Delhi District Court
Amarjeet Kaur vs State & Ors on 24 March, 2018
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
PC No. 03/2010
New No.16131/2010
Amarjeet Kaur .... Petitioner
Versus
State & Ors. .....Respondents
ORDER
24.03.2018
1. By this order I shall dispose off the application filed by the petitioner under Section 192 read with Section 247/266/268 and 295 of Indian Succession Act read with Order XXXIX Rule 1 and 7 read with Section 151 CPC.
2. The facts in brief are that applicant has filed the present petition for obtaining the Letter of Administration of the estate of her deceased father, late Sh. Sant Singh based on his Will. It is submitted that property situated at House No. 11, Road No.4, East Punjabi Bagh, New Delhi is the estate of late Sh. Sant Singh which is mentioned in his Will.
3. It is submitted that it came to the knowledge of the applicant / petitioner that by virtue of erection of sheets (used in the construction) around the property situated at Houser No. 11, Road No.4, East Punjabi Bagh, New Delhi, the respondents have demolished the said property. It is further stated that with the PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 1 of 13 knowledge of the abovestated facts and circumstances, the applicant / petitioner moved an application for temporary injunction under Order XXXIX r/w Section 151 CPC seeking injunction against the respondent No.2 to 8 on the last date of hearing i.e. 30.01.2018 thereby restraining them from demolishing and or alienating the property situated at House No.11, Road No.4, East Punjabi Bagh, New Delhi.
4. It is stated that status quo has been granted vide order dated 30.01.2018. The instant application has been filed in view of the deposition of respondent No.4 that the abovementioned property has been sold in November-2016 to five persons by the name of Bansal and that subsequent to the deposition of respondent No.4, the respondent No.4 was directed to furnish complete details regarding the sale of the aforementioned property.
5. It is also stated that applicant / petitioner is a widow and senior citizen and respondents are trying to defeat her right in the property of her late father and mother realizing that the respondents do not have any cogent case and the applicant / petitioner is likely to succeed based on the evidence place on record. It is stated that applicant / petitioner is contesting the present matter since the year 2010 and it is at the stage of final arguments and any further action by third party / buyer leading to the alienation and / or construction of the abovementioned subject property will cause irreparable loss to the applicant / petitioner making the entire proceedings before the Court as infructuous and meaningless. The applicant / petitioner on further inquiry has come to know that the subject property of the Will pending seeking Letter of Administration has been sold to Smt. PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 2 of 13 Geeta Bansal, Anubhav Bansal, Smt. Niyati Bansal, Vaibhav Bansal, Smt. Ridhi Bansal all residents of House No. 879, Kedar Building, Ghanta Ghar (Near Central Building) Kamla Nagar, New Delhi-110007.
6. It is submitted that if the property situated at House No.11, Road No.4, East Punjabi Bagh, New Delhi is allowed to be alienated and / or constructed by the aforementioned transferee pendente lite(s) then the applicant / petitioner will suffer irreparable loss which cannot be compensated by damages and will lead to multiplicity of litigation.
7. It is stated that it is well settled law that probate Court under Sections 247,253,268 and Section 269 of the Indian Succession Act is entitled to pass appropriate orders for preservation of the estate of the deceased as held by the Hon'ble Delhi High Court in case titled as Vinay Kumar Vs. Bijay Kumar MANU/DE/2302/2017 dated 08.08.2015. Ld. Counsel for applicant / petitioner also relied upon Judgments in case titled as Rama Mukherjee (Bhowmik)(Dr) Vs. State of Assam & Others (MANU/GH/08333/2012); Kulbir Singh Vs. State & Ors (MANU/DE/0590/1993); Manohar Lal Chopra Vs. Rai Bahadur Raja Seth Hira Lal.
8. It is also stated that it is clear from Section 266 of Indian Succession Act that the District Judge while acting as a probate Court has got all the powers of the civil Court and can preserve the property under Order XXXIX Rule 7 CPC. A close study of Section 247 of Indian Succession Act revels that the object behind the enactment of the said Section is to preserve the disputed property from being destroyed, dissipated and frittered PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 3 of 13 away. Ld. Counsel for the plaintiff also relied on AIR (38) 1951 Cal. 561 titled 'Atula Bala Dasi and others v. Nirupama Devi and another' (MANU/WB/0112/1951 and 'shri Karamjit Jaiswal vs. Investec Trust (Jersey) Limited & Others (MANU/DE/0515/2011).
9. It is stated that if the aforementioned property is allowed to be destroyed, dissipated and wated and to pass hands and if the petitioner/applicant ultimately succeeds and a probate is granted in her favour, in that eventuality she will not be in a position to have anything bequeathed to her through the impugned Will. Thus she would suffer irreparable loss and injury in case the injunction is not granted. The applicant/ petitioner has good prima facie case and balance of convenience is also in her favour since if the transferee pendente lite(s) is allowed to construct the property which is subject matter of the Will then transferee pendente lite (s) would be in an advantageous position as regard the applicant/petitioner since the applicant/petitioner succeeds in getting the Letter of Administration then the injury caused to the transferee pendente lite(s) by demolishing the building will outweigh the injury caused to the applicant/petitioner in case the building is allowed to be constructed. Ld. Counsel relied on 'Thomas Ben vs Parvathy Ommini (MANU/KE/0011/1962) by the Hon'ble Kerala High Court.
10. It is stated that construction and/or alienation of the said property will cause of multiplicity of litigation and delay in the administration of the estate of the deceased. It is settled law that Probate Court can grant injunction against the third party for protection and preservation of the estate of the Testator.
PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 4 of 1311. The applicant/petitioner seeks to grant an order for restraining the transferee pendente lite(s) or any other persons who might be inducted into the said property by the transferee pendente lite(s) i.e. their servants, attorneys, representatives and agents from changing the existing structure and or parting with the possession and or alienating the property situated at House No. 11, Road No.4, East Punjabi Bagh, New Delhi-110026 till the pendency of the present proceedings for seeking the Letter of Administration. Further, to imposed heavy cost on the respondents for alienating the property which is subject matter of the Will without the leave of the court thereby causing interference in the judicial proceedings and depriving the applicant/petitioner from administering the estate of her deceased parents.
12. Reply to the application of the petitioner filed on behalf of Sh. Anubhav Bansal. It is stated that Shri Sant Singh had no right, title or interest in property bearing no. 11, Road no. 4, East Punjabi Bagh, New Delhi nor did he has any right to execute any Will in respect of the said property. The above said property was purchased by Sh. Rattan Lal S/o Sh. Narsing Das, R/o C-39, Indian agricultural Research Institute, New Delhi from Refugees Co-operative Housing society Limited vide sale deed registered in the office of Sub-Registrar, Delhi as document no. 2001 in Addl Book No.1, vol. No. 706 on pages 115 to 120 on 14.03.1962. the said Sh. Rattan lal sold the said property to Sh.Ram Saran s/o Shri Ram Lal vide registered sale deed dated 26.02.1969 registered as document no. 1371 in addl. Book No. 1, volume No. 2147 on pages 17 to 19 registered on 27.02.1969 with the office of the Sub Registrar, Sub District No. II, Delhi. Shri Ram Saran expired on 04.12.2015 leaving behind his wife Smt. Shanti PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 5 of 13 Devi Batra, one son namely Shri Krishan Lal Batra and four daughters, namely, Smt. Suman Mendiratta, Smt. Kusum Juneja, Smt. Rakhi Mutreja and Smt. Anjali Dua. Smt. Anjali Dua had predeceased Shri Ram Saran and had died on 07.12.2014 leving behind her son Shri Vipul Dua. The abovesaid legal heirs of Shri Ram Saran relinquished their share in the said property in favour of Shri Krishan Lal Batra vide duly registered relinquishment deeds and in this manner Shri Krishan Lal Batra became the sole and exclusive owner of the said property. The said property was never the estate of late Shri Sant Singh.
13. It is stated that the applicant along with Smt. Geeta Bansal, Smt. Niyati Bansal, Smt. Ridhi Bansal and Shri Vaibhav Bansal had purchased the abovesaid property from Shri Krishan Lal vide duly registered sale deed registered as document no.5550 in Book No. 1, volume No. 2936 on pages 62 to 77 registered on 15.11.2016 with the Sub Registrar IIA, Punjabi Bagh, New Delhi against valuable consideration and are bonafide purchasers of the property. The present application has been filed by the petitioner with malafide intention to cause irreparable loss to the non-applicant and other co-owners in order to abstract some illegal monetary consideration from them. The present application has been moved with malafide intention only after the existing construction had been completely demolished by the present owners of the property. The North Delhi Municipal Corporation has already sanctioned to erect the building vide sanction dated 16.02.2018. The property was not demolished by the respondents but by the present owners.
14. It is stated that the petitioner never remained in possession of the said property. Shri Sant Singh died in 1986 and PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 6 of 13 the present petition has been filed in 2010. The non-applicant along with the other co-owners has the right to deal with the property as are possessed by the owner of any property. The petitioner shall not suffer any loss and the petitioner has no right title or interest in the said property. The answering respondent/ non-applicant has every right to deal with the property and to raise constructions. The raising of the construction or alienation of the said property has no effect upon the present petition. The authorities referred by applicant/petitioner do not apply in the facts and circumstances of the present case. The petitioner seeks dismissal of the application with costs.
15. The petitioner also filed rejoinder to the reply filed by Shri Anubhav Bansal, in which she denied the averments made in the reply and reiterated the averments made in the application. Petitioner also relied on some authorities in support of the averments made in the application.
16. I have heard Sh. Gagan Gandhi, AR of the petitioner, Ms. Aasifa and Sh. Sanjay Aggarwal, Counsel for Sh.Anubhav Bansal, purchaser and perused the record.
17. In order to appreciate the respective contentions of the Ld. Counsel for the parties, I would like to refer backdrop of the present case. Ms. Amarjeet Kaur filed a Probate petition on 14.01.2010 on the basis of registered Will dated 07.05.1986 of deceased testator late Sh. Sant Singh in respect of House No. 11, Road No.4, East Punjabi Bagh, New Delhi, who died on 15.05.1986. The petitioner averred that Smt. Karmo Bai, the mother of petitioner was sole legatee of late Sh. Sant Singh. She died in 1991 and was survived with three daughters namely Smt. PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 7 of 13 Shanti Devi, Smt. Bhupinder Batra and Smt. Amarjeet Kuar. Smt. Shanti Devi eldest daughter of late Sh. Sant Singh and Smt. Shanti Devi was duly adopted by late Sh. Gopal Singh, the elder brother of late Sh. Sant Singh. The petition has been contested by the respondent No.2 Smt. Bhupinder Batra. It is stated that son of Smt. Amarjeet Kaur, Gagan Gandhi in greed of money has filed the present false case.
18. Respondent No.2 further stated that the petitioner also filed a petition under Section 376 of Indian Succession Act for grant of Succession Certificate in respect of debts and securities of late Sh. Sant Singh. The Will in question has been denied. It is also denied that late Smt. Karmo Bai was sole legatee of late Sh. Sant Singh. It is stated that the petitioner, answering respondent Smt. Bhupinder Kaur and Smt. Shanti Devi are the real daughters and LRs of late Sant Singh and Smt. Karmo Bai and entitled to 1/3 share each in the estate and debts and securities. The facts regarding adoption of Smt. Shanti Devi are denied.
19. As per record, vide order dated 09.05.2014 Sh. Ram Saran Batra, respondent No. 3 was impleaded as party. Sh. Ram Saran Batra also filed objections to the petition and stated that present petition is based upon false and fabricated documents. It is stated that late Sh. Sant Singh never owned the property which is subject matter of the Will i.e. House No.11, Road No.4, East Punjabi Bagh, New Delhi. The said property is owned by respondent No.3, who purchased the same vide sale deed dated 26.02.1969 duly registered on 27.02.1969 from one Ratan Lal and also still continue in possession. The son of Smt. Shanti Devi, Krishan Lal Batra is residing in the said property for the past many years. The averment regarding Smt. Karmo Bai, the sole legatee PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 8 of 13 of late Sh. Sant Singh is also denied. The Will in favour of Smt. Karmo Devi was also denied and stated to be false and fabricated document. The adoption of Smt. Shanti Devi by late Sh. Gopal Singh also stated to be not a valid adoption.
20. During the proceedings, Sh. Ram Saran Batra died and his LRs are impleaded vide order dated 27.02.2016. After completion of evidence of parties, the present petition is at the stage of final arguments and now the petitioner has filed the present application under Section 192 read with Section 247/266/268 and 295 of Indian Succession Act read with Order XXXIX Rule 1 and 7 read with Section 151 CPC.
21. The petitioner is seeking order for restraining the transferee pendente lite or any other person who might be inducted into the said property by the transferee pendente lite i.e. their servants, attorneys, representatives and agents from changing the existing structure and for parting with the possession and or alienating the property situated at House No.11, Road No.4, East Punjabi Bagh, New Delhi. It is further mentioned that heavy cost be imposed on respondents for alienating the property during the pendency of the present petition.
22. I have gone through the provisions of Section 192 of the Indian Succession Act. According to which, a person claiming right by succession to property of deceased may apply for relief against wrongful possession. In the present case since the filing of the petition, the stand of the respondent No.2 Smt. Bhupinder Batra is that the alleged Will is forged and fabricated document and late Sh. Ram Saran Batra was the owner of the suit property.
PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 9 of 13The possession as per pleadings of the parties remained with the respondent No.3 and after his death with his LRs. Section 247 of the Indian Succession Act deals with administering pendente lite. It provides appointment of Administrator of the estate of a deceased person. Section 266 of Indian Succession Act provides powers to the District Judge to grant Probate or Letters of Administration and all matters connected therewith and to any civil proceedings pending in the Court. Section 268 of the Act provides that as the circumstances of the case permit, CPC is applicable. Section 295 of the Act provides that procedure in contentious probate case would be as of a regular suit.
23. Sh. Gagan Gandhi, Ld. Attorney of the petitioner relied upon Judgment in case titled as Archit Banijya and Biniyog Pvt. Ltd Vs. Asha Lata Ghosh - (2000) ILR 2 Cal. 455. In this case purchaser of the immovable property from an executor of a probate, which was subsequently revoked was involved. Principle of doctrine of bonafide purchaser was involved. I have gone through the Judgment. In this judgment all provisions of Indian Succession Act pertaining to the executor are discussed. However, this Judgment is distinguishable in the present facts and circumstances of the case as on the date of filing of the application neither probate has been granted nor revoked later on. Further the petitioner relied upon Judgment in case titled as Anil Prakash & Ors. Vs. State & Ors - MANU/DE/0570/2018. In this Judgment the well settled principles of Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors - [1993] 2 SCR 454 have been reiterated. The Probate Court cannot be decisive for declaration of title in the probate proceedings and the right, title and interest of the parties cannot be adjudicated. In another Judgment in case titled as Sudarshan Kumar Jain Vs. Mukta Jain - 2015 (147) PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 10 of 13 DRJ 133 it was held that in a testamentary case, the Court has enough powers to pass interim orders with respect to preservation, maintenance etch of the proerpty which the subject matter of the probate / testamentary case. The petitioner further relied upon Judgment in case titled as Vinay Kumar Vs. Bijay Kumar - MANU/DE/2302/2017. In this Judgment, Sections 247, 253, 268 and 269 of the Indian Succession Act have been discussed and it was held that Probate Court is entitled to pass appropriate orders for preservation of the estate of deceased. In another Judgment in case titled as Rama Mukherjee (Bhowmik) (Dr.0 Vs. State of Assam & Ors - 2013(1) GLT 279 it was held that application under Order XXXIX Rule 1 & 2 CPC is maintainable and interim injunction may be granted under Section 269 of Indian Succession Act. Similarly, the Judgment of Kulbir Singh Vs. State & Ors. - 52 (1993) DLT 57 also deals with the situation that Probate Court not only appoint an administrator pendente lite but also to issue an order of injunction, temporary in character pending the appointment of an administrator pendente lite. Similar is the Judgment in the case titled as Karamjit Jaiswal Vs. Investec Trust (Jersey) Limited & Ors - 180 (2011) DLT 15.
24. On the other hand Ld. Counsel Sh. Sanjay Aggarwal for the proposed purchaser Sh. Abhinav Bansal relied upon Judgment in case Shoilesh Chandra Mustafi Vs. Amal Chandra Mustafi & Anr. - AIR 1958 Cal. 701 wherein it was held that ordinarily no Probate Court should enter into a question of title, where conflicting claims of title are put forth in respect of any property covered by a Will. In another Judgment in case tiled as Ramchandra Ganpatrao Hande alias Handege Vs. Vithalrao Hande & Ors - 2011 Vol. 1213(2) Bom. L.R. 1302 PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 11 of 13 provisions of Section 269(2) of Indian Succession Act are discussed and it was held that jurisdiction of testamentary Court is only to determine as to where testator has executed a instrument and does not extend to decide the title or existence of the property bequeathed by the deceased. Lastly, in the Judgment of Salwan Education Trust Vs. Lt. Gov. - 1986 Rajdhani Law Reporter (NSC) 2 it was held that if defendant is in possession of land on date of suit, he cannot be restrained to take up construction on the same. However, conditions of removable may be imposed.
25. I have considered all the cited Judgments and respective submissions. In the present petition, the registered Will of late Sant Singh dated 07.05.1986 is under challenge. The respondents heavily relied on the sale deeds of the property subject matter of the Will in question i.e. first sale deed between Refugees Co-operative Housing Society Limited and Dr. Ratan Lal dated 14.03.1962 and second Sale Deed between Ratan Lal and Ram Saran dated 26.02.1969 in respect of subject matter of the property. On the other hand petitioner is claiming Letters of Administration of the Will of late Sh. Sant Singh, which was in favour of Smt. Karmo Bai as during lifetime Smt. Karmo Bai did not take any steps for issuance of Letters of Administration. It is admitted on record that late Sant Singh and Smt. Karmo Bai had three daughters namely petitioner Amarjeet Kaur, Smt. Shanti Devi and respondent No.2 Smt. Bhupinder Batra. As per record Smt. Shanti Devi was adopted by Sh. Gopal Singh and her application was also dismissed to become a party. In the same order, this Court allowed impleadment of respondent No.3 Sh. Ram Saran Batra. There is no document available on record with regard to subject matter of the property of the Will, which have PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 12 of 13 any connection either with Karmo Bai or late Sh. Sant Singh. The principle of law is well settled that Probate Court cannot enter into jurisdiction of deciding the titled of the parties. However, in the present facts and circumstances of the case as per testimony of parties and documents filed on record and admitted facts that LRS of Sh. Ram Saran Batra have entered into sale transaction with Abhinav Bansal and other family members namely Smt. Geeta Bansal, Smt. Niyati Bansal, Sh. Vaibhav Bansal and Smt. Ridhi Bansal and the fact that possession also remained with respondent No.3, I do not find prima facie case in favour of the petitioner. The balance of convenience also not lies in favour of the petitioner because principle of lis pendens is applicable in every proceedings. The petitioner is not going to suffer any irreparable loss or injury at this stage of proceedings as LRs of deceased Ram Saran Batra have entered into an agreement in November - 2016.
26. On the basis of above observations and discussion, I do not find any merit in the application and same is hereby dismissed.
Announced in the open court today the 24th March, 2018.
(Sanjay Kumar) Addl. District Judge (West) Tis Hazari Courts, Delhi PC No. 03/2010 Amarjeet Kaur vs. State & Others Page 13 of 13