Pawan Kumar Chadha vs Anil Kumar Chadha & Anr.
2009 Latest Caselaw 2626 Del

*          HIGH COURT OF DELHI : NEW DELHI

+             IA No.4339/2008 in CS (OS) No.1339/2008

                       Judgment reserved on:     9th July, 2009

%                      Judgment decided on :        15th July, 2009

Pawan Kumar Chadha                               ......Plaintiff
                  Through : Mr. V. Shekhar, Sr. Adv. with
                            Mr. Zangpo Sherpa & Mr. Jatin
                            Rajput, Advs.

                       Versus

Anil Kumar Chadha & Anr.                        .....Defendants
                   Through: Mr. V.M. Bhardwaj, Adv. for
                            Defendant No.1
                            Mr. Raman Duggal, Adv. for
                            Defendant No.2

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. By this order I shall dispose of I.A no.4399/2009 filed by the

plaintiff under Section 24 of the Code of Civil Procedure for withdrawal

of probate petition bearing no.121/2008, which is pending in the court

of learned Additional District Judge, Tis Hazari Courts, Delhi.

2. The plaintiff filed the present suit for partition, declaration,

permanent injunction and rendition of accounts etc. before this court on

16.07.2008. The said suit came up for hearing on 18.07.2008 when the

summons in the main suit and notice in the interim application were

issued to the defendants for the next date of hearing. The court also

granted interim order of status quo with regard to the title and

possession of the suit premises.

3. The brief facts of the matter are that the plaintiff and the

defendant no.1 are the two sons of late Shri Kuldip Chadha, who was

the son of late Shri Amarnath. Shri Amarnath who was the grand father

of the plaintiff and defendant no.1, set up a company under the name

and style of M/s. Amarnath & Sons along with his brother in the year

1917. After partition of the country in 1947, the family of Shri

Amarnath moved to Delhi and he set up a business under the same name

and style of M/s.Amarnath & Sons. The business was being operated

from Sadar Bazar, Delhi. Shri Amarnath expired on 05.11.1961 leaving

behind two sons as mentioned in para-1 of the plaint. Shri Kuldip

Chadha, the father of the plaintiff and defendant no.1 succeeded to

M/s.Amarnath & Sons and applied for allotment of an industrial plot

with the DDA on October 12, 1966 as a result of which he was allotted

a plot bearing no.10/4, Block D, Okhla Industrial Area, Phase-II, New

Delhi. The possession of the plot was given to M/s.Amarnath & Sons

on 02.03.1976 by the DDA. In the year 1983, Shri Kuldip Chadha

purchased a residential plot bearing no.B-6/20, Safdarjung Enclave,

New Delhi out of the funds of M/s.Amarnath & Sons as alleged by the

plaintiff.

4. It is not in dispute that right from the beginning the family of

the plaintiff as well as the first defendant were staying at the

aforementioned residential property, which is a three storeyed building.

The present suit has been filed by the plaintiff for partition and

separation of property no.10/4, Block D, Okhla Industrial Area, Phase-

II, New Delhi as well as property no.B-6/20, Safdarjung Enclave, New

Delhi. The defendant no.2 is the mother of the plaintiff and defendant

no.1.

5. After grant of the interim order on 18.07.2008, the stay order

was sent to the defendants by courier on 19.07.2008. On 22.07.2008 the

defendants filed a probate petition before the court of learned Additional

District Judge, Tis Hazari Courts, Delhi. Learned counsel for the

plaintiff submits that in the said probate petition, the defendants did not

give the correct address of the plaintiff and therefore, it did not come to

the plaintiff's knowledge at an earlier stage. On the other hand,

learned counsel for the defendants states that the plaintiff has been

changing his address from time to time and therefore, there is no fault

on the part of the defendants in giving the incorrect address of the

plaintiff. The present suit is at an initial stage and the Issues are yet to

be framed. In the probate petition also, the evidence of the parties is yet

to be recorded.

6. The question involved in the present transfer application, in

the present circumstances is, whether the probate petition which was

filed subsequent to the present suit is to be transferred to this court or

not. A similar situation arose in the case of Virender Gupta V/s.

Nitender Gupta, 31[1987] DLT 406 wherein a suit for partition was

filed by one party and the other party had claimed ownership of the suit

property on the basis of Will for which the other party had filed probate

proceedings. The court ordered that the suit and probate proceedings be

tried together on the ground that the issue in one suit was all embracing

and fully covered the entire disputes between the parties and the

applications were accordingly allowed. A similar situation also arose in

the case of Mrs. Rajni Mehra & Ors. V/s. Shri Pran Nath Mehra &

Ors., MANU/DE/0822/2001 and similar orders on the same lines were

passed by this Court.

7. In the case of Ravi Khanna vs. Pankaj Khanna and Ors.,

152(2008) DLT 484 it was held that mere pendency of a suit for

partition puts no bar for grant of probate or letter of administration

under the Provisions of the Succession Act. It is settled law that probate

Court has jurisdiction to determine about the genuineness of the Will

and whether the petitioner who applied for the probate was entitled to

grant of probate of the Will or not.

8. In the case of Nirmala Devi vs. Arun Kumar Gupta and

Ors., (2005) 12 SCC 505, both the probate proceedings and the civil

suit were clubbed and heard together where the civil suit was filed prior

to filing of probate proceedings. Similar position was reiterated in the

case of Balbir Singh Wasu vs. Lakhbir Singh and Ors., (2005) 12

SCC 503 where the suit was pending since 1987 and probate was filed

in 1997, suit was transferred and clubbed with probate case pending in

the Court of Sub-Judge.

9. Learned counsel for the defendants has referred to various

paragraphs of the reply and argued that the present application is pre-

mature and therefore the same is not maintainable. He has also argued

that issues in both the matters are different, therefore, this application is

liable to be rejected.

10. In view of the judgments referred to above, the present

dispute is also on similar facts and it is not in dispute that the parties in

both the cases are the same and the main dispute is with regard to the

partition of the property in question. However, the only difference is

that in the probate petition the dispute is only pertaining to one property

i.e. property no.D-10/4, Okhla Industrial Area, Phase-II, New Delhi.

11. Considering the overall facts and circumstances of the

matter, the decision in Virender Gupta V/s. Nitender Gupta [supra] is

binding upon this court and the present application is therefore allowed.

Even otherwise, since both the matters are at the initial stage, therefore,

no prejudice would be caused to the defendants if the said probate

petition is transferred to this court and tried along with the present suit

and in fact, it will curtail the time of the court, costs of the parties as

well as avoid multiplicity of proceedings. Therefore, it is directed that

the file of the probate petition bearing no.121/2006 titled as 'Smt.Chand

Chadda V/s. State & Ors.' pending before the court of learned

Additional District Judge, Tis Hazari Courts, Delhi [earlier pending

before the court Smt. Bimla Makin, Additional District Judge, Tis

Hazari Courts, Delhi] be transferred to this court and the same be tried

along with the present suit bearing CS[OS] no.1339/2009.

12. The application is accordingly disposed of.

CS[OS] No.1339/2009.

List the matter before the Court on 7th September, 2009 for

further proceedings.

MANMOHAN SINGH, J JULY 15, 2009 SD