Through: Mr. Rahul Kumar Srivastava, Advocate. C.M(M) No. 211/2013. Through: Mr. Rahul Kumar Srivastava, Advocate.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE CM(M) Nos. 208/2013 & 211/2013 DATE OF DECISION : 4th December, 2014 C.M(M) No. 208/2013 SUDARSHAN KUMAR JAIN Through: Mr. Rahul Kumar Srivastava, Advocate....Petitioner VERSUS MUKTA JAIN & ANR. Through: Mr. Rajeev Pandey, Adv. for R Respondents C.M(M) No. 211/2013 SMT. BIMLA JAIN & ANR. Through: Mr. Rahul Kumar Srivastava, Advocate....Petitioners VERSUS MUKTA JAIN & ANR. Through: Mr. Rajeev Pandey, Adv. for R Respondents CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA VALMIKI J. MEHTA, J (ORAL) 1. These petitions under Article 227 of the Constitution of India are filed by the applicants under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC) impugning the order of the trial court dated by which the trial court has dismissed the applications under Order I Rule 10 CPC. 2. The applications under Order I Rule 10 CPC were filed in a suit for possession, recovery of rent etc against a tenant with respect to the property bearing no.g-8, Ground Floor, Vishal Bhawan, 95, Nehru Place,

2 New Delhi By the impugned order the petitioner in CM(M) No.208/2013 has been added only as a proforma defendant. By the selfsame impugned order the application of the petitioners in CM(M) No.211/2013 for impleadment has been dismissed. 3. The subject suit is filed by the respondent no.1 herein against the tenant who is the respondent no.2 herein. As per the suit plaint, the suit property was let out to the tenant by the deceased husband of the plaintiff namely Sh. Anil Jain on in terms of a duly executed and registered lease deed. Respondent no.1/plaintiff/smt. Mukta Jain is the second wife of Sh. Anil Jain and who claims ownership rights in the suit property by virtue of the Will executed in her favour by her husband Sh. Anil Jain on The claim of the petitioner in CM(M) No.208/2013, one Sh. Sudarshan Kumar Jain, is predicated on the ground that he is the brother of late Sh. Anil Jain and that he is the co-owner of the suit property by virtue of the documents dated by which the suit property was purchased. Therefore pleading that he is a co-owner, and therefore has vital interest in the litigation, an application under Order I Rule 10 CPC was filed for being added as a defendant. 5. Petitioners in CM(M) No.211/2013 are Smt. Bimla Jain, the mother of Sh. Anil Jain and Sh. Vikas Jain who is the son from the first wife of Sh. Anil Jain. They claimed rights by disputing the Will dated being relied upon by the respondent no.1/plaintiff and claiming that Sh. Anil Jain died intestate and therefore being Class I legal heirs, they will inherit rights equal to respondent no.1 in the suit property. 6(i). There are two aspects which arise for decision in the opinion of this Court in these petitions. (ii) The first aspect is as to whether the suit filed by a person claiming to be an owner/landlord against the tenant can be taken at an offtangent by converting the suit into a suit claiming title inter se persons who claim to be owners of the suit property. This first aspect is relevant because admittedly a probate petition/testamentary case has been filed by respondent no.1/plaintiff qua the Will of Sh. Anil Jain dated which is pending before the District and Sessions Judge, Patiala House Courts, Delhi and in which case the mother Smt. Bimla Jain and the son from the first wife Sh.

3 Vikas Jain are the objectors. Objections in this probate case have also been filed by the brother of Sh. Anil Jain Sh. Sudarshan Kumar Jain, the petitioner in C.M.(M) No.208/2013. I am informed that one other brother and the father of Sh. Anil Jain have also filed objections in this probate/testamentary case disputing the Will dated (iii) The second aspect to be addressed is that if the respondent no.1/plaintiff for some reason fails to establish the Will dated , and thus it transpires that the respondent no.1/plaintiff is not the sole owner of the property, then how should the rights of these other persons, namely the petitioners, be protected if they are not made parties or contesting /effective defendants in the subject suit. 7. As stated above, by the impugned order the petitioner in CM(M) No.208/2013 being Sh. Sudarshan Kumar Jain brother of late Sh. Anil Jain has been added as a proforma defendant. Sh. Sudarshan Kumar Jain however claims that he should be impleaded as an effective contesting defendant and not only a proforma defendant, inasmuch as, he is the coowner of the property by virtue of the documents dated The question is that whether the trial court has erred in making the brother Sh. Sudarshan Kumar Jain only as a proforma defendant. 8.(i) In my opinion, the trial court has been more than liberal towards the brother Sh. Sudarshan Kumar Jain by adding him as a proforma defendant inasmuch as actually Sh. Sudarshan Kumar Jain need not have been added as a proforma defendant in view of Section 116 of the Indian Evidence Act, 1872 and which states that the tenant is estopped and has no right to question the title of the landlord. Admittedly, the landlord in the present case, and who executed a registered lease deed in favour of respondent no.2/tenant, was late Sh. Anil Jain. Sh. Sudarshan Kumar Jain admittedly was not the joint landlord at the time of execution and registration of the lease deed in favour of respondent no.2/tenant. Respondent no.2/tenant therefore cannot plead title in any other person other than Sh. Anil Jain and thereafter of his legal representatives. Therefore, applying the spirit of this principle, which holds that ownership of a landlord cannot be challenged, therefore, Sh. Sudarshan Kumar Jain cannot in this suit for possession claim ownership rights on the basis of the documents dated and the result of which will be to take the suit at an off-tangent by converting the same into a title suit. I would also like to state that it is settled law that even if the respondent no.1/plaintiff would not be the sole owner of the property she would undoubtedly be a co-owner on account of being the second wife of Sh. Anil Jain and in a suit for possession against a tenant plaintiff only has to

4 show a better title/right than the tenant and it is not necessary that exclusive ownership should be proved in favour of respondent no.1/plaintiff in a suit for possession against a tenant. (ii) It is also relevant to note that Sh. Sudarshan Kumar Jain the brother of Sh. Anil Jain is suddenly springing up today, so to say, by claiming co-ownership rights on the basis of the documents dated i.e document executed around 35 years back. Admittedly, no suit or any legal proceedings have been initiated by Sh. Sudarshan Kumar Jain to claim rights as a co-owner of the suit property on the basis of these documents dated till the time he filed the subject application under Order I Rule 10 CPC, and therefore, it is not permissible in such facts to even add Sh. Sudarshan Kumar Jain as a proforma defendant. Since however the respondent no.1/plaintiff does not impugn the order adding the petitioner Sh. Sudarshan Kumar Jain in CM(M) No.208/2013 as a proforma defendant, I need not examine the issue further and the impugned order is therefore sustained limiting the right of the brother Sh. Sudarshan Kumar Jain only to be a proforma defendant in the suit and nothing further and which is sufficient to enable him to watch his alleged rights in the suit property and to establish which he will have to file substantive proceedings. 9. So far as the rights of petitioners in CM (M) No.211/2013 are concerned, they would stand on a different footing inasmuch as if the Will dated of Sh. Anil Jain in favour of respondent no.1/plaintiff is not established, Smt. Bimla Jain and Sh. Vikas Jain, the petitioners in CM(M) No.211/2013 being Class I legal heirs under the Hindu Succession Act, 1956 will have 1/3rd rights in the suit property alongwith the respondent no.1/plaintiff. The issue is that should these persons Smt. Bimla Jain and Sh. Vikas Jain be added as party-defendants to the suit inasmuch as admittedly their rights can be affected. Let us examine this aspect. 10. The rights which would be affected of Smt. Bimla Jain and Sh. Vikas Jain would be if the possession is taken by the respondent no.1/plaintiff from the defendant in the suit either during the pendency of the suit or in execution proceedings etc. The other rights of Smt. Bimla Jain and Sh. Vikas Jain would be their claim to rent of the suit/tenanted premises from the tenant/respondent no.2/defendant. 11. So far as the aspect of possession is concerned, in my opinion, it will suffice if the respondent no.1/plaintiff does not take possession of the property in the subject suit except after seeking permission from the court

5 deciding the probate case/testamentary case where the Will dated is propounded or in case the said probate/testamentary case is decided in favour of respondent no.1/plaintiff. There is no purpose in unnecessarily delaying the suit for possession against the tenant by adding persons claiming ownership because there is no reason why the tenant should take benefit of inter se disputes as to title and by continuing to illegally stay in the suit premises. Therefore, the only aspect addressed to protect the possession of Smt. Bimla Jain and Sh. Vikas Jain and accordingly is that, it is ordered that though Smt. Bimla Jain and Sh. Vikas Jain are not made as contesting defendants in the suit, and subject to the aspect of taking possession by the plaintiff as stated above, they are made only as proforma defendants like Sh. Sudarshan Kumar Jain i.e they would have no right to contest the subject suit by claiming title in the suit property. The ownership aspect will surely be decided in terms of the probate/testamentary case filed by the respondent no.1/plaintiff relying on the Will dated of Sh. Anil Jain and judgment in which will be a judgment in rem. 12(i) That takes us to the issue as to what should happen to the rent which is to be paid for the suit/tenanted premises. One thing is clear that respondent no.1/plaintiff/widow being the second wife of late Sh. Anil Jain would be undoubtedly a 1/3rd co-owner of the suit property. Therefore, to the extent of 1/3rd rent/damages which has to be paid by the respondent no.2/defendant/tenant, nothing in law can prevent the respondent no.1/plaintiff from receiving that one third share of the rent/damages. (ii) So far as 2/3rd portion of rent is concerned, and if issue as to inter se distribution between Smt. Bimla Jain and Sh. Vikas Jain on the one hand and respondent no.1/plaintiff/ Smt. Mukta Jain on the other hand is to be decided in the subject suit, then effectively once again the issue of inter se title amongst contesting owners will have to be decided in the suit, and which is not necessary in view of the fact that not only the suit against the tenant will be delayed but actually the effective order, whether interim or otherwise with respect to distribution of rent can be obtained by one or more of the parties in the probate/testamentary case which is pending before the District and Sessions Judge, Patiala House Courts, New Delhi. Therefore, so far as 2/3rd rent is concerned, the payment of such an amount of rent to the respondent no.1/plaintiff will depend upon the result on an application which Smt. Bimla Jain and Sh. Vikas Jain may choose to file in the probate/testamentary case, including because a testamentary case court has enough powers to pass appropriate interim orders with respect to

6 preservation, maintenance etc of the property which is the subject matter of probate/testamentary case. 13. In view of the above, whereas CM(M) No.208/2013 will stand dismissed, CM (M) No.211/2013 will stand allowed to the limited extent that petitioners being Smt. Bimla Jain and Sh. Vikas Jain are also added as proforma defendants in the suit, subject however to the observations with respect to possession and two third share of the rent as stated above being not taken by the plaintiff Smt. Mukta Jain except in terms of the orders in the testamentary case or as will be decided in terms of the final judgment passed in the probate/testamentary case. Petitions are disposed of accordingly. Sd/- DECEMBER 04, 2014/ib VALMIKI J. MEHTA, J.

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