Jai Singh vs Delhi Development Authority & ...
2017 Latest Caselaw 3330 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 182/2017

%                                                      17th July, 2017

JAI SINGH                                             ..... Appellant
                          Through:       Mr. Parminder S. Goindi,
                                         Advocate.
                          versus

DELHI DEVELOPMENT AUTHORITY & ANR.                    ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) impugns the concurrent

judgments of the courts below; of the trial Court dated 4.4.2016 and

the first appellate Court dated 6.5.2017; by which the courts below

have dismissed the suit seeking relief of injunction as premature. The

suit has been dismissed as premature inasmuch as the disputes in the

suit pertained to an immovable property belonging to late Smt. Jallo

Devi and with respect to the estate of Smt. Jallo Devi, Smt. Saraswati

Devi/respondent no.2 had obtained probate of a Will dated 12.1.1983

by which Smt. Jallo Devi had bequeathed her estate to the respondent

no.2/Smt. Saraswati Devi and a petition for revocation of the probate

was pending disposal before the concerned court.

2. The subject suit was filed by the appellant/plaintiff for

injunction seeking right, title and interest in the suit property bearing

plot no. 34, Sector-23B, Pocket-7, Dwarka, New Delhi and which was

allotted to late Smt. Jallo Devi on account of acquiring of land

belonging to her under the Land Acquisition Act. By the suit

appellant/plaintiff claimed that he was the son of Smt. Roopo Devi

and which Smt. Roopo Devi was the sole legal heir and child of Smt.

Jallo Devi (wrongly mentioned Smt. Lajjo Devi in para 1 of the plaint)

and that appellant/plaintiff has succeeded to the estate of late Smt.

Jallo Devi. Effectively by the suit the respondent no.1/defendant

no.1/Delhi Development Authority was sought to be restrained from

allotting the suit property to the respondent no.2/defendant no.2/Smt.

Saraswati Devi.

3. In this suit an issue arose with respect to the injunction

suit simplicitor not being maintainable, and therefore,

appellant/plaintiff filed an application for amendment of the plaint for

seeking the relief of declaration, and during the hearing of which an

application under Order VI Rule 17 CPC the suit plaint was rejected

under Order VII Rule 11 CPC holding that the suit is premature as the

respondent no.2/Smt. Saraswati Devi had obtained a probate of a Will

and a revocation petition filed by the appellant/plaintiff was pending

disposal i.e only when the revocation petition would be allowed the

appellant/plaintiff would have a right in the suit property of Smt. Jallo

Devi and hence the suit being maintainable.

4. It is settled law by virtue of Section 41 of the Indian

Evidence Act, 1872 that a judgment in a probate case is a judgment in

rem. In case a person is aggrieved by grant of probate of a Will of a

deceased testator, then such a person has a right to seek revocation of

the judgment granting probate under Section 263 of the Indian

Succession Act, 1925.

5. In the present case, the admitted fact is that the

respondent no.2 has been granted a probate of a Will to the estate of

late Smt. Jallo Devi and unless that probate is set aside, the

appellant/plaintiff cannot file a suit seeking any relief in the nature of

declaration and injunction to any right to the estate of late Smt. Jallo

Devi including the suit property. In case the petition for revocation is

dismissed and the grant of probate to the respondent no.2/Smt.

Saraswati Devi upheld then the appellant/plaintiff in any case would

not get any right to the estate of the deceased Smt. Jallo Devi. The

courts below have therefore rightly dismissed the suit as being

premature.

6. In fact I have failed to understand any prejudice to the

appellant/plaintiff by the impugned judgments inasmuch as in case the

appellant/plaintiff succeeds in revocation of the probate only then

appellant/plaintiff can file/maintain the suit seeking right to the suit

property, and that in case the appellant/plaintiff fails to set aside the

probate granted to the respondent no.2 of the Will of Smt. Jallo Devi

then in any case the appellant/plaintiff will have no right to the estate

of Smt. Jallo Devi including the suit property.

7. I put a query to the counsel for the appellant/plaintiff that

all that was required to be done in case the appellant/plaintiff

apprehends that the respondent no.1/defendant no.1/DDA will allot the

suit property to respondent no.2 is that the appellant/plaintiff should

file a judicial proceeding, and may be even an interim application in

the proceedings where revocation of probate is prayed, for

maintenance of status quo with respect to the suit property till the

issue of revocation of probate granted to Smt. Saraswati

Devi/respondent no.2 is decided, but the learned counsel for the

appellant/plaintiff insists on pressing the appeal as also for claiming

rights to the suit property which forms the estate of late Smt. Jallo

Devi.

8. Dismissed.

JULY 17, 2017/ib                            VALMIKI J. MEHTA, J