also have an interest in the property. However, by reason of Section 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the son alone inherits the property to the exclusion of his son. No interest would accrue to the grandson of P in the property left by him on his death. As the effect of Section 8 CS DJ NO. 720/2017 Page No. 20 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS was directly derogatory of the law established according to Hindu law, the statutory provision must prevail in view of the unequivocal intention in the statute itself, expressed in Section 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu law.
42.The Madhya Pradesh High Court had occasion to consider this aspect in Shrivallabhdas Modani vs. Commissioner of Income-Tax, M.P.-I, 138 I.T.R. 673 , and the Court held that Section 8 of the Hindu Succession Act, 1956 laid down the scheme of succession to the property of a Hindu dying intestate. The schedule classified the heirs on whom such property should devolve. The right of a son's son in his grandfather's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect". The Court observed that in construing a Codification Act, the law which was in a force earlier should be ignored and the construction should be confined to the language used in the new Act. Section 8 should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons.
CS DJ NO. 720/2017 Page No. 21 of 40PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
43.The Andhra Pradesh High Court in the case of Commissioner of Wealth-Tax, A.P.-II vs. Mukundgirji, 144 I.T.R. 18 , had also held that a perusal of the Hindu Succession Act, 1956 would disclose that Parliament wanted to make a clean break from the old Hindu law in certain respects consistent with modern and egalitarian concepts. For the sake of removal of any doubts section 4(1) (a) was inserted. Therefore, it would not be consistent with the spirit and object of the enactment to strain provisions of the Act to accord with the prior notions and concepts of Hindu law. That such a course was not possible was made clear by the inclusion of females in Class-I of the Schedule, and to hold that the property which devolved upon a Hindu under section 8 of the Act would be HUF property in his hands vis-a-vis his own sons would amount to creating two classes among the heirs mentioned in Class-I, viz., the male heirs in whose hands it would be joint family property vis-a-vis their sons; and female heirs with respect to whom no such concept could be applied or contemplated. The intention to depart from the pre-existing Hindu law was again made clear by Section 19 of the Hindu Succession Act which stated that two or more heirs succeed together to the property of an intestate, they should take the property as tenants-in-common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father's property took a joint tenants and not tenants-in-common. Accordingly, the property which CS DJ NO. 720/2017 Page No. 22 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS devolved upon heirs mentioned in Class-I of the Schedule under Section 8 constituted the absolute properties and his sons have no right by birth in such properties.
44.In Commissioner of Wealth Tax - Kanpur vs Chander Sen etc. 1986 SCR (3) 254 a reference was made to above referred judgments and observed that in view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, it is not possible when Schedule indicates heirs in class-I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. It may be mentioned that heirs in Class-I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail.
45.The observations made in Chander Sen (Supra) were endorsed by the Apex Court in Yudhishter vs Ashok Kumar, 1987 SCR (1) 516.
46.Hon'ble Delhi High Court in Neelam vs. Sada Ram 2013 SCC Online Del 384 observed that it is significant to understand the scheme of inheritance under The Hindu Succession Act, 1956 which did away with the concept of ancestral property, as existed prior thereto. It was explained that after the coming into force thereof, the property inherited by a male from his father is held as self-acquired property in which children of that male do not acquire ant right by birth.
CS DJ NO. 720/2017 Page No. 23 of 40PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS On the demise of a Hindu male the property devolves in accordance with rules of succession. However, Section 6 of the Act carved out an exception qua the interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. This view has been consistently reaffirmed by Delhi Court in Neelam Vs. Sada Ram (2013) 197 DLT (CN) 52 , Rajat Khanna Vs. R.P. Khanna (2013) 200 DLT 203 , Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCC Online Del 3413 (DB) , Sunny (Minor) vs.Raj Singh (2015) 225 DLT 211 , Surender Kumar vs. Dhani Ram 2016 SCC Online Del 333 , Kamlesh Devi vs. Shyam Sunder Tyagi 2017 SCC Online Del 12701 , Saurabh Sharma vs. Omwati (2018) 250 DLT 544 , A.N. Kaul vs. Neerja Kaul 2018 SCC OnLine Del 9597 , Bhagat Singh vs. Paltu Ram 2018 SCC Online Del 10012 , Aditya Prasad Dube vs. Shobha Dube 2018 SCC Online Del 6567 , Meghna Grover vs. Amit Grover 2019 SCC Online Del 11586 , Veronica vs Jitender Pal Singh Sodhi 2019 SCC Online Del 11819 & Raj Kumar vs. Ram Bhaj Bansal 2019 SCC Online Del 9658 .
47.Significant changes have been brought by way of Amendment Act, 2005 vis a viz. females who have been recognized as coparceners and accorded same status as males. These are significant in the present case as the rights of Defendant No.1to3 are derived from Deceased Kadambri in respect of CS DJ NO. 720/2017 Page No. 24 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS HUF property. How are the Amendments to be interpreted was explained by Apex Court in Prakash vs. Phulavati (2016) 2 SCC 36 wherein it was held that the amendment was prospective but the right under the substituted Section 6 accrues to living daughters of living coparceners as on 09.09.2005 irrespective of when such daughters were born. It was thus held that coparceners from whom daughter is inheriting the right must be alive on the date of amendment i.e. 09.09.2005.
48.This decision has been reconsidered in the case of Vineeta Sharma (Supra) wherein it has been clarified it is not necessary that to form a coparcenary or to become a coparcener the predecessor coparcener should be alive. What is relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession and not of the formation of a coparcenary. Therefore, the coparcener from whom the daughter would succeed and inherit the coparcenary rights need not be alive as on 09.09.2005. Even if the coparcener has died before the Amendment Act, 2005 (which came effective from 09.09.2005), it would be irrelevant as the daughter is living on 09.09.2005. It has been explained that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary. Therefore, the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a CS DJ NO. 720/2017 Page No. 25 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS coparcenary is obviously its creation while the second stage is inheritance, which can be availed of by any coparcener and now even a daughter who is alive after the Amendment Act, 2005 provided the property has not been already partitioned.
49.Having understood the incidents of coparcenary and that the females after the Amendment in 2005 are recognized as coparceners it needs to be now considered whether defendant No. 1 to3 together are entitled to equal share as the plaintiff. The ground for claiming the entitlement is her recognition as a coparcener. In Prakashwati vs Bhagwati Devi MANU/ DE/4784/2012 Delhi High Court held that for a case for claiming a share in the property as a coparcener, it has to be established that there existed an HUF since prior to coming into force of the Hindu Succession Act and which HUF by virtue of Section 6 has continued.
50.The plaintiff's consistent claim is that the property in question is the HUF property. The ground for claiming the entitlement to suit property is Smt. Kadambri Khanna being the daughter of Inderjeet Johar Karta of HUF, she got the status of coparcener after the Amendment in 2005. She by virtue of law, became a coparcener having the same rights and responsibilities as a male coparcener and entitled to the equal share in the HUF property bearing No. D-69, Defence Colony, New Delhi. Her residence on the 2nd floor of the suit property was in her own independent right as coparcener. It may also be noted that even under the unamended S.6 Proviso to sub- Section-1 since Karta Inderjeet Johar on his demise in 06.04.1962 was survived by Class-I female heirs i.e. Smt. Raj CS DJ NO. 720/2017 Page No. 26 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS Johar, his wife and Smt. Kadambri Khanna, his daughter and his share in the HUF property was to devolve by way of succession and not survivorship, thus making her entitled to a share in the share of Late Sh. Inderjeet Johar to be determined by invoking the doctrine of notional partition. Moreover, the share so determined would be divided amongst the surviving legal heirs including his wife Raj Johar who would get this share as an absolute owner amenable to bequest by Will. Furthermore, the HUF continued for the surviving family members with Ramesh Johar as its Karta and after the Amendment, 2005 Smt Kadambri also became a coparcener in this HUF entitled to a share along with other members of the Coparcenary. She could not be termed as a trespasser. On her demise on 30.11.2016 her share in the undivided coparcenary property would devolve upon her Legal Heirs/Defendants No. 1 to 3 by way of inheritance through succession in accordance with Section 15 which lays down general rules of Succession in the case of Hindu females and Section 16 which provides for order of succession on the same principles as explained by the Apex Court in Chander Sen (supra) and other judgments as discussed above.
51. The plaint itself shows the right, title in favour of the defendants No. 1 to 3 and thus no decree of possession can be made in favour of the plaintiff vide simplicitor suit for possession without seeking partition. The suit for possession is thus, not maintainable.
CS DJ NO. 720/2017 Page No. 27 of 40PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
52. For the same reason, no injunction can be granted for restraining the defendants from creating any third party interest in the suit property and also no damages for the same reason can be granted. No cause of action is disclosed for these reliefs.
II. DECLARATION AND CANCELLATION OF WILLS DATED 14.05.1997, 05.08.2002 & 29.01.2003:
53.The other relief which has been claimed by the plaintiff is of declaration and cancellation of Will dated 14.05.1997, 05.08.2002 and 29.01.2003 purportedly executed by mother Smt. Raj Johar, claiming them to be forged and fabricated by Smt. Kadambri Khanna during her lifetime.
III. MAINTAINABILITY OF SUIT FOR DECLARATION/ CANCELLATION OF WILLS:
54.The basic questions that arise is whether a suit for Declaration/Cancellation of Wills is maintainable in the first instance and whether the relief so claimed is barred by Limitation.
(a) WHETHER A WILL CAN BE TERMED AS AN INSTRUMENT UNDER SECTION 31 OF THE SPECIFIC RELIEF ACT, 1963:
55.The first aspect that arises for consideration is whether a Will can be termed as an Instrument. Section 31 of the Specific Relief Act, 1963 enumerates right to any person to get the relief of cancellation of instruments being void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury.CS DJ NO. 720/2017 Page No. 28 of 40
PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS The term "written instrument" has been used in Section 31 of Specific Relief Act, 1963 and according to the definition provided therein only a "written instrument" could be adjudged by the Court as void and voidable or cancelled.
56.In the case of Jagjiwan Rai and others Vs. Hari Kunwar Rai & others 1975 ALJ 631 Allahabad High Court observed that term "Instrument" has not been defined under Specific Relief Act. A reference was made to Wharton's Law Lexicon which gives the following meaning:
Instrument- To prepare or provide a formal legal writing e.g., record, chapter, deed or transfer or agreement. Instrument does not include a statute.
57.According to the above definition an agreement which results in a formal legal writing is an "instrument".
58.The word "instrument" finds place in the Stamp Act. In Section 2(14) of the Stamp Act "instrument" is defined as follows:
(14) "instrument" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.
59.The word "instrument" also appears in Section 26-A of the Income Tax Act, 1922. It came in for interpretation in ILR 65 Bom 610 . It has been held that an "instrument" means a document of a legal nature by which any right or liability is, or is purported to be created, transferred, limited, extended, extinguished or recorded. The document must be executed by the parties. This interpretation is on the same par as in the Stamp Act. It would, therefore, not be incorrect to give the word "instrument" the same meaning as is generally to be found in various other enactments.
CS DJ NO. 720/2017 Page No. 29 of 40PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
60.In the case of Smt. Sudha Sharma vs. Smt. Shashi Bala Sharma F.A.F.O. No. 3382 of 2011 the Division Bench of ALLAHABAD Court has considered the definition of term "instrument" under Section 3 of Transfer of Property Act. It observed that the word 'instrument' occurring in aforesaid section cannot be read in isolation. It has been so defined for the purposes of Transfer of Property Act. It is clear that a document cannot be an "instrument" unless it affects some right or liability. In other words an "Instrument" is a document which defines, prescribes, transfers, recognises and establishes a right in a party. The proper term for Will would be 'an instrument' securing money or other property having such value'.
61.The division bench of Allahabad High Court in the case of Kailash Chand Vs. Vth A.C. Judge, Meerut and others 1999 All LJ 940 have also taken the view that in a suit for a declaration that the Will was null and void or non-est, the Will would be taken as an instrument for securing money and other. These observations were approved by Full Bench of this Court in the case of Smt. Bibbi and another Vs. Shugan Chand and others AIR 1968 Allahabad 261 .
62.The observations made in Smt. Rajni Swami Vs. Smt. Shakuntla Sharma 2009 (6) ADJ 63 (DB) , on this aspect are noteworthy which are as under:
"14. .......There is a big gap between the declaration simplicitor and relief in the garb of declaration. If a person makes a prayer to declare right, title or interest of a property in his favour then it can be construed as declaration simplicitor but when a plaintiff seeks any declaration to dis entitle others right into a property, such type of circumvent prayer cannot be treated to be CS DJ NO. 720/2017 Page No. 30 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS declaration simplicitor. In other words, he is not asking any relief for himself but want to prevent his opponent from enjoying fruit of the property. Therefore, such type of relief is virtually in the nature of injunction at first with the nomenclature of 'declaration'. Therefore, it is required for the Court to go into the real nature of dispute arising out of the plaint to ascertain the cause and incidental cause which helps it. A will is execution of document of a testator to give his property to a person of his choice. Such will, will be enforceable only after the death of the testator. In some of the States of India, grant of probate by the appropriate Court of law on the will is compulsory and some of the State is optional. In the State of Delhi to obtain probate on the will is optional, therefore, as soon as the testator dies and will comes into light, it operates as a valuable instrument in favour of the person in whose favour property is devolved by such will.
.....the defendant/respondent never approached to the Court to obtain a probate but enjoying the property as successor under a will. Now if such will is declared by the Court as null and void, right of the person in the property or properties under the will, will be extinguished. Therefore, the principle of securing property under the will, will be attracted."
63.In the case of Mathai Samuel & Ors vs Eapen Eapen (Dead) By LRs. & Ors (2012) 13 SCC 80 , it has been held that Will is an instrument where under a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his life. It has three essentials:
(1) It must be a legal declaration of the testator's intention;
(2) That declaration must be with respect to his property; and (3)The desire of the testator that the said declaration should be effectuated after his death.
The essential quality of a testamentary disposition is ambulatoriness of revocability during the executants' CS DJ NO. 720/2017 Page No. 31 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS lifetime. Such a document is dependent upon executants' death for its vigour and effect."
64. For the purpose of Section 31 of Specific Relief Act, 1963, the Will Deed has to be treated as an instrument otherwise if the Will is not an instrument then there is no provision of law other than Section 31 of Specific Relief Act, 1963 under which the plaintiff could have filed her suit for cancellation of Will Deed. The Will thus is an instrument to which Section 31 Specific Relief act is applicable.
(b) WHETHER A SUIT CHALLENGING THE
WILLS AS OBTAINED BY UNDUE
INFLUENCE & FRAUD MAINTAINABLE
UNDER SECTION 31 OF THE SPECIFIC
RELIEF ACT:
65.Section 2(g) of Indian Contract Act provides that a void document would mean "an agreement not enforceable by law is said to be void" whereas under Section 2(i) term "voidable" has been defined as "an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract".
66.Section 19 of the Indian Contract Act, 1872 defines that "when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused........." Thus, it is clear that when fraud is pleaded for cancellation in a suit then it is voidable not void document and the document alleged to have been obtained by fraud or by CS DJ NO. 720/2017 Page No. 32 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS misrepresentation, would be a voidable and not a void document.
67.When it comes to Section 31(1), the important expression used by the legislature is "any person against whom a written instrument is void or voidable...". An instructive judgment of the Full Bench of the Madras High Court reported as Muppudathi Pillai vs. Krishnaswami Pillai, AIR 1960 Mad 1 involved the determination of the scope of section 41 of the Specific Relief Act, 1877 {Section 33 (1) of the 1963 Act is the pari materia provision}. The Court set-out the principle behind section 39(1) of the Specific Relief Act, 1877 as follows:
12. The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared.
Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions. (emphasis added).
13. ..... The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument: (1) the instrument is void or voidable against the plaintiff; (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (3) in the circumstances of the case the court considers it proper to grant this relief of preventive justice. On the third aspect of the question the English and American authorities hold that where the document is void CS DJ NO. 720/2017 Page No. 33 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS on its face the court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the court.
14. The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasizes that principle. For there can be no apprehension if a mere third party asserting a hostile title creates a document. Thus, relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title.
15. Let us take an example of a trespasser purporting to convey the property in his own right and not in the right of the owner. In such a case a mere cancellation of the document would not remove the cloud occasioned by the assertion of a hostile title, as such a document even if cancelled would not remove the assertion of the hostile title. In that case it would be the title that has got to be judicially adjudicated and declared, and a mere cancellation of an instrument would not achieve the object. Section 42 of the Specific Relief Act would apply to such a case. The remedy under Section 39 is to remove a cloud upon the title, by removing a potential danger but it does not envisage an adjudication between competing titles. That can relate only to instruments executed or purported to be executed by a party or by any person who can bind him in certain circumstances. It is only in such cases that it can be said there is a cloud on his title and an apprehension that if the instrument is left outstanding it may be a source of danger. Such cases may arise in the following circumstances: A party executing the document, or a principal in respect of a document executed by his agent, or a minor in respect of a document executed by his guardian de jure or de facto, a reversioner in respect of a document executed by the holder of the anterior limited estate, a real owner in respect of a document executed by the benamidar, etc. This right has also been recognised in respect of forged instruments which could be cancelled by a party on whose behalf it is purported to be executed. In all these cases there is no question of a document by a stranger to the title. The title is the same. But in the case of a person asserting hostile title, the source or claim of title is different. It cannot be CS DJ NO. 720/2017 Page No. 34 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS said to be void against the plaintiff as the term void or voidable implies that but for the vitiating factor it would be binding on him, that is, he was a party to the contract.
16. There is one other reason for this conclusion. Section 39 empowers the court after adjudicating the instrument to be void to order the instrument to be delivered up and cancelled. If the sale deed is or purported to have been executed by a party, the instrument on cancellation could be directed to be delivered over to the plaintiff. If on the other hand such an instrument is executed by a trespasser or a person claiming adversely to the plaintiff it is not possible to conceive the instrument being delivered over not to the executant but his rival, the plaintiff."
17. ......
18. In our opinion, Sec. 39 will not apply to a case like the present where the sale was executed by a person claiming title adverse to that of Vinayagam Pillai, and therefore, the court would have no jurisdiction under Section 41 to direct payment of compensation by the plaintiff to the appellant before obtaining relief as to possession. To hold otherwise would mean that a mere volunteer who paid the debt of the plaintiff would be able to recover the same."
68.A Full Bench of the Andhra Pradesh High Court in Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57 referred to Muppudathi Pillai (Supra) and stated the law thus:
"33. The law, therefore, may be taken as well settled that in all cases of void or voidable transactions a suit for cancellation of a deed is not maintainable. In a case where immovable property is transferred by a person without authority to a third person, it is no answer to say that the true owner who has authority and entitlement to transfer can file a suit under Section 31 of the Specific Relief Act for the simple reason that such a suit is not maintainable. Further, in case of an instrument, which is void or voidable against executant, a suit would be maintainable for cancellation of such instrument and can be decreed only when it is adjudicated by the competent Court that such instrument is void or voidable and that if such instrument is left to exist, it would cause serious injury to the true owner."CS DJ NO. 720/2017 Page No. 35 of 40
PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
69.The Supreme Court of India in Deccan Paper Mills Company Limited vs. Regency Mahavir Properties & Ors. Civil Appeal No. 5147 of 2016 decided on 19 th August, 2020 referred to above judgments and observed that reading of the aforesaid judgment of the Full Bench would make the position in law crystal clear. The expression "any person"
does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. Importantly, relief under Section 39 of the Specific Relief Act, 1877 would be granted only in respect of an instrument likely to affect the title of the plaintiff, and not of an instrument executed by a stranger to that title. The expression "any person" in this section has been held by this Court to include a person seeking derivative title from his seller (see Mohd. Noorul Hoda vs. Bibi Raifunnisa (1996) 7 SCC 767, at P. 771 ). The principle behind the section is to protect a party or a person having a derivative title to property from such party from a prospective misuse of an instrument against him. A reading of Section 31(1) then shows that when a written instrument is adjudged void or voidable, the Court may then order it to be delivered up to the plaintiff and cancelled - in exactly the same way as a suit for rescission of a contract under Section 29.
70.In the instant case a plea has been set up by the plaintiff that the three wills in favour of Smt. Kadambri were obtained by her by fraud and coercion. The suit for Cancellation of Wills by the plaintiff who is challenging the derivative title, shall be CS DJ NO. 720/2017 Page No. 36 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS maintainable in view of the Law as defined in the aforementioned judgments.
(c) LIMITATION PERIOD FOR CHALLENGING THE WILLS:
71. The next aspect for consideration is the limitation period for challenging the Will/ Instrument.
72.Under the Limitation Act, 1963, the schedule provides the period of limitation. Article 59 which is under Part IV-Suits relating to decrees and instruments, provides a three years period for the purpose of filing of a suit to cancel or set aside an instrument or decree or for the rescission of a contract. It provides the time from which begins to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
73.In the case of Mohd. Noorul Hoda Vs. Bibi Rafiunnisa and others (1996) 7 SCC 767 , it was held that Article 59 of the Limitation Act is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud.
74.In the case of Prem Singh and others Vs. Birbal and others, 2006 (5) SCC 353 the Supreme Court has held that Article 59 of the Limitation Act would be attracted when coercion, undue influence, misappropriation or fraud is required to be proved. It has been held that if a suit is found to be barred by limitation, every suit instituted, appeal preferred CS DJ NO. 720/2017 Page No. 37 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS and every application made after the prescribed period shall be dismissed.
75.Similar observations have been made by High Court At Calcutta in Hamida Begum alias Alo Bibi vs. Umran Bibi & others F.A. No. 174 of 2005 on 6 th March, 2008 wherein it was observed that Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word "'person" in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.
76.Allahabad High Court in Ganga Prasad vs Munna Lal & Others in Second Appeal No. 451 of 2000 decided on 21 st December, 2017 after referring to aforesaid judgments concluded that after the death of the testator, his Will becomes an "instrument" securing money or property. Judging from this aspect a Will Deed gives a right to a party or recognizes the rights vis-a-vis a property, as such it shall be CS DJ NO. 720/2017 Page No. 38 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS treated to be covered under the term "instrument" for the purpose of applicability of Article 59 of the Limitation Act. Article 59 of Limitation Act would be attracted for the purpose of determining the period of limitation to file the suit for cancellation of Wills.
77.From the above legal pronouncements, it is clear that the Will is an instrument within the meaning of Article 59 of the Limitation Act and in case of plea of fraud and fraudulence having been taken to challenge the Will Deed, the period of limitation has to be counted from the date of knowledge of such fraud.
78. In the present case, Wills dated 14.05.1997, 05.08.2002 and 29.01.2003 have been challenged by the plaintiff and as per Article 59 of the Limitation Act, 03 years period was to be counted from the date of knowledge of the said Will Deed. Plaintiff himself has stated that he came to know about the three Wills in 2003. The suit seeking their cancellation has been filed only in 2017 i.e much beyond the limitation period of three years and this relief is patently barred by Limitation.
CONCLUSION:
79.In view of the above discussion, it is held that the plaint does not disclose any cause of action and the relief in respect of Wills is time barred. The application under Order 7 Rule 11 read with Section 151 CPC dated 19.03.2019 moved on behalf of the defendant No. 2 Sh. Alok Khanna is allowed and the suit of the plaintiff is rejected.CS DJ NO. 720/2017 Page No. 39 of 40
PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS
80.Parties to bear their own costs. File be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 31.08.2021 Principal District & Sessions Judge, (KSR) South East: Saket Courts, New Delhi CS DJ NO. 720/2017 Page No. 40 of 40 PAVAN JOHAR VS. RAJINDER KHANNA & OTHERS