Delhi High Court
Ram Mohan Marwaha & Ors. vs Swadesh Marwaha & Ors. on 18 January, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 18th December, 2009
Date of Order: January 18, 2010
IA No. 10028/2009 in CS(OS) No. 962/2008
% 18.01.2010
Ram Mohan Marwaha & Ors. ... Plaintiffs
Through: Mr. Neeraj Jain, Advocate
Versus
Swadesh Marwaha & Ors. ... Defendants
Through: Mr. Vipin Kumar Saini, Advocate for D-2
Mr. Rakesh Kumar, Advocate for the Applicant
JUSTICE SHIV NARAYAN DHINGRA
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?
ORDER
By this order I shall dispose of an application under Order 22 Rule
10 and under Order 22 Rule 4 read with Section 151 of CPC made by the
applicant to be impleaded as a party.
2. Brief facts relevant for the purpose of deciding this application are
that the plaintiffs filed a suit for partition and permanent injunction in respect of
the property bearing No. F-1/9, Hauz Khas Enclave. This property was in
possession of Smt. Swadesh Marwah who was arrayed as defendant no.1. Smt.
Swadesh Marwah claimed herself to be the exclusive owner of the property.
Smt. Swadesh Marwah died during the pendency of the suit. The present
application has been filed by applicant Aashish Malhotra on the ground that Smt.
Swadesh Marwah had executed a Will in his favour before her death and he
should be impleaded as a party to the suit in her place after her death on the
basis of Will since the suit property was bequeathed to him by the deceased. In
the application, he has given a long history as to how he was looking after Smt.
Swadesh Marwah during her illness etc. which are not relevant for the purpose of
deciding this application.
3 The application is opposed by the plaintiffs on the ground that
Aashish Malhotra was totally a stranger to the family and Will was a fabricated
document and therefore he could not be impleaded as a party.
4. It is settled law that after death of a person, his/her legal heirs can
be brought on record. If there is any dispute among the legal representatives
inter se the Court has to decide such a dispute. Smt. Swadesh Marwah in this
case died issueless. She left behind no Class I legal heir and no other person
has made an application to be brought on record as her legal heir except that the
parties already on record claimed to have succeeded to her estate. Aashish
Malhotra, applicant has relied upon a Will and has placed the copy of the Will on
record showing the property having been bequeathed by the deceased in his
favour. Even if, he is a stranger he can be impleaded as legal heir on the basis
of this Will. There is no law that a Will cannot be executed in favour of a stranger
and Will has to be executed only in favour of family members. A person can
succeed through instrumentality of Will and can represent estate of a deceased.
I, therefore find no force in this argument of the plaintiff.
5. The other ground taken by the plaintiff is that the Will was
executed by deceased despite status quo order of not creating third party
interest. A Will takes effect after death of a person. Execution of Will does not
amount to creating third party interest by a person. Will is an instrument of
devolving interests of the person after his/her death in favour of the one whom
he/she wishes and there can be no bar on executing of a Will by a person
because of an order of maintaining status quo regarding third party interest by the
Court. This objection raised by the plaintiff also does not stand the scrutiny of
law.
6. I, therefore consider that the application made by the applicant
Aashish Malhotra is liable to be allowed and is hereby allowed. He be substituted
as legal heir of deceased Swadesh Marwaha. However, this order is without
prejudice to the right of the plaintiff to agitate that the Will was forged and the
plaintiff would be at liberty to take this plea during trial that the Will produced by
the Aashish Malhotra was a forged document. The plaintiff would also be at
liberty to insist that the applicant (Aashish Malhotra) should obtain Probate of the
Will from the appropriate Court as only the Probate Court can determine about
the genuineness of the Will.
7. With these directions, the application is disposed of. Since
applicant has been made a party, he be added as a defendant and he shall be at
liberty to participate in the proceedings as legal heir of the deceased.
CS(OS) No. 962/2008
List on 22nd March, 2010 before the regular Bench.
January 18, 2010 SHIV NARAYAN DHINGRA, J.
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