Manraj Singh Bindra vs P.S. Kahai
1995 Latest Caselaw 973 Del

JUDGMENT

S.K. Mahajan, J.

(1) This order will dispose of the application of the plaintiff under Order 39 Rule 7 Civil Procedure Code for a direction to defendant No.2 not to pay rent of the ground floor of the property to defendant No.1 but to pay the same to the plaintiff.

(2) The facts in short are that Smt.Inder Kahai and defendant No.1 were the joint owners of property No.13, Rajdoot Marg, New Delhi. Smt.Inder Kahai expired on 23rd March, 1990 at Delhi leaving behind defendant No.1 her only son and Mrs.Mohini Bindra - her daughter. The plaintiff has filed this suit for partition of the suit property on the allegations that the deceased Smt.Inder Kahai had during her lifetime executed a "Will" on 30th October, 1984 bequeathing her share in the property to him. The contention of the plaintiff, therefore, is that he having become owner of one-half of the property by virtue of the "Will" of the deceased Smt.Inder Kahai, he was entitled to get the property partitioned and to have separate possession of his share in the said property.

(3) Written statement was filed by defendant No.1 denying the execution of the "Will" dated 30th October, 1984 by the deceased Smt.Inder Kahai. It is stated in the written statement that the "Will" propounded by the plaintiff was a forged document and had been forged and fabricated after the death of Smt.Inder Kahai. The said defendant, in fact, has set up another "Will" dated 22nd February, 1990 which he alleges to be the last "Will" and testament of the deceased Smt.Inder Kahai and claims that by the said "Will" the deceased had bequeathed her share in the property to him.

(4) Ground floor of the property is under the tenancy of M/s.Aeroflot Russian Airlines - defendant No.2. By an order passed on 24th April, 1992 defendant No.1 was directed to maintain status quo in respect of possession and title of the property in question without prejudice to the rights and contentions of the said defendant. By still another order passed on 16th July, 1993 defendant No.2 was directed to inform the Court as and when it intended to vacate the premises.

(5) This application was filed by the plaintiff Along with the suit alleging, inter alia, that defendant No.1 had no right to recover any part of the rent from the ground floor of the property in view of the fact that he was enjoying first floor without consideration while the plaintiff being the joint owner was deprived of the use and enjoyment of the suit property. It was, therefore, prayed that defendant No.2 should be directed not to pay rent to defendant No.1 but to pay the same to the plaintiff. In his reply, defendant No.1 has reiterated his stand taken in the written statement and it is stated that the plaintiff has no locus standi to file the present suit as the "Will" propounded by him was a forged and fabricated document. It is also stated that the plaintiff was not entitled to the use of any portion of the property and there was no case as to why defendant No.1 should not recover the rent from the ground floor tenant.

(6) It is not in dispute that defendant No.1 is one-half owner of the property. The dispute is only about the share of Smt.Inder Kahai. Both the plaintiff as well as defendant No.1 have set up two different "Wills" to claim that the deceased Smt.Inder Kahai had given her share by way of the "Will" to them. At this stage, when the issues have not yet been framed, it will be very difficult to say as to which of the two "Wills" is the last "Will" of the deceased and which of the two is a forged document. Smt.Inder Kahai had expired on 23rd March, 1990. Rent has all along been received by defendant No.1 from the tenant - defendant No.2. Defendant No.1 is in occupation of first floor of the property and, in my opinion, there cannot be any grievance about his occupation of the said floor, as he is admittedly owner of one-half of the property. In view of the conflicting stand taken by both the plaintiff as well as defendant No.1, the question is, will it be proper to direct the payment of rent to the plaintiff so as to disturb the status quo which was existing as on the date of filing of the suit?

(7) No doubt, in case, it is ultimately held that the "Will" which has been set up by the plaintiff was the last "Will" and testament of the deceased Smt.Inder Kahai, the plaintiff may be entitled to rent of the portion which is in occupation of the tenant. However, in case, it is held that the "Will" set up by the plaintiff is not the last "Will" and testament of the deceased, in my opinion, the plaintiff may not have any right or share in the property. In my opinion, therefore, it will not be proper to direct the tenant - defendant No.2, at this stage, to pay rent to the plaintiff. However, in case, the suit is ultimately decided in favor of the plaintiff, his interest has to be safeguarded till the decision of the suit. In my opinion, therefore, ends of justice will be met in case defendant No.1 is directed to furnish security to the satisfaction of this Court to repay the amount which he will be getting from the tenant during the pendancy of the suit, in case, plaintiff ultimately succeeds in the suit.

(8) I, therefore, direct defendant No.1 to furnish security to the satisfaction of the Registrar of this Court undertaking to reimburse the amount of rent which he has recovered or may be recovering from defendant No.2, the ground floor tenant of the property, 13, Rajdoot Marg, New Delhi from the date of filing of the suit, in case of the plaintiff ultimately being held entitled to inherit the share of the deceased Smt.Inder Kahai.

(9) With these observations, the application is disposed of.