it is settled law that a probate court can never go into the question of title and its powers are limited viz., to examine whether the will in question was executed without coercion and undue influence, to gauge if the testator was of a sound disposing mind and whether the will was duly attested or not. Here, the plaintiff's main contention is that the plaintiff's mother could not have bequeathed more than what she owned, which is clearly an issue of title and out of the scope of adjudication of the probate court. Reliance in this regard was placed upon the judgments rendered by the Supreme Court in K.K. Birla v. R.S. Lodha, (2008) 4 SCC 300; Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, (2007) 11 SCC 357; Chiranjilal Srilal Goenka (Dead) By LRs v. Jasjit Singh & Ors., (2000) Supp. 5 SCR 313, wherein it was categorically opined that while granting a probate, the court would not decide any dispute with regard to title.
* 1. By this order, it is proposed to decide IA No.7030/2004 filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC; IA No.8157/2004 CS(OS) 1166/2004 Page No. 1 of 42 filed by the defendant No.1 under Section 151 CPC for clarification of the order dated 15.10.2004; IA 3857/2005 for preponement of the date of hearing (it having become infructuous); IA No. 4671/2005 under Section 151 CPC filed by the defendant no.1 for renewal of the lease deed; IA No. 4702/2007 filed by Defendant no.1 for release of the rent and IA No. 8753/2008 U/O XL Rule 1 filed by the plaintiffs.
2. The aforesaid interim applications arise out of the suit for declaration, injunction and rendition of accounts filed by the plaintiff Gita Abhyankar against the defendant No.1. The plaint discloses that the plaintiff Gita Abhyankar was the only child of late Mr. Kewal Singh and late Mrs. Shamie Singh. The defendant No.1 is the son of the plaintiff and the brother of the defendant No.2.
3. Mr. Kewal Singh during his lifetime had acquired, apart from various movable assets, three immovable properties, viz., Property No.1/31, Shanti Niketan, New Delhi; Plot No.84, Jacraunda Marg, DLF Qutab Enclave, Gurgaon and a Farm House in Village Carter Puri, District Gurgaon. The plot of land at Shanti Niketan measuring 2000 sq. yds. was purchased by late Mr. Kewal Singh in his own name by virtue of a perpetual lease deed registered in his favour on 24.10.1967.
4. It is the case of the plaintiff that the plaintiff's mother Shamie CS(OS) 1166/2004 Page No. 2 of 42 Singh was most uncomfortable about the fact that the Shanti Niketan property was only in the plaintiff's father's name and on her repeatedly expressing her anguish in this regard and also with a view to avoid any family dispute or litigation in the future, the plaintiff's parents and the plaintiff entered into extensive discussions between themselves, pursuant whereto, it is stated in the plaint, a family arrangement was finally concluded between the family members in late January, 1969.
5. In the aforesaid background and allegedly in terms of the said family understanding, the plaintiff's father finalised certain documents, being a set of letters as well as an agreement dated 30th July, 1969.
6. A letter dated 10th February, 1969 was written by Mrs. Shamie Singh (since deceased) to the plaintiff Gita Abhyankar asking her to join as a co-owner and to contribute towards the cost of construction by raising a loan from her father.
7. The above letter of Mrs. Shamie Singh led the plaintiff to write to her father by a letter dated 17.02.1969:-
"I should very much like to join mummy as a co- owner, and thereby in a way own, some personal
property for myself, this is only possible if you are disposed to help me to procure the requisite finance to enable me to join mummy as a co-
owner."
8. The plaintiff's father Mr. Kewal Singh replied to the aforesaid CS(OS) 1166/2004 Page No. 3 of 42 letter of the plaintiff by his letter dated 10th March, 1969 stating that he would certainly try to raise the necessary funds and would let her know as soon as he was able to do that.
9. On 26.05.1969, a perpetual sub-lease was executed in the name of Mrs. Shamie Singh, the mother of the plaintiff.
10. By a letter dated 25.07.1969, the father of the plaintiff informed her that he had arranged for the money to be loaned to the plaintiff from his bankers against his life insurance policies and provident fund and that the loan will bear interest @ 8% to be borne by the plaintiff.
11. On 30th July, 1969, a reply was sent by the plaintiff to her father, acknowledging and undertaking to re-pay the amount towards the loan and also executing a pronote for Rs.1,80,000/- in consideration of the loan her father had agreed to advance to her.
12. Thereafter, allegedly an agreement was entered into on 30th July, 1969 between Mrs. Shamie Singh on the one hand and the plaintiff on the other hand, whereby and whereunder it was agreed that Mrs. Shamie Singh (first party) and Ms. Gita Abhyankar (second party) have become co-owners, ever since the 30th July, 1969, of the two houses proposed to be constructed on the plot of land measuring 2,000 sq. yds. bearing No.1/31 in Shanti Niketan and registered in the name of the first party. CS(OS) 1166/2004 Page No. 4 of 42 It was further agreed that on being completed, the houses shall be let out by the first party in consultation with the second party and after meeting the expenses, the balance left shall be divisible equally between the parties thereto. It was also laid down that neither party would be entitled to sell or in any other manner assign her share in the property for a period of two years or as long as the loans obtained by either of the parties for the construction of the houses had not been paid in full. It was also provided that "after the expiry of the aforesaid period, the first party shall as and when required by, but at the cost of, the second party execute such deed and/or document so as to more fully secure the second party and her title in the property jointly owned by them."
13. All these documents were admittedly executed when the plaintiff's father, the plaintiff's mother and the plaintiff were all residing at 10, Moti Lal Nehru Marg, which address is given in the said letters. The mother of the plaintiff Mrs. Shamie Singh thereafter filed her wealth tax and income-tax returns, wherein she declared that she was only a co-owner having half share in the Shanti Niketan property and further declaring and acknowledging that the plaintiff was the owner of the other half share in the said property (Annexures A-8 to A- 17). Pertinently, all these declarations to the Government departments CS(OS) 1166/2004 Page No. 5 of 42 continued to be made even after the plaintiff got married to Mr. Uday Abhyankar. Since the plaintiff's husband was posted overseas and the plaintiff was not in India, her affairs and interests in India were looked after by her father Mr. Kewal Singh. The plaintiff from year to year executed Powers of Attorney either in the name of her mother and/or in the name of Mr. M.S. Rathee, a Chartered Accountant, who was filing the tax returns of her father as well.
14. On completion of the construction in March, 1970, the front residential house was leased out to the British High Commission, New Delhi on a short-term lease, which lease was renewed from time to time. The High Commission continues to be a tenant of the front unit till date. The back unit allegedly came to be occupied by the plaintiff and her family over the years.
15. On October 26, 1970, the plaintiff's mother Mrs. Shamie Singh wrote to the Vice-Chairman of DDA, wherein she stated:- "I have built two vertical units on this plot and am interested in the division of the property
between myself and my daughter as per site plan enclosed.............................. As such, I am sure, division as shown on the site plan of the plot is possible specially in the case when the owner of the plot wants to give one part of the property to his son or daughter."
CS(OS) 1166/2004 Page No. 6 of 42
16. A letter dated 15.07.1975 was written by Mr. Kewal Singh, the father of the plaintiff to the Additional Secretary, DDA, which was counter-signed by the mother of the plaintiff, wherein it was stated as follows:-
"I am writing in connection with the Perpetual
Sub-lease of the Plot No.31, Street No.1, Shanti- niketan, New Delhi, which stands in the name of my wife, Shrimati Shamie Singh. As you know, I
was a member of the Government Servants
Cooperative House-Building Society, but finally I thought the Lease should be in the name of my
wife. On reconsideration we both feel that it
should be in the joint name of myself and my wife and daughter, Mrs. Gita Abhyankar, for the
following reasons:
a) My wife and I would like to jointly
own the property so that in case of
any contingencies, the other person
can look after the property interests
without any legal complications.
b) My daughter, Mrs. Gita Abhyankar,
had contributed half of the cost of the
house when it was built. It would,
therefore, only be desirable and
appropriate if my daughter's name is
also included in the Sub-Lease. I
might mention that my daughter has
been receiving the rent and paying
the income-tax since the house was
built. It is relevant to mention that
my daughter's husband, Mr. Uday
Abhyankar, is also a Govt. servant
and is in the Indian Foreign Service.
He is at present Commercial
Secretary in our Embassy in Paris."
CS(OS) 1166/2004 Page No. 7 of 42
17. A joint letter dated 16.03.1980 was thereafter addressed by the parents of the plaintiff to the Secretary, Government Servants Association, Vasant Vihar, requesting for the inclusion of the name of the plaintiff as well as her father in the perpetual sub-lease.
18. In reply to the aforesaid letter, by a letter dated 21.03.1980, approval was given by the Society for inclusion of the name of Mr. Kewal Singh and the plaintiff as co-lessees in respect of the Shanti Niketan property.
19. The plaintiff's father Mr. Kewal Singh died on 18th October, 1991 and her mother Mrs. Shamie Singh died on 18th May, 2004. It is averred that the plaintiff, on the death of her mother, had come into possession from her mother's records of the following wills:- (i) Joint and mutual will of Mr. Kewal Singh and Mrs. Shamie Singh dated 30th August, 1985; and
(ii) Joint and mutual will of Mr. Kewal Singh and Mrs. Shamie Singh dated 26th June, 1986.
20. It is asserted in the plaint that from the aforesaid wills, the plaintiff has now for the first time come to know that in terms of the said wills not only was the plaintiff's 50% share in the property sought to be protected, but the plaintiff is also the beneficiary of the remaining CS(OS) 1166/2004 Page No. 8 of 42 estate of her father. The plaintiff asserts that she is in possession of the immovable properties mentioned in the wills and that she is also one of the five trustees named in the wills dated 30th August, 1985 and 26th June, 1986 with respect to her parents' 50% share in the Shanti Niketan property, of which the defendants No.1 and 2 are the beneficiaries in equal shares. The plaintiff, however, learnt to her horror that late Mrs. Shamie Singh had on the basis of wrong and incorrect statements obtained the mutation of the property at No.84, Jacaraunda Marg, DLF Qutab Enclave Complex and all the shares and bank balances of late Mr. Kewal Singh into her own name.
21. Pursuant to the demise of Mrs. Shamie Singh, the plaintiff was shocked to receive from the British High Commission a letter dated 10.06.2004 stating that they had been advised that payment of rent should be made to the defendant No.1, an alleged named beneficiary of the estate of late Mrs. Shamie Singh. The plaintiff also learnt that a will had been made by the plaintiff's mother bequeathing the Shanti Niketan property as also the Gurgaon property and other assets in favour of her grandson, the defendant No.1. Hence the present suit for declaration, injunction and rendition of accounts praying, inter alia, for the following reliefs:-
CS(OS) 1166/2004 Page No. 9 of 42 A) Pass a Decree of Declaration:
a) Declaring that in the facts and
circumstances as aforesaid the Plaintiff
is the owner in possession of 50%
undivided share in the property
bearing no.1/31, Shantinikaten, New
Delhi.
b) Declaring that pursuant to the joint
and mutual wills dated 30/08/1985 and
26/06/1986 of Late Mr. Kewal Singh
and Late Mrs. Shamie Singh the
Defendants No.1 and 2 are the joint
owners of the balance 50% undivided
share in the property bearing no.1/31,
Shantiniketan, New Delhi.
c) Declaring that the Plaintiff as in the
past 34 years is entitled to 50% of the
rental income accruing from the front
unit of the property bearing no.1/31,
Shantiniketan, New Delhi and the
balance 50% is receivable by the
Defendants no.1 and 2 hereto in equal
shares.
d) Declaring that the Plaintiff in terms of
the family settlement is entitled to the
exclusive use of the residential
residence being the back unit of the
property bearing no.1/31, Shantiniketan, New Delhi which is
presently in the Plaintiff's exclusive use
and possession.
e) Declaring that the Plaintiff is and was
the sole legal heir to the estate of her
father Late Mr. Kewal Singh and that
accordingly, the Plaintiff was the sole
beneficiary of his entire estate
................................................."
22. By an order dated October 15, 2004 passed in an interim CS(OS) 1166/2004 Page No. 10 of 42 application, being IA No.7030/2004, the parties were directed to maintain status quo in regard to the suit property till the next date of hearing.
23. On 04.12.2004, the defendant No.1 filed IA No.8157/2004 for clarification of the order dated 15.10.2004 and to grant permission to the defendant No.1 to enter and stay in the premises.
24. By a subsequent order dated 09.03.2005, the following directions with regard to the deposit of rent were given by this Court in IA No.7030/2004:-
"Interim orders to continue. In the meanwhile
the British High Commission, the tenant in the
front portion of Property No.1/31-A, Shanti
Niketan, New Delhi is directed to deposit the rent with the Registrar General of this Court every
month so that orders in regard to the
disbursement thereof may be passed in due
course."
25. On 28.05.2005, the defendant No.1 filed another application being IA No.4671/2005 under Section 151 CPC seeking permission to execute/renewal of lease in respect of 1/31, Shanti Niketan (front unit) in favour of the British High Commission effective from July 01, 2005. Again, on 24.04.2007, the defendant No.1 filed IA No.4702/2007 under Section 151 CPC seeking release of the rent deposited by the British High Commission with the Registrar General of this Court. CS(OS) 1166/2004 Page No. 11 of 42
26. All the aforesaid applications have been heard by this Court on which elaborate arguments were advanced by both the sides, viz., the plaintiff and the defendant No.2 on the one hand and the defendant No.1 on the other. Broadly, the contentions of Mr. Rajiv Sawhney, the learned senior counsel representing the plaintiff may be summarised as follows.
27. Mr. Sawhney contended that the entire documentary evidence on record executed and confirmed time and again by the parents of the plaintiff, i.e., Mr. Kewal Singh and Mrs. Shamie Singh during their life time, which is contemporaneous, as also the various documents submitted by them to various Government authorities, including the Income-tax, Wealth tax, Housing Society and DDA, indisputably show that there was a family arrangement in terms of which the plaintiff was to be the owner of 50% share in the Shanti Niketan property.
28. Further, acting in furtherance of the said family arrangement, both Kewal Singh and Shamie Singh applied for the inclusion of the plaintiff's name in the perpetual sub-lease, which was only a formality, as the plaintiff was enjoying and exercising all rights as a co-owner in respect of the Shanti Niketan property, including receiving of rent. CS(OS) 1166/2004 Page No. 12 of 42
29. The defendant No.1 is barred by the principles of estoppel in challenging or disputing the family arrangement, more so, as the plaintiff was receiving rent thereunder.
30. No conveyance is required in the case of family agreement/arrangement which acknowledges and defines the share falling to a person while recognising the right of the other. This is clearly laid down by the Supreme Court in Kale & Others v. Deputy Director of Consolidation & Ors. (1976) 3 SCC 119, Hansa Industries (P) Ltd. v. Kidar Sons (P) Ltd. (2006) 8 SCC 531, Bhagwan Kishan Gupta v. Prabha Gupta & Ors. (2009) 11 SCC 33 and by this Court in Romesh Chander Sethi v. Inder Mohan 2009 (9) AD (Del) 179.
31. It is also contended that the plaintiff being a co-owner is/was always in possession of the entire property. She had been living in this property prior to her marriage when the same was constructed in the year 1970 and even thereafter she was in constructive possession of the same after her marriage. Even today, she is residing in the property along with her husband and is thus in settled and peaceful possession of the same as is evident from the prayer made by the defendant No.1 in IA No.8157/2004, which reads as follows:-
"(a) Clarify its order dated 15.10.2004 and
allow/hold that the defendant No.1 can enter
CS(OS) 1166/2004 Page No. 13 of 42 and stay in premises bearing No.1/31, Shanti
Niketan, New Delhi."
32. Mr. Sawhney relying upon the judgment of the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594, further contended that the defendant No.1 cannot take forcible possession as it is settled law that a person in peaceful possession is entitled to retain his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner, if the latter has dispossessed the former by use of force.
33. Reliance was also placed by Mr. Sawhney upon the three Bench judgment of the Supreme Court in Rame Gowda (Dead) by LRs v. M. Varadappa Naidu (Dead) by LRs and Anr. (2004) 1 SCC 769, which in turn refers to and relies upon the law laid down in a catena of judgments, including Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, AIR 1924 PC 144; Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350; Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620; Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165; M.C. Chockalingam v. V. Manickavasagam, (1974) 1 SCC 48; Krishna Ram Mahale v. Shobha Venkat Rao, CS(OS) 1166/2004 Page No. 14 of 42 (1989) 4 SCC 131; Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC 426; Munshi Ram v. Delhi Admn., AIR 1968 SC 702; Puran Singh v. State of Punjab, (1975) 4 SCC 518 and Ram Rattan v. State of U.P., (1977) 1 SCC 188, to contend that settled possession gives a right to possession such that even the rightful owner may only recover it by taking recourse to law.
34. The next contention of Mr. Sawhney is that the defendant No.1 is not entitled to dispute the title of his mother in the properties on the basis of an alleged will purported to be executed on 25.09.2003 in his favour by his grand mother late Mrs. Shamie Singh as the defendant No.1 till date has not filed any suit or claim for any of the properties of late Mrs. Shamie Singh, including any suit for possession in respect of the property at Shanti Niketan. The counsel contended, relying upon Anathula Sudhakar's case (supra), that in the guise of an application under Section 151 CPC (IA No.8157/2004), the relief of possession cannot be claimed and cannot be granted. It was further submitted by him that even assuming the will dated 25.09.2003 to be a genuine will though it has yet to be established as a genuine will, the execution of a registered document by a party to the family arrangement cannot nullify the family arrangement which has been fully acted upon. Reference CS(OS) 1166/2004 Page No. 15 of 42 was made in this context to the decision of the Privy Council in Frederick Emmanuel Abeyesundera v. Ceylon Exports Ltd., AIR 1936 PC 259 in which it was held that a father who had transferred certain property to his son by a deed of gift, which was unregistered, cannot subsequently deprive the son of the said property by subsequently transferring it to another person by a registered deed; and to Krishna Sahoo v. Maung, AIR 1930 Rangoon 188, in which it was held that a subsequent registered purchaser cannot avail himself of the registration of his deed against a prior unregistered purchase of which he has notice.
35. It was next contended that in the present case, the genuineness and factum of execution of the alleged will dated 25.09.2003 is itself in dispute and it is the probate court alone which can decide such dispute. Relying upon the decisions in Ram Shankar v. Balakdas, AIR 1992 MP 224; Ravi Khanna v. Pankaj Khanna, 152 (2008) DLT 484; Sunil Gupta v. Kiran Girhotra, 157 (2009) DLT 705; Amar Deep Singh v. State, 125 (2005) DLT 627 and Smt. Multivahuji v. Smt. Kalindivahuji, AIR 1994 Gujarat 42, the learned senior counsel contended that it is settled law that the civil court will not decide the issues exclusive jurisdiction of which vests with the probate court and CS(OS) 1166/2004 Page No. 16 of 42 the probate court will not decide any issues relating to title which have to be decided by the civil court. Therefore, till such time as the genuineness and execution of the will is decided by the court of competent jurisdiction, i.e., the probate court, the said will cannot be relied upon. Further, even assuming the will dated 25.09.2003 to be genuine, it will not confer title of the entire Shanti Niketan property on the defendant No.1 as late Mrs. Shamie Singh and her husband were together owners of only 50% share and the remaining 50% share in the said property was owned by the plaintiff and, as such, late Mrs. Shamie Singh could not have bequeathed more than what she owned.
36. It was also submitted that a probate petition filed today by the defendant No.1 would be barred by the law of limitation in view of the judgment of the Supreme Court in the case of Krishna Kumar Sharma v. Rajesh Kumar Sharma, reported in JT 2009 (4) SC 533, in which Article 137 of the Limitation Act is held applicable to probate proceedings. A petition for probate under Article 137 will have to be filed within three years from the date of challenge. The challenge in the instant case was raised by the plaintiff in her replication on 05.04.2005, wherein she denied and disputed the alleged will. The probate petition thus should have been filed by the defendant No.1 within three years CS(OS) 1166/2004 Page No. 17 of 42 from the said date, i.e., by or before 04.04.2008.
37. To counter the arguments advanced by Mr. Sawhney on behalf of the plaintiff, Mr. P.V. Kapur, the learned senior counsel for the defendant No.1 raised the following contentions.
38. The family arrangement dated 30th July, 1969 was entered into solely as a tax saving device and the tax returns relied upon by the plaintiff are not conclusive proof of the title of the plaintiff. The plaintiff relies upon certain correspondence purportedly exchanged between her and her parents between January, 1969 and May, 1969 that led to the alleged family arrangement being crystallized. Oddly, the said letters were exchanged at a time when the plaintiff was living with her parents in the same house and thus evidently it was a concerted and ingenious effort on the part of the family to use the arrangement as a device to save tax. The learned counsel contended that it is significant to note that once the tax department was satisfied and was willing to tax the income from property in two hands, nothing further was done to transfer and register 50% of the property in favour of the plaintiff. This is all the more important in view of the fact that the plaintiff's parents had ample opportunity to act on the settlement. The plaintiff's father made no efforts to give effect to the alleged family settlement CS(OS) 1166/2004 Page No. 18 of 42 purportedly entered in the year 1969 till the year of his demise in the year 1991 and the plaintiff's mother who died in the year 2004 also took no steps to include the plaintiff's name in the perpetual sub-lease. Had it been the intention of the parties to make the plaintiff a co-owner of the property, the said intention of the parties would have manifested itself in the sub-lease executed in May, 1969 when all the related costs, such as stamp duty were in any case incurred. Instead, the perpetual sub-lease was executed solely in the name of the plaintiff's mother. Learned senior counsel further contended that the intention of the parties is also evident from the fact that the two wills relied upon by the plaintiff and the defendant No.2, i.e., the will of 30th August, 1985 and of 26th June, 1986 do not acknowledge the plaintiff's stake in the ownership of the estate in any way at all as is evident from a bare reading thereof.
39. It is also contended that the fact that the so-called family settlement was a tax saving device is evident from the fact that the plaintiff has not received any rent whatsoever though the money was being deposited in a joint account and, hence, the plaintiff in the plaint has made a claim seeking rendition of accounts as regards the rent for the past 34 years. Moreover, there is no averment in the plaint to the effect that the plaintiff ever paid any interest whatsoever on the loan CS(OS) 1166/2004 Page No. 19 of 42 amount or repaid the loan amount at all.
40. Relying upon the decisions in Suraj Bhan and Ors. v. Financial Commissioner and Ors., (2007) 6 SCC 186 and Gurunath Manohar Pavaskar v. Nagesh Sidappa, (2007) 13 SCC 565, it is further submitted that merely because the plaintiff's name appears in the revenue records, the same cannot be considered conclusive proof of her title. It is contended that a revenue record is not a document of title. As held by the Supreme Court in Gurunath Manohar Pavaskar (supra), it merely raises a presumption as regards possession. In any event, in the instant case, the plaintiff is not even in settled possession of the suit property. Therefore, the plaintiff cannot rely upon the revenue records to establish either her title or possession, which was admittedly intermittent.
41. The reliance placed upon by the plaintiff upon Kale's case (supra), it is contended by the learned senior counsel for the defendant No.1, is misplaced since the decision in Kale's case (supra) clearly holds in paragraph 10 with regard to family arrangements:- "A distinction should be made between a
document containing the terms and recitals of a family arrangement made under the document
(emphasis added) and a mere memorandum
prepared after the family arrangement had
already been made either for the purpose of the CS(OS) 1166/2004 Page No. 20 of 42 record or for information of the Court for
making necessary mutation. In such a case the
memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not
compulsorily registrable."
42. It is also submitted by Mr. P.V. Kapur that since the agreement dated 30th July, 1969 purports to create a right, title and interest in 50% of the property for the first time without any reference to any previous correspondence and is in praesenti, it would necessarily require to be stamped and registered. It being unregistered, it cannot be received in evidence nor it can be relied upon even for any collateral purpose. The proposition propounded in Kale's case (supra) is even otherwise not applicable in the instant case for the reason that in the said case the family arrangement was the result of a dispute between the parties. In such circumstances, the Supreme Court in Kale's case (supra) held that parties to the family settlement who have enjoyed a benefit under the settlement are thereafter precluded from questioning the family settlement. In the instant case, the defendant No.1 was admittedly never a party to the alleged family settlement nor enjoyed any benefit thereunder.
43. Even otherwise, it is submitted that as per Section 50 of the CS(OS) 1166/2004 Page No. 21 of 42 Registration Act, a registered document will prevail at a prima facie stage. Therefore, the statutory presumption is in favour of the defendant No.1 and the registered document that he is relying upon, i.e., the registered will dated 25th September, 2003 executed by his grandmother Mrs. Shamie Singh in his favour, which must be given precedence over an unregistered family arrangement.
44. As regards the contention of the plaintiff with regard to the validity and effect of the will dated 25.09.2003, it is stated that the plaintiff has not made any averment to the effect that the defendant No.1 should have applied for probate to prove the validity of the will dated 25.09.2003 being relied upon by the defendant No.1 either in the plaint or in the replication filed to the written statement thereto. Further, neither the plaintiff nor the defendant No.2 has prayed for a declaration that the will dated 25.09.2003 be declared invalid. As a matter of fact, no specific challenge has been raised to the authenticity of the will, the signatures of the testatrix Mrs. Shamie Singh, the soundness of the mind of the testatrix, or any suspicious circumstances shrouding the will except to state that Mrs. Shamie Singh could not have bequeathed more than what she owned, which is clearly an issue of title and out of the scope of adjudication of the probate court.
CS(OS) 1166/2004 Page No. 22 of 42
45. The next contention of Mr. Kapur, the learned senior counsel for the defendant No.1 is that a conjoint reading of Section 213 with Section 57 of the Indian Succession Act clearly establishes that there is no requirement at all to apply for probate in Delhi. The validity of a will may be decided in civil proceedings in the case of a will that is not covered by Section 213(1) of the said Act and in that sense the prohibition under Section 213(1) is a limited one and does not oust the jurisdiction of civil courts in the cases of those wills that are outside the scope of Section 213(1). The plaintiff's reliance upon the decisions rendered in Ram Shankar (supra) and Amar Deep Singh (supra) in support of the proposition that probate of a will is necessary, is misplaced. Insofar as Ram Shankar's case (supra) is concerned, the said judgment was overruled by a Division Bench of the Madhya Pradesh High Court in Phool Singh v. Kosa Bai, 1991 (1) MPJR 352. The relevant observations in Phool Singh's case as set out in para 25 are as follows:-
"Therefore it follows that even if two contesting wills are set up, executed by a Hindu outside the territories mentioned in Section 57(a); regarding the property situated outside those territories, obtaining of a probate of a will from the Probate Court would not be necessary. As noticed by the learned referring Judge also, if that was to be so, it would be very easy for the other party to plead CS(OS) 1166/2004 Page No. 23 of 42 and set up another will and thus to defeat the
right of the party to pursue his claim under a will unless he obtains probate thereof. Therefore,
with due respect, we do not agree with the view taken in Ramshanker's (supra) that in the case
of two contesting wills, exclusive jurisdiction is vested in the probate court and in such a case in a suit instituted by any party, no issue can be struck by a Civil Court to decide that the will was the last and valid will and the other will set up by the other party, stands revoked by the will relied on by the Plaintiff."
46. The learned counsel contended that not only is the decision in Ram Shankar's case (supra) and Amardeep Singh's case (supra) overruled by Phool Singh's case (supra), but the issue is long settled in view of the judgments rendered in Joginder Kaur Malik v. Malik Anup Singh, AIR 1966 PUNJAB (at Delhi) 385; Om Prakash Kohli v. Ravi Prakash Kohli, 2002 III AD (Delhi) 1083; Rajan Suri v. State, AIR 2006 DEL 148; and Behari Lal Ram Charan v. Karam Chand Sahni, AIR 1968 P&H 108 (DB), wherein it has been clearly held that in Delhi, there is no notification or order that a will must be got probated mandatorily, and that Section 213 read with Section 57 of the Indian Succession Act, 1925 is no bar to a party basing its claim on a will in a suit instituted in Delhi.
47. The learned counsel for the defendant No.1 next contended that it is settled law that a probate court can never go into the question of title CS(OS) 1166/2004 Page No. 24 of 42 and its powers are limited viz., to examine whether the will in question was executed without coercion and undue influence, to gauge if the testator was of a sound disposing mind and whether the will was duly attested or not. Here, the plaintiff's main contention is that the plaintiff's mother could not have bequeathed more than what she owned, which is clearly an issue of title and out of the scope of adjudication of the probate court. Reliance in this regard was placed upon the judgments rendered by the Supreme Court in K.K. Birla v. R.S. Lodha, (2008) 4 SCC 300; Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, (2007) 11 SCC 357; Chiranjilal Srilal Goenka (Dead) By LRs v. Jasjit Singh & Ors., (2000) Supp. 5 SCR 313, wherein it was categorically opined that while granting a probate, the court would not decide any dispute with regard to title.
48. In any event, it is submitted that the present will is a registered document and was duly executed when the defendant No.1 was not in the country and this fact in itself raises a presumption in favour of its validity and is sufficient to satisfy the conscience of the Court at a prima facie stage. At this stage, the existence of a registered will coupled with the fact that there is no serious challenge to the authenticity of the will and the signatures of the testatrix, shows that the balance of CS(OS) 1166/2004 Page No. 25 of 42 convenience weighs in the defendant No.1's favour. Relying upon the decisions in Rabindranath Mukherjee v. Panchanan Banerjee, AIR 1995 SC 1684; Arjan Dev Mittra v. Sada Nand, AIR 2000 Del 236; Prithi Singh v. Saran Singh, 2006 III PLR 293 and Baburajan v. Parukutty, AIR 1999 Ker 274, it was submitted that registration being a solemn act gives rise to a presumption as to the regularity of the execution of the will and its genuineness unless and until there are very strong reasons which create doubt about its execution and genuineness.
49. As regards the alleged joint and mutual wills dated 30th August, 1985 and 26th June, 1986 relied upon by the plaintiff, it was stated that the said wills are not joint and mutual wills and that there is a distinction between a joint will and a mutual will, inasmuch as while the joint will is a single testamentary instrument constituting or containing the wills of two or more persons and jointly executed by them, mutual wills are the separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of a contract or agreement between two or more persons to dispose of their property to each other or to any third person. Thus, it is submitted that a joint and mutual will may be rendered irrevocable on the death of one of the testators if the survivor has received benefits under the mutual will and if there was an CS(OS) 1166/2004 Page No. 26 of 42 agreement that the testators would not revoke the same. In the instant case, the two wills relied upon by the plaintiff are titled as "Wills jointly made" by the plaintiff's parents and do not purport to bequeath any estate on either of the testators nor is there any agreement explicit or implicit which forbids the surviving testator from revoking the will. The Privy Council in Helen Ann Gray v. Perpetual Trustee Co. Ltd., AIR 1928 Privy Council 284 has held that the mere fact that two wills were made by the husband and wife in identical terms and on the same date does not necessarily imply any agreement to the effect that the wills should not be revoked after the death of one of the parties, without independent evidence of any further agreement between the parties.
50. Reference was also made by Mr. Kapur to a Division Bench judgment of the Madras High Court in the case of Kuppuswami Raja and Anr. vs. Perumal Raja and Ors., AIR 1964 MADRAS 291 (V 51 C 88) and in particular to paragraphs 10, 11 and 13 to elucidate that the wills dated 30th August, 1985 and 26th June, 1986 were not joint and mutual wills as was being alleged by the plaintiff:- "10. The law relating to joint Wills and mutual Wills is best stated in 39 Halsbury, Simonds
Edn., 3rd Ed. page 846, para 1279 and page 847, para 1280:
"A joint Will is a Will made by two or
more testators contained in a single document,
CS(OS) 1166/2004 Page No. 27 of 42 duly executed by each of testator and disposing either of their separate properties, or of their joint property. It is not, however, recognised in English law as a single Will. It is in effect two or more Wills; it operates on the death of each
testator as his Will disposing of his own separate property; on the death of the first to die it is admitted to probate as his own Will and on the
death of the survivor, if no fresh Will has been made, it is admitted to probate on the disposition of the property of the survivor."
"Wills are mutual when the testators
confer upon each other reciprocal benefits and
there may be absolute benefits in each other's
property, or they may be life interests, with the same ultimate disposition of each estate on the death of the survivor."
11. A joint Will is a single testamentary
instrument constituting or containing the Wills of two or more persons and jointly executed by
them; while mutual Wills are the separate Wills of two or more persons which are reciprocal in
their provisions and executed in pursuance of
compact (sic. contract) or agreement between
two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Mutual Wills as distinct from
joint Wills are sometimes described as reciprocal Wills. In describing a Will the adjective "Mutual" or "reciprocal" is used to emphasise and denote the contractual element which distinguishes it
from a joint Will.
13. In England the Courts have evolved their
own principles of law regarding joint and mutual Wills and so far as English law is concerned, the principles appear to be fairly well settled. In regard to joint and mutual Wills, the decisions in England have recognised a distinction in the
powers and jurisdiction of a Court issuing a
probate and a Court whose jurisdiction has been CS(OS) 1166/2004 Page No. 28 of 42 invoked by a party for the enforcement of the
rights based upon the agreement embodied in a
mutual Will.
An examination of the cases in England
shows that in the case of a mutual Will, if there is an agreement that neither of the testators shall have power to revoke, and the surviving testator receives benefits from the deceased under the
mutual Will, the survivor is not entitled to revoke the Will when the first testator had died leaving the mutual Will unaltered and unrevoked in
pursuance of the agreement and in the hope and
trust that the mutual Will will be adhered to by the survivor. If, however, the survivor in breach of faith revokes a mutual Will by making a new
Will, it is the new Will which will have to be
necessarily admitted to probate so far as the
properties of the survivor are concerned. In an application for probate the Court has no
jurisdiction to enquire into the nature of the
rights of the testator in the property covered by the Will. If the probate Court is satisfied about the due and proper execution of a Will by a
testator in a sound disposing state of mind, it is bound to grant a probate of the Will. It is
however, open to the beneficiaries under the
mutual Will to take proceedings in the Chancery Division for the enforcement of their rights, and the execution of the trust as envisaged in the
mutual Will. The personal representatives under the latter Will can be compelled to hold the
entire estate upon trust to give effect to the
provisions of the mutual Will. Vide 39 Halsbury, Lord Simonds, 3rd Edn. page 853 para 1299."
51. Finally, it was contended on behalf of the defendant No.1 that the plaintiff is not in settled possession as her infrequent and intermittent possession has never translated into settled possession. The reliance CS(OS) 1166/2004 Page No. 29 of 42 placed by the plaintiff on the case of Anathula Sudhakar's case (supra), it was submitted, was misplaced inasmuch as in the said case it was clearly held by the Supreme Court that:-
"In a suit for permanent injunction to restrain the defendant from interfering with the Plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful
possession." (emphasis added)
The Hon'ble Supreme Court in Anathula Sudhakar's case (supra) also specifically held that:- (SCC, P-604, para 13.1) "A person has a right to protect his possession against any person who does not prove a better
title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner".
(emphasis added)
52. Distinguishing the judgment in Rame Gowda's case (supra) relied upon by the counsel for the plaintiff, it was also contended that in paragraph 9 of the said judgment, the Supreme Court had highlighted that settled possession must be:-
"(i) effective, (ii) undisturbed and (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser."
The Supreme Court had further held that:-
"The possession which a trespasser is entitled to CS(OS) 1166/2004 Page No. 30 of 42 defend against the rightful owner must be settled possession, extending over a sufficiently long
period of time and acquiesced to by the true
owner. A casual act of possession would not
have the effect of interrupting the possession of the rightful owner."
53. The learned senior counsel contended that admittedly in the instant case the plaintiff had got married in 1972 and left for Paris shortly thereafter. From 1972 until 1983 and then from 1988 until July, 2009, she did not live in the house. Between 1983 to 1988, the plaintiff and the defendant No.1 jointly occupied the said property. Even at the time of the filing of the instant suit, the plaintiff's affidavit had been signed and verified at Rome, which is admittedly where she was residing with her husband. Further, the plaintiff's contention that the defendant No.1 ought to have filed a suit for possession is baseless since the mere fact that the defendant No.1 had not instituted a suit for possession cannot be interpreted to mean that the plaintiff is in settled possession. It is submitted that after the plaintiff's mother's demise, at the time of mourning, the plaintiff changed the locks in the house thereby taking illegal possession, which is tantamount to an act of trespass. Thereafter, the plaintiff approached the Court and obtained an ex parte status quo order.
54. The learned senior counsel further contended that the defendant CS(OS) 1166/2004 Page No. 31 of 42 No.1, on the other hand, is the sole beneficiary under the registered will dated 25.09.2003, which must be presumed to be valid at the prima facie stage. Thereby, the defendant No.1 is the sole named executor and the possession that vests in him by operation of law under Section 211 of the Indian Succession Act must be protected. Reference in this regard was made to paragraphs 46 and 47 of the judgment of the Supreme Court in FGP Ltd. v. Saleh Hooseini Doctor & Anr., (2009) 10 SCC 223, which read as under:-
"46. In this connection, we must see the
distinction between Sections 211 and 213 of the Indian Succession Act. Under Section 211 of the said Act, the executor or administrator, as the case may be, of a deceased person is his legal
representative for all purposes, and all the
property of the deceased person vests in him as such. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure. Section 2(11) of the Code of Civil Procedure provides as under:
"2.(11) 'legal representative' means
a person who in law represents the estate
of a deceased person, and includes any
person who intermeddles with the estate
of the deceased and where a party sues or
is sued in a representative character the
person on whom the estate devolves on
the death of the party so suing or sued;"
47. Therefore, it is Section 211 and not
Section 213 that deals with the vesting of
property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor CS(OS) 1166/2004 Page No. 32 of 42 derives his title from the will and becomes the representative of the deceased even without
obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain."
55. After carefully deliberating upon the rival contentions of the parties and on unravelling the facts which emerge from the documentary evidence on record, the following position emerges for consideration at this stage.
56. The plaintiff relies upon an alleged family agreement dated 30th July, 1969, which though admittedly unregistered is signed by the plaintiff and by her mother Mrs. Shamie Singh. The said family arrangement is stated to be and, prima facie, appears to be the outcome of previous correspondence exchanged between the plaintiff, her mother and her father, which admittedly was exchanged when all three of them were residing together in the same house i.e. 10, Motilal Nehru Marg, New Delhi. The question whether or not there is any substance in the contention of the learned counsel for the defendant No.1 that "the story with regard to the alleged family agreement is the creation of an ingenious mind" and in fact the so-called family arrangement was merely a tax saving device, in my opinion, cannot be adjudged at this stage and must depend upon the evidence adduced by the parties, after a CS(OS) 1166/2004 Page No. 33 of 42 full-fledged trial. I say so for the following reasons.
57. There is no denying the fact that there are on record income tax returns filed by the plaintiff and signed on her behalf by her father Mr. Kewal Singh, as per which the plaintiff is the owner of half share of the Shanti Niketan property. Likewise, there are on record tax returns filed by Mrs. Shamie Singh claiming to be owner of the other half share. The cumulative effect of the correspondence between the plaintiff and her parents, the family arrangement dated 30th July, 1969 and the tax returns, in my view, is that unless proved to the contrary by evidence adduced in this regard, all the aforesaid documents clearly point to the intent of the parents of the plaintiff that one-half of the property would vest in the plaintiff.
58. The wills dated 30th August, 1985 and 26th June, 1986 executed jointly by Mr. Kewal Singh and Mrs. Shamie Singh also leave no manner of doubt that it was intended that the plaintiff should continue to enjoy the rear part of the house at Shanti Niketan, i.e., her 50% share. The mere fact that the perpetual sub-lease was executed in the name of Mrs. Shamie Singh (though the land was allotted to Mr. Kewal Singh and initially the perpetual lease deed was in the name of Mr. Kewal Singh) cannot, in my view, in the absence of evidence, be construed to CS(OS) 1166/2004 Page No. 34 of 42 mean that Mrs. Shamie Singh did not recognise the plaintiff as a co- owner. Had it been so, there would have been no reason for her to affix her signatures on the family arrangement and on the two wills dated 30th August, 1985 and 26th June, 1986 as well as on the letter dated October 26, 1970 to the Vice Chairman, DDA requesting for a division of the property comprising of two vertical units as shown in the site plan enclosed, between herself and her daughter. Mrs. Shamie Singh would also not have countersigned the letter dated 15.07.1975 written by the father of the plaintiff to the Additional Secretary, DDA for the inclusion of the plaintiff's name in the sub-lease as co-lessee along with her father. There is also on record a joint letter dated 16.03.1980 signed by the father and mother of the plaintiff to the Secretary, Government Servants Association, Vasant Vihar, requesting for the inclusion of the name of the plaintiff and her father in the perpetual sub-lease, and a letter dated 21st March, 1980 whereby approval was given by the Society for the inclusion of their names as co-lessees.
59. As regards the contention of the learned senior counsel for the defendant No.1 that it was not incumbent upon the defendant No.1 to knock at the door of the probate court and his further contention that the question whether or not Mrs. Shamie Singh could have made a bequest CS(OS) 1166/2004 Page No. 35 of 42 of the entire property in the name of the defendant No.1 (she being an owner of 50% share only) is a question which needs to be examined by a civil court, this Court is of the opinion that both the aforesaid contentions are well founded. However, for this Court to hold at this stage, in the absence of evidence on record, that the will dated 25.09.2003 nullified the family arrangement dated 30.07.1969 merely by virtue of the fact that the former is a registered document and the latter is not, may not be in consonance with the law. Assuming the plaintiff to be a co-owner of the property with late Mrs. Shamie Singh, the question arises whether Mrs. Shamie Singh could have made a bequest of the entire property, including the half share of the plaintiff, in favour of the defendant No.1? The answer must, in my opinion, be an emphatic "No".
60. Then again, it is settled law that merely because a bequest has been made, it will not vest the beneficiary with title when the title of the testator itself is in doubt or under challenge. The will dated 25th September, 2003 does not mention that Mrs. Shamie Singh is the owner of the entire Shanti Niketan property nor it is mentioned in the said will that due to tax-planning reasons certain documents had been executed to show otherwise. The will has also been categorically disputed by the CS(OS) 1166/2004 Page No. 36 of 42 plaintiff and by the defendant No.2. In the course of hearing, it was submitted by the learned counsel for the plaintiff and the defendant No.2 that at the time of the filing of the plaint the plaintiff did not have the alleged will dated 25.09.2003. The said alleged will was set up as a defence in the written statement filed by the defendant No.1, but a copy of the same was not filed with the written statement but subsequently with an application, and therefore, the argument of the defendant No.1 that the plaintiff should have challenged the said will in the plaint is wholly misconceived. It would, in these circumstances, in my opinion, be too far fetched to say that the plaintiff should have challenged the will in the plaint, when the alleged will was not furnished by the defendant No.1 to the plaintiff. Further, assuming that the alleged will dated 25.09.2003 is held to be genuine, the question still remains at large as to whether late Mrs. Shamie Singh could have bequeathed more than what she owned.
61. Significantly also, the fact that there was a family arrangement is not disputed by the defendant No.1. All that the defendant No.1 states is that the said family arrangement was an ingenious tool devised by the family to save tax and nothing more. This certainly, to my mind, will be a matter to be decided after the parties have marshalled their respective CS(OS) 1166/2004 Page No. 37 of 42 evidence. More so, as the defendant No.1 in his written statement has not denied that a joint account was opened by the plaintiff's mother and the plaintiff in which the rent from the front portion of the house was being deposited, and from which joint account the plaintiff, from time to time, "borrowed" money during the short intervals when the plaintiff came to India. This, in my view, further lends credence to the case of the plaintiff that the family arrangement was in fact acted upon.
62. Adverting next to the plea of the learned senior counsel for the defendant No.1 that the plaintiff is not in settled possession of the property as alleged by her. The said plea, in my opinion, cannot be countenanced at this stage in view of the fact that in accordance with law, the possession of a co-owner is deemed to be the possession of all the remaining co-owners. Thus viewed, the plaintiff was always in legal possession of the Shanti Niketan property and her possession was secured by her parents during her absence from India and while she was living with her husband, who was posted abroad. It would be too dangerous a proposition to hold that an owner/co-owner must be said to be out of possession only because the said owner/co-owner was not in actual physical possession at all times.
63. In the present case, it also cannot be lost sight of that the CS(OS) 1166/2004 Page No. 38 of 42 possession of the plaintiff relates back to the year 1970 when she was not married. The father and mother of the plaintiff had during their lifetime acknowledged her right to stay in the Shanti Niketan property, and the plaintiff with her husband was admittedly residing in the said property during her visits to India. According to her, they had no other residential house in India. The mother of the plaintiff died on 18.05.2004 and the present suit was filed in the month of October, 2004. During this period also, the plaintiff was in possession of the property to the exclusion of the defendant No.1. For this Court to direct her ouster from the said property at this juncture when the parties have yet to lead their evidence, more so, when the will dated 25th September, 2003 is seriously in dispute and, in any case, is enveloped in the controversy as to the testamentary capacity of the testatrix would result in irreparable injury to the plaintiff. The plaintiff also appears to have a prima facie case in her favour. The balance of convenience is also in favour of the plaintiff, who is presently in possession and is admittedly very sick, apart from being advanced in years.
64. It may be noted in all fairness at this juncture that even the defendant No.1, who remained present during the hearing, stated that he did not wish to throw out his mother from the house. All that he CS(OS) 1166/2004 Page No. 39 of 42 claimed, he stated, was his right to enter and stay in the premises bearing No.1/31, Shanti Niketan, as prayed by him in IA No.8157/2004. This, to my mind, is not possible at this juncture in view of the fact that the front portion of the house is under the tenancy of the British High Commission and the rent received from the British High Commission is being deposited with the Registrar General of this Court. The rear portion of the house is in the occupation of the mother of the defendant No.1. The question whether the defendant No.1, during the pendency of the suit, can be accommodated and allowed to reside in a demarcated portion of the rear part of the house is a question which must, to my mind, be sorted out by the parties themselves, this being essentially a family matter. This Court can do no more than advise the parties to bridge the gap between them by having recourse to mediation proceedings. If and when the parties desire to do so, the Delhi High Court Mediation and Conciliation Centre will ensure that senior and experienced mediators assist the parties in resolving this acrimonious and bitter dispute between mother and son for the acquisition of property, resulting in the snapping of all family ties.
65. As regards the prayer of the defendant No.1 for release of the rent deposited with the Registrar General of this Court, the submission of CS(OS) 1166/2004 Page No. 40 of 42 Mr. P.V. Kapur is that the defendant No.1 is entitled to the entire estate of late Mrs. Shamie Singh, inclusive of the rent being paid by the British High Commission for the front portion of the property. In the alternative, Mr. Kapur submitted that the defendant No.1 would in the final analysis, in any case be entitled to half of the estate of late Mrs. Shamie Singh. Taking note at this juncture of the submission of Mr. Rajiv Sawhney that the plaintiff is ultimately interested in a fair division of the property between her two children, i.e., the defendant No.1 and the defendant No.2, this Court is of the view that the defendant No.1, as an interim measure and subject to the final outcome of the suit, be paid half the rent accruing and accumulated from the front portion of the property. It is accordingly directed that 50% of the rent lying deposited with the Registrar General of this Court as well as 50% of the rent deposited from month to month by the British High Commission be released to the defendant No.1. The remaining 50% accumulated rent shall be put in a fixed deposit receipt initially for a period of two years with automatic renewal, if required. The rent deposited from month to month shall likewise be kept in fixed deposit receipts initially for a period of two years each with automatic renewal, if necessary.
66. With the aforesaid observations and directions, the interim orders CS(OS) 1166/2004 Page No. 41 of 42 dated December 15, 2004 are made absolute during the pendency of the suit. IA Nos.7030/2004, 8157/2004, 3857/2005, 4671/2005, 4702/2007 and 8753/2008 stand disposed of accordingly.
67. It is clarified that any discussion on the merits of the case or any observation made for the limited purpose of deciding the aforementioned applications will not have any bearing on the future conduct of the case.
CS(OS) 1166/2004
List the case before the concerned Court on 19th April, 2010 for directions.
REVA KHETRAPAL, J
APRIL 07, 2010
km
CS(OS) 1166/2004 Page No. 42 of 42
Print Page
Delhi High Court
Smt.Gita Abhyankar vs Sh.Vikram Abhyankar & Ors. on 7 April, 2010
REPORTED* 1. By this order, it is proposed to decide IA No.7030/2004 filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC; IA No.8157/2004 CS(OS) 1166/2004 Page No. 1 of 42 filed by the defendant No.1 under Section 151 CPC for clarification of the order dated 15.10.2004; IA 3857/2005 for preponement of the date of hearing (it having become infructuous); IA No. 4671/2005 under Section 151 CPC filed by the defendant no.1 for renewal of the lease deed; IA No. 4702/2007 filed by Defendant no.1 for release of the rent and IA No. 8753/2008 U/O XL Rule 1 filed by the plaintiffs.
2. The aforesaid interim applications arise out of the suit for declaration, injunction and rendition of accounts filed by the plaintiff Gita Abhyankar against the defendant No.1. The plaint discloses that the plaintiff Gita Abhyankar was the only child of late Mr. Kewal Singh and late Mrs. Shamie Singh. The defendant No.1 is the son of the plaintiff and the brother of the defendant No.2.
3. Mr. Kewal Singh during his lifetime had acquired, apart from various movable assets, three immovable properties, viz., Property No.1/31, Shanti Niketan, New Delhi; Plot No.84, Jacraunda Marg, DLF Qutab Enclave, Gurgaon and a Farm House in Village Carter Puri, District Gurgaon. The plot of land at Shanti Niketan measuring 2000 sq. yds. was purchased by late Mr. Kewal Singh in his own name by virtue of a perpetual lease deed registered in his favour on 24.10.1967.
4. It is the case of the plaintiff that the plaintiff's mother Shamie CS(OS) 1166/2004 Page No. 2 of 42 Singh was most uncomfortable about the fact that the Shanti Niketan property was only in the plaintiff's father's name and on her repeatedly expressing her anguish in this regard and also with a view to avoid any family dispute or litigation in the future, the plaintiff's parents and the plaintiff entered into extensive discussions between themselves, pursuant whereto, it is stated in the plaint, a family arrangement was finally concluded between the family members in late January, 1969.
5. In the aforesaid background and allegedly in terms of the said family understanding, the plaintiff's father finalised certain documents, being a set of letters as well as an agreement dated 30th July, 1969.
6. A letter dated 10th February, 1969 was written by Mrs. Shamie Singh (since deceased) to the plaintiff Gita Abhyankar asking her to join as a co-owner and to contribute towards the cost of construction by raising a loan from her father.
7. The above letter of Mrs. Shamie Singh led the plaintiff to write to her father by a letter dated 17.02.1969:-
"I should very much like to join mummy as a co- owner, and thereby in a way own, some personal
property for myself, this is only possible if you are disposed to help me to procure the requisite finance to enable me to join mummy as a co-
owner."
8. The plaintiff's father Mr. Kewal Singh replied to the aforesaid CS(OS) 1166/2004 Page No. 3 of 42 letter of the plaintiff by his letter dated 10th March, 1969 stating that he would certainly try to raise the necessary funds and would let her know as soon as he was able to do that.
9. On 26.05.1969, a perpetual sub-lease was executed in the name of Mrs. Shamie Singh, the mother of the plaintiff.
10. By a letter dated 25.07.1969, the father of the plaintiff informed her that he had arranged for the money to be loaned to the plaintiff from his bankers against his life insurance policies and provident fund and that the loan will bear interest @ 8% to be borne by the plaintiff.
11. On 30th July, 1969, a reply was sent by the plaintiff to her father, acknowledging and undertaking to re-pay the amount towards the loan and also executing a pronote for Rs.1,80,000/- in consideration of the loan her father had agreed to advance to her.
12. Thereafter, allegedly an agreement was entered into on 30th July, 1969 between Mrs. Shamie Singh on the one hand and the plaintiff on the other hand, whereby and whereunder it was agreed that Mrs. Shamie Singh (first party) and Ms. Gita Abhyankar (second party) have become co-owners, ever since the 30th July, 1969, of the two houses proposed to be constructed on the plot of land measuring 2,000 sq. yds. bearing No.1/31 in Shanti Niketan and registered in the name of the first party. CS(OS) 1166/2004 Page No. 4 of 42 It was further agreed that on being completed, the houses shall be let out by the first party in consultation with the second party and after meeting the expenses, the balance left shall be divisible equally between the parties thereto. It was also laid down that neither party would be entitled to sell or in any other manner assign her share in the property for a period of two years or as long as the loans obtained by either of the parties for the construction of the houses had not been paid in full. It was also provided that "after the expiry of the aforesaid period, the first party shall as and when required by, but at the cost of, the second party execute such deed and/or document so as to more fully secure the second party and her title in the property jointly owned by them."
13. All these documents were admittedly executed when the plaintiff's father, the plaintiff's mother and the plaintiff were all residing at 10, Moti Lal Nehru Marg, which address is given in the said letters. The mother of the plaintiff Mrs. Shamie Singh thereafter filed her wealth tax and income-tax returns, wherein she declared that she was only a co-owner having half share in the Shanti Niketan property and further declaring and acknowledging that the plaintiff was the owner of the other half share in the said property (Annexures A-8 to A- 17). Pertinently, all these declarations to the Government departments CS(OS) 1166/2004 Page No. 5 of 42 continued to be made even after the plaintiff got married to Mr. Uday Abhyankar. Since the plaintiff's husband was posted overseas and the plaintiff was not in India, her affairs and interests in India were looked after by her father Mr. Kewal Singh. The plaintiff from year to year executed Powers of Attorney either in the name of her mother and/or in the name of Mr. M.S. Rathee, a Chartered Accountant, who was filing the tax returns of her father as well.
14. On completion of the construction in March, 1970, the front residential house was leased out to the British High Commission, New Delhi on a short-term lease, which lease was renewed from time to time. The High Commission continues to be a tenant of the front unit till date. The back unit allegedly came to be occupied by the plaintiff and her family over the years.
15. On October 26, 1970, the plaintiff's mother Mrs. Shamie Singh wrote to the Vice-Chairman of DDA, wherein she stated:- "I have built two vertical units on this plot and am interested in the division of the property
between myself and my daughter as per site plan enclosed.............................. As such, I am sure, division as shown on the site plan of the plot is possible specially in the case when the owner of the plot wants to give one part of the property to his son or daughter."
CS(OS) 1166/2004 Page No. 6 of 42
16. A letter dated 15.07.1975 was written by Mr. Kewal Singh, the father of the plaintiff to the Additional Secretary, DDA, which was counter-signed by the mother of the plaintiff, wherein it was stated as follows:-
"I am writing in connection with the Perpetual
Sub-lease of the Plot No.31, Street No.1, Shanti- niketan, New Delhi, which stands in the name of my wife, Shrimati Shamie Singh. As you know, I
was a member of the Government Servants
Cooperative House-Building Society, but finally I thought the Lease should be in the name of my
wife. On reconsideration we both feel that it
should be in the joint name of myself and my wife and daughter, Mrs. Gita Abhyankar, for the
following reasons:
a) My wife and I would like to jointly
own the property so that in case of
any contingencies, the other person
can look after the property interests
without any legal complications.
b) My daughter, Mrs. Gita Abhyankar,
had contributed half of the cost of the
house when it was built. It would,
therefore, only be desirable and
appropriate if my daughter's name is
also included in the Sub-Lease. I
might mention that my daughter has
been receiving the rent and paying
the income-tax since the house was
built. It is relevant to mention that
my daughter's husband, Mr. Uday
Abhyankar, is also a Govt. servant
and is in the Indian Foreign Service.
He is at present Commercial
Secretary in our Embassy in Paris."
CS(OS) 1166/2004 Page No. 7 of 42
17. A joint letter dated 16.03.1980 was thereafter addressed by the parents of the plaintiff to the Secretary, Government Servants Association, Vasant Vihar, requesting for the inclusion of the name of the plaintiff as well as her father in the perpetual sub-lease.
18. In reply to the aforesaid letter, by a letter dated 21.03.1980, approval was given by the Society for inclusion of the name of Mr. Kewal Singh and the plaintiff as co-lessees in respect of the Shanti Niketan property.
19. The plaintiff's father Mr. Kewal Singh died on 18th October, 1991 and her mother Mrs. Shamie Singh died on 18th May, 2004. It is averred that the plaintiff, on the death of her mother, had come into possession from her mother's records of the following wills:- (i) Joint and mutual will of Mr. Kewal Singh and Mrs. Shamie Singh dated 30th August, 1985; and
(ii) Joint and mutual will of Mr. Kewal Singh and Mrs. Shamie Singh dated 26th June, 1986.
20. It is asserted in the plaint that from the aforesaid wills, the plaintiff has now for the first time come to know that in terms of the said wills not only was the plaintiff's 50% share in the property sought to be protected, but the plaintiff is also the beneficiary of the remaining CS(OS) 1166/2004 Page No. 8 of 42 estate of her father. The plaintiff asserts that she is in possession of the immovable properties mentioned in the wills and that she is also one of the five trustees named in the wills dated 30th August, 1985 and 26th June, 1986 with respect to her parents' 50% share in the Shanti Niketan property, of which the defendants No.1 and 2 are the beneficiaries in equal shares. The plaintiff, however, learnt to her horror that late Mrs. Shamie Singh had on the basis of wrong and incorrect statements obtained the mutation of the property at No.84, Jacaraunda Marg, DLF Qutab Enclave Complex and all the shares and bank balances of late Mr. Kewal Singh into her own name.
21. Pursuant to the demise of Mrs. Shamie Singh, the plaintiff was shocked to receive from the British High Commission a letter dated 10.06.2004 stating that they had been advised that payment of rent should be made to the defendant No.1, an alleged named beneficiary of the estate of late Mrs. Shamie Singh. The plaintiff also learnt that a will had been made by the plaintiff's mother bequeathing the Shanti Niketan property as also the Gurgaon property and other assets in favour of her grandson, the defendant No.1. Hence the present suit for declaration, injunction and rendition of accounts praying, inter alia, for the following reliefs:-
CS(OS) 1166/2004 Page No. 9 of 42 A) Pass a Decree of Declaration:
a) Declaring that in the facts and
circumstances as aforesaid the Plaintiff
is the owner in possession of 50%
undivided share in the property
bearing no.1/31, Shantinikaten, New
Delhi.
b) Declaring that pursuant to the joint
and mutual wills dated 30/08/1985 and
26/06/1986 of Late Mr. Kewal Singh
and Late Mrs. Shamie Singh the
Defendants No.1 and 2 are the joint
owners of the balance 50% undivided
share in the property bearing no.1/31,
Shantiniketan, New Delhi.
c) Declaring that the Plaintiff as in the
past 34 years is entitled to 50% of the
rental income accruing from the front
unit of the property bearing no.1/31,
Shantiniketan, New Delhi and the
balance 50% is receivable by the
Defendants no.1 and 2 hereto in equal
shares.
d) Declaring that the Plaintiff in terms of
the family settlement is entitled to the
exclusive use of the residential
residence being the back unit of the
property bearing no.1/31, Shantiniketan, New Delhi which is
presently in the Plaintiff's exclusive use
and possession.
e) Declaring that the Plaintiff is and was
the sole legal heir to the estate of her
father Late Mr. Kewal Singh and that
accordingly, the Plaintiff was the sole
beneficiary of his entire estate
................................................."
22. By an order dated October 15, 2004 passed in an interim CS(OS) 1166/2004 Page No. 10 of 42 application, being IA No.7030/2004, the parties were directed to maintain status quo in regard to the suit property till the next date of hearing.
23. On 04.12.2004, the defendant No.1 filed IA No.8157/2004 for clarification of the order dated 15.10.2004 and to grant permission to the defendant No.1 to enter and stay in the premises.
24. By a subsequent order dated 09.03.2005, the following directions with regard to the deposit of rent were given by this Court in IA No.7030/2004:-
"Interim orders to continue. In the meanwhile
the British High Commission, the tenant in the
front portion of Property No.1/31-A, Shanti
Niketan, New Delhi is directed to deposit the rent with the Registrar General of this Court every
month so that orders in regard to the
disbursement thereof may be passed in due
course."
25. On 28.05.2005, the defendant No.1 filed another application being IA No.4671/2005 under Section 151 CPC seeking permission to execute/renewal of lease in respect of 1/31, Shanti Niketan (front unit) in favour of the British High Commission effective from July 01, 2005. Again, on 24.04.2007, the defendant No.1 filed IA No.4702/2007 under Section 151 CPC seeking release of the rent deposited by the British High Commission with the Registrar General of this Court. CS(OS) 1166/2004 Page No. 11 of 42
26. All the aforesaid applications have been heard by this Court on which elaborate arguments were advanced by both the sides, viz., the plaintiff and the defendant No.2 on the one hand and the defendant No.1 on the other. Broadly, the contentions of Mr. Rajiv Sawhney, the learned senior counsel representing the plaintiff may be summarised as follows.
27. Mr. Sawhney contended that the entire documentary evidence on record executed and confirmed time and again by the parents of the plaintiff, i.e., Mr. Kewal Singh and Mrs. Shamie Singh during their life time, which is contemporaneous, as also the various documents submitted by them to various Government authorities, including the Income-tax, Wealth tax, Housing Society and DDA, indisputably show that there was a family arrangement in terms of which the plaintiff was to be the owner of 50% share in the Shanti Niketan property.
28. Further, acting in furtherance of the said family arrangement, both Kewal Singh and Shamie Singh applied for the inclusion of the plaintiff's name in the perpetual sub-lease, which was only a formality, as the plaintiff was enjoying and exercising all rights as a co-owner in respect of the Shanti Niketan property, including receiving of rent. CS(OS) 1166/2004 Page No. 12 of 42
29. The defendant No.1 is barred by the principles of estoppel in challenging or disputing the family arrangement, more so, as the plaintiff was receiving rent thereunder.
30. No conveyance is required in the case of family agreement/arrangement which acknowledges and defines the share falling to a person while recognising the right of the other. This is clearly laid down by the Supreme Court in Kale & Others v. Deputy Director of Consolidation & Ors. (1976) 3 SCC 119, Hansa Industries (P) Ltd. v. Kidar Sons (P) Ltd. (2006) 8 SCC 531, Bhagwan Kishan Gupta v. Prabha Gupta & Ors. (2009) 11 SCC 33 and by this Court in Romesh Chander Sethi v. Inder Mohan 2009 (9) AD (Del) 179.
31. It is also contended that the plaintiff being a co-owner is/was always in possession of the entire property. She had been living in this property prior to her marriage when the same was constructed in the year 1970 and even thereafter she was in constructive possession of the same after her marriage. Even today, she is residing in the property along with her husband and is thus in settled and peaceful possession of the same as is evident from the prayer made by the defendant No.1 in IA No.8157/2004, which reads as follows:-
"(a) Clarify its order dated 15.10.2004 and
allow/hold that the defendant No.1 can enter
CS(OS) 1166/2004 Page No. 13 of 42 and stay in premises bearing No.1/31, Shanti
Niketan, New Delhi."
32. Mr. Sawhney relying upon the judgment of the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594, further contended that the defendant No.1 cannot take forcible possession as it is settled law that a person in peaceful possession is entitled to retain his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner, if the latter has dispossessed the former by use of force.
33. Reliance was also placed by Mr. Sawhney upon the three Bench judgment of the Supreme Court in Rame Gowda (Dead) by LRs v. M. Varadappa Naidu (Dead) by LRs and Anr. (2004) 1 SCC 769, which in turn refers to and relies upon the law laid down in a catena of judgments, including Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, AIR 1924 PC 144; Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350; Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620; Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165; M.C. Chockalingam v. V. Manickavasagam, (1974) 1 SCC 48; Krishna Ram Mahale v. Shobha Venkat Rao, CS(OS) 1166/2004 Page No. 14 of 42 (1989) 4 SCC 131; Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC 426; Munshi Ram v. Delhi Admn., AIR 1968 SC 702; Puran Singh v. State of Punjab, (1975) 4 SCC 518 and Ram Rattan v. State of U.P., (1977) 1 SCC 188, to contend that settled possession gives a right to possession such that even the rightful owner may only recover it by taking recourse to law.
34. The next contention of Mr. Sawhney is that the defendant No.1 is not entitled to dispute the title of his mother in the properties on the basis of an alleged will purported to be executed on 25.09.2003 in his favour by his grand mother late Mrs. Shamie Singh as the defendant No.1 till date has not filed any suit or claim for any of the properties of late Mrs. Shamie Singh, including any suit for possession in respect of the property at Shanti Niketan. The counsel contended, relying upon Anathula Sudhakar's case (supra), that in the guise of an application under Section 151 CPC (IA No.8157/2004), the relief of possession cannot be claimed and cannot be granted. It was further submitted by him that even assuming the will dated 25.09.2003 to be a genuine will though it has yet to be established as a genuine will, the execution of a registered document by a party to the family arrangement cannot nullify the family arrangement which has been fully acted upon. Reference CS(OS) 1166/2004 Page No. 15 of 42 was made in this context to the decision of the Privy Council in Frederick Emmanuel Abeyesundera v. Ceylon Exports Ltd., AIR 1936 PC 259 in which it was held that a father who had transferred certain property to his son by a deed of gift, which was unregistered, cannot subsequently deprive the son of the said property by subsequently transferring it to another person by a registered deed; and to Krishna Sahoo v. Maung, AIR 1930 Rangoon 188, in which it was held that a subsequent registered purchaser cannot avail himself of the registration of his deed against a prior unregistered purchase of which he has notice.
35. It was next contended that in the present case, the genuineness and factum of execution of the alleged will dated 25.09.2003 is itself in dispute and it is the probate court alone which can decide such dispute. Relying upon the decisions in Ram Shankar v. Balakdas, AIR 1992 MP 224; Ravi Khanna v. Pankaj Khanna, 152 (2008) DLT 484; Sunil Gupta v. Kiran Girhotra, 157 (2009) DLT 705; Amar Deep Singh v. State, 125 (2005) DLT 627 and Smt. Multivahuji v. Smt. Kalindivahuji, AIR 1994 Gujarat 42, the learned senior counsel contended that it is settled law that the civil court will not decide the issues exclusive jurisdiction of which vests with the probate court and CS(OS) 1166/2004 Page No. 16 of 42 the probate court will not decide any issues relating to title which have to be decided by the civil court. Therefore, till such time as the genuineness and execution of the will is decided by the court of competent jurisdiction, i.e., the probate court, the said will cannot be relied upon. Further, even assuming the will dated 25.09.2003 to be genuine, it will not confer title of the entire Shanti Niketan property on the defendant No.1 as late Mrs. Shamie Singh and her husband were together owners of only 50% share and the remaining 50% share in the said property was owned by the plaintiff and, as such, late Mrs. Shamie Singh could not have bequeathed more than what she owned.
36. It was also submitted that a probate petition filed today by the defendant No.1 would be barred by the law of limitation in view of the judgment of the Supreme Court in the case of Krishna Kumar Sharma v. Rajesh Kumar Sharma, reported in JT 2009 (4) SC 533, in which Article 137 of the Limitation Act is held applicable to probate proceedings. A petition for probate under Article 137 will have to be filed within three years from the date of challenge. The challenge in the instant case was raised by the plaintiff in her replication on 05.04.2005, wherein she denied and disputed the alleged will. The probate petition thus should have been filed by the defendant No.1 within three years CS(OS) 1166/2004 Page No. 17 of 42 from the said date, i.e., by or before 04.04.2008.
37. To counter the arguments advanced by Mr. Sawhney on behalf of the plaintiff, Mr. P.V. Kapur, the learned senior counsel for the defendant No.1 raised the following contentions.
38. The family arrangement dated 30th July, 1969 was entered into solely as a tax saving device and the tax returns relied upon by the plaintiff are not conclusive proof of the title of the plaintiff. The plaintiff relies upon certain correspondence purportedly exchanged between her and her parents between January, 1969 and May, 1969 that led to the alleged family arrangement being crystallized. Oddly, the said letters were exchanged at a time when the plaintiff was living with her parents in the same house and thus evidently it was a concerted and ingenious effort on the part of the family to use the arrangement as a device to save tax. The learned counsel contended that it is significant to note that once the tax department was satisfied and was willing to tax the income from property in two hands, nothing further was done to transfer and register 50% of the property in favour of the plaintiff. This is all the more important in view of the fact that the plaintiff's parents had ample opportunity to act on the settlement. The plaintiff's father made no efforts to give effect to the alleged family settlement CS(OS) 1166/2004 Page No. 18 of 42 purportedly entered in the year 1969 till the year of his demise in the year 1991 and the plaintiff's mother who died in the year 2004 also took no steps to include the plaintiff's name in the perpetual sub-lease. Had it been the intention of the parties to make the plaintiff a co-owner of the property, the said intention of the parties would have manifested itself in the sub-lease executed in May, 1969 when all the related costs, such as stamp duty were in any case incurred. Instead, the perpetual sub-lease was executed solely in the name of the plaintiff's mother. Learned senior counsel further contended that the intention of the parties is also evident from the fact that the two wills relied upon by the plaintiff and the defendant No.2, i.e., the will of 30th August, 1985 and of 26th June, 1986 do not acknowledge the plaintiff's stake in the ownership of the estate in any way at all as is evident from a bare reading thereof.
39. It is also contended that the fact that the so-called family settlement was a tax saving device is evident from the fact that the plaintiff has not received any rent whatsoever though the money was being deposited in a joint account and, hence, the plaintiff in the plaint has made a claim seeking rendition of accounts as regards the rent for the past 34 years. Moreover, there is no averment in the plaint to the effect that the plaintiff ever paid any interest whatsoever on the loan CS(OS) 1166/2004 Page No. 19 of 42 amount or repaid the loan amount at all.
40. Relying upon the decisions in Suraj Bhan and Ors. v. Financial Commissioner and Ors., (2007) 6 SCC 186 and Gurunath Manohar Pavaskar v. Nagesh Sidappa, (2007) 13 SCC 565, it is further submitted that merely because the plaintiff's name appears in the revenue records, the same cannot be considered conclusive proof of her title. It is contended that a revenue record is not a document of title. As held by the Supreme Court in Gurunath Manohar Pavaskar (supra), it merely raises a presumption as regards possession. In any event, in the instant case, the plaintiff is not even in settled possession of the suit property. Therefore, the plaintiff cannot rely upon the revenue records to establish either her title or possession, which was admittedly intermittent.
41. The reliance placed upon by the plaintiff upon Kale's case (supra), it is contended by the learned senior counsel for the defendant No.1, is misplaced since the decision in Kale's case (supra) clearly holds in paragraph 10 with regard to family arrangements:- "A distinction should be made between a
document containing the terms and recitals of a family arrangement made under the document
(emphasis added) and a mere memorandum
prepared after the family arrangement had
already been made either for the purpose of the CS(OS) 1166/2004 Page No. 20 of 42 record or for information of the Court for
making necessary mutation. In such a case the
memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not
compulsorily registrable."
42. It is also submitted by Mr. P.V. Kapur that since the agreement dated 30th July, 1969 purports to create a right, title and interest in 50% of the property for the first time without any reference to any previous correspondence and is in praesenti, it would necessarily require to be stamped and registered. It being unregistered, it cannot be received in evidence nor it can be relied upon even for any collateral purpose. The proposition propounded in Kale's case (supra) is even otherwise not applicable in the instant case for the reason that in the said case the family arrangement was the result of a dispute between the parties. In such circumstances, the Supreme Court in Kale's case (supra) held that parties to the family settlement who have enjoyed a benefit under the settlement are thereafter precluded from questioning the family settlement. In the instant case, the defendant No.1 was admittedly never a party to the alleged family settlement nor enjoyed any benefit thereunder.
43. Even otherwise, it is submitted that as per Section 50 of the CS(OS) 1166/2004 Page No. 21 of 42 Registration Act, a registered document will prevail at a prima facie stage. Therefore, the statutory presumption is in favour of the defendant No.1 and the registered document that he is relying upon, i.e., the registered will dated 25th September, 2003 executed by his grandmother Mrs. Shamie Singh in his favour, which must be given precedence over an unregistered family arrangement.
44. As regards the contention of the plaintiff with regard to the validity and effect of the will dated 25.09.2003, it is stated that the plaintiff has not made any averment to the effect that the defendant No.1 should have applied for probate to prove the validity of the will dated 25.09.2003 being relied upon by the defendant No.1 either in the plaint or in the replication filed to the written statement thereto. Further, neither the plaintiff nor the defendant No.2 has prayed for a declaration that the will dated 25.09.2003 be declared invalid. As a matter of fact, no specific challenge has been raised to the authenticity of the will, the signatures of the testatrix Mrs. Shamie Singh, the soundness of the mind of the testatrix, or any suspicious circumstances shrouding the will except to state that Mrs. Shamie Singh could not have bequeathed more than what she owned, which is clearly an issue of title and out of the scope of adjudication of the probate court.
CS(OS) 1166/2004 Page No. 22 of 42
45. The next contention of Mr. Kapur, the learned senior counsel for the defendant No.1 is that a conjoint reading of Section 213 with Section 57 of the Indian Succession Act clearly establishes that there is no requirement at all to apply for probate in Delhi. The validity of a will may be decided in civil proceedings in the case of a will that is not covered by Section 213(1) of the said Act and in that sense the prohibition under Section 213(1) is a limited one and does not oust the jurisdiction of civil courts in the cases of those wills that are outside the scope of Section 213(1). The plaintiff's reliance upon the decisions rendered in Ram Shankar (supra) and Amar Deep Singh (supra) in support of the proposition that probate of a will is necessary, is misplaced. Insofar as Ram Shankar's case (supra) is concerned, the said judgment was overruled by a Division Bench of the Madhya Pradesh High Court in Phool Singh v. Kosa Bai, 1991 (1) MPJR 352. The relevant observations in Phool Singh's case as set out in para 25 are as follows:-
"Therefore it follows that even if two contesting wills are set up, executed by a Hindu outside the territories mentioned in Section 57(a); regarding the property situated outside those territories, obtaining of a probate of a will from the Probate Court would not be necessary. As noticed by the learned referring Judge also, if that was to be so, it would be very easy for the other party to plead CS(OS) 1166/2004 Page No. 23 of 42 and set up another will and thus to defeat the
right of the party to pursue his claim under a will unless he obtains probate thereof. Therefore,
with due respect, we do not agree with the view taken in Ramshanker's (supra) that in the case
of two contesting wills, exclusive jurisdiction is vested in the probate court and in such a case in a suit instituted by any party, no issue can be struck by a Civil Court to decide that the will was the last and valid will and the other will set up by the other party, stands revoked by the will relied on by the Plaintiff."
46. The learned counsel contended that not only is the decision in Ram Shankar's case (supra) and Amardeep Singh's case (supra) overruled by Phool Singh's case (supra), but the issue is long settled in view of the judgments rendered in Joginder Kaur Malik v. Malik Anup Singh, AIR 1966 PUNJAB (at Delhi) 385; Om Prakash Kohli v. Ravi Prakash Kohli, 2002 III AD (Delhi) 1083; Rajan Suri v. State, AIR 2006 DEL 148; and Behari Lal Ram Charan v. Karam Chand Sahni, AIR 1968 P&H 108 (DB), wherein it has been clearly held that in Delhi, there is no notification or order that a will must be got probated mandatorily, and that Section 213 read with Section 57 of the Indian Succession Act, 1925 is no bar to a party basing its claim on a will in a suit instituted in Delhi.
47. The learned counsel for the defendant No.1 next contended that it is settled law that a probate court can never go into the question of title CS(OS) 1166/2004 Page No. 24 of 42 and its powers are limited viz., to examine whether the will in question was executed without coercion and undue influence, to gauge if the testator was of a sound disposing mind and whether the will was duly attested or not. Here, the plaintiff's main contention is that the plaintiff's mother could not have bequeathed more than what she owned, which is clearly an issue of title and out of the scope of adjudication of the probate court. Reliance in this regard was placed upon the judgments rendered by the Supreme Court in K.K. Birla v. R.S. Lodha, (2008) 4 SCC 300; Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, (2007) 11 SCC 357; Chiranjilal Srilal Goenka (Dead) By LRs v. Jasjit Singh & Ors., (2000) Supp. 5 SCR 313, wherein it was categorically opined that while granting a probate, the court would not decide any dispute with regard to title.
48. In any event, it is submitted that the present will is a registered document and was duly executed when the defendant No.1 was not in the country and this fact in itself raises a presumption in favour of its validity and is sufficient to satisfy the conscience of the Court at a prima facie stage. At this stage, the existence of a registered will coupled with the fact that there is no serious challenge to the authenticity of the will and the signatures of the testatrix, shows that the balance of CS(OS) 1166/2004 Page No. 25 of 42 convenience weighs in the defendant No.1's favour. Relying upon the decisions in Rabindranath Mukherjee v. Panchanan Banerjee, AIR 1995 SC 1684; Arjan Dev Mittra v. Sada Nand, AIR 2000 Del 236; Prithi Singh v. Saran Singh, 2006 III PLR 293 and Baburajan v. Parukutty, AIR 1999 Ker 274, it was submitted that registration being a solemn act gives rise to a presumption as to the regularity of the execution of the will and its genuineness unless and until there are very strong reasons which create doubt about its execution and genuineness.
49. As regards the alleged joint and mutual wills dated 30th August, 1985 and 26th June, 1986 relied upon by the plaintiff, it was stated that the said wills are not joint and mutual wills and that there is a distinction between a joint will and a mutual will, inasmuch as while the joint will is a single testamentary instrument constituting or containing the wills of two or more persons and jointly executed by them, mutual wills are the separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of a contract or agreement between two or more persons to dispose of their property to each other or to any third person. Thus, it is submitted that a joint and mutual will may be rendered irrevocable on the death of one of the testators if the survivor has received benefits under the mutual will and if there was an CS(OS) 1166/2004 Page No. 26 of 42 agreement that the testators would not revoke the same. In the instant case, the two wills relied upon by the plaintiff are titled as "Wills jointly made" by the plaintiff's parents and do not purport to bequeath any estate on either of the testators nor is there any agreement explicit or implicit which forbids the surviving testator from revoking the will. The Privy Council in Helen Ann Gray v. Perpetual Trustee Co. Ltd., AIR 1928 Privy Council 284 has held that the mere fact that two wills were made by the husband and wife in identical terms and on the same date does not necessarily imply any agreement to the effect that the wills should not be revoked after the death of one of the parties, without independent evidence of any further agreement between the parties.
50. Reference was also made by Mr. Kapur to a Division Bench judgment of the Madras High Court in the case of Kuppuswami Raja and Anr. vs. Perumal Raja and Ors., AIR 1964 MADRAS 291 (V 51 C 88) and in particular to paragraphs 10, 11 and 13 to elucidate that the wills dated 30th August, 1985 and 26th June, 1986 were not joint and mutual wills as was being alleged by the plaintiff:- "10. The law relating to joint Wills and mutual Wills is best stated in 39 Halsbury, Simonds
Edn., 3rd Ed. page 846, para 1279 and page 847, para 1280:
"A joint Will is a Will made by two or
more testators contained in a single document,
CS(OS) 1166/2004 Page No. 27 of 42 duly executed by each of testator and disposing either of their separate properties, or of their joint property. It is not, however, recognised in English law as a single Will. It is in effect two or more Wills; it operates on the death of each
testator as his Will disposing of his own separate property; on the death of the first to die it is admitted to probate as his own Will and on the
death of the survivor, if no fresh Will has been made, it is admitted to probate on the disposition of the property of the survivor."
"Wills are mutual when the testators
confer upon each other reciprocal benefits and
there may be absolute benefits in each other's
property, or they may be life interests, with the same ultimate disposition of each estate on the death of the survivor."
11. A joint Will is a single testamentary
instrument constituting or containing the Wills of two or more persons and jointly executed by
them; while mutual Wills are the separate Wills of two or more persons which are reciprocal in
their provisions and executed in pursuance of
compact (sic. contract) or agreement between
two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Mutual Wills as distinct from
joint Wills are sometimes described as reciprocal Wills. In describing a Will the adjective "Mutual" or "reciprocal" is used to emphasise and denote the contractual element which distinguishes it
from a joint Will.
13. In England the Courts have evolved their
own principles of law regarding joint and mutual Wills and so far as English law is concerned, the principles appear to be fairly well settled. In regard to joint and mutual Wills, the decisions in England have recognised a distinction in the
powers and jurisdiction of a Court issuing a
probate and a Court whose jurisdiction has been CS(OS) 1166/2004 Page No. 28 of 42 invoked by a party for the enforcement of the
rights based upon the agreement embodied in a
mutual Will.
An examination of the cases in England
shows that in the case of a mutual Will, if there is an agreement that neither of the testators shall have power to revoke, and the surviving testator receives benefits from the deceased under the
mutual Will, the survivor is not entitled to revoke the Will when the first testator had died leaving the mutual Will unaltered and unrevoked in
pursuance of the agreement and in the hope and
trust that the mutual Will will be adhered to by the survivor. If, however, the survivor in breach of faith revokes a mutual Will by making a new
Will, it is the new Will which will have to be
necessarily admitted to probate so far as the
properties of the survivor are concerned. In an application for probate the Court has no
jurisdiction to enquire into the nature of the
rights of the testator in the property covered by the Will. If the probate Court is satisfied about the due and proper execution of a Will by a
testator in a sound disposing state of mind, it is bound to grant a probate of the Will. It is
however, open to the beneficiaries under the
mutual Will to take proceedings in the Chancery Division for the enforcement of their rights, and the execution of the trust as envisaged in the
mutual Will. The personal representatives under the latter Will can be compelled to hold the
entire estate upon trust to give effect to the
provisions of the mutual Will. Vide 39 Halsbury, Lord Simonds, 3rd Edn. page 853 para 1299."
51. Finally, it was contended on behalf of the defendant No.1 that the plaintiff is not in settled possession as her infrequent and intermittent possession has never translated into settled possession. The reliance CS(OS) 1166/2004 Page No. 29 of 42 placed by the plaintiff on the case of Anathula Sudhakar's case (supra), it was submitted, was misplaced inasmuch as in the said case it was clearly held by the Supreme Court that:-
"In a suit for permanent injunction to restrain the defendant from interfering with the Plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful
possession." (emphasis added)
The Hon'ble Supreme Court in Anathula Sudhakar's case (supra) also specifically held that:- (SCC, P-604, para 13.1) "A person has a right to protect his possession against any person who does not prove a better
title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner".
(emphasis added)
52. Distinguishing the judgment in Rame Gowda's case (supra) relied upon by the counsel for the plaintiff, it was also contended that in paragraph 9 of the said judgment, the Supreme Court had highlighted that settled possession must be:-
"(i) effective, (ii) undisturbed and (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser."
The Supreme Court had further held that:-
"The possession which a trespasser is entitled to CS(OS) 1166/2004 Page No. 30 of 42 defend against the rightful owner must be settled possession, extending over a sufficiently long
period of time and acquiesced to by the true
owner. A casual act of possession would not
have the effect of interrupting the possession of the rightful owner."
53. The learned senior counsel contended that admittedly in the instant case the plaintiff had got married in 1972 and left for Paris shortly thereafter. From 1972 until 1983 and then from 1988 until July, 2009, she did not live in the house. Between 1983 to 1988, the plaintiff and the defendant No.1 jointly occupied the said property. Even at the time of the filing of the instant suit, the plaintiff's affidavit had been signed and verified at Rome, which is admittedly where she was residing with her husband. Further, the plaintiff's contention that the defendant No.1 ought to have filed a suit for possession is baseless since the mere fact that the defendant No.1 had not instituted a suit for possession cannot be interpreted to mean that the plaintiff is in settled possession. It is submitted that after the plaintiff's mother's demise, at the time of mourning, the plaintiff changed the locks in the house thereby taking illegal possession, which is tantamount to an act of trespass. Thereafter, the plaintiff approached the Court and obtained an ex parte status quo order.
54. The learned senior counsel further contended that the defendant CS(OS) 1166/2004 Page No. 31 of 42 No.1, on the other hand, is the sole beneficiary under the registered will dated 25.09.2003, which must be presumed to be valid at the prima facie stage. Thereby, the defendant No.1 is the sole named executor and the possession that vests in him by operation of law under Section 211 of the Indian Succession Act must be protected. Reference in this regard was made to paragraphs 46 and 47 of the judgment of the Supreme Court in FGP Ltd. v. Saleh Hooseini Doctor & Anr., (2009) 10 SCC 223, which read as under:-
"46. In this connection, we must see the
distinction between Sections 211 and 213 of the Indian Succession Act. Under Section 211 of the said Act, the executor or administrator, as the case may be, of a deceased person is his legal
representative for all purposes, and all the
property of the deceased person vests in him as such. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure. Section 2(11) of the Code of Civil Procedure provides as under:
"2.(11) 'legal representative' means
a person who in law represents the estate
of a deceased person, and includes any
person who intermeddles with the estate
of the deceased and where a party sues or
is sued in a representative character the
person on whom the estate devolves on
the death of the party so suing or sued;"
47. Therefore, it is Section 211 and not
Section 213 that deals with the vesting of
property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor CS(OS) 1166/2004 Page No. 32 of 42 derives his title from the will and becomes the representative of the deceased even without
obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain."
55. After carefully deliberating upon the rival contentions of the parties and on unravelling the facts which emerge from the documentary evidence on record, the following position emerges for consideration at this stage.
56. The plaintiff relies upon an alleged family agreement dated 30th July, 1969, which though admittedly unregistered is signed by the plaintiff and by her mother Mrs. Shamie Singh. The said family arrangement is stated to be and, prima facie, appears to be the outcome of previous correspondence exchanged between the plaintiff, her mother and her father, which admittedly was exchanged when all three of them were residing together in the same house i.e. 10, Motilal Nehru Marg, New Delhi. The question whether or not there is any substance in the contention of the learned counsel for the defendant No.1 that "the story with regard to the alleged family agreement is the creation of an ingenious mind" and in fact the so-called family arrangement was merely a tax saving device, in my opinion, cannot be adjudged at this stage and must depend upon the evidence adduced by the parties, after a CS(OS) 1166/2004 Page No. 33 of 42 full-fledged trial. I say so for the following reasons.
57. There is no denying the fact that there are on record income tax returns filed by the plaintiff and signed on her behalf by her father Mr. Kewal Singh, as per which the plaintiff is the owner of half share of the Shanti Niketan property. Likewise, there are on record tax returns filed by Mrs. Shamie Singh claiming to be owner of the other half share. The cumulative effect of the correspondence between the plaintiff and her parents, the family arrangement dated 30th July, 1969 and the tax returns, in my view, is that unless proved to the contrary by evidence adduced in this regard, all the aforesaid documents clearly point to the intent of the parents of the plaintiff that one-half of the property would vest in the plaintiff.
58. The wills dated 30th August, 1985 and 26th June, 1986 executed jointly by Mr. Kewal Singh and Mrs. Shamie Singh also leave no manner of doubt that it was intended that the plaintiff should continue to enjoy the rear part of the house at Shanti Niketan, i.e., her 50% share. The mere fact that the perpetual sub-lease was executed in the name of Mrs. Shamie Singh (though the land was allotted to Mr. Kewal Singh and initially the perpetual lease deed was in the name of Mr. Kewal Singh) cannot, in my view, in the absence of evidence, be construed to CS(OS) 1166/2004 Page No. 34 of 42 mean that Mrs. Shamie Singh did not recognise the plaintiff as a co- owner. Had it been so, there would have been no reason for her to affix her signatures on the family arrangement and on the two wills dated 30th August, 1985 and 26th June, 1986 as well as on the letter dated October 26, 1970 to the Vice Chairman, DDA requesting for a division of the property comprising of two vertical units as shown in the site plan enclosed, between herself and her daughter. Mrs. Shamie Singh would also not have countersigned the letter dated 15.07.1975 written by the father of the plaintiff to the Additional Secretary, DDA for the inclusion of the plaintiff's name in the sub-lease as co-lessee along with her father. There is also on record a joint letter dated 16.03.1980 signed by the father and mother of the plaintiff to the Secretary, Government Servants Association, Vasant Vihar, requesting for the inclusion of the name of the plaintiff and her father in the perpetual sub-lease, and a letter dated 21st March, 1980 whereby approval was given by the Society for the inclusion of their names as co-lessees.
59. As regards the contention of the learned senior counsel for the defendant No.1 that it was not incumbent upon the defendant No.1 to knock at the door of the probate court and his further contention that the question whether or not Mrs. Shamie Singh could have made a bequest CS(OS) 1166/2004 Page No. 35 of 42 of the entire property in the name of the defendant No.1 (she being an owner of 50% share only) is a question which needs to be examined by a civil court, this Court is of the opinion that both the aforesaid contentions are well founded. However, for this Court to hold at this stage, in the absence of evidence on record, that the will dated 25.09.2003 nullified the family arrangement dated 30.07.1969 merely by virtue of the fact that the former is a registered document and the latter is not, may not be in consonance with the law. Assuming the plaintiff to be a co-owner of the property with late Mrs. Shamie Singh, the question arises whether Mrs. Shamie Singh could have made a bequest of the entire property, including the half share of the plaintiff, in favour of the defendant No.1? The answer must, in my opinion, be an emphatic "No".
60. Then again, it is settled law that merely because a bequest has been made, it will not vest the beneficiary with title when the title of the testator itself is in doubt or under challenge. The will dated 25th September, 2003 does not mention that Mrs. Shamie Singh is the owner of the entire Shanti Niketan property nor it is mentioned in the said will that due to tax-planning reasons certain documents had been executed to show otherwise. The will has also been categorically disputed by the CS(OS) 1166/2004 Page No. 36 of 42 plaintiff and by the defendant No.2. In the course of hearing, it was submitted by the learned counsel for the plaintiff and the defendant No.2 that at the time of the filing of the plaint the plaintiff did not have the alleged will dated 25.09.2003. The said alleged will was set up as a defence in the written statement filed by the defendant No.1, but a copy of the same was not filed with the written statement but subsequently with an application, and therefore, the argument of the defendant No.1 that the plaintiff should have challenged the said will in the plaint is wholly misconceived. It would, in these circumstances, in my opinion, be too far fetched to say that the plaintiff should have challenged the will in the plaint, when the alleged will was not furnished by the defendant No.1 to the plaintiff. Further, assuming that the alleged will dated 25.09.2003 is held to be genuine, the question still remains at large as to whether late Mrs. Shamie Singh could have bequeathed more than what she owned.
61. Significantly also, the fact that there was a family arrangement is not disputed by the defendant No.1. All that the defendant No.1 states is that the said family arrangement was an ingenious tool devised by the family to save tax and nothing more. This certainly, to my mind, will be a matter to be decided after the parties have marshalled their respective CS(OS) 1166/2004 Page No. 37 of 42 evidence. More so, as the defendant No.1 in his written statement has not denied that a joint account was opened by the plaintiff's mother and the plaintiff in which the rent from the front portion of the house was being deposited, and from which joint account the plaintiff, from time to time, "borrowed" money during the short intervals when the plaintiff came to India. This, in my view, further lends credence to the case of the plaintiff that the family arrangement was in fact acted upon.
62. Adverting next to the plea of the learned senior counsel for the defendant No.1 that the plaintiff is not in settled possession of the property as alleged by her. The said plea, in my opinion, cannot be countenanced at this stage in view of the fact that in accordance with law, the possession of a co-owner is deemed to be the possession of all the remaining co-owners. Thus viewed, the plaintiff was always in legal possession of the Shanti Niketan property and her possession was secured by her parents during her absence from India and while she was living with her husband, who was posted abroad. It would be too dangerous a proposition to hold that an owner/co-owner must be said to be out of possession only because the said owner/co-owner was not in actual physical possession at all times.
63. In the present case, it also cannot be lost sight of that the CS(OS) 1166/2004 Page No. 38 of 42 possession of the plaintiff relates back to the year 1970 when she was not married. The father and mother of the plaintiff had during their lifetime acknowledged her right to stay in the Shanti Niketan property, and the plaintiff with her husband was admittedly residing in the said property during her visits to India. According to her, they had no other residential house in India. The mother of the plaintiff died on 18.05.2004 and the present suit was filed in the month of October, 2004. During this period also, the plaintiff was in possession of the property to the exclusion of the defendant No.1. For this Court to direct her ouster from the said property at this juncture when the parties have yet to lead their evidence, more so, when the will dated 25th September, 2003 is seriously in dispute and, in any case, is enveloped in the controversy as to the testamentary capacity of the testatrix would result in irreparable injury to the plaintiff. The plaintiff also appears to have a prima facie case in her favour. The balance of convenience is also in favour of the plaintiff, who is presently in possession and is admittedly very sick, apart from being advanced in years.
64. It may be noted in all fairness at this juncture that even the defendant No.1, who remained present during the hearing, stated that he did not wish to throw out his mother from the house. All that he CS(OS) 1166/2004 Page No. 39 of 42 claimed, he stated, was his right to enter and stay in the premises bearing No.1/31, Shanti Niketan, as prayed by him in IA No.8157/2004. This, to my mind, is not possible at this juncture in view of the fact that the front portion of the house is under the tenancy of the British High Commission and the rent received from the British High Commission is being deposited with the Registrar General of this Court. The rear portion of the house is in the occupation of the mother of the defendant No.1. The question whether the defendant No.1, during the pendency of the suit, can be accommodated and allowed to reside in a demarcated portion of the rear part of the house is a question which must, to my mind, be sorted out by the parties themselves, this being essentially a family matter. This Court can do no more than advise the parties to bridge the gap between them by having recourse to mediation proceedings. If and when the parties desire to do so, the Delhi High Court Mediation and Conciliation Centre will ensure that senior and experienced mediators assist the parties in resolving this acrimonious and bitter dispute between mother and son for the acquisition of property, resulting in the snapping of all family ties.
65. As regards the prayer of the defendant No.1 for release of the rent deposited with the Registrar General of this Court, the submission of CS(OS) 1166/2004 Page No. 40 of 42 Mr. P.V. Kapur is that the defendant No.1 is entitled to the entire estate of late Mrs. Shamie Singh, inclusive of the rent being paid by the British High Commission for the front portion of the property. In the alternative, Mr. Kapur submitted that the defendant No.1 would in the final analysis, in any case be entitled to half of the estate of late Mrs. Shamie Singh. Taking note at this juncture of the submission of Mr. Rajiv Sawhney that the plaintiff is ultimately interested in a fair division of the property between her two children, i.e., the defendant No.1 and the defendant No.2, this Court is of the view that the defendant No.1, as an interim measure and subject to the final outcome of the suit, be paid half the rent accruing and accumulated from the front portion of the property. It is accordingly directed that 50% of the rent lying deposited with the Registrar General of this Court as well as 50% of the rent deposited from month to month by the British High Commission be released to the defendant No.1. The remaining 50% accumulated rent shall be put in a fixed deposit receipt initially for a period of two years with automatic renewal, if required. The rent deposited from month to month shall likewise be kept in fixed deposit receipts initially for a period of two years each with automatic renewal, if necessary.
66. With the aforesaid observations and directions, the interim orders CS(OS) 1166/2004 Page No. 41 of 42 dated December 15, 2004 are made absolute during the pendency of the suit. IA Nos.7030/2004, 8157/2004, 3857/2005, 4671/2005, 4702/2007 and 8753/2008 stand disposed of accordingly.
67. It is clarified that any discussion on the merits of the case or any observation made for the limited purpose of deciding the aforementioned applications will not have any bearing on the future conduct of the case.
CS(OS) 1166/2004
List the case before the concerned Court on 19th April, 2010 for directions.
REVA KHETRAPAL, J
APRIL 07, 2010
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CS(OS) 1166/2004 Page No. 42 of 42
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