Delhi High Court
Surender Nath Verma vs Arun Verma & Ors. on 12 March, 2021
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 12.03.2021
+ CM(M) 649/2020
SURENDER NATH VERMA ..... Petitioner
Through Mr.Ankur Mahindro, Mr.Rohan
Taneja, Advs. (Mob.
No.9891051888)
versus
ARUN VERMA & ORS. ..... Respondents
Through Ms.Beenashaw N.Soni,
Ms.Mansi Bhatia, Advs. for R-1
to 3 (Mob. No.9810046611).
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. Though the Office Report indicates that the respondent nos.4 (c)
and 7 to 9 have not been served, the learned counsel for the petitioner
submits that as these respondents had been proceeded ex parte before
the learned Trial Court, they need not be served in the present
proceedings.
2. This petition has been filed challenging the order dated
22.02.2020 passed by the learned Additional District Judge-02, North,
in suit, being CS No.59547/2016, adjourning the suit sine die.
3. The facts in brief are that the respondent nos. 1 to 3 herein had
filed the Testamentary Case, being Testamentary Case No.14/2003,
CM(M) 649/2020 Page 1
pending before this Court, seeking probate of an alleged Will dated
08.12.1996 of late Shri Jawala Nath Verma. The Will relates to
property bearing no. C-6/17, Model Town, Delhi-110009.
4. The petitioner herein filed the suit seeking partition of the above
property and the declaration that the alleged Will dated 08.12.1996 is
a nullity. It was alleged in the suit that the property having been
purchased through ancestral funds could not have been bequeathed by
late Shri Jawala Nath Verma. The said Suit inter alia makes the
following prayers:-
"A. A Decree for Declaration be passed declaring the
Will dated 08.12. 1996 alleged to have been executed by
Shri Jawala Nath Verma to be a nullity in view of the
said property bearing No.C-6/17, Model Town, Delhi-
110009 being not exclusive owned by him and when the
said property was acquired from the funds generated
from the ancestral properties of Shri Jawala Nath Verma
and the said Will to be of no consequence under the law.
B. A Decree for Partition be passed in favour of the
Plaintiff and against the Defendants declaring the share
of the plaintiff to the extent of 1/4th alongwith the
Defendants No.4 & 5 and of the Defendants No. 1 to 3 as
1/4th collectively in respect of property bearing No. C-
6/17, Model Town, Delhi - 110009 and other assets of
Shri Jawala Nath Verma for which a Preliminary
Decree be passed declaring the aforesaid shares of the
parties and thereafter a final Decree be passed in favour
of the Plaintiff and the other Defendants to partition the
said properties by metes and bounds and if the said
properties cannot be partitioned then the same be put to
auction as provided under the law.
CM(M) 649/2020 Page 2
C. A Decree for Rendition of Accounts of the other
movable assets of Late Shri Jawala Nath Verma be
passed directing the Defendants No. 1 to 3 to render the
true and correct accounts to the Plaintiff and the other
Defendants for which a Local Commissioner be
appointed as contemplated under the law.
D. A Decree for Permanent Injunction be passed
restraining the Defendants, their agents, servants and
employees etc. from selling, assigning and/or in any way
parting with the possession or the title of the Property
bearing no.C-6/17, Model Town, Delhi-110009
permanently."
5. As noted hereinabove, by the Impugned Order, the learned Trial
Court has adjourned the suit sine die on the ground that the
Testamentary Case is pending before this Court.
6. The learned counsel for the petitioner has drawn my attention to
the orders dated 13.07.2007 and 15.09.2008 in the Testamentary Case.
By the order dated 13.07.2007, inter alia issue no. 4 was framed in the
following terms:-
"4. Whether the deceased was not owner of the
bequeathed property and not competent to execute the
Will? OPR"
7. By the subsequent order dated 15.09.2008, this Court directed
deletion of the said issue observing as under:-
CM(M) 649/2020 Page 3
"In my opinion, in a Testamentary Case as the present
one, the issue no.4 does not arise and is liable to be struck
off. However, if the amendment has been declined to the
respondents in the suit filed by the respondents, as claimed
by Mr. Mahendru in this court, then the respondents shall
be entitled to apply for the amendment afresh and citing
this order deleting the issues, as subsequent event and the
court before which this suit is pending shall decide such
application, if any in accordance with law.
Accordingly, the application is allowed and issue no.4
framed on 13.7.2007 is deleted."
8. The learned counsel for the petitioner has also drawn my
attention to the order dated 21.11.2014 in the suit, wherein this Court
framed the following issues in the suit:-
"(i) Whether the plaintiff is entitled to the relief of
partition of the suit property bearing No.C-6/17, Model
Town, Delhi-09? OPP
(ii) Whether the alleged WILL dated 08.12.1996 of Shri
Jawala Nath Verma is a nullity and of no consequence as
stated in the plaint? OPP
(iii) Whether the deceased Shri Jawala Nath Verma was
not competent to execute the WILL in view of the suit
property having been purchased with the ancestral funds?
OPP
(iv) Whether the plaintiff is entitled to the relief of
rendition of accounts? OPP
(v) Relief."
CM(M) 649/2020 Page 4
9. The learned counsel for the petitioner submits that as far as the
issue no. (ii) is concerned, the same arises only in the context of as to
whether late Shri Jawala Nath Verma had any right to bequeath the
property hereinabove mentioned by way of a Will. He submits that the
mode and/or manner of the execution of the Will dated 08.12.1996 is
not an issue in the suit and is to be decided in the Testamentary Case.
10. On the other hand, the learned counsel for the respondents
submits that issue no. (ii) also entails within itself the mode and
manner of the execution of the Will being in challenge.
11. This Court vide its judgment dated 31.10.2019 passed in
CM(M) 452/2019, Praveer Chandra v. Aprajita & Ors., has already
clarified that both the probate petition and the suit for partition can
proceed simultaneously. In fact, this Court in its order dated
15.09.2008 passed in the Testamentary Case has also clarified that the
authority of late Shri Jawala Nath Verma to execute the Will with
respect to the above mentioned property cannot be raised as an issue in
the testamentary case and accordingly deleted the said issue.
12. The difficulty as expressed by the learned counsel for the
respondents is, however, also found to be genuine due to the manner
in which issue no. (ii) has been framed by the learned Court in the suit.
13. In view of the above and with the consent of the learned
counsels for the parties, it is clarified that issue no. (ii) framed in the
suit be treated as deleted and issue no. (iii) be treated to be modified to
the extent as under:-
CM(M) 649/2020 Page 5
"Whether the deceased Shri Jawala Nath Verma was not
competent to execute the Will in view of the suit property
having been purchased with the ancestral funds and, therefore,
the alleged Will dated 08.12.1996 of late Shri Jawala Nath
Verma is a nullity and of no consequence? OPP"
14. In view of the above, the Impugned Order dated 22.02.2020 is
set aside reframing the issue no.(iii) in the suit as mentioned
hereinabove. The suit shall proceed on merits, however, it is further
directed that any decree passed in favour of the petitioner in the said
suit shall not be given effect without obtaining orders from the Court
in the Testamentary Case.
15. The parties/their counsels shall appear before the learned Trial
Court on 9th April, 2021 for further proceedings in the suit.
16. The petition is disposed of in the above terms. There shall be no
order as to costs.
NAVIN CHAWLA, J
MARCH 12, 2021/Arya
CM(M) 649/2020 Page 6
