Delhi High Court
Smt Surinder Pal Kaur vs Shri Rakesh Kumar Juneja And Anr on 21 May, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21.05.2025
+ FAO(OS) 138/2023
SMT SURINDER PAL KAUR .....Appellant
Through: Dr.I.M.Quddusi, Sr.Adv. with
Mr.Shantanu Garg, Adv.
versus
SHRI RAKESH KUMAR JUNEJA AND ANR .....Respondents
Through: Mr.Digvijay Rai, Mr.Archit
Mishra, Mr.Mukesh Kumar,
Mr.H.Kashyap, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (ORAL)
1. As the learned counsel for the caveators has entered appearance,
the Caveat stands discharged.
FAO(OS) 138/2023 & CM APPL. 65077/2023
2. This appeal has been filed challenging the Order dated
23.08.2023 passed by the learned Single Judge of this Court in
I.A. Nos. 1388/2019, 1556/2020 and 16519/2022 in CS(OS)
55/2019 titled Shri Rakesh Kumar Juneja & Anr. v. Smt.
Surinder Pal Kaur, allowing the application filed by the
respondents herein under Order XXXIX Rules 1 and 2 of the
Code of Civil Procedure, 1908 and directing the parties to
maintain the status quo regarding the construction over the
subject plot of land, bearing No.E-255, Greater Kailash-II, New
Delhi, and not change its nature/character during the pendency of
the Suit.
3. The learned counsel for the appellant submits that the learned
Single Judge has failed to appreciate that the Probate of the Will
dated 07.06.2003 executed by 'Baba' in favour of the appellant
has been granted by the Order dated 10.09.2015 of the Division
Bench of this Court in FAO(OS) 275/2013. He submits that
though the respondents had applied for the cancellation of the
Probate by way of Test. Cas. 73/2017, the same was dismissed
by this Court vide Order dated 18.12.2017. He submits that
thereafter, the respondents also filed a Civil Suit, being CS(OS)
102/2018, seeking cancelation of the Probate, which also was
dismissed by this Court vide its judgment dated 09.03.2018.
4. The learned counsel for the appellant submits that in view of the
above facts, the status quo order could not have been passed by
the learned Single Judge.
5. On the other hand, the learned counsel for the respondents, who
appears on advance notice of this appeal, submits that the
Division Bench of this Court, in its judgment dated 10.09.2015
passed in FAO(OS) 275/2013, while granting Probate of the Will
dated 07.06.2003 had clarified that the Probate is confined only
to determining the question of the genuineness and due execution
of the Will, and the question of whether the Testator at all had the
title to the subject plot of land was not determined in the said
appeal. He submits that the same observation was made by the
learned Single Judge of this Court while dismissing CS(OS)
102/2018. He submits that the plaintiffs have registered sale
deeds in their favour and the entire chain of title of the subject
plot of land is duly reflected in these documents, which have
been filed before the learned Single Judge in the Suit. He submits
that during the pendency of the present appeal, the Suit has also
proceeded, and the admission and denial of the documents has
already been concluded.
6. We have considered the submissions made by the learned
counsels for the parties.
7. Admittedly, the entire appeal is based on the grant of Probate of
the Will dated 07.06.2003 in the appellant's favour vide
judgment dated 10.09.2015 of this Court in FAO(OS) 275/2013.
In the said judgment, however, this Court had further clarified as
under:
"7. ....We are of the opinion that the learned
Single Judge was rather overly
influenced by the manner in which the
donation was allegedly made of the
property to the testator - way back in
1966. Whilst the correctness of such a
transfer or alienation may be an issue
vis-a-vis a third party (whose claims
would also be open to adjudication given
that the grant of probate only signifies
the court's conclusion that the
genuineness and due execution of the
Will was proved), the fact that such title
perhaps did not inhere in the testator or
there was a question mark over it in our
opinion could not have led the learned
Single Judge to conclude that the Will
itself was invalid."
8. In the judgment dated 09.03.2018 passed by the learned Single
Judge of this Court in CS(OS) 102/2018, this aspect was again
highlighted while dismissing the Suit filed by the respondents
herein challenging the grant of the Probate. The Court observed
as under:
"6. The plaintiffs, instead of filing a suit
restraining the defendant or any other person
who may be disturbing or challenging the title
claimed by the plaintiffs to the property have
to either file a suit for declaration of their title
and injunction, if in possession or if have lost
possession, for recovery of possession on the
basis of the title claimed by the plaintiffs. The
plaintiffs, instead of doing so, have filed this
suit for cancellation of the order dated 10th
September, 2015 holding Surinder Pal Kaur
entitled to grant of probate claimed by her and
the order dated 27th May, 2017, perhaps
issuing the probate, when as reasoned in detail
in the order dated 18th December, 2017
reproduced above, the plaintiffs are not
concerned with the probate granted by this
Court inasmuch as the grant of probate only
proves the document of which probate is
granted as the validity executed last Will of the
deceased and does not adjudicate the title of
the deceased to the properties bequeathed. "
(Emphasis supplied)
9. It is only thereafter, that the respondents have filed the present
Suit for possession and permanent injunction.
10. One important fact that has been highlighted by the learned
counsel for the respondents is that by a judgment dated
06.10.1998 passed by the learned Single Judge of this Court in
Suit No.3416/1992, the Gift Deed dated 23.06.1966, whereby the
'Baba' claimed that the title of the subject plot of land had been
transferred to him by the original owner, already stands
cancelled. This judgment, as per the submission of the learned
counsel for the respondents, has attained finality and has not been
challenged till date. Therefore, at least prima facie, the Testator
had no title in the suit land that he could have bequeathed by way
of the alleged Will in favour of the appellant. On the other hand,
the respondents have registered Sale Deeds in their favour.
11. The learned Single Judge of this Court in the Impugned Order
has taken note of the above facts and, keeping in view the above,
has directed the parties to maintain status quo regarding the
construction over the subject plot of land.
12. We find no infirmity in the Impugned Order.
13. Accordingly, the appeal as well as the pending application is
dismissed.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 21, 2025
RN/SJ
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