Full Judgement
Delhi High Court
Dev Raj Chaudhry vs Raj Kumar & Ors. on 24 April, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18th January, 2024
% Pronounced on: 24th April, 2024
+ CS(OS) 478/2019 & I.A.12723/2019
DEV RAJ CHAUDHRY
S/o Late Sh. Hans Raj
R/o 10/18, Shakti Nagar,
Delhi.
..... Plaintiff
Through: Mr. Ashesh Lal, Mr. Raghav
Parwatiyar, Ms. Rachna Lal, Mr.
Abhinav Anand and Ms. Shikha
Walia, Advocates.
versus
1. RAJ KUMAR
S/o Late Sh. Hans Raj
R/o 10/18, Shakti Nagar,
Delhi.
2. SMT. PREM LATA
W/o Sh. KPS Verma
R/o B 3/12, Paschim Vihar,
Delhi.
3. SMT. SUSHILA
W/o Sh. Narendra Chauhan
R/o 40, Vasudha Enclave,
Pitampura, Delhi.
4. SMT. SANTOSH KUMARI
W/o Sh. Dharamvir Chaudhry,
R/o A 169, Ashok Vihar Phase-I,
Delhi.
Signature Not Verified
Digitally Signed CS(OS) 478/2019 Page 1 of 10
By:VIKAS ARORA
Signing Date:29.04.2024
19:43:36
5. SMT. KRISHNA
W/o Sh. Surinder Verma
R/o 67 UB, Jawahar Nagar,
Delhi.
6. SMT. KAMLESH
W/o Sh. Rajinder Verma
R/o A 100, Chitaranjan Park,
Delhi.
7. SMT. ASHA
W/o Sh. Jitender Verma
R/o 8/272, Sunder Vihar,
Delhi.
..... Defendants
Through: Mr. Shekhar Prit Jha and Ms. Preeti
Kumar, Advocate for D-1. Mr. Bharat
Garg, Advocate for D-4.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
I.A.2396/2021 (under Order VII Rule 11 CPC read with Section 151 CPC on behalf of defendant No.4 for Rejection of Plaint and/or Dismissal of Suit)
1. An application has been filed on behalf of defendant No.4 seeking rejection of the plaint.
2. It is submitted in the application that the plaintiff has filed a suit for Partition, Rendition of Accounts and Permanent & Mandatory Injunction in respect of the property bearing No.10/18, Shakti Nagar, Delhi (hereinafter
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 2 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36 referred to as "suit property"), which was admittedly the self acquired property of Smt. Balwanti Devi (mother of the parties).
3. The defendant no. 4 has asserted that the suit property after being purchased by Smt. Balwanti Devi vide Sale/Conveyance Deed dated 15.09.1955 from one Milap Chand, was constructed partly in the year 1955- 56 and thereafter in 1971-72. Defendant No.1 is claiming himself to be a sole beneficiary of the entire suit property by virtue of alleged Will dated 03.08.1987 executed in his favour by their mother Smt. Balwanti Devi. However, the plaintiff by virtue of a Will dated 26.01.2011 is asserting that he and defendant No.1 (the two sons of Smt. Balwanti Devi) are entitled to 50% share each in the suit property.
4. It is claimed that though the plaintiff is in possession of part of the property, but his title to the suit property is under a cloud as a dispute has been raised by the defendant about his ownership and there is also a threat of dispossession of the plaintiff from the suit property. Therefore, the plaintiff should have sought a Declaration of title to the extent of 50% share in the suit property before seeking the relief of Partition and Mandatory Injunction. Since the plaintiff has not sought declaration of his title, the present suit for partition is not maintainable.
5. Moreover, both the plaintiff and defendant No.1 have asserted their respective claims to the suit property on the basis of the respective Wills. The genuineness of the Will can be established under the provisions of the Indian Succession Act, 1925 only by a Probate Court which alone has exclusive jurisdiction over such matters. The present suit is not maintainable being barred under Section 9 of CPC. Therefore, the present
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 3 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36 case is not a simplicitor suit for Partition as Smt. Balwanti Devi had not died intestate; but is for claiming a title in the suit property.
6. It is further asserted that the plaintiff has deliberately avoided to pay ad valorem court fee. The plaintiff claims in his plaint that he is a co-owner of the suit property and is in lawful possession of 25% of the suit property while defendant No.1 is in possession of 65% of the suit property and approx. 10% is in the possession of the tenants. Despite these claims made in the plaint, he has failed to pay the appropriate court fee at least to the extent of 25% share in the suit property which according to him, is in his possession.
7. Further, in paragraph 15 and 16 of the plaint the plaintiff has alleged that defendant No.4 along with other sisters had orally relinquished her right and had given 'No Objection' regarding the suit property. The defendants have neither relinquished their share in the suit property orally nor had they consented to the partition of the suit. It is, therefore, submitted that the present suit is liable to be rejected.
8. The plaintiff in his reply has denied all the averments made in the application. It is contended that it is a settled preposition of law that both, the Probate case and the Partition suit can proceed simultaneously. Furthermore, it is denied that the present suit is not maintainable under Section 41(h) of Specific Relief Act on account of not having sought declaration of his title to the extent of 50% in the suit property.
9. The plaintiff has clarified that in reply to the application under Order 22 Rule 4 CPC in the rent proceedings filed by a tenant, the plaintiff had stated that defendant No.1 alone was entitled to represent Late Smt.
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 4 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36 Balwanti Devi as her legal heir only for the purpose of appointing defendant No.1 as legal representative of all the legal heirs.
10. It is submitted that the application is without merit and is liable to be dismissed.
11. Submissions heard.
12. The plaintiff has filed the present suit for Partition and Injunction in respect of the suit property which was owned by the mother of the parties. The first ground for seeking rejection of the plaintiff is that there is a cloud over the title of the plaintiff as defendant No. 1 has relied upon a Will dated 03.08.1987 to claim that he is an exclusive owner of the suit property. Since there is a dispute on the title of the plaintiff, he cannot seek partition without first seeking a declaration in respect of his title.
13. It is not in dispute that the suit property was owned by the mother of the parties and after her demise, the property would have devolved upon the legal heirs in case she had died intestate or in accordance with the Will as propounded by her. In the present case, the plaintiff is propagating a subsequent Will dated 26.01.2011while defendant No.1 is staking his claim on the basis of an earlier Will of 1987. There is no cloud per se about the inheritance of the suit property by plaintiff as well as defendant No.1, but the issue is only the extent of their respective shares to which they are entitled. Therefore, in the facts and circumstances of this case, it cannot be said that the simplicitor suit for partition is not maintainable without first seeking declaration of the title.
14. The second ground taken by defendant No.4 is that the genuineness of the Will can be asserted only by the Probate Court which has the exclusive jurisdiction.
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 5 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36
15. The nature of Probate proceeding was considered in Razia Begum vs. Sahebzadi Anwar Begum & Ors, (1959) 1 SCR 1111 and K.S. Abraham vs. Mrs. Chandy Rosamma & Ors, AIR 1989 Ker 167, wherein it has been observed that the actions relating to succession of an estate, are on different footing from a civil suit, the rationale substantially being that testamentary proceedings have an efficacy in rem rather than in personam. Third party interest may not be in jeopardy inter alia, because of the application of the principles of res judicata in the latter category. Public citation, among other reasons, is therefore, carried out in Probate/ Letter of Administrative/ Succession petitions.
16. Similarly, in the case of Amrita vs Rakesh Kumar, 2016 SCC OnLine Pat 824, it was held that probate proceedings and partition suits are completely different. The probate proceedings are summary in nature while detailed evidence is required to be led by the parties in the partition suit before a civil court to determine the question of unity of title and possession. In the title suit, the legality and validity of the Will can also be considered by the civil court. It was further observed that the partition suit and the probate proceedings are distinct and title suit need not be stayed while the probate proceedings are pending.
17. It was explained in Amar Deep Singh vs. The State and Others, AIR 2006 Delhi 190 by the Co-ordinate Bench of this Court that once the Probate Court is considering a petition for grant of Probate or Letter of Administration in respect of a Will, that Court alone is competent to decide on the question of execution or validity of the Will in question. In such a situation, it is not open to the civil court to go into that question, or else it may lead to inconsistent and conflicting findings, which has to be avoided.
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 6 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36
18. However, the Coordinate Bench of this Court in Praveer Chandra Vs. Aprajita and others, 2019 SCC OnLine Del 10820 was confronted with a similar question of stay of a partition suit till the determination of the probate petition. Reliance was placed on the observations in Chiranjilal Shrilal Goenka through LRs. Vs. Jasjit Singh, (1993) 2 SCC 507 where it was held that the Probate Court alone has the exclusive jurisdiction to grant the probate and a Civil Court is not entitled to examine the validity of the Will, but it was qualified by observing that it was in the context of seeking a probate of a will. Thus, a Civil Court cannot examine validity of a Will for the purpose of granting a probate which also implies that the scope of the issues to be determined in the probate petition is limited. In a civil suit where the Will is called in issue, the court can look into various surrounding circumstances including allegations relating to suspicious circumstances, if any. The genuineness of a Will, the Wills prior or subsequent to the execution of the Will relied upon, are issues which may not arise in a Probate petition. Thus, the scope of proceedings in a partition suit is broader than that in a Probate petition.
19. From the judgments discussed above, it emerges that Probate proceedings and a Partition suit being distinct proceedings, can go on simultaneously.
20. The third ground agitated by defendant No. 4 is that the plaintiff has wrongly alleged in paragraph 15 & 16 of his plaint that the sisters had orally relinquished their respective shares and consented to the partition of the suit properties. The factum of the sisters having been consulted to relinquish their share and/or to consent to the partition finds mention in the impugned Will dated 26.01.2011 of Late Smt. Balwanti Devi on which reliance has
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 7 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36 been placed by the plaintiff which contains the recitals that after discussion with all the daughters who are happily married and comfortable in their life and who have expressed that they do not want any share from the suit proper and after discussions and advise from the daughters she has agreed to bequeath the suit property equally to her two sons. Therefore, this aspect needs adjudication and does not make the plaint as without cause of action making it liable to be rejected.
21. The last objection taken by the defendant No.1 is that as per the admissions of the plaintiff, he is in occupation of only 25% of the suit property, but he has not paid the requisite ad valorem court fee accordingly.
22. It was held by this court in Prakash Wati vs Dayawanti, (1990) 42 DLT 421, that it is a settled principle of law that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. It was stated that when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870.
23. Thus, ad volarem court fee under Section 7(iv) (b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563.
24. This court in Krishna Gupta And Anr. vs M/S Rajinder Nath & Co Huf And Ors, 2013 SCC OnLine Del 547 held that while ascertaining if the plaintiff had been ousted from the suit property, the same must be indisputably admitted by the plaintiff in their plaint. Specific sentences and
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 8 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36 paragraphs in the plaint cannot be read in abstract while determining an ouster especially when the plaintiff has categorically stated that they are in joint and constructive possession of the suit property. Thus, once an express plea of constructive possession has been made, the onus to prove ouster for the payment of ad volarem court fee shifts on to the defendants.
25. In the present case, since there has been is no such plea made of ouster of the plaintiff; he has rightly paid the fixed court fee in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870. Moreover, this is an issue of adjudication and does not make the plaint bereft of cause of action.
26. Therefore, it is concluded that there is not merit in the present application, which is hereby dismissed.
I.A.4596/2023 (under Order VII Rule 11 and Section 10 read with Section 151 CPC on behalf of defendant No.1)
27. An application has been filed for the rejection of the plaint or in the alternative, for the stay of the suit proceedings on behalf of defendant No.1.
28. The defendant No.1 has asserted that a Probate Case No.27/2017 has been filed by him in respect of the registered Will dated 03.08.1987 executed by his mother in his favour. Another Probate Case No.9/2022 has been filed by the plaintiff in respect of unregistered Will dated 26.01.2011. Till such time, the two Probate petitions are decided the present suit for partition cannot proceed further. Therefore, either the suit for partition may be rejected or may be stayed till the adjudication of the two Probate Petitions.
29. The judgments, especially Amrita vs Rakesh Kumar, 2016 SCC OnLine Pat 824, on the nature of a Probate case and a partition suit
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 9 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36 discussed above, make it amply clear that the two proceedings are inherently distinct and arise out of a separate cause of action and can proceed simultaneously.
30. In view of above, there is no merit in the present application, which is hereby dismissed.
CS(OS) 478/2019
31. List on 09.05.2024 for framing of issues.
(NEENA BANSAL KRISHNA) JUDGE APRIL 24, 2024 va
Signature Not Verified Digitally Signed CS(OS) 478/2019 Page 10 of 10 By:VIKAS ARORA Signing Date:29.04.2024 19:43:36
