Smt Manju Anand & Anr vs Smt Geeta Chopra & Ors
2015 Latest Caselaw 9026 Del

$~25.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 3315/2015 and I.A. 23296-97/2015
      SMT MANJU ANAND & ANR                      ..... Plaintiffs
                    Through: Mr. Sunil Agarwal, Advocate

                        versus

      SMT GEETA CHOPRA & ORS                           ..... Defendants
                    Through: None

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI
                    ORDER

% 04.11.2015

1. The present suit has been instituted by two plaintiffs against

their sister (defendant no. 1) and deceased brother's widow and

children [defendant no. 2 (a) to (c)], praying inter alia for a decree of

partition in respect of premises No.E-29, Rajouri Garden, New Delhi.

Further, the plaintiffs seek a decree of declaration for cancellation of

the mutation letter dated 22.04.2013, issued by the civic authorities

mutating the suit premises in favour of the defendants No.2 (a) and

(b) and for declaring the Sale Deed dated 24.03.2015, executed by

the defendants No.2(a) and (b) in favour of defendant No.3, as null

and void.

2. Brief facts of the case as stated in the plaint are that Shri Mohan

Lal Sahni, father of the plaintiff, defendant no. 1 and Lt. Jitender Sahni

was the owner of the suit premises, which has been described as his

"self-acquired property". Sh. M.L. Sahni had expired at New Delhi on

21.06.1995, leaving behind four class I heirs, i.e., three daughters,

namely, the plaintiffs No.1 and 2, defendant No.1 and Shri Jitender

Sahni, [predecessor-in-title of the defendants No.2 (a) to (c)]. Sh.

M.L. Sahni's wife had predeceased her husband, having expired on

21.6.1979. Prior to his demise, Shri M. L. Sahni had executed a will

dated 17.12.1993, whereunder he had bequeathed the suit premises

in favour of his daughter-in-law and grandson, i.e., defendants No.2

(a) and (b) while authorizing his son, Shri Jitender Sahni to act as a

caretaker, till the defendant no. 2(b) would attain majority. Apart from

the suit premises, the deceased had bequeathed another immovable

property in favour of his son, and all his movable assets jointly in

favour of his son and daughter-in-law [defendant no. 2(a)]. It has

been specifically stated by the testator in the captioned will that his

three daughters, who were already married, had been well provided

for by way of dowry given to them at the time of performing their

marriages and he did propose to bequeath anything else to them.

3. Based on the aforesaid will, Shri Jitender Sahni and his wife,

[defendant No.2(a)] had filed a joint petition under Section 372 of the

Indian Succession Act in the trial court for grant of a succession

certificate in respect of the debts and securities of late Shri Mohan Lal

Sahni, registered as Petition No.831/1995. Initially, the plaintiffs

herein, (impleaded as respondent no. 2 and 4 there) and the

defendant no. 1 (impleaded as respondent No.3 there) had given their

NOC for grant of a succession certificate in favour of the petitioners

therein. Subsequently, the plaintiffs did a flip flop and made a

statement before the concerned court that they wished to withdraw

their consent. Thereafter, the plaintiffs once again turned turtle and

moved an application under Section 151 CPC on 12.10.2001, stating

inter alia that the earlier statement made by them wanting to

withdraw their NOC, was on account of some misunderstanding and

now that the said misunderstanding had been clarified, they wished to

abide by the no objection given by them for grant of a succession

certificate in favour of their brother and sister-in-law.

4. A perusal of the said application filed by the plaintiffs in the

petition for grant of a succession certificate and enclosed with the

documents filed with the plaint reveals that they had categorically

stated in the supporting affidavits that they were withdrawing all the

objections raised by them and had given their consent to grant of a

succession certificate in favour of their brother and sister-in-law, "of

their own free will, without any force, threat and undue influence."

Further, the plaintiffs had confirmed in para 6 of the application that

their father had executed the will dated 17.12.1993 during his lifetime

and gone on to state that it was a genuine document and could be

acted upon. Thereafter, the statement of both the plaintiffs was

recorded separately by the learned Administrative Civil Judge on

15.10.2001, and they had reiterated before the Court that they had no

objection to grant of a succession certificate in favour of their brother

and sister-in-law. They had also admitted to the execution of the will

dated 17.12.1993 by their father and sought permission to withdraw

the objections filed by them initially. After recording their statements,

the objections filed by the plaintiffs were dismissed as withdrawn.

Subsequently, vide order dated 09.07.2002, a succession certificate

was granted in favour of the brother and sister-in-law of the plaintiffs

and the defendant No.1. This ought to have put a lid on the litigation

between family members, but that is not so.

5. Shri Jitender Sahni brother of the plaintiffs and defendant no. 1

expired on 10.05.2003 and he was survived by his widow and two

children, the defendants No.2(a) to (c). For twelve long years after his

demise, the plaintiffs kept quiet and did not claim any share in the suit

premises and nor did they initiate any legal proceedings against the

legal heirs of their brother for claiming a share therein. The present

suit for declaration and partition has been instituted by the plaintiffs at

a stage where the defendants No.2(a) and (b) have executed a Sale

Deed in respect of the suit premises in favour of defendant No.3. For

justifying their claim for seeking partition of the suit premises and to

overcome the no-objection given by them in the captioned probate

petition, the plaintiffs claim that the said no objection was only to

enable their brother and sister-in-law to get the money lying in his

bank account, but this did not mean that they had not given up their

right in their father's property.

6. The plaintiffs have further averred in the plaint that even if they

had admitted to the contents of their father's will, defendant no. 2 (a)

- (c) ought to have obtained a probate from the competent court or

got a Release Deed executed by all the other legal heirs of Late Sh.

M.L. Sahni in respect of the suit premises. It is thus canvassed on

behalf of the plaintiffs that the defendant No. 2(a) to (c) could not

have got the suit premises mutated in their names in the records of

the M.C.D. or proceeded to dispose of the same by executing a Sale

Deed in favour of the defendant No.3 without following the due

process of law. The plaintiffs assert that they had never granted any

no objection with regard to the suit premises and therefore, they are

entitled to claim a share therein as co-owners of a joint family

property.

7. Before proceeding further, it may be relevant to note here that

in para 9 of the plaint, the plaintiffs have specifically stated that the

suit premises is a "self-acquired property" of late Shri M.L. Sahni.

However, in para 18 of the plaint, they have sought to describe the

very same premises as a "joint family property" and themselves as

"coparceners/co-owners". However, the plaintiffs have not laid any

foundation in the plaint to demonstrate the circumstances in which the

suit premises can be treated as a joint family property when the plaint

is bereft of any material particulars to the effect that there ever

existed a Hindu undivided family with Sh. M.L. Sahni as its Karta and if

so, then who were the coparceners of the HUF. In this context, learned

counsel for the plaintiffs has been requested to clarify from the

pleadings in the suit as to how can the suit premises be treated as a

joint Hindu family property. It has also been enquired from learned

counsel for the plaintiffs that in view of the categorical admissions

made by the plaintiffs with regard to execution of the will by their

father and its contents in judicial proceedings arising out of the

captioned probate petition, why should the present suit not be

dismissed under Order VII Rule 11 CPC as being devoid of cause of

action and on account of absence of locus standi in the plaintiffs to

institute the same.

8. Counsel for the plaintiffs has no explanation to offer as to how

and why has the suit premises been described as a "joint Hindu family

property" at one place in the plaint, particularly, in the light of the

categorical averments in para 9 of the plaint that the said premises

was a self-acquired property of the deceased father of the plaintiffs.

The only lame explanation sought to be offered for instituting the

present suit is that the no objection given by the plaintiffs for grant of

a succession certificate was in respect of the debts and securities

owned by the father, which cannot act as a bar on them for instituting

a suit for partition for the reason that the said no objection was not

given in respect of his immovable assets.

9. The aforesaid submission files in the teeth of the categorical

admissions made by the plaintiffs in the application filed by them

before the Administrative Civil Judge in the proceedings for grant of a

succession certificate, where they had admitted to the genuineness of

their father's will and had unequivocally withdrawn the objections filed

by them to grant of a succession certificate in favour of their brother

and sister-in-law. Having waived their right to challenge the will of

their father, and having categorically stated that they had given their

no objection out of their own free will, without any force, threat and

undue influence and had expressed their desire to withdraw their

objections filed earlier, the plaintiffs are barred from reneging from

their statements recorded before the Administrative Civil Judge on

15.10.2001.

10. In the light of such unambiguous and explicit admissions,

learned counsel for the plaintiffs cannot be heard to state that the no-

objection given by the plaintiffs was a qualified one and was given only

in respect of a part of the will which related to the securities of the

deceased and not in respect of his immovable properties. The plaintiffs

had not reserved their right to claim a share in the immovable

properties of their father at any point in time. Having unequivocally

accepted the will and its contents as a whole and waived their

objections to the same, no such segregation of rights in the movable

and immovable assets of the deceased can be permitted, as sought to

be urged by the plaintiffs.

11. Even otherwise, it has been held in a host of decisions that it is

not mandatory for parties to obtain a probate in respect of an

immovable property situated in the NCT of Delhi, before acting on the

will. In this context, reference may be made to the judgments in the

case of Behari Lal Ram Charan vs. Karam Chand Sahni & Ors. reported

as AIR 1968 P& H 108, Sardar Prithipal Singh Sabharwal vs. Jagjit

Singh Sabharwal reported as 1996 III AD (Delhi) 281, Murlidhar

Dua vs. Shashi Mohan reported as 68(1997) DLT 284, Santosh

Kakkar vs. Ram Prasad reported as 71(1998) DLT 147, O.P. Kohli

vs. Ravi Prakash Kohli & Ors. reported as MANU/DE/1247/2001,

Sh. Rajan Suri and Anr. Vs. The State and Anr. reported as AIR 2006

Delhi 148 and Kanchan Batheja vs. Pramod Batheja & Ors. reported

as MANU/DE/0829/2015. In the case of Mrs. Winifred Nora

Theophilus vs. Mr. Lila Deane and Ors. reported as AIR 2002 Delhi 6,

it was held as below:-

"11. On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to that Lt. Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immoveable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the leaned counsel for the defendants decide. Therefore there is no problem in arriving at the conclusion that if the will is made in Delhi relating to immoveable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required." (emphasis added)

12. Therefore, it cannot be urged by the plaintiffs that Sh. J.S.

Sahni, brother of the plaintiffs and the defendant No.1 or his legal

heirs were ever under any legal obligation to approach a competent

Court of law for seeking probate of the will of Sh. M.L. Sahni in respect

of the suit premises before getting it mutated; nor were the

defendants No.2(a) and (b) required to obtain any Release Deed from

the other legal heirs of Shri M.L. Sahni. Once they had waived their

objections to the will of their father as recorded in the judicial

proceedings for grant of a succession certificate, the plaintiffs are

estopped from raising a plea to the contrary in the suit.

13. In the given facts and circumstances of the case, it is apparent

that Shri Jitender Sahni and his wife were well entitled in law to deal

with the suit premises, subject matter of the will dated 17.12.1993

executed by Sh. M.L. Sahni and the defendants No.2(a) and (b), who

were the beneficiaries of the suit premises under the captioned will,

were equally entitled to deal with the same as they would deem fit in

terms of the bequest that included a right to sell the suit premises,

which they have done by virtue of the Sale Deed dated 24.03.2015,

executed in favour of the defendant no.3.

14. Having regard to the fact that the plaintiffs had waived their no

objection and admitted to the execution of the will of Shri M.L. Sahni

in judicial proceedings arising out of the petition filed by Sh. J.S. Sahni

and the defendant no. 2(a) for grant of a succession certificate that

had culminated in the order dated 09.07.2002, they are estopped in

law from questioning the inheritance flowing under the said will. This is

evidently a case, like many others of the same ilk, where conscious of

the spiralling value of real estate in Delhi, the plaintiffs have decided

that they too want their pound of flesh and have thus instituted the

present vexatious suit against the widow and children of their

deceased brother, after the passage of two decades from the date of

their father's death and twelve years after their brother's death,

apparently in the fond hope that once the defendants are dragged into

litigation, they would be compelled to settle the dispute by paying a

substantial amount to the plaintiffs, only for the sake of buying peace

and lifting any lingering cloud on the title of the suit premises, sought

to be cast by the plaintiffs.

15. Once the plaintiffs have admitted to the execution of the will

dated 17.12.1993 by their deceased father and to the fact that the suit

premises was his self-acquired property, then there does not exist any

cause of action in their favour to institute the present suit and nor do

they have the locus standi to do so. For all the aforesaid reasons, this

Court is not inclined to entertain the present suit, which is accordingly

dismissed as not maintainable under Order VII Rule 11 CPC.

16. The suit is additionally held to be patently vexatious,

misconceived and nothing but a deliberate attempt on the part of the

plaintiffs to reopen issues that have long since attained finality. Guided

by the decision of the Supreme Court in the case of T. Arivandandam

vs. T.V. Satyapal and Anr. reported as 1977 (4) SCC 467, where it

had been held that if on a meaningful, and not formal reading of the

plaint, it is found to be manifestly vexatious and meritless, in the

sense of not disclosing a right to sue, the Court ought to exercise its

powers under Order VII, Rule 11 CPC, this Court deems it fit to

dismiss the suit alongwith the pending applications as a gross abuse of

the process of law with costs of Rs.20,000/- imposed on the plaintiffs,

to be deposited with the Delhi High Court Legal Services Committee

within four weeks and proof of deposit placed on record.

HIMA KOHLI, J NOVEMBER 04, 2015 rkb/ap