Delhi High Court
Monika Hurt vs Smita Arora And Ors. on 22 November, 2018
$~11.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 567/2018 & IA No.15292/2018 (of the plaintiff u/O XXXIX R-
1&2 CPC).
MONIKA HURT ..... Plaintiff
Through: Mr. S. Mukerjee, Mr. R.K. Joshi, Mr. S.
Joshi and Mr. Bhagwat Prasad, Advs.
versus
SMITA ARORA AND ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 22.11.2018
1. This suit came up first before this Court on 2nd November, 2018, order of
which date records that the plaint in the suit as filed was incomprehensible and
seemed to be copy pasted from some other document. Listing of the suit itself
was subject to office objection as to valuation and deficiency in court fees. On
request of the counsel for the plaintiff that an opportunity be given for filing a
fresh plaint, the suit was adjourned to today.
2. Today, the counsel for the plaintiff states that he has filed a fresh plaint
dated 16th November, 2018.
3. The same is taken on record and has been perused.
4. The plaintiff, in the plaint has sought the following reliefs:-
"(a) Grant a decree for declaration that the Will dated
23.02.90, executed by Late Sh. R.P. Arora, in favour of
daughters Ms. Raksha Arora (Late) & Ms. Sneh Prabha,
and brother Kanwal Kishore Manchanda, is null and
void and of no effect and also incompetent;
CS(OS) 567/2018 page 1 of 4
(b) Declare that Plaintiff and Defendants nos.5&6, are
entitled to maintain the existing mutation in the records
of the DDA of their share of the residential house at
Tagore Garden; and to get mutated their 40% share of
the factory at Mayapuri;
(c) Decree of mandatory injunction for directing the
cancellation of the registration of the said impugned Will
dated 23.02.1990 with the office of sub-registrar-II Basai
Darapur;
(d) Mandatory injunction directing the said impugned Will
and any „conveyance deed‟ dated 19-05-1998, pursuant
thereto to be delivered up to this Hon‟ble court, for being
destroyed so as to render same incapable of any further
mis-use;
(e) Permanent injunction restraining the defendants 1-4 from
claiming any rights to the above two properties B-87,
Mayapuri Industrial Area Phase 1, New Delhi; and BF-
27 Tagore Garden, New Delhi, either under the Will
dated 23-02-1990, or any illegal conveyance deed dated
19.05.1998;
(f) Directing the defendants 1-4 to maintain status qua in
respect of the suit properties; and
AND
(g) Pass any other orders as deemed appropriate by this
Hon‟ble Court."
5. I have enquired from the counsel for the plaintiff, who is in possession of
two properties i.e. property no.B-87, Mayapuri Industrial Area Phase-I, New
Delhi and BF-27, Tagore Garden, New Delhi subject matter of the Will qua
which reliefs are claimed.
6. The counsel for the plaintiff states that the plaintiff as well as defendant
no.1 are in possession of different portions of the properties.
CS(OS) 567/2018 page 2 of 4
7. I have further enquired from the counsel for the plaintiff, whether the
plaintiff, who claims rights in the property, is desirous of seeking the relief of
partition.
8. The counsel for the plaintiff states, (i) that there was earlier a suit for
partition in which the plaintiff as well as her mother Kiran Arora were parties,
besides other parties thereto; (ii) that the said suit was compromised by the
mother of the plaintiff, purportedly on behalf of the plaintiff also who was then a
minor, and ultimately a compromise decree was passed; and, (iii) the plaintiff has
applied for setting aside of the said compromise decree also and which
proceedings are pending.
9. Finding the primary relief claimed in the suit to be of declaration qua a
Will, I have enquired from the counsel for the plaintiff, whether the Will has been
propounded in any legal proceedings and/or any probate has been granted thereof.
10. The counsel for the plaintiff replies in the negative but states that the
defendant no.1, on the basis of the Will, obtained mutation in her name but which
mutation, on objection being filed by the plaintiff, has been cancelled/withdrawn.
It is also stated that this suit has been filed in pursuance to the minutes of the
meeting held on 27th November, 2017 of the officials of the Delhi Development
Authority (DDA) in respect of property no.B-87, Rewari Lines Industrial Area,
Mayapuri, New Delhi, copies of which minutes are filed at pages 388 to 393 of
Part-III file, whereby the mutation was cancelled and it was observed that the
parties may approach competent court of law for deciding the ownership of
property.
11. Merely because the officials of the DDA in their minutes have
CS(OS) 567/2018 page 2 of 4
observed so, does not make the suit if otherwise not properly constituted,
maintainable.
12. A document as a Will, is to be challenged as and when propounded. The
case of the plaintiff in fact is that the testator of the Will was not entitled to
execute the Will with respect to the properties aforesaid since he was not the
exclusive owner thereof and the predecessor of the plaintiff, along with the
testator, was the owner of one of the properties mentioned in the Will. With
respect to the other property, it is stated that the predecessor of the plaintiff, along
with somebody else, was the owner thereof and the testator had no rights with
respect to that property.
13. As of today, the defendant no.1, according to the plaintiff, save for earlier
having obtained mutation, is not claiming any rights adversely to the plaintiff on
the basis of the Will aforesaid. It is thus felt that there is no cause of action for
the plaintiff to seek a negative declaration with respect to the Will. The plaintiff
has not sought declaration of ownership. The suit is a device to get over the
decree for partition, proceedings for setting aside whereof are pending and is thus
not maintainable in law.
14. Having held so, I am for the time being not entering into the controversy
with respect to valuation of the suit and the requirement if any to pay ad valorem
court fees thereon.
15. Resultantly, the plaint is rejected.
No costs.
RAJIV SAHAI ENDLAW, J
NOVEMBER 22, 2018
'pp'..
CS(OS) 567/2018 page 4 of 4
