Delhi District Court
Digitally Signed vs Date: 2018.07.04 on 2 July, 2018
IN THE COURT OF MS SURYA MALIK GROVER,
ADDITIONAL DISTRICT JUDGE01 (SOUTH EAST), SAKET
COURTS, NEW DELHI
PC No. 1561/16
Satish Malik
S/o Sh. Jagdish Chand Malik SURYA
R/o B9, Modi Nagar MALIK
District Ghaziabad,
UP GROVER
Digitally signed .... Petitioner
by SURYA
MALIK GROVER
Vs. Date: 2018.07.04
14:01:12 +0530
1. State
2. Kunwar Surender Vishal
son of S.h Mubarak Singh
R/o D229, Defence Colony
New Delhi
3. M/s. Kohli Realtors Pvt. Ltd.
Registered office at A356,
Defence Colony,
New Delhi.
Acting Through its Director
Sh. Deshpal Singh
S/o Sh. Surjit Singh Kohli
R/o BH6,
West Shalimar Bagh
New Delhi
4. Utopia Exim Pvt. Ltd.
PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 1 of 7
Through Its Directors
Sh. Satinder Kaur & Bhupinder Singh
185, Ground Floor and Basement
Block BA, Paschim Vihar,
New Delhi
5. Dileep Rao HUF
Through its Karta Dileep Rao
S/o Late C.B Rao
B59, Paschim Marg
Vasant Vihar,
New Delhi
... Respondents
ORDER 02.07.2018
1. By virtue of this order, application under Order VII Rule 11 CPC moved on behalf of respondent no. 3C as well as submissions advanced by respondent no. 3A and 3B on the maintainability of the suit are being disposed of. Before disposing of the application in hand, the brief overview of the facts of the plaint are as under:
2. It is the case of the petitioner that Late Major Hari Chand Malik was owner of property bearing no. D229, Defence Colony, New Delhi (henceforth referred to as suit property) being original PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 2 of 7 allottee thereafter and had one brother namely Sh. Jagdish Chand Malik and two sisters. Major Hari Chand Malik had no children. Petitioner is stated to be the son of Late Sh. Jagdish Chand Malik.
3. It is averred that Late Hari Chand Malik expired on 17.06.1999 leaving behind no class one legal heir. His brother and sisters predeceased him and petitioner is the sole legal heir of Late Major Hari Chand Malik. It is alleged that Major Hari Chand Malik had allowed respondent no. 2 to remain on the first floor of the property as licensee and he continued to stay in the said portion of the property even after his death. However, when in the month of June 2007, petitioner showed his desire to respondent no. 2 to vacate the property, the latter avoided the same. It is stated that a suit for possession had been filed by the petitioner against respondent no.2 before the Hon'ble High Court of Delhi claiming relief of possession, wherein a plea was raised by the respondent no. 2 that Letter of Administration (hereinafter referred to as LoA) has not been challenged and had become final.
3. Hence, the present petition for revocation of LoA dated 22.12.2005 granted by the Court of the then Ld. District Judge in probate case u/s 346/2004 titled as 'Kunwar S. Vishal Vs. State' has been filed u/s 263 of the Indian Succession Act alleging that said LoA has been obtained by fraudulent means and by concealing material PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 3 of 7 facts without impleading the petitioner as a party and hence, liable to be revoked.
4. In the back drop of the following facts, the present application under O.7 R.11 CPC/ arguments have been addressed challenging the maintainability of the present petition.
5. In his application under Order VII Rule 11 CPC, it has been vehemently argued by Ld. Counsel for respondent no. 3C that the present plaint is hopelessly time barred as the LoA was granted on 22.12.2005 and same being a judgment in rem, the petitioner should have approached the Court for revocation of the same within 3 years from grant of the LoA, which period expired on 23.12.2008. Even otherwise, presuming that petitioner obtained knowledge of the said LoA only on 15.05.2013 as alleged by him, the said averment is factually incorrect in view of the pleadings of the parties before the Hon'ble High Court in the suit for possession between the same parties and therefore, plaint is liable to be rejected outrightly under Order VII Rule 11 (d) CPC.
6. Ld. Counsel for respondent no. 3A and 3B has made oral submissions on the same lines.
7. In support of their submissions, counsels have placed on PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 4 of 7 record case law of Lynette Fernandes VS. Gertie Mathias 2017 SCC Online SC 1296, Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Ors. (1964) 3 SCR 495: AIR 1964 SC 1336, Minu Chibber & Ors. VS. Lt. Col. (Retd.) 2014 IX AD (Delhi) 289 FAO (OS) No. 205/2013.
8. In rebuttal, Ld. Counsels for the respondents that LoA was obtained by fraudulant means and by material concealment of facts and petitioner came to have knowledge of the grant of LoA dated 22.12.2005 only on 15.05.2013, when the said factum was disclosed in the open court during the hearing of suit for possession filed by respondent no.2 against the petitioner.
9. It is no longer res integra that grant of probate by a competent court operates as a judgement in rem and once, probate to the will is granted, then such probate is good not only to the proceedings of the parties, but against the world (Lynette Fernandes's Case (supra).
6. Presuming that the petitioner herein was not having knowledge of the grant of letters of administration on 22.12.2005 , the question before this Court is as to what was the earliest date, when petitioner gained knowledge of the same, and consequently, PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 5 of 7 whether the present petition for revocation has been filed within three years thereof ?
7. Perusal of record especially certified copy of written statement dated 03.08.2018 filed by respondent no.2 in suit for possession, CS (OS) No. 582/2018 ( now C.S. No. 9840/2016 ) instituted by petitioner against respondent no.2 reveals that in Para 2.4 of Preliminary Objections thereof, it had been mentioned in clear and unequivocal terms that the property in question was subject matter of probate case no. 364/04 and probate had been granted by the District Court on 07.12.2005 in favour of the defendant on account of which plaintiff ( petitioner herein ) was not having any right over the suit property. Again, in reply on merits as well, in Para 1, 3 and 13 of the same, the aforesaid factum had been reiterated. Further, a list of documents was also filed before the Hon'ble Delhi High Court along with the written statement, which carried the copy of the said probate proceedings before the Ld. District Judge. The petitioner even filed a replication dated 15.10.2009 to the said written statement stating that the said probate proceedings had been manipulated by the defendant in collusion with the witnesses. Moreover, in Para 3 of his replication, he even stated that the probate had been manipulated and he was going to challenge the same in the court. Therefore, the plea of the petitioner that he had no knowledge of grant of Letter of PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 6 of 7 Administration till 15.05.2013, when the said factum was disclosed in the open court appears to be completely meritless as not only the probate proceedings were brought to his knowledge in the written statement filed by respondent no.2 but also copy of the same was supplied to him on or after 04.08.2008 and even a replication was filed thereto on or after 15.10.2009, categorically asserting his right to challenge the said proceedings.
8. In view of my aforesaid observations, I am of the opinion that present petition is exfacie time barred as present petition for revocation has been filed on 26.07.2013 i.e. more than 3 years after knowledge of impugned Letters of Administration and therefore present petition is liable to be rejected as hopelessly time barred.
9. Accordingly, petition is rejected under Order VII Rule 11 (d) CPC. No order as to costs.
10. File be consigned to Record Room.
Announced in open court on 02.07.2018 ( Surya Malik Grover ) ADJ1(South East) Saket Court New Delhi PC No. 1561/16 Satish Malik Vs. State and Ors. Pg. No. 7 of 7