Back
2019 Supreme(Del) 586
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJEEV NARULA, J.
Ajay Malhotra - Appellant
Versus
State - Respondent
Test Case No. 37 of 2018; Interlocutory Application No. 12478, 13118 of 2018
Decided on : 15-05-2019
Advocate Appeared:
Rajat Aneja, Adv., Sambit Nanda, Adv., Varun Kumar Tikmani, Adv., Ashok Chhabra, Adv., Ankita Gandhi, Adv.
The probate court's limited scope in determining property title and the necessity for appointment of an administrator pendent lite in probate proceedings.
Headnote:
Probate Petition - Injunction - Order 39 Rule 1&2 r/w Section 151 CPC - [CPC] - [Order 39 Rule 1, Order 39 Rule 2, Section 151] - The court discussed the grant of injunction in probate proceedings, the limitations of the probate court to determine property title, and the necessity for appointment of an administrator pendent lite. The court also highlighted the provisions of the Indian Succession Act and the restrictions under section 269(2) for certain categories of deceased persons.
Fact of the Case:
The petitioner sought probate of a will and interim injunction against the respondents from dealing with the deceased's properties and assets. The respondents contested the authenticity of the will and the petitioner's claim to the properties mentioned in the will.
Finding of the Court:
The court found that the probate proceedings are limited in scope and do not involve determination of property title. The court also held that the petitioner did not fulfill the necessary conditions for grant of temporary injunction. The court dismissed the application for injunction.
Issues: The issues involved the authenticity of the will, the petitioner's claim to the properties, and the jurisdiction of the probate court to grant temporary injunctions.
Ratio Decidendi: The court emphasized the limitations of the probate court to determine property title and the necessity for appointment of an administrator pendent lite. The court also highlighted the provisions of the Indian Succession Act and the restrictions under section 269(2) for certain categories of deceased persons.
Final Decision: The application for injunction was dismissed as the petitioner did not fulfill the necessary conditions for grant of temporary injunction. The court's opinion expressed in the judgment would not affect the merits of the probate petition.
SANJEEV NARULA, J.
I.A. 9509/2018 (under Order 39 Rule 1 and 2 CPC)
1. This is an application under Order 39 Rule 1&2 r/w Section 151 Code of Civil Procedure, 1908 (hereinafter, "CPC") filed in a probate petition seeking probate of Will dated 26th October 2017. The Petitioner is son of the deceased-Late Sh. Gian Chand. Respondent no. 2 is widow of the deceased Testator (mother of Petitioner and Respondent no. 3) and Respondent no. 3 is the daughter of the deceased. The Petitioner is seeking interim injunction against Respondent no. 2 (Smt. Devi Kumari) and Respondent no. 3 (Smt. Shalu Kareer) restraining them from selling, alienating, transferring or creating any third party rights or interest in respect of any of the immovable properties bequeathed in favour of the Petitioner under the document dated 26th October 2017 purporting to be the Will and Testament of the deceased Testator (hereinafter referred to as the "document dated 26th October 2017"). Prayer is also made to restrain the Respondents from receiving any payment in respect of Fixed Deposit Receipts (FDRs) and other movable assets lying with various banks and other institutions, left behind by the deceased testator (Gian Chand) (except in the manner described in the document dated 26th December 2017), during the pendency of the present Petition.
2. The Petitioner claims that Late Sh. Gian Chand has left behind Will dated 26th October 2017 and he is entitled to the grant of probate / Letters of Administration in respect of the said Will. Respondent no. 2 and 3 have filed their objections to the Petition and have inter alia claimed that the Will is forged and fabricated. Under the document dated 26th October 2017, it is alleged that Late Sh. Gian Chand has bequeathed his movable and immovable properties in the following manner:
"WHEREAS I am the absolute owner of the following immovable and movable properties which I had purchased from my exclusive earnings, though some of the properties have been purchased by me' in the joint names as mentioned hereunder:
1. Immovable property bearing Flat No. AD/6A Shalimar Bagh Delhi which is in my name exclusively and self-acquired freehold property under the conveyance deed dated 03.09.2001.
2. Commercial shop bearing No. 26, CSC No.3, Sector 6, Rohini, Delhi admeasuring about 12.25 Sq. meters which is in the joint names of myself and my wife, and my son is maintaining the same in all respects and drawing rent therefrom.
3. Residential Plot of land admeasuring 32 Sq Meters, bearing no. 239, A-3, Sector 29, Rohini, Delhi which was purchased by me in the name of my wife Smt. Devi Kumari.
4. A freehold built-up property bearing No. A-66, Shastri Nagar, Delhi area admeasuring 22 sq. yards which is in the joint names of my wife and one lady Smt. Sanminder Kaur W/o Shri Jaspal Singh.
5. Fixed Deposit Receipts (FDRs) with Bank of Baroda, Allahabad Bank, ICICI Bank and UCO Bank (both branches of UCO bank at Shalimar Bagh and Supreme Court) in the joint names of myself and my wife.
6. Investments in Mutual Funds, Shares and Post Office Scheme made by me in the joint names of myself and my wife.
AND WHEREAS all the above properties are my self-acquired- properties and I hereby devise and bequeath all the aforesaid immovable and movable properties mentioned above at serial No. (1) to (6) as under:
A. Properties mentioned at Serial Nos. 1 to 3 i.e. Residential Flat at Shalimar Bagh, Commercial Shop at Sector 6, Rohini and Residential Plot at Rohini in favour of my Son Ajay Malhotra exclusively. However, the residential flat at serial No. 1 above is being bequeathed in favour of my aforesaid son, subject to the condition that my wife shall possess a life interest therein but she shall not be entitled to deal or sell, transfer, create any third party rights or encumber the said flat in any manner during her lifetime. However, on her death, the said flat shall exclusively devolve upon my only son Ajay Malhotra. The other two properties mentioned
