Mohinder Kumar vs Shri Bhim Sain And Others
1999 Latest Caselaw 974 Del

ORDER

Dr. M.K. Sharma, J.

1. This revision petition is directed against the order dated 30.9.1992 passed by the Sub-Judge, Delhi in Suit No. 585/1987. The respondents as plaintiffs filed the aforesaid suit for declaration and consequential relief of injunction praying therein that the WILLS dated 2.2.1982 and 28.3.1982 executed by late Roop Chand are invalid, illegal and void having no sanctity and having no authority on said Shri Roop Chand to dispose of the ancestral properties consisting of house No. 4-E/164, Amar Colony, Lajpat Nagar, New Delhi. The plaintiffs also sought for a decree for injunction restraining the defendant No. 1 from taking any benefit and enforcing his right on the basis of the probate granted to him in respect of the money in the Almirah and in the account in Canara Bank and other assets, ornaments and house-hold goods.

2. The aforesaid suit was contested by the defendants, and on the basis of the pleadings of the parties as many as 8 issues were framed in the said suit. Out of the aforesaid issues, issues No. 1 & 3 which are in the following terms were treated an preliminary issues and they came to be decided by the impugned order dated 30.9.1992:-

     1.   Whether  the  suit was properly valued for the  purposes  of           court  fee  and jurisdiction as alleged in  the  preliminary           objection? 
 

     2.   Whether the suit of the plaintiff is barred under the provisions of Section 34 of the Specific Relief Act? 

 

3. The trial court heard the parties and thereafter held that the plaintiffs were entitled to value the suit and pay the court fee as fixed by them in view of the fact that the suit was instituted seeking a decree that the WILLS are null and void and therefore, the subject matter of the suit was not the property but the WILLS and the case of the plaintiffs was covered under section 7(iv)(c) of the Court Fees Act. The trial court however, ordered that since the plaintiffs had not given any valuation for the consequential relief of injunction they are required to pay the court fee and value the same on that count.

4. So far the issue with regard to suit being barred under provisions of section 34 of the Specific Relief Act, it was held by the trial court that it was not necessary for the plaintiffs to seek for a declaration for possession at the aforesaid stage, for they have already sought for a further relief for issue of a decree of injunction and they could seek for a decree for possession at a later stage after obtaining a decree in the present suit.

5. Mr. Saini appearing on behalf of the petitioner submitted that the findings recorded by the trial court in respect of both the issues are illegal and void, for according to him the suit was instituted in respect of the property at 4-E/164, Amar Colony, Lajpat Nagar, New Delhi, of which the plaintiffs are admittedly not in possession. He submitted that although in the suit the plaintiffs have sought for a decree for declaring the WILLS to be illegal and void, they are in fact seeking for declaration of right and title in respect of the said property in the aforesaid suit and therefore, the suit was required to be valued at the market price of the property.

6. The subject matter in the present suit are the WILLS which was executed by late Shri Roop Chand in respect of which a decree was sought to the effect that the said wills dated 2.2.1982 and 28.3.1982 are invalid and illegal. A further decree was also sought for grant of an injunction in respect of the movable assets and other assets like ornaments and household goods on the allegation that said Roop Chand did not have authority to dispose of ancestral properties consisting of the aforesaid house, the money in the Almirah and the account and other assets like ornaments and house-hold goods. Thus, what is challenged in the suit is the validity of the WILLS by Roop Chand and also his authority to execute such WILLS in respect of the aforesaid properties. So long the WILLS are not declared illegal and void no right is established in favour of the plaintiffs in respect of the aforesaid properties. Apart from asking for a decree for declaration that the WILLS are void and non-existent a further declaration seeking for injunction is also sought for in the suit. Therefore, in my considered opinion, the trial court was justified in holding that the suit has rightly been valued under Section 7(iv)(c) of the Court Fees Act.

7. So far the findings of the trial court in respect of issue No. 3 are concerned I do not find any justification to differ from the findings of the trial court. It was contended by the counsel appearing for the petitioner that the respondents are admittedly not in possession of the suit property and therefore, merely seeking for a declaration would not grant full relief to the plaintiffs. It is alleged that in this suit the plaintiffs were able to seek further relief of possession apart from a decree for declaration of title and therefore, the suit is barred under the provisions of section 34 of the Specific Relief Act. In my considered opinion, the said plea is without any merit, for so long the WILLS subsist and are not declared to be void and non-existent no declaration could be sought for by the plaintiffs seeking for possession in respect of the said suit property. The right to seek for recovery of possession in respect of the premises in question would arise only when the WILLS are declared as void and non-existent and therefore, in my considered opinion, at this stage the plaintiffs could not have sought for a declaration for recovery of possession till the WILLS are not declared illegal and void. Thus no infirmity is found in the plaintiffs not seeking for a decree for possession at this stage, for if the court returns the verdict of declaring the WILLS to be non-existent, void and illegal, the right of the plaintiffs to seek for recovery of possession would arise and then such a suit could be instituted in an appropriate forum. Merely, because the plaintiffs did not seek for a decree for possession in the present suit it cannot be said that the suit is not maintainable and is hit by provisions of Section 34 of the Specific Relief Act.

8. In the result I find no infirmity in the order passed by trial court.

The petition has no merit and is dismissed.