Delhi High Court
H.K. Bansal (Deceased) Through ... vs Dr. Ajay Kumar Bansal & Ors. on 20 May, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 1200/2008
Date of Decision: May 20, 2010
H.K.BANSAL (DECEASED) THROUGH V.K. BANSAL
..... Petitioner
Through: Mr. Vikram Kapoor Adv.
with Mr. Ashish Batra, Adv.
versus
DR. AJAY KUMAR BANSAL & ORS. ..... Respondents
Through: Mr. Jinendra Jain, Adv. with
Mr. Vikrant Sharma, Adv.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
CM (M) 1200/2008 and CM APPL. Nos.14934-35/2008
1. Plaintiff, H.K. Bansal had filed a suit against the
Respondents. During pendency of the suit, he expired leaving
behind two sons namely, Vijay Bansal and Ajay Bansal, his
widow Smt. Saraswati Bansal and three daughters, Smt. Geeta
Mittal, Smt. Shashi Garg and Smt. Saroj Kushal. After his
death, Vijay Bansal filed an application under Order 22 Rule
3 CPC for bringing on record his name as LR of deceased
H.K. Bansal on the basis of a registered Will purported to
have been executed by the deceased during his lifetime on
24.11.2003.
2. Respondent Ajay Bansal filed an application under Section
151 CPC seeking dismissal of the suit claiming himself to be
the absolute owner of the suit property in view of the family
settlement and also that since Smt. Sarawati Bansal has been
given right to live in the property till her death, Vijay Bansal
had no right to continue with the suit.
3. Both these applications were considered by the Trial Court
vide common order dated 09.07.2008 he kept in abeyance till
the decision of the Probate Petition filed by Vijay Bansal.
4. Aggrieved by the said order, Vijay Bansal filed this petition in
the name of deceased H.K. Bansal through himself.
5. Mr. Vikram Kapoor counsel for the petitioner has submitted
that the order of the Trial Court is erroneous in law as keeping
in abeyance the decision on the applications would amount to
stay on the property in perpetuity. Whereas Will dated
24.11.2003 reveals that disputed property devolved upon
Vijay Kumar Bansal only to the exclusion of all other heirs.
He has referred to 'Kale & Ors. vs. Deputy Director of
Consolidation, AIR 1976 SC 807'.
6. H.K. Bansal had filed a suit seeking possession of the suit
property against his son Ajay Kumar Bansal and Smt. Manju
Bansal. He had also claimed Rs.8,00,000/- as damages/mesne
profits. Ajay Kumar Bansal disputed the right of H.K. Bansal
in the suit property alleging that H.K. Bansal had no right,
title or interest in the suit property and therefore he could not
have executed a valid Will in favour of Vijay Kumar Bansal.
7. Since both the parties claim their right in the suit property,
one by virtue of a Will and other by virtue of a family
settlement, the Trial Court was of the view that unless the
Probate Petition was decided it was not proper for him either
to allow the application of Vijay Kumar Bansal treating him
as a sole legal heir of the deceased or dismiss the suit
accepting the plea of the Respondent that H.K. Bansal was not
the owner of the property by virtue of a family settlement and
all other legal heirs of the deceased were not being arrayed
either as plaintiff or as defendants to the suit.
8. Since the title of the property is disputed and H.K. Bansal left
behind his widow and three daughters, besides two litigating
sons, it would have been appropriate if Vijay Kumar Bansal
had filed an application under Order 22 Rule 4 CPC for
bringing on record all the legal heirs of deceased H.K. Bansal
claiming himself to be the owner by virtue of a Will.
However, that was not so done. Besides, it is not disputed
that a Probate Petition is pending consideration pertaining to
the Will in question and the said petition is being contested by
the Respondents.
9. Under these circumstances, once Vijay Kumar Bansal had
already approached the Court for grant of Probate, the said
court has the exclusive jurisdiction to decide the genuineness
of the Will and the Civil Court on its original side, or even on
consent of parties has no jurisdiction to adjudicate upon proof
or validity of the Will propounded by the deceased. The
decision in the Probate Petition will have far reaching effect
on the decision of the instant suit.
10. Under these circumstances, Kale & Ors.'s case (supra) is not
much of an assistance to the Petitioner.
11. Parties to the suit are real brothers claiming right and title in
the suit property by virtue of two different forums one a Will
and other family settlement. Therefore, to my mind, to avoid
any multiplicity of proceedings and further bitterness inter se
the parties, the Trial court adopt a right approach in keeping
the decision on the applications in abeyance to avoid
conflicting opinion on the genuineness of the Will.
12. Hence, I find no merits in the present petition, the same is
accordingly dismissed.
ARUNA SURESH, J.
MAY 20, 2010
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