Adarsh Kumari Oberoi vs Adarsh Kumar Oberoi & Ors
2014 Latest Caselaw 6102 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Order delivered on: 24th November, 2014


+                      TR.P.(C) 3/2014 & I.A. No. 7984/2014


       ADARSH KUMARI OBEROI                    .....Petitioner
                   Through Mr.Atul Bandhu Adv.

                            versus

       ADARSH KUMAR OBEROI & ORS          .....Respondents
                   Through Mr.Varun Kumar, Adv. for
                            R-7.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The present petition has been filed by the petitioner under Section 24 CPC seeking transfer and/or stay of trial proceedings of the Civil Suit No. 230/11/11 filed for permanent injunction and cancellation of sale deed pending before Additional District Judge, Delhi by respondent No.1 and consolidate the same with Test Case No.45/2011 pending before this Court.

2. For the purpose of deciding the present petition, it is pertinent to discuss the family tree of the parties to the petition, which is as under:-

Late Sh. Hari Chand Grandfather of the parties | | | Girdhari Lal Oberoi Manohar Lal Oberoi | | | -------------------------------------------------------------------------

                  |               |                 |                 |               |           |
                  |       Vijay Kumar Praveen Kumar Shashi                        Sunita Anita
                  |        (Son)               (Son)                         (Daughters)
                    |                |
                    |        ------------------------------------------------
                    |                |              |               |
                    |        Adarsh Oberoi        Pankaj         Bhavuk
                    |          (Widow)            (Son)          (Son)
                    |        Petitioner
                    |
                    |
      |                   |                 |                    |                      |
Raj Kumari          Adarsh Kumar         Jugal Kishore        Ashok Kumar         Pramod Kumar

3. Brief facts of the case are that the petitioner is the beneficiary of the Will executed by Late Shri Girdhari Lal Oberoi. Before the death of Shri Girdhari Lal Oberoi who expired on 9th September, 1987, he bequeathed the suit property i.e. house bearing No. 8 Road No.20, East Punjabi Bagh, Delhi by way of a registered Will dated 15th June, 1986 and in accordance with the Will the testator bequeathed as below:-

(i) ½ of the suit property (left side portion) will be given to his brother, Manohar Lal, who is already living there.

(ii) The right side portion of the suit property (consisting of ground floor) will be given to his son, Adarsh Kumar who will be responsible for payment of instalment of loan taken by him from Delhi Administration for construction of this property.

(iii) The right side portion (first floor) of the suit property; the front room will given to his son, Shri Jugal Kishor and back side room and the adjoining kitchen shall devolve in his grandson Nomesh, son of Pramod Kumar.

4. In the said Probate Case, the petitioner has stated that after the death of Shri Girdhari Lal Oberoi, as per his Will, the left side portion devolved upon Shri Manohar Lal Oberoi. The respondent No.1 to 4 had given their 'no objection', acknowledging the fact of the Will by their father Late Sh. Girdhari Lal Oberoi, to the mutation of the suit property before the authorities in the year 1997. Shri Manohar Lal Oberoi further executed a Will dated 30th October, 1996 whereby he bequeathed his share in the suit property in favour of his sons i.e. Late Sh. Vijay Kumar and Sh. Praveen Kumar: as this 'Will' by Late Sh. Manohar Lal Oberoi is not under probate, therefore the same is not being put-forth.

5. It is further stated that after the death of Shri Vijay Kumar, the petitioner inherited his share i.e. Ground floor and third floor along with her sons namely, Pankaj Oberoi and Bhavuk Oberoi who have relinquished their shares by a registered deed in favour of the petitioner. Thereafter the petitioner sold/transferred her rights (along with the rights of her sons) to respondent No.7 by a registered sale deed, who has been living and using the suit property w.e.f. 30th October, 2009.

6. It is alleged that respondent No.1 has no right in the suit property. The respondent No.1 has malafidely launched the proceedings of perpetual injunction, pending before Civil Judge, Tis Hazari, Delhi & for 'cancellation of sale deed to respondent No.7,

pending before Additional District Judge, Delhi without any basis with the sole ulterior objective of harassing the petitioner. Earlier also there have been transactions of sale of the floors in the suit property which have never been objected by the respondent No.1 which reflect his malafide. It is further alleged that issues No. 8 and 9 in the suit No.230/11/11 is the same as issue no.1 and 5 in the probate case. The petitioner has already called the attesting witness in the probate case, who has been duly cross examined by the respondents and now only the formal official witnesses from the office of the Sub- Registrar/MCD and BSES is to be testified.

Along with the petition, the petitioner has also filed an application being I.A.No. 7984/2014 under Section 10 read with Section 151 CPC for stay of suit No.230/11/11 pending before Additional District Judge.

7. In the reply filed on behalf of the respondent Nos. 1 to 5, it is stated that the two proceedings are of different nature, one is a civil suit pending in a civil court having jurisdiction to try and entertain the suit and another is a probate petition and not a civil suit and cannot be clubbed with a civil suit.

8. In the reply filed on behalf of the respondent No. 7, it is stated that respondent No.7 is the lawful owner of the third floor, left side, admeasuring 140 sq. mtrs, having purchased the same (second floor roof with roof rights) from the petitioner on 30th October, 2009 by registered sale deed. After purchasing the roof rights, the respondent No.7 has built up four rooms. It is stated that at the time of sale and during the construction, none of the parties raised any objection regarding the ownership rights of respondent No.7.

It is further stated that the plaintiff filed the probate case before this Court and the issue framed in it which affects the rights of the respondent No.7 is as under:

"Whether the respondent No.8 (defendant No.7 herein) is a bonafide purchaser of the second floor left side admeasuring 140 sq. meters from the petitioner on 30.10.2009 by a registered sale deed? - OPR8"

After the completion of third floor by respondent No.7, the respondent No.1 in connivance with petitioner and other respondents filed the suit before Tis Hazari Court for permanent injunction against respondent No.7, thereby seeking cancellation of sale deed dated 30th October, 2009. The issues framed in the said suit are also same which are as under:-

"Whether the defendant No.1 (petitioner herein) did not have any right to sell the roof of the second floor with roof right of left side portion of property in question in favour of the defendant No.2? If so, its effect? OPP (defendant No.1 herein)

Whether the sale deed dated 30th October, 2009 executed by the defendant No.1 in favour of the defendant No.2 in respect of the portion specified therein is null and void? OPP (defendant No.1 herein)."

9. I have heard the learned counsel for the parties. The following are the judgments necessary to be relied upon in order to decide the present petition:-

(i) Pawan Kumar Chadha vs. Anil Kumar Chadha and Anr., in CS (OS) No. 1339/2008 decided on 15th July, 2009.

(ii) Nirmala Devi vs. Arun Kumar Gupta, (2005) 12 SCC

(iii) Virender Gupta vs. Nitender Gupta & Ors. 31 (1987) DLT 406.

(iv) Balbir Singh Wasu vs. Lakhbir Singh, (2005) 12 SCC

v) Dr. (Mrs.) Pramila Srivastava vs. Smt. Asha Srivastava & Ors., 2014 (140) DRJ 56.

10. It was observed by the Courts in the above said decisions that the decision in the probate proceedings on the question of proof of the Will have a direct impact on the suit and no prejudice would be caused to the other side and in fact it would curtail the time of Court, costs of the parties as well as avoid multiplicity of proceedings and the other disputes between the parties if the proceedings in the suit and probate are clubbed. There is no legal bar to pass such orders.

11. It is settled law that the power to pass the order for transfer of matters has to be exercised fairly to meet the ends of justice. Such orders are normally passed if it saves the parties from multiplicity of proceedings and if the issues in the matters are overlapped. No doubt, two proceedings in similar nature can be clubbed together in view of the decisions referred above.

12. In view of the above, in the present case, the petitioner has been able to make out a case for the grant of prayer made in the petition. Thus, the prayer made in the present transfer petition is allowed.

13. The Civil Suit No. 230/11/11 pending in the Court of Smt.Sujata Kohli, Additional District Judge, Delhi is transferred to this Court and

the same is consolidated with Test Case No. 45/2011 pending before this Court.

14. The petition is accordingly disposed of. Pending application also stands disposed of.

(MANMOHAN SINGH) JUDGE NOVEMBER 24, 2014