Ajay Malhotra vs State
2019 Latest Caselaw 2541 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Reserved on:5th April 2019
                                    Pronounced on: 15th May 2019
+       TEST.CAS. 37/2018 & I.As No. 12478/2018, 13118/2018
AJAY MALHOTRA                                            ..... Petitioner
                         Through:     Mr. Rajat Aneja and Mr. Sambit
                                      Nanda, Advocates.

                         versus

STATE                                             ..... Respondent
                         Through:     Mr. Varun Kumar Tikmani,
                                      Advocate for R-1/State.
                                      Mr. Ashok Chhabra and Ms.
                                      Ankita Gandhi, Advocates.



CORAM: JUSTICE SANJEEV NARULA
                 JUDGMENT

SANJEEV NARULA, J I.A. 9509/2018 (under Order 39 Rule 1 and 2 CPC)

1. This is an application under Order 39 Rule 1&2 r/w Section 151 Code of Civil Procedure, 1908 (hereinafter, "CPC") filed in a probate petition seeking probate of Will dated 26th October 2017. The Petitioner is son of the deceased-Late Sh. Gian Chand. Respondent no. 2 is widow of the deceased Testator (mother of Petitioner and Respondent no. 3) and Respondent no. 3 is the daughter of the deceased. The Petitioner is seeking interim injunction against Respondent no. 2 (Smt. Devi Kumari) and Respondent no. 3 (Smt. Shalu Kareer) restraining them from selling,

alienating, transferring or creating any third party rights or interest in respect of any of the immovable properties bequeathed in favour of the Petitioner under the document dated 26th October 2017 purporting to be the Will and Testament of the deceased Testator (hereinafter referred to as the "document dated 26th October 2017"). Prayer is also made to restrain the Respondents from receiving any payment in respect of Fixed Deposit Receipts (FDRs) and other movable assets lying with various banks and other institutions, left behind by the deceased testator (Gian Chand) (except in the manner described in the document dated 26th December 2017), during the pendency of the present Petition.

2. The Petitioner claims that Late Sh. Gian Chand has left behind Will dated 26th October 2017 and he is entitled to the grant of probate / Letters of Administration in respect of the said Will. Respondent no. 2 and 3 have filed their objections to the Petition and have inter alia claimed that the Will is forged and fabricated. Under the document dated 26 th October 2017, it is alleged that Late Sh. Gian Chand has bequeathed his movable and immovable properties in the following manner:

"WHEREAS I am the absolute owner of the following immovable and movable properties which I had purchased from my exclusive earnings, though some of the properties have been purchased by me' in the joint names as mentioned hereunder:

1. Immovable property bearing Flat No. AD/6A Shalimar Bagh Delhi which is in my name exclusively and self- acquired freehold property under the conveyance deed dated 03.09.2001.

2. Commercial shop bearing No. 26, CSC No.3, Sector 6, Rohini, Delhi admeasuring about 12.25 Sq. meters which is in the joint names of myself and my wife, and my son is maintaining the same in all respects and drawing rent therefrom.

3. Residential Plot of land admeasuring 32 Sq Meters, bearing no. 239, A-3, Sector 29, Rohini, Delhi which was purchased by me in the name of my wife Smt. Devi Kumari.

4. A freehold built-up property bearing No. A-66, Shastri Nagar, Delhi area admeasuring 22 sq. yards which is in the joint names of my wife and one lady Smt. Sanminder Kaur W/o Shri Jaspal Singh.

5. Fixed Deposit Receipts (FDRs} with Bank of Baroda, Allahabad Bank, ICICI Bank and UCO Bank (both branches of UCO bank at Shalimar Bagh and Supreme Court) in the joint names of myself and my wife.

6. Investments in Mutual Funds, Shares and Post Office Scheme made by me in the joint names of myself and my wife.

AND WHEREAS all the above properties are my self-

acquired- properties and I hereby devise and bequeath all the aforesaid immovable and movable properties mentioned above at serial No. (l) to (6) as under:

A. Properties mentioned at Serial Nos 1to 3 i.e. Residential Flat at Shalimar Bagh, Commercial Shop at Sector 6, Rohini and Residential Plot at Rohini in favour of my Son Ajay Malhotra exclusively. However, the residential flat at serial No. 1 above is being bequeathed in favour of my aforesaid son, subject to the condition that my wife shall possess a life interest therein but she shall not be entitled to deal or sell, transfer, create any third party rights or encumber the said flat in any manner during her lifetime. However, on her death, the said flat shall exclusively devolve upon my only

son Ajay Malhotra. The other two properties mentioned at serials no. 2 and 3shall however be an absolute bequest in favour of my son.

B. Property mentioned at serial no 4 comprising of the Residential floor at Shastri Nagar in favour of my wife Smt. Devi Kumari exclusively, to the extent of her 50% share therein though purchased exclusively from my own funds. C. All the FDRs, Mutual Funds, Shares and Post office Investments mentioned at Serial no 5and 6which are in my exclusive name shall devolve in favour of my wife and my son in equal shares. I may clarify here that where my wife is the joint holder along with myself, 1hereby bequeath my 50% share in all those joint investments (with my wife being the other co-sharer of 50%) in favour of my son Ajay Malhotra exclusively."

3. This Court, vide order dated 23rd July 2018, on the submissions advanced by the learned counsel for the Petitioner, passed an order restraining Respondent no. 2 and 3 from encashing the movable assets [FDRs and other investments] and also directed parties to maintain status quo with respect to the immovable properties of the Testator. The relevant portion of the said order reads as under:

"5. The parties shall also maintain status quo with respect to the immovable properties of the testator till the next date of hearing."

Proceedings in the Applications

4. On 17th September 2018, on an application [IA 12478/2018] filed by Respondent no. 2, seeking vacation of the interim order, the Court inter alia issued directions for sending the document in question to CFSL, Lodhi Road for its opinion with respect to the signatures of the deceased Gian

Chand on the document dated 26th October 2017. The challenge to the said order in appeal [FAO (OS) 186/2018] was rejected. In the order, the Court however erroneously recorded that IA 12478/2018 was still pending consideration. Be that as it may, thereafter, on an application [IA 1412/2019] seeking modification of the order dated 23 rd July 2018, the Court passed interim directions vis-a-vis the FDRs and other investments that find mention in the document dated 26 th October 2017. The said order was also challenged in FAO (OS) 73/2019. The said appeal was dismissed as withdrawn vide order dated 10th April 2019 with liberty to the Petitioner to raise all pleas in the probate proceedings at the final stage. The Division Bench also observed that the observations made by this Court in the order dated 25th March 2019 would not tantamount to final and binding findings.

5. On 11th April 2019, this Court issued further directions whereby the amount under the fixed deposits was directed to be received in the Court with further directions and conditions for release to Respondent no. 2.

Issue in the present application and submissions of the parties

6. Now the issue before the Court is regarding grant of injunction with respect to the properties which find mention in the document dated 26 th October 2017. It is the case of the Applicant that all the immovable properties (except the property situated at Shastri Nagar mentioned at Serial No. 4 of the said Will) as well as the liquid assets in the form of investments have devolved upon the Petitioner in the manner as stated in the said Will dated 26th October 2017. Learned counsel has argued that in order to preserve the estate of the Testator, the Court should grant an injunction. He also argued that the Probate Court is empowered to grant

injunctions in probate proceedings and in support of this submission, he relied upon the following judgments: Kulbir Singh v State (1993) 52 DLT 57, Amrendra Dhwaj Singh v Prem Kumar Singh 2012 SCC Online Pat 1215, Harsh Vardhan Lodha v Ajay Kumar Newar 2016 SCC Online Cal 1541 and Dr. Rama Mukherjee v State of Assam 2012 SCC Online Gau

849. It was also argued that the three conditions necessary for grant of interim injunction are satisfied in the present case. He submitted that in case injunction is not granted qua the said properties, it would effectively permit the Respondents nos. 2&3 herein to deal with the said properties and create third party interests. If that is the case, the entire purpose of the present proceedings would be defeated, since it is extremely likely that the above noted properties, that are a subject matter of the Will of the deceased Testator, may not even exist by the time the present proceedings are concluded. This would cause irreparable loss to the Petitioner with no restitution.

7. The Respondents on the other hand have opposed the application stating that the Petitioner has wilfully and deliberately concealed information about the factum of joint or exclusive ownership of Respondent no. 2 in the properties mentioned in the document dated 26th October 2017. Further, it has been argued that Court does not determine or decide title in a probate petition and hence, the Petitioner cannot obtain an order of injunction against Respondent no. 2 who is owner of 50% share in the properties and owner in her own right in some of the properties. Respondents have placed reliance on the judgments of this Court in Talat Parveen Naqvi v Delhi Development Authority 163 (2009) DLT 622, DDA v Dr. K.K. Srivastava

109 (2004) DLT 849 (DB) and Administrator General v State & Ors. 237 (2017) DLT 469 in support of their submissions.

Analysis and Findings

8. Petitioner's claim is based on a document dated 26 th October 2017 which is stated to be the Will of Late Sh. Gian Chand. The Court is yet to examine whether the document dated 26th October 2017 is in fact the last Will and Testament of the Testator. The question of genuineness of the document dated 26th October 2017 would have to be gone into after the parties have led evidence. Having regard to this fact, the Court would have to bear in mind that the scope of the probate/testamentary proceedings is limited. In the present petition the Court has no jurisdiction to go into the question of title of the deceased in respect of the properties mentioned in the Will. The Petitioner also argues and relies upon this position in law. Thus, parties do not dispute that the probate proceedings are not a "suit" in which there is a "property" in dispute. The properties mentioned in a Will or those which may have been left behind by the deceased are not the subject matter of a testamentary petition. The Supreme Court in Kanwarjit Singh Dhillon v Hardyal Singh Dhillon (2007) 11 SC 357 has held that it is well settled that the functions of the probate court are to see that the Will executed by the Testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and the same was duly attested. The probate court is not competent to determine the question of title of suit property nor will it go into the question whether the suit property bequeathed by the Will were joint ancestral property or self-acquired properties of the Testator. Similar views have been expressed in several

other judgments of the Supreme Court such as Krishna Kumar Birla v Rajendra Singh Loha (2008) 4 SCC 300 and Chiranjilal Shrilal Goenka v Jasjit Singh (1993) 2 SCC 507.

9. The petitioner alleges that some of the properties described in the Will described below have been bequeathed to him:

i. Immovable property bearing Flat No. AD/6A Shalimar Bagh Delhi (purchased in the exclusive name of the deceased Testator).

ii. Commercial shop bearing No. 26, CSC No.3, Sector 6, Rohini, Delhi (purchased in the joint name of the deceased Testator and the Respondent no. 2).

iii. Residential Plot of land admeasuring 32 Sq Meters, bearing no. 239, A-3, Sector 29, Rohini, Delhi (purchased in the exclusive name of the Respondent no. 2). iv. 50% share in a freehold built-up property bearing No. A- 66, Shastri Nagar, Delhi (exclusively in the name of Respondent no. 2).

Concededly, property at serial no. (ii) is purchased in the joint name of the deceased Testator and his wife (Respondent no. 2), property at serial no.

(iii) and (iv) are exclusively in the name of Respondent no. 2. Petitioner claims that under document dated 26th October 2017, properties at serial no.

(i), (ii), and (iii) have been bequeathed exclusively to him and property at serial no. (iv) exclusively to Respondent no. 2 with life interest in property at serial no. (i). Learned counsel further relies upon the provisions of Benami Transactions (Prohibition) Act 1988 to contend that properties at serial no. (ii), (iii), and (iv) were purchased by the deceased through his own funds in the name of Respondent no. 2 and the said properties are the

exclusive properties of the deceased. On the basis of the document dated 26th October, the veracity whereof is yet to be established, the Petitioner has sought restraint orders against the recorded owner of the properties at serial no. (ii), (iii), (iv). This document has to be juxtaposed against the title documents vis. sale deeds and conveyance deeds which record Respondent no. 2 to be the owner (jointly or exclusively) of the property, as mentioned below:

a) In respect of property mentioned at serial no. 2 in the document dated 26th October 2017: Conveyance deed dated 12.09.2012 executed by DDA in favour of Sh. Gian Chand and Respondent no. 2.

b) In respect of property mentioned at serial no. 3 in the document dated 26th October 2017: Agreement to sell and purchase dated 23.11.2006, General power of attorney, Special power of attorney, receipt, indemnity bond, possession letter etc. in favour of Respondent no. 2.

c) In respect of property mentioned at serial no. 4 in the document dated 26th October 2017: Sale deed dated 13.03.2013 in favour of Respondent no. 2 and Smt. Sanminder Kaur,.

On the one hand, the Petitioner asserts that the question of title cannot be looked into in the present proceedings being beyond the jurisdiction of this Court, while on the other hand, on the basis of the document dated 26th October 2017, it is contended that the title of the recorded owner be ignored on the presumption that the said properties were purchased Benami

in her name. The contention of the Petitioner is thus contradictory. If the Court cannot determine the title, it cannot surely hold that the deceased had the testamentary capacity to deal with the said properties and bequeath the same under the document in question. The question whether the title of Respondent no. 2 is Benami or not, is also not to be determined in the present proceedings. Nonetheless, for applying the test of prima facie case, the presumption of ownership of the said properties is definitely in favour of the recorded owner, that is, Respondent no. 2 in the present case. Therefore, on the strength of this document, the Petitioner cannot be permitted to seek injunction against the recorded owner/title holder of the said properties, in probate proceedings. It is essential to note that the Respondent's challenge to the Will is not based on title, but on the testamentary capacity of the deceased to write the Will thereby contending that the declaration in the Will being contrary to the description in the title documents attracts suspicion in respect of the document dated 26 th October 2017. Merely because in the document dated 26th October 2017 the Testator has dealt with the properties which are under the ownership of Respondent no. 2 (joint or exclusive), it is no justification for the Petitioner to seek injunction in Testamentary proceedings. Respondent no. 2 being the owner of the property, cannot be restrained from selling, alienating or dealing with the said properties. Thus, notwithstanding the question whether the probate court would have the jurisdiction to grant temporary injunction (dealt with hereinafter), the Petitioner ex facie does not satisfy the necessary three conditions for grant of temporary injunctions, most significantly the test of prima facie case. The balance of convenience is also in favour of Respondent no. 2, she being the recorded title

holder/owner. The question of irreparable loss, can also not be raised by the Petitioner against the title holder.

10. It is to be noted that the Petitioner by virtue of the document in question, also lays claim over the movable assets of the deceased being the FDRs, joint savings bank accounts, post office schemes etc. The Petitioner had originally obtained restraining order against the Respondents in respect of the said assets as well vide order dated 23rd July 2018. The FDRs in question are in the joint names of Respondent no. 2 and the deceased, with Respondent no. 2 being the first account holder in almost all the FDRs. Petitioner claimed that notwithstanding the fact that the Respondent no. 2 is the first account holder of the joint FDRs, it should be considered that the FDRs belong exclusively to the deceased. On this plea, Respondent no. 2 was restrained from withdrawing the money under the FDRs. Here again, the title of the co-sharer of the FDRs was denied and challenged relying on the document dated 26th October 2017. The Court has since passed interim directions regarding the appropriation of the joint FDRs and other investments. This aspect therefore does not need further consideration.

11. For the foregoing reasons, it is held that the Petitioner has not fulfilled the necessary conditions for grant of temporary injunction and the present application is liable to be dismissed on this ground alone.

12. However, since the parties have also argued on the question of the jurisdiction of the probate court to grant temporary injunctions, it is considered necessary to deal with the said issue.

13. The power of the Court to grant temporary injunction under Order 39 of the CPC is in relation to the property which is subject matter of a suit. The interim orders under order 39 Rule 1&2 are passed in relation to a property, where the property is in danger of being wasted, damaged or alienated or where it is necessary to secure the execution of the decree that the Court may pass in the suit. As discussed above, in testamentary proceedings, the property left behind by the deceased is not the subject matter of the proceedings. The decree that the Court would pass in probate proceedings is not of a nature where it is necessary for the Court to make an interim order in relation to any property. If the Court has no jurisdiction to go into the title of the deceased in respect of the properties mentioned in the Will, the necessary corollary is that there cannot be a direct application of the provisions of Order 39 Rules 1&2 of the CPC 1908 in the probate proceedings, and therefore, the Court would ordinarily not be entitled to make an interim order in relation to protection of the property, unless there are peculiar and special circumstances that warrant grant of temporary injunction. Since Respondent no. 2 and Respondent no. 3 dispute and deny the Will in question and also the title of the Testator to write such a Will the only remedy with the Petitioner to safeguard his rights, if any is by way of other appropriate proceedings and not by way of an application in probate proceedings.

14. The court would also like to record that notwithstanding the fact that the question of title is not involved in testamentary proceedings, the Court is not wholly incompetent to grant a temporary injunction in extreme cases. Such order of injunction is issued in aid of and in furtherance of the

purpose for which a grant is made by a probate Court. Section 247 of the Indian Succession Act, gives the Court such power. The said provision reads as under:

"247. Administration pendente lite.-Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction."

The reading of the aforesaid provision clearly shows that it is therefore open for the probate Court not only to appoint an administrator pendent lite, but also to issue an order of temporary injunction, pending the appointment of an administrator pendent lite. However, such orders are passed, when an application is made for the appointment of administrator pendent lite. The probate court will not grant injunction as a matter of course. The Court would have to examine whether there is a necessity for appointment of an administrator pendent lite. Such is not the case before the Court in the present case.

15. It is also to be noticed that section 269 of the Act reads as under:

"269. When and how District Judge to interfere for protection of property.-

(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of

any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.

(2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate."

The said provision also empowers the Court to pass orders for the protection of the property of the deceased person. Sub-section (2) of section 269 specifically restricts the application of the said provision where the deceased is a Hindu, Mohammedan, Sikh or Jaina. Admittedly, the deceased here is a Hindu and therefore, not entitled to invoke section 269. The fact that the legislature has restricted the application of section 269, to certain category of persons, clearly indicates by implication that the legislature never intended to confer such power on the testamentary court to give interim directions in relation to the persons covered under section 269(2) of the Act.

16. No doubt this Court in Kulbir Singh v State (1993) 52 DLT 57 has held that the Court has the power to grant injunction exercising its inherent powers, however, the facts of the said case are distinguishable and in that case, section 269(2) was not brought to the notice of the Court in the said judgment. As discussed above, the Court in exceptional circumstances can pass interim orders in order to preserve the disputed property from being destroyed, dissipated and fettered away. However, the facts and circumstances of the present case are not such that would entitle the

petitioner to seek such a relief. For the afore-going reasons, the application is completely devoid of merits and is accordingly dismissed.

17. Needless to say that the opinion expressed by this Court would not affect the merits of the present Petition. Since the Court has already passed the orders with respect to FDRs and other investments, the same are not being modified. The order passed on 23rd July 2018 to the extent that it restrains Respondent nos. 2&3 from encashing the movable assets and directs parties to maintain status quo with respect to immovable properties stands vacated.

SANJEEV NARULA, J MAY 15, 2019 ss