Sh. Ajay Ved Parkash vs State And Ors.
2002 Latest Caselaw 2079 Del

JUDGMENT

S.K. Agarwal, J.

1. This order will dispose of IA. 9293/2001 filed by the petitioner under Order XXXIX Rules 1 & 2 read with Section 151, CPC, and Sections 247, 266, 268 and 295 of the Indian Succession Act; and IA. 2202/2002 filed on behalf of respondents 2 & 3 under Order XXXIX Rule 4 read with Section 151, CPC and Sections 268 and 295 of the Indian Succession Act, 1925, (hereinafter "the Act").

2. Facts in brief are: that petitioner filed this petition under Section 276 of the Act for grant of Probate (Letters of Administration) in respect of the Will dated 12th August, 1999, executed by his mother Smt. Sneh Ved Prakash (hereafter, "the deceased"). It is, pleaded that through this last legal and valid will of the deceased property No. S-370, Panchsheel Park, New Delhi-11007 (hereinafter "the suit property"), devolved upon the petitioner and his brother Shri Ajit Ved Prakash in equal shares. That his brother Ajit Ved Prakash died on 27.10.2000 and his share in the suit property, thereafter devolved upon his son and daughter (respondents 2 & 3 herein). The respondents 4 to 6 are married daughters of the deceased, who have no right or share in the suit property, and they are settled in their respective matrimonial homes. The Will is stated to have been accepted by the parties and stood implemented. It is further pleaded that respondent No. 3 (son), is settled in Australia, for the last about five years and respondent No. 2-daughter was married in 1999. They have not been in occupation of the suit property and the petitioner alone is in exclusive possession of the same for the last over ten years; that respondents 2 and 3 are not in possession of the suit property but are bent upon forcibly dispossessing the petitioner and gaining possession of the same. The respondents 2 & 3 are claiming their right on the basis of earlier Will dated 21.2.1991 alleged to have been executed by the deceased, despite knowing that she executed her last legal and valid Will on 12th August, 1999. Lastly it is pleaded that respondents 2 & 3 have never been in possession of the suit property consisting of basement, ground floor and barsati, which are in exclusive possession of the petitioner. On these averments petitioner was granted ex-parte ad-interim relief on 3.10.2001, restraining respondent Nos. 2 and 3 from dispossessing the petitioner without due process of law. It was ordered:

"Notice.

Petitioner has sought probate of the Will executed by his mother in respect of the suit property. It is averred that he is in possession of the suit property for the last ten years. It is alleged by the petitioner that he is threatened by his nephew and niece to dispossess him from the suit premises. By way of ex parte interim relief, the respondents are restrained from dispossessing the petitioner without due process of law. Order 39 Rule 3 CPC be complied with within three days."

3. How, respondents 2 and 3 have filed the application (IA.2202/2002), under Order XXXIX Rule 4, CPC, seeking revocation of the ex-parte interim injunction. It is, inter alia, pleaded that the Will set up by the petitioner is a fabricated and forged document; the ex-parte interim injunction was obtained by concealment of material facts; that two badrooms on the ground floor were in occupation of respondents 2 & 3; that their father had expired on 27.10.2000 and they were living with their father throughout. Some documents have also been filed, indicating that they were also in possession of the suit premises.

4. I have heard learned counsel for the parties and have been taken through the record. There is no dispute that while dealing with the probate proceedings under the Act, the Court is vested with the powers as in relation to the Civil Suit (Section 266). The proceedings of the Court in relation to grant of probate and letter of administration are regulated as far as applicable by the Code of Civil Procedure, 1908 (Section 268). The petitioner is termed as the plaintiff and the person, who opposes is termed as defendant (Section 295). For the preservation of the property until the question as to the existence or validity of the will determined, if injunction is necessary, proper procedure for the aggrieved party is to apply for an appointment as a pendente-lite administrator, so that he can take charge at the estate (Section 247).

5. At this it would be useful to recall the case set up by the petitioner. Para 3 and 4 of the application (IA. No. 9293/2001) reads as under:

"3. That the respondents NO. 4 to 6 are sisters of the petitioner and are settled in their matrimonial homes. It is submitted that the respondent No. 2 is gainfully employed and is settled in Australia for the last five years. Respondent No. 3-Rs. Diya Vij got married in the year 1999, and since then is living in her matrimonial home. None of the respondents have been in occupation of the property No. S-370, Panchsheel Park, New Delhi and the same is in exclusive possession of the petitioner. It is submitted that the petitioner, along wit his family members, is residing in the aforesaid property for the last over 10 years.

4. That all the respondents are aware of the aforesaid Will dated 12th August, 1999, so much so respondents No. 4 to 6 have received their share of jewellery, cash etc. fallen to their share in the said Will. It is respectfully submitted that the said Will has been accepted and stood implemented. Petitioner further respectfully submits that the respondents No. 2 and 3 are bent upon to forcibly dispossess and/or gain possession of the aforesaid property.

The petitioner respectfully submits that till the respondents 2 and 3 accept the aforesaid Will dated 12th August, 1999 and seek partition of the aforesaid property, respondents have no right to dispossess the petitioner or gain forcible possession of the aforesaid property. The respondents are bent upon causing loss and damage to the property so that the petitioner, who is in exclusive possession of the property is put to loss and/or is dispossessed from the same."

6. Respondents 2 and 3 are nephew and niece of the petitioner. As per the petitioner's own showing they are entitled to half share in the suit property. The Will dated 12.8.1999, relied upon by the petitioner itself shows that they were living with their father (Ajit Ved Prakash), who was then aged about 53 years. Para 3 of the Will, reads:

"My second son is Ajit Ved Prakash, aged 53 years who is living with me at S-370, Panchshila Park, New Delhi - 110017. He is divorced and has two children - a daughter named Diya and who is married, and a son named Sharad."

7. The address of Sharat (respondent No. 2) on the driving license dated 29.1.1996 shows that he was living in the suit property at the relevant time. Similarly the Identity Card issued by the Election Commission of India dated 1.1.1994 also shows that Diya Ved Prakash (respondent No. 3), was also living in the suit property. These documents belie the claim of the petitioner and that he is in exclusive possession of the suit property for the last more than 10 years. The suit property belongs to grand-mother of contesting respondents. Prima facie, it appears that they had spent their childhood with their father in this property. As per the petitioner's own showing the contesting respondents are co-owners to the extent of half of the shares in the suit property. The petitioner cannot be permitted to be a self appointed administrator in respect of the entire suit property and pushing the contesting respondents to see partition. The contesting respondents are entitled to the peaceful possession and enjoyment of, at least half share in the suit property and they cannot be denied entry in the same.

For the foregoing reasons, order of ex parte, ad interim injunction dated 3.10.2001 whereby the respondents were restrained from dispossessing the petitioner from the suit property is vacated. Applications stand disposed of. Any observation made herein would not affect the merits of the case during the trial.