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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Prodeep Roy Choudhury - Appellant
Versus
Sandeep Roy Choudhury - Respondent
CS (OS) 147 of 2021, I.A. 3552 of 2021, I.A. 3553 of 2021 and I.A. 8234 of 2021
Decided On : 25-01-2022
A party can neither accept benefits under a will nor seek relief based on its terms while contesting its validity in court; the doctrine of approbate and reprobate applies.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 151, Order XXXIX - Suit for declaration, partition, and permanent injunction dismissed; the plaintiff, claiming entitlement as intestate successor, fails to provide legal basis for possession of the property - No written family settlement executed between parties. (Paras 8, 12, 18, 24, 30, 34)
(B) Either party cannot claim rights under a will they are contesting in the same proceeding; principle of approbate and reprobate affirmed, pursuant to which a party cannot accept benefits while denying the validity of a will or agreement. (Paras 28, 29)
Facts of the case:
The plaintiff claims equal rights to the estate of deceased mother, while defendant relies on a contested will. There are unresolved issues regarding occupancy and rights to property, with plaintiff living in less favorable conditions.
Findings of Court:
The plaintiff's claim for possession of the ground floor lacks legal standing and is unsupported by any finalized agreement between siblings.
Issues: The main issues revolved around the validity of the will, alleged family settlement, and the legal right to property occupancy.
Ratio Decidendi: The court concluded that without a valid claim to the specific property, the plaintiff may not obtain interlocutory relief; rights under inheritance cannot be claimed based on a contested will.
Result: Application dismissed.
| Table of Content |
|---|
| 1. division of property among heirs (Para 1 , 2 , 3) |
| 2. possession rights and living conditions of parties (Para 4 , 5 , 6) |
| 3. validity and contestation of wills (Para 8 , 9 , 10 , 11) |
| 4. entitlement of parties to property (Para 12 , 19) |
| 5. conditions for granting interlocutory relief (Para 13 , 14 , 15 , 17 , 23 , 24 , 25) |
| 6. doctrine of election in wills (Para 26 , 27 , 28 , 29) |
| 7. equity and legal rights not interchangeable (Para 30 , 31 , 32 , 33) |
| 8. dismissal of interlocutory application (Para 34 , 35 , 36) |
ORDER
IA 3553/2021 in CS (OS) 147/2021 (under Section 151 of CPC, 1908- for directions)
1. This order disposes of IA 3553/2021, whereby the plaintiff has sought interlocutory relief.
2. CS (OS) 147/2021, in which the present application has come to be filed, is a suit for declaration, partition and permanent injunction.
3. The plaintiff and the defendant are brothers. The suit seeks partition of the estate of their mother, Mrs. Vijaya Rajya Laxmi Choudhary. The property at I-1787, Chitranjan Park, New Delhi- 110019, ("the CR Park property" hereinafter) forming subject matter of the present application, is one of the properties of which the suit seeks partition, and comprises of three floors including a ground floor, a first floor and a second floor/ barsati.
4. In 1997, the defendant started residing on the first floor of the CR Park property. The plaintiff is in possession of the second floor of the property; as per the plaint, since 1999, prior to which the plaintiff claims to have been residing on the ground floor with his mother.
5. As the situation stands at present, admittedly, the plaintiff's wife alone stays on the second floor, as the plaintiff is working in Singapore. It is an admitted position, that, till date, the plaintiff continues to work in Singapore and that it is his wife who is in occupation of the second floor.
6. Mr. Mehta, learned Senior Counsel for the plaintiff submits that, consequent to his retirement, the plaintiff is working in Singapore as a Consultant and periodically visits Delhi. The plaintiff, according to Mr. Mehta, is a diabetic, and 65 years of age. There is no lift in the CR Park property, and the plaintiff and his wife have, in order to obtain access to the premises in their occupation, to climb two floors.
7. As is customary in such cases, the plaintiff and the defendant lay individual claim, to the exclusion of the other, to have taken care of the mother during her lifetime. That aspect is, however, of no particular significance, in so far as the present application is concerned.
8. According to the plaintiff, their mother died intestate. As a result, the plaintiff claims that he, and the defendant have each succeeded to half of the estate of their mother. In the CR Park property too, therefore, according to the plaint and according to Mr. Mehta, the plaintiff and the defendant are each entitled to a half share.
9. After the demise of their mother, the defendant claimed rights on the basis of a will dated 19th August, 2017, stated to have been executed by their mother. As per the will, the defendant would be entitled to first and second floor of the CR Park property, whereas the plaintiff would be entitled to the ground floor of the CR Park property The plaintiff disputes the genuineness, validity and legality of the will which, according to the plaint, is a fabricated document.
10. The plaint further asserts that, as opposed to the aforesaid will, oral discussions were taking place between the plaintiff and the defendant, regarding the manner in which the estate of their mother should be divided. These discussions, avers the plaint, resulted in an oral family settlement dated 22nd December, 2018, under which the entire estate of their mother would be divided equally and for execution of a written family settlement executed in the said terms, and the CR Park property would be demolished and a new building with four floors constructed, to be equally div
