Dr. N.P.S.Chawla vs State & Ors.
2011 Latest Caselaw 5721 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 23.11.2011
                      Judgment Pronounced on: 25.11.2011

+ Execution Petition No.206/2011

Dr. N.P.S.Chawla                         ..... Decree Holder
                        Through: Mr. S.C.Dhanda, Advocate
                        and Mr. Sagari Dhanda, Advocate

                              versus

State & Ors.                            ..... Judgment Debtor
                        Through: Mr. Yaranica Sharma,
                        Advocate for Ms. Sonia Arora, Advocate
                        for JD-1
                        Mr. B.L.Wali, Advocate & Mr. Vikas
                        Dhawan, Advocate for JD-4

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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                  No.
   in Digest?

V.K. JAIN, J

             Decree   Holder/Petitioner   Dr.    N.P.S.Chawla,

respondent No.2 Shri T.P.S.Chawla, respondent No.3 Shri

H.P.S.Chawla and respondent No.4 Ms. Nirmal Danier are

children of late Smt. Ram Piari Chawla, who died on 27 th

October, 1990. In her lifetime late Smt. Ram Piari Chawla

had executed a Will dated 4th July, 1986. Dr. N.P.S.Chawla

filed a petition in this Court for grant of probate of the

aforesaid Will. The Petition seeking probate was contested

only by Shri T.P.S.Chawla, whose grievance was limited to

certain recitals made in para 04 of the Will about his

conduct and therefore he wanted the deletion of those

recitals. While granting probate in favour of Dr.

N.P.S.Chawla and appointing him as the sole Executor of

the Will, the Court deleted the recitals made in para 04 of

the Will. The order granting probate to Dr. N.P.S.Chawla

was challenged by Shri H.P.S.Chawla by filing an appeal on

the ground that he ought to have been made a Joint

Executor along with Dr. N.P.S.Chawla. The appeal having

been dismissed by Division Bench of this Court, he

preferred an appeal by way of Special Leave to Supreme

Court. After arguing the matter for sometime the learned

Counsel for the parties stated before Supreme Court that

they had settled their disputes relating to estate of late Smt.

Ram Piari Chawla and therefore there was no need to

appoint the appellant Mr. H. P.S.Chawla as Joint Executor

along with Dr. N. P.S.Chawla. The parties filed a joint

memo containing the terms agreed between them and

admitted execution of that memo before Supreme Court.

After examining the terms of the joint memo, Supreme

Court disposed of the appeal extracting the following terms

from the joint memo:

(1) The subject matter of the dispute is all properties as per the Will of late Ram Piari Chawla namely: (1) E-23, Defence Colony, New Delhi, (2) Farm House at village Jaunapur, New Delhi, as also UTI and the National Saving Certificates mentioned in the Will. The amount lying in the said Account shall be distributed immediately.

(2) It is agreed between the parties that the above said properties shall be disposed of on the following terms and conditions:

(a) As regard the Units and National Saving Certificates which have been encashed the proceeds of which are deposited in the account of the Estate of Smt. Ram Piari Chawla with Standard Chartered Bank, Malcha Marg, Chankya Puri, New Delhi. These amounts shall be divided equally amongst the three legatees.

(b) The two properties namely (1) E-23, Defence Colony, New Delhi and (2) Jaunapur Farm at village Jaunapur, New Delhi are valued at Rs.40.00 crores (Rupees Forty crores only) and Rs.8.00 crores (Rupees Eight Crores only) respectively.

(3) It is agreed that Shri HPS Chawla shall pay Rs.16,00 crores each to Dr. NPS Chawla and Ms. Nirmal Danier Chawla on or before 31.10.2010 for the purchase of properties namely E-23, Defence Colony

and Jaunapur Farm.

(4) After the payment of Rs.16.00 crore each to Dr. NPS Chawla and Smt. Nirmal Danier Chawla, Harinder Pal Chawla or its nominees will be exclusive owner of both properties.

(5) Dr. NPS Chawla and Mrs. Nirmal Chawla will execute all necessary papers, documents for the purposes of sale/transfer/assignment and for the purpose of taking all necessary permission from any authorities in connection with the sale of E-23, Defence Colony and Jaunapur Farm after HPS Chawla has paid the amount of Rs.16 crore each to Dr. NPS Chawla and Mrs. Nirmal Danier Chawla.

(6) That Dr. NPS Chawla shall handover all the original title deeds/documents/correspondence and other necessary papers regarding the mutation and transfer of E-23, Defence Colony with the Land and Development Office, (Ministry of Urban Affairs) to Shri HPS Chawla on payment of the entire amount mentioned above i.e. 16 crore each.

(7) All expenses for obtaining permission/mutation shall be borne by HPS Chawla.

(8) The time hereinabove agreed shall not be extended on any account whatsoever.

(9) On the failure of HPS Chawla to pay the amount mentioned in para 4 above then the judgment of the High Court shall prevail and Dr. NPS Chawla take possession of the two properties

mentioned above. HPS Chawla shall vacate the Jaunapur Farm and hand over the possession of the said Farm to Dr. NPS Chawla. He will sell the properties as executor and distribute the sale proceeds between the three legatees.

We dispose of the appeal, by consent, as follows:

(i) The parties (appellant and respondents 1 and 3) shall act in accordance with the terms of the said joint memo (extracted in paragraph 7 above) with mutual understanding without giving room for any further litigation. The said joint memo (extracted in paragraph 7 above) with mutual understanding without giving room for any further litigation. The said joint memo shall be a part of the record.

(ii) As the settlement contemplates payment of Rupees Sixteen crore each to two of the co- owners (respondents 1 and 3) by the third co-owner (appellant), the transfer of the share/interest of respondents 1 and 3 shall be either by a sale/transfer/release in favour of appellant or a sale/transfer in favour of the nominee of the appellant, with appellant as a consenting witness.

2. It would thus be seen that as per the terms agreed

between the parties, properties bearing No. E-23, Defence

Colony, New Delhi and the Farm at Village Jaunapur, New

Delhi were to go to Shri H. P.S.Chawla on payment of Rs.16

crore each to him by Dr. N.P.S.Chawla and Ms. Nirmal

Danier on or before 31st October, 2010. On failure of Mr.

H.P.S.Chawla to pay the aforesaid amounts, the judgment of

this Court in the Probate Petition is to prevail and Dr.

N.P.S.Chawla can take possession of the aforesaid two

properties. Mr. H.P.S.Chawla then has to vacate the

Jaunapur farm and handover its possession to Dr.

N.P.S.Chawla who then can sell the properties as Executor

and distribute the sale proceeds between the three legatees.

3. Admittedly Mr. H.P.S.Chawla has failed to pay

Rs.16 crore each to Dr. N.P.S.Chawla and Ms. Nirmal

Danier in terms of settlement between the parties.

Therefore, in terms of the order passed by the Supreme

Court, he is required to vacate the Farm at Jaunapur and

handover its possession to Dr. N.P.S.Chawla. This is also

the case of the petitioner that the guards deputed by Shri

H.P.S.Chawla in property No. E-23, Defence Colony, New

Delhi do not allow the prospective purchasers to enter the

house; similarly, respondent No.3 does not allow the

prospective purchasers to enter the Farm thereby

dissuading from purchasing these properties. The

petitioner before this Court is seeking eviction of Mr.

H.P.S.Chawla from the aforesaid Farm. He is also seeking

removal of his guards from property No.E-23, Defence

Colony, New Delhi besides police aid to obtain possession of

the Farm and removal of the guards.

4. The petition has been contested by respondent

No.3/Judgment Debtor No.3 Mr. H.P.S.Chawla. He has

primarily taken the following objections to the petition:

a) The order dated 17th January, 2005 passed by this Court is not a decree in favour of Dr. N.P.S.Chawla.

b) The Will propounded by Dr. N.P.S.Chawla having not been challenged by any party he cannot be said to be a Judgment Debtor.

c) The order passed by the Supreme Court is without jurisdiction and therefore being nullity cannot be executed by this Court.

In support of his contention, the learned counsel

for Mr. H.P.S.Chawla has relied upon the decision of

Supreme Court in Chiranjilal Shrilal Goenka v. Jasjit

Singh & Ors. (1993) 2 SSC 507.

5. Sections 267, 268 and 295 of Indian Succession

Act, which are relevant for the purpose of deciding this

petition, read as under:

267. District Judge's powers as to grant of probate and administration -

The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.

(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.

(3) Such personal shall be bound to answer truly such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code, 1860 (45 of 1860), in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit and had made such default.

(4) The costs of the proceeding shall be in the discretion of the Judge.

268. Proceedings of District Judge's Court in relation to probate and administration - The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided; be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 (5 of

1908).

295. Procedure in contentious cases - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

It would thus be seen that while hearing a petition

for grant of probate, District Judge is, as far as possible, to

adopt the procedure prescribed in the Code of Civil

Procedure, 1908 and in respect of such a petition he has all

such powers which are vested in him in respect of a Civil

Suit which can be filed before him as a District Judge. In

fact, if the petition for grant of Probate is contested, the

District Judge is required to adopt the same procedure as is

adopted in respect of a regular suit.

6. Order 23 Rule 3 of Code of Civil Procedure, to the

extent it is relevant, provides that where it is proved to the

satisfaction of the Court that a suit has been adjusted

wholly or in part by any lawful agreement or compromise in

writing which is signed by the parties, the Court shall order

such agreement or compromise to be recorded and pass a

decree in terms of that compromise to the extent it relates to

the parties to the suit, irrespective of whether the subject

matter of the agreement or compromise is the same as the

subject matter of the suit, or not. Admittedly, Shri

H.P.S.Chawla was also a party to the petition filed by Dr.

N.P.S.Chawla seeking grant of probate in respect of Will

executed by late Smt. Ram Piari Chawla on 4 th July, 1986.

The petition was contested by Shri T.P.S.Chawla, though to

a limited extent. Nevertheless, it is difficult to say that it

was not a contested petition. In fact, Shri H.P.S.Chawla

himself filed an appeal against the order passed by this

Court since he was aggrieved on account of his not being

made a Joint Executor along with Dr. N.P.S.Chawla despite

the fact that both of them were appointed as Executors by

late Smt. Ram Piari Chawla. It is therefore difficult to deny

that the provisions of Section 295 of Indian Succession Act

also apply to the petition filed by Dr. N.P.S.Chawla. In my

view, had the memo of compromise which was filed before

the Supreme Court been filed in this Court, during the

course of hearing of the petition seeking grant of probate,

this Court would have been competent to record the

compromise effected between the parties and to pass a

decree in terms of that compromise. It would, in my view,

be immaterial that the compromise was filed and got

recorded in an appeal arising out of the probate

proceedings. Since Section 266 of Indian Succession Act

specifically provides that the District Judge shall have

similar powers in relation to granting of probate as he has

in relation to a Civil Suit, the power to record compromise

and pass decree in terms thereof cannot be denied to such a

Court. Consequently, the order passed by the Supreme

Court on 15th July, 2010 cannot be said to be without

jurisdiction or a nullity in law.

7. Order XIII Rule 6 of Supreme Court Rules 1966, to

the extent it is relevant, provides that the decree passed or

order made by the Court in every appeal shall be

transmitted to the Court from which the appeal was brought

and steps for enforcement of such decree or order shall be

taken in that Court. Since the order dated 15 th July, 2010

was passed by the Supreme Court in Civil Appeal No.

5452/2010, it is required to be executed by this Court

alone. Since not only a judgment but also an order passed

by Supreme Court is required to be executed by this Court.

I need not go into the question as to order passed by

Supreme Court on 15th July, 2010 is a „decree‟ within the

meaning of Section 2(2) of Code of Civil Procedure or not.

8. Coming to the decision of Supreme Court in

Chiranjilal Shrilal case (supra), I find that the facts of that

case were altogether different. In that case, one Shri

Chiranjilal was involved in several suits, one of which was

the appeal, pending before the Supreme Court. He died

leaving behind a Will whereby he appointed his younger

daughter as the sole Executrix of the Will. One Radhey

Shyam, who claimed to be adopted son of late Shri

Chiranjilal, along with his wife filed substitution

applications under Order 22 Rule 3 CPC. Similar

application was filed by the Executrix when dispute arose as

to who represent the estate of late Shri Chiranjilal. All the

three were brought on record as legal representatives and

with the consent of the parties, an Arbitrator was appointed

to settle the dispute as to who would be the legal heir of the

estate of late Shri Chiranjilal Shrilal Goenka.

Simultaneously, proceedings in the probate suit were

pending in Bombay High Court wherein the learned Judge

expressed doubt as to whether Arbitrator had jurisdiction to

decide the probate suit. The Arbitrator was of the view that

since all the pending proceedings were referred in the

Schedule annexed to the order of his appointment, it would

assumed that Supreme Court had applied its mind and

referred the probate suit as well to him. He was of the view

that it would be expedient to the applicant to seek

clarification from the Supreme Court itself. While pointing

out the distinction between the legal heirs and legal

representatives, Supreme Court observed that "consent

cannot confer jurisdiction and there is no estoppel against

statute". It was also observed that other legatees in the Will

were not parties before it. Referring to its decision in

A.R.Antulay v. R.S. Nayak (1988)2 SCC 602, it was observed

that it is the statute which confers jurisdiction and the

Court cannot confer jurisdiction on an authority or a

Tribunal. It was further observed that a decree passed by a

Court without jurisdiction is a nullity and non-est in the

eyes of law and therefore its invalidity can be set up

whenever it is sought to be enforced or is acted upon,

including at the stage of execution or any collateral

proceedings. Supreme Court accordingly held that it was

the probate Court which had been conferred exclusive

jurisdiction to grant probate of the Will or refuse the same.

It was also observed that grant of probate is final subject to

appeal, if any, or its revocation in terms of the provision of

Succession Act whereas the award deprives the parties of

statutory right of appeal. The conclusion by the Court

therefore was that it is probate Court alone which has

exclusive jurisdiction in the matter and the Arbitrator does

not get jurisdiction even with the consent of the parties to

adjudicate upon the proof or validity of the Will. The Court

was of the view that the Arbitrator cannot proceed with the

probate suit. Thus, the proposition of law which emerges

from this judgment is that the parties even by consent,

cannot confer jurisdiction upon an Arbitrator, to adjudicate

upon the validity of a Will and that a decree passed without

jurisdiction being a nullity can be challenged in execution

proceedings as well as collateral proceedings. This

judgment in my view does not help Shri H.P.S.Chawla since

Supreme Court, while hearing Civil Appeal No. 5452/2010,

had the jurisdiction to record the compromise between the

parties and pass an order/decree in terms of that

compromise. I therefore find no merit in the objections

taken by Shri H.P.S.Chawla.

For the reasons given in the preceding paragraphs,

Shri H.P.S.Chawla is directed to handover possession of

Farm at Jaunapur to Dr. N.P.S.Chawla and remove his

guards from E-23, Defence Colony within four weeks failing

which the Registry will issue warrants for dispossession of

Shri H.P.S.Chawla from the Farm at Jaunapur village.

Re notify the matter for further hearing on 21st

February, 2012.

(V.K. JAIN) JUDGE NOVEMBER 25, 2011 VN