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High Court Of Delhi
SARDAR PRITHIPAL SINGH SABHARWAL - Appellant
Versus
MAJ.(RETD.) JAGJIT SINGH SABHARWAL - Respondent
Decided On : 05/01/1996
WILL - PROBATE - NOT REQUIRED IN DELHI - SUCCESSION ACT, 1925, SECTION 213 - INAPPLICABLE - WILL CAN BE SET UP IN COLLATERAL PROCEEDINGS - RIGHT TO RECOVER RENT - DEFENDANT ENTITLED TO RECOVER RENT FROM TENANTS - INJUNCTION - RESTRAINING DEFENDANT FROM SELLING OR TRANSFERRING PROPERTY - GRANTED - ACCOUNT OF RENT RECEIVED AND EXPENSES INCURRED TO BE MAINTAINED - INTERFERENCE WITH PLAINTIFF'S RIGHTS - RESTRAINED.
Fact of the Case:
Plaintiffs filed a suit for partition and rendition of accounts against defendants, claiming themselves to be entitled to 1/11th equal share in the property left behind by the deceased. Defendant No. 1 claimed the property in his favor by virtue of a Will dated 28th April, 1992. An ex parte order of injunction was passed restraining the parties from selling, transferring, alienating or parting with possession of the property.
Finding of the Court:
The court held that Section 213 of the Indian Succession Act has no applicability in Delhi and a person has a right to set up a Will even in collateral proceedings without obtaining probate. The court found that defendant No. 1 had the right to recover rent from the tenants of the 1st floor and barsati floor and was entitled to let the same to tenants. However, he was restrained from selling or transferring the property till the disposal of the suit and was directed to maintain proper accounts of the rent received and the expenses incurred.
Issues: 1. Whether probate of a Will is required to be obtained in Delhi before any claim is based on that Will? 2. Whether defendant No. 1 had the right to recover rent from the tenants of the 1st floor and barsati floor? 3. Whether defendant No. 1 was entitled to let the 1st floor and barsati floor to tenants?
Ratio Decidendi: 1. The court relied on the judgment in M/s. Behari Lal Ram Charan Vs. Karam Chand Sahni and Others, AIR 1968 Punjab 108, which held that it was not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. 2. The court found that defendant No. 1 had the right to recover rent from the tenants of the 1st floor and barsati floor based on the agreement dated 26th February, 1982 between the deceased and defendant No. 1, which acknowledged that defendant No. 1 had given a loan for construction of the first floor and barsati floor and in consideration of the loan, the deceased had given the right to occupy the first floor and barsati floor to defendant No. 1. 3. The court held that defendant No. 1 was entitled to let the 1st floor and barsati floor to tenants based on the same agreement.
Final Decision: The court modified the interim orders dated 24th August, 1994 and 14th September, 1994 to the extent that defendant No. 1 was restrained from selling or transferring the property to any other person till the disposal of the suit. Defendant No. 1 was also directed to maintain proper accounts of the rent received and the expenses incurred in respect of the first and barsati floor of the property. Defendants 1 and 3 were also restrained from parting with possession of the ground floor of the property to any other person without permission of the Court. The court also allowed the plaintiff's application for injunction restraining the defendants from interfering with the plaintiff's rights in the property and consolidated the suit with another suit involving similar issues.
( 1 ) BY this order I propose to dispose of all the applications of the parties for the grant of an injunction as also for vacating the ex parte order of injunction passed on 24th August, 1994 as modified by the order dated 14th September, 1994. Brief facts which have resulted in the filing of the present suits are : IA. Nos. 7287/94 and 8092/94
( 2 ) THAT the property bearing No. C-92, Defence Colony, New Delhi was owned by U. Col. Sant Singh Sabharwal, who died on 19th July, 1994. Plaintiffs and defendants 1 and 2 are the sons of the deceased whereas defendant No. 3 is his widow. Defendants 4 to 7 are the daughters-of the deceased. The bone of contention is the property bearing No. C-92, Defence Colony, New Delhi which, according to defendant No. 1, had been bequeathed in his favour by the deceased by virtue of a Will dated 28th April, 1992. The plaintiffs claiming themselves to be entitled to 1/11th equal share in the property, left behind by the deceased, both moveable and immoveable, have filed this suit for partition and rendition of accounts against defendants 1 to 3. Admittedly, defendants 1 and 3 are residing on the ground floor of the property whereas the first floor of the property is under the tenancy of M/s. Shaw Wallace and Company and the rent for the same is being recovered by defendant No. 1. Along with the suit an application for injunction was also filed and this Court had, by order dated "24th August, 1994, directed the parties to maintain status quo with regard to possession of the property and from selling, transferring, alienating or parting with possession of the property to any other person. On an application of the defendant, this order was modified to the extent that defendant No. 3 was permitted to operate the accounts which were independent in her own name.
( 3 ) BESIDES filing the written statement, defendants 1 and 3 have also filed an application under Order 39 Rule 4 Civil Procedure Code for vacating the ex parte order of injunction passed in the above terms. The stand of the said defendants is that by virtue of the Will dated 28th April, 1992 while the moveable property had been bequeathed to defendant No. 3, it is defendant No. 1 who has been given the property being No. C-92, Defence Colony, New Delhi. It is also the case of the said defendants that the moveable properties of the deceased were held jointly with an endorsement "either or survivor" and after the death of Lt. Col. Sant Singh Sabharwal, the other person who was a joint holder of the said moveable property has become entitled to the same to the exclusion of everybody else. It is also stated that during the lifetime of the deceased, defendant No. 1 had been given exclusive right of possession and occupancy with the right to let out the first floor and barsati floor constructed in C-92, Defence Colony, New Delhi, as also to receive the rent therefrom and utilise it for his exclusive use. This, according to the defendants I and 3, had been done because of defendant No. l having advanced loan to the deceased for construction of the first and second floor. It is, therefore, alleged that defendant No. 1 has the exclusive right, title and interest over and on the rent received from the tenants of the first and second floor of the property.
( 4 ) DEFENDANT No. 2 has filed a separate written statement wherein he has denied the locus standi of the plaintiffs to file present suit, as no right had accrued to them by virtue of the last Will of the deceased. Defendant No. 2 has admitted the right of defendant No. 1 in the property. Defendants 4 to 7 on the other hand have filed written statement admitting the claim of the plaintiffs.
( 5 ) MR. ROHTAGI, Sr-Advocate appearing on behalf of the plaintiff has contended that unless the Will is probated, defendants I and 3 did not get any right in the property and consequently the plaintiffs are entitled to restrain the defendant No. l from at least to recover rent from the tenants
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