Delhi District Court
Shri A R Jain(Since Deceased) vs State on 26 November, 2011
IN THE COURT OF PAWAN KUMAR MATTO,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
P.C. No.56/2009
IN THE MATTER OF :
Shri A R Jain(Since deceased) ........Petitioner
Versus
State .......Respondent
O R D E R
1. Briefly stating that Shri A R Jain had filed a petition for grant of letter of administration u/s 278 of Indian Succession act, which was granted by the court of Shri G C Jain, then the Ld. District Judge, Delhi. Shri A R Jain on the basis of the WILL executed in his favour by Shri Jiwan Dass Kapoor, had executed the WILL in favour of the present applicant/objector Shri R K Jain and the applicant is in the possession of 108 square yards of the said property.
2. Smt Nirmla Jain, who was attesting witness to the WILL executed by Shri A R Jain in favour of Shri R K Jain, had executed the sale deed in favour of the present petitioner, Shri Kartik Budhiraja and Shri Kartik Budhiraja has filed petition U/s 263 of Indian Succession act for revocation of the probate and letter of admission dated 29.9.1980.
3. Whereas, Shri Raj Kumar Jain/objector/applicant has filed an application u/o 1 rule 10 r.w. 151 CPC for seeking permission to be impleaded as party in the petition, PC:56/09 Shri A R Jain(Since deceased) V/s State 1 Of 9 stating therein that applicant is the brother of late Shri A R Jain s/o Shri Rati Ram Jain r/o A102, Vivek Vihar,Phase1, Delhi95 , and Shri A R Jain expired at New Delhi on 21.1.95. It is further stated that Shri A R Jain has left behind a WILL dated 17.2.92 in favour of the applicant namely Shri R K Jain and a registered General Power of Attorney dated 17.2.92, duly registered with the Sub Registrar, Ghaziabad, Book no. IV,Volume no. IV Pages no. 355 to 358.
4. It is further stated that Shri A R Jain (during his life time) was the owner in possession of entire property bearing no. A102, Vivek Vihar, Phase 1, Delhi 95 and was acting as its owner on the basis of a duly probated WILL dated 6.11.74 executed in his favour by the original lessee of the property, Shri Jiwan Das Kapoor.
5. It is further stated that the WILL of Late Shri Jiwan Dass Kapoor dated 6.11.74, bequeathing the property in favour of Shri A R Jain was a duly registered WILL vide document no. 406, Addl Book no. 3, Volume no. 13, pages 123 to 126, on 12.11.74 was probated by the District Judge Delhi vide Probate no. 95 of 1979 and the letters of Administration with WILL attached were granted in favour of Shri A R Jain by an order dated 5.8.80 and letters of administration dated 29.9.80.
6. It is further stated that late Shri A R Jain, by virtue of the WILL dated 17.2.92 bequeathed a portion of the property measuring about 108 sq. yards in favour of the applicant and thereafter the applicant/objector raised the construction on the said portion of 108 sq.yards on the ground to second floor.
7. It is further stated that during life time of Shri A R Jain, the property on the basis of the registered WILL, was duly probated and assessed in the record of the MCD and it was late Shri A R Jain, who raised the construction on the other portion of the PC:56/09 Shri A R Jain(Since deceased) V/s State 2 Of 9 property measuring 200 sq.yards, maintained and looked after the same during his life time. It is further stated that at the time of demise of A.R Jain, he was living with his wife Smt Nirmala Jain and his son Anurag Jain, in a portion of the property.
8. It is further stated that Smt Nirmala Jain w/o Late Shri A R Jain was aware of the rights of Shri A R Jain, as the beneficiary of the WILL of the original lessee of the said property Shri Jiwan Das Kapoor. It is further stated that Smt Nirmala Jain was the contractor and an attorney under the construction agreement dated 1.11.74 and GPA dated 1.11.74 executed by Shr Jiwan Das Kapoor in favour of Smt Nirmala Jain.
9. It is further stated that though Smt Nirmala Jain was the beneficiary under the construction agreement, as well as, the GPA executed by late Shri Jiwan Dass Kapoor, the original lessee of the property, Shri A R Jain was the beneficiary of the WILL of late Shri Jiwan Das Kapoor who died on 20.4.77.
10.It is further stated that Smt Nirmala Jain at the time of grant of probate of the WILL dated 6.11.74 in favour of Shri A R Jain, did not raise any objection regarding the WILL dated 6.11.1974 and thus abandoned her rights, as she was an attesting witness to the WILL, in favour of Shri A R Jain and the probate was granted in favour of Shri A R Jain and after the grant of probate in his favour, Shri A R Jain alongwith his wife Smt Nirmala Jain was living in the property, on the basis of the WILL, in his favour and also got the property mutated in the records of the MCD in his exclusive name.
11.It is further averred that during his life time, Shri A R Jain with the consent and knowledge of Smt Nirmala Jain, executed the WILL dated 17.2.1992 regarding a PC:56/09 Shri A R Jain(Since deceased) V/s State 3 Of 9 portion of the property in favour of the applicant/objector. It is further averred that on the basis of the WILL executed by Shri A R Jain, the applicant/objector raised construction over a portion of the suit property and he has been living therein, as owner in possession.
12.It is further averred that after the demise of Shri A R Jain, the intention of Smt Nirmala Jain became dishonest and her relationship with the family of the objector/applicant became strained and Smt Nirmala Jain without disclosing the title and ownership of the property of Shri A R Jain and the grant of probate of the WILL dated 6.11.74 in favour of Shri A R Jain, and she claimed rights in the property, on the basis of the agreement of construction and GPA in her favour and applied to the lessor L & DO for conversion of the property into freehold in her favour and obtained conveyance deed dated 19.11.2008, regarding the entire property, in her favour.
13.It is further averred that Smt Nirmala Jain in a clandestine manner executed sale deed of the entire property including the portion of objector/applicant in favour of one Shri Kartik Budhiraja on dated 2.2.2009.
14.It is further averred that the applicant/objector on coming to know of the said developments and the fact that Smt Nirmala Jain had got the property wrongly mutated and converted into free hold in her exclusive name and of selling the entire property to one Shri Kartik Budhiraja, who was seeking to dispossess the applicant/objector, filed a suit for permanent and mandatory injunction, which was subsequently amended to include declaration, regarding the rights claimed by the applicant/objector in the property on the basis of the WILL executed in favour of the PC:56/09 Shri A R Jain(Since deceased) V/s State 4 Of 9 applicant/objector by late Shri A R Jain in the suit no. CS(OS) 494/09, which is pending in the hon'ble High Court and simultaneously the applicant had also filed a probate petition before the hon'ble High Court of Delhi for probate of WILL dated 17.2.1992 executed in favour of the applicant/objector by late Shri A R Jain, vide probate no. 14/2009 and in the said probate petition Smt Nirmala, Anurag Jain(wife and son of late Shri A R Jain) and Shri Kartik Budhiraja are the respondents, Kartik Budhiraja is claiming through Smt Nirmala Jain, on the basis of sale deed, in his favour.
15.It is further stated that Shri Kartik Budhiraja is the new purchaser, who also filed a suit bearing suit no. CS(OS) 2144/2009 against the applicant/objector in the hon'ble High Court of Delhi, for seeking the relief of possession against the applicant/objector, though he was fully aware of the rights claimed by the applicant/objector in the property on the basis of the WILL executed in his favour, as well as, the probate of WILL in favour of late Shri A R Jain regarding the property thereafter Shri Kartik Budhiraja has filed the present application u/s 263 of the Indian Succession Act 1925 for revocation of the probate dated 29.9.80 on frivolous grounds and prayed that the applicant/objector may be permitted to be impleaded/intervene in the present proceedings.
16.The petitioner, Shri Kartik Budiraja has filed the reply to the application and replying to the application, he has stated that the present proceedings have been initiated by him for the revocation of order dated 5.8.1980, whereby Letter of administration dated 29.9.80 in favour of Shri A R Jain was granted in the probate case no. 95/1979 by the predecessor of this court. It is further stated that the plot no. A102, Vivek PC:56/09 Shri A R Jain(Since deceased) V/s State 5 Of 9 Vihar, Phase 1, Delhi 95 was alloted to Shri Jeewan Dass Kapoor vide regd. Deed dated 25.1.1968. He has delivered the possession of the said plot to Smt Nirmala Jain on dated 1.11.74, thereafter he has executed WILL dated 6.11.74 in favour of Shri A R Jain and the said plot has been built up according to the sanctioned plan by Smt Nirmala Jain and in terms of the policy of the DDA she applied for conversion of free hold rights in her favour and the same were granted by way of executing conveyance deed in her favour duly regd. by the office of the Sub Registrar and thereafter vide sale deed dated 2.2.2009 she has transferred the right in favour of Shri Kartik Budhiraja (the petitioner herein) who has applied for the revocation of probate.
17.He has further stated that the application u/o 1 rule 10 of CPC is not maintainable in the eyes of law. He has further stated that Shri R K Jain in not a necessary party. Replying to the application on merit he has denied that Shri R K Jain is the owner of the portion of the land measuring 108 square yards plot no. A102, Vivek Vihar, Phase1, Delhi 95. He has further stated that Shri A R Jain obtained the probate by way of concealment of fact and playing fraud without impleading DDA as a party and thereafter he has died on 21.1.1995. He has denied that Shri AR Jain bequeathed any portion of land in favour of Shri R K Jain. He has also denied that the mutation of the property has been sanctioned in the record of the MCD in the name of Shri A R Jain. He has denied that Shri R K Jain is having any right, title or interest in the suit property, on the basis of the WILL. He has further denied that Smt Nirmla Jain has abandoned her right qua the property. He has further stated that Shri A R Jain was not competent to execute any WILL, as the property was PC:56/09 Shri A R Jain(Since deceased) V/s State 6 Of 9 not a self acquired property and after denying all the averments made in the application, he has sought the dismissal of the application under consideration.
18.I have heard the ld.counsel for the parties and perused the record.
19.The ld.counsel for the applicant namely Shri A R Jain has submitted that Shri Jiwan Dass Kapoor had executed Will in favour of Shri R K Jain on dated 6.11.74 and thereafter Shri R K Jain on dated 17.2.92 had executed the WILL regarding the 108 square yards of the property bearing no.A102, Vivek Vihar, Phase1,Delhi95. He has further submitted that applicant is living in the property on the basis of the said WILL executed by Shri R K Jain in his favour. He has further submitted that the WILL executed by Shri A R Jain in favour of Shri R K Jain was attested by Smt Nirmla Jain from whom the present applicant namely Shri Karit Budhiraja is alleged to have purchased the property.He has further submitted that the new purchaser i.e. Shri Kartik Budhiraja has filed the civil suit for possession(OS) 2144/09 against the applicant/objector Shri R K Jain in the hon'ble High Court of Delhi and the applicant/objector Shri R K Jain also filed the probate petition for seeking probate of the WILL dated 17.2.92 executed by Shri A R Jain in favour of the applicant/objector Shri R K Jain and the same is pending in the hon'ble High Court of Delhi and Shri Kartik Budhiraja has sought the revocation of the will executed by Shri Jivan Dass Kapoor in favour of Shri A R Jain and the applicant will be the aggrieved party in case the application filed by the applicant namely Shri Kartik Budhiraja for revocation of probate stands allowed and thus the applicant is a necessary party and prayed for allowing the applicant/objector to be impleaded as party in the present matter.
PC:56/09 Shri A R Jain(Since deceased) V/s State 7 Of 9
20.Whereas the counsel for the applicant Shri Kartik Budhiraja has submitted that the petitioner is seeking revocation of the Probate granted regarding the WILL executed by Shri Jiwan Dass Kapoor in favour of Shri A R Jain as Shri Jeewan Dass had also executed GPA, receipt, and agreement of construction in favour of Smt Nirmala Jain and on the basis, thereof, she has executed the sale deed in favour of Shri Kartik Budhiraja so in revocation of the probate the applicant Shri R K Jain is no more a necessary party and prayed for dismissal of the application u/o 1 rule 10 of CPC being not maintainable.
21.I have given thoughtful consideration to the submissions made by the counsels.
22.Perusal of the record shows that the probate petition filed by Shri A R Jain regarding the WILL executed by Shri Jiwan Dass Kapoor on dated 6.11.1974 was allowed by the predecessor of this court vide order dated 5.8.1980 and after allowing the probate petition Shri A R Jain had executed the WILL dated 17.2.1992 and bequeathed a part of the property in favour of the applicant/objector Shri R K Jain on dated 17.2.1992 and the applicant is in possession of 108 square yards of the property, regarding which, the WILL was executed by Shri Jeewan Dass in favour of Shri A R Jain. The petitioner, namely Kartik Budhiraja has sought revocation of the probate granted to the A R Jain, who is already expired on dated 21.1.95. Since Shri A R Jain who was then petitioner in the probate petition, is no more in the world and Shri A R Jain has bequethed 108 sq yards of the property, which was bequethed to him by Shri Jiwan Dass Kapoor, so the present applicant namely Shri R K Jain is having direct interest in the property bequeathed by Shri A R Jain in his favour and since the applicant is having possession over the property, this is an admitted fact and in my considered PC:56/09 Shri A R Jain(Since deceased) V/s State 8 Of 9 opinion he is entitled to rebut the averments made by the present petitioner namely Shri Kartik Budhiraja who is seeking revocation of probate and Shri Kartik Budhiraja has already filed a suit for possession against the applicant/objector.
23.Since the applicant Shri R K Jain is having direct nexus with the estate of the deceased Shri A R Jain, so in my considered opinion the applicant/objector Shri R K Jain is the necessary party in the proceedings. I do not find any force in the submissions made by the ld.counsel for Shri Kartik Budhiraja. I have inclination with the submissions made by the ld.counsel for Shri R K Jain. Accordingly, the application filed by the applicant/objector Shri R K Jain, u/o 1 rule 10 r.w. Section 151 of CPC stands allowed. He is allowed to be impleaded as respondent no.2 in the present case.
Announced in the open
Court on:26.11.2011 (Pawan Kumar Matto)
Additional District Judge03
(East), Karkardooma Court,
Delhi.
PC:56/09 Shri A R Jain(Since deceased) V/s State 9 Of 9
PC:56/09 Shri A R Jain(Since deceased) V/s State 10 Of 9