Delhi High Court
Asha Jain vs Sajjan Pasari And Anr on 14 May, 2025
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~55 and 56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14.05.2025
+ CS(OS) 225/2022 & I.A. 6201/2022 I.A. 6202/2022 I.A. 20074/2022
I.A. 9027/2023
ASHA JAIN .....Plaintiff
Through: Mr. Praveen Aggarwal, Mr. Sunil
Kumar, Advocates
versus
SAJJAN PASARI AND ANR .....Defendants
Through: Mr. Ratnanko Bannerjee, Sr.
Advocate with Ms. Ruby Singh
Ahuja, Mr. Arunabha Deb and Mr.
Deepan Kumar Sarkar, Advs.
56
+ CS(OS) 200/2023 & I.A. 5858/2023 I.A. 5860/2023 I.A. 22063/2023
ASHA JAIN .....Plaintiff
Through: Mr. Praveen Aggarwal, Mr. Sunil
Kumar, Advocates
versus
SANDEEP KATARIA AND OTHERS .....Defendants
Through: Mr. Ratnanko Bannerjee, Sr.
Advocate with Ms. Ruby Singh
Ahuja, Mr. Arunabha Deb and Mr.
Deepan Kumar Sarkar, Advs.
Mr. Lalltaksh Joshi and Ms. Ananya
Sanjiv, Advocates for D-9
%
Signature Not Verified
Digitally Signed By:HEMANT
PRATAP SINGH
Signing Date:17.05.2025
CS(OS) 225/2022 21:34:56 Page 1 of 18
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
I.A. 6201/2022(application under Order XXXIX Rules 1 and 2 CPC on
behalf of plaintiff for ad-interim ex-parte injunction)
I.A. 9027/2023(application under Order XXXIX Rule 4 CPC on behalf of
defendant no. 1 for vacating ex-parte interim order dated 01.08.2022)
1. The present suit has been filed seeking partition of the estate of late
Shri Banwari Lal Pasari ('deceased'), who passed away on 22.05.1999. It is
stated that the plaintiff along with defendant nos. 1 and 2 are the Class-I
legal heirs of the deceased and are entitled to 1/3 rd share each in the estate of
late Shri Banwari Lal Pasari. It is stated in the plaint that late Shri Banwari
Lal Pasari died intestate.
2. The suit has been filed with respect to properties mentioned in
Schedule A to the plaint. It is a matter of record that Schedule A was
amended vide I.A. 12007/2022 and was taken on record by the Court vide
order dated 01.08.2022.
3. This Court vide order dated 01.08.2022 had granted an ex-parte ad-
interim order directing the defendants to maintain status quo as to title of all
the properties listed in Schedule A of the plaint.
4. The amended Schedule A of the plaint comprises of nine (9)
properties, and reads as under: -
"Schedule A
A. W-52. Second Floor, Greater Kailash-II, New Delhi.
B. H.No. 4 and 4-A, Rainey Park, Kolkata-700019.
C. Property at: 12-A and 12-B, Russel Street Kolkata.
D. 62-A, Hazara Road, Kolkata. Approx. 122 Katha.
E. 2, Ripon Street, Kolkata. (35,000 sq. ft office block)
F. Shop No. G 3C Ground Floor, Shree Manjari Building 8/lA Sir
William Jones Sarani, Camac Street, Kolkata-700071. (Airtel Showroom)
G. India Automobiles 1960 Ltd. ... 9 Old Post Office Street, opposite
High Court Full Building
H. FMC Fortuna Plot No. 234/3A, 3rd floor AJC Bose Road, Kolkata
6000sq.ft. area
I. Chirawa, Rajasthan. Villa Ancestral Property"
Submissions on behalf of defendant no. 1
5. Mr. Harish Salve, learned senior counsel appearing on behalf of
defendant no. 1 has placed on record a 'Tabular Note' to demonstrate that
the scheduled properties mentioned in Schedule A do not form part of the
estate of late Shri Banwari Lal Pasari but are owned by third-parties. The
submission has been supported with registered documents filed with
affidavit dated 14.04.2025 evidencing the title of the scheduled properties in
favour of third-parties. The details of the property and the third-party owner
of each property is as under: -
Sl. Property Details Ownership List of Documents
No.
A. Item A of Schedule A: Mr. Sandeep NA
W-52, Second Floor, Kataria and Ms.
Greater Kailash-II, New Bhavna Kataria
Delhi
B. Item B of Schedule A: Purushottam Das a. Registered Indenture dated
H. No. 4 and 4-A, Shankar Lal HUF 19th December, 1946 executed
Rainey Park, Kolkata - in favour of Laxmi Devi
700019 Pasari.
b. The Last Will and
Testament of Laxmi Devi
Pasari dated 11th September,
1991 with Bhagirath Pasari as
the named Executor. The said
property has been bequeathed
to the HUF which has already
been given effect to.
c. Probate of Laxmi Devi
Pasari dated 18th May, 2001
granted to Bhagirath Pasari
by the High Court of Calcutta
as a result of which the said
property vested in the said
HUF.
d. Mutation Certificate dated
21st February, 2024 issued by
the Kolkata Municipal
Corporation.
e. Latest Tax Receipt for the
four quarters of FY 2024-
2025 issued by the Kolkata
Municipal Corporation on 3rd
May, 2024.
C. Item C of Schedule A : Purushottam Das a. Registered Indenture dated
Property at : 12-A and Pasari for 12-A 22nd January, 1960 executed
12-B, Russel Street Russel Street in favour of Purshottam Das
Kolkata Pasari.
[Uncle of the
Plaintiff] b. Tax Receipts issued by the
Kolkata Municipal
Corporation for the period of
the Financial Year 2024-2025
showing Purshottam Das
Hindustan Auto Pasari as the recorded owner
Distributors is the of 12A Russel Street.
recorded owner
for 12-B Russel c. Tax Receipts issued by the
Street Kolkata Municipal
Corporation for the period of
the Financial Year 2024-2025
showing HAD as the
recorded owner of 12B
Russel Street.
D. Item D of Schedule A: I.A. Builders (P) a. Registered Indenture dated
62-A, Hazara Road, Ltd 27th December, 1960 by
Kolkata, Approx 122 virtue of which India
Katha Automobiles (1960) Limited
became the absolute owner.
b. Order dated 16th May, 2005
passed by the High Court of
Calcutta sanctioning a
Scheme of Arrangement
where outgoing business
undertaking 1 of India
Automobiles (1960) Limited
was transferred to I.A.
Builders (P) Ltd.
E. Item E of Schedule A: I.A. Property a. Registered Indenture dated
2, Ripon Street, Kolkata Developers (P) 12th March, 1965 by virtue of
(35,000 sq.ft. office Ltd. which India Automobiles
block) (1960) Limited became the
absolute owner.
b. Order dated 16th May, 2005
passed by the Hon'ble High
Court of Calcutta sanctioning
a Scheme of Arrangement
where outgoing business
undertaking 1 of India
Automobiles (1960) Limited
was transferred to I.A.
Property Developers (P) Ltd.
F. Item F of Schedule A: West Wing a. Registered Indenture dated
Shop No. G-3C, Estates Pvt. Ltd. 16th January, 1996 in favour
Ground Floor, Shree of Parmeswar Estates Private
Manjari Building 8/1A Limited.
Sir William Jones
Sarani, Camac Street, b. Name Change ROC
Kolkata - 700071 Certificate of Parmeswar
(Airtel Showroom) Estates Private Limited to
West Wing Estates Pvt. Ltd.
with effect from 16th
November, 2011.
G. Item G of Schedule A: India a. Registered Indenture dated
India Automobiles 1960 Automobiles 5th June,1964 in favour of
Ltd. 9, Old Post Office (1960) Ltd. India Automobiles (1960)
Street, opposite High Ltd.
Court Full Building
H. Item H of Schedule A: M/s. Banwari Lall a. Registered Indenture dated
FMC Fortuna Plot No. Pasari [a 5th February, 1997 in regard
234/3A, 3rd Floor, AJC registered to Flat A1 purchased directly
Bose Road, Kolkata partnership firm] by the said partnership firm.
6000 sq.ft. area
b. Registered Indenture dated
5th February, 1997 in regard
to Flat A2 purchased directly
by the said partnership firm.
c. Registered Indenture dated
5th February, 1997 in regard
to Flat A3 purchased directly
by the said partnership firm.
Also see:
d. Deed of Reconstituted
Partnership dated 25th May,
1999.
e. Deed of Reconstituted
Partnership dated 1st April,
2002.
f. Deed of Reconstituted
Partnership dated 1st April,
2013.
g. Supplementary Deed of
Partnership dated 1st April,
2015.
I. Item I of Schedule A: Owned jointly by a. Registered Indenture dated
Chirawa, Rajasthan, three members of 13th October, 1958 executed
Villa Ancestral Property the Pasari family in favour of Gayatri Devi
being Rahul Pasari (wife of Late
Pasari, Purshottam Das Pasari
Chandrakant brother of Banwari Lal
Pasari and Sajjan Pasari.
Pasari
b. Probate dated 18th
December, 2009 granted by
this High Court of Calcutta.
Originally, the property was
bequeathed to the
Purushottam Das Shankar Lal
HUF.
c. By a Codicil dated 28th
July, 2006 the said property
was bequeathed to three
members of the Pasari family
being Rahul Pasari,
Chandrakant Pasari and
Sajjan Pasari and a fresh
Probate in terms thereof was
granted on 24th November,
2022.
5.1. He states that documents evidencing the said factual status of
ownership of third-parties through registered documents has been placed on
record vide an affidavit dated 14.04.2025 filed by defendant no. 1. He states
that in view of the said documents the ad-interim order dated 01.08.2022 be
vacated forthwith.
5.2. In addition, he states that late Shri Banwari Lal Pasari had executed a
Will dated 04.05.1999, which was duly probated in probate proceedings
being PLA No. 315/2000 instituted before the High Court of Calcutta. He
states that in the said probate proceedings, both the plaintiff and defendant
no. 2 had filed separate affidavits dated 15.09.2000, thereby giving their 'No
Objection' to the grant of the probate in terms of the Will dated 04.05.1999.
He states that said proceedings were concluded by grant of probate on
14.12.2021.
5.3. He states that in view of the said proceedings, the assertion made by
the plaintiff in the plaint (at paragraph 18) that late Shri Banwari Lal Pasari
died without executing any testament is false and misleading. He states that
the probate is a judgment in rem and no suit can be instituted during the
subsistence of the judgment dated 14.12.2021 passed in the said probate
proceedings. He states that the said probate is conclusive of the validity of
the Will dated 04.05.1999.
5.4. He states that all the assets enlisted at Sr. No. (b) to (i) of Schedule A
are outside the territorial jurisdiction of this Court, as the said properties are
situated in Kolkata. He states that all the defendants reside outside the
jurisdiction of this Court. He states that late Shri Banwari Lal Pasari was
himself a resident of Kolkata and has never resided in Delhi.
5.5. He states that the suit has been filed before this Court by relying upon
the existence of the solitary property in Delhi mentioned at Sr. No. (a) of
Schedule A, which property has been disposed of by the plaintiff herself by
a registered sale deed dated 10.05.2022. He states that the said property was
disposed of even prior to the registration of the plaint and issuance of
summons on 01.08.2022. He refers to paragraph 19 of the plaint. He states
that a separate application i.e. I.A. 20074/2022 has been filed seeking return
of the plaint for lack of territorial jurisdiction.
Submissions on behalf of the plaintiff
6. In reply, Mr. Aggarwal, learned counsel for the plaintiff states that he
has three-fold submissions to the application of the defendant no. 1 seeking
vacation of the injunction order dated 01.08.2022: (i) defendant no. 1 has no
locus to maintain this application since on his own showing he is not the
owner of any of the properties enlisted at Sr. No. (a) to (i) of Schedule A; (ii)
defendant no. 1 has played a fraud on plaintiff and defendant no. 2; and (iii)
defendant no. 1 has approach this Court with unclean hands.
6.1. He states that defendant no. 1 has relied upon Will(s) executed by late
Smt. Laxmi Devi Pasari, late Smt. Gayatri Devi Pasari and late Shri Banwari
Lal Pasari. He states that all the three (3) Wills were purportedly executed
few months before the demise of the respective testator/testatrix.
6.2. He states that the plaintiff and defendant no. 2 reposed implicit faith
in defendant no. 1 and were persuaded to execute documents at defendant
no. 1's instance to the detriment of the plaintiff and defendant no. 2.
6.3. He states that with respect to property at Sr. No. (b) of Schedule A, as
per the stand of defendant no. 1, the said property belongs to Purushottam
Das Shankar Lal HUF and as per defendant nos. 1's affidavit dated
14.04.2025 itself, the plaintiff, defendant no. 1 and defendant no. 2 are
members or coparceners in the said HUF. He states that therefore plaintiff's
right in the said property is admitted by defendant no. 1.
He states that this property belonged to late Smt. Laxmi Devi Pasari
i.e., the grandmother of the plaintiff. He states that defendant no. 1 has
submitted that said late Smt. Laxmi Devi Pasari, during her lifetime had
executed a Will dated 11.09.1991 and a Codicil dated 23.10.1991, which
have been probated on 18.05.2001 and 07.03.2013 respectively. He states
however that the plaintiff as the legal heir of late Shri Banwari Lal Pasari
and thus, of late Smt. Laxmi Devi Pasari, has not received any notice in the
said probate proceedings. He states that therefore no probate could have
been granted by the High Court of Calcutta and thus, the grant of probate in
terms of Will dated 11.09.1991 and a Codicil dated 23.10.1991 is invalid.
6.4. He states that with respect to property at Sr. No. (c) of Schedule A,
defendant no. 1 has placed on record a title record executed in favor of
Purushottam Das Pasari i.e., the uncle of the plaintiff. He states that the
plaintiff believes that this property also forms part of the Purushottam Das
Shankar Lal HUF. He states however that the plaintiff does not have any
document in her possession to support this submission.
6.5. He states that with respect to properties at Sr. No. (d) and Sr. No. (e)
of Schedule A; he states that it is a matter of record that the sale deed of
those properties is in favour of the corporate entities, as pleaded by
defendant no. 1. He states however that late Shri Banwari Lal Pasari i.e., the
father of the plaintiff held shares in these corporate entities. He relies upon
the contents of the Will dated 04.05.1999. He states that since these are
closely held family run companies, the Court may lift the corporate veil and
entertain the claim for partition.
6.6. He states that similarly with respect to properties at Sr. No. (f) and Sr.
No. (g) of Schedule A, though the title deeds are in favour of corporate
entities, the plaintiff contends that the shares of the said corporate entities
were held by late Shri Banwari Lal Pasari, and thus, the Court may lift the
corporate veil. In addition, he states that with respect to property at Sr. No.
(f) there is no document on record to show that the name of Parmeswar
Estates Pvt. Ltd. was changed to West Wing Estates Pvt. Ltd. as alleged in
defendant no. 1's affidavit dated 14.04.2025.
6.7. He states that with respect to property at Sr. No. (h) of Schedule A,
defendant no. 1 admits that it is owned by a partnership firm of M/s Banwari
Lal Pasari. He states that since the plaintiff is a legal heir of late Shri
Banwari Lal Pasari, the plaintiff would be entitled to seek a claim in the said
immovable property as a legal heir. He states that defendant no. 1 has
submitted that late Shri Banwari Lal Pasari ceased to be a partner since the
year 1999; since Shri Banwari Lal Pasari expired on 22.05.1999. He states
that the purported Will dated 04.05.1999 of late Shri Banwari Lal Pasari
states that all shares will devolve upon defendant no. 1; he states that the
Will dated 04.05.1999 does not specifically bequeath the shares of the said
partnership firm. He states that thus, the plaintiff as natural legal heir of late
Shri Banwari Lal Pasari would succeed to share of her father.
6.8. He states that with respect to property at Sr. No. (i) of Schedule A,
whereas defendant no. 1 has placed on record title documents executed in
favour of Smt. Gayatri Devi, the aunt of the plaintiff; however, in the Will
dated 04.05.1999 executed by late Shri Banwari Lal Pasari there is a
reference to this property. He states however that the plaintiff does not have
in her possession any title documents to show that this property belonged to
late Shri Banwari Lal Pasari.
6.9. He states that the plaintiff has perused the affidavit dated 15.09.2000
placed on record by defendant no. 1, recording plaintiff's 'No Objection' to
grant of probate for the Will dated 04.05.1999 executed by Shri Banwari Lal
Pasari. He states that he has no instructions vis-à-vis the said affidavit. He
states however that the plaintiff has approached the High Court of Calcutta
for revocation of the probate granted on 14.12.2021 for the said Will and the
proceedings are next listed on 19.05.2025.
7. This Court has heard the submissions of the parties and perused the
record.
8. The 'Tabular Note' submitted by defendant no. 1 to canvas the details
of the ownership of the properties enlisted at Sr. no. (a) to (i) of Schedule A,
is based on the affidavit dated 14.04.2025 filed by defendant no. 1. The
defendant no. 1 has set out in this affidavit the facts showing that the
immovable properties at Sr. No. (a) to (i) belongs to third-parties and do not
form part of the estate of late Shri Banwari Lal Pasari. Defendant no. 1 has
placed on record the registered title documents for each of the properties at
Sr. no. (b) to Sr. No. (i) with this affidavit.
9. The defendant no. 1 has elected not to file any reply to the affidavit
dated 14.04.2025. The plaintiff along with the plaint has also not filed any
documents to support plaintiff's assertion that the properties enumerated at
Sr. No. (b) to Sr. No. (i) belonged to late Shri Banwari Lal Pasari.
10. The properties at Sr. No. (d), (e), (f), and (g) admittedly belongs to an
incorporated legal entity which has a separate juristic entity. The plaintiff
has not disputed the title documents qua the said properties recording the
ownership of the juristic entity. The only submission of the plaintiff is that
since late Shri Banwari Lal Pasari was the shareholder of these companies,
the present suit for inter-se partition between the legal heirs of late Shri
Banwari Lal Pasari is maintainable for those immovable properties.
10.1. This Court is unable to accept this submission. Firstly, there is no
document on record that late Shri Banwari Lal Pasari was a shareholder in
these companies. The plaintiff admits that she is unaware about the
shareholding of this company. Secondly, assuming late Shri Banwari Lal
Pasari was a shareholder in these companies, it is trite law that ownership of
an immovable property by an incorporate entity does not make the
shareholder of the company, the owner of the said immovable property. (Re:
NDMC v. Ram Kishan Kulwant Rai & Sons1). The said properties thus,
do not form part of the estate of late Shri Banwari Lal Pasari.
10.2. Thus, no suit for partition of an immovable property owned by a
corporate entity can be maintained inter-se the legal heirs of a shareholder.
The legal heirs of a shareholder are only entitled to seek a claim in the
shareholding of the company. The plaintiff has therefore failed to make out
any prima facie case in her favour vis-à-vis the said properties and therefore
the ad-interim order dated 01.08.2022 is liable to be vacated qua the said
properties.
11. The properties at Sr. No. (i) of Schedule A, as per the affidavit dated
14.04.2025 belongs to Mr. Rahul Pasari, Mr. Chandrakant Pasari and
defendant no. 1 herein. The defendant has referred to a registered title deed
in favour of Smt. Gayatri Devi Pasari i.e., the aunt of the plaintiff. The
defendant has referred to a Codicil dated 28.07.2006 executed by Smt.
Gayatri Devi Pasari which was probated by the High Court of Calcutta on
24.11.2022 to contend that this immovable property devolved upon Mr.
Rahul Pasari, Mr. Chandrakant Pasari and defendant no. 1 herein.
In reply, the plaintiff states that she does not have any contra
document to dispute the title of Smt. Gayatri Devi Pasari qua this property.
The plaintiff also admits that she does not have any document in her
possession to show that this immovable property belonged to late Shri
Banwari Lal Pasari. The plaintiff admits that she is not the legal heir of late
Smt. Gayatri Devi Pasari.
11.1. The plaintiff has thus failed to show any prima facie title to the
property at Sr. No. (i) of Schedule A and therefore the ad-interim order dated
01.08.2022 qua property listed at Sr. No. (i) of Schedule A is liable to be
vacated.
12. The property at Sr. No. (c) of Schedule A, as per the affidavit of
defendant no. 1 dated 14.04.2025 belonged to late Shri Purushottam Das
Pasari. The defendant no. 1 has placed on record a registered title deed
executed in favour of late Shri Purushottam Das Pasari. It is stated that the
said immovable property has been used in course of business of a
partnership firm, Hindustan Auto Distributors ('HAD'). It is stated that late
Shri Banwari Lal Pasari has never been a partner in the said firm. It is stated
that therefore the said immovable asset does not form part of the estate of
late Shri Banwari Lal Pasari. In addition, it is stated that late Shri
2012 SCC OnLine Del 4389 [Para 15]
Purushottam Das Pasari is the uncle of the plaintiff and therefore the
plaintiff is not his Class I legal heir.
The plaintiff has not disputed the title documents filed by defendant
no. 1 showing that the property stands in the name of late Shri Purushottam
Das Pasari. The learned counsel for the plaintiff has mildly argued that this
property may also form part of the Shri Purushottam Das Pasari HUF.
12.1. In the considered opinion of this Court, the plaintiff has failed to make
out any prima facie case that the title to this property at Sr. No. (c) of
Schedule A belonged to late Shri Banwari Lal Pasari. Defendant no. 1 has
placed on record documentary evidence showing that this property was
owned by late Shri Purushottam Das Pasari and it does not form part of the
estate of late Shri Banwari Lal Pasari. Therefore, the ad-interim order dated
01.08.2022 vis-à-vis property listed at Sr. No. (c) of Schedule A is liable to
be vacated.
13. The property at Sr. No. (h) of Schedule A, as per the affidavit of
defendant no. 1 dated 14.04.2025 belongs to a registered partnership firm
M/s Banwari Lal Pasari. The title documents in favour of the said
partnership firm have been placed on record and it is stated that the said
immovable asset has been used in course of the partnership firm. It is stated
that late Shri Banwari Lal Pasari has not been a partner in the firm since
1999.
The plaintiff has contended that she as a legal heir of late Shri
Banwari Lal Pasari is entitled to seek a claim in the said immovable property
since he was a partner. However, the plaintiff during arguments admits that
defendant no. 1 may have succeeded to the share of late Shri Banwari Lal
Pasari on the strength of Will dated 04.05.1999, which has been granted
probate by the High Court of Calcutta on 14.12.2021.
13.1. In the considered opinion of this Court, the plaintiff has not disputed
the ownership of the partnership firm M/s Banwari Lall Pasari vis-à-vis the
property at Sr. No. (h) of Schedule A. The plaintiff therefore, in these
proceedings, has failed to make out a prima facie case that the title to the
said property belonged to late Shri Banwari Lal Pasari and therefore the
interim order dated 01.08.2022 qua the property listed at Sr. No. (h) of
Schedule A is liable to be vacated.
13.2. As per the affidavit dated 14.04.2025, the said partnership firm has
been re-constituted on 25.05.1999 and thereafter, on three (3) separate
occasions. The issue of devolution of share of late Shri Banwari Lal Pasari
in the said firm is not the subject matter of this suit.
14. The property at Sr. No. (b) of Schedule A, as per the affidavit of
defendant no. 1 dated 14.04.2025, belongs to Purushottam Das Shankar Lal
HUF ('HUF'). It is stated that the recorded title holder of the said property
was late Smt. Laxmi Devi Pasari i.e., the grandmother the plaintiff.
However, the said property as per the Will dated 11.09.1991 executed by late
Smt. Laxmi Devi Pasari vested in the said HUF. It is stated that the Will was
probated by the High Court of Calcutta on 18.05.2001. It is stated that this
property does not form part of the individual estate of late Shri Banwari Lal
Pasari.
The plaintiff has orally contended during arguments that the Will
dated 11.09.1991 is suspicious and has not admitted its validity. In the
alternative, plaintiff has contended that even as per the affidavit dated
14.04.2025 plaintiff is admittedly a coparcener and/or member of the said
HUF.
14.1. In the considered opinion of this Court, the plaintiff has not disputed
that the title of this property at Sr. No. (b) of Schedule A vested in late Smt.
Laxmi Devi Pasari through a registered document. The plaintiff has sought
to orally dispute the validity of the Will dated 11.09.1991 executed by late
Smt. Laxmi Devi Pasari which vests the said immovable property in favour
of the HUF. The Will dated 11.09.1991 has been granted probate by the High
Court of Calcutta on 18.05.2001 and thus, the plaintiff cannot dispute the
said probate by oral submissions in these proceedings. This Court finds
merit in the submission of the defendant that to seek a claim in the said
immovable property plaintiff would have to seek partition of the said HUF
in separate proceedings by impleading all the coparceners and/or members
of the said HUF. The said property cannot be partitioned in these
proceedings between three (3) legal heirs of late Shri Banwari Lal Pasari.
There is no pleading qua the said HUF in this suit. Thus, the plaintiff has
failed to make out a case for grant of ad-interim injunction qua the said
property in these proceedings and therefore the interim order dated
01.08.2022 qua the said property is vacated.
15. The property at Sr. No. (a) of Schedule A, admittedly has been sold by
the plaintiff herself on 10.05.2022 by a registered conveyance deed along
with defendant nos. 1 and 2 to Mr. Sandeep Kataria and Ms. Bhawna
Kataria. Pertinently, the fact that this property already stood sold was not
brought to the attention of this Court when the ex-parte interim order dated
01.08.2022 was prayed for and granted. The said order is therefore liable to
be vacated even qua the said property.
16. The suit has been filed on the specific premise that late Shri Banwari
Lal Pasari expired on 22.05.1999 without executing any testament. This
assertion has been made categorically at paragraph nos. 2 and 18 of the
plaint. However, defendant no. 1 has placed on record the fact that late Shri
Bansari Lal Pasari has executed a Will dated 04.05.1999 in terms of which a
probate has been granted by the High Court of Calcutta on 14.12.2021.
16.1. The defendant no. 1 has placed on record affidavit(s) dated
15.09.2000 executed by defendant nos. 1 and 2 confirming the validity of
the Will dated 04.05.1999, which were submitted in the High Court of
Calcutta in the testamentary proceedings being PLA No. 315/2000. The
stand of the learned counsel for the plaintiff during arguments vis-à-vis these
affidavits is absolutely vague and he stated that he has no instructions from
the plaintiff about these affidavits.
In the considered opinion of this Court, prima facie the affidavits
dated 15.09.2000 executed by the plaintiff and defendant no. 2, shows that
the plaintiff had knowledge of the Will dated 04.05.1999 executed by late
Shri Banwari Lal Pasari and the proceedings before the High Court of
Calcutta for grant of probate of the said Will. The non-disclosure of the said
affidavit and the probate while filing the present suit in fact shows that the
plaintiff suppressed material facts from this Court and deposed falsely in
paragraph nos. 2 and 18 of the plaint, while contending that late Shri
Banwari Lal Pasari died without executing any testament.
17. The present suit has been filed by the plaintiff in view of Section 8 of
the Hindu Succession Act, 1956 claiming to be a natural legal heir of late
Shri Banwari Lal Pasari, who died intestate. Section 3 (f) and (g) of the said
Act defines legal heir and intestate. However, during the subsistence of the
probate dated of 15.09.2000 granted by High Court of Calcutta to the Will
dated 04.05.1999 of late Shri Banwari Lal Pasari, the present suit claiming
partition on the plea of intestacy is without any cause of action and has no
basis in law. There can be no dispute that plaintiff is bound by the said
probate dated 15.09.2000 unless it is revoked by the High Court of Calcutta.
(Re: Section 41 of Indian Evidence Act, 1872).
18. In view of the aforesaid findings, the ex-parte ad-interim order dated
01.08.2022 is hereby vacated. I.A. 6201/2022 filed by the plaintiff is
dismissed and I.A. 9027/2023 filed by the defendant is hereby allowed.
I.A. 20074/2022 (under Order VII Rule 10 CPC) in CS(OS) 225/2022
19. List for arguments on 17.09.2025.
CS(OS) 200/2023
20. List on 17.09.2025.
MANMEET PRITAM SINGH ARORA, J
MAY 14, 2025/mt/MG
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