The main legal point established in the judgment is that a claim of adverse possession cannot be valid if the possessor had previously claimed ownership based on a probated will and if the possession was not hostile or adverse to the true owner.

Vipin Sanghi, J.

I.A. No. 1190/2016

1. This application has been preferred by the plaintiff under Order 12 Rule 6 CPC for passing of decree on the basis of admission. The plaintiffs have filed the present suit to seek the relief of possession and mesne profits/ damages from the defendant in respect of the suit property, i.e. flat having three floors with lawn and terrace and four servant quarters in property no.27, Rajpur, Delhi as shown in red colour in the site plan filed with the plaint. The plaintiffs have also claimed damages @ Rs.2 lacs per month along with interest @ 15% p.a. against the defendant towards use and occupation charges in respect of the suit property from the date of filing of the suit till possession.

2. The case of the plaintiffs in the plaint is that the suit property was owned by their mother late Smt. Nirmal Satyendra Singh and she had spent most of her time in the said property. The plaintiff no.1 is settled in U.K. and plaintiff no.2 is settled in Canada for the last more than 44 years. The father of the plaintiffs had also settled in Canada in the year 1968. The plaintiffs state that their mother, namely, late Smt. Nirmal Satyendra Singh refused to shift abroad and she stayed back in India in the suit property. In these circumstances, the defendant was appointed as the caretaker of the mother of the plaintiffs. The plaintiffs claim that upon the death of their mother on 24.11.1994, they inherited the suit property being the only Class-I heirs of their late mother.

3. The plaintiffs state that on 13.05.1996, the defendant filed a probate petition being PC No.182/1996 in the court of the District Judge, Delhi. This probate was filed in respect of an alleged will dated 15.08.1992 attributed to late Smt. Nirmal Satyendra Singh, whereunder, purportedly the suit property had been bequeathed to the defendant, to the exclusion of the plaintiffs who are her sons. The plaintiffs state that the defendant played a fraud while filing the said probate petition, since it was not disclosed therein that the plaintiffs are residing abroad since 1970. The defendant obtained service report qua the plaintiffs by manipulation, and forged the signatures of the plaintiffs on the summons. The plaintiffs state they were not even in India on 31.05.1996, when the service of summons was allegedly affected on them. On the basis of service report, since no objections were filed, on 13.08.1997 the learned District Judge granted probate to the defendant in respect of the alleged will dated 15.08.1992.

4. The plaintiffs state that one flat in property no.27, Rajpur Road, which was earlier in tenancy of a tenant, namely, R.S. Chitnis was illegally sold by the defendant to one Smt. Renu Agarwal by forging the signatures of their mother and getting the documents executed for sale of the said flat. Plaintiff no.1 visited India and learnt of the said development. Since the defendant was intending to sell the other portions of the suit property, Suit No. 39/2002 was filed before the court of the Civil Judge, Delhi along with an application under Order 39 Rule 1&2 CPC to seek a permanent injunction against the defendant from dealing with the property. This injunction was granted on 04.05.2002.

5. The plaintiffs state that in response to the aforesaid suit for injunction filed by them, the defendant filed his written statement claiming ownership in the suit property. The said written statement was filed on 22.02.2002. The plaintiffs state that they learnt from the defence taken by the defendant in the said suit, that the defendant had obtained probate, as aforesaid. Consequently, the plaintiff no.1 filed an application under Section 263 of the Indian Succession Act praying for revocation of probate granted in favour of the defendant. That application was contested by the defendant and was dismissed by the learned ADJ vide order dated 24.04.2007. Aggrieved by the said order, the plaintiff no.1 preferred FAO No. 242/2007 before this court