Divya Mubayi vs Krishna Mubayi & Ors.
2009 Latest Caselaw 2423 Del

*              HIGH COURT OF DELHI : NEW DELHI

+          IA No.2746/2008, IA No.4110/2008 & IA No.4109/2008 in
          CS (OS) No.404/2008

%                      Judgment reserved on :           26th May, 2009

                       Judgment pronounced on :            2nd July, 2009

Divya Mubayi                                             ...Plaintiff
                                Through :     Mr. Rajiv Sawhney, Sr. Adv.
                                              With Mr. Anshul Tyagi, Adv.

                       Versus

Krishna Mubayi & Ors.                                   ....Respondents
                              Through :       Mr. Prabhjit Jauhar, Adv.
                                              & Mr. S.S. Jauhar & Ms.
                                              Anupama Kaul, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   No

2. To be referred to Reporter or not?                                No

3. Whether the judgment should be reported                           No
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff has filed the suit seeking a decree of partition

and permanent injunction against the defendant in respect of the suit

property situated at D-129, Defence Colony, New Delhi (hereinafter

referred to as 'the suit property'). The plaintiff claims to have inherited

1/6th share in the suit property after the death of her grandfather Late Lt.

General S.N. Mubayi.

2. The plaintiff is the daughter of late Mr. Sanjay Mubayi and

defendant No.3. The plaintiff is the only child born from the wedlock.

Mr. Sanjay Mubayi (father of the plaintiff) died on 4.9.1996. He was

survived by the plaintiff as his only child, the defendant No.3 (widow),

his father late Lt. General, S.N. Mubayi (who is now deceased),

defendant No.1 (mother) and defendant No.2(his brother).

3. Plaintiff's father and defendant No.2 are the sons of Late Lt.

General S.N. Mubayi and defendant No.1. Lt. General S.N. Mubayi was

the owner of the suit property where he built a residential house.

According to the plaintiff, the suit property was his self acquired

property.

4. As per the averment in the plaint , the plaintiff was born in

the suit property on 4.1.88. Due to some reasons and pursuant to an

understanding between the plaintiff's mother (defendant No.3) and the

plaintiffs grandparents (including defendant No.1), her mother took up

residence in her parents home in Vasant Vihar. However, the plaintiff's

case is that she visited her grandparents almost daily.

5. As per the plaintiff, after the death of her father, she became

very close to both grandparents and visited them almost everyday after

school. The plaintiff spent many nights with her grandparents in the

suit property. A separate room was given to the plaintiff on the

ground floor. The plaintiff had her personal belongings including her

clothes etc. permanently in that room.

6. It is alleged by the plaintiff that her grandparents had

immense love and affection for her and repeatedly told the plaintiff that

the suit property was her home. The plaintiff's grandfather Lt. Gen. S.N.

Mubayi died on 9th September, 2005.

7. Defendant no. 1 is about 83 years old and fully dependent on

defendant no. 2 for her well fair and upkeep. As per the plaintiff, she has

expressed immense pain, sadness and anguish at defendant no. 2's

attitude and behaviour towards the plaintiff after the death of plaintiff's

grandfather.

8. It is alleged in the plaint that the plaintiff's grandfather died

intestate. It is submitted that the grandmother of the plaintiff repeatedly

confirmed that the plaintiff's grandfather did not leave behind any Will.

Pursuant to the death of Lt. General S.N. Mubayi, his estate has been

inherited equally among his legal heirs i.e. his widow (defendant no. 1),

son Mr. Arun Mumbayi (defendant no. 2) and legal heirs of pre-

deceased son i.e. the plaintiff and defendant no. 3.

9. As per plaintiff, the suit property was the plaintiff's father

residence. It was also the defendant no. 3's matrimonial home.

10. The plaintiff has valued the suit for the relief of possession

and partition of the plaintiff's share in the suit property at Rs. 30 lakhs

on which appropriate court fee of Rs. 31,625/- has been paid.

11. The plaintiff filed an application under Order 39 Rules 1 and

2 CPC read with Section 151 CPC being IA No. 2746/2008 for passing

exparte ad-interim injunction order restraining the defendants, their

attorneys, agents, assignees and representatives from selling, alienating,

encumbering or creating any third party interest or parting with

possession of the suit property.

12. In reply to this application filed by the plaintiff, the

defendants submitted that Lt. General S.N. Mubayi has not die intestate

and prior to his death, he executed a duly registered Will on 26.08.2000.

Vide the said registered Will, Lt. General S.N. Mubayi bequeathed the

suit property solely and exclusively to his son Mr. Arun Mubayi i.e.

defendant no. 2. The existence of the said will was duly brought to the

knowledge of the plaintiff by her grandparents. It is also a matter of

record that the plaintiff, alongwith defendant no. 3 had been residing in

separate premises at 1-A, Pashchimi Marg, Vasant Vihar from 1991-92

till date. It is not in dispute that prior to the filing of the present suit, the

plaintiff was not staying in the suit premises.

13. The factum of the execution of the Will has been

intentionally and deliberately concealed by the plaintiff to obtain

favourable order from this court. It is contended that the plaintiff by

concealing material facts from this court has played a fraud and is liable

to be prosecuted for contempt of court.

14. Neither the plaintiff nor the defendant no. 3 possesses any

right, title or interest in respect of the suit property in view of the

registered Will executed by Lt. General S.N. Mubayi. The Will has been

duly signed and attested by two witnesses in the presence of Sub-

Registrar of assurances and as such no right, title or interest can be

claimed qua the suit property by the plaintiff or defendant no. 3.

15. It is also alleged in the application filed by the defendant

under Order VII Rule 11(b) being IA No.4109/2008 that the plaintiff

has undervalued the suit and has not paid the ad valorem court fee in

respect of the suit property. It has clearly been stated in the plaint that

there has been an ouster of possession of the plaintiff in respect of the

suit property and in view of the clear ouster stated in the plaint, the

plaintiff ought to have valued the suit for the reliefs of possession and

partition on the basis of the market value of her alleged share in respect

of the suit property. As such the suit is alleged to be grossly

undervalued and is liable to be dismissed on this ground.

16. It is denied by the plaintiff in the replication that she has

any knowledge of the alleged will executed by her late grandfather. She

reiterated that the plaintiff's grandfather and defendant No.1 on various

occasions repeatedly told and confirmed to the plaintiff that the suit

property was her own and that she should always be the owner of her

father's share in the property.

17. The plaintiff has denied that late Sh. Lt. General S.N.

Mubayi vide the alleged Will dated 26.8.2000 bequeathed the suit

property exclusively in favour of defendant No.2 as alleged or otherwise

and also denies the factum that the existence of the alleged will was

brought to the notice of the plaintiff by her grandfather and her

grandmother.

18. It is stated that defendant No.1 even after the demise of late

Sh. Lt. General S.N. Mubayi confirmed to the plaintiff that he died

intestate. According to the plaintiff, the defendant No.2 is only a part

owner of the suit property with the other co-owners and cannot claim

any exclusive rights on the suit property.

19. It is argued that the plaintiff has correctly valued the suit in

terms of her 1/6th share in the suit property on which requisite court fees

has been paid.

20. It is submitted on behalf of the plaintiff that even by the

defendant's own admission, the plaintiff has valued her 1/6th share in the

suit property which according to the plaintiff was Rs.30 lac at the time

of filing of the instant suit.

21. It has been held in number of cases decided by this Court that

in a suit for partition under Section 7(iv)(b) of the Court Fees Act, 1870,

the plaintiff has to pay ad-valorem court fees on the basis of market

value of her share if she is not in possession of the suit property. I find

no merit in the contention of the defendants on this ground. The ratio of

judgments reported in Nisheet Bhalla & Ors. vs. Malind Raj Bhalla

& Ors., AIR 2007 Delhi 60, Renu Nagar Vs. Anup Singh Khosla &

Anr., 156 (2009) DLT 723, Saroj Salkan Vs. Sanjeev Singh & Ors.,

2008 (155) DLT 300, Meenakshi Gupta Vs. Naveen Mahajan, 149

(2008) DLT 746, Sudershan Kumar Seth Vs. Pawan Kumar Seth &

Ors., 124 (2005) DLT 305 relied upon by the defendants has no direct

application in the facts of the present case. The plaintiff has paid court

fees of Rs.31,625/- and valued her 1/6th share in the suit property at

Rs.30 lac which is in my view, prima facie adequate and reasonable. As

a result, the application of defendant under Order VII Rule 11(b) being

IA No.4110/2008 for rejection of the plaint is dismissed.

22. So far as the pending interim applications being I.A. Nos.

2746/2008 and 4110/2008 are concerned, it is not in dispute that by an

order dated 3rd March, 2008, the defendant nos. 1 and 2 were restrained

from selling, alienating or encumbering in any manner the suit property.

The said interim order is still in operation. The admission/denial in the

main suit is already completed. As appeared from the pleadings, the

plaintiff has disputed the existence of Will in favour of the defendant

no. 2. Mr. Rajiv Sawhney, learned senior counsel for the plaintiff has

argued that no valid reason has been assigned as to why the testator had

chosen the defendant no. 2 alone for taking the entire benefit of the suit

property. He submits that there is no explanation as to why the testator

has forgotten the plaintiff, defendant no. 3 and his own wife (defendant

no. 1) by execution of the said Will. He has also challenged the validity

of the two attesting witnesses of the Will in favour of the defendant

no. 1.

23. In support of his contention, learned senior counsel for the

plaintiff has referred the judgments reported at AIR 2007 SC 614

Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & Ors. (para

21); AIR 1990 SC 1742 Ram Piari vs. Bhagwant and Ors. (para 4);

AIR 1962 SC 567 Rani Purnima Devi and Anr. vs. Kumar Khagnedra

Narayan Dev and Anr. (para 24); and AIR 2007 Allahabad 167 Nand

Kishore through LRs vs. Smt. Munni Devi & Ors. (para 33).

24. On the other hand, learned counsel for the defendant has

argued that it is a valid and genuine registered Will and prima facie, its

validity cannot be challenged in the present proceedings. There is no

irregularity in the process of registering the Will before the Sub-

Registrar as both attesting witnesses have put their thumb impression

also. Hence, the question of suspicious circumstances does not arise. It

is also argued that the Will was executed on 26 th August, 2000 and the

testator died on 9th September, 2005. Therefore, it shows that the Will

of the testator was executed in favour of the defendant no. 2 at its own

free will and since the Will is registered, this fact proves its

genuineness.

25. It is to be noted that most of the judgments cited by learned

counsel for the defendant mentioned that the Will has been proved by

the party concerned in the proceedings. However, in the present case, it

is clear that if the stand of the defendants is correct based on the will,

then the plaintiff would have no right or interest in the suit property. On

the other hand, if the plaintiff is able to establish her claim and the will

is not proved in accordance with law, then the plaintiff will have her

share in the suit property. Without going into the merit of the Will, I

am of the opinion that corpus of the property should remain intact till

the final disposal of the suit as it has become question of fact in the

matter, therefore, in my view, this question can be looked into only after

the recording of evidence. No doubt the Will is registered but

registration of Will is not sufficient to render the Will valid. Irreparable

loss would be caused to the plaintiff if the interim order is vacated.

Further, the plaintiff admittedly is not in possession of any portion of

the property. Therefore, the ex parte ad interim order granted on

3.3.2008 passed in IA No.2746/2008 under Order XXXIX Rule 1 and 2

CPC shall continue till the disposal of the suit. In view thereof, I.A. No.

2746/2008 is disposed of. Consequently, IA No.4110/2008 filed by the

defendant under Order 39 Rule 4 is also dismissed.

26. In view of the peculiar facts and circumstances of the case,

the trial of the suit is expedited. The matter shall now be listed before

court on 13th July, 2009 for framing of issues and thereafter, it will be

set up for trial without any further delay.

MANMOHAN SINGH, J JULY 02, 2009 SD