Smt.Gita Abhyankar vs Sh.Vikram Abhyankar & Ors.
2010 Latest Caselaw 1795 Del

                                                    REPORTED

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            DATE OF RESERVE: February 01, 2010

                             DATE OF DECISION: April 07, 2010



+     IA Nos.7030/2004, 8157/2004, 3857/2005,              4671/2005,
4702/2007 and 8753/2008 in CS(OS) 1166/2004



      SMT. GITA ABHYANKAR                     ..... Plaintiff
                    Through: Mr. Rajiv Sawhney, Sr. Advocate
                             with Mr. Jeevesh Nagrath,
                             Advocate

                    versus

      SRI VIKRAM ABHYANKAR & ORS.              ..... Defendants
                    Through: Mr. P.V. Kapur, Sr. Advocate with
                             Ms. Gauri Subramanium and
                             Ms. Lakshmi Ramachandran,
                             Advocates for the defendant No.1
                             Mr. Sameer Vashisht, Advocate
                             for the defendant No.2

      CORAM:
      HON'BLE MS. JUSTICE REVA KHETRAPAL
1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?

:     REVA KHETRAPAL, J.

1. By this order, it is proposed to decide IA No.7030/2004 filed by

the plaintiff under Order XXXIX Rules 1 and 2 CPC; IA No.8157/2004

filed by the defendant No.1 under Section 151 CPC for clarification of

the order dated 15.10.2004; IA 3857/2005 for preponement of the date

of hearing (it having become infructuous); IA No. 4671/2005 under

Section 151 CPC filed by the defendant no.1 for renewal of the lease

deed; IA No. 4702/2007 filed by Defendant no.1 for release of the rent

and IA No. 8753/2008 U/O XL Rule 1 filed by the plaintiffs.

2. The aforesaid interim applications arise out of the suit for

declaration, injunction and rendition of accounts filed by the plaintiff

Gita Abhyankar against the defendant No.1. The plaint discloses that

the plaintiff Gita Abhyankar was the only child of late Mr. Kewal Singh

and late Mrs. Shamie Singh. The defendant No.1 is the son of the

plaintiff and the brother of the defendant No.2.

3. Mr. Kewal Singh during his lifetime had acquired, apart from

various movable assets, three immovable properties, viz., Property

No.1/31, Shanti Niketan, New Delhi; Plot No.84, Jacraunda Marg, DLF

Qutab Enclave, Gurgaon and a Farm House in Village Carter Puri,

District Gurgaon. The plot of land at Shanti Niketan measuring 2000

sq. yds. was purchased by late Mr. Kewal Singh in his own name by

virtue of a perpetual lease deed registered in his favour on 24.10.1967.

4. It is the case of the plaintiff that the plaintiff's mother Shamie

Singh was most uncomfortable about the fact that the Shanti Niketan

property was only in the plaintiff's father's name and on her repeatedly

expressing her anguish in this regard and also with a view to avoid any

family dispute or litigation in the future, the plaintiff's parents and the

plaintiff entered into extensive discussions between themselves,

pursuant whereto, it is stated in the plaint, a family arrangement was

finally concluded between the family members in late January, 1969.

5. In the aforesaid background and allegedly in terms of the said

family understanding, the plaintiff's father finalised certain documents,

being a set of letters as well as an agreement dated 30th July, 1969.

6. A letter dated 10th February, 1969 was written by Mrs. Shamie

Singh (since deceased) to the plaintiff Gita Abhyankar asking her to join

as a co-owner and to contribute towards the cost of construction by

raising a loan from her father.

7. The above letter of Mrs. Shamie Singh led the plaintiff to write to

her father by a letter dated 17.02.1969:-

"I should very much like to join mummy as a co- owner, and thereby in a way own, some personal property for myself, this is only possible if you are disposed to help me to procure the requisite finance to enable me to join mummy as a co- owner."

8. The plaintiff's father Mr. Kewal Singh replied to the aforesaid

letter of the plaintiff by his letter dated 10th March, 1969 stating that he

would certainly try to raise the necessary funds and would let her know

as soon as he was able to do that.

9. On 26.05.1969, a perpetual sub-lease was executed in the name

of Mrs. Shamie Singh, the mother of the plaintiff.

10. By a letter dated 25.07.1969, the father of the plaintiff informed

her that he had arranged for the money to be loaned to the plaintiff from

his bankers against his life insurance policies and provident fund and

that the loan will bear interest @ 8% to be borne by the plaintiff.

11. On 30th July, 1969, a reply was sent by the plaintiff to her father,

acknowledging and undertaking to re-pay the amount towards the loan

and also executing a pronote for Rs.1,80,000/- in consideration of the

loan her father had agreed to advance to her.

12. Thereafter, allegedly an agreement was entered into on 30th July,

1969 between Mrs. Shamie Singh on the one hand and the plaintiff on

the other hand, whereby and whereunder it was agreed that Mrs. Shamie

Singh (first party) and Ms. Gita Abhyankar (second party) have become

co-owners, ever since the 30th July, 1969, of the two houses proposed to

be constructed on the plot of land measuring 2,000 sq. yds. bearing

No.1/31 in Shanti Niketan and registered in the name of the first party.

It was further agreed that on being completed, the houses shall be let out

by the first party in consultation with the second party and after meeting

the expenses, the balance left shall be divisible equally between the

parties thereto. It was also laid down that neither party would be

entitled to sell or in any other manner assign her share in the property

for a period of two years or as long as the loans obtained by either of the

parties for the construction of the houses had not been paid in full. It

was also provided that "after the expiry of the aforesaid period, the first

party shall as and when required by, but at the cost of, the second party

execute such deed and/or document so as to more fully secure the

second party and her title in the property jointly owned by them."

13. All these documents were admittedly executed when the

plaintiff's father, the plaintiff's mother and the plaintiff were all

residing at 10, Moti Lal Nehru Marg, which address is given in the said

letters. The mother of the plaintiff Mrs. Shamie Singh thereafter filed

her wealth tax and income-tax returns, wherein she declared that she

was only a co-owner having half share in the Shanti Niketan property

and further declaring and acknowledging that the plaintiff was the

owner of the other half share in the said property (Annexures A-8 to A-

17). Pertinently, all these declarations to the Government departments

continued to be made even after the plaintiff got married to Mr. Uday

Abhyankar. Since the plaintiff's husband was posted overseas and the

plaintiff was not in India, her affairs and interests in India were looked

after by her father Mr. Kewal Singh. The plaintiff from year to year

executed Powers of Attorney either in the name of her mother and/or in

the name of Mr. M.S. Rathee, a Chartered Accountant, who was filing

the tax returns of her father as well.

14. On completion of the construction in March, 1970, the front

residential house was leased out to the British High Commission, New

Delhi on a short-term lease, which lease was renewed from time to time.

The High Commission continues to be a tenant of the front unit till date.

The back unit allegedly came to be occupied by the plaintiff and her

family over the years.

15. On October 26, 1970, the plaintiff's mother Mrs. Shamie Singh

wrote to the Vice-Chairman of DDA, wherein she stated:-

"I have built two vertical units on this plot and am interested in the division of the property between myself and my daughter as per site plan enclosed.............................. As such, I am sure, division as shown on the site plan of the plot is possible specially in the case when the owner of the plot wants to give one part of the property to his son or daughter."

16. A letter dated 15.07.1975 was written by Mr. Kewal Singh, the

father of the plaintiff to the Additional Secretary, DDA, which was

counter-signed by the mother of the plaintiff, wherein it was stated as

follows:-

"I am writing in connection with the Perpetual Sub-lease of the Plot No.31, Street No.1, Shanti- niketan, New Delhi, which stands in the name of my wife, Shrimati Shamie Singh. As you know, I was a member of the Government Servants Cooperative House-Building Society, but finally I thought the Lease should be in the name of my wife. On reconsideration we both feel that it should be in the joint name of myself and my wife and daughter, Mrs. Gita Abhyankar, for the following reasons:

a) My wife and I would like to jointly own the property so that in case of any contingencies, the other person can look after the property interests without any legal complications.

b) My daughter, Mrs. Gita Abhyankar, had contributed half of the cost of the house when it was built. It would, therefore, only be desirable and appropriate if my daughter's name is also included in the Sub-Lease. I might mention that my daughter has been receiving the rent and paying the income-tax since the house was built. It is relevant to mention that my daughter's husband, Mr. Uday Abhyankar, is also a Govt. servant and is in the Indian Foreign Service. He is at present Commercial Secretary in our Embassy in Paris."

17. A joint letter dated 16.03.1980 was thereafter addressed by the

parents of the plaintiff to the Secretary, Government Servants

Association, Vasant Vihar, requesting for the inclusion of the name of

the plaintiff as well as her father in the perpetual sub-lease.

18. In reply to the aforesaid letter, by a letter dated 21.03.1980,

approval was given by the Society for inclusion of the name of Mr.

Kewal Singh and the plaintiff as co-lessees in respect of the Shanti

Niketan property.

19. The plaintiff's father Mr. Kewal Singh died on 18th October,

1991 and her mother Mrs. Shamie Singh died on 18th May, 2004. It is

averred that the plaintiff, on the death of her mother, had come into

possession from her mother's records of the following wills:-

(i) Joint and mutual will of Mr. Kewal Singh and Mrs.

Shamie Singh dated 30th August, 1985; and

(ii) Joint and mutual will of Mr. Kewal Singh and Mrs.

Shamie Singh dated 26th June, 1986.

20. It is asserted in the plaint that from the aforesaid wills, the

plaintiff has now for the first time come to know that in terms of the

said wills not only was the plaintiff's 50% share in the property sought

to be protected, but the plaintiff is also the beneficiary of the remaining

estate of her father. The plaintiff asserts that she is in possession of the

immovable properties mentioned in the wills and that she is also one of

the five trustees named in the wills dated 30th August, 1985 and 26th

June, 1986 with respect to her parents' 50% share in the Shanti Niketan

property, of which the defendants No.1 and 2 are the beneficiaries in

equal shares. The plaintiff, however, learnt to her horror that late Mrs.

Shamie Singh had on the basis of wrong and incorrect statements

obtained the mutation of the property at No.84, Jacaraunda Marg, DLF

Qutab Enclave Complex and all the shares and bank balances of late Mr.

Kewal Singh into her own name.

21. Pursuant to the demise of Mrs. Shamie Singh, the plaintiff was

shocked to receive from the British High Commission a letter dated

10.06.2004 stating that they had been advised that payment of rent

should be made to the defendant No.1, an alleged named beneficiary of

the estate of late Mrs. Shamie Singh. The plaintiff also learnt that a

will had been made by the plaintiff's mother bequeathing the Shanti

Niketan property as also the Gurgaon property and other assets in favour

of her grandson, the defendant No.1. Hence the present suit for

declaration, injunction and rendition of accounts praying, inter alia, for

the following reliefs:-

A) Pass a Decree of Declaration:

a) Declaring that in the facts and circumstances as aforesaid the Plaintiff is the owner in possession of 50% undivided share in the property bearing no.1/31, Shantinikaten, New Delhi.

b) Declaring that pursuant to the joint and mutual wills dated 30/08/1985 and 26/06/1986 of Late Mr. Kewal Singh and Late Mrs. Shamie Singh the Defendants No.1 and 2 are the joint owners of the balance 50% undivided share in the property bearing no.1/31, Shantiniketan, New Delhi.

c) Declaring that the Plaintiff as in the past 34 years is entitled to 50% of the rental income accruing from the front unit of the property bearing no.1/31, Shantiniketan, New Delhi and the balance 50% is receivable by the Defendants no.1 and 2 hereto in equal shares.

d) Declaring that the Plaintiff in terms of the family settlement is entitled to the exclusive use of the residential residence being the back unit of the property bearing no.1/31, Shantiniketan, New Delhi which is presently in the Plaintiff's exclusive use and possession.

e) Declaring that the Plaintiff is and was the sole legal heir to the estate of her father Late Mr. Kewal Singh and that accordingly, the Plaintiff was the sole beneficiary of his entire estate ................................................."

22. By an order dated October 15, 2004 passed in an interim

application, being IA No.7030/2004, the parties were directed to

maintain status quo in regard to the suit property till the next date of

hearing.

23. On 04.12.2004, the defendant No.1 filed IA No.8157/2004 for

clarification of the order dated 15.10.2004 and to grant permission to the

defendant No.1 to enter and stay in the premises.

24. By a subsequent order dated 09.03.2005, the following directions

with regard to the deposit of rent were given by this Court in IA

No.7030/2004:-

"Interim orders to continue. In the meanwhile the British High Commission, the tenant in the front portion of Property No.1/31-A, Shanti Niketan, New Delhi is directed to deposit the rent with the Registrar General of this Court every month so that orders in regard to the disbursement thereof may be passed in due course."

25. On 28.05.2005, the defendant No.1 filed another application

being IA No.4671/2005 under Section 151 CPC seeking permission to

execute/renewal of lease in respect of 1/31, Shanti Niketan (front unit)

in favour of the British High Commission effective from July 01, 2005.

Again, on 24.04.2007, the defendant No.1 filed IA No.4702/2007 under

Section 151 CPC seeking release of the rent deposited by the British

High Commission with the Registrar General of this Court.

26. All the aforesaid applications have been heard by this Court on

which elaborate arguments were advanced by both the sides, viz., the

plaintiff and the defendant No.2 on the one hand and the defendant No.1

on the other. Broadly, the contentions of Mr. Rajiv Sawhney, the

learned senior counsel representing the plaintiff may be summarised as

follows.

27. Mr. Sawhney contended that the entire documentary evidence on

record executed and confirmed time and again by the parents of the

plaintiff, i.e., Mr. Kewal Singh and Mrs. Shamie Singh during their life

time, which is contemporaneous, as also the various documents

submitted by them to various Government authorities, including the

Income-tax, Wealth tax, Housing Society and DDA, indisputably show

that there was a family arrangement in terms of which the plaintiff was

to be the owner of 50% share in the Shanti Niketan property.

28. Further, acting in furtherance of the said family arrangement,

both Kewal Singh and Shamie Singh applied for the inclusion of the

plaintiff's name in the perpetual sub-lease, which was only a formality,

as the plaintiff was enjoying and exercising all rights as a co-owner in

respect of the Shanti Niketan property, including receiving of rent.

29. The defendant No.1 is barred by the principles of estoppel in

challenging or disputing the family arrangement, more so, as the

plaintiff was receiving rent thereunder.

30. No conveyance is required in the case of family

agreement/arrangement which acknowledges and defines the share

falling to a person while recognising the right of the other. This is

clearly laid down by the Supreme Court in Kale & Others v. Deputy

Director of Consolidation & Ors. (1976) 3 SCC 119, Hansa Industries

(P) Ltd. v. Kidar Sons (P) Ltd. (2006) 8 SCC 531, Bhagwan Kishan

Gupta v. Prabha Gupta & Ors. (2009) 11 SCC 33 and by this Court in

Romesh Chander Sethi v. Inder Mohan 2009 (9) AD (Del) 179.

31. It is also contended that the plaintiff being a co-owner is/was

always in possession of the entire property. She had been living in this

property prior to her marriage when the same was constructed in the

year 1970 and even thereafter she was in constructive possession of the

same after her marriage. Even today, she is residing in the property

along with her husband and is thus in settled and peaceful possession

of the same as is evident from the prayer made by the defendant No.1 in

IA No.8157/2004, which reads as follows:-

"(a) Clarify its order dated 15.10.2004 and allow/hold that the defendant No.1 can enter

and stay in premises bearing No.1/31, Shanti Niketan, New Delhi."

32. Mr. Sawhney relying upon the judgment of the Supreme Court in

Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors. (2008)

4 SCC 594, further contended that the defendant No.1 cannot take

forcible possession as it is settled law that a person in peaceful

possession is entitled to retain his possession. The law will come to the

aid of a person in peaceful and settled possession by injuncting even a

rightful owner from using force or taking the law in his own hands, and

also by restoring him in possession even from the rightful owner, if the

latter has dispossessed the former by use of force.

33. Reliance was also placed by Mr. Sawhney upon the three Bench

judgment of the Supreme Court in Rame Gowda (Dead) by LRs v. M.

Varadappa Naidu (Dead) by LRs and Anr. (2004) 1 SCC 769, which in

turn refers to and relies upon the law laid down in a catena of

judgments, including Midnapur Zamindary Co. Ltd. v. Kumar Naresh

Narayan Roy, AIR 1924 PC 144; Ramesh Chand Ardawatiya v. Anil

Panjwani, (2003) 7 SCC 350; Lallu Yeshwant Singh v. Rao Jagdish

Singh, AIR 1968 SC 620; Nair Service Society Ltd. v. K.C. Alexander,

AIR 1968 SC 1165; M.C. Chockalingam v. V. Manickavasagam,

(1974) 1 SCC 48; Krishna Ram Mahale v. Shobha Venkat Rao,

(1989) 4 SCC 131; Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC

426; Munshi Ram v. Delhi Admn., AIR 1968 SC 702; Puran Singh v.

State of Punjab, (1975) 4 SCC 518 and Ram Rattan v. State of U.P.,

(1977) 1 SCC 188, to contend that settled possession gives a right to

possession such that even the rightful owner may only recover it by

taking recourse to law.

34. The next contention of Mr. Sawhney is that the defendant No.1 is

not entitled to dispute the title of his mother in the properties on the

basis of an alleged will purported to be executed on 25.09.2003 in his

favour by his grand mother late Mrs. Shamie Singh as the defendant

No.1 till date has not filed any suit or claim for any of the properties of

late Mrs. Shamie Singh, including any suit for possession in respect of

the property at Shanti Niketan. The counsel contended, relying upon

Anathula Sudhakar's case (supra), that in the guise of an application

under Section 151 CPC (IA No.8157/2004), the relief of possession

cannot be claimed and cannot be granted. It was further submitted by

him that even assuming the will dated 25.09.2003 to be a genuine will

though it has yet to be established as a genuine will, the execution of a

registered document by a party to the family arrangement cannot nullify

the family arrangement which has been fully acted upon. Reference

was made in this context to the decision of the Privy Council in

Frederick Emmanuel Abeyesundera v. Ceylon Exports Ltd., AIR

1936 PC 259 in which it was held that a father who had transferred

certain property to his son by a deed of gift, which was unregistered,

cannot subsequently deprive the son of the said property by

subsequently transferring it to another person by a registered deed; and

to Krishna Sahoo v. Maung, AIR 1930 Rangoon 188, in which it was

held that a subsequent registered purchaser cannot avail himself of the

registration of his deed against a prior unregistered purchase of which

he has notice.

35. It was next contended that in the present case, the genuineness

and factum of execution of the alleged will dated 25.09.2003 is itself in

dispute and it is the probate court alone which can decide such dispute.

Relying upon the decisions in Ram Shankar v. Balakdas, AIR 1992

MP 224; Ravi Khanna v. Pankaj Khanna, 152 (2008) DLT 484; Sunil

Gupta v. Kiran Girhotra, 157 (2009) DLT 705; Amar Deep Singh v.

State, 125 (2005) DLT 627 and Smt. Multivahuji v. Smt.

Kalindivahuji, AIR 1994 Gujarat 42, the learned senior counsel

contended that it is settled law that the civil court will not decide the

issues exclusive jurisdiction of which vests with the probate court and

the probate court will not decide any issues relating to title which have

to be decided by the civil court. Therefore, till such time as the

genuineness and execution of the will is decided by the court of

competent jurisdiction, i.e., the probate court, the said will cannot be

relied upon. Further, even assuming the will dated 25.09.2003 to be

genuine, it will not confer title of the entire Shanti Niketan property on

the defendant No.1 as late Mrs. Shamie Singh and her husband were

together owners of only 50% share and the remaining 50% share in the

said property was owned by the plaintiff and, as such, late Mrs. Shamie

Singh could not have bequeathed more than what she owned.

36. It was also submitted that a probate petition filed today by the

defendant No.1 would be barred by the law of limitation in view of the

judgment of the Supreme Court in the case of Krishna Kumar Sharma

v. Rajesh Kumar Sharma, reported in JT 2009 (4) SC 533, in which

Article 137 of the Limitation Act is held applicable to probate

proceedings. A petition for probate under Article 137 will have to be

filed within three years from the date of challenge. The challenge in the

instant case was raised by the plaintiff in her replication on 05.04.2005,

wherein she denied and disputed the alleged will. The probate petition

thus should have been filed by the defendant No.1 within three years

from the said date, i.e., by or before 04.04.2008.

37. To counter the arguments advanced by Mr. Sawhney on behalf of

the plaintiff, Mr. P.V. Kapur, the learned senior counsel for the

defendant No.1 raised the following contentions.

38. The family arrangement dated 30th July, 1969 was entered into

solely as a tax saving device and the tax returns relied upon by the

plaintiff are not conclusive proof of the title of the plaintiff. The

plaintiff relies upon certain correspondence purportedly exchanged

between her and her parents between January, 1969 and May, 1969 that

led to the alleged family arrangement being crystallized. Oddly, the

said letters were exchanged at a time when the plaintiff was living with

her parents in the same house and thus evidently it was a concerted and

ingenious effort on the part of the family to use the arrangement as a

device to save tax. The learned counsel contended that it is significant

to note that once the tax department was satisfied and was willing to tax

the income from property in two hands, nothing further was done to

transfer and register 50% of the property in favour of the plaintiff. This

is all the more important in view of the fact that the plaintiff's parents

had ample opportunity to act on the settlement. The plaintiff's father

made no efforts to give effect to the alleged family settlement

purportedly entered in the year 1969 till the year of his demise in the

year 1991 and the plaintiff's mother who died in the year 2004 also took

no steps to include the plaintiff's name in the perpetual sub-lease. Had it

been the intention of the parties to make the plaintiff a co-owner of the

property, the said intention of the parties would have manifested itself in

the sub-lease executed in May, 1969 when all the related costs, such as

stamp duty were in any case incurred. Instead, the perpetual sub-lease

was executed solely in the name of the plaintiff's mother. Learned

senior counsel further contended that the intention of the parties is also

evident from the fact that the two wills relied upon by the plaintiff and

the defendant No.2, i.e., the will of 30th August, 1985 and of 26th June,

1986 do not acknowledge the plaintiff's stake in the ownership of the

estate in any way at all as is evident from a bare reading thereof.

39. It is also contended that the fact that the so-called family

settlement was a tax saving device is evident from the fact that the

plaintiff has not received any rent whatsoever though the money was

being deposited in a joint account and, hence, the plaintiff in the plaint

has made a claim seeking rendition of accounts as regards the rent for

the past 34 years. Moreover, there is no averment in the plaint to the

effect that the plaintiff ever paid any interest whatsoever on the loan

amount or repaid the loan amount at all.

40. Relying upon the decisions in Suraj Bhan and Ors. v. Financial

Commissioner and Ors., (2007) 6 SCC 186 and Gurunath Manohar

Pavaskar v. Nagesh Sidappa, (2007) 13 SCC 565, it is further

submitted that merely because the plaintiff's name appears in the

revenue records, the same cannot be considered conclusive proof of her

title. It is contended that a revenue record is not a document of title. As

held by the Supreme Court in Gurunath Manohar Pavaskar (supra), it

merely raises a presumption as regards possession. In any event, in the

instant case, the plaintiff is not even in settled possession of the suit

property. Therefore, the plaintiff cannot rely upon the revenue records

to establish either her title or possession, which was admittedly

intermittent.

41. The reliance placed upon by the plaintiff upon Kale's case

(supra), it is contended by the learned senior counsel for the defendant

No.1, is misplaced since the decision in Kale's case (supra) clearly

holds in paragraph 10 with regard to family arrangements:-

"A distinction should be made between a document containing the terms and recitals of a family arrangement made under the document (emphasis added) and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the

record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable."

42. It is also submitted by Mr. P.V. Kapur that since the agreement

dated 30th July, 1969 purports to create a right, title and interest in 50%

of the property for the first time without any reference to any previous

correspondence and is in praesenti, it would necessarily require to be

stamped and registered. It being unregistered, it cannot be received in

evidence nor it can be relied upon even for any collateral purpose. The

proposition propounded in Kale's case (supra) is even otherwise not

applicable in the instant case for the reason that in the said case the

family arrangement was the result of a dispute between the parties. In

such circumstances, the Supreme Court in Kale's case (supra) held that

parties to the family settlement who have enjoyed a benefit under the

settlement are thereafter precluded from questioning the family

settlement. In the instant case, the defendant No.1 was admittedly never

a party to the alleged family settlement nor enjoyed any benefit

thereunder.

43. Even otherwise, it is submitted that as per Section 50 of the

Registration Act, a registered document will prevail at a prima facie

stage. Therefore, the statutory presumption is in favour of the defendant

No.1 and the registered document that he is relying upon, i.e., the

registered will dated 25th September, 2003 executed by his grandmother

Mrs. Shamie Singh in his favour, which must be given precedence over

an unregistered family arrangement.

44. As regards the contention of the plaintiff with regard to the

validity and effect of the will dated 25.09.2003, it is stated that the

plaintiff has not made any averment to the effect that the defendant No.1

should have applied for probate to prove the validity of the will dated

25.09.2003 being relied upon by the defendant No.1 either in the plaint

or in the replication filed to the written statement thereto. Further,

neither the plaintiff nor the defendant No.2 has prayed for a declaration

that the will dated 25.09.2003 be declared invalid. As a matter of fact,

no specific challenge has been raised to the authenticity of the will, the

signatures of the testatrix Mrs. Shamie Singh, the soundness of the mind

of the testatrix, or any suspicious circumstances shrouding the will

except to state that Mrs. Shamie Singh could not have bequeathed more

than what she owned, which is clearly an issue of title and out of the

scope of adjudication of the probate court.

45. The next contention of Mr. Kapur, the learned senior counsel for

the defendant No.1 is that a conjoint reading of Section 213 with

Section 57 of the Indian Succession Act clearly establishes that there is

no requirement at all to apply for probate in Delhi. The validity of a

will may be decided in civil proceedings in the case of a will that is not

covered by Section 213(1) of the said Act and in that sense the

prohibition under Section 213(1) is a limited one and does not oust the

jurisdiction of civil courts in the cases of those wills that are outside the

scope of Section 213(1). The plaintiff's reliance upon the decisions

rendered in Ram Shankar (supra) and Amar Deep Singh (supra) in

support of the proposition that probate of a will is necessary, is

misplaced. Insofar as Ram Shankar's case (supra) is concerned, the

said judgment was overruled by a Division Bench of the Madhya

Pradesh High Court in Phool Singh v. Kosa Bai, 1991 (1) MPJR 352.

The relevant observations in Phool Singh's case as set out in para 25 are

as follows:-

"Therefore it follows that even if two contesting wills are set up, executed by a Hindu outside the territories mentioned in Section 57(a); regarding the property situated outside those territories, obtaining of a probate of a will from the Probate Court would not be necessary. As noticed by the learned referring Judge also, if that was to be so, it would be very easy for the other party to plead

and set up another will and thus to defeat the right of the party to pursue his claim under a will unless he obtains probate thereof. Therefore, with due respect, we do not agree with the view taken in Ramshanker's (supra) that in the case of two contesting wills, exclusive jurisdiction is vested in the probate court and in such a case in a suit instituted by any party, no issue can be struck by a Civil Court to decide that the will was the last and valid will and the other will set up by the other party, stands revoked by the will relied on by the Plaintiff."

46. The learned counsel contended that not only is the decision in

Ram Shankar's case (supra) and Amardeep Singh's case (supra)

overruled by Phool Singh's case (supra), but the issue is long settled in

view of the judgments rendered in Joginder Kaur Malik v. Malik Anup

Singh, AIR 1966 PUNJAB (at Delhi) 385; Om Prakash Kohli v. Ravi

Prakash Kohli, 2002 III AD (Delhi) 1083; Rajan Suri v. State, AIR

2006 DEL 148; and Behari Lal Ram Charan v. Karam Chand Sahni,

AIR 1968 P&H 108 (DB), wherein it has been clearly held that in

Delhi, there is no notification or order that a will must be got probated

mandatorily, and that Section 213 read with Section 57 of the Indian

Succession Act, 1925 is no bar to a party basing its claim on a will in a

suit instituted in Delhi.

47. The learned counsel for the defendant No.1 next contended that it

is settled law that a probate court can never go into the question of title

and its powers are limited viz., to examine whether the will in question

was executed without coercion and undue influence, to gauge if the

testator was of a sound disposing mind and whether the will was duly

attested or not. Here, the plaintiff's main contention is that the plaintiff's

mother could not have bequeathed more than what she owned, which is

clearly an issue of title and out of the scope of adjudication of the

probate court. Reliance in this regard was placed upon the judgments

rendered by the Supreme Court in K.K. Birla v. R.S. Lodha, (2008) 4

SCC 300; Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, (2007)

11 SCC 357; Chiranjilal Srilal Goenka (Dead) By LRs v. Jasjit Singh

& Ors., (2000) Supp. 5 SCR 313, wherein it was categorically opined

that while granting a probate, the court would not decide any dispute

with regard to title.

48. In any event, it is submitted that the present will is a registered

document and was duly executed when the defendant No.1 was not in

the country and this fact in itself raises a presumption in favour of its

validity and is sufficient to satisfy the conscience of the Court at a prima

facie stage. At this stage, the existence of a registered will coupled with

the fact that there is no serious challenge to the authenticity of the will

and the signatures of the testatrix, shows that the balance of

convenience weighs in the defendant No.1's favour. Relying upon the

decisions in Rabindranath Mukherjee v. Panchanan Banerjee, AIR

1995 SC 1684; Arjan Dev Mittra v. Sada Nand, AIR 2000 Del 236;

Prithi Singh v. Saran Singh, 2006 III PLR 293 and Baburajan v.

Parukutty, AIR 1999 Ker 274, it was submitted that registration being a

solemn act gives rise to a presumption as to the regularity of the

execution of the will and its genuineness unless and until there are very

strong reasons which create doubt about its execution and genuineness.

49. As regards the alleged joint and mutual wills dated 30th August,

1985 and 26th June, 1986 relied upon by the plaintiff, it was stated that

the said wills are not joint and mutual wills and that there is a distinction

between a joint will and a mutual will, inasmuch as while the joint will

is a single testamentary instrument constituting or containing the wills

of two or more persons and jointly executed by them, mutual wills are

the separate wills of two or more persons which are reciprocal in their

provisions and executed in pursuance of a contract or agreement

between two or more persons to dispose of their property to each other

or to any third person. Thus, it is submitted that a joint and mutual will

may be rendered irrevocable on the death of one of the testators if the

survivor has received benefits under the mutual will and if there was an

agreement that the testators would not revoke the same. In the instant

case, the two wills relied upon by the plaintiff are titled as "Wills jointly

made" by the plaintiff's parents and do not purport to bequeath any

estate on either of the testators nor is there any agreement explicit or

implicit which forbids the surviving testator from revoking the will.

The Privy Council in Helen Ann Gray v. Perpetual Trustee Co. Ltd.,

AIR 1928 Privy Council 284 has held that the mere fact that two wills

were made by the husband and wife in identical terms and on the same

date does not necessarily imply any agreement to the effect that the

wills should not be revoked after the death of one of the parties, without

independent evidence of any further agreement between the parties.

50. Reference was also made by Mr. Kapur to a Division Bench

judgment of the Madras High Court in the case of Kuppuswami Raja

and Anr. vs. Perumal Raja and Ors., AIR 1964 MADRAS 291 (V 51 C

88) and in particular to paragraphs 10, 11 and 13 to elucidate that the

wills dated 30th August, 1985 and 26th June, 1986 were not joint and

mutual wills as was being alleged by the plaintiff:-

"10. The law relating to joint Wills and mutual Wills is best stated in 39 Halsbury, Simonds Edn., 3rd Ed. page 846, para 1279 and page 847, para 1280:

"A joint Will is a Will made by two or more testators contained in a single document,

duly executed by each of testator and disposing either of their separate properties, or of their joint property. It is not, however, recognised in English law as a single Will. It is in effect two or more Wills; it operates on the death of each testator as his Will disposing of his own separate property; on the death of the first to die it is admitted to probate as his own Will and on the death of the survivor, if no fresh Will has been made, it is admitted to probate on the disposition of the property of the survivor."

"Wills are mutual when the testators confer upon each other reciprocal benefits and there may be absolute benefits in each other's property, or they may be life interests, with the same ultimate disposition of each estate on the death of the survivor."

11. A joint Will is a single testamentary instrument constituting or containing the Wills of two or more persons and jointly executed by them; while mutual Wills are the separate Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of compact (sic. contract) or agreement between two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Mutual Wills as distinct from joint Wills are sometimes described as reciprocal Wills. In describing a Will the adjective "Mutual" or "reciprocal" is used to emphasise and denote the contractual element which distinguishes it from a joint Will.

13. In England the Courts have evolved their own principles of law regarding joint and mutual Wills and so far as English law is concerned, the principles appear to be fairly well settled. In regard to joint and mutual Wills, the decisions in England have recognised a distinction in the powers and jurisdiction of a Court issuing a probate and a Court whose jurisdiction has been

invoked by a party for the enforcement of the rights based upon the agreement embodied in a mutual Will.

An examination of the cases in England shows that in the case of a mutual Will, if there is an agreement that neither of the testators shall have power to revoke, and the surviving testator receives benefits from the deceased under the mutual Will, the survivor is not entitled to revoke the Will when the first testator had died leaving the mutual Will unaltered and unrevoked in pursuance of the agreement and in the hope and trust that the mutual Will will be adhered to by the survivor. If, however, the survivor in breach of faith revokes a mutual Will by making a new Will, it is the new Will which will have to be necessarily admitted to probate so far as the properties of the survivor are concerned. In an application for probate the Court has no jurisdiction to enquire into the nature of the rights of the testator in the property covered by the Will. If the probate Court is satisfied about the due and proper execution of a Will by a testator in a sound disposing state of mind, it is bound to grant a probate of the Will. It is however, open to the beneficiaries under the mutual Will to take proceedings in the Chancery Division for the enforcement of their rights, and the execution of the trust as envisaged in the mutual Will. The personal representatives under the latter Will can be compelled to hold the entire estate upon trust to give effect to the provisions of the mutual Will. Vide 39 Halsbury, Lord Simonds, 3rd Edn. page 853 para 1299."

51. Finally, it was contended on behalf of the defendant No.1 that the

plaintiff is not in settled possession as her infrequent and intermittent

possession has never translated into settled possession. The reliance

placed by the plaintiff on the case of Anathula Sudhakar's case

(supra), it was submitted, was misplaced inasmuch as in the said case it

was clearly held by the Supreme Court that:-

"In a suit for permanent injunction to restrain the defendant from interfering with the Plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession." (emphasis added)

The Hon'ble Supreme Court in Anathula Sudhakar's case

(supra) also specifically held that:- (SCC, P-604, para 13.1)

"A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner". (emphasis added)

52. Distinguishing the judgment in Rame Gowda's case (supra)

relied upon by the counsel for the plaintiff, it was also contended that in

paragraph 9 of the said judgment, the Supreme Court had highlighted

that settled possession must be:-

"(i) effective, (ii) undisturbed and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser."

The Supreme Court had further held that:-

"The possession which a trespasser is entitled to

defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner."

53. The learned senior counsel contended that admittedly in the

instant case the plaintiff had got married in 1972 and left for Paris

shortly thereafter. From 1972 until 1983 and then from 1988 until July,

2009, she did not live in the house. Between 1983 to 1988, the plaintiff

and the defendant No.1 jointly occupied the said property. Even at the

time of the filing of the instant suit, the plaintiff's affidavit had been

signed and verified at Rome, which is admittedly where she was

residing with her husband. Further, the plaintiff's contention that the

defendant No.1 ought to have filed a suit for possession is baseless since

the mere fact that the defendant No.1 had not instituted a suit for

possession cannot be interpreted to mean that the plaintiff is in settled

possession. It is submitted that after the plaintiff's mother's demise, at

the time of mourning, the plaintiff changed the locks in the house

thereby taking illegal possession, which is tantamount to an act of

trespass. Thereafter, the plaintiff approached the Court and obtained an

ex parte status quo order.

54. The learned senior counsel further contended that the defendant

No.1, on the other hand, is the sole beneficiary under the registered will

dated 25.09.2003, which must be presumed to be valid at the prima facie

stage. Thereby, the defendant No.1 is the sole named executor and the

possession that vests in him by operation of law under Section 211 of

the Indian Succession Act must be protected. Reference in this regard

was made to paragraphs 46 and 47 of the judgment of the Supreme

Court in FGP Ltd. v. Saleh Hooseini Doctor & Anr., (2009) 10 SCC

223, which read as under:-

"46. In this connection, we must see the distinction between Sections 211 and 213 of the Indian Succession Act. Under Section 211 of the said Act, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure. Section 2(11) of the Code of Civil Procedure provides as under:

"2.(11) 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"

47. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor

derives his title from the will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain."

55. After carefully deliberating upon the rival contentions of the

parties and on unravelling the facts which emerge from the documentary

evidence on record, the following position emerges for consideration at

this stage.

56. The plaintiff relies upon an alleged family agreement dated 30th

July, 1969, which though admittedly unregistered is signed by the

plaintiff and by her mother Mrs. Shamie Singh. The said family

arrangement is stated to be and, prima facie, appears to be the outcome

of previous correspondence exchanged between the plaintiff, her mother

and her father, which admittedly was exchanged when all three of them

were residing together in the same house i.e. 10, Motilal Nehru Marg,

New Delhi. The question whether or not there is any substance in the

contention of the learned counsel for the defendant No.1 that "the story

with regard to the alleged family agreement is the creation of an

ingenious mind" and in fact the so-called family arrangement was

merely a tax saving device, in my opinion, cannot be adjudged at this

stage and must depend upon the evidence adduced by the parties, after a

full-fledged trial. I say so for the following reasons.

57. There is no denying the fact that there are on record income tax

returns filed by the plaintiff and signed on her behalf by her father Mr.

Kewal Singh, as per which the plaintiff is the owner of half share of the

Shanti Niketan property. Likewise, there are on record tax returns filed

by Mrs. Shamie Singh claiming to be owner of the other half share. The

cumulative effect of the correspondence between the plaintiff and her

parents, the family arrangement dated 30th July, 1969 and the tax

returns, in my view, is that unless proved to the contrary by evidence

adduced in this regard, all the aforesaid documents clearly point to the

intent of the parents of the plaintiff that one-half of the property would

vest in the plaintiff.

58. The wills dated 30th August, 1985 and 26th June, 1986 executed

jointly by Mr. Kewal Singh and Mrs. Shamie Singh also leave no

manner of doubt that it was intended that the plaintiff should continue to

enjoy the rear part of the house at Shanti Niketan, i.e., her 50% share.

The mere fact that the perpetual sub-lease was executed in the name of

Mrs. Shamie Singh (though the land was allotted to Mr. Kewal Singh

and initially the perpetual lease deed was in the name of Mr. Kewal

Singh) cannot, in my view, in the absence of evidence, be construed to

mean that Mrs. Shamie Singh did not recognise the plaintiff as a co-

owner. Had it been so, there would have been no reason for her to affix

her signatures on the family arrangement and on the two wills dated

30th August, 1985 and 26th June, 1986 as well as on the letter dated

October 26, 1970 to the Vice Chairman, DDA requesting for a division

of the property comprising of two vertical units as shown in the site plan

enclosed, between herself and her daughter. Mrs. Shamie Singh would

also not have countersigned the letter dated 15.07.1975 written by the

father of the plaintiff to the Additional Secretary, DDA for the inclusion

of the plaintiff's name in the sub-lease as co-lessee along with her father.

There is also on record a joint letter dated 16.03.1980 signed by the

father and mother of the plaintiff to the Secretary, Government Servants

Association, Vasant Vihar, requesting for the inclusion of the name of

the plaintiff and her father in the perpetual sub-lease, and a letter dated

21st March, 1980 whereby approval was given by the Society for the

inclusion of their names as co-lessees.

59. As regards the contention of the learned senior counsel for the

defendant No.1 that it was not incumbent upon the defendant No.1 to

knock at the door of the probate court and his further contention that the

question whether or not Mrs. Shamie Singh could have made a bequest

of the entire property in the name of the defendant No.1 (she being an

owner of 50% share only) is a question which needs to be examined by

a civil court, this Court is of the opinion that both the aforesaid

contentions are well founded. However, for this Court to hold at this

stage, in the absence of evidence on record, that the will dated

25.09.2003 nullified the family arrangement dated 30.07.1969 merely

by virtue of the fact that the former is a registered document and the

latter is not, may not be in consonance with the law. Assuming the

plaintiff to be a co-owner of the property with late Mrs. Shamie Singh,

the question arises whether Mrs. Shamie Singh could have made a

bequest of the entire property, including the half share of the plaintiff, in

favour of the defendant No.1? The answer must, in my opinion, be an

emphatic "No".

60. Then again, it is settled law that merely because a bequest has

been made, it will not vest the beneficiary with title when the title of the

testator itself is in doubt or under challenge. The will dated 25th

September, 2003 does not mention that Mrs. Shamie Singh is the owner

of the entire Shanti Niketan property nor it is mentioned in the said will

that due to tax-planning reasons certain documents had been executed to

show otherwise. The will has also been categorically disputed by the

plaintiff and by the defendant No.2. In the course of hearing, it was

submitted by the learned counsel for the plaintiff and the defendant

No.2 that at the time of the filing of the plaint the plaintiff did not have

the alleged will dated 25.09.2003. The said alleged will was set up as a

defence in the written statement filed by the defendant No.1, but a copy

of the same was not filed with the written statement but subsequently

with an application, and therefore, the argument of the defendant No.1

that the plaintiff should have challenged the said will in the plaint is

wholly misconceived. It would, in these circumstances, in my opinion,

be too far fetched to say that the plaintiff should have challenged the

will in the plaint, when the alleged will was not furnished by the

defendant No.1 to the plaintiff. Further, assuming that the alleged will

dated 25.09.2003 is held to be genuine, the question still remains at

large as to whether late Mrs. Shamie Singh could have bequeathed more

than what she owned.

61. Significantly also, the fact that there was a family arrangement is

not disputed by the defendant No.1. All that the defendant No.1 states

is that the said family arrangement was an ingenious tool devised by the

family to save tax and nothing more. This certainly, to my mind, will be

a matter to be decided after the parties have marshalled their respective

evidence. More so, as the defendant No.1 in his written statement has

not denied that a joint account was opened by the plaintiff's mother and

the plaintiff in which the rent from the front portion of the house was

being deposited, and from which joint account the plaintiff, from time to

time, "borrowed" money during the short intervals when the plaintiff

came to India. This, in my view, further lends credence to the case of

the plaintiff that the family arrangement was in fact acted upon.

62. Adverting next to the plea of the learned senior counsel for the

defendant No.1 that the plaintiff is not in settled possession of the

property as alleged by her. The said plea, in my opinion, cannot be

countenanced at this stage in view of the fact that in accordance with

law, the possession of a co-owner is deemed to be the possession of all

the remaining co-owners. Thus viewed, the plaintiff was always in legal

possession of the Shanti Niketan property and her possession was

secured by her parents during her absence from India and while she was

living with her husband, who was posted abroad. It would be too

dangerous a proposition to hold that an owner/co-owner must be said to

be out of possession only because the said owner/co-owner was not in

actual physical possession at all times.

63. In the present case, it also cannot be lost sight of that the

possession of the plaintiff relates back to the year 1970 when she was

not married. The father and mother of the plaintiff had during their

lifetime acknowledged her right to stay in the Shanti Niketan property,

and the plaintiff with her husband was admittedly residing in the said

property during her visits to India. According to her, they had no other

residential house in India. The mother of the plaintiff died on

18.05.2004 and the present suit was filed in the month of October, 2004.

During this period also, the plaintiff was in possession of the property to

the exclusion of the defendant No.1. For this Court to direct her ouster

from the said property at this juncture when the parties have yet to lead

their evidence, more so, when the will dated 25th September, 2003 is

seriously in dispute and, in any case, is enveloped in the controversy as

to the testamentary capacity of the testatrix would result in irreparable

injury to the plaintiff. The plaintiff also appears to have a prima facie

case in her favour. The balance of convenience is also in favour of the

plaintiff, who is presently in possession and is admittedly very sick,

apart from being advanced in years.

64. It may be noted in all fairness at this juncture that even the

defendant No.1, who remained present during the hearing, stated that he

did not wish to throw out his mother from the house. All that he

claimed, he stated, was his right to enter and stay in the premises

bearing No.1/31, Shanti Niketan, as prayed by him in IA No.8157/2004.

This, to my mind, is not possible at this juncture in view of the fact that

the front portion of the house is under the tenancy of the British High

Commission and the rent received from the British High Commission is

being deposited with the Registrar General of this Court. The rear

portion of the house is in the occupation of the mother of the defendant

No.1. The question whether the defendant No.1, during the pendency of

the suit, can be accommodated and allowed to reside in a demarcated

portion of the rear part of the house is a question which must, to my

mind, be sorted out by the parties themselves, this being essentially a

family matter. This Court can do no more than advise the parties to

bridge the gap between them by having recourse to mediation

proceedings. If and when the parties desire to do so, the Delhi High

Court Mediation and Conciliation Centre will ensure that senior and

experienced mediators assist the parties in resolving this acrimonious

and bitter dispute between mother and son for the acquisition of

property, resulting in the snapping of all family ties.

65. As regards the prayer of the defendant No.1 for release of the rent

deposited with the Registrar General of this Court, the submission of

Mr. P.V. Kapur is that the defendant No.1 is entitled to the entire estate

of late Mrs. Shamie Singh, inclusive of the rent being paid by the British

High Commission for the front portion of the property. In the

alternative, Mr. Kapur submitted that the defendant No.1 would in the

final analysis, in any case be entitled to half of the estate of late Mrs.

Shamie Singh. Taking note at this juncture of the submission of Mr.

Rajiv Sawhney that the plaintiff is ultimately interested in a fair division

of the property between her two children, i.e., the defendant No.1 and

the defendant No.2, this Court is of the view that the defendant No.1, as

an interim measure and subject to the final outcome of the suit, be paid

half the rent accruing and accumulated from the front portion of the

property. It is accordingly directed that 50% of the rent lying deposited

with the Registrar General of this Court as well as 50% of the rent

deposited from month to month by the British High Commission be

released to the defendant No.1. The remaining 50% accumulated rent

shall be put in a fixed deposit receipt initially for a period of two years

with automatic renewal, if required. The rent deposited from month to

month shall likewise be kept in fixed deposit receipts initially for a

period of two years each with automatic renewal, if necessary.

66. With the aforesaid observations and directions, the interim orders

dated December 15, 2004 are made absolute during the pendency of the

suit. IA Nos.7030/2004, 8157/2004, 3857/2005, 4671/2005, 4702/2007

and 8753/2008 stand disposed of accordingly.

67. It is clarified that any discussion on the merits of the case or any

observation made for the limited purpose of deciding the

aforementioned applications will not have any bearing on the future

conduct of the case.

CS(OS) 1166/2004

List the case before the concerned Court on 19th April, 2010 for

directions.

REVA KHETRAPAL, J APRIL 07, 2010 km