Shri Jasvinder Singh vs Shri H.S. Ghai And Ors.
2008 Latest Caselaw 316 Del

ORDER

Shiv Narayan Dhingra, J.

1. Plaintiff filed a suit claiming himself to be owner of 50% share in property No. F-1/2 Vasant Vihar, New Delhi and sought a declaration to this effect from the Court. He also sought a decree for partition of the suit property in two equal parts on the ground that he was owner of 50% share and also prayed decree of permanent injunction against Defendants restraining Defendants from selling or alienating the property in any manner. In the suit, he filed an application under Order 39 Rule 1 and 2 CPC seeking interim injunction against Defendants restraining Defendants from selling alienating or transferring the property. An ex-parte injunction was passed by this Court and Defendants were directed to maintain status quo in respect of title and possession of the property on 30th May, 2007. Thereafter, the Defendants filed an application under Order 39 Rule 4 CPC for vacating the ex-parte stay.

2. Plaintiff has claimed that he was doing business of sale and purchase of various properties along with Defendant No. 2 and Plaintiff and Defendant No. 2 used to purchase properties and then sell those properties. It is stated that property No. F-1/2 Vasant Vihar, New Delhi, subject matter of this suit, was purchased from Mr. P.C. Mitra, the original allottee of the property and since no Sale Deed could be executed in respect of the property, an Agreement to Sell, GPA and Will were executed by Mr. P.C. Mitra in favor of Plaintiff and Defendant No. 2. It is stated that Will was executed in favor of the Plaintiff while Agreement to Sell was executed in favor of Defendant No. 2 in respect of the property. Mr. P.C. Mitra expired on 17th January, 1992. Thereafter, Plaintiff filed a Probate Petition in July, 1997 before the District Court seeking Probate of Will of Mr. P.C. Mitra dated 2nd December 1991 in his favor and Probate was granted on 22nd March, 1999. Plaintiff claims that he became exclusive owner of the property due to grant of the Probate although he and Defendant No. 2 were owners of the property in equal share. It is further pleaded that property No. F-1/2 Vasant Vihar, New Delhi was in dilapidated state at the time it was sold by Mr. P.C. Mitra and Plaintiff and Defendant No. 1 agreed to get this property re-constructed so that it could be sold. For this purpose Defendant No. 2 entered into an agreement with Defendant No. 3 titled as 'Agreement for Construction/Collaboration' under which Defendant No. 3 was to make alterations, improvements and re-construction on the said property at her own cost and expenses estimated to be about Rs. 20 lac and in consideration of that, Defendant No. 2 permitted Defendant No. 3 to reap rent of the said premises after completion of the said work for a period of four years. The parties had anticipated that the property would fetch a rent of Rs. 15,000/- per month. After completion of work of construction, Defendant No. 3 let it out to Embassy of Sultanate of Oman at a rent of Rs. 60,000/- per month for a period of four years and received entire rent in advance. The lease of the property in favor of the Embassy of Sultanate of Oman was further extended by Defendant No. 2 for another period of 2 years. Embassy vacated premises on 8th November, 2001 and possession of the premises was taken over by Plaintiff and Defendants No. 1 and 2. Thereafter, Defendant No. 3 filed a suit against Plaintiff and Defendants No. 1 and 2 alleging that the possession was forcibly taken with the help of gundas and sought permanent injunction and declaration from the Court claiming herself to be an absolute and exclusive owner of the property. It is stated by Plaintiff that since no interim injunction was granted, Defendant No. 3 withdrew the said suit and filed another suit bearing Suit No. 192/2005 for possession, mandatory injunction and for recovery of Rs. 16,88,000/- against Plaintiff and Defendants No. 1 and 2. Defendant No. 3 took the stand in this suit that pursuant to the grant of loan of Rs. 40 lac, Plaintiff in conspiracy with Defendant No. 2 had taken all original documents, title deeds of the suit property and had also taken more than 60 blank documents bearing the signatures of Mr. P.C. Mitra and Defendant No. 3. In the said suit, an interim order was granted by the Court in favor of Defendant No. 3 and parties were directed not to create any third party rights in the said property. It is stated that WS was filed on behalf of the Plaintiff by Defendant No. 2 in that case and all pleadings were drafted under the instructions of Defendant No. 2. Plaintiff was having faith in Defendant No. 2 and he kept on signing the pleadings blindly without reading. In the pleadings, Plaintiff later on learnt that there was no mention of Probate obtained by Plaintiff in his favor and the Plaintiff also stated that he had no concern with the said suit property. It is stated by Plaintiff that misstatement of facts on the part of Plaintiff was manged by Defendant No. 2 herein as he was looking after the litigation in the suit filed by Defendant No. 3 against the Plaintiff and other Defendants and Plaintiff had been signing replies and WS etc. on the instructions of Defendant No. 2 having blind faith in him.

3. Plaintiff has mentioned about other property of Malcha Marg and stated that Plaintiff and Defendant No. 1 were joint owners of Malcha Marg and they had sold their respective shares to the third parties. It is stated that Defendant No. 1 became dishonest with the purchaser of his share of the Malcha Marg property and filed a suit against the purchaser and later on compromised the suit only after he received Rs. 1 crore from the purchaser. On this incident, Plaintiff became suspicious of the intentions of Defendants No. 1 and 2 and asked them to execute written documents in respect of the property No. F- 1/2 Vasant Vihar, New Delhi. Defendants No. 1 and 2 started dillydallying and did not execute any document in respect of the property in question. The Plaintiff suspected that Defendant No. 1 had become dishonest and had intentions to grab the suit property as he had earlier become dishonest in respect of Malcha Marg property. He, thereafter, engaged another counsel and inspected the file of Suit No. 192/2005 and learnt that WS and other proceedings filed on his behalf stated that he had no right in the property No. F-1/2 Vasant Vihar, New Delhi. The Plaintiff was taking steps to amend his WS in that suit.

4. Plaintiff has claimed that the cause of action for filing this suit arose because he learnt that Defendants with oblique motives had been approaching various parties and property dealers to sell the suit property so as to misappropriate the entire sale proceeds to the exclusion of Plaintiff and denying the benefits of the same to the Plaintiff, who is joint owner of the property. Since Defendants No. 1 and 2 disputed the right of the Plaintiff to have his 50% share in the property, the Plaintiff was compelled to file this suit.

5. In the WS filed by Defendant No. 3, she took the stand that Plaintiff and Defendants No. 1 and 2 have filed the present suit in collusion with each other, Defendant No. 3 was the real owner of the property. She stated that the Probate of Will of Mr. P.C. Mitra dated 2nd December 1991 was obtained by Plaintiff by playing fraud. Mr. P.C. Mitra had left behind his four legal heirs viz. Mr. Kalyan Kumar Mitra (son), Mr. Alok Kumar Mitra (son), Mrs. Bithika Bose (daughter) and Mrs. Shanti Mitra (widow). However, Plaintiff did not make other legal heirs as party and only made Mr. Kalyan Kumar Mitra as a party to that Probate Petition showing him sole legal heir. Even the address of Mr. Kalyan Kumar Mitra was wrongly given. Mr. Kalyan Kumar Mitra was not living at the address furnished by the Plaintiff, in the Probate Petition. His address was given as 13A DDA, SFS Flats Motia Khan, New Delhi which was incorrect address of Mr. Kalyan Kumar Mitra who was residing at relevant time at 40/197, First Floor, Chittranjan Park, New Delhi. It is stated that the address of Mr. Kalyan Kumar Mitra as mentioned under his signature as attesting witness to the said Will is KD-41, Pitampura, Delhi but Mr. Kalyan Kumar Mitra never lived at this address. Despite the fact that Mr. P.C. Mitra had three other legal heirs apart from Mr. Kalyan Kumar Mitra, Plaintiff made statement on oath that Mr. P.C. Mitra was survived by only son. It is also stated that by Defendants No. 1 and 2 in application under Order 39 Rule 4 CPC that Defendants No. 1 and 2 have already filed a suit for cancellation of the Probate.

6. I have perused the order of Probate granted by the District Judge and a perusal of this order shows that Mr. Kalyan Kumar Mitra was mentioned as sole legal heir of Mr. P.C. Mitra. In replication filed by the Plaintiff to the WS of Defendants wherein Defendant No. 3 had categorically disclosed that all other legal heirs were not made party, Plaintiff has not denied this assertion. Plaintiff has not denied the assertion in WS of Defendant No. 3 that he was aware of other legal heirs and they were not made party to the Probate Petition.

7. Defendant No. 3 in her WS has further stated that Plaintiff was a party to Suit No. 192/2005 filed by Defendant No. 3 and in that suit Plaintiff herein had filed WS on 16th May, 2005 and in that WS he categorically stated that he had no connection with the suit property. Relevant paragraph of WS, filed in that suit is as under:

The replying Defendant No. 3 has absolutely nothing to do with the alleged inter-se dealing amongst the Plaintiff and other defendants. He neither has any interest whatsoever nor in possession of any part of the property for which the present suit for possession and other reliefs has been filed.

Plaintiff further stated in paras 14 and 16 as under:

14. That the contents of para 14 of the plaint are wrong and denied. It is wrong to allege that there was any such conduct of the replying defendant which allegedly apprehended the plaintiff. The replying defendant never claimed any ownership/share in the suit property, at any point of time. Rest of the contents of this para are wrong and denied, being not related to the replying defendant.

16. That the contents of para 16 of the plaint are wrong and denied. It is wrong to allege that the replying defendant, ever went to the suit premises, much less with defendants No. 1 and 2 or 22/25 persons, much less with knives and sticks, much less on 13.11.2001, much less in the manner as alleged. It is all concocted story created by the plaintiff to suit her own convenience. The replying defendant has nothing to do with the ownership of the suit property or dealings, amongst the plaintiff and defendant never went to the suit premises there was no question of entering into the same. Rest of the contents of this para are wrong and denied. The replying defendant is not aware that his name has been entered in D.D. Entry No. 37-A, dated 13.11.2001. It is stated that the Plaintiff has taken the contradictory stand in the present suit from his pleadings in suit No. 192/2005 only with malafide intentions. Plaintiff in collusion with Defendant Nos. 1 and 2 has filed this suit in order to deprive Defendant No. 3 of her lawful rights in the property.

8. The claim of the Plaintiff on the suit property is based on two factors; one Probate of the Will and second that he purchased this property along with Defendant No. 2 in joint ownership. It is settled law that Probate of a Will does not confer a right of title over a property. Probate is a certificate of genuineness of the Will and it is not a certificate of title over the property. A person can execute Will in respect of property of which he is not the owner and this fact may not be brought to the notice of the Court and another may obtain Probate of the Will. By merely obtaining Probate of the Will, a person does not become owner of the property. A person may execute Will in respect of property which he already sold. The person in whose favor Will is executed does not become owner of the property by obtaining Probate of the Will in respect of property already sold. The title of the property and Probate are two different things. In order to claim title over the property, the person, in whose favor Probate is there has to show that the property in respect of which he has obtained Probate was actually owned by testator at the time of his death and there was no other claimant of the property either by way of possession or any adverse title or because of any other factor. Moreover, in the present case, grant of Probate has been challenged and the Probate on the face of it, seems to have been obtained without impleading all legal heirs of the deceased/testator. The Plaintiff knew these facts very well and that seems to be the reason that after the order of the Probate, Plaintiff did not execute necessary Security Bond and did not file Court fee to obtain Probate Certificate from the Court.

9. The alleged Probate was obtained by Plaintiff in the year 1999 and Plaintiff claims that on the basis of that Probate he became exclusive owner of the property. He did not file any suit in respect of property after 1999 despite the fact that the property was in possession of Defendant No. 3 and Defendant No. 2 had already created exclusive right in favor of Defendant No. 3 to his knowledge.

10. The plea of the Plaintiff that an agreement for construction and building was entered into with Defendant No. 3, who was to spend Rs. 20 lac on construction and to enjoy the benefits of rent for a period of four years is unbelievable. The rent assessed was only Rs. 15,000/- per month therefore, the rent for four years would come to Rs. 7,20,000/-. No person is fool enough to spend Rs. 20 lac on construction for realizing a sum of Rs. 7,20,000/- and that too spread over a period of four years. The plea, therefore, is not tenable and cannot be considered.

11. It is pleaded that Plaintiff under a belief that Defendant No. 2 was dealing with the property on his behalf kept on signing WS blindly. Pleadings of a party in a suit are binding on him. A person is not allowed to blow hot and cold. The Plaintiff who took a stand in Suit No. 192/2005 that he was not owner of the property and had no concern with the property, cannot be allowed to plead that he was owner of 50% of the property. The Plaintiff has no document of ownership except Probate. Plaintiff has not stated, if he had contributed any amount for purchase of this property and no consideration at all has been mentioned by the Plaintiff in the suit as to for what amount property was purchased from Mr. P.C. Mitra by him and Defendant No. 2. Will is not a document of ownership. Will comes into effect only after death of the person. While according to Plaintiff, ownership was transferred by Mr. P.C. Mitra during his life time. The suit of the Plaintiff is also hit by Section 4 of Benami Transaction Act and the plea of the Plaintiff that he was co-owner of the property cannot be considered.

12. I find that Plaintiff has no prima facia case neither the balance of convenience lies in favor of the Plaintiff rather it lies against the Plaintiff. The Plaintiff has approached the Court in the year 2007 while he obtained Probate in the year 1999. The suit prima facia also is barred by limitation. I, therefore, find no force in the application under Order 39 Rule 1 and 2 CPC and the same is hereby dismissed. The ex-parte interim order passed is hereby vacated.

IA No. 8423/2007 (Under Order 39 Rule 4 CPC)

The application stands disposed of in view of order passed in application under Order 39 Rule 1 and 2 CPC.

CS(OS) No. 1043/2007

To come up for framing of issues on 29th April, 2008.