Delhi High Court
Mrs. Renu Mathur & Anr vs Mrs. Uma Narula & Ors on 4 July, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1133/2015
MRS. RENU MATHUR & ANR ..... Plaintiffs
Through Ms. Archana Sharma with
Mr. Divakar Upadhyay, Advocates
versus
MRS. UMA NARULA & ORS ..... Defendants
Through Ms. Roopa Paul, Advocates for
D-1.
Mr. Praveen Swarup, Advocate for
D-2.
Mr. Sunil Choudhary, Advocate for
legal heirs of D-3.
Mr. Jugal Wadhwa with Mr. Naresh
Charnal and Mr. Rishabh Wadhwa,
Advocates for D-5 to 8.
Mr. Bharat Deepak with Mr. Tarun
Kapoor, Advocates for D-9 to 12.
Reserved on: 10th May, 2018
% Date of Decision: 4th July, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
1. Present suit has been filed for partition of property bearing No.
D-39, Hauz Khas, New Delhi-110015 admeasuring 273 sq.yards (207 sq.
mtrs.) [hereinafter referred to as "suit property"] owned by late
grandmother of the plaintiffs. Plaintiffs jointly seek 1/6th share in the suit
property.
2. On the oral prayer of learned counsel for legal heirs of defendant
No.3, they are impleaded as defendants and the plaintiffs are directed to file
an amended memo of parties within a period of one week.
3. The parties are first cousins as well as maternal uncles and aunt of
the plaintiffs. Defendant No.2 (a daughter of deceased owner) and legal
heirs of defendant No.3 (another daughter of deceased owner) support the
plaintiffs. Defendants No.5 to 8 are legal heirs of late Mr. Yoginder Kumar
Mehra, son of the deceased owner. Defendants No.9 to 12 are the legal
heirs of late Mr. Ashok Mehra, another son of the deceased owner.
4. Learned counsel for plaintiffs as well as defendant No.2 and legal
heirs of defendant No.3 prayed for a preliminary decree of partition
forthwith as, according to them, the defences of defendants No.1, 5 to 8 and
9 to 12 namely of limitation and of a Will having been executed by the
deceased owner were untenable in law.
5. The counsel for plaintiffs as well as defendant No.2 and legal heirs of
defendant No.3 pointed out that late Yoginder Kumar Mehra, predecessor-
in-interest of defendants No.5 to 8 and elder son of deceased owner, had
filed a Probate Case No.35 of 1988 with regard to the alleged Will dated
17th October, 1978 executed by the owner, which was dismissed vide order
dated 12th February, 2001, by a Coordinate Bench of this Court. They stated
that the order dated 12th February, 2001 was an order "in rem" and the said
order had become final as the same had not been challenged. Therefore,
according to them, the defendants No.1, 5 to 8 and 9 to 12 could not rely
upon the Will dated 17th October, 1978.
6. However, Ms. Roopa Paul, learned counsel for defendant No.1, Mr.
Jugal Wadhwa, learned counsel for defendants No.5 to 8 and Mr. Bharat
Deepak, learned counsel for defendants No.9 to 12 submitted that the
present suit was barred by limitation as it had been filed twenty-seven years
after the death of the owner and fourteen years after the probate petition
filed by the predecessor-in-interest of defendants No.5 to 8 had been
dismissed. Learned counsel for defendants No.1, 5 to 8 and 9 to 12
submitted that a suit for partition is governed by Article 113 of the
Limitation Act and the limitation period prescribed is three years. They
further submitted that the limitation would start from the date the right to
sue had accrued, i.e., when party had noticed that its right had been denied.
According to them, the right to sue if any, accrued in favour of Smt. Chand
Mathur, mother of the plaintiffs, as early as 1988 when the notice of the
probate petition had been served upon her and at best on 12th February,
2001, when the probate petition had been dismissed. They submitted that
however Smt. Chand Mathur neither claimed any right in the suit property,
nor contested the probate petition nor filed any counter claim/suit for
partition or possession within the statutory limitation period. The relief of
partition claimed by the plaintiffs was thus, according to them, barred by
limitation.
7. In support of their submissions, they relied upon the judgment of this
Court in Gulab Chaudhary Vs. Govinder Singh Dahiya & Anr., 189
(2012) DLT 236 wherein it has been held as under:-
"8. In my opinion, the suit which was filed on 2.11.2006 seeking
rights in the suit property for declaration and injunction was clearly
barred by time inasmuch as form of the suit cannot conceal the real
nature of the suit, and which was really a suit for partition and
possession of the property which belonged to the father. A suit for
possession of an immovable property is covered by Article 65 of
the Limitation Act, 1963 and as per which, the suit for recovery of an
immovable property has to be filed within 12 years of the date the
possession of the property becomes adverse to that of the
appellant/plaintiff. In the present case, the suit was ex facie barred
by limitation, and in fact need not even have gone for trial
inasmuch as the appellant/plaintiff in the plaint itself admits that the
respondent No1/defendant No.1 immediately after the death of the
father, Sh. Bhagwan Singh in the year 1987 proclaimed himself to be
the owner of the suit property on the basis of a Will. This admission
is made by the appellant/plaintiff in para 4 of the plaint which reads
as under:-
"4. That after the death of the father of the plaintiff, the
plaintiff was told by the defendant No.1 that their late father
had made a „WILL‟ of the above said properties in the name of
the defendant No.1. The plaintiff believing the words of the
defendant no.1 did not ask for the „WILL‟ left behind or any
share in the properties of their late father, assuming that the
defendant No.1 will take probate or letter of administration
regarding the properties and then the plaintiff will file her
objections."
9. The aforesaid para 4 of the plaint shows that in and around the
year 1987 itself the appellant/plaintiff was put to notice of the
ownership of the defendant No.1/respondent No.1. The fact that
ownership was claimed on the basis of the Will, is the reason for
claiming the ownership, however, the claim of ownership, i.e. a claim
adverse to the appellant/plaintiff was thus known to the
appellant/plaintiff in the year 1987 itself. A suit for an immovable
property thus ought to have been filed within 12 years of 1987 i.e. at
the very maximum by the year 1999, however, the subject suit
admittedly was filed only on 2.11.2006, i.e. after 19 years. No doubt
remains of the appellant/plaintiff being aware of the claim of
ownership of the suit property inasmuch as there are depositions in
the affidavits by way of evidence filed on behalf of the defendant
No.1/respondent No.1 as DW1 and sister of the parties, Smt. Kamla
Chaudhary as DW2 which state that all the legal heirs of late Sh.
Bhagwan Singh, including the appellant/plaintiff were made aware of
the execution of the registered Will of the father.......
10....... This mutation in the property tax records took place right in
the year 1989 or so, and therefore there was proclamation to the
world at large that the defendant No.1/respondent No.1 was claiming
exclusive rights in the suit property. I also note that none of the other
two sisters have supported the appellant/plaintiff. In my opinion,
therefore the suit was clearly barred by limitation as it was filed
more than 12 years after the claim of ownership was made by the
respondent No.1/defendant No.1 of the suit property. After the expiry
of the period of limitation, the respondent No.1/defendant No.1
became complete owner of the property by virtue of law of
prescription contained in Section 27 of the Limitation Act, 1963......."
8. Learned counsel for defendants No.1, 5 to 8 and 9 to 12 submitted
that in Delhi, probate of a Will is not required. According to them, an un-
probated Will can be admitted in evidence for collateral purposes in any
other proceedings apart from a probate proceeding. In support of their
submission, they relied upon following judgments :-
A) Commissioner, Jalandhar Division and Others Vs. Mohan
Krishan Abrol and Another, AIR 2004 SC 2060.
B) M/s. Behari Lal Ram Charan Vs. Karam Chand Sahni and
Others, AIR 1968 P&H 108.
C) Chetan Dayal Vs. Mrs. Aruna Malhotra & Ors., 2012 SCC
OnLine Del 4197.
D) Clarence Pais and Others Vs. Union of India, AIR 2001 SC
1151.
9. Learned counsel for defendants No.1, 5 to 8 and 9 to 12 further
submitted that the dismissal of the probate petition, being Probate Case 35
of 1988 did not amount to admission of ownership of the plaintiffs. They
submitted that the questions of title are not decided in probate proceedings.
In support of their submission, they relied upon the judgment of the Apex
Court in Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors., AIR
2008 SC 306 and Joginder Pal Vs. Indian Red Cross Society and Others,
(2000) 8 SCC 143 wherein it has been held as under:-
A) Kanwarjit Singh Dhillon (supra)
"10......It was, therefore, not competent for the Probate Court to
determine whether late S. Kirpal Singh had or had not the authority
to dispose of the suit properties which he purported to have
bequeathed by his will. The Probate Court is also not competent to
determine the question of title to the suit properties nor will it go into
the question whether the suit properties bequeathed by the will were
joint ancestral properties or acquired properties of the testator."
B) Joginder Pal (supra)
"15...........These sections make it clear that the proceedings for grant
of succession certificate are summary in nature and that no rights
are finally decided in such proceedings. Section 387 puts the matter
beyond any doubt. It categorically provides that no decision under
Part X upon any question of right between the parties shall be held to
bar the trial of the same question in any suit or any other proceeding
between the same parties. Thus Section 387 permits the filing of a
suit or other proceeding even though a succession certificate might
have been granted."
10. Learned counsel for defendants No.1, 5 to 8 and 9 to 12 further
submitted that the plaintiffs have no locus standi and/or cause of action to
file the present suit as they had given „No objection certificates‟ to
Municipal Corporation of Delhi for mutation of the names of defendants
No.1 and 5 to 8 in respect to the property in question on 29 th January, 1983.
In support of their submissions, they relied upon a judgment of this Court
in Smt. Manju Anand & Anr. Vs. Smt. Geeta Chopra & Ors., 2016 (1)
HLR 609 wherein it has been held as under:-
"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.
xxxx xxxx xxxx xxxx
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."
11. Learned counsel for defendants No.1, 5 to 8 and 9 to 12 further
contended that the suit property had to be divided in accordance with the
last Will dated 17th October, 1978 and the plaintiffs as well as daughters of
late Smt. Surinder Kanta Mehra were only entitled to second floor of the
suit property.
12. In any event, learned counsel for defendants No.1, 5 to 8 and 9 to 12
submitted that there was no judicial finding with regard to Codicil dated
17th October, 1987 and, therefore no preliminary decree could be passed
without a trial.
13. Learned counsel for the plaintiffs as well as defendants No.2 and 3
stated that the present suit for partition was not barred by limitation. They
stated that the possession of the parties was never adverse to that of the
plaintiffs till 27th March, 2013. They relied upon a judgment of this Court
in Sri Kishan Vs. Ram Kishan, 2009 (159) DLT 470.
14. Learned counsel for the plaintiffs, defendants No.2 and 3 further
submitted that the defendant No.1's reliance on Codicil dated 17th October,
1987 was untenable in law as the Codicil dated 17th October, 1987 clearly
stated that it was in continuation of Will dated 17 th October, 1978. They
pointed out that the codicil was also referred to by defendant No.1 in
Probate Case No.35 of 1988 and as the same had been denied by the
defendant No.2, therefore, the order dated 12th February, 2001 referred to
the Codicil as well.
15. Learned counsel for the plaintiffs, defendants No.2 and 3 submitted
that „No Objection Certificate‟ given to the Municipal Corporation of
Delhi for mutation of the names of the defendants No.1 and 5 to 8 had been
obtained from them on misrepresentation of facts. They submitted that the
'No Objection Certificates', if any, were issued under a bonafide belief that
there was a legal and valid Will in favour of the beneficiaries therein.
16. Learned counsel for the plaintiffs, defendants No.2 and 3 pointed out
that upon an application of the defendant No.2, the South Zone of
Municipal Corporation of Delhi had issued an order dated 06 th January,
2015, whereby the mutation order had been withdrawn and cancelled.
They emphasized that the property no.D-39, Hauz Khas, New Delhi-
110015 had been restored back in the name of the original allottee/owner
till finalization of ownership title.
17. Having heard learned counsel for the parties, this Court is of the
opinion that the ownership of the suit property by Smt. Surinder Kanta
Mehra @ Sansar Chand Mehra as well as the relationship / status of parties
is not disputed.
18. It is admitted position that if Smt. Surinder Kanta Mehra @ Sansar
Chand Mehra has died intestate then the plaintiffs are entitled to a
preliminary decree forthwith.
19. Undoubtedly, probate of a Will in Delhi is not required and
questions of title are not decided in probate proceedings. This Court is also
of the opinion that it is doubtful whether all orders refusing probate of a
Will are a judgment in rem. While in some cases the order may operate as a
judgment in rem, in others it may clearly not be a conclusive adjudication
in rem. For instance, if an application of probate by the executor had been
dismissed for default, that fact itself could not debar an application by any
other person claiming an interest under the Will or by the executor himself.
In other words, the judgment of a Court by which probate was refused
would not necessarily operate as a judgment in rem in the same way as a
judgment by which probate was granted.
20. However, in the present case Late Yoginder Kumar Mehra, the
predecessor-in-interest of defendants No. 5 to 8, had filed a probate case
being Probate Case No. 35/1988 before this Court seeking probate of
alleged last Will dated 17th October, 1978 executed by Smt. Surinder Kanta
Mehra @ Sansar Chand Mehra. One of the issues framed in the said
probate case was as under:-
"1. Whether the writing dated 17th October 1978 is the last Will and
testament of deceased Smt. Sansar Chand Mehra @ Surinder Kanta
Mehra?"
21. The finding of this Court on the said issue was as under:-
"In Ex. PW1/2 he has been named as an executor of Will. It may be
noticed that neither the alleged original Will dated 17th October
1978 has been produced nor affidavits of any of the two said attesting
witnesses thereto have been filed. In the absence thereof the
petitioner must be held to have failed to prove that said writing Ex.
PW1/2 is the last Will of deceased Smt. Sansar Chand Mehra @
Surinder Kanta Mehra. Issue is answered in negative."
22. Even in the present suit for partition, neither the original Will dated
17th October, 1978 nor an affidavit of either of the two attesting witnesses
of the said Will has been filed.
23. Keeping in view the aforesaid, the defence of the defendants No.1, 5
to 12 that the suit property had to be divided in accordance with the Will
dated 17th October, 1978, is untenable in law.
24. The present suit is not barred by limitation as the right to demand
partition and to seek separate possession are recurring rights. Even if the
plaintiffs or their predecessors-in-interest had not enforced their rights to
partition, then they would be deemed to have chosen to continue the
ownership in common for some more time only. The substantive right of
the plaintiffs as co-owners to seek partition of the joint suit property would
not stand extinguished by their predecessor's failure or their delay in
seeking partition. A coordinate Bench in Sri Kishan Vs. Shri Ram Kishan
& Ors. (supra) has held as under:-
"16. It is apparent from the record of the proceedings in suit No.
64 of 1994 that the plaintiff had withdrawn the suit without
seeking liberty to institute a fresh suit on the same cause of
action nor had court given such a liberty while dismissing the
matter as withdrawn. Order XXIII Rule 1 of the Code of Civil
Procedure lays down that where a party withdraws a suit
without seeking permission to bring a fresh suit on the same
cause of action or abandons a part of the claim or where the
court does not grant such a liberty, he is precluded from
claiming the abandoned relief or from bringing a fresh suit on
the same cause of action. So, on the face value there appears to
be some merit in the contention of the defendants. However it is
trite law that the general proposition laid down in Rule 1 of
Order XXIII does not apply to a suit for partition and a suit for
redemption of mortgage. The right to demand partition and
separate possession is a recurring right. Therefore the cause of
action in the subsequent suit for partition will be different from
cause of action in the earlier suit which was withdrawn or
abandoned and consequently Order XXIII Rule 1 sub-rule 4 will
have no application.
17. The right to enforce partition is a legal incident of a co-
ownership and as long as such co-ownership subsists, the right
to seek partition continues. The mere fact that a co-owner files a
suit for partition and then abandons or withdraws it will not
deprive him of his right to seek partition of the joint property.
The substantive right of a co-owner to seek partition of the joint
property will not be extinguished by the provisions of Order
XXIII Rule 1. If the plaintiff brings a suit for partition and then,
for any reason, decides not to enforce the right immediately and
withdraws the suit, then he would be deemed to have chosen to
continue the ownership in common for some time more till he
would find it necessary again to seek its termination. A suit
which is barred by withdrawal of the claim under Order XXIII
Rule 1(3) is one which is based on the same cause of action but
a suit for partition and separate possession of the share which
may be brought subsequently will be on a cause of action arising
upon a demand subsequently made and refused [See Radhe
Lal v. Mulchand, AIR (11) 1924 ALL 905].
18. A Division Bench of this Court in Jai Devi & Ors. v. Jodhi
Ram & Ors., 6 (1970) DLT 549 has held that the bar of second
suit contemplated in Order XXIII, Rule 1(4) is not applicable to
a partition suit, as the cause of action in such a suit is a
recurring one. In the said case the husband of the appellant
therein, Mr. Babu Ram had filed a suit in the Court of
Subordinate Judge 1st Class, Delhi for partition of the joint
family properties. An application was moved in the said suit by
the plaintiff stating that he intended to withdraw the suit and did
not want to pursue the same. Liberty was not reserved by the
plaintiff either in his application or in his statement in Court to
institute a fresh suit in respect of the subject matter of the suit
nor was permission granted by the Court to withdraw with
liberty to institute a fresh suit. Thereafter the wife of the plaintiff
and his sons filed a suit for the partition of the same properties.
One of the issues before the Court was whether the subsequent
suit was barred by Order XXIII Rule 1 of the Code of Civil
Procedure. The Court observed:
"(13) Coming to the merits of the appeal the only Issue
which require determination is whether the suit out of which
the present appeal has arisen was barred by Order 23, Rule
1 of the Code of Civil Procedure. The learned Subordinate
Judge came to the conclusion that where a party withdraws a
suit without seeking permission to bring a fresh suit on the
same cause of action or abandons a part of the claim, he is
precluded from claiming the abandoned relief or from
bringing a fresh suit on the same cause of action. This
proposition, as a general proposition, is correct but it does
not apply to suits for partition. In 1967 (1) Mlj 175 in
re: Bajah V. Maheswara Rao v. Bajah V. Bajeswara Rao it
has been held that:--
"So far as a suit for partition or a suit for redemption is
concerned, it is axiomatic that, when the plaintiff
withdraws his suit, he will be entitled to file a fresh suit as
the cause of action is recurring cause of action. Even if
the plaintiff is not granted permission, under Order 23,
Rule 1, Civil Procedure Code, he will nevertheless have a
right to file a suit for partition at any time he pleases."
(14) To the same effect are the cases reported in AIR 1944.
Sindh 192; AIR Madras 112; AIR 1935 Madras 909 and AIR
1924 Allahabad 905. We may only mention one other case
reported in AIR. 1950 Federal Court In re: Thota China
Subha Rao and Others v. Mattapalli Raju and Others, where
it has been observed:--
"Provisions like Order 9, Rule 9 or Order 23, Rule 1 will
not debar the mortgagor from filing a second suit for
redemption because, as in a partition suit the cause of
action in a redemption suit is a recurring one."
(15) Even though, therefore, liberty was not reserved while
withdrawing the earlier suit, the present suit would not be
barred by Order 23, Rule 1 of the Code of Civil Procedure."
25. This Court is further of the opinion that a Codicil is a document that
is executed by a person who had previously made his or her will, to
modify, delete, qualify or revoke provisions contained in it. The Codicil
cannot survive without the Will. A Codicil effectuates a change in an
existing Will without requiring that the will be re-executed.
26. In fact, the Codicil dated 17th October, 1987 being relied upon by the
contesting defendants clearly states, "This codicil is in continuation to my
WILL dated 17.10.78." It is further stated in the Codicil that "Other
conditions mentioned in the WILL dated 17.10.78 remain unchanged."
The fact that the Codicil refers to the Will dated 17th October, 1978 which
could not be proved clearly shows that the Codicil can also not be relied
upon. A Codicil is only an extension of the Will and once the Will is not
proved, the Codicil can also not be relied upon.
27. This Court is further of the opinion that 'No Objection Certificates'
given to Municipal Corporation of Delhi for mutation of the suit property
cannot take away or abridge the legal right of the plaintiffs or defendants
No. 2 or 3.
28. Firstly, the 'No Objection Certificates' had been given prior to the
passing of the judgment dated 12th February, 2001 in Probate Case No.
35/1988. Secondly, the said 'No Objection Certificates' had been given
only for effectuating mutation which would be valid for house tax purposes
only. It is settled law that mutation confers no title in favour of the person
in whom the property had been mutated. A property can be transferred or
renounced by way of registered documents only.
29. Moreover, as in the present case on an application by defendant
No.2, the South Delhi Municipal Corporation vide order dated 06th
January, 2015 had cancelled and withdrawn the earlier mutation and
restored back the suit property in the name of the original allottee till
finalisation of the disputes between the parties, the said 'No Objection
Certificates' have no relevance or legal value.
30. Since in the present case, the defence sought to be put forth by the
defendants No.1 and 5 to 12 is contrary to admitted facts, untenable in law
and is not relevant or necessary for deciding the controversy involved in
the present suit, this Court is of the opinion that it is not bound nor would it
be justified to frame the issues on unnecessary or baseless pleas, which
would only cause unnecessary and avoidable inconvenience to the parties
and waste valuable Court's time.
31. This Court in Zulfiquar Ali Khan & Ors. vs. Straw Products
Limited & Ors. 2000 (56) DRJ (Suppl) 590 has held as under:
"If a plea is not valid and tenable in law or is not relevant or
necessary for deciding the controversy involved, the would not be
bound and justified in framing issue on such unnecessary or
baseless pleas, thereby causing un-necessary and avoidable
inconveniences to the parties and waster of valuable court time."
32. Consequently, a preliminary decree is passed defining the shares of
the defendant No.1, defendant No.2, plaintiffs No.1 and 2 cumulatively,
legal heirs of defendant No.3, defendants No.5 to 8 cumulatively as well as
defendants No. 9 to 12 cumulatively as 1/6th each in the suit property.
33. List for further directions and orders on 10th September, 2018.
MANMOHAN, J
JULY04, 2018
ka/rn/sp
