Delhi High Court
Aruna Malhotra vs Chetan Dayal & Ors. on 23 December, 2009
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.453/2009 and CM No.13922/2009
# ARUNA MALHOTRA ..... Appellant
Through: Mr. Mohit Kumar, Adv.
versus
$ CHETAN DAYAL & ORS. ...... Respondent
^ Through: Mr. H.L. Tiku, Sr. Adv. with
Mr. Jagjit Singh Chhabra &
Mr. Thakur Sumit, Advs. for
Respondent No.1
Mr. Pankaj Singh for
Mr. A.C. Mishra, Adv. for
DDA
WITH
FAO(OS) No.465/2009 and CM No.14159/2009
ARUNA MALHOTRA ..... Appellant
Through: Mr. Mohit Kumar, Adv.
versus
CHETAN DAYAL & ORS. ...... Respondent
Through: Mr. H.L. Tiku, Sr. Adv. with
Mr. Jagjit Singh Chhabra &
Mr. Thakur Sumit, Advs. for
Respondent No.1
Mr. Pankaj Singh for
Mr. A.C. Mishra, Adv. for
DDA
WITH
FAO(OS) No.485/2009 and CM No.14716/2009
ARUNA MALHOTRA ..... Appellant
Through: Mr. Mohit Kumar, Adv.
versus
CHETAN DAYAL & ORS. ...... Respondent
Through: Mr. H.L. Tiku, Sr. Adv. with
Mr. Jagjit Singh Chhabra &
FAO(OS)453/2009 Page 1 of 14
Mr. Thakur Sumit, Advs. for
Respondent No.1
Mr. Pankaj Singh for
Mr. A.C. Mishra, Adv. for
DDA
WITH
FAO(OS) No.486/2009 and CM No.14720/2009
ARUNA MALHOTRA ..... Appellant
Through: Mr. Mohit Kumar, Adv.
versus
CHETAN DAYAL & ORS. ...... Respondent
Through: Mr. H.L. Tiku, Sr. Adv. with
Mr. Jagjit Singh Chhabra &
Mr. Thakur Sumit, Advs. for
Respondent No.1
Mr. Pankaj Singh for
Mr. A.C. Mishra, Adv. for
DDA
Date of Hearing : November 23, 2009
% Date of Decision : December 23, 2009
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. All the Appeals assail the common Order dated 11.9.2009
passed by the learned Single Judge in CS(OS) No.2318/2006.
During the hearings of all these Appeals, it had been clarified that
Mr. Basant Dayal, arrayed as Respondent No.2/Defendant No.2,
had executed a Power of Attorney in favour of his sister, Mrs.
Aruna Malhotra, Appellant/Defendant No.1; that he has no interest
adverse or inimical to those of Mrs. Aruna Malhotra; that there
was a common counsel of the Appellant/Defendant No.1 and
Defendant No.2/Respondent No.2, namely, Mr. Mohit Kumar. By
Order dated 23.11.2009, in FAO(OS) No.453/2009 we had
transposed the said Mr. Basant Dayal as Appellant No.2. We had
also struck off Mr. D. Nelsen from the Array of Parties as he is no
longer the tenant in possession of the suit premises. These Orders
should be effectual in respect of all the Appeals.
FAO(OS)453/2009
2. This Appeal assails the Order passed with regard to IA
No.1319/2008 filed by the Plaintiff/Respondent No.1 containing the
following prayers:-
(a) Proceed against the defendant no.1 and 2 for
disobedience of the order of this Hon‟ble Court and to
punish the defendants No.1 and 2 and attach their
properties; and
(b) Against defendant No.1 and 2 from taking possession
of front portion of the Property No.E-7/6, Vasant Vihar,
New Delhi and
(c) Against defendant No.1 from executing any lease
deed qua any portion of the suit premises or dealing
with suit property in any manner; and
(d) Grant ex parte ad interim order in terms of the
above.
(e) Award compensation to the plaintiff against the
defendants No.1 and 2 for breach of the order of this
Hon‟ble Court; and
(f) Grant such other relief or pass any other order,
which this Hon‟ble Court may deem fit and appropriate
in the facts and circumstances of the case.
3. As is discernible from the impugned Order dated 11.9.2009,
Late Shri Dayal Chand Kaith (Shri D.C. Kaith) was a lessee under
the Delhi Development Authority of E-7/6, Vasant Vihar, New
Delhi. He had executed a Registered Gift Deed dated 3.6.1974,
gifting his half-share over the land in favour of his daughter, Mrs.
Aruna Malhotra, the Appellant before us in all these Appeals. No
partition, however, took place. The construction on the plot was
let-out to the Sarabhai Group and the rent was shared by Late Shri
D.C.Kaith and the Appellant. The property was vacated in 1995 and
thereafter Mrs. Aruna Malhotra started residing in the rear portion
of the said house while the front portion in the First Floor and the
Servant Quarters above the Garage was let-out jointly by her and
her father, Shri D.C. Kaith. It appears that Shri D.C. Kaith may
have executed several Wills including those dated 21.12.1995,
9.8.1996 and 4.2.1997; he died on 3.12.1997. According to the
averments made in the Plaint, the Plaintiff and Defendant No.2,
Mr. Basant Dayal became 1/4th owner of the undivided share in the
said house. The Plaintiff is the nephew of Mrs. Aruna Malhotra and
Mr. Basant Dayal. Plaintiff, Mr. Chetan Dayal, being the son of
their sibling, Mr. Roop Dayal, the other son of Mr. D.C. Kaith.
4. It appears that on 28.1.1999, Mrs. Aruna Malhotra, as the
Attorney of Mr. Basant Dayal, filed a Suit seeking a declaration
that the Will dated 21.2.1997 is not genuine. The counterblast is
the filing of a Suit dated 25.1.1999 in Chandigarh stating that Will
dated 4.2.1997 is the last Will of Shri D.C. Kaith; consequential
relief has also been prayed for by the Plaintiff/Respondent No.1.
This Suit was decreed by the Judgment dated 30.7.2004 of the Civil
Judge, Chandigarh, whereby the Will dated 4.2.1997 was declared
to be the last and final Will of Late Shri D.C. Kaith. However, the
relief of partition of the said property, as well as a share of the
rents received therefrom, was declined. Interestingly, the
Appellant, as well as Mr. Basant Dayal, did not assail that Decree.
The present Suit came up for hearing on 15.12.2006, on which
date the learned Single Judge passed an ex parte order restraining
Mrs. Aruna Malhtora and Mr. Basant Dayal from alienating, selling
or parting with possession of the suit property or from inducting
any other person in any part thereof. It was soon thereafter that
the tenant quit the premises. In the hearing held on 23.5.2008, the
learned Single Judge recorded the Consent Arrangement between
the present adversaries to the effect that the front portion of the
suit property, then lying vacant, be let-out. It next transpires, as
pleaded in IA No.9024/2008, that Mrs. Aruna Malhotra had
identified the tenant for the front portion, but the Plaintiff objected
to the letting. It was in these circumstances that a Local
Commissioner was appointed who, in his Report dated 21.8.2008,
disclosed that the British High Commission had offered to rent the
suit premises for Rupees 2,00,000/- per month for a period of three
years. This tenancy did not come to fruition inter alia since Mrs.
Aruna Malhotra had held herself out to be the owner. Eventually,
IA No.13906/2008 was filed by the Plaintiff under Order XXXIX
Rules 1, 2 and 2A of the Code of Civil Procedure, 1908 („CPC‟ for
short). On 24.12.2008, the learned Single Judge appointed a Local
Commissioner to visit the suit premises whose Report indicated
that the front portion of the suit property was occupied by the
family of Mrs. Aruna Malhotra‟s daughter, namely, Mrs. Komal
Malhotra, her husband Mr. Parul Soni alongwith their two
children. The Local Commissioner has also recorded the voluntary
statement of Mrs. Komal Malhotra, daughter of Mrs. Aruna
Malhotra that Mrs. Komal Malhtora and her family were residing
in the rear portion of the suit property till 25.10.2008.
5. The learned Single Judge has applied the ratio of Sujit Pal -
vs- Prabir Kumar Sun, AIR 1986 Calcutta 220 as well as Delhi
Development Authority -vs- Skipper Construction Co.(P) Ltd.,
(1996) 4 SCC 622. The learned Single Judge has noted the
admission of Mrs. Aruna Malhtora to the effect that she had
inducted her daughter and her family into the front portion of the
suit property contrary to the interim Orders passed in the earlier
proceedings of the Suit. It is evident that Mrs. Aruna Malhotra
had endeavoured to justify her action by drawing support from the
Wills dated 21.12.1995 and 8.9.1996, both of which mention the
Gift Deed executed in her favour. She has also sought to rely on an
Affidavit dated 9.9.1993 of Late Shri D.C. Kaith asseverating that
the front portion of the suit property was gifted by her father to
her as also that the residential construction has been carried out
from her funds; that she was paying the House Tax, Water and
Electricity bills.
6. Even in these circumstances, the learned Single Judge, by
means of the impugned Order, has concluded that inasmuch as the
front portion has been occupied by Mrs. Komal Malhotra and her
husband, Mr. Parul Soni and their two children, the first Order
dated 15.12.2006 has been violated. The learned Single Judge has
adverted to the Order dated 23.5.2008 and to its character of
being a Consent Order. The learned Single Judge has concluded
that the act of Mrs. Aruna Malhotra was in flagrant violation of the
Order dated 15.12.2006. Even so, keeping the age of Mrs. Aruna
Malhotra in view (70 years), only a "sound warning" has been
recorded which, as subsequent events disclose, has been
contemptuously ignored. The direction in the impugned Order to
the effect that Mrs. Komal Malhotra, Mr. Parul Soni and their two
children "should vacate the front portion of the suit property and
restore the possession of the suit property to the same position as
on the date when the interim Orders dated 15.12.2006 and
24.10.2008 were passed within one week from today" has been
disobeyed. The impugned Order also directs Mrs. Aruna Malhotra
to deposit Rupees 2,00,000/- per month, being the rent offered by
the prospective tenant, from the date when Mrs. Komal Malhtora
was inducted in the front portion of the suit premises, that is, from
25.10.2008 within a period of four weeks. Both these directions
have not been complied with.
7. We find no error in the impugned Order. It is palpably clear
that the front portion of the house was not in the possession either
of Mrs. Aruna Malhotra or of Mr. Basant Dayal or of Mrs. Komal
Malhtora, Mr. Parul Soni and their two children. We are dealing
with educated people who are quite capable of understanding the
parameters and implications of Orders passed on 15.12.2006. It is
of no assistance or significance that the front vacant portion has
been occupied by Defendant No.1/Appellant‟s daughter and her
family. It nevertheless violates the interim Orders which prohibited
inducting any person in any part thereof. We are additionally of the
view that the action of Mrs. Aruna Malhtora of handing over
possession of the front portion to her daughter and her family has
the effect of parting with possession thereof, even if it does not
partake of the character of a letting. The tolerance of the Court
process is more often than not abused as is evident from this case.
A vain and idle attempt has been made by learned counsel for the
Appellant to justify the contemptuous action of the Appellant. The
Plaintiff/Respondent has not filed an Appeal against the impugned
Order inasmuch as it refrains from punishing Mrs. Aruna Malhtora.
Therefore, it may be inappropriate for us to expand upon the said
Order and impose on Mrs. Aruna Malhotra a sentence which we
think is called for in the interest of justice, and the efficacy of
judicial verdicts. We, however, reiterate the direction given by the
learned Single Judge, namely, that Mrs.Komal Malhtora, Mr. Parul
Soni and their children must vacate the front portion of the suit
property and restore the possession thereof to the same position
as it was on 24.10.2008 within one week from today, failing which
Mr. Chetan Dayal shall be entitled to take police assistance to get
them along with their belongings removed from the front portion of
the suit property so that it is restored to its vacant state. In
addition, Mrs. Aruna Malhotra is directed to deposit within thirty
days with the Registrar-General a sum of Rupees 28,00,000/-, that
is, Rupees 2,00,000/- per month with effect from 25.10.2008.
8. The Appeal is dismissed with costs of Rupees 25,000/-.
Pending application also stands dismissed.
FAO(OS) 465/2009
9. This Appeal assails the composite Order dated 11.9.2009
passed by the learned Single Judge in IA No.3338/2007 filed by the
Appellant/Defendant No.1 under Order VII Rule 11 of the CPC for
dismissal of the suit as being barred by law - as per Order II Rule 2
and Section 213 of the Indian Succession Act, 1925. The facts
mentioned above have been reiterated in the Application. A
mention has also been made of a Will dated 4.2.1997 by which the
remaining half of the rear portion of the suit property was
allegedly bequeathed to the Appellant and Mr. Basant Dayal. We
note that if this Will is given effect to, it will result in one of the
children of Shri D.C. Kaith, namely, Shri Roop Chand, being
disinherited, for which no valid explanation has been proffered by
the Appellant. To the contrary, we have been informed that the
Plaintiff, Mr. Chetan Dayal, had donated some of his bodily organs
to his Late grandfather, Shri D.C. Kaith which may have been the
foundation for his grandfather bequeathing 1/4th of his share in his
favour. We are, however, neither concerned with this aspect of the
case nor are we required to give any finding in this regard.
10. The Civil Suit, bearing No.38/1999 filed by Mr. Chetan Dayal
before the Civil Judge, Chandigarh, seeking a declaration to the
effect that the Will dated 4.2.1997 was the last Will of Late Shri
D.C. Kaith has also been adverted to. The Application itself
extracts the relevant portion of the Judgment/Decree passed by the
Chandigarh Court in the following words - "As far as partition of
Delhi property i.e. H.No.E-7/6, Vasant Vihar, New Delhi is
concerned for that Chetan Dayal is at liberty to file a suit where
the property situated and as far as the direction sought by Chetan
Dayal regarding his share of rent is concerned, in the absence of
any evidence that relief also goes against Chetan Dayal". It is
evident that liberty to initiate fresh action had been granted by the
Civil Judge, Chandigarh and, therefore, the prayer with regard to
partition contained in the Suit is maintainable.
11. Even otherwise, the contentions raised before us which
pertain to the non-maintainability of the Suit must be rejected
because of some other arguments of the Appellant. In Amardeep
Singh -vs- State, 125(2005) DLT 627, a learned Single Judge of this
Court, after a discussion of several precedents, declined to stay the
probate proceedings even though the Civil Court in Panchkula had
previously been moved, for the reason that that Court had no
jurisdiction to deliver any pronouncement in the nature of probate.
In ordinary parlance, probate means the official proving of a Will
(C.O.D.); Black‟s Law Dictionary defines probate as - "the judicial
procedure by which a testamentary document is established to be a
valid Will; the proving of a Will to the satisfaction of the Court". A
Civil Court does not have jurisdiction in this regard. Accordingly,
on the strength of Kiran Singh -vs- Chaman Paswan, AIR 1954 SC
340 the Judgment delivered by the Civil Judge, Chandigarh would
be without jurisdiction and, therefore, a nullity, the invalidity of
which could be set-up whenever and wherever it is sought to be
enforced. In ChiranjiLal Shrilal Goenka -vs- Jasjit Singh, (1993) 2
SCC 507 their Lordships went to the extent of clarifying that the
Probate Court has exclusive jurisdiction over authentication of
Wills and this being the position, neither the Civil Court nor the
Arbitrator, even with the consent of parties, had no jurisdiction to
adjudicate upon the proof or validity of a Will; and if such a decree
came to be passed by these fori it would be a nullity and this
question of invalidity could be raised even at the execution stage.
In Athmanathaswami Devasthanam -vs- K. Gopalaswami Ayyangar,
AIR 1965 SC 338, the Supreme Court had again clarified that "the
Court has no jurisdiction over the subject matter of the suit and it
cannot decide any question on merits. It can simply decide on the
question of jurisdiction and coming to the conclusion that it had no
jurisdiction over the matter had to return the plaint". Therefore,
even though the Plaintiff may have earlier approached the Civil
Judge, Chandigarh for the grant of probate, this action would be
non-est and of no legal efficacy or any bearing on any subsequent
litigation. The principles of Order II Rule 2, nay any other
provisions, would, therefore, not act as an impediment or obstacle
or jural infirmity.
12. We find no error in the impugned Order in terms of which
the Application under Order VII Rule 11 came to be dismissed. The
Appeal being devoid of merit is dismissed with costs of Rupees
15,000/-. Pending application also stands dismissed.
FAO(OS) No.485/2009
13. This Appeal assails the dismissal of IA No.4419/2009 under
Section 151 of the CPC filed by the Appellant wherein the
Appellant had prayed to the Court to "dispose of IA Nos.5104/2007
and 10400/2008 as withdrawn". The prayers contained in IA
No.5104/2007 is for the modification of the injunction Order dated
15.12.2006 so as to allow the induction of a tenant in the front
portion of the suit premises in the erstwhile tenancy of Defendant
No.3. The application was filed on 1.5.2007 and was sought to be
withdrawn by IA No.4419/2009 which was filed in March, 2009.
Obviously, the application had been proffered in order to
circumvent the Plaintiff‟s action for the committal of the Appellant
for having violated the Court Orders. The learned Single Judge has
correctly appreciated the purpose of this application inasmuch as
he has noted that the prayers therein were for letting the front
portion of the suit premises to a tenant, the very portion of which
has now been occupied by the Appellant‟s daughter and her family.
The intention behind the application was to shroud the palpable
and obvious violation of Court Orders.
14. Appeal is dismissed with costs of Rupees 5,000/-. Pending
application also stands dismissed.
FAO(OS) No.486/2009
15. The prayer in this Appeal is for setting aside the impugned
Order to the extent that it allows IA No.2098/2009 filed under
Order XXXIX Rules 2 and 2A read with Section 151 of the CPC filed
by the Plaintiff/Respondent. The prayer in this application was for
the issuance of direction to the Appellant and Defendant No.2 to
restore the status quo ante in respect of the front portion of the
suit property as on 23.5.2008 and for deposit of the rental at the
rate of Rupees 2,00,000/- per month. This aspect of the Appeal has
already been dealt with above. In order to remove any doubts, we
reiterate our direction to the Appellant to ensure that Mrs. Komal
Malhotra, Mr. Parul Soni and their children should vacate the front
portion of the suit property within one week and further to deposit
the sum of Rupees 28,00,000/- with the Registrar-General of this
Court within thirty days from today.
16. Appeal is dismissed with costs of Rupees 3,000/-. Pending
application also stands dismissed.
17. Trial Court record be sent back to the Record Room.
( VIKRAMAJIT SEN )
JUDGE
December 23, 2009 ( SUNIL GAUR )
tp JUDGE
