Sh Jagjit Singh v. Amrik Singh & Others

Delhi High Court · 13 Nov 2019 · 2019:DHC:5921

Yogesh Khanna

RFA No.469/2013

2019:DHC:5921

civil other Significant

AI Summary

The Delhi High Court stayed the suit challenging the validity of Wills over a property pending the outcome of a related second appeal in Punjab, emphasizing the principle of res judicata and judicial restraint in concurrent proceedings.

Full Text

RFA No.469/2013 HIGH COURT OF DELHI Delivered on : 13th November, 2019

RFA 469/2013
SH JAGJIT SINGH (DECEASED) NOW REPRESENTED BY HIS LRS ..... Appellants
Through : Mr.Ved Prakash Sharma and Ms.Abha Sharma, Advocates.

VERSUS

AMRIK SINGH & OTHERS ..... Respondents
Through : Respondent no.1 in person.
Mr.Atul Batra, Ms.Anjali Verma, Ms.Shreya Mathur, Advocates for
Respondent no.2.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.

JUDGMENT

1. This Regular First Appeal is preferred by the appellant against the judgment and decree dated 08.08.2013 passed by the learned Additional District Judge-02/West District, Tis Hazari Courts, Delhi/ (hereinafter as the learned ‘Trial Court’) in Civil Suit No.467/11/1984 whereby the suit filed by appellant for declaration, partition, rendition of accounts was dismissed.

2. The dispute pertain to the property bearing No.2382-83, Gali No.12, Beadonpura, Karol Bagh, Delhi (hereinafter referred as the ‘suit property’) admeasuring 222 square yards with built up upto 2 ½ floors on plot bearing Khasra No.378, Block N, Naiwala Estate, Karol Bagh, Delhi. It is alleged initially the suit property belonged to late Smt.Durga Devi, mother of the original plaintiff and defendants. As per the plaint, 2019:DHC:5921 Smt.Durga Devi died on 05.02.1981 leaving behind Sardar Naurang Singh; her husband; the plaintiff, the defendants No.1 & 2, her sons and the defendants No.3 to 6 viz her daughters.

3. It is alleged Smt.Durga Devi executed a Will dated 26.11.1959 duly registered in the office of Sub Registrar, Delhi on 23.12.1959 and per Will, she created life interest in favour of her husband Sardar Naurang Singh and bequeathed the suit property in favour of her three sons viz the plaintiff and the defendants No.1 & 2.

4. She also left yet another Will dated 04.01.1980 wherein also the suit property was bequeathed in favour of the plaintiff and the two defendants.

5. Since the appellant apprehended his father Sardar Naurang Singh was acting in collusion with defendants No.1 & 2 and was trying to sell the suit property, hence the plaintiff filed a suit for permanent injunction against Sardar Naurang Singh. In the said suit, though Sardar Naurang Singh admitted his wife late Smt.Durga Devi had executed a Will dated 26.11.1959, but added the said Will was superseded by her yet another Will of dated 27.09.1976 whereby she gave absolute ownership of the suit property to her husband Sardar Naurang Singh and later he executed a Will dated 07.11.1981 in favour of his two sons viz. defendants No.1 and 2. Sardar Naurang Singh unfortunately expired on 16.12.1983.

6. The appellant questioned the genuineness of Will dated 27.09.1976 in this suit filed on 03.12.1984 for declaration, partition and rendition of accounts against respondents/defendants No.1 to 6 when after the death of Sardar Naurang Singh, the brothers of the appellant viz. the respondents No.1 & 2(defendants No.1 & 2) approached DDA to get the property mutated in their names.

7. The respondents No.1 & 2/defendants No.1 & 2 filed a joint written statement contesting the suit and whereas the respondents No.3 to 6 viz., sisters though filed their written statement but abandoned their case later. The respondents No.1 & 2 also filed their counter claims qua property bearing No.977/A, Prem Nagar, Jalandhar, Punjab; but it was withdrawn by them on 26.08.1994.

8. The defence taken by the defendants No.1 & 2 is similar to their father Sardar Naurang Singh viz. late Smt.Durga Devi had executed a subsequent Will dated 27.09.1976 which superseded her earlier Will dated 26.11.1959 and thus Sardar Naurang Singh became absolute owner of the property after the death of his wife Smt.Durga Devi. Thereafter Sardar Naurang Singh had executed a Will dated 07.11.1981 in favour of both respondents No.1 & 2, who then became absolute owners of the suit property.

9. The appellant filed replication and following issues were framed by learned Trial Court on 18.07.1990:- “1. Whether the deceased Smt.Durga Devi has executed a valid Will dated 26th November, 1959? OPP

2. Whether the deceased Smt.Durga Devi has executed a valid Will dated 27th September, 1976? OPD-1 & 2.

3. Whether the deceased Sh.Naurang Singh has executed a valid Will dated 7th November, 1981 as alleged? OPD-1&2.

4. Whether the plaintiff has paid proper court fee on the plaint? OPP

5. Whether the suit is bad for partial partition? OPD-1 & 2.

6. Whether this Court has territorial jurisdiction to entertain the Suit No.2814/1988? OPD-1& 2.

7. Relief.”

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10. Vide order dated 24.03.1992, following three additional issues were also framed:-

“1. Whether the deceased Smt.Durga Devi executed a legal and valid Will dated January 4, 1980? If so, its effect? 2. Whether the counter-claim preferred by defendant Nos.1 & 2 is barred by time? 3. Whether the defendants No.1 & 2 have properly valued the counter claim for the purpose of Court fee and jurisdiction?

11. The issues viz. the counter claim being barred by time or counter claim being not properly valued or qua the territorial jurisdiction were all deleted vide order dated 26.08.1994 when the counter claim itself was withdrawn; hence issues no.2, 3 and 6 were deleted.

12. Admittedly, the respondent No.1 then had filed a Civil Suit No.34/1998 before the learned Civil Judge (Junior Division), Jalandhar, Punjab on the basis of the Will dated 27.09.1976 of his mother late Smt.Durga Devi who bequeathed the suit property in favour of her husband late Sardar Naurang Singh, who in turn executed Will dated 07.11.1981 in favour of respondents No.1 & 2. After a full trail of such Civil Suit No.34/1998 the learned Trial Court at Jalandhar vide its judgment dated 21.04.2005 dismissed the suit holding two Wills dated 27.09.1976 Ex.PX of late Smt.Durga Devi and Will dated 07.09.1981 of Sardar Naurang Singh Ex.P[1] could not be proved.

13. The appeal filed before the learned District Judge, Jalanadhar being RCA No.25/2006 also met with same fate, per judgment dated 10.08.2007.

14. Admittedly the second appeal (RSA) is still pending before the Punjab and Haryana High Court. The crux of both the above decisions was the Will Ex.PX could not be proved as the plaintiff therein could not prove if the attesting witnesses of the said Will had actually expired. Further Will Ex.P[1] also could not be proved since K.L.Bajaj, an attesting witness could not identify his own signatures on the Will Ex.P[1] and parentage of such witness was also different. Rather the learned Civil Judge noted even the signatures were different. Hence the Wills could not be proved, as were required to be proved per Section 68 and 69 of the Indian Succession Act, 1925.

15. The appellant in this suit, though had filed an application under Section 10 CPC, prior to initiation of evidence, but it was dismissed on the ground it being not maintainable since this suit was a previously instituted suit; the appellant did not file any appeal against such order and thus the learned Trial Court continued with this suit and dismissed it taking a contrary view holding Wills Ex.PWX and Ex.PW[1] were valid Wills. Admittedly an application under Section 11 CPC was also dismissed by the learned Trial Court for the reason viz. a Regular Second Appeal is pending before the High Court of Punjab and Haryana.

16. It is argued by the respondent the plea of res-judicata was though taken by the appellant but was rejected, thus the appellant ought to have taken such plea to a logical end but preferred to remain silent. I disagree. The application under Section 11 CPC was though dismissed but with a reason the regular second appeal is pending. As a matter of fact such second appeal is still pending. It is also the case of appellant that even if no appeal was filed against such order of dismissal of application under Section 11 CPC, yet the appellant did not waive such a plea, as is taken in this appeal and has every right to challenge it in this appeal per Order XLIII Rule 1A CPC.

17. The question is can the parties be allowed to re-agitate and/or prove or disprove a fact in two different proceedings. The answer to my mind is no. Here I would like to quote para 5 and 6 of the order dated 01.06.2016 of this Court which read as under:

“5. I have wondered whether the propounder of a Will can have two rounds of proving the same like in this case i.e. one before the Courts at Delhi and the other before the Courts at Jalandhar / Chandigarh. 6. I have further wondered that even if this Court as well as the High Court of Punjab and Haryana at Chandigarh were to uphold the validity of the Wills, the matter is likely to reach the Supreme Court and on the basis of evidence in which of the two suits would the Supreme Court decide the matter”

18. Thus in the facts and circumstances it would be appropriate to await the decision of the regular second appeal against the judgment dated 18.08.2007 passed in RCA No.25/2006 of the first appellate Court at Jalandhar (Punjab).

19. In the circumstances, the matter be placed in the category of ‘Regulars’ and be revived again once the second appeal is decided. Needless to state either party is at liberty to move with appropriate application per the outcome of the said Second Appeal.

YOGESH KHANNA, J. NOVEMBER 13, 2019 M/DV

Sh Jagjit Singh v. Amrik Singh & Others

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