Delhi District Court
Smt. Kamlesh vs Sh. Jai Bhagwan on 16 February, 2015
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 60/11
Unique case ID No: 02405C0374202011
IN THE MATTER OF
Smt. Kamlesh
W/o Sh. Ranbir Singh,
R/o RZ65, B Block, Maqsooda Bad Colony,
Najafgarh, Delhi ... Plaintiff
Versus
1. Sh. Jai Bhagwan,
S/o Late Sh. Ram Chander,
R/o RZ84/85, B Block, Gali no. 1,
Maqsooda Bad Colony,
Najafgarh Colony, Delhi.
2. Smt. Nirmala,
W/oSh. Bijender Singh,
R/o H. No. 689, Panna Parwaha
Village Karala, Delhi.
3. Smt. Kanta,
W/o Sh. Rajbir Singh,
R/o 188, Kamruddin Nagar,
Nangloi, Delhi.
4. Smt. Sunita Devi
CS No. 60/11
Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 1 of 51
W/o Sh. Dalbir Singh,
R/o H. No. 492, Village Dichaon Kalan,
Delhi.
5. Smt. Neelam,
W/o Late Sh. Jitender,
R/o H. No. 25, Near Daal Mill,
Village Ranhola, Delhi ... Defendants.
ORDER
1. By this order I will dispose off the issue regarding maintainability of the present suit filed by the plaintiff. The present suit has been filed by the plaintiff for declaration, cancellation and permanent injunction.
2. Brief case of the plaintiff as per plaint is as follows: The plaintiff and the defendants are the legal heirs of Late Sh. Ram Chander in as much as plaintiff and defendant nos. 2 to 5 are the daughters of Late Sh. Ram Chander and defendant no. 1 is the son of Late Sh. Ram Chander. According to the plaintiff, Late Sh. Ram Chander inherited the ancestral land from his forefathers in his name being the Manager/ Karta of the joint CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 2 of 51 Hindu family including the agricultural land measuring 13 Bighas 16 Biswas comprising in Khasra no. 8//21/1 (214), 9//17 (44); 24/2 (22), 25 (416) situated in revenue estate of village Nanakheri, Delhi and other residential plots/ houses situated in the Lal Dora Abadi of Village Nanakheri, Delhi. It is further the case of the plaintiff that Sh. Ram Chander had died on 02.05.2009 leaving behind the plaintiff and defendants as legal heirs and after the death of Sh. Ram Chander all the legal heirs have inherited the property of Late Sh. Ram Chander in equal share. After the death of Sh. Ram Chander, defendant no. 1 had applied for mutation of land of Sh. Ram Chander in his favour on the basis of Will dated 25.01.2007 purportedly executed by Late Sh. Ram Chander bequeathing the entire movable and immovable properties in favour of defendant no. 1 which had been entered in revenue record in the name of Late Sh. Ram Chander. According to the plaintiff, she had come to know about the Will when defendant no. 1 approached the plaintiff to CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 3 of 51 give a statement before the Tehsildar for sanctioning the mutation in favour of defendant no. 1. The plaintiff has alleged that the aforesaid Will dated 25.01.2007 is forged and fabricated and has been executed only to deprive the plaintiff from her share. The aforesaid Will has been challenged by the plaintiff in the present suit on several grounds including that Late Sh. Ram Chander was not capable to take decision about what is wrong and what is right for him due to paralysis attack since 2003. Another ground on which the aforesaid Will has been challenged by the plaintiff is that after the amendment in Hindu Succession Act in 2005, all the legal heirs of deceased Late Sh. Ram Chander have equal share in the property and as such the Will dated 25.01.2007 which has been executed by Late Sh. Ram Chander after the amendment in Hindu Succession Act only to deprive the plaintiff and defendant nos. 2 to 6 from their share in the property of Late Sh. Ram Chander is not binding upon the plaintiff. According to plaintiff, Sh. Ram Chander had CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 4 of 51 got no right to execute the Will in question for whole of the ancestral property as the plaintiff alongwith defendant nos. 1 to 5 had already become coparcener in the same and had acquired 1/7th share by birth in the aforesaid property. It is the case of the plaintiff that at the best Late Sh. Ram Chander was entitled to execute the Will only in respect of his 1/7th share in the suit property in as much as the name of Sh. Ram Chander was recorded in the revenue records as a Head/ Karta of joint Hindu family consisting of plaintiff and the defendants. The plaintiff has further pointed out certain suspicious circumstances in the plaint in support of her plea that the Will dated 25.01.2007 was forged and fabricated. One of the circumstances pointed out by her is that Late Sh. Ram Chander was an educated person who used to put his signatures in English language whereas in the Will dated 25.01.2007 he had put his thumb impression. Besides, according to her, Late Sh. Ram Chander had never shown any kind of ill will towards the plaintiff and he was CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 5 of 51 having equal love and affection towards the plaintiff and defendants and as such there was no reason for Late Sh. Ram Chander to deprive the plaintiff and defendants no. 2 to 5 of their shares in the suit property. It has further been alleged by the plaintiff that defendant no. 1 was in a position whereby he could have exercised undue influence over Late Sh. Ram Chander for getting the Will executed in his favour. Besides, according to the plaintiff, defendant no. 1 has not served Late Sh. Ram Chander properly despite being the only male issue of deceased Late Sh. Ram Chander. Plaintiff has apprehension that defendant no. 1 will dispose off the ancestral property on the basis of the aforesaid Will and accordingly the plaintiff has sought a decree of declaration of registered will dated 25.06.2007 being illegal, forged, fabricated, null and void and cancelled to the extent of 1/7th share of the plaintiff. The plaintiff has further sought a decree of declaration declaring her to be a cosharer to the extent of 1/7th share in the suit property. CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 6 of 51 In addition, the plaintiff has sought a decree of permanent injunction restraining defendant no. 1 from selling, transferring, alienating or creating third party interest in respect of 1/7th share of the plaintiff in the aforesaid suit property.
3. Defendants were duly served with the summons of the suit and they have filed their written statements. In the aforesaid written statements, they have raised several objections as to the maintainability of the present suit. One of such objections was that the present suit filed by the plaintiff is barred by principles of resjudicata as the defendant no. 1 had earlier filed a probate case before the Ld. District and Sessions Judge, South West District which according to them had already been decided on 22.04.2010 granting a probate of the Will dated 25.01.2007 of which the cancellation/ declaration has been sought by the plaintiff in the present suit. Besides, according to the defendants, being the absolute owner in possession of the suit property, Late Sh. Ram Chander had a right to execute the Will CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 7 of 51 as per law in the name of any person and the same could not have been objected to by the plaintiff. All the contrary averments made by the plaintiff in her suit were denied by the defendants. The defendants have also raised an objection regarding the maintainability of the suit on the ground that the suit has not been properly valued by the plaintiff for the purposes of jurisdiction and court fees. In addition, defendant no. 1 has also raised an objection regarding the maintainability of the suit on the ground that suit is not maintainable under the provisions of Delhi Land Reforms Act 1954 in as much as, according to him, Late Sh. Ram Chander was recorded Bhumidhar of the agricultural land and since bhoomidari rights are exclusive/ special rights conferred under the provisions of the said Act, the provisions of customary Hindu Law are not applicable in respect of the same. Thus, according to him, had Late Sh. Ram Chander been died intestate, prior to coming into force of Hindu Succession (Amendment) Act 2005, the CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 8 of 51 Bhoomidari rights would have devolved as per the provisions of Section 50 of DLR Act, 1954 and if he would have died intestate after coming into force of the said amendment Act, the Bhoomidari Rights would have devolved as per provisions of Section 8 of Hindu Succession Act, 1956. However, in the present case, Late Sh. Ram Chander has left a Will and as such, according to him, the provisions of law relating to intestate succession as contained in Hindu Succession Act are not applicable.
4. The defendant no. 1 has also raised the objections as to the maintainability of the present suit under Section 34, Section 41
(h), 41 (i) and 41 (j) of the Specific Relief Act. According to him, since the plaintiff is not in possession of the suit property, suit for mere declaration of her title over the suit property is barred by the provisions of Section 34 of the Specific Relief Act. According to him, the equally efficacious alternative remedy to challenge the order passed by the Ld. ADJ, South CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 9 of 51 West granting probate of Will dated 25.01.2007 in favour of defendant no. 1 by way of an appeal is available to the plaintiff and as such the present suit for injunction is not maintainable. Besides, according to him, the plaintiff has not come to the court with clean hands and by her conduct she has rendered herself disentitled for any assistance of this court in as much as the objections of the plaintiff in the probate proceedings initiated by the defendant no. 1 have already been rejected by Ld. Probate Court and the present suit has been filed by the plaintiff with mala fide intention to cause undue harassment to the defendants on similar pleas which were taken by her before the probate court. According to defendant no. 1, the plaintiff herein has no personal interest in the subject matter of the suit in as much as the bhumidhari rights being the special rights under the provisions of Delhi Land Reforms Act, father of plaintiff and defendants late Sh. Ram Chander was well within his rights to execute the will dated 25.01.2007 in terms of which CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 10 of 51 plaintiff is not entitled to any share in the suit property. According to defendant no. 1, since Late Sh. Ram Chander was recorded bhumidhar of suit land and the rights which have been conferred under the provisions of Delhi Land Reforms Act were exclusive and special rights of Late Sh. Ram Chander to which the provisions of customary Hindu laws are not applicable, the plaintiff cannot claim herself to be coparcener in respect of the suit property in as much as in terms of Section 48 of the Delhi Land Reforms Act, late Sh. Ram Chander was entitled and empowered to bequeath his entire holding by way of Will.
5. Another objection as to maintainability of the present suit was raised by defendant no. 1 in his written statement on the ground of resjudicata in as much as, according to him, the issues which arise for determination before this court are identical to the issues which have already been adjudicated upon by Ld. Probate Court in its order dated 22.04.2010 in probate Petition No. 26/2009.
CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 11 of 51
6. In her replication to the written statement of defendants, the plaintiff has reaffirmed all the averments made by her in her plaint and denied all the contrary averments made by the defendant no. 1 in his written statement.
7. Thereafter, the matter was fixed for arguments on the maintainability of the present suit vide order dated 27.09.2010 by Ld. Predecessor of this court. Arguments on the maintainability of the present suit were heard by Ld. Predecessors of this court on several dates, however, no orders could have been passed by any of the predecessors. Subsequently, the matter was fixed for arguments by this court on the point of valuation of the suit for the purposes of jurisdiction and court fees whereupon the plaintiff sought time to move an application for valuing the suit correctly. However, on the next date, it was submitted by the counsel for plaintiff that he does not wish to move any application in as much as, according to him, this suit has already been valued correctly for CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 12 of 51 the purposes of court fees and jurisdiction. Accordingly, the matter was once again fixed for arguments on the point of valuation. In the meantime, an application was moved on behalf of the plaintiff under Section 151 CPC alongwith certain documents for valuing the suit correctly for the purposes of court fees and jurisdiction and reply to the aforesaid application was filed on behalf of defendant no. 1 on 13.01.2015.
8. Arguments were accordingly heard on the point of the valuation of the suit for the purposes of jurisdiction and court fees. In addition, arguments were also heard on maintainability of the suit in view of the objections raised by defendant no. 1 in his written statement.
9. For the sake of convenience, the issue regarding maintainability of the present suit of the plaintiff can be dealt with under the following heads:
A. Whether the suit of the plaintiff has not been valued by her for the purposes of court fees CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 13 of 51
and jurisdiction?
10. Perusal of the plaint shows that the present suit has been filed by the plaintiff for declaration of the registered will dated 25.01.2007 in respect of the suit property as illegal, forged, fabricated, null and void and cancelled to the extent of 1/7th share of the plaintiff. A further decree of declaration declaring the plaintiff as cosharer to the extent of 1/7th share in the alleged ancestral property i.e. agricultural land measuring 13 bighas and 16 biswas situated in the revenue estate of Village Nanakheri has been sought for by the plaintiff. Besides, a decree for permanent injunction restraining the defendant no. 1 from creating any third party right, title or interest in respect of the 1/7th share of the plaintiff in the suit property has also been prayed for by the plaintiff. As per para 22 of the plaint, the plaintiff has valued the suit for the purposes of court fee and jurisdiction for the relief of cancellation/ declaration of Will as null and void at Rs. 200/ and for the relief of permanent CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 14 of 51 injunction at Rs. 130/. The initial objection on the part of the defendant no. 1 seems to be that the plaintiff was required to value the suit as per the value of suit property in as much as the present suit has been filed by the plaintiff seeking cancellation of the alleged Will. In view of judgment of Hon'ble Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors. 2010 (2) LJR 331, since the plaintiff is not the executant of the Will, in my considered opinion, the plaintiff was not required to seek cancellation of the aforesaid Will and as such no ad valorem court fees was required to be paid by the plaintiff in the present suit. The plaintiff was only required to seek a declaration that the said Will is void and is not binding on the plaintiff since neither it has been properly executed by late Sh. Ram Chander nor he was competent to execute the same. In the present suit, the plaintiff has also sought a decree for declaration declaring him to be coowner to the extent of 1/7th share in the suit property, however, the said relief, in my CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 15 of 51 considered opinion is merely a surplusage in as much as the effect of declaring the aforesaid Will as null and void would have the effect of declaring the plaintiff a sharer to the extent of 1/7th share in the suit property and till the time the Will is declared as null and void by this court, the plaintiff could not have claimed any share in the suit property. Thus, had the suit been filed for declaration simplicitor, the plaintiff could have valued the suit as per the provision of Article 17 Schedule II of the Court Fees Act. However, in addition to the aforesaid declaration regarding Will being null and void the plaintiff has also prayed for a consequential relief of injunction restraining the defendants from creating any third party right, title or interest in the suit property. Thus, in view of the aforesaid facts provisions of Section 7 (iv) (c) of the Court Fees Act, 1870 are attracted to the present case and in view of the fact that the declaration as well as injunction sought by the plaintiff is with respect to immovable property i.e. agricultural land, value of CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 16 of 51 the suit for the purposes of court fees was required to be calculated as per the provisions of Section 7 (v) of the Court Fees Act as applicable to the State of Delhi. Under these circumstances, it is submitted by counsel for defendant no. 1 that since agricultural land is neither being assessed to land revenue nor the land revenue is being paid on the said land, the provisions of Section 7 (v) (a) to (c) of the Court Fees Act are not applicable for valuation of the present suit and the plaintiff is supposed to value the suit as per the market value of agricultural land which is the subject matter of the aforesaid Will as per provisions of Sec. 7 (v) (d) of Court Fees Act.
11. On the other hand, it is submitted by the counsel for plaintiff that a bare perusal of the Khatoni for the year 1984 1985 relied upon by the plaintiff shows that the land in question has been assessed to land revenue and there is no exemption from assessment of the land for the purposes of land revenue under the provisions of Delhi Land Reforms Act, 1954. According to CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 17 of 51 him, merely because the collection of the land revenue has been stopped due to the pendency of consolidation proceedings in terms of East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948, the plaintiff cannot be asked to value the suit as per the market value of the suit property in as much as till the time the land is freshly assessed to land revenue, the bhumidhar is liable to pay the land revenue as per the last assessment.
12. I find force in the aforesaid submission made on behalf of the plaintiff. In my considered opinion, in the absence of any exemption order exempting the land from assessment for the purposes of land revenue, the provisions of Section 7 (v) (a) &
(b) of Court Fee Act cannot be held to be not applicable.
Besides, in my considered opinion, for application of Section 7
(v) (a) & (b) of Court Fee Act, the actual payment of the land revenue by the bhumidhar for the time being is not relevant and what is relevant is whether or not land is liable to be assessed to CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 18 of 51 land revenue and whether or not the recorded bhumidhar is liable to pay the land revenue for the same. In case the land is liable to be assessed to land revenue and Bhumidhar is liable to pay the land revenue to the Government under the provisions of Delhi Land Reforms Act, it does not make any difference in case the fresh assessment/ collection of land revenue is kept in abeyance during the consolidation proceedings so far as the applicability of provisions of Section 7 (v) (a) to 7 (v) (d) of the Court Fees Act is concerned. The plaintiff has relied upon several judgments in support of her submission that the suit has been valued by the plaintiff correctly under Section 7 (iv) (c) read with Section 7 (v) (b) of the Court Fees Act:
i. Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. 2010 (2) Latest Judicial Report 331 (SC) ii. Gurjeewan Singh Vs. Jagar Singh 1990 PLJ 234 (P & H).
iii. Narain Singh Vs. Sher Singh & Ors. AIR 1974 P & H 185. CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 19 of 51
iv. Ishwar Vs. Om Pati & Ors. 2006 (2) RCR(Civil) 514 (P
& H).
13. On the other hand, leaned counsel for defendant no. 1 has relied upon the following judgments in support of his submission that the plaintiff is required to value the suit for the purposes of jurisdiction and court fees as per market value of land in view of provisions of Section 7 (v) (d) of the Court Fees Act:
(i) Surjit Kumar Vs. Jai Paul and Others AIR 1975 Punjab and Haryana 91 (FB)
(ii) Balu Deochand Kulmi and Anr. Vs. Fundibai Amichand Kulmi AIR 1972 MP 22 (FB)
14. Strong reliance has been placed by Ld. Counsel for defendant no. 1 on the following observations of Full Bench of Hon'ble Madhya Pradesh High Court in AIR 1972 MP 22 at page no. 27 para 19:
"19. In cases falling under Section 7 (v) (d) of the Act, the plaintiff cannot be allowed to pay court fee CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 20 of 51 either on the basis of land revenue on whole estate of which the land claimed in suit form part but is not assessed to separate land revenue, nor can the plaintiff be allowed in such cases to work out the proportion of land revenue in respect of part of land claimed by him and pay court fees on the proportionate multiple of the land revenue by working it out according to Section 7 (v) (b)."
15. While relying on the aforesaid observations, it was submitted on behalf of the defendant no. 1 that it is the provisions of Section 7 (v) (d) of Court Fees Act which are applicable to the present suit of the plaintiff and not the provisions of Section 7
(v) (a) or (b) of the Court Fees Act in as much as though the suit property form part of the estate paying revenue to the Government but the same is not separately assessed.
16. I have carefully gone through the aforesaid judgment as well as judgment of Full Bench of Hon'ble Punjab and Haryana Court relied upon by counsel for defendant no. 1 and in my considered opinion, the aforesaid judgments instead of supporting the case CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 21 of 51 of the defendant no. 1 are rather supporting the case of the plaintiff. The observations which have been relied upon by the learned counsel for defendant no. 1 and which have been reproduced hereinabove are not applicable to the present case in as much as the said observations are applicable in cases where the court comes to a conclusion that the case is governed by the provisions of Section 7 (v) (d) of the Act. Whether or not the present case is covered by provisions of Section 7 (v) (d) of the Act can be ascertained by this court on the basis of principles laid down by Hon'ble Punjab and Haryana High Court and Hon'ble Madhya Pradesh High Court in the judgments relied upon by the learned counsel for defendant no. 1. The following observations of Hon'ble Full Bench of Punjab and Haryana High Court in AIR 1975 Punjab and Haryana 91 (FB) are worth quoting:
"5. To understand the true scope of the provisions made in Sections 7 (v) (b) and 7 (v) CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 22 of 51
(d), Section 7 (v) (b) has to be read alongwith Section 7 (v) (a), as the word 'aforesaid' used in subclause (b) relates back to subclause
(a). From the bare perusal of subclause (a), I find that the same has been divided into two separate paragraphs. The first paragraph deals with an entire estate or a definite share of an estate paying annual revenue to Government; which the second portion deal with land which forms part of such an estate (that is to say of an estate which pays annual revenue to Government) and is recorded in the Collector's revenue. Subclause (b), as is apparent from its bare reading, also divides the subject in the same way. Thus from the aforesaid analysis I find that a distinction has to be drawn between the words 'share' and 'part'. The first part of sub clauses (a) and (b) would cover the cases where the land forms an entire estate or is a definite share of an estate.
Again the question would arise as to what is the meaning of the word 'share'. The CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 23 of 51 Legislature has purposely used the words 'share' and 'part' in subclauses (a) and (b). In my view the word 'share' used in these sub clauses would mean onefourth or three annas or 2/3/4 pies or any other fraction howsoever clumsy of an entire estate which pays annual revenue to the Government while part of an estate would mean a specified area which may be described in Kanals, Bighas, acres or yards. But in the case of part of an estate, in order to bring the case within the four corners of sub clause (b), it has further to be shown that the same forms part of an estate which is paying annual revenue to Government and that such part is recorded in the Collector's register as separately assessed with such revenue. The instant case, when judged in the light of what has been stated above, does not present any difficulty nor is it necessary to deal with the judicial decisions cited at the Bar individually and can straightway be decided on the allegation made in the plaint. In the plaint a CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 24 of 51 decree for possession of a specific part of land gifted has been prayed for, as is evidence from the prayer clause, which reads as under: "It is, therefore, prayed through this petition of plaint that the plaintiff's suit for possession of 961 square yards of land bounded on the East public land 149 feet, on the West Ganga Ram (In fact it is vacant site of the joint Hindu Family constituted of the plaintiff and defendant no. 2) side measuring 150 feet 6 inches, on the North - Lekh Ram side measuring 57 feet 10 inches, on the South -
Thoroughfare - side measuring 57 feet 9 inches, out of Khasra no. 2506/2 situate in the area of Bhatinda which, being the joint Hindu family property was gifted away by defendant no. 2 to defendant no. 1 without any reason and illegally on 30th September, 1969 may be decreed in favour of the plaintiff and against defendant no. 1 with cost and if the plaintiff is found entitled to any other relief from the proved facts, the same may also be got paid CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 25 of 51
with cost"
17. Similarly the following observations made by Hon'ble Mr. Justice Bose in Kashirao Vs. Ram Chandra, 193643 Taxing Decisions 39 (Nagpur) which has been endorsed by Full Bench of Hon'ble Madhya Pradesh High Court in AIR 1972 MP 22 (FB) are worth quoting:
"Therefore the crux of the situation is not the number of digits in the fraction defining the share but whether the claim is for a definite share of a whole estate as opposed to a part of an estate separately assessed to revenue.
In my opinion the section means this. If the plaintiff Claims ¼ or 5 or 6 pies, or any other fraction (however clumsy) of an entire estate which pays annual land revenue to Government then the first part of Cl (a) or
(b) as the case may be applies. All this would be a definite share. But if he claims a specified area (22 acres here), then that CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 26 of 51 relates to a 'part' as opposed to a 'definite share' and the second portion will apply if that area is separately assessed. If it is not, then S. 7(v) (d) will apply.
The word 'share' is ordinarily used in litigation to denote a definite fraction of a bundle or parcel of rights and is an abstraction. When therefore the section speaks of shares in an estate as opposed to parts of an estate (which is what is does), then it seems to me that it is drawing a distinction between the abstract rights in an estate and the concrete or physical portion of it".
18. The aforesaid principles, if applied to the fact of the present case, would make it clear that in the present suit the plaintiff has sought the relief in respect of a definite share of the estate paying land revenue to the Government i.e. 1/7th of 1/6th share of late Sh. Ram Chander in the agricultural land. As per the provisions of Delhi Land Reforms Act, 1954 and rules made CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 27 of 51 there under the land revenue is assessed for a period of 30 years and since the land revenue is settled once in every thirty years and not permanently, the suit was required to be valued at five times the revenue payable by the share of estate to which the claim has been made by the plaintiff in the suit. Through her application under Section 151 CPC, the plaintiff has valued the suit equal to 10 times of land revenue which is more than the value for which the plaintiff was required to value the present suit. As such, in my considered opinion, the suit of the plaintiff has not been undervalued either for the purposes of jurisdiction or for the purposes of court fees. Requisite court fees has already been paid by the plaintiff alongwith the plaint. B. Whether the suit of the plaintiff is barred by res judicata in view of the fact that all the objections of the plaintiff to the registered Will dated 25.01.2007 have already been adjudicated by a competent probate court in probate petition NO. 26/09 vide judgment dated 22.04.2010 which CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 28 of 51 has not been challenged by the plaintiff before any Superior Court:
19. I do not find any force in the aforesaid objection sought to be raised by the defendant no. 1 in the present suit in view of settled legal position that the probate petition confers no title in favour of the beneficiary not does it prove the capacity of the Testator to execute the Will with regard to the property in question. It is further the settled legal position that the probate court determines only the genuineness of the Will and the title of property in favour of the legator/ testator has to be established independent of the Will before the legatee can claim any right under the Will. It has been so observed by Ld. Probate Court in para no. 26 of judgment dated 22.04.2010.
Thus, in view of the aforesaid settled legal position, though plaintiff cannot be allowed to reagitate the issue regarding the genuineness of the Will but she can still agitate the issue as to competence of Late Sh. Ram Chander to execute the Will in CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 29 of 51 favour of defendant no. 1 herein. Thus the present suit cannot be said to be barred by principles of res judicata . C. Whether the present suit of the plaintiff is hit by provisions of Section 34 of the Specific Relief Act?
20. Learned counsel for plaintiff has relied upon the judgment of Hon'ble Delhi High Court in Mohinder Kumar Vs. Sh. Bhim Sain and Ors 82 (1999) Delhi Law Times 800 in support of his submission that suit of the plaintiff is not barred under Section 34 of the Specific Relief Act. No judgment taking a contrary view has been placed on record by counsel for defendant no. 1 in support of his submission that the suit of the plaintiff is barred under Section 34 of the Specific Relief Act. In my considered opinion, the facts of the present case are squarely covered by the judgment of Hon'ble Delhi High Court in the aforesaid case relied upon by the plaintiff and as such in view of the aforesaid authoritative pronouncement, the present suit of CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 30 of 51 the plaintiff cannot be said to be barred under the provisions of Section 34 of the Specific Relief Act, 1963. D. Whether the jurisdiction of this court to try the present suit of the plaintiff is barred under the provisions of Delhi Land Reforms Act, 1954?
21. In my considered opinion, in view of judgment of Hon'ble Delhi High Court in Mrs. Kamla Devi Vs. Ms. Kusum and Another dated 14.07.2008 passed in CRP No. 82/2008, the jurisdiction of this court to decide the present suit for declaration of Will dated 25.01.2007 as null and void alongwith the consequential relief of injunction is not barred under the provisions of Section 185 of the Delhi Land Reforms Act. E. Whether the Will is liable to be declared as null and void as father of plaintiff was not competent to execute the Will in respect of the suit property?
22. The last and most significant objection made on behalf of the defendant no. 1 as to the maintainability of the present suit is CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 31 of 51 that father of the plaintiff and defendants herein i.e. Late Sh. Ram Chander being the recorded bhumidhar of the suit property was fully competent to execute the registered Will dated 25.11.2007 in favour of any one he likes and no embargo could have been placed on the powers of Late Sh. Ram Chander to execute the said Will by placing reliance on the provisions of customary Hindu law as to coparcenery. The Will in question has been challenged by the plaintiff herein on twin grounds. One that the Testator of the Will was not competent to execute the Will in respect of the suit property which, according to the plaintiff, was an ancestral property in the hands of Testator and in which the plaintiff and all the defendants have become co parcener after coming into force of the Hindu Succession (Amendment) Act 2005. The second that the said Will is forged and fabricated and the same had not been executed by Late Sh. Ram Chander as he was not capable to take decisions about what is right and what is wrong for him due to a paralysis attack CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 32 of 51 since 2003. In my considered opinion, the issue regarding genuineness of the aforesaid Will dated 25.01.2007 has already been decided by the Probate Court vide judgment dated 22.04.2010 whereby the probate has been granted by Ld. Probate Court in favour of defendant no. 1 of the aforesaid Will. The aforesaid judgment/ order dated 22.04.2010 passed by Ld. Probate Court has not been challenged by the plaintiff before any superior court and as such the same has attained finality. The plaintiff cannot be allowed to reagitate the issue regarding the genuineness of the aforesaid Will again in the present suit. Thus the only objection to the aforesaid Will which survives is whether Late Sh. Ram Chander was not competent to execute the aforesaid Will in view of provisions of Section 6 of the Hindu Succession Act as amended vide Hindu Succession (Amendment) Act, 2005. If the answer to the said question is in affirmative, the suit is maintainable whereas if the answer is in negative this suit is not maintainable. It is submitted by learned CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 33 of 51 counsel for plaintiff that the suit property which is an agricultural land was inherited by Late Sh. Ram Chander from his forefathers in his name being the Manager/ Karta of the Joint Hindu Family and the same in his hand was an ancestral land in which the plaintiff alongwith all the defendants have become coparcener after coming into force of the Hindu Succession (Amendment) Act 2005 and as such even if Late Sh. Ram Chander was competent to execute the Will in respect of his share in the said ancestral land, he could not have executed the Will in respect of 1/7th share of the plaintiff in the suit property.
23. On the other hand, it is submitted by learned counsel for defendant no. 1 that after coming into force of Delhi Land Reforms Act, 1954, the law relating to Mitakshara coparcenery ceased to have any application on the agricultural land. According to him, with the coming into force of the Delhi Land Reforms Act, 1954 , the proprietary rights in the agricultural CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 34 of 51 land have been abolished and certain special rights i.e. bhumidhari rights have been created in favour of the erstwhile proprietaries/ actual tillers of land. The aforesaid rights, according to him, are not only heritable but are transferable and no restriction, other than the restrictions placed on the transferability and heritability of the aforesaid rights under the provisions of Delhi Land Reforms Act, can be placed on the aforesaid rights under the customary Hindu law. During the course of arguments, it was enquired from both the parties as to whether the name of Late Sh. Ram Chander was recorded as bhumidhar in respect of the suit property immediately after coming into force of Delhi Land Reforms Act and it was submitted on behalf of the parties that at the time of coming into force of Delhi Land Reforms Act, 1954, name of father of Late Sh. Ram Chander was recorded as bhumidhar who had died in the year 1973. Upon the death of father of Late Sh. Ram Chander, the suit property was inherited by Late Sh. Ram CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 35 of 51 Chander in the year 1973. As per the plaintiff, the said property was inherited by him in the capacity of Karta of Joint Hindu Family whereas according to the defendant, property could not have been inherited by Late Sh. Ram Chander as Karta of Joint Hindu Family in as much as the law of coparcenary was made inapplicable to the bhumidhari rights by virtue of the provisions of Section 2 (i) (vi) of the Delhi Land Reforms Act, 1954. Learned counsel for defendant no. 1 has relied upon the judgment of Hon'ble Delhi High Court in Nathu Vs Hukam Singh AIR 1983 Delhi 216 and Brij Narayan Aggarwal Vs. Anup Kumar Aggarwal and Ors. AIR 2007 Delhi 254 in support of his aforesaid submission. In addition he has also relied upon the following judgments i. Ram Awalamb and Ors. Vs. Jata Shankar & Ors. AIR 1969 Allahabad 526 (FB).
ii. Neelam and Anr. Vs. Sada Ram and Anr. decided by Hon'ble Delhi High Court on 30.01.2013 CS (OS) CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 36 of 51
823/2010
iii. Vimla Devi and Ors. Vs. Zile Singh and Ors. in CS(OS)
340/05 decided by Hon'ble Delhi High Court on October 28,2013.
24. On the other hand, learned counsel for plaintiff has relied upon the following judgments in support of his submissions that the plaintiff has become a coparcener by virtue of the provisions of Section 6 of the Hindu Succession Act, as amended by the Hindu Succession (Amendment) Act, 2005 and as such late Sh. Ram Chander could not have executed the Will in respect of the 1/7th share of the plaintiff in the suit property:
i. Kavita and Anr. Vs. Samunder Singh & Ors. 2013 (4) CLJ 50 Delhi.
ii. Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another (2011) 9 Supreme Court Cases 788 iii. Nirmala and Ors. Vs. Government of NCT of Delhi and Ors. 170 (2010) DLT 577 DB iv. Chander Bhan Vs. Har Nath Singh and Ors. 20 (1981), Delhi Law Times SN 32 CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 37 of 51
v. Jata Shankar Vs. Prem Shankar and Ors. 1968 RD 165.
vi. State of UP Vs. Additional District Judge, Lalitpur and
ors. 1982, Allahabad Law Journal, Page 23. vii. Ram Chandra and Ors. Vs. Commissioner and Director of Consolidation 1970 Revenue Decision Page 283. viii. Vishwanath Singh Vs. State of UP and Ors. 1978 Allahabad Law Journal 1085.
vi. Kailash Rai Vs. Jai Ram and Ors. AIR 1973 SC 893.
25. I have heard the submissions made on behalf of the parties and have also perused the record. I have also carefully gone through the judgments relied upon by the parties in support of their respective submissions. In my considered opinion, the law regarding the applicability of customary Hindu Law to the bhumidhari rights under the Delhi Land Reforms Act had been settled by the Hon'ble Delhi High Court way back in the year 1981 in its judgment reported as Nathu Vs. Hukam Singh and Others AIR 1983 Delhi 216 wherein after referring to the judgment of Hon'ble Supreme Court in Hatti Vs. Sunder Singh CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 38 of 51 (1970) 2 SCC 841 and judgment of Hon'ble Delhi High Court in Ram Mehar Vs. Musamad Dhakar ILR (1972) 2 Delhi 922 and judgment of Full Bench of Hon'ble Allahabad High Court in Ram Awalamb Vs. Jata Shankar AIR 1969 Allahabad 526(Full Bench). It was observed by Hon'ble Delhi High Court as follows:
"14 - The result of above discussion is that the right of transfer of interest by a Bhumidhar of its bhumidhari rights in the agricultural land is controlled only by the provisions of the Act. The provisions of the customary law relating to restrictions on transfer do not apply to the transfer of bhumidhari rights"
26. It has further been observed in the aforesaid judgment in Para 11 as follows: " The rights to the tenure holder are granted under the provisions of the Act. The restrictions imposed on the right of a Bhumidhar are also by or under the Act. There is no warrant to travel CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 39 of 51 outside the Act and the Rules for further restrictions in the right or manner of transfer of the bhumidhari rights. Reading any further restrictions by involving the customary law would come in conflict with the right granted under the Act. Any such impediment would be inconsistent with the provisions of the Act. The rule of custom pleaded and upheld by the courts below in this case is inconsistent with the provisions of the Act. The inconsistent Rule having the force of law stands repealed by Section 2 (i) (vi) of the Act".
27. It is submitted by the counsel for plaintiff that the aforesaid judgment is not applicable to the facts situation in the present case in as much as in the aforesaid judgment, Hon'ble Delhi High Court was dealing with the right of a bhumidhar to transfer the agricultural land. I do not find any force in the submission made on behalf of the plaintiff. Bare perusal of the aforesaid judgment would show that principle question of law which was raised before the Hon'ble Delhi High Court in the CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 40 of 51
aforesaid letters patent appeal as set out in para 1 of the
judgment was about the right of male lineal descendents to impugned alienation of bhumidhari rights granted under the Delhi Land Reforms Act, 1954 based on the customary law applicable to the proprietors of agricultural land before the enforcement of the said Act. The said customary law was the Hindu law of Mitakshara coparcenary placing restriction on the right of Karta to alienate joint family property except for legal necessity etc. In the aforesaid case, the suit was filed by two of the members of the Joint Hindu Family on the ground that since land in the suit was ancestral qua the plaintiffs and defendant no. 2, defendant no. 2 could not have executed the mortgage deed without possession in favour of defendant no. 1 without any legal necessity. The court under the aforesaid facts and circumstances had made the aforesaid observations which have been quoted hereinabove, holding that the provisions of customary Hindu law placing restrictions on the right of a Karta CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 41 of 51 or coparcenor to alienate the joint family property otherwise than for certain specified purposes are not applicable to the bhumidhari rights which are special rights created under the provisions of Delhi Land Reforms Act. The similar view has been taken by Full Bench of Hon'ble Allahabad High Court in Ram Awalamb and Ors. Vs. Jata Shankar and Ors AIR 1969 Allahabad 526 (Full Bench) wherein the court was interpreting the provisions of UP Zamindari Abolition and Land Reforms Act, 1950 which are in parimateria with the provisions of Delhi Land Reforms Act, 1954. Following observations of Full Bench of Hon'ble Allahabad High Court are worth quoting:
"44. Our conclusion can, therefore, be briefly summarised as follows:
(1) Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notion of Hindu law cannot be invoked to determine that status.
CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 42 of 51
(2) Where in certain class of tenancies such
as permanent tenure holder, the interest of a tenant was both heritable and transferable in a limited senses and such a tenancy could, prior to the enforcement of the Act, be described as joint family property or coparcenary property, the position changed after Act I of 1952 came into force. Thereafter the interest of each bhumidhar, being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit.
(3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member"
28. In view of the aforesaid authoritative pronouncements, in my considered opinion, the reliance placed by learned counsel for plaintiff on judgment of Hon'ble Single Judge of Delhi High CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 43 of 51 Court in RFA no. 290/1979 decided on January 8, 1981 reported as Chander Bhan Vs. Harnath Singh & Ors. is highly misplaced in as much as the facts of the aforesaid case before the Hon'ble Delhi High Court were entirely different from the facts of the present case. Similar is the case with following judgments relied upon by learned counsel for plaintiff:
i. State of UP Vs. Additional District Judge, Lalitpur and Ors. 1983 All. LJ 23 ii. Ram Chandra and Ors. Vs. Commissioner & Director of Consolidation 1970 RD 283.
iii. Vishwanath Singh Vs. State of UP and Ors 1978 All. LJ 1085.
iv. Kailash Rai Vs. J.J. Ram and Ors. AIR 1973 SC 893. v. Jata Shankar Vs. Prem Shankar and Ors. 1968 RD 165 (All HC)
29. In all the aforesaid judgments, the Hon'ble Courts had taken a view that where a joint Hindu family had a proprietary interest, the property being Sir or Khudkhast, then prior to the date of vesting, it would be governed by the provisions of Hindu Law. CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 44 of 51 If member of the joint Hindu Family got any share in it from his father it would be ancestral property in his hand qua his son and lineal descendents. His sons and grand sons who were in existence as on the date of coming into force of the land reforms legislation would become cobhumidhars with respect to their respective shares even if their names have not been recorded in the Khatoni after the year 1954.
30. What has been said in the aforesaid judgments can be illustrated by way of following illustration. Suppose before coming into force of the provisions of Delhi Land Reforms Act, 1954 there was Mitakshara coparcenary in existence consisting of A,B,C and D, which was holding an agricultural land A being the father , B and C being the sons and D being the son of predeceased son of A. Immediately upon coming into force of the provisions of the Delhi Land Reforms Act, 1954 all of them being proprietaries of the agricultural land would have been entitled to get their names recorded as Bhumidhar, however, in CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 45 of 51 view of summary nature of proceedings for declaration of the proprietors as bhumidhars the name of only A was recorded as bhumidhar in the revenue record. It was under the aforesaid circumstances that it had been held in the aforesaid judgments that even if name of B,C and D was not recorded as co bhumidhars in the revenue records but they shall be considered to be cobhumidhar in respect of the said agricultural land. However, it is settled legal position that they would not hold the aforesaid property as joint tenants but as tenants in common and upon their death, the said property would not go as per rules of survivorship as is the case with coparcernory property but the same shall devolve upon the legal heirs of each deceased cosharer as per the provisions of Section 50 of the Delhi Land Reforms Act, if the succession has opened prior to 09.09.2005 and as per the provisions of Section 8 of Hindu Succession Act, 1956 in case of a male Hindu dying intestate and as per Sections 15 & 16 of the Hindu Succession Act,1956 in case of CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 46 of 51 female Hindu dying intestate, if succession has opened after 09.09.2005 i.e. after coming into force of Hindu Succession (Amendment) Act, 2005.
31. In the present case as has already been observed the name of late Sh. Ram Chander was recorded as bhumidhar after inheritance by him of the share of his father in the year 1973. The aforesaid rights have been inherited by Late Sh. Ram Chander under the provisions of Section 50 of the Delhi Land Reforms Act, 1954 and as such the the aforesaid rights would have been inherited by him in his individual capacity and not as Karta of Joint Family of which the plaintiff is claiming herself to be a member. In view of judgment of Hon'ble Supreme Court in Hatti Singh Vs. Sunder Singh (supra) and judgment of Hon'ble Delhi High Court in Nathu Singh Vs. Hukam Singh (supra), the aforesaid right of Late Sh. Ram Chander is not only heritable but is transferable without any restrictions other than the restrictions under the provisions of Delhi Land CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 47 of 51 Reforms Act. As per the provisions of Section 48 of Delhi Land Reforms Act, Late Sh. Ram Chander was competent to execute a Will in respect of the entire property i.e. the suit property in favour of any one. In my considered opinion, the effect of deletion of Section 4 (2) of the Hindu Succession Act, 1956 through the Hindu Succession (Amendment) Act, 2005 is that the provisions of Section 8 to 16 of the Hindu Succession Act shall override the provisions of Section 50 to 53 of the Delhi Land Reforms Act, 1954 in case of succession of a Hindu dying intestate after coming into force of Hindu Succession (Amendment) Act, 2005.
32. In Kavita Vs. Samunder Singh (supra) and in Nirmala & Ors.
Vs. Govt. of NCT of Delhi & Ors. (supra), Hon'ble Courts were dealing with the impact of deletion of Sec. 4 (2) of Hindu Succession Act, 1956 over the provisions of Section 50 to 53 of Delhi Land Reforms Act, 1954 and the Hon'ble Courts were not dealing with the case of testamentary succession or impact of CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 48 of 51 customary law relating to Mitakshara coparcenary on the provisions of Delhi Land Reforms Act, 1954. Besides, in Kavita & Anr. Vs. Samundar Singh & Ors. (supra) the Hon'ble Delhi High Court has upheld the dismissal of the claim of appellants for partition of agricultural land by the Trial Court. Thus, the Hon'ble Court was dealing with partition of ancestral property which was governed by customary Hindu law and as such Section 6 of the Hindu Succession Act, 1956 as amended by 2005 Act was found to be applicable in that case.
33. In the present case, admittedly late Sh. Ram Chander has left a Will in favour of defendant no. 1 and as such he has not died intestate and since the provisions of customary Hindu law as to Mitakshara coparcenary have already been held to be not applicable to the bhumidhari rights therein, question of the plaintiff becoming coparcenor alongwith the defendants in the suit property after coming into force of the Hindu Succession (Amendment) Act, 2005 does not arise at all. A bare perusal of CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 49 of 51 Section 30 of the Hindu Succession Act also shows that a Hindu is competent to dispose of his property by way of testamentary disposition. Thus, in view of the same, even if the provisions of Hindu Succession Act are held to be applicable in case of all successions opening after 09.09.2005 i.e. either testamentary or intestate succession, late Sh. Ram Chander was competent to execute the Will in favour of defendant no. 1 even as per the provisions of Section30 of the Hindu Succession Act and since the aforesaid Will has been held to be genuine by Ld. Probate Court vide its judgment dated 22.04.2010, the plaintiff has got no locus standi to challenge the aforesaid Will on the ground of lack of competence of Late Sh. Ram Chander to execute the same.
34. Late Sh. Ram Chander was also competent to execute the Will in respect of residential house in as much as the same was inherited by him from his father in 1973 i.e. after coming into force of Hindu Succession Act, 1956 and in view of judgment CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
Order dated 16.02.2015 Page no. 50 of 51 of Hon'ble Supreme Court in CWT Vs. Chandersen, AIR 1986 SC 1753, the said house would become the separate property of Late Sh. Ram Chander in which plaintiff did not acquire any right by birth. While taking the said view, I am also supported by the judgment of Hon'ble Delhi High Court in Neelam & Anr. Vs. Sadaram & Ors. CS (OS) No. 823/2010 decided on 30.01.2013.
35.Thus in view of the above discussions, the suit of the plaintiff in the present form is not maintainable and the same is hereby dismissed.
36. Decree Sheet be prepared accordingly.
Announced in the open court on this 16th day of February, 2015 This order consists of fifty one signed pages.
(Arun Kumar Garg) Civil Judge(SW)/Dwarka Courts New Delhi/16.02.2015 (akn) CS No. 60/11 Kamlesh . Vs. Jai Bhagwan & Ors.
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