Smt. Raj Dulari & Ors. vs Smt. Surinder Kaur & Ors.
2010 Latest Caselaw 2464 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) NO.1775/2009

                                       Date of Decision : 07.05.2010

SMT. RAJ DULARI & ORS.                            ......Plaintiffs
                               Through:    Mr.Biswajit Das, Mr. Vinay
                                           Tripathi, Advocates.
                                 Versus

SMT. SURINDER KAUR & ORS.                       ...... Defendants
                      Through:             Mr.    Harish    Malhotra,
                                           Sr.Advocate with

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                          NO
2.     To be referred to the Reporter or not ?               NO
3.     Whether the judgment should be reported
       in the Digest ?                                       NO

V.K. SHALI, J.

IA No.13253/2009 and 12187/2009

1. This order shall dispose of the application bearing nos.

12187/2009 under Order XXXIX Rules 1 and 2 CPC and CPC

and 13253/2009 under Order XXXIX Rule 4 CPC read with

section 151 CPC.

2. Briefly stated the facts of the case are that the plaintiffs filed

the present suit for partition in respect of the suit property

bearing no. D-16, Nizamuddin (East), New Delhi and the

consequential relief.

3. After filing of the present suit, the plaintiffs filed an

application seeking amendment of the suit and in addition to

partition by metes and bounds, plaintiff sought a declaration

to the effect that the substitution letter dated 30.06.2009 and

mutation letter dated 01.07.2009 referred to in the

conveyance deed dated 03.08.2009 purported to have been

executed by the L&DO be declared null and void. Apart

from this, other consequential reliefs were also claimed.

4. Briefly stated the facts of the case are that the plaintiffs and

the defendant nos. 1 to 11 are the successor in interest and

are the descendants of Late Shri Gurbaksh Singh. It is

alleged in the plaint that in pursuance to the application

dated 08.12.1950, Late Shri Gurbaksh Singh was allotted two

rooms house under the Rehabilitation Scheme by the UOI,

for a total consideration of Rs.6,000/- in Nizamuddin bearing

no. D-16, Nizamuddin (East), New Delhi. On or about

29.03.1961 in pursuant to the allotment letter dated

08.05.1951 a lease deed was purported to have been executed

in favour of Late Shri Gurbaksh Singh. On the same day i.e.

29.03.1961 a conveyance deed was also executed in respect of

the building on the land for a payment of Rs.6,179/-, in his

favour. It is alleged that Late Shri Gurbaksh Singh died on

10.11.1961 and he was survived by three sons and five

daughters. It is alleged that on account of death of Late Shri

Gurbaksh Singh the aforesaid suit property which was being

used as a dwelling house by the entire family, was owned

jointly by the plaintiffs and the defendants, and therefore, the

same passes on to the descendants of Late Shri Gurbaksh

Singh by virtue of Hindu Succession Act, 1956. So far as the

relationship of the plaintiffs and the defendants are

concerned, it was stated that the plaintiff no.1 to 3 and the

defendant no.11 are the daughters of Late Shri Gurbaksh

Singh. The plaintiff nos. 4 to 11 are the legal heirs being the

granddaughter/daughters-in-law and the grandson of late

Ms. Daljeet Kumari, who was the fourth daughter of late Shri

Gurbaksh Singh. Another daughter of Late Shri Gurbaksh

Singh was Ms. Tripta Rani who is the defendant no. 11. So

far as the three sons of late Shri Gurbaksh Singh are

concerned, they were named as Avtar Singh, Kartar Singh

and Pratap Singh and all the three sons are stated to have

died. Defendant no.1 is the widow of Late Shri Avtar Singh,

the defendant no.2 and 3 are the grandson of Late Shri Kartar

Singh and the defendant no.4 to 10 are the descendants of

the third son Late Shri Pratap Singh.

5. It is alleged in the plaint that each of the son and the

daughters or their successor in interest are entitled to 1/8 th

share in the suit property or the part thereof depending on

the number of legal heirs surviving each of the son and the

daughter. The plaintiffs alleged that a month prior to the

filing of the petition plaintiffs learnt that the male legal heirs

of Late Shri Kartar Singh i.e. defendant nos. 2 and 3 and that

of Late Shri Pratap Singh, namely, the defendant nos. 5 to 8

without informing and taking permission from the plaintiffs

applied to the L&DO Office in the month of March, 2009 for

substitution of their names in place of Late Shri Gurbaksh

Singh. So far as the lease hold rights of the land in question

are concerned, the defendant nos. 2, 3 and 5 to 8 got their

names substituted in the records of the L&DO and thereafter

allegedly demolished the suit property to the shock and

surprise of the plaintiffs. This fact was learnt by the plaintiffs

when they visited the suit property, and accordingly, the

plaintiffs were constrained to file the present suit for partition

of the suit property in terms of their share.

6. The matter came up before the Court on 18.09.2009 and this

Court passed an order restraining the defendants from

parting with the possession or in any manner creating third

party right or interest in respect of the suit property. The

plaintiffs were directed to comply with the provisions of Order

XXXIX Rule 3 CPC within three days.

7. Notices were directed to be issued to the defendants and the

matter was adjourned to 16.04.2010. On 13.10.2009, two

applications bearing no. 13253/2009 under Order XXXIX

Rule 4 CPC and 13254/2009 under Order I Rule 10 CPC

were filed by M/s BDR Builders and Developers Pvt. Ltd.

The application bearing No. 13254/2009 under Order 1 Rule

10 CPC was filed for being impleaded as party on the ground

that they have purchased the suit property from the

defendant nos. 2, 3 and 5 to 8 by a registered document.

This application for impleadment of M/s BDR Builders and

Developers Pvt. Ltd. was allowed by my learned Predecessor

vide order dated 23.12.2009, and therefore, vide order dated

23.12.2009 they were impleaded as defendant no.12.

8. The other application filed by them was 13253/2009 under

Order XXXIX Rule 4 CPC for modification/vacation of the ex-

parte ad interim order granted on 18.09.2009 on the ground

that the same was causing irreparable loss to them. This

application was filed by the defendant no. 12 on 13.10.2009

wherein they have stated that they have a registered sale deed

in their favour executed by the defendant nos. 2, 3 and 5 to 8

on 24.08.2009 for consideration. It has also been stated that

the defendant nos. 2, 3 and 5 to 8 before selling the suit

property to the defendant no. 12 have got the property

converted into free hold and mutated, it in their names vide

mutation letter dated 30.06.2009, and thereafter sold the

same to the defendant no. 12 and thus they are the absolute

owners of the suit property in respect of which, the

possession was also handed over to them. It is not disputed

by them that Late Shri Gurbaksh Singh had left behind a

duly registered WILL dated 26.04.1960 on the basis of which

the legal heirs, namely, the defendant nos. 2, 3 and 5 to 8

who were the grandsons, were made the beneficiaries and the

absolute owners of the property in question. It is stated that

on the basis of the WILL purported to have been made by Late

Shri Gurbaksh Singh, the beneficiaries had applied for grant

of probate to the Court of District Judge at Ajmer where Late

Shri Gurbaksh Singh was residing at the time of his death.

This probate petition was filed by Late Shri Pratap Singh and

late Sh. Kartar Singh, Smt. Tripta, Smt. Daljeet Kumari (alias

Suhagwanti), Smt. Prem Kanta, Smt. Raj Dulari and Smt.

Santosh were served but did not appear. It is stated that

Kartar Singh, Smt. Tripta, Smt. Daljeet Kumari filed

objections to the probate petition, while as Smt. Prem Kata

and Smt. Raj Dulari filed their power of attorney through one

Shri D. P. Garg, Advocate and Smt. Santosh refused to receive

the notice/summon. It is alleged that the learned District

Judge on 07.03.1964 after hearing the parties and recording

the evidence of the objectors, granted a probate of the WILL of

Late Shri Gurbaksh Singh. A copy of the probate is attached

along with the application.

9. It is alleged that Pratap Singh, Kartar Singh and Avtar Singh

died on 14.02.2004, 19.10.2000 and 18.01.2001 respectively

and that is how, their legal heirs have been brought on

record. It is alleged that so far as the Avtar Singh is

concerned, he died issueless and his wife is the defendant

no.1 in the present suit. On 30.06.2009 ultimately

beneficiaries of the WILL applied for mutation of the suit

property in their names in the record of the L&DO. The

mutation letter is attached along with the application as

annexure A-5. The certified copy of probate is attached as

annexure A-4. The free hold conveyance deed dated

03.08.2009 of the suit property executed in favour of the

owners/vendors of deft.No.2, 3 & 5 to 8 attached as annexure

A-6. Thereafter, a public notice dated 07.08.2009 was issued

by the defendant 2,3 & 5 to 8 regarding the sale of the suit

property inviting objections, if any and the same is attached

as annexure A-7. On 24.08.2009, the sale consideration was

paid to the defendant nos. 2, 3 and 5 to 8 and sale deed was

executed in favour of the said defendant no. 12 copy of sale

deed is attached as annexure A-8. It is only after perfecting

the title that the defendant no. 12 got the suit property

vacated from the previous tenants by duly compensating

them. Thereafter, when they got the plan sanctioned and

demolished the old structure and started raising the new

structure, the plaintiffs surfaced on the scene and protested

to the construction by obtaining an ex-parte ad interim stay

by committing perjury and concealing the fact that all the

plaintiffs or their predecessor in interest had not been duly

represented and choose not to contest the grant of probate by

the competent District Court in Ajmer where the probate was

applied for, accordingly, the defendant has prayed for

vacation/modification of an ex-parte ad interim stay dated

18.09.2009 and an initiation of proceedings against the

present plaintiffs. The plaintiffs filed their reply to the

application and contested the averments made in the

application so far as the grant of probate is concerned. It has

been stated by the plaintiffs that the suit property is valued at

Rs.10 crores while as only an amount of Rs. 1.5 crores have

been reflected as a sale consideration. The allegations

regarding appearance or non appearance of the plaintiffs and

the grant of probate were denied and it was alleged that the

plaintiffs were the illiterate persons and did not know the

implication of the proceedings carried on at District Court,

Ajmer, accordingly, they have sought rejection of the

application filed by the defendant no.12.

10. I have heard the learned counsel for the parties and have also

perused the record.

11. Before an ad interim order is granted in favour of a party,

three things have to be necessarily established, namely, that

it has got a prima facie case, the balance of convenience is in

its favour and it will suffer an irreparable loss, in case, an

injunction order is not passed. In the instant case, the facts

which have been brought on the record by the plaintiffs are

totally at variance with the facts which have been brought on

the record by the defendant no.12. As a matter of fact, the

facts which have been brought on record duly supported by

documentary evidence prima facie inspire confidence to show

that the plaintiffs have sought to give only selective

information to file the present suit for partition to jettison the

interest of the defendant no.12 who is prima facie the rightful

and the lawful owner as well as the bona fide purchaser of the

suit property for consideration. Late Shri Gurbaksh Singh is

purported to have made a WILL on which probate was

granted by competent Court, Ajmer and the reasons for

following the grant of probate in Ajmer was that he died in

Ajmer, and therefore, the probate was applied at the place

where he last resided.

12. Chapter 3 of the Indian Succession Act, 1925 deals with the

alteration and invocation of the grant of probate.

Section 263 of the Indian Succession Act reads as under:

"(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

13. A perusal of the aforesaid section clearly shows that if a

probate or a letter of administration has been granted, it may

be revoked or annulled for a just cause and on the grounds

that it has been obtained:

"(b) fraudulently by making false suggestion or by concealing material facts from the Court or (C). It was obtained by means of an untrue allegation of a fact essentially in point of law to justify the grant through such allegations were made in ignorance or inadvertently."

14. I have been informed that the present plaintiffs have already

applied to the District Court, Ajmer for revocation of grant of

probate in favour of the defendant nos. 2, 3 and 5 to 8, on the

basis of the Registered WILL dated 26.04.1960 purported to

have been made by Late Shri Gurbaksh Singh. If that be so

then obviously till the time the probate is revoked the plaintiff

will not have the cause of action to claim the partition of the

suit property on the basis of the intestate succession. This

clearly shows that the plaintiffs for the present do not have

any prima facie case. Coupled with this fact Section 273 of

the Indian Succession Act lays down that probate or letter of

administration shall have effect over all the property and

estate, movable or immovable, of the deceased throughout the

State in which the same is or are granted and shall be

conclusive as to the representative title against all debtors of

the deceased, and all persons holding property which belongs

to him, and shall afford full indemnity to all debtors, paying

their debts and all persons delivering up such property to the

person to whom such probate or letters of administration

have been granted.

15. In the light of the aforesaid facts, I feel that the plaintiffs

cannot be permitted to continue to take advantage of an ex-

parte ad interim order obtained by them which was granted

without hearing the defendant no.12 who is prima facie lawful

and bona fide purchaser of the suit property. The balance of

convenience is also not in favour of the plaintiffs as till the

time the probate is not revoked they cannot be said to be in

any manner whatsoever entitled to any share in the suit

property by way of partition and similarly they will not suffer

any irreparable loss.

16. This Court had already directed the defendant no.12 to file

the affidavit which has been done and wherein the defendant

no. 12 has undertaken that he will not create any third party

interest in respect of the construction which was built on the

suit property without obtaining the permission of the Court,

therefore, it sufficiently protects the interest of the plaintiff.

Accordingly, I feel that an ex-parte ad interim order dated

18.09.2010 should be vacated and the defendant no.12 be

permitted to raise the construction subject to the undertaking

given by him which is accepted. So far as the present suit is

concerned, the proceedings of the case are adjourned sine die

with liberty to the plaintiffs to revive the same as and when

they able to obtain an order of revocation of grant of probate

which will enable them to proceed ahead with the present

suit. The applications bearing no. IA No.12187/2009 under

Order XXXIX Rules 1 and 2 CPC is dismissed and the

application bearing IA No.13253/2009 under Order XXXIX

Rule 4 CPC is allowed.

17. Expression of any opinion hereinbefore shall not be deemed

to be treated as an expression on the merits of the case. The

proceedings of the case are accordingly adjourned sine die,

which may be revived by the learned counsel for either of the

parties.

V.K. SHALI, J.

MAY 07, 2010/KP