Mr. Chetan Dayal vs Mrs. Aruna Malhotra & Ors.
2009 Latest Caselaw 3697 Del

*          HIGH COURT OF DELHI : NEW DELHI

+    IA No.5104/2007, IA No.10400/2008, IA No.13096/2008,
     IA No.4419/2009, IA No.14018/2006, IA No.3338/2007,
     IA No.3339/2007 & IA No.2098/2009 in CS (OS) No.2318/2006

                                 Reserved on: 6th April, 2009

%                                Decided on: 11th September, 2009

Mr. Chetan Dayal                                            ...Plaintiff
                      Through : Mr. K.K. Sud, Sr. Adv. with Mr. Jagjit
                                Chhabra, Adv.

                                 Versus

Mrs. Aruna Malhotra & Ors.                             ...Defendants
                    Through : Mr. Mahesh Kumar Singh, Adv. for D1
                              Mr. Mohit Kumar, Adv. for D2
                              Ms. Manisha Tyagi, Adv. for DDA


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?                  Yes

3. Whether the judgment should be reported             Yes
   in the Digest?

MANMOHAN SINGH, J.

1. With this common order I shall dispose of I.A. No.

2098/2009 filed by the plaintiff under Order 39 Rules 1, 2 and 2A of the

CPC, I.A. No. 4419/2009 filed by defendant no. 1 under section 151 of

the CPC, I.A. No. 13096/2008 filed by the plaintiff under Order 39

Rules 1, 2 and 2A of the CPC, I.A. No. 10400/2008 filed by defendant

no. 1 for directions, I.A. No. 3338/2007 filed by the defendant

no. 1 under Order 7 Rule 11 of the CPC, I.A. No. 3339/2007 filed by

defendant no. 1 under Order 1 Rule 10 of the CPC, I.A. No. 5104/2007

filed by defendant no. 1 under Order 39 Rule 4 of the CPC and I.A. No.

14018/2006 filed by the plaintiff under Order 39 Rule 1 and 2 of the

CPC. The plaintiff has filed the present suit for partition, permanent

injunction and rendition of accounts.

2. The brief facts of the matter are that Shri Dayal Chand Kaith

was a lessee under the defendant no.4/Delhi Development Authority [for

short 'DDA'] of land bearing no.E-7/6, Vasant Vihar, New Delhi

(hereinafter referred to as the „suit property‟) vide a perpetual lease dated

06.04.1971 registered with the Sub Registrar, New Delhi as document

no.339 in additional book-I, Volume no.2645 at para 89 to 95 on

19.05.1971. Shri Dayal Chand Kaith vide a registered Gift Deed dated

03.06.1974 gifted his half share in lease-hold rights of the said plot of

land on joint and equal ownership of lease-hold rights in an undefined

portion in favour of defendant no.1. The fact that there has never been

partition of the suit property and that the share of defendant no.1 in the

said property is unspecified and undivided is clear from the letter dated

04.02.1999 of the DDA, which is on record of the present case. Shri

Dayal Chand Kaith also got certain plans sanctioned and raised a

construction over the said plot of land, description of which is given in

para-1 of the plaint. Thereafter the suit property was let out to a

company of Sarabhai Group the rent of which was being paid to Shri

Dayal Chand Kaith, who used to disburse half of the same to defendant

no.1, his daughter. The said tenant vacated the said property in 1995 or

so, whereupon defendant no.1 started residing in the rear portion of the

said house while the front portion and the first floor of the servant

quarter above the garage were let out jointly by Shri Dayal Chand Kaith

and defendant no.1 to South African High Commission vide the lease

deed dated 19.04.1996.

3. Shri Dayal Chand Kaith executed a Will dated 04.02.1997

whereby he bequeathed his half share of the suit property to his son Shri

Basant Dayal, defendant no.2 herein, who has been residing in USA and

to the plaintiff, being his grandson, in equal shares. Shri Dayal Chand

Kaith died on 03.12.1997 and upon his death, the plaintiff and defendant

no. 2 became the owners of 1/4th undivided share in the said house with

defendant no.1 being the owner of one-half share of the same. The

plaintiff came into constructive possession of the said house and became

entitled to rent from the tenant and to possession thereof upon vacation

of the same by the tenant.

4. The defendant no.2 executed a power of attorney in favour of

defendant no.1, thereby empowering her to do various acts and deeds on

his behalf and in fact, the defendant no.1 has been acting on behalf of the

defendant no.2 on the basis of the said power of attorney so executed in

her favour by the defendant no.1. The husband of the defendant no.1 is

also a witness to the said power of attorney.

5. On 28.01.1999, defendant no.1 as the attorney of defendant

no.2, filed a suit for declaration that Will dated 04.02.1997 is not

genuine. On 25.02.1999 the plaintiff herein also filed a suit for

declaration and consequential relief before Civil Judge [Junio Divisioin],

Chandigarh for declaration to the effect that Will dated 04.02.1997 is the

last Will of late Shri Dayal Chand Kaith. Vide judgment dated

30.07.2004, the Civil Judge partly allowed the suit of the plaintiff and

held as follows :-

"In view of the findings of this Court on issue No.1 of C.S. No.38 of 1999 and issues No.1 and 2 of C.S. No.21 of 1999, the suit filed by the plaintiff Chetan Dayal succeeds and the same is partly decreed with costs to the effect that Will dated 04.02.1997 is the last and final Will of deceased D.C. Kaith. As far as the 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 property is situated and as far as directions sought for by Chetan Dayal regarding his share of rent is concerned, in the absence of any evidence that relief also goes against Chetan Dayal. Decree sheet be prepared and file be consigned to record room."

6. This order has become final between the parties as it has not

been appealed against.

7. Thereafter, the plaintiff filed the present suit. The defendant

nos.1 and 2 are the daughter and son of late Shri Dayal Chand Kaith

respectively. The defendant no.3 was the tenant on the date of filing of

the suit and the defendant no.4 is the „DDA, who had allotted the land to

Shri Dayal Chand Kaith. The plaintiff has prayed that a decree be

passed in his favour and against the defendant nos.1 and 2 for partition

and separate possession of plaintiff‟s 1/4th share of suit property as well

as for mesne profits/rendition of accounts, permanent and mandatory

injunction and for costs against the defendants.

8. Along with the suit, the plaintiff filed I.A No. 14018/2006

and both came up before the court on 15.12.2006. In the main suit, the

court issued summons to the defendants and in the interim application

the Court passed an ex parte order restraining the defendant nos.1 and 2

from alienating, selling or parting with possession of the suit property or

from inducting any other person in any part thereof.

9. According to the plaintiff, it is admitted position that initially

the entire house was let out to the tenants. At that time, defendant no.1

was not residing in Delhi. It is further admitted position that the

construction on the plot is in two portions. In 1995, the tenant vacated

the house whereupon defendant no.1 and her husband started residing in

the rear portion of the said house, which had been gifted to her vide Gift

Deed dated 03.06.1974, while the front portion of the house was let out

jointly by Shri Dayal Chand Kaith and defendant no.1 to the South

African High Commission vide lease deed dated 19.04.1996.

10. The plaintiff submits that the defendant no.1 was and is only

residing in her 50% share in the rear portion, which is admitted by her in

her written statement to the suit wherein the defendant no.1 has

specifically mentioned that defendant no.1 lives and resides in the rear

part of the property with her husband. The defendant no.1 has only one

daughter who is married and residing in a separate rented house with her

husband and two children and was not residing with defendant no.1

when the present suit was filed nor when the order of injunction dated

15.12.2006 was passed nor at the time of filing of IA no.10400/2008 for

seeking permission to let out the front portion which was vacated by the

tenant.

11. In other application filed by the plaintiff being I.A no.

5302/2008 under Order 39 Rules 1 and 2 CPC, it was stated that despite

the interim order of injunction dated 15.12.2006, the defendant nos.1 and

2 have entered into an agreement with a new tenant and have handed

over the possession of the said property to the said tenant at a monthly

rent of Rs.3.50 lacs. This was disputed by the defendants before the

court by a specific statement in para-4 that no such induction was made

as stated and in view thereof the said application was disposed of.

12. I.A No. 5104/2007 was filed by defendant no. 1 under Order

39 Rule 4 CPC wherein it was submitted that due to the plaintiff‟s act of

involving the tenants of the front portion of suit property in needless

litigation, the tenant i.e. defendant no. 3 at that time, was quitting the suit

premises. Without prejudice to her case, defendant no. 1 submitted that

even if the plaintiff‟s suit was to succeed eventually, the plaintiff would

only be entitled to ¼ portion of the rear portion of the suit property. It

was also submitted that rent from the front portion has been appropriated

by defendant no. 1 since 1974 and in fact, that rent is her only source of

income. In view of the above, defendant no. 1 prayed that this court be

pleased to modify/alter the injunction order dated 15.12.2006 to the

extent of allowing induction of another tenant in place of defendant no. 3

who has vacated the premises due to harassment by the plaintiff. The

plaintiff is his reply to the present application stated that the order dated

15.12.2006 directed defendant no. 3 to make full disclosure to this court

about the payments made by him to defendants no. 1 and 2. Defendant

no. 1 thereafter filed an application for deletion of defendant no. 3 from

the array of parties and the said order of this court has till date not been

complied with. The plaintiff also submitted that it has no objection to

letting out of the said portion of the suit property under the directions of

this court and subject to the rent proceeds thereof being deposited herein.

On 23.05.2008 this court held that it was agreed before it by both the

parties that it is in their best interest that the front portion of the suit

property, which was lying vacant, be put to use by letting it out.

13. Meanwhile, the defendants filed a fresh application being I.A

no.9024/2008 wherein they stated that they had identified a tenant for the

suit premises as indicated in the application and therefore, the defendants

sought permission to let out the suit premises to the aforesaid proposed

tenant. Learned counsel for the plaintiff had expressed grievance before

the court that the defendants had not been extending cooperation by

associating their client in the process of letting out the front portion of

the suit property to a tenant, although the said objection was disputed by

the learned counsel for the defendants. However, since both the parties

were agreeable to exploring the market for the purpose of identifying a

party who would pay the best possible rate for the premises in question

and agreed that a Local Commissioner be appointed for identifying a

tenant for the front portion of the suit premises by inserting an

advertisement in the newspaper and taking all necessary measures in that

regard. Accordingly, by order dated 01.08.2008, Mr. B.B. Gupta,

Advocate, was appointed as a Local Commissioner with the consent of

the parties and it was agreed that the parties shall appear before the Local

Commissioner on 05.08.2008 and furnish him with the names of the

estate agents of the area as available with them to enable him to identify

a tenant for the premises.

14. The Local Commissioner filed his report on 21.08.2008

informing the court that the advertisement was published in the classified

column of the Hindustan Times on 16.08.2008 and several hundreds of

prospective tenants and/or their agents were offering rent ranging from

Rs. 1.50 lac to Rs. 1.75 lac per month. However, there was an enquiry by

an estate agent who informed the Local Commissioner that an Officer of

the British High Commission was willing to take the suit premises on

rent through the High Commission which had a fixed budget of Rs. 2.25

lac per month for the said Officer. After negotiations, the Local

Commissioner received a letter dated 18.08.2008 and a copy of the same

was filed along with a report from the Department of International

Development, British High Commission, New Delhi, which was willing

to take the suit premises on rent for a period of three years at a monthly

rent of Rs. 2 lac.

15. Thereafter, defendant no. 1 filed I.A No. 10400/2008 for

renting out the front portion of the suit premises to the Department of

International Development, British High Commission, New Delhi, i.e.

the tenant located by the duly appointed local commissioner. In his reply,

the plaintiff averred that despite this court‟s orders that the parties should

deal with the proposed tenancy together, defendant no. 1 has managed to

obtain a letter of intent dated 18.08.2008 from the proposed tenant by

misrepresenting that she is the sole owner of the suit property. The

plaintiff further prayed that he should be allowed to negotiate the terms

and conditions of the proposed tenancy and that defendant no. 1 should

be restrained from participating/negotiating in the proposed tenancy in

the capacity of a sole owner of the suit premises as she is a co-owner

thereof.

16. The application was listed on 29.08.2008 when notice was

accepted by the plaintiff who wished to reply to the application and

therefore, the matter was fixed for 23.09.2008 on which date again the

matter was listed for 02.02.2009 along with other interim applications

being I.A No.3338/2007, I.A No. 3339/2007, I.A No. 14018/2006 and

I.A No. 5104/2007. By this order, I.A No. 9024/2008 was disposed of as

being infructuous.

17. On 20.10.2008 a fresh application being I.A No. 13096/2008

was filed by the plaintiff under Order 39 Rules 1, 2 and 2A of the CPC

praying that this court:

        (i)          proceed against defendant nos. 1 and 2 for

                    disobedience of its orders and to attach their

                    properties,

       (ii)         restrain defendant nos. 1 and 2 from taking

                    possession of the front portion of the suit

                    property,

       (iii)        restrain defendant no. 1 from executing any lease

                    deed qua any portion of the suit premises or

                    dealing with the suit property in any manner,

       (iv)         grant ex-parte ad-interim order in terms of the

                    above,

       (v)          award compensation to the plaintiff for the

                    defendants‟ breach of this court‟s order.

18. In this application the plaintiff has submitted that though the

Local Commissioner in his report identified Department of International

Development, British High Commission, New Delhi as the prospective

tenant of the suit property, yet the defendant no. 1 filed I.A No.

10400/2008 seeking leave of this court to let out the front portion of the

suit premises and for directing the prospective tenant to deposit the

monthly rental amount with it along with the security deposit etc. The

plaintiff submits that it has recently come to know that the defendant no.

1 is trying to circumvent the order dated 15.12.2006 of this court by

taking possession of the front portion of the suit premises in a

clandestine manner. If the defendant no. 1 is allowed to carry on with her

illegal designs, the plaintiff‟s rights will be seriously prejudiced as the

partition of the said premises is yet to be effected and the plaintiff fears

that the said defendant might enter into a unilateral lease agreement with

regard to the same.

19. By order dated 24.10.2008, this court passed an order

appointing a local commissioner Ms. Mamta Jha, Advocate, to visit the

suit premises and establish the status thereof and also ordered defendant

no. 1 to maintain status quo with regard to the front portion of the same.

The said local commissioner filed her report on 05.12.2008 in which it is

specifically mentioned that when the she entered the drawing room in the

front portion of the suit premises, there were four people present. On

enquiry they disclosed that they were Ms. Aruna Malhotra (defendant

no. 1), Mr. Arjun Raj Malhotra (husband of defendant no. 1), Ms. Komal

Malhotra (daughter of defendant no. 1) and Mr. Parul Soni (husband of

Ms. Komal Malhotra). The local commissioner further stated that in the

front portion of the suit premises Ms. Komal Malhotra and Mr. Parul

Soni are residing with their two children and that Ms. Komal Malhotra

has made a voluntary statement that she, her husband and her children

were residing in the rear portion of the suit property till 25.10.2008 and

thereafter shifted to the front portion.

20. After the filing of this report, the plaintiff filed I.A No.

2098/2009 under Order 39 Rules 1, 2 and 2A CPC wherein he submitted

that despite the order dated 24.10.2008 by this court whereby defendant

had been directed to maintain status quo as regards the front portion of

the suit property, there is a clear finding of the appointed local

commissioner that the daughter of defendant no. 1 is residing in the same

portion with her husband and children. The plaintiff has submitted that

this action of defendant no. 1 amounts to appropriation of disputed

property and contempt of the court‟s orders. In this application, the

plaintiff has prayed for:

(i) restoration of the status quo orders as regards the

front portion of the property as on 23.05.2008;

(ii) vacation of front portion of suit property;

(iii) deposit of Rs. 2 lac per month rental from the

date that defendant no. 1 inducted her daughter

into the disputed property;

(iv) contempt of court notice to be issued as regards

the defendant no. 1;

(v) compensate the plaintiff for costs incurred for

appointment of two local commissioners and

miscellaneous expenses (Rs. 30,000/- + Rs.

17,500/- + Rs. 40,000/-)

21. Learned Counsel for the plaintiff has referred to the case of

Sujit Pal v. Prabir Kumar AIR 1986 Calcutta 220 wherein it has been

observed as follows :

"8. ... In the instant case, there is no question of execution of the order of interim injunction that was granted in favour of

the opposite party restraining the defendants including the petitioner from interfering with the possession of the opposite party of the room in question. The petitioner has forcibly dispossessed the opposite party from the room and has taken possession thereof in utter violation of the interim injunction. If the opposite party is asked to pursue the remedy under Order 39, Rule 2A, it will be doing a great injustice to him inasmuch as under the said provision, the Court cannot grant immediate relief to the opposite party. So there is no question of execution of the order of interim injunction. The real question is the granting of immediate relief to the opposite party by restoring his possession of the room. The analogy of Order 21, Rule 32 of the Civil P.C. in our opinion, has no manner of application for the purpose of granting relief to the opposite party. We do not also think that there is any relevance in considering the applicability of the provision of Section 51 of the Civil P.C. which relates to the powers of Court to enforce execution. The injury is grave and serious; ends of justice demands that the Court should at once take steps in granting relief to the opposite party.

9. In a case like the present one where the 'restoring things to their former condition is the only remedy' the Court, in our opinion, has to take steps for the purpose in the exercise of its inherent power... Further, it has been observed by his Lordship that the law cannot make express provisions against all inconveniences, and that the Court had, therefore, in many cases where the circumstances warranted it, and the necessities of the case required it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which ii alone exists.

11. Thus it is apparent from the said observation of the Supreme Court that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39, Rule 2A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. We do not think that in such a case the Court is powerless to grant relief to the aggrieved party in exercise of its inherent power."

22. Learned Counsel for the plaintiff has also referred to DDA v.

Skipper Construction Co. Pvt. Ltd., 1996 (4) SCC 622 wherein the

following was observed :

"19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah and Sujit Pal v. Prabir Kumar Sun. In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.

20. In Sujit Pal a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law."

23. The defendant no. 1 has herself admitted that she has

inducted her daughter and her family into the front portion of the suit

premises despite orders to the contrary and the same has been voluntarily

confirmed by the daughter of defendant no. 1 as reported by the local

commissioner.

24. The defendant no. 1 in her reply has stated that the deceased

Shri D.C Kaith executed two wills dated 21.12.1995 and 08.09.1996

both of which mention the gift deed executed in favour of the answering

defendant, including an affidavit dated 09.09.1993 of Shri D.C Kaith

which clearly states that the front portion of the suit property was gifted

to defendant no. 1 and that the residential construction which has been

built thereon has been from the defendant no. 1‟s own funds. The

defendant No.1 submits that the house tax and water and electricity bills

for the suit premises are being paid by it since 1974. Further, it is

submitted that the front half of the property is solely owned by defendant

no. 1 who has not alienated or sold or parted with its possession to any

third party and hence has not violated the orders of the court. The

answering defendant admits that her daughter is living in the front

portion of the suit premises since October, 2008 since the plaintiff has

been allegedly making threatening calls to the prospective tenants of the

defendant no. 1 thereby harassing the defendant no. 1.

25. The operative portion of the order dated 15.12.2006 passed

by this court reads as under :

"Accordingly, till the next date of hearing, the defendant nos. 1 and 2 are restrained from alienating, selling or parting with possession of property no. E-7/6 Vasant Vihar, New Delhi or inducting any other person in any part thereof."

Clearly, the above-stated order has not been complied with in

its entirety by the defendant No.1. The defendant no. 1 has stated time

and again that it has not transferred any portion of the suit property nor

created any third party interest as regards the same, and therefore it is not

in violation of the order dated 15.12.2006. It seems that the defendant

no. 1 has completely ignored the latter part of the said order which states

that the defendants are restrained from inducting any other person in any

part of the suit premises.

26. During the hearing of interim applications, defendant no. 1

filed another application being I.A No. 4419/2009 under Section 151

CPC. It is submitted by defendant no. 1 that she does not wish to

prosecute two applications filed by her being I.A No. 5104/2007 and I.A

No. 10400/2008 and she wants to withdraw the same. Defendant no. 1

has also submitted that to her knowledge no specific orders have been

passed as regards the said two applications and therefore, defendant no. 1

prays that the same be disposed off. After due consideration, I find that

the present application has been filed as an afterthought as is clear by

virtue of the fact that in one of the applications defendant no. 1 had

agreed to let out front portion of the suit property to a tenant, therefore,

the defendant cannot be permitted to withdraw the applications.

27. It appears that the defendant no. 1 has made a habit of not

complying with the orders of this court. It was on the basis of the mutual

consent of both parties that order dated 23.05.2008 was passed. It was

wrong of the defendant no. 1 to misrepresent herself as the sole owner of

a property which she very well knows is disputed property. Consent of

the plaintiff for letting out the said portion of the suit premises was not

for appearances sake only and the plaintiff should have been involved in

the negotiating/signing procedure of the same. Defendant no. 1 cannot

exclude the plaintiff‟s rights while the suit is pending adjudication. As of

now, it is defendant no. 1‟s daughter who is residing in the said portion

with her family, an act which is in complete violation of this court‟s

orders.

28. After going through all of the above, I am of the considered

opinion that defendant no. 1 has acted in an outrageous fashion and

committed flagrant violation of the order dated 15.12.2006 restraining

her from inducting any person in part of the suit premises as well as of

the order dated 24.10.2008 directing her to maintain status quo as

regards the front portion of the suit premises.

29. It appears that the act of the defendant is in utter disregard of

the orders of this court, and this cannot be tolerated any more. This court

is not taking serious action because of the old age of defendant no. 1 and

is letting her off with only a sound warning, otherwise the conduct of

defendant no. 1 is contemptuous and unpardonable.

30. The defendant no. 1, Ms. Komal Malhotra (daughter of

defendant No.1) and Mr. Parul Soni (son-in-law of defendant No.1) are

hereby directed to vacate the front portion of the suit property and

restore the possession of the said portion to the same position as on the

dates when interim orders dated 15.12.2006 and 24.10.2008 were passed

within one week from today. In failure to do so, the plaintiff is entitled

to take the police assistance to get vacated the front portion of the suit

property.

31. The defendant no. 1 is also directed to deposit with this court

an amount calculated @ Rs. 2 lac per month, which is the rent that the

prospective tenant (Officer of the British High Commission) was willing

to pay, from the date that her daughter was inducted in the front portion

of the suit premises, i.e. from 25.10.2008 as on date within a period of

four weeks from the date of passing of this order.

32. The next two applications I propose to take up are I.A No.

3338/2007 and I.A No. 3339/2007, both filed by defendant no. 1. I.A

3338/2007 has been filed under Order 7 Rule 11 CPC for dismissal of

the plaintiff‟s suit on the ground that the suit in its present form is not

maintainable as the alleged will dated 01.02.1997 has not been probated

and in view of Section 213 of the Indian Succession Act, 1925 there is a

bar to the establishment of any right under a will with regard to which

neither probate nor letters of administration have been obtained. The

plaintiff in his reply has submitted that the said will dated 04.02.1997

has been declared to be the last and final will of Late Sh. D.C. Kaith by

the competent court of Chandigarh vide its judgment and decree dated

30.07.2004 which has not been appealed against by the defendants and

has therefore attained finality between the parties.

33. As regards Section 213 of the Indian Succession Act, 1925, in

Crystal Developers v. Asha Lata Ghosh (2005) 9 SCC 375 the

Hon‟ble Apex Court relied upon the following judgments.

(I) In Cherichi v. Ittianam AIR 2001 Ker 184 it has

been held that the prohibition under Section 213 of

the Indian Succession Act is regarding establishing

any right under the will without probate and that

section cannot be understood as one by which the

vesting of right as per the provisions of the will is

postponed until the obtaining of probate or letters of

administration. The will takes effect on the death of

the testator and what Section 213 says is that the

right as executor or legatee can be established in any

court only if probate is obtained. Therefore, Section

213(1) does not prohibit the use of will which is

unprobated as evidence for purposes other than

establishment of right as executor or legatee.

Therefore, the requirement of obtaining probate

becomes relevant at the time when the establishment

of right as executor or legatee is sought to be made

on the basis of a will in a court of justice.

(II) In Sheonath Singh v. Madanlal AIR 1959 Raj 243

it was held that Section 213 does not vest any right.

It only regulates the procedure of proving a will. It is

distinct from Section 211. It lays down a rule of

procedure and not of any substantive right.

(III) In Hem Nolini Judah v. Isolyne Sarojbashini Bose

AIR 1962 SC 1471 it has been held that Section 213

does not say that no person can claim as a legatee or

executor unless he obtains a probate of the will. It

only says that no right as an executor or legatee can

be established in any court without probate.

34. These applications have no merit and the same are hereby

dismissed.

35. I.A. No. 3339/2007 has been filed under Order 1 Rule 10 of

the CPC for deletion of defendant no. 3 from the array of parties as the

same is a tenant in the suit property and has been impleaded only with

the intention of harassment. Further, it is submitted that the presence of

defendant no. 3 is not required for adjudication of the present dispute. In

his reply, the plaintiff has stated that the presence of defendant no. 3 is

essential for adjudication of the issue of entitlement of the plaintiff to

mesne profits. The plaintiff has submitted that defendant no. 1 has been

wrongly claiming the rental income of the front portion of the suit

property to be Rs. 50,000/- per month from 2001 till 2007 as per the

lease deeds filed before the Punjab and Haryana High Court in Civil

Revision no. 198/2000 whereas as per the averments made by the said

defendant in I.A No. 10400/2008, rent proceeds of the said portion are

RS. 2 lac. It is also submitted that the rental income of the said portion

was Rs. 1.2 lac in 1999 which fact is proved from judgment dated

12.02.2004 passed by this court in CS (OS) No. 1459/2002 titled

Government of South Africa v. Aruna Malhotra. Aside of this, by order

dated 15.12.2006 this court directed defendant no. 3 to give a full

disclosure of the payments made or yet to be made till 30.09.2007 on

account of rent or any count to defendants no. 1 and 2. The said findings

would be necessary for consideration at the time of the final stage of the

suit, hence, the name of defendant no. 3 cannot be deleted as prayed and

this application is dismissed accordingly. For the reasons given above,

all the pending applications filed by the parties stand disposed of with

these directions.

CS (OS) No.2318/2006

List this matter before the Court on 12 th October, 2009.

MANMOHAN SINGH, J.

SEPTEMBER 11, 2009 nn