Smt. Durga Devi vs Smt. Prem Lata Rai & Ors.
2013 Latest Caselaw 5322 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 20th November, 2013.

+                               RFA 168/2005

       SMT. DURGA DEVI                                      ..... Appellant
                    Through:           Mr. Sudhanshu Tomar, Adv.

                                   Versus

    SMT. PREM LATA RAI & ORS.          ..... Respondents
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 12.08.2004 of the

Court of Additional District Judge (ADJ), Delhi of dismissal of suit

No.811/2001 filed by the appellant.

2. The said suit was filed by the appellant on 13.12.2001, pleading:

(a) that the appellant is the owner in physical possession of

property, bearing No.50-B situated in the Revenue Estate of village

Sultanpur Extension, Gurgaon Road, Mehrauli, New Delhi,

measuring 55 sq. yds. being part of Khasra No.418, having purchased

the same from the respondent No.3 Sh. Satya Parkash Rai vide

Agreement to Sell, Power of Attorney, Will, Affidavit etc. all dated

19.07.1994;

(b) that the respondent No.3 Sh. Satya Parkash Rai had in turn

purchased the said property from the respondent No.2 Smt. Heerawati

Rai vide similar documents dated 26.05.1994;

(c) that in fact Sh. Chabban Rai husband of the respondent No.2

Smt. Heerawati Rai was the owner of the said land who had died in

the year 1988-89 leaving behind the respondent No.2 Smt. Heerawati

Rai as his widow and the respondent No.1 Smt. Prem Lata Rai his

daughter as his only legal heirs and the said land devolved on the

respondent No.2 Smt. Heerawati Rai only, as the respondent No.1

Smt. Prem Lata Rai was a married daughter and did not acquire any

rights in the land under Section 50 of the Delhi Land Reforms Act,

1954;

(d) that the respondent No.1 Smt. Prem Lata Rai however started

claiming to be the owner of the said land by virtue of a Will executed

by her father Sh. Chabban Rai in her favour and had applied for

probate of the said Will;

(e) that the appellant filed an application under Order 1 Rule 10 of

the CPC in the said probate proceeding averring that the probate

proceedings were collusive between the respondents No.1&2 and

were filed with the intention to divest the appellant of the title in the

land, but the said application was dismissed;

(f) that ultimately probate of the said Will set up by the respondent

/ defendant No.1 was granted on 14.12.1998.

Accordingly, a declaration of ownership rights and a declaration to

the effect that the probate granted of the alleged Will of Sh. Chabban Rai

was illegal, null and void and liable to be cancelled and injunction

restraining the respondents from dispossessing the appellant from the suit

land were claimed.

3. The impugned judgment records that the respondents/defendants

contested the suit inter alia on the ground that since on the demise of Sh.

Chabban Rai, under his Will which had been probated, his daughter

respondent No.1 had become the owner of the land and the respondent No.2

had no right thereto, she could not have transferred any rights in the land in

favour of the appellant/plaintiff.

4. The impugned judgment further records that the following

preliminary issue was framed in the suit:

"Whether the suit is maintainable in view of the probate granted by the probate courts"

5. The learned ADJ has vide the impugned judgment decided the

aforesaid preliminary issue against the appellant/plaintiff,

finding/observing/holding:

(i) that there was no merit in the contention of the counsel for the

appellant/plaintiff that the subject land being governed by the Delhi Land

Reforms Act, 1954, Sh. Chabban Rai could not have bequeathed the same

under a Will and the respondent No.1 could not have become the owner

thereof under the said Will, since the total land of Sh. Chabban Rai was 200

sq. yrds. and which could not be agricultural, having been urbanized, thus

the provisions of the Land Reforms Act did not apply thereto;

(ii) that since the Will had been probated and thereunder the land had

been bequeathed to the respondent No.1, the respondent No.2 from whom

the appellant/plaintiff claimed to have acquired rights therein had no right

with respect thereto;

(iii) that if it was the contention of the appellant/plaintiff that the probate

had been wrongly granted, the remedy of the appellant/plaintiff was to seek

revocation of the probate and not by way of a separate suit.

6. This appeal was admitted for hearing and the counsel for the

respondents No.1&2 appeared. None appeared for the respondent No.3

inspite of service by publication. Though the appeal was listed on

04.07.2011, 14.11.2011, 20.04.2012 and 08.05.2012 but none appeared for

the respondents No.1 & 2 also. The appeal came up for hearing on

08.11.2013 when also none appeared for respondents No.1&2 or even the

appellant; however adverse orders were deferred and the appeal directed to

be listed w.e.f. 11.11.2013 with notation in the cause list of this Court of

'Notice of Default to the counsels for the parties'. The appeal has been so

listed since then. Today counsel for the appellant has appeared. None has

appeared for respondents No.1 &2 inspite of passover. Need is thus not felt

to await the respondents No.1&2 and the counsel for the appellant has been

heard.

7. The counsel for the appellant/plaintiff has contended that the

respondent No.2 had similarly sold another part of the land and which was

ultimately purchased by one Smt. Geeta Devi; she had also filed a similar

suit as the appellant/plaintiff herein and which suit was also dismissed by

the same learned ADJ by identical, though separate judgment. It is further

stated that the said Smt. Geeta Devi had also preferred RFA No.131/2005 to

this Court and which has been allowed vide order dated 17 th April, 2012,

copy of which has been handed over in the Court.

8. I may state that a reference to RFA No.131/2005 is found in orders

dated 08.07.2010, 20.12.2010 and 31.03.2011 in this appeal also.

9. A perusal of the said order dated 17th April, 2012 allowing RFA

No.131/2005 titled Smt. Geeta Devi Vs. Smt. Prem Lata Rai shows the

counsel for the parties therein to have agreed to setting aside of the

judgment and to remand of the suit from which that appeal has arisen, for

adjudication in accordance with law.

10. The counsel for the appellant/plaintiff further informs that the said

remanded suit is now pending in the Court of Sh. V.K. Bansal, ADJ, Tis

Hazari Courts, Delhi and is listed next on 7th January, 2014.

11. It has however been enquired from the counsel for the appellant as to

what is wrong with the reasoning in the impugned judgment. The

appellant/plaintiff is admittedly only an agreement purchaser claiming to be

in possession of the property. The appellant/plaintiff has not instituted any

suit for specific performance of the said Agreement to Sell. It is not in

dispute that the subject land belonged to Sh. Chabban Rai. The

appellant/plaintiff is not disputing the title of Sh. Chabban Rai to the said

land. The only question for adjudication thus was whether the probate

obtained by the respondent No.1 of the Will of Sh. Chabban Rai was in

collusion with the respondent No.2 who had as sole heir of Sh. Chabban Rai

transferred the property to the appellant/plaintiff. Section 263 of the Indian

Succession Act, 1925 empowers the Probate Court to revoke or annul a

probate for 'just cause' and which, as per the explanation to the said section

is deemed to exist where the grant was obtained fraudulently or by

concealment of material facts. The learned ADJ thus was correct in holding

that the remedy of the appellant/plaintiff was by way of applying for

revocation of the probate in as much as, as long as the probate existed, the

Will of Sh. Chabban Rai with respect to the subject land in favour of the

respondent No.1 has to be accepted by all other Courts and the title/interest,

even if any, acquired by the appellant/plaintiff from the respondent No.2,

would be of no avail.

12. The counsel for the appellant/plaintiff has invited attention to the

order of dismissal of the application filed by the appellant for impleadment

in the probate proceedings. A perusal thereof shows that the said

application was dismissed inter alia on the ground that the

appellant/plaintiff had raised a title dispute and which could not be subject

matter of probate. However, the said observation in the said order is

erroneous, in as much as the appellant/plaintiff was not challenging the title

to the subject property of Sh. Chabban Rai but was claiming title to the said

property through one of the natural heir of Sh. Chabban Rai. The Division

Bench of this Court in Indian Associates Vs. Shivendra Bahadur Singh

104 (2003) DLT 820 has held that such a person is a necessary and a proper

party to the probate proceedings also.

13. Merely because the appellant/plaintiff suffered an order erroneous in

law and did not take any remedy thereagainst, is no ground to find error

with the impugned judgment which otherwise is found to be correct in law.

Though the order dated 17th April, 2012 allowing RFA No.131/2005 refers

to Section 44 of the Indian Evidence Act, 1872 which permits a party to a

suit or other proceeding to show that any judgment, order or decree which is

relevant and has been proved by the adverse party was obtained by fraud or

collusion and which appears to have swayed this Court in holding that the

appellant in that case was entitled to prove in the suit that the probate of

Will of Sh. Chabban Rai had been obtained by respondent No.1 by fraud

and in collusion with respondent No.2 but when the Legislature has

provided a remedy of revocation of a probate under Section 263 of the

Succession Act, the question of fraud or collusion has to be adjudicated in

the said revocation proceeding only and not by way of a separate suit. The

jurisdiction of the Civil Court to entertain such a plea would thus be

impliedly barred. Such a view is found to be in consonance with the

principle of primacy of probate proceeding.

14. However it is also a fact that the respondents No.1 & 2 in RFA

No.131/2005 agreed to setting aside of a similar judgment and to trial on

merits of the suit. It is felt that consistency in orders/judgments should be

maintained and there ought not to be two different orders/judgments in two

identical proceedings, particularly when one of the said orders is a

consensual one.

15. In this view of the matter, it is deemed appropriate to follow the order

dated 17th April, 2012 passed in RFA No.131/2005 and to set aside the

impugned judgment and decree and to remand the suit filed by the

appellant/plaintiff also for disposal in accordance with law. Though I have

hereinabove held that the jurisdiction of the civil Court, to entertain a plea

on which revocation of probate can be sought, is impliedly barred but it is

not a case of inherent lack of jurisdiction but on the principle of primacy of

probate proceedings. Else a Civil Court is competent to adjudicate validity

of Will and would thus also be competent to hold whether the validity

upheld in one proceeding is fraudulent and collusive. Thus, it is felt that the

said bar of jurisdiction of civil Court will not come in the way of the civil

Court to which the suit is being remanded trying the same.

16. The appeal is accordingly allowed in aforesaid terms; the respondents

having not contested the appeal, no order as to costs. Decree sheet be drawn

up.

17. The parties to appear before the Court of Sh. V.K. Bansal, ADJ, Tis

Hazari Courts, Delhi on 7th January, 2014. The Trial Court file

requisitioned in this Court be returned forthwith.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 20, 2013 'gsr/bs'..