Fauzia Sultana v. State & Anr.

16. It is stated that on March 09, 2021 the respondent No.2 in collusion with Subhash Arora got successful in lodging an FIR against the petitioner. Since the lodging of the FIR, the respondent No.2 has been continuously pressurizing the petitioner to withdraw the probate petition and also to transfer all the properties in his TEST.CAS. 57/2019 Page 8 name. The respondent No.2 is also threatening the petitioner that if the said properties are not transferred in the name of the petitioner and also if the probate petition is not withdrawn by the petitioner then the police will be constrained to put the petitioner behind the bars.

17. It is stated that the Investigation Officer, who got appointed pursuant to the lodging of the FIR, has visited the matrimonial home of the petitioner multiple times and has also threatened her to settle the dispute with the respondent No.2.

18. It is stated that after all these incidents, the petitioner reached Delhi, on June 16, 2021 and joined the investigation. The petitioner on arriving Delhi, when visited the said property, found that the lock of the outer entrance gate of the said property was changed. So, she immediately called the respondent No.2, however, his phone was untraceable and thus, the petitioner had to book a hotel for her stay.

19. It is stated that the very next day, the petitioner visited the said property and again tried to call the respondent No.2, however, his phone was again not reachable and thus, the petitioner had to call the police. The police after reaching the said property, asked the petitioner to show the documents of the said property for the purpose of determining the ownership of the said property and she informed the police that all the property related papers were lying inside the said property and showed them her Aadhar Card. It has been submitted that the police officer then took her to the Hauz TEST.CAS. 57/2019 Page 9 Khas Police Station, where they directed the petitioner to go back and asked her to come again after two days.

20. It is stated that the police did not take any action and moreover directed the petitioner to maintain the status quo qua the said property.

21. It is stated that the respondent No.2 is currently residing separately and the said property was in exclusive possession of the petitioner. So, it is urged before this Court that the respondent No.2, cannot be permitted to illegally take over the possession of the said property by locking the same.

22. It is stated that the petitioner has been residing in a hotel, since the respondent No.2 has put the lock over the said property. Therefore, she has filed the present application seeking removal of the lock from the said property.

23. On the other hand, Mr. Mukul Gupta, learned Senior Advocate appearing on behalf of the respondent No.2, has contested the very maintainability of the present application and has mostly denied each and every averments of the petitioner.

24. It is the case of the respondent and so contended by Mr. Gupta that the petitioner has approached this Court with unclean hands and has only filed the probate petition on the strength of a forged Will, dated February 09, 2018.

25. He submitted that vide order dated May 12, 2021, this Court had sent the said Will to the FSL and according to the FSL report the said Will was found to be forged and fabricated. It is submitted that on this account, P.S. Crime Branch has already TEST.CAS. 57/2019 Page 10 registered an FIR bearing No. 75/2021 against the petitioner and her associate and the chargesheet has also been filed against the petitioner and her associate.

26. He submitted that the said Will is not executed in accordance with Shariyat Islami and Personal Law, therefore, the said Will is not valid in the eyes of law.

27. He submitted that the present application has been filed out of petitioner‟s enmity against the respondent No.2‟s wife and also for bringing down her reputation.

28. He submitted that the petitioner never had any cordial relations with the respondent No.2 and his father and the petitioner‟s relationship towards her husband and the respondent No.2‟s remained strained throughout his life time and she had even abandoned, both her husband as well as her son (respondent No.2), when the respondent No.2 was only 16 years old.

29. He submitted that the respondent No.2 moved to his Gurgaon home along with his wife, only on account of his father‟s advice and in fact, the respondent No.2‟s father was very much unhappy with the fact that the respondent No.2 and his wife had to move out of the said property.

30. He submitted that the present application is also not maintainable on the ground that the petitioner has attempted to convert a probate petition into a suit for possession. He further submitted that it is a settled law that any interim order can only be granted in relation to the final relief sought by the petitioner. However, in the present case, there is no final relief which has TEST.CAS. 57/2019 Page 11 been sought by the petitioner. So, it is urged before this Court that no interim order can be granted and thus the present application deserves to be dismissed as not maintainable.

31. He also submitted that the maintenance of the said property is currently being undertaken by the respondent No.2, who is also paying the utility bills for the same. It is submitted that even the voter I.D. card of the respondent No.2 is of the said property, which manifests that the respondent No.2 has been continuously using the said property. Plus, it also shows that the said property was not exclusively occupied by the petitioner, as it has been made out in the present application.

32. He has further submitted that the respondent No.2‟s father was aware of the petitioner‟s temperament and her nature and he also knew that the petitioner could go to any extent to destroy the life of the respondent No.2 and his wife and it was for this reason that the respondent No.2 was told by his father to live separately from the petitioner. He submitted that the father of the respondent No.2 used to continuously visit the respondent No.2‟s place and even used to live with his son and daughter- in-law.

33. He further submitted that the respondent No.2 never parted his way with his father even when his father was hospitalized. Even on the day of his father‟s demise, the respondent No.2 and his uncle viz., Nures Sayeed took him to the hospital. He submitted that it was the petitioner who never used to visit her husband and in fact in January, 2018 when her husband had the scheduled surgery TEST.CAS. 57/2019 Page 12 for stent in his heart, the petitioner flew to her matrimonial home and chose to stay there during the entire process of operation.

34. He submitted that it was the respondent No.2 only, who used to take care of his father and even his wife used to visit the hospital to meet her father-in-law and they both used to stay with the respondent No.2‟s father even for the period of post-surgery in order to take good care of him

35. He further submitted that right after the demise of the petitioner‟s husband, the petitioner‟s entire family came to the said property and stayed with the petitioner until the petitioner left the city unannounced along with all the property related papers. He submitted that the petitioner in the present application has concocted the entire case and thus is liable to be prosecuted for perjury apart from dismissal of the present application and the testamentary suit. He further submitted that the averment of the petitioner to the extent that the respondent No.2 has sold the Mercedes Benz which was parked in the parking lot of the said property in the absence of the petitioner is completely concocted and it was specifically submitted that the respondent No.2 never received an amount of ₹2.[5] crore from a builder as averred in the present application.

36. He further submitted that the respondent No.2 was never served with the notice of the probate petition and it was the petitioner who tried her level best in order to not to effect the service of the notice upon the respondent No.2. He submitted that upon the respondent entering the appearance, the petitioner had TEST.CAS. 57/2019 Page 13 even sought to settle the matter with the respondent No.2 as she was aware that the Will on the basis of which the probate petition has been filed is fake and a fabricated document. He submitted that the respondent No.2 never pressurized the petitioner to withdraw the probate case and also to transfer all the properties in his name. He further submitted that the petitioner never stayed in a hotel as the said property was never locked by the respondent No.2. He submitted that the petitioner has averred in the present application that all the property related papers are lying inside the said property; however, it is the petitioner‟s own admitted case that she had taken all the property related documents to her matrimonial home, therefore, this manifest that the entire facts of the present application has been concocted and fabricated. He submitted that it is correct that when the petitioner came to Delhi, she attempted to change the lock of the said property and he also submitted that the petitioner was never forced by the Police to handover the key of the entrance gate of the said property to the respondent No.2. He submitted that no police officer has ever pressurized the petitioner to do the aforesaid act.

37. It is further the case of the respondent as contended by Mr. Gupta, that the present interim application being filed in the probate case is not maintainable in the eyes of law. To contend this, he has relied upon the Division Bench judgment of the High Court of Bombay in Ramchandra Ganpatrao Hande alias Handege vs. Vithalrao Hande and others (2011) SCC Online Bom 440. TEST.CAS. 57/2019 Page 14

38. It is his submission that the probate court can only determine the genuineness and due execution of the Will, nothing more and nothing less. He submitted that the issues of title are alien to the probate proceedings.

39. He further submitted that the meaningful engagement with Sections 266, 268 and 269 of the Indian Succession Act, 1925, manifests that the probate court can only be concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate court, under no circumstances, can grant interlocutory relief in respect of the property which forms part of the estate of the deceased prior to the grant of probate.

40. While on the other hand Mr. Khanna, in order to counter the aforesaid submission of Mr. Gupta has relied upon the judgment of the coordinate bench of this Court in the case of Shri Kulbir Singh vs. State and others, MANU/DE/0590/1993, and submitted that the probate court has got all the powers of a Civil Court, which is abundantly clear from a plain reading of Section 266 of the Indian Succession Act, 1925, therefore, an application filed under Section 151 of CPC,1908, seeking an ad interim injunction is duly maintainable and valid in the eyes of law.

41. Having heard the learned counsels for the parties, the first issue that needs to be decided is, whether the present application filed by the petitioner seeking a direction that the respondent No.2 to unlock the property i.e. C-46, First Floor, Neeti Bagh, New Delhi, is maintainable. TEST.CAS. 57/2019 Page 15

42. Before I come to this issue, it must be stated that the Will for which probate is sought was sent to the CFSL upon the directions passed by this Court and the CFSL, in its report has concluded that the Will is forged and fabricated. Pursuant thereto, an FIR No.75/2021 has been registered against the petitioner and her associate and a charge sheet has also been filed against them.

43. Mr. Khanna states that the filing of the FIR is not conclusive that the Will is forged and fabricated. In any case, this aspect needs to be decided in the probate petition at a later stage. It is stated that during the pendency of the probate petition, this application has been filed by the petitioner. In support of his submission, on the maintainability of the application, Mr. Khanna has relied upon the judgment in the case of Shri Kulbir Singh (supra), wherein, the facts are “that the petitioner had filed a probate petition No. 45/89, through which he sought the probate in respect of the registered Will dated February 19, 1973 made by the deceased Smt. Dhan Kaur i.e. his mother in favor of the petitioner. The deceased had left behind a plot bearing No. A-2/121, Safdarjang Development Residential Scheme, New Delhi. The deceased breathed her last on January 13, 1977. The deceased through that said Will bequeathed to the petitioner the said plot of land. The petitioner therein was not a resident of India and was continuously residing abroad. The petitioner received an information from the DDA, respondent No.5, addressed to the testatrix Smt. Dhan Kaur that the lease in respect of the said plot of land would be cancelled if the constructions were not raised on the TEST.CAS. 57/2019 Page 16 said plot of land as the lease in respect of the said plot was granted for the purpose of raising construction for residential purposes. In the above said circumstances, the petitioner, therein, requested his sister i.e. respondent No.2, therein, to approach the DDA for the property being mutated in favor of the heirs of the testatrix i.e. the petitioner and respondent Nos.[2] and 3, as the petitioner at that time was not in possession of the original Will nor a copy thereof. In view of the above, the said property got mutated in the joint names of the petitioner and respondent Nos.[2] and 3, in order to preclude the DDA from cancelling the lease deed in favor of the deceased. Later on, certain constructions were raised on the said plot of land. A completion certificate was also issued. When the petitioner came to India, he inspected the disputed property and found that the whole of the structure raised thereon was demolished and the entire disputed property had been dug up. On enquiries, it was revealed that respondent No.2 was purporting to induct certain strangers into the said property known as Harmeet Singh Ghai, Pankaj Chaudhary and A.K. Jain. The petitioner in this connection tried to contact respondent No.2 who refused to meet him. He informed the MCD with regard to the proposed unauthorised construction being carried on. The petitioner therein had suffered irreparable loss and injury as some strangers were inducted into the property and also rights were created in favor of third parties. Therefore, he filed an application under Section 151 CPC, 1908 seeking an ad-interim injunction, restraining the respondent No.2, TEST.CAS. 57/2019 Page 17 therein, or any other person from making any construction over the disputed property till the disposal of the probate petition.

44. That the respondent No.2 therein had filed her reply to the said application. She stated that she sold and disposed of, only her share in the disputed property in favor of one Harmeet Singh Ghai, for a total consideration of ₹12,50,000/-. It was further averred by her that she had neither raised any construction nor demolished anything qua the disputed property. So she pleaded that, if the petitioner has got any cause of action, it is only against one Harmeet Singh Ghai and not against her.

45. Respondent No.3 therein (i.e., the sister of the petitioner therein), had supported the case of the petitioner. She submitted that the respondent No.2, her servants, agents and representatives should be restrained from raising any construction over the disputed property.

46. That application had been opposed on behalf of the objector therein i.e., the Business Associates. It was urged for and on behalf of the objector that the disputed property had already been sold to the objector. In fact, they had purchased it from the respondent No.2 therein, who had then joined hands with the petitioner and respondent No.3, therein. The objector submitted that in order to bring pressure on the objector and to extract further money from them, the Application was filed by the petitioner. It was also stated that the Court whilst dealing with the probate petition was not competent to grant any injunction. Hence, it was TEST.CAS. 57/2019 Page 18 sought that the application filed therein, be dismissed on these grounds”.

47. On the aspect of maintainability of the application, this Court in the afore-said discussed case, has in paragraphs 11 to 14, held as under:- (11) It is fully manifest from the relevant provisions extracted above, that a High Court has got the concurrent jurisdiction with the District Judge in the matter of grant of probate and the District Judge under Section 266 while acting as a Probate Court has got all the powers of a Civil Court as is abundantly clear from Section 266 of the Indian Succession Act. A close scrutiny of Section 247 of the Indian Succession Act reveals that the object behind the enactment of the said section is to preserve the disputed property from being destroyed, dissipated and frittered away. (12) I am tempted over here to cite a few authorities in support of my above view. It was observed in Air (38) 1951Cal.561 (Atula Bala Dasi and others V. Nirupama Devi and another). "It is open to the Probate Court not only to appoint an administrator pendente lite but also to issue an order of injunction, temporary in character, pending the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a probate court, there is no reasonable chance of any property being dissipated, pending the actual grant of a probate or the appointment of an administrator". (13) To the same effect are the observations of their Lordships of the Supreme Court as (Manohar Lal Chopra

V. Rai Bahadur Rao Raja Seth Hiralal).... "Section

151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the fact of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by TEST.CAS. 57/2019 Page 19 limiting it or otherwise affecting it. The inherent power has but been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code". (14) In view of the above, I conclude that the present application is maintainable and this Court can grant injunction while exercising its inherent powers even in a probate case.”

48. It is the submission of Mr. Khanna, that the said judgment still holds the field.

49. Insofar as the judgment in the case of Ramchandra Ganpatrao Hande alias Handege (supra) relied upon by Mr. Mukul Gupta is concerned, there in the said case, the issue which arose for consideration before the Bombay High Court was the appellant who was the named executor under the Will, filed a Testamentary Petition seeking probate of the Will. The appellant initiated the interlocutory proceeding in the form of a Notice of Motion seeking injunction against the Fourth and Fifth respondents therein, from entering upon, coming to or interfering with the immovable property of the testatrix. The said motion was opposed by the Fourth and Fifth respondents therein, on the ground that in view of the judgment of the Bombay High Court in the case of Rupali Mehta vs. Tina Narinder Sain Mehta (2006)(6) Maharashtra Law Journal 786, the motion is not maintainable. In that judgment, it was held that in a petition for probate, an order of injunction cannot be granted in relation to the property of the TEST.CAS. 57/2019 Page 20 deceased, since the Court in such a petition, is not concerned with the Will and the sole question which concerns the probate court is whether or not the Will is genuine. When the Notice of Motion came up for hearing before the learned Single Judge, it was dismissed as being not maintainable in view of the judgment in Rupali Mehta (supra).

50. Then in the appeal, the Division Bench of the High Court of Bombay, on analyzing the position of law on this context, has in paragraphs 14 and 15, held as under:-