Smt. Neelam Kapoor And Ors. vs Shri Jagdish Lal Dua (Deceased) ...
2014 Latest Caselaw 3159 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No.753-756/2006

%                                                 17th July , 2014

SMT. NEELAM KAPOOR AND ORS.                             ......Petitioners
                 Through: None.

                          VERSUS

SHRI JAGDISH LAL DUA (DECEASED) THROUGH LRS
                                         ...... Respondents
                   Through: None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.            This petition under Article 227 of the Constitution of India

impugns the order of the trial court dated 27.1.2006 whereby the suit for

declaration has been stayed under Section 10 of Code of Civil Procedure,

1908 (CPC).


2.            Disputes are with respect to the property bearing no.B-IV/15,

Amar Colony, Lajpat Nagar, New Delhi.        Petitioners/plaintiffs are legal

heirs of Sh. Mohan Lal. They claim that Sh. Mohan Lal was the sole owner

of the property. On the other hand, the brother of Sh. Mohan Lal, Sh. Bhag


C.M.(M) No.753-756/2006                                          Page 1 of 3
 Chand claims to be the co-owner of the property because Sh. Bhag Chand

claims that he was gifted by his mother Smt. Assi Bai (also mother of Sh.

Mohan Lal) her interest in the suit property. Sh. Bhag Chand therefore

claimed co-ownership under the gift deed in the suit property.


3.          In   the      suit,   two   aspects   have   been   urged   by   the

petitioners/plaintiffs. One is that the Will of Sh. Bhag Chand is forged and

fabricated and the second aspect is that Sh. Bhag Chand had no right to

make the Will because Sh. Bhag Chand himself had no right, title and

interest in the suit property which was of Sh. Mohan Lal.


4.          The court below has held that since the earlier civil suit

proceedings by which Sh. Bhag Chand had sought partition and possession

of the suit property was decided in his favour by the judgment and decree

dated 16.1.1999 and which is appealed before this Court in RFA

No.242/1999 titled as Neelam Kapoor & Ors. Vs. Bhag Chand & Ors.,

hence, the issue that whether or not Sh. Bhag Chand was having a right, title

and interest in the property is subject matter of the earlier proceedings

between the same parties and therefore the suit cannot continue and has to be

stayed under Section 10 CPC.



C.M.(M) No.753-756/2006                                             Page 2 of 3
 5.           I completely agree because disputes between the parties or

under whom they or any of them claim or between their legal heirs with

respect to the same issues cannot be re-agitated once they are already

decided in an earlier civil proceedings. In the earlier civil proceedings, and

with respect to which RFA No.242/1999 is pending, the issue in the present

case is directly and substantially in issue of whether or not Sh. Mohan Lal

was the sole owner of the suit property or Sh. Bhag Chand had a right in the

same. Therefore, the trial court has rightly exercised powers under Section

10 CPC.


6.           So far as the aspect that the petitioners/plaintiffs claim that Sh.

Bhag Chand had not executed the Will is concerned, it is noted that

petitioners/plaintiffs are not the legal heirs of Sh. Bhag Chand and hence

they have no locus standi to question the Will of Sh. Bhag Chand and only

legal heirs of Sh. Bhag Chand would have a right to question the validity of

the Will.


7.           In view of the above, there is no merit in the petition and the

same is therefore dismissed, leaving the parties to bear their own costs.


JULY 17, 2014                                 VALMIKI J. MEHTA, J.

Ne