Full Text
HIGH COURT OF DELHI
Date of Decision: 01st November, 2022
SARUP SINGH .....Petitioner Represented by: Mr. Manish Makhija, Advocate.
Represented by: Ms. Achal Gupta & Ms. Deepa, Advocates for R-2, 3 & 5.
Mr. Pawan Singh Bindra, Sr.
Advocate with Ms. Puja Jakhar, Advocate for R-4.
NEENA BANSAL KRISHNA, J. (ORAL)
JUDGMENT
1. The present application under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908’) has been filed on behalf of the respondent No.4, Inderpal Singh seeking recall/modification of the Order dated 29th November, 2021 thereby vacating the stay granted vide said Order dated 29th November, 2021 in respect of the properties mentioned at serial Nos. 2 and 3 List B annexed with the additional affidavit dated 03rd August, 2021 filed by the petitioner.
2. It is submitted in the application that vide Order dated 29th July, 2021 status quo was granted in respect of the property mentioned at Serial no. 1 of List A of the Schedule of Assets i.e., Flat No. 1, Adeshwar Apartment, 34 Feroz Shah Road, New Delhi-110001 and the petitioner was directed to file an affidavit detailing the specifications of the properties at Serial Nos. 3, 4, 5, 7, 8 and 9 of List A of the Schedule of Assets as annexed by the petitioner.
3. The petitioner filed an additional affidavit annexing a new list i.e., List B of the Schedule of Assets on 03rd August, 2021.
4. It is submitted that the status quo order was granted vide Order dated 29th November, 2021 in respect of the properties mentioned at Serial Nos. 3 to 8 in List A of the Schedule of Properties and for the properties as detailed at Serial No. 1, 2 and 3 of List B.
5. The respondent No. 4-Inderpal Singh filed an Application bearing No. I.A. 17419/2021 on 20th December, 2021 seeking recall/modification of the Order dated 29th November, 2021 in respect of Property bearing Plot NO. 594, Model Town, Opposite Sumen Hospital, Ludhiana on the ground that he was the owner of the property. The Court vide Order dated 29th April, 2022 clarified that the Injunction Order dated 29th November, 2021 shall not apply in respect of this property i.e., Plot No. 594, Model Town, Opposite Sumen Hospital, Ludhiana, in view of the Sale Deeds which prima facie demonstrated the title of respondent No. 4 to the said properties. It was also observed that the instant Suit was not to decide the title of any of the properties mentioned in the Will of which record may be taken to the Civil Court.
6. It is claimed that the status quo in respect of the properties as detailed in List B was granted without hearing the respondent No. 4. A blanket stay has been granted without considering the submissions of respondent No. 4 as contained in his reply to I.A. filed on 28th September, 2021.
7. It is further claimed that the Second Will dated 22nd August, 2018 is a forged and fabricated document which is under challenge by the respondent No. 4. The prior Will dated 29th September, 2015 is a duly executed and registered Will of the deceased-Raghbir Singh.
8. The respondent No. 4 has claimed that he has recently come to know that one Narender Singh who is the witness to the purported Will dated 22nd August, 2018 and also whose affidavit is annexed with the instant Probate Petition was defrauded by the petitioner and the respondent Nos. 2, 3 and 5. Mr. Narinder Singh is the son of the sister of the deceased-Raghbir Singh and he is an illiterate person who does not know how to read English. However, his signatures are appearing as a witness on the Will dated 22nd August, 2018 as well as the supporting affidavit annexed to the Probate Petition and both these documents are in English.
9. It is asserted that the respondent No. 4 was stressed and disturbed because of the stay that was granted by this Court vide Order dated 29th July, 2021 and 29th November, 2021. However, when his application for vacation of stay was allowed in respect of property i.e., Plot No. 594, Model Town, Opposite Sumen Hospital, Ludhiana on 29th April, 2022, the respondent NO. 4 then set his mind to figure out how the second Will was forged and by whom. The respondent No. 4 made enquiries from the relatives and family friends.
10. On 10th May, 2022, the applicant/respondent No. 4 contacted Narinder Singh and visited him at his house at Ludhiana and was informed by Narinder Singh that the deceased-Raghbir Singh had not executed any Will in his presence and that he had not signed any such documents as a witness. Narinder Singh when shown these documents on which he identified and admitted his signatures, but informed that he was made to sign these documents as a Family Settlement between the respondent No. 4 and respondent No. 3. It is stated that when Narinder Singh was told about the true nature of the documents, he got baffled and retained the copy of the documents to verify and ascertain what had happened. Narinder Singh further assured respondent No. 4 that in case what the respondent No. 4 had told was correct, he would take all necessary steps to set the record straight.
11. On 25th May, 2022, Mr. Narinder Singh contacted the respondent NO. 4 and told him that he has been defrauded by the petitioner and other respondents and was made to sign these documents on a false representation by the petitioner and other respondents that the same pertained to a settlement and were to be presented in the Court to support the settlement. Mr. Narinder Singh also told that he has executed an affidavit dated 23rd May, 2022 in Punjabi narrating the true state of affairs about the documents signed by him and that the same may be filed before this Court.
12. The respondent No. 4 has claimed that the signatures of witness Mr. Narinder Singh were obtained by way of fraud and misrepresentation by the petitioner and the respondent Nos. 2, 3 and 5. The affidavit of Narinder Singh dated 23rd May, 2022 in Punjabi to this effect has been annexed.
13. It is claimed that the second Will is a forged document which is evidenced by the affidavit of Mr. Narinder Singh. Moreover, in paragraph 3 of the second unregistered Will dated 22nd August, 2018 for which a reference has been made to the earlier Will dated 29th September, 2015 in favour of Shri Inderpal Singh but it is also stated that all resentment and grief with Mohinderpal Singh has now been settled and the case that was filed by him against the deceased has been withdrawn unconditionally due to which he has cancelled his earlier Will dated 29th September, 2015 and executed a fresh Will.
14. The respondent has asserted that the relationship between the respondent No. 3 and the deceased father had gone sour on account of incessant harassment meted out to the deceased. The respondent No. 3 had lodged an all-out attack on the deceased-Raghbir Singh owing to his malicious intention of acquiring the family Company i.e., HTPPL to the exclusion of the deceased. The respondent No. 3 had filed the petition bearing CP No. 31/2015 before the Company Law Board, New Delhi on the grounds of alleged oppression and mismanagement.
15. It is submitted that the respondent No. 3 had maligned the reputation of the deceased-Raghbir Singh, he went to the extent of raising questions on the character of the deceased-Raghbir Singh thereby leading to unnecessary divide between the two. The transcripts of the call records between one Kohli, Deepak Sharma and himself have been placed on record to point out the absurd and outrageous allegations made out against the deceased.
16. It is thus asserted that the subsequent Will dated 22nd August, 2018 is a forged document. Moreover, while in this alleged Will, it was stated that all the matters before NCLT have been withdrawn, but the petition had been withdrawn only on 22nd April, 2019 and could not have been mentioned in the unregistered Will dated 22nd August, 2018. It is asserted that harassment and the lot of stress and torment was caused to the deceased-Raghbir Singh which also contributed to the degradation of his health and eventually led to his demise. The deceased never bequeathed any property to the respondent No. 3 owing to his own conduct.
17. It is evident that subsequent Will dated 22nd August, 2018 is forged and the registered Will dated 29th September, 2015 is the last and final Will of the deceased-Raghbir Singh.
18. A prayer has, therefore, been made that the Order dated 29th November, 2021 be modified and the stay so granted in respect of the property mentioned at Serial Nos. 1, 3 to 8 of List A of the Schedule of Assets and Serial Nos. 2 and 3 of List B, may be vacated.
19. The respondent Nos. 2, 3 and 5 in their Reply have taken the preliminary objection that the Senior Counsel on behalf of the respondent No. 4 had given his “No Objection” to the grant of status quo order and accordingly, the order was made on 29th April, 2022. It is asserted that the application is highly misconceived and is an attempt to forum shopping and liable to be dismissed with exemplary cost.
20. Further, same issues which are being agitated, were duly considered while passing the interim order initially on 29th July, 2021 and subsequently on 29th December, 2021 while confirming the said order.
21. The main contention of the applicant is in regard to the NCLT proceedings but the same was also duly considered by the Court while making the Order dated 29th July, 2021, but the re-agitation of the same issues by way of present application, is nothing but an apparent and gross misuse of the process of the Court.
22. It is claimed that the conduct of the respondent No. 4 disentitles him from any relief. He has deliberately sold all the properties belonging to the deceased father during the pendency of the present petition relying upon the Will dated 29th September, 2015 for which the respondent No. 4 himself had filed a Probate Petition which is still pending.
23. In utter disregard of the judicial process and pendency of the Probate proceedings filed by the respondent No. 4, he has been dealing with the estate of deceased-Raghbir Singh to the exclusion of other legatees in terms of last and final Will dated 22nd August, 2018. The respondent No. 4 has no exclusive right to deal with the estate of deceased-Raghbir Singh till the adjudication of the two Probate Petitions.
24. It is claimed that the alleged Will dated 29th September, 2015 was cancelled by the deceased-Raghbir Singh, vide his Will dated 22nd August,
2018. The misconduct of the respondent No. 4 is further evident from the fact that he has fraudulently and through the police exerted pressure on the attesting witness, namely, Narinder Singh for retracting from being a witness to the Will. Monetary benefits have also been extended to Narinder Singh in lieu of the false affidavit submitted by him along with the application. It is claimed that the present application is against the law and is contradictory and is liable to be dismissed.
25. On merits, the contents of the application are vehemently denied and it is stated that the application is liable to be dismissed.
26. The petitioner in his Reply has taken the similar defence and has claimed that the application is liable to be dismissed.
27. The respondent No. 4 in his Rejoinder has reaffirmed his assertions as contained in the present application.
28. Submissions heard.
29. In the present case, the respondent No. 4 had filed a Probate Petition bearing No. 7/2021 for claiming Probate in respect of Will dated 29th September, 2015 at the Court at Ludhiana, Punjab, wherein he is the sole beneficiary of the properties of the deceased-Raghbir Singh. However, the present Probate Petition has been filed in respect of unregistered Will dated 22nd August, 2018, wherein other Class-I heirs/sons and daughters of deceased-Raghbir Singh are also the beneficiaries.
30. This Court vide Order dated 29th July, 2021 by way of interim measure restrained the respondent No. 4 from alienating and creating any third-party rights in respect of Property bearing No. Flat No. 1, Adeshwar Apartment, 34 Feroz Shah Road, New Delhi-110001.
31. It was further noted that Property bearing No. Flat No. 55, World Trade Centre, Connaught Place, New Delhi has already been sold on 15th February, 2021 in relation to which the documents were placed on record by the respondent No. 4.
32. The petitioner filed an Application bearing No. I.A.9182/2021 under Section 151 of CPC, 1908 for interim directions against the respondent No. 4 to maintain the status quo order in respect of title and possession of the properties which are the subject matter of the Will as are detailed in the Schedule. The Court vide Order dated 29th November, 2021 noted that Ms. Achal Gupta, Advocate for the respondent Nos. 2, 3 and 5 and Mr. S.K. Jain, Advocate for respondent No. 4 had “No Objection” to the application being allowed. Accordingly, the parties were directed to maintain the status quo in respect of the properties mentioned at Serial Nos. 3 to 8 and also in respect of the properties detailed at Serial Nos. 1, 2 and 3 at page No. 5 of the affidavit dated 03rd August, 2021.
33. The respondent No. 4, who is the applicant herein, had thereafter moved an Application bearing No. 17419/2021 under Section 151 of CPC, 1908 seeking vacation of the order in respect of the Flat No. 1, Adeshwar Apartment, 34 Feroz Shah Road, New Delhi-110001. The Court considered the title documents and held the prima facie that the Sale Deeds would show the title of the property in favour of the respondent No. 4 and thus, vacated the status quo order in respect of Property bearing Plot No. 594, Model Town, Opp. Sumen Hospital, Ludhiana. Vde Order dated 29th April, 2022, Order dated 29th November, 2021 was modified and status quo in respect of Property bearing Plot No. 594, Model Town, Opp. Sumen Hospital, Ludhiana was vacated.
34. It is evident from the Orders as detailed above that there are two Wills which have been propagated, one by the petitioner in the present case which is Will dated 22nd August, 2018, while the respondent No. 4 has filed a Probate Petition in respect of a registered Will dated 29th September, 2015 of deceased-Raghbir Singh, his father. While the matters are under adjudication, on the submissions and concessions given on behalf of the respondent Nos. 2, 3 and 5 as well as respondent No. 4, the status quo orders have been granted in respect of the properties as mentioned in the various Orders.
35. The respondent No. 4 has essentially sought the vacation of the status quo Order vis-à-vis him on the ground that the witness, namely, Narinder Singh has now clarified that he had signed the alleged Will dated 22nd August, 2018 as he was given to understand that it pertained to a settlement between the parties and he was not aware of the true nature of the said document and an affidavit of this effect has also been given. Merely because one of the attesting witness, who has admitted his signatures on the subsequent Will dated 22nd August, 2018, has now taken a stand that he had signed the document under a misconception, is a matter of evidence and at this stage, it cannot be a basis for vacating the status quo Orders in respect of the properties as granted by the Court in exercise of its jurisdiction under Section 151 of CPC, 1908. The status quo Orders had been made on the basis of the submissions made on behalf of the respondent No. 4 by the learned counsel. There is no ground or basis for vacating the status quo Orders as has been claimed by the respondent No. 4.
36. It has been argued on behalf of the respondents that while considering the proceedings for grant of Probate in respect of a Will, the Application under Order XXXIX Rules 1 and 2 of CPC, 1908 is not maintainable and the Court would ordinarily not be entitled to give any interim order in relation to the protection of the property unless there are peculiar facts and circumstances that warrant grant of temporary injunction. For this, a reference has been to Ajay Malhotra vs. State (2019) 260 DLT 488 decided by the Co-ordinate Bench of this Court, wherein it was observed that where there is any dispute and challenge to the Will, the only remedy available to the petitioner is to safeguard his rights in the properties by way of other proceedings and not by way of Application under Order XXXIX Rules 1 and 2 of CPC, 1908.
37. It may be noted that while the Application under Order XXXIX Rules 1 and 2 of CPC, 1908 may not be maintainable in the proceedings for grant of Probate, since it does not concern with the determination of the title of the parties in the suit properties but is only confined to determination of the genuineness of the Will. However, the inherent jurisdiction of the Court under Section 151 of CPC, 1908 to make appropriate orders in the interest of justice, is not taken away.
38. In the present case, the status quo Orders have been made in exercise of inherent jurisdiction under Section 151 of CPC, 1908 and also on the basis of consent given by the respondent No. 4, this claim that his objections have not been considered, is clearly beyond the record.
39. There is no merit in the present application and no ground is made out for vacating the status quo order as has been granted by the Court.
40. Accordingly, the present application is without any merit and is hereby dismissed. TEST.CAS. 58/2021 List before the learned Joint Registrar for completion of pleadings on 24th January, 2023.
JUDGE NOVEMBER 01, 2022 S.Sharma