Smt. Vidya Devi vs Shruti Choudhry And Others on 21 January, 2009

[Cites 4, Cited by 6]

Punjab-Haryana High Court

Smt. Vidya Devi vs Shruti Choudhry And Others on 21 January, 2009

Challenge in the present petition is to the order dated 2.5.2008, passed by the learned court below, whereby the application filed by the petitioner for impleading Smt. Kiran Chaudhary widow of late Ch. Surender Singh as one of the defendants in the suit/counter claim, was dismissed.

It is the estate of late Ch. Bansi Lal and late Ch. Surender Singh, which is in question in the lis pending before the court below, out of which the present revision has arisen. Ch. Surender Singh expired on 31.3.2005, whereas Ch. Bansi Lal expired on 28.3.2006. Immediately after the death of Ch. Bansi Lal, on 25.8.2006, a suit for declaration was filed that respondent No.1-plaintiff was owner in possession of the immoveable property of Ch. Bansi Lal on the basis of joint will dated 6.6.2004 executed by late Ch. Bansi Lal and his son late Ch. Surender Singh- father of respondent No.1-plaintiff. Another registered will dated 19.7.2005 executed by late Ch. Bansi Lal was under challenge. The widow, one surviving son and four daughters of Ch. Bansi Lal were impleaded as defendants in the suit. While filing the written statement, the petitioner-defendant No.6 also filed a counter claim claiming ownership of the property on the basis of registered will dated 19.7.2005, which was challenged by respondent No.1-plaintiff in the suit filed by her. After filing the written statement, an application was filed for seeking impleadment of Smt. Kiran Chaudhary widow of late Ch. Surender Singh as one of the defendants in the suit, being necessary party. It is the order passed by C.R. No. 6109 of 2008 [2] the learned court below on this application, which is impugned in the present petition.

Learned counsel for the petitioner submitted that the claim in the suit is made on the basis of an unregistered will executed jointly by late Ch. Bansi Lal and late Ch. Surender Singh, in which all class-I legal heirs of the executants of the will have been impleaded as defendants, except only Smt. Kiran Chaudhary widow of late Ch. Surender Singh. It is the estate of late Ch. Bansi Lal and late Ch. Surender Singh, which is in dispute, where respondent No.1-plaintiff is basing her claim on the basis of an unregistered will dated 6.6.2004, whereas the petitioner- defendant No.6 is relying upon a registered will dated 19.7.2005 in the counter claim filed by her. The submission is that in case the court comes to the conclusion that both the wills cannot be relied and acted upon, the property will have to be divided amongst the legal heirs and Smt. Kiran Chaudhary, being one of the class-I legal heir, was required to be impleaded as defendant in the suit, as without her being a party in the litigation, the same could not be adjudicated upon effectively. The same will also rule out any possibility of further litigation between the parties regarding the division of the estate of late Ch. Bansi Lal and late Ch. Surender Singh, as it would be in the interest of justice that at one go, when all the parties are there before the court, that the entire lis is decided. Relying upon the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure, the submission is that even if the parties to the suit object to any one else being impleaded as one of the parties to the suit, the court can very well exercise the discretion, considering the facts of the case, as succession never remains in abeyance either it is on the basis of a will or as provided for under the Hindu Succession Act, 1925 or any other relevant enactments. If both the wills are discarded by the court, as parties to the suit are projecting their claim on the basis of two different wills, it would be in the fitness of things that the stand of Smt. Kiran Chaudhary, who is also class-I legal heir and widow of late Ch. Surender Singh, is also before the court for effectively adjudicating the lis. It was further submitted that the suit is at a very initial stage and there is no question of delay of proceedings, in case Smt. Kiran Chaudhary widow of late Ch. Surender Singh is impleaded as one of the defendants in the suit.

On the other hand, learned counsel for respondent No.1 submitted that Smt. Kiran Chaudhary is neither necessary nor proper party in the suit. In fact, she is sought to be impleaded as one of the defendants in the suit to tarnish her image, she being a public figure has political image in the State. The claim in the suit is only on the basis of a joint will executed by late Ch. Bansi Lal and late Ch. Surender Singh. Respondent No.1-plaintiff is only seeking declaration based C.R. No. 6109 of 2008 [3] thereon, while challenging a subsequent will which came to her notice after the death of Ch. Bansi Lal as without challenging the same, she could not have got effective relief. If the suit of respondent No.1-plaintiff is ultimately to fail on account of the fact that proper and necessary parties were not impleaded, it is she who is going to suffer. For that reason, any body against whom respondent No.1- plaintiff is not willing to contest her claim, should not be thrown on her, the plaintiff being dominus lius. Reliance was placed upon Kanakarathanammal v. V. S. Loganatha Mudaliar and another, AIR 1965 SC 271; Banarsi Dass Durga Prashad v. Panna Lal Ram Richhpal Oswal and others, AIR 1969 P&H 57; Lakshmi Narain v. The District Judge and others, 1992 Civil Court Cases 378 (Allahabad) and Sadhu Singh v. Gurdwara Sahib Narike and others, (2006) 8 SCC

75. Heard learned counsel for the parties and perused the paper book. The case in hand is one of the cases, which are now being dealt with by the Courts, where in spite of achieving good status in the society or earning billions of rupees, once the question of distribution of assets/estate comes in, the disputes are not settled amicably, rather, for small things it is the Courts, which have to perform the duty. Recently, we have seen the disputes of the estates of late Dhirubhai Ambani, one of the top industrialists of the country; Madhav Parshad Birla and Smt. Priyamvada Devi Birla, belonging to famous Birla Group; Bajaj Brothers, a renowned industrialist. The only reason is that the world has become materialistic. No one is satisfied with what he has or what he can earn with his labour and skills. Rather, every one is after easy money. None of the claimants of the properties of two late testators of the alleged wills in the present case had contributed in the creation of that property, but they are fighting for their pond of flesh in the same.

Before I proceed to opine finally on the claim made by the respective parties, it would be appropriate to notice certain undisputed facts which, in my opinion, would be an answer to the problem itself. Late Ch. Bansi Lal had two sons, namely, Ch. Surender Singh and Ch. Ranbir Singh Mahendra and four daughters, namely, Smt. Sumitra Devi wife of Shri Gulab Singh; Smt. Saroj Siwach wife of Shri Kartar Singh, Smt. Savita Sheron wife of Shri Somvir Singh and Smt. Sunita Chahar wife of Shri Rajinder Singh. He also left behind his widow

- Smt.Vidya Devi. To share the property of late Ch. Bansi Lal and Ch. Surender Singh, widow of late Ch. Bansi Lal, four daughters, one of the living sons and grand daughter (i.e. married daughter of Ch. Surender Singh) are parties. The only unrepresented person remains is any one behalf of late Ch. Surender Singh. In the C.R. No. 6109 of 2008 [4] suit filed by respondent No.1-plaintiff, married daughter of late Ch. Surender Singh, following relief has been claimed:

"Suit for declaration to this effect that the plaintiff is owner in possession of the immovable property left by late Ch. Bansi Lal including the double storey house situated at Vijay Nagar, Hansi Gate, Bhiwani, shown in the site plan (Annexure P.1) and agricultural land measuring 145 Kanals 2 Marlas situated at Village Bhangarh, District and Tehsil Bhiwani vide Jamabandi 1999-2000 (Annexure P2) on the basis of Joint Will (Mutual) dated 6.6.2004 (Annexure P.3) executed by late Ch. Bansi Lal and his son late Ch. Surender Singh and the will dated 19.7.2005 (Annexure P.4) allegedly executed by late Ch. Bansi Lal is fraudulent, forged, fabricated, result of misrepresentation, undue influence and coercion, surrounded by suspicious circumstances and the same is illegal, null and void and is liable to be set aside, and the mutation No. 2062 (Annexure P.5) sanctioned on the basis of alleged Registered Will dated 19.7.05, is also illegal, null and void and liable to be set aside and suit for permanent injunction to this effect that the defendants No.1 to 5 be restrained from interfering into the peaceful possession of the plaintiff and dispossessing the plaintiff from the house mentioned above, illegally and forcibly in the interest of justice."

A perusal of the aforesaid prayer shows that the claim is primarily based upon a joint will, which was executed by late Ch. Bansi Lal and late Ch. Surender Singh on 6.6.2004 before their death on 28.3.2006 and 31.3.2005, respectively. Copies of both the wills, as were produced before the court at the time of hearing, show that in the unregistered will dated 6.6.2004, it was mentioned by late Ch. Bansi Lal and late Ch. Surender Singh as under:

"I, Bansi Lal have two sons namely Ranbir Singh Mahendra and Surender Singh and four daughters namely Sumitra Devi, Saroj Siwach, Savita Sheoran and Sunita Chahar. My son Ranbir Singh Mahendra separated from me many years ago. I got constructed Ranbir Singh Mahendra's dwelling house at Bhiwani and at New Delhi. But Ranbir Singh Mahendra and his family never supported me personally and politically, rather they opposed me tooth and nail and misbehaved with me and my wife Vidya Devi. So I do not intend to give anything more to him and his family. All my four daughters are married and well settled in their lives with their families and I C.R. No. 6109 of 2008 [5] have helped them financially in all manner and hence, I am not giving anything else to them.

My wife Vidya Devi is a saintly lady and she already owns and possesses sufficient properties so I am not giving any immovable property to her. But, if I predecease her, my wife will be entitled to live and reside in the right side portion of the ground floor of my Vijay Nagar residence, where she resides at the moment. However, all my moveable properties including FDRs shall devolve exclusively upon my wife and she will be the absolute owner of the same. My son Ch. Surender Singh has always looked after me and supported me politically and lived with me in my house at Bhiwani and Surender or his family has no other house/residence at Bhiwani. Therefore, I desire that my double storey house at Vijay Nagar, Bhiwani along with vacant land and my agricultural land about 145 kanals shall devolve exclusively on Shruti after my demise and no person shall have any claim over the same except that my wife will have her right of residence for her life time in the portion mentioned above.

I, Surender Singh hereby bequeath all my properties both movable and immovable to Shruti and my wife Kiran who shall be the exclusive owners of the same. If, I Surender Singh predecease my father Ch. Bansi Lal, my father will have the right to reside and carry out his political activities from my house located at 9/5, Sarvapriya Vihar, New Delhi during his life time as my father has executed a will in favour of my daughter Shruti.

Keeping in view the inter se strained relations between us and Ranbir Singh Mahendra and his family and to avoid any future dispute, we are executing this will."

In a registered will executed by late Ch. Bansi Lal at Chandigarh on 19.7.2005, while noticing all his heirs including the grand sons/daughters, the entire property was bequeathed in favour of petitioner-defendant No. 6- his widow. However, it was mentioned that in case she predecease the executant of the will, namely, late Ch. Bansi Lal, the property was to be distributed amongst the heirs in the manner, it was specified in the will. The manner in which the property was to be distributed amongst the various heirs in case the widow of late Ch. Bansi Lal had predeceased him, has no relevance at this stage because she is living. Accordingly, in terms of this will, the entire property was to go to her.

C.R. No. 6109 of 2008 [6]

Along with the written statement filed by petitioner-defendant No.6, a counter claim was filed by her claiming her entitlement to the entire property left by late Ch. Bansi Lal in terms of the registered will dated 19.7.2005, which is challenged as being illegal, null and void, forged and fabricated in the suit filed by respondent No.1- plaintiff. The facts stated in the counter claim in paragraph 6 and the prayer ultimately made are relevant. The same are extracted below:

"6. That the plaintiff with illegal and unwarranted help of her mother Mrs. Kiran Chaudhary is illegally trying to show her possession on part of the house and is creating false, frivolous evidence to show her possession in part of it with the help of high executives, police officials to harass the defendant No.6 without having any legal right. The defendant no.6 is entitled to decree for declaration with consequential relief of injunction and mandatory injunction to the effect that defendant no. 6 had become absolute owner in possession of suit property immediately on the death of Ch. Bansi Lal Ji as per his registered will dated 19.7.2005 and she being absolute owner in possession, created a valid trust in the memory of Ch. Bansi Lal vide registered Trust Deed Vasika No. 1560 dated 25.7.2006 and the plaintiff and her helper Smt. Kiran Chaudhary etc. are liable to be restrained from interfering in the suit property and mandatory injunction is also liable to be issued against plaintiff and her mother with cost of the suit and counter claim. Hence the counter claim is filed.

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10. That the defendant no.6 prays that a decree of declaration with consequential relief of permanent and mandatory injunction be passed against the plaintiff and in favour of defendant no. 6 to the effect that the defendant no. 6 had become absolute owner in possession of the suit property immediately on the death of Ch. Bansi Lalji as per his registered will dated 19.7.2005 and the plaintiff had been visiting or staying for short time in the disputed house only as a licencee with permission of the defendant no.6 and after revocation of the said licence the plaintiff or her mother or any other person or her behalf has no legal right to make entry or remain in possession any part of the suit property and as a consequential relief a decree for permanent and mandatory injunction is also liable to be passed against her restraining her to enter in suit property or bring any C.R. No. 6109 of 2008 [7] person with her in the suit property as helper or otherwise and in interference in possession of the defendant no.6 and if the plaintiff is found to be in possession of any part of suit property under a decree for mandatory injunction is liable to be passed against her directing her to vacate the said part of the premises and to remove her articles etc. admitting the defendant no.6 is in possession as Chairman of "Chaudhary Bansi Lal Memorial Trust (Bhiwani) Chandigarh" who is owner of the suit property as registered trust deed Vaika No. 1560 dated 25.7.2006. The counter claim of the defendant no. 6 as prayed for above is liable to be decreed with costs while the suit of the plaintiff is liable to be dismissed with costs and the same may kindly be decreed with costs." [Emphasis supplied].

For impleading Smt. Kiran Chaudahry widow of late Ch. Surender Singh as one of the defendants was filed after the filing of the written statement and counter claim by the petitioner, where injunction was sought not only against respondent No.1 but even against her mother - Smt. Kiran Chaudhary from interfering in her possession of the suit property. A perusal of the impugned order passed by the learned court below shows that it had not considered the entire material on record on the date the application to implead Smt. Kiran Chaudhary as one of the defendants was being considered. The learned court below was considering only the factum of filing of the suit by respondent No.1-plaintiff on the basis of the will dated 6.6.2004 while challenging the will dated 19.7.2005. Considering the issue to be only regarding the genuineness of the wills, the learned court below has totally failed to consider the factum of counter claim filed by the petitioner-defendant No.6 on the basis of will dated 19.7.2005 and also seeking injunction against respondent No.1- plaintiff and also her mother-Smt. Kiran Chaudhary restraining them from interfering in her possession of the property.

Considering the aforesaid facts, where Smt. Kiran Chaudhary is the only one who has not been impleaded as party to the suit filed for claiming inheritance to the property left by late Ch. Bansi Lal and late Ch. Surender Singh and also the fact that in the counter claim filed by the petitioner-defendant No. 6, relief has been sought not only against respondent No.1- plaintiff but also Smt. Kirhan Chaudhary, her mother. Further nothing having been shown as to in what manner Smt. Kiran Chaudhary will be prejudiced in case she is also impleaded as party in the litigation for the decision of the lis, in my opinion, she would be proper and necessary party to be impleaded in the suit. Still further, the plaintiff is a dominus litus in the suit filed by her and not absolute rule. Reference to a C.R. No. 6109 of 2008 [8] judgment of this Court in Gram Panchayat Garhi v. Dharambir and others, AIR 1998 P&H 165 may also be appropriate at this stage, wherein it was opined that the plaintiff is dominus litus of the suit is not an absolute rule. The law intends and has actually provided for exceptions. One of the tests is that by impleading a party, the lis can be adjudicated upon effectively and completely. The relevant passage therefrom is extracted below:

" The Code of Civil Procedure provides as to how a suit has to be instituted and how would it end. The Code provides thread of continuity, which would regulate various stages of the suit. In other words, the intention of the legislation must and has to be gathered from the various provisions of the Code read collectively and in conjunction with each other. Whereas O. 1, Rr. 1 and 3 of the Code provides who are the persons who would be joined as plaintiffs and/or defendants. Rule 10 gives power to the Court to add parties and Rule 8-A gives right to a party to approach the Court for being impleaded as a party, if the applicant has an interest in any question which directly and substantially arise in the suit. The provisions regulating impleadment of necessary and proper parties, whose presence is necessary before the court for proper and final adjudication must be construed in a wider perspective as the provisions of Order 2, Rule 1 of the Code clearly indicate that every suit, as far as practicable, be framed so as to afford grounds for final decision upon the subjects in disputes and to prevent further litigation concerning them. To hold that avoidance of multiplicity of litigation in regard to the same subject matter is not even relevant factor while considering the application for impleadment, to my mind, would be an approach not in line with the spirit of the procedural law.

In order to have a pervasive and baroque approach to the provisions of the Code which would be also in consonance with the scheme of the Code, would be to read the provisions of Order 1 and other effecting provisions of the Code. Collectively rather than to read and construe Order 1 Rule 10 of the Code in abstract or isolation. Interpretation of construction of procedural laws or provisions related thereto must be read to achieve the ends of justice which is an indispensable object of basic rule of law. With the modern development in all spheres of life the courts must mould the C.R. No. 6109 of 2008 [9] procedural laws to further the cause of expeditious disposal and determination of all questions in one proceedings, if permissible in law, rather than to direct the parties to create multiplicity of litigation.

Without being innovative and primarily on reiteration of the settled principles and in a derivative manner, it is possible to indicate certain factors which may be considered by the Court while determining such a question:-

(a) Whether the applicant is a necessary and proper party keeping in view the facts and circumstances of the case ?

(b) Whether presence of such a party before the Court is necessary for effectively and completely adjudicating the matter and granting a complete and effective decree to the party entitled to?

(c) Whether such a party interested would be directed affected as a result of culmination of such persons into decree or it would only be effected remotely, indirectly and distantly?

In addition to above, where the Court considers the presence of a party necessary for proper and complete adjudication, then it may well be considered relevant whether non-impleadment of such a party would result in avoidable multiplicity of litigation, then effort should be to implead a party rather than to force the party to go to a fresh litigation.

The above principles are not exhaustive but are merely indicating what may be considered by the Court in addition to such consideration, which may be appropriately considered relevant by the Court, keeping in view the facts and circumstances of a given case. The Legislative intend to provide an effective protection to a party who may be affected by the questions to be determined by a Court in a suit or proceedings and to have complete adjudication, is clear from the introduction of Rule 10-A in Order 1 of the Code vide Civil Procedure Code Amendment Act, 1976."

Any party who can reasonably be affected with the pending litigation or decision therein is a necessary and property party, it should be impleaded.

For the reasons mentioned above, I find merit in the present petition. Accordingly, the impugned order dated 2.5.2008 passed by the learned court below is set aside. The application filed by the petitioner for impleading Smt. Kiran C.R. No. 6109 of 2008 [10] Chaudhary widow of late Ch. Surender Singh as one of the defendants is allowed.

The revision petition is disposed of in the manner indicated above.

(Rajesh Bindal) Judge January 21, 2009 mk

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