Back
DELHI HIGH COURT
Sanjeev Narula, J.
Usha Jain and Ors. —Plaintiffs
versus
Snehalata Kumudini Barnabas —Defendant
CS(OS) 2186 of 2011 and I.As.14251 of 2011, 4281 of 2012, 20377 of 2012, 20378 of 2012, 20379 of 2012, 1394 of 2013, 3395 of 2016, 5156 of 2018, 5157 of 2018, 5453 of 2018, 6035 of 2018, 6036 of 2018, 6523 of 2018, Test.Cas.45 of 2012 and I.A. 5449 of 2018
Decided on 29.4.2019
CS(OS) 2186/2011 and I.As.14251/2011, 4281/2012, 20377/2012, 20378/2012, 20379/2012, 1394/2013, 3395/2016, 5156/2018, 5157/2018, 5453/2018, 6035/2018, 6036/2018, 6523/2018
For the Plaintiffs:Mr. Naveen R. Nath, Advocates
For the Defendant:Mr. Rajiv Bajaj and Ms. Sagrika Wadhwa, Advocates
Test.Cas.45/2012 & I.A. 5449/2018
For the Plaintiffs:Mr. Rajiv Bajaj and Ms. Sagrika Wadhwa, Advocates
For the Defendant:Mr. Naveen R. Nath, Advocate
IMPORTANT POINT
(1) Order granting probate is a judgment in rem—Court’s conscious is required to be satisfied before it would grant probate.
(2) There cannot be presumption of divorce where one of parties to relationship is already married.
Headnote:(A) Hindu Marriage Act, 1955 – Section 13 – Divorce – relationship of husband and wife comes to an end on divorce – Divorce by judicial intervention would only be as contemplated under Section 13 of Hindu Marriage Act 1955 – Divorce has to be as per law – There cannot be presumption of divorce where one of parties to relationship is already married. (Para 18)
(B) Indian Succession Act, 1925 – Section 276 – Probate case – Petitioner claims her marriage was with person who was already married – No evidence has been shown to court to prove marriage of Petitioner and deceased Karta of HUF – Petitioner is a Christian – She contends to have been married to deceased Karta of HUF as per Hindu law – This alleged marriage is legally impermissible by virtue of bar under Section 5 of Hindu Marriage Act – Petitioner’s alleged marriage is a nullity. (Paras 18, 19, 21, 24 and 25)
(C) Indian Succession Act, 1925 – Section 276 – Probate case – In order to determine validity of Will, court has to consider suspicious circumstances surrounding Will and it is only after Propounder has cleared suspicious circumstances, court can grant probate of Will – Objectors/Caveators have pointed out several suspicious circumstances and Petitioners contention that since attesting witness has proved Will that would be sufficient for Court to accept Will is untenable and flawed – Propounder-Petitioner is bound to remove suspicious circumstances – Order granting probate is a judgment in rem – Court’s conscious is required to be satisfied before it would grant probate – There cannot be any strait-jacket formula for deciding as to what would constitute as suspicious circumstance – Each case must be determined in fact situation arising therein – Petitioner’s contention that since legal formalities for proving Will have been complied with and therefore it is sufficient to grant a probate, is not correct approach having regard to facts and circumstances of present case – Will is unnatural as it completely cuts off wife and children – Exclusion is shrouded with grave suspicion – Probate petition dismissed with costs – Suit decreed in terms. (Paras 30, 36, 39, 40 and 56)
Probate petition dismissed with costs and suit decreed in terms.
Sanjeev Narula, J.—This judgment shall dispose of the consolidated suit [CS(OS) 2186 of 2011] and the testamentary case [Test Case No. 45 of 2012], wherein common evidence was led by the parties on interconnected issues arising from interrelated facts.
Brief Facts
CS(OS) 2186/2011
[Plaintiff’s case]
2. Smt. Usha Jain, Devna Dutt and Bhawna Jain, wife and two daughters of Late Satendra Jain, respectively, have instituted the present suit claiming that they constitute a Hindu Undivided Family (HUF). Plaintiff No. 1 (Mrs. Usha Jain) states that she is presently the karta of the family after the death of her husband-Satendra Jain. In the plaint, it is averred that Late Satendra Jain did not have any other children except Plaintiff Nos. 2 and 3. Plaintiff No. 1 and Late Satendra Jain were married on 26th May 1959. Plaintiff No. 2 was born on 11th November 1961 and Plaintiff No. 3 was born on 13th October 1964.
3. Late Satendra Jain as karta of the HUF acquired three immovable properties during his lifetime. Reliefs are claimed in respect of Agricultural Land admeasuring 4 Bighas and 16 Biswas in Khasra Nos. 547 min. (3-12), 549 (1-4) situated in village Satbari, Tehsil Mehrauli, New Delhi (hereinafter ‘suit property’). The suit property was acquired out of HUF funds and the payment made to the vendor was through a cheque drawn from the bank account of the HUF with Central Bank of India, Gol Market, New Delhi. The HUF status of the property is also reflected in the income tax returns filed with the income tax authorities. The Plaintiffs are paying property tax in respect of the suit property. The suit property was acquired from Sh. Gajinder Kumar Loond through Agreement to Sell dated 13th October 1993 and registered sale deed in 1999. Late Satendra Jain was legally married to Plaintiff No. 1 and the marriage was subsisting on the date of his death. Plaintiffs are the legal heirs of Satendra Jain and succeed to his estates as well as to the HUF. They are entitled to one-third share each in the estate of Late Satendra Jain both under Hindu law as well as by virtue of Hindu Succession Act as amended in 2005. Defendant is a close acquaintance/friend of Late Satendra Jain. She is unmarried with no legal relationship or status with the Plaintiffs or Late Satendra Jain. She is in possession of the suit property and after the death of Satendra Jain, despite request by the Plaintiffs, she has not vacated the suit property.
4. Defendant is in possession of the original title deed of the suit property and of F-1/3, Hauz Khas Enclave, New Delhi-110016. Apprehending that Defendant would misuse the title documents, a complaint was lodged with the Police Station, Mehrauli on 2nd September 2011. There is a possibility that Defendant in collusion with property dealers would create third party interest in the suit property to frustrate the rights of the Plaintiff. She does not have any right or claim in the suit property and has no legal status vis-a-vis Late Satendra Jain or the Plaintiffs. The prayer clause reads as under:—
“[a] Pass a Decree of injunction prohibiting and restraining the Defendant, her relatives, agents, attorneys, assignees, servants or any such other persons claiming through her or otherwise from in any manner dealing with the Suit Schedule property being Khasra No. 547 min (3-12), 549 min (1-4), Village Satbari, Tehsil-Mehrauli, bound on the West by Khasra No. 548 min (3-12), on the East by Khasra No. 546, on the South by road, and to its further south by Khasra No. 549 min (1-5), situated at Village Satbari, Tehsil - Mehrauli, New Delhi, belonging to the Plaintiffs;
[b] Pass a Decree of Possession in favor of the Plaintiffs and against the Defendant her relatives, agents, attorneys, servants or such other person claiming through her and directing delivery of vacant and peaceful possession of the Suit Schedule Property forthwith;
[c] Pass a Decree of mandatory injunction in favor of the Plaintiffs and against the Defen
