IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR PARTITION Judgment delivered on: 14.08.2012 CS(OS) 2318/2006 MR. CHETAN DAYAL Through: Ms Yashmeet Kaur, Adv.... Plaintiff versus MRS. ARUNA MALHOTRA & ORS. Through: Mr Mahesh Kumar Singh, Adv for D-1 Ms Manisha Tyagi, Adv. for DDA... Defendants CORAM: HON'BLE MR. JUSTICE V.K.JAIN JUDGMENT V.K.JAIN, J. (ORAL) IA No. 13889/2010 (O. 14 R. 2 CPC) 1. The following additional issue is framed on the pleadings of the parties:- Whether the suit is properly valued for the purpose of Court fee and jurisdiction and the requisite fee has been paid on it? OPP 2. The learned counsel for plaintiff also wants one issue with respect to jurisdiction of this Court to decide the genuineness and validity of the Will set up in the plaint another issue on the maintainability of the suit. 3. As regards maintainability of the suit, this being a suit for partition on the basis that the plaintiff is one of the co-owners of the suit property, it can hardly be disputed that the suit for partition and separate possession of the
property is maintainable in law. The learned counsel for the defendants is unable to show how the suit, as framed, is not maintainable. Therefore, there is no necessity for framing any issue with respect to maintainability of suit. 4. As regards jurisdiction, the learned counsel for the defendants 1 and 2 has placed reliance upon T. Venkata Narayana and Others v. Venkata Subbamma and Ors. (1996) 4 SCC 457 and Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. (1993) 2 SCC 507. In the case of Chiranjilal Shrilal (supra), one Chiranjilal Shrilal Goenka, who was involved in several suits, one of which was pending at the stage of appeal, died leaving behind a Will whereby he appointed his younger daughter as the sole executrix of the Will. One Radhey Shyam, claimed to be adopted son of Shri Chiranjilal Shrilal. He along with his wife filed substitution application under Order 22 Rule 3 of CPC setting up rival claim. When a dispute arose as to who would represent the estate of Chiranjilal Shrilal, all the three were brought on record by the Court. By a further order, an arbitrator was appointed to settle the dispute as to who would be the legal heirs of the estate of late Chiranjilal Shrilal. Pursuant to the order, the arbitrator Justice V.S. Deshpande entered upon the arbitration. The counsel for Radhey Shyam gave a letter giving details of all the pending suits and one of the items mentioned therein was the suit title S.N. Rungta v. R.C. Goenka. The schedule of the suits was annexed to the order whereby the arbitrator was appointed. One of the issues framed by the Arbitrator was with respect to execution of the Will dated 29.10.1982. Another issue was with respect to the execution of the Will dated 04.07.1978 in case the execution of the Will dated 29.10.1982 was not proved. Simultaneous proceedings in the probate suit were pursued in Bombay High Court where the learned Judge expressed doubt as to whether the arbitrator had jurisdiction to decide the probate suit. Similarly on an application made before the arbitrator for clarification, he too stated that when the order of his appointment was passed and all the pending proceedings were referred to in the schedule, it will be assumed that the Court had applied its mind and referred for arbitration the probate suit as well. But, he could not give any clarification in that behalf. He felt that it would be expedient to the applicant to seek clarification from this Court. It was contended before Supreme Court that the Probate Court had exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will and such an issue could not be referred to arbitration. The contention of the respondent, on the other hand, was that the applicant had consented to refer the probate suit for arbitration and the plea taken by him was just and afterthought. It was
also submitted that since the Court had, with a view to decide all the disputes referred them for arbitration, the arbitrator alone had got jurisdiction and the award would be subject to the approval or disapproval of the Court. His contention was that instead of parallel proceedings before the probate court and the arbitrator to be permitted to continue, it was desirable that the arbitrator should decide issues Nos.1 and 2 with other issues and determine as to who would be the legal heirs and his decision would be binding in the probate suit. It was in these circumstances and on these facts that Supreme Court concluded that it is the Probate Court which has been conferred with exclusive jurisdiction to grant probate of the Will or refuse the same. It was observed that grant of probate by a Court of competent jurisdiction is in the nature of the proceeding in rem which binds not only the parties before the Court, but also all other persons in all proceedings arising out of the Will or claims under or connected therewith. It was further observed that the award deprives the parties of their statutory right of appeal provided under Section 299 of Indian Succession Act. It was also observed that the Probate Court alone had exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. It was made clear that this exposition of law was only for the purpose of finding the jurisdiction of the arbitrator. 5. In T. Venkata Narayana (supra), the scope of the suit was limited to interpretation of the compromise decree passed in the partition suit. The only question before the Supreme Court was as to whether the respondent was entitled to adduce secondary evidence to prove the alleged Will said to have been executed in her favour. In that case, a compromise decree for partition came to be passed by the District Court. Thereafter, a civil suit was filed for perpetual injunction against alienation of the said property. On death of the defendant, the respondent came on record as her legal heirs. They claimed that the deceased defendant had executed a Will in their favour. The question which came up for consideration before Supreme Court was as to whether the respondents were entitled to adduce secondary evidence to prove the Will which they were setting up. It was in this context that Supreme Court observed that a same suit for injunction could not be converted into a suit for probate of a Will which has to be proved, according to law, in the Court having competence and jurisdiction, according to the procedure provided under the Indian Succession Act and a mere suit for injunction could not be converted into a probate suit.
6. In the case before this Court, no parallel proceedings with respect to the Will set up by the plaintiff are pending. In fact, no proceedings with respect to genuineness or otherwise of the Will dated 04.02.1997 have been initiated except two suits in Punjab, one filed by the plaintiff seeking declaration that the Will dated 04.02.1997 was the last Will of Shri Dayal Chand Kaith and the other filed by defendant No. 2 through defendant No. 1 as his attorney, seeking to challenge the aforesaid Will. Admittedly, both those suits were decided in favour of the plaintiff. In those suits, it was held that the Will dated 04.02.1997 was the last and final Will of late Shri Dayal Chand Kaith. As regards partition of Delhi property, it was held that Chetan Dayal was at liberty to file a suit at the place where the property is situated. In this Court, in the proceedings initiated by defendant No. 2 for obtaining Letter of Administration in respect of the estate of late Shri Dayal Chand Kaith, the Court, while dismissing the petition on the ground of limitation, took the view that the decision of the Courts at Punjab was not binding on this Court in those proceedings. Another reason given by the Court for dismissing the petition was that an earlier petition filed by the executor of the Will had already been dismissed. 7. In a civil suit whenever a party to the litigation set up a Will, which is disputed by the other party, the Civil Court with a view to decide the controversy involved in the suit is required to adjudicate upon the execution and validity of the Will set up in the pleadings, though the finding of the Civil Court not being judgment in rem will not bind those who are not parties to the suit. It is not in dispute that probate of the Will of a Hindu is not obligatory through there no bar to grant of probate or Letter of Administration, as the case may be. Section 213 (1) of Indian Succession Act provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. However, sub-section (2) of the aforesaid Section, to the extent it is relevant, stipulates that the said Section shall only apply in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57. Section 57(a) applies to all Wills made by any Hindu, Buddhist, Sikh or Jaina on or after 01.09.1870 within the territories which at the said date were subject to the Lieutenant-Governor or Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of judicature at Madras and Bombay and clause (b) applies to all such Wills and codicils made
outside those territories and limits so far as relates to immovable property situate within those territories or limits. Therefore, if one or more Will are set up in civil suit, the Court cannot refuse to adjudicate upon the genuineness and execution of the Will and compel the parties to seek probate before relying upon the Will. Doing that would amount to making probate of the Will executed by a Hindu mandatory, which would not be in consonance with the provisions of Indian Succession Act. Therefore, there is no ground to frame issue with respect to jurisdiction of this Court to adjudicate upon the genuineness and validity of the Will set up in the plaint. This issue came up for consideration before this Court in Rajan Suri and Anr. v. The State and Anr. AIR 2006 Delhi, 148b and this Court, inter alia, held as under:- 31. It is thus apparent that no right as executor can be established in any Court unless probate or letters of administration have been obtained of the Will in view of the provisions of Section 213 of the said Act. However, the said Section 213 would have no applicability in Delhi and it is not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof. In this behalf, reference may be made to the judgment in Behari Lal Ram Charan v. Karam Chand Sahni, AIR 1968 Punjab 108 which has been followed by this Court in Sardar Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal 1996 III AD (Delhi) 281. It was observed in Behari Lal Ram Charan case (supra) as under : "From a bare perusal of these two sections it is apparent that the objection of defendant No. 1 on the preliminary issue raised by him in the trial Court was without any substance Clause (a) of Section 57 read with sub-section (2) of Section 213, it would appear applies to those cases where the property and parties are situate in the territories of Bengal Madras and Bombay while clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories. clause (c) of Section 57, however, is not relevant for the present purpose. therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned above, the rigour of Section 213, subsection (1) is not attracted 32. A similar view was also taken by the learned Single Judge in Murlidhar Dua and Ors. v. Shashi Mohan, and Santosh Kakkar and Ors. v. Ram Prasad and Ors., 71 (1998) DLT 147. It was held that the provisions contained in Section 213 of the said Act requiring probate do not apply to Wills made outside Bengal and the local limits of ordinary original jurisdiction of High
Courts of Madras and Bombay except where such Wills relate to property situated in territories of Bengal of within the aforesaid local limits. In a recent judgment of the learned Single Judge of this Court in Mrs. Winifred Nora Theophilus v. Mrs. Lila Deane and Ors.,. It was observed in para 10 as under : "10. On interpretation of Section 213 read with Section 57(a) and (b), the Courts have opined that where the Willis made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of Ordinary Original Civil Jurisdiction of High Court of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall not apply. this is what the various judgments cited by the learned counsel for the defendants decide. Therefore, there is no problem in arriving at the conclusion that if the Will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required." 33. The result of the aforesaid is that complete line of judgment referred by the learned counsel for the petitioner in support of the submission that probate is mandatory would have no application to the facts of the present case and thus findings arrived at in the collateral proceedings in the suit to which the petitioners were parties would bind the petitioners. The application stands disposed of in terms of this order. IA No. 1433/2012 (under Section 151 CPC) After arguments, the learned counsel for the defendant No. 1 seeks to withdraw this application. Dismissed as withdrawn. IA No. 6902/2010 (under Section 151 CPC) This application already stands disposed of on 29.09.2011 and may be taken as such. IA No. 9321/2010 (under Section 151 CPC) Heard. Dismissed as not pressed. IA No. 9324/2010 (under Section 151 CPC) Heard. Admittedly, front portion of the suit property is lying vacant. It would not be in the interest of any party to keep the premises vacant. However, it has to be ensured that the premises is let out to a person, who is ready to vacate the same, as and when directed by the Court. The parties are, therefore, permitted to look for a tenant who is ready to come to the Court and give an undertaking that if this portion is let out to him, he will deposit the rent in the Court and will vacate the premises, as and when directed by the Court, within such time as the Court may fix for this purpose.
The particulars of any such tenant would be furnished to the Court under intimation to the opposite counsel and if front portion is let out to him, under the order of the Court, the lease deed in favour of the tenant would provisionally be executed by all the parties to the suit. The application stands disposed of in terms of this order. IA 7403/2012 (u/s.151 CPC) Heard. The learned counsel for the defendants seeks permission to withdraw this application with liberty to file application for amendment of written statement of defendant No.2. The application stands dismissed as withdrawn. Leave, as sought, is granted. CS(OS) 2318/2006 Affidavit by way of evidence be filed within four weeks. The parties to appear before the Joint Registrar on 3rd October, 2012 for fixing dates for cross-examination of witnesses of plaintiff. The FDR of Rs.28 lakhs will be got renewed by the Registry from time to time and will be kept alive. AUGUST 14, 2012 Sd/- V.K.JAIN, J