JUDGMENT
S.N. Kapoor, J.
LA. 5764 of 1990
1. This order shall dispose of the aforesaid I.A. seeking ad interim injunction in a suit for partition of property No. 12/33, Tilak Nagar, New Delhi (hereinafter called ‘the suit property’) and for perpetual injunction for restraining defendant Nos.1 and 2 from disposing of the suit property on 26th July, 1990.
2. The plaintiff’s case is that his father late Shri Jiwan Dass Lau owned certain ancestral properties in Rawalpindi and in lieu there of got a claim of Rs. 33,506/-. This claim was adjusted towards the sale price of property No. 12/33, Tilak Nagar, New Delhi allotted to Sh. Jiwan Dass Lau, father of the plaintiff. Sh. Jiwan Dass Lau expired in August, 1963 leaving behind his mother Smt. Devti Devi, Bakshi Ghansham Dass Lau, Lt. Col. Ram Sarup Lau, Bakshi Krishan LAll Lau, Sh. V.A. Bakshi and Smt. Brij Mohan Bali, who inherited the property. Smt. Devti Devi expired on 18th March, 1984. Bakshi Ghansham Dass Lau has also expired. It is claimed that the property is owned by plaintiff and all the defendants, including Smt. Ramkali (wife), S/Sh. Kulbhushan Bakshi, Dilip Bakshi, Rajinder Bakshi (sons) of late Shri Ghansham Dass Lau.
3. According to the plaintiff, defendant Nos.1, 2 and 7 are co-owners of 1 /5 share and defendant Nos. 3 to 6 are co-owners of the remaining 1/5 share. It is claimed that defendant Nos.1 and 2 have conspired and started claiming their exclusive share in the suit property. Defendant No. 2 in connivance with defendant No. 1 also started negotiating for disposing of the suit property and have agreed to sell the suit property to one M/s. Gandhi Electrical Company in consideration of Rs. 5,20,000/-. On 13th July, 1990, defendant No. 2 threatened defendant No. 5 to dispossess him. The plaintiff claims that he was in possession of a portion shown in red colour in the site plan and had stored household goods though he was residing in the Government allotted accommodation and rest of the portion was in possession of defendant Nos. 2 and 5. The plaintiff also seeks ad interim injunction for restraining defendant Nos. 1 and 2 from disposing of the suit property and from handing over possession of any other portion to any other person, for defendant Nos.1 and 2 have conspired to usurp shares of the plaintiff and the defendant Nos.3 to 6.
4. According to the defendants (defendant No. 1), the suit property was allotted to late Shri Jiwan Dass Lau in lieu of verified claim in respect of his self-acquired properties in Rawalpindi. Consequently the suit property was his self-acquired property and not an ancestral property. Shri Jiwan Dass Lau died on 29th August, 1963 leaving behind a registered, legal and valid Will dated 17th March, 1959 bequeathing the property in favour of his wife Smt. Devti Devi and on her death the property was to devolve upon defendant Nos. 1 and 2 in equal shares. Smt. Devti Devi died on 18th March, 1984. As such, on her death defendant Nos. 1 and 2 became exclusive owners of the property in dispute in equal shares. A partition took place between defendant Nos. 1 and 2 wherein defendant No. 1 took over southern portion of the suit property and defendant No. 2 took over northern portion. On 29th May, 1990, before institution of the suit, defendant No. 1 claimed to have sold his portion of the property to Smt. Raj Kumari and delivered vacant and peaceful possession thereof to her. Thus, defendant No. 1 has no more interest in the suit property. The plaintiff acting on the Will of late Shri Jiwan Dass Lau dated 17th March, 1959 gave a declaration with respect to property No. A-3/247, Janak Puri, New Delhi that he has no other property either in his name or in the name of his wife. Thus, having accepted legality and validity of the Will he is estopped by his own conduct from challenging the Will of late Shri jiwan Dass Lau to claim any interest in the suit property. Defendant No. 2, in addition to above, further contends that the plaintiff has admitted the genuineness and correctness of the Will when he gave “No objection” to the military authority for payment of his last pension to Smt. Devti Devi, mother of the parties, and this fact has not been controverted in the written statement. No cause of action has arisen in favour of the plaintiff. The presumption under Section 90 of the Evidence Act is attracted regarding the genuineness of the documents (Will) alongwith the sale deeds produced by defendant No.1 regarding the properties in Pakistan are more than 30 years old at the time of filing of the suit. The plaintiff knew this fact since 1950 and as such, the plaint is barred by limitation and the property in suit is not ancestral. Defendant Nos. 3 to 7 are virtually supporting the plaintiff as is apparent from the written statements.
5. In additional pleas, defendant No. 1 claims that late Shri Jiwan Dass Lau was exclusive owner of the following self-acquired properties in Rawalpindi (Pakistan):
1. Property No. 719 situated at Mohalla Dadar Kann, Rawalpindi City.
2. Properties No. 720 and 721 situated at Mai Vero Ki Bani, Rawalpindi.
3. Plots No. 145,146,149,150 situated near Asgar Mall opposite Khalsa College, Rawalpindi, purchased Benami in the name of his wife Devti Devi.
6. In replication the fact that the properties at Rawalpindi were recorded in the own name of Shri Jiwan Dass Lau is not disputed. Rather it is claimed that Shri Jiwan Dass Lau had purchased those properties in his own name out of the sale proceeds of the ancestral properties sold by him without disclosing the identity of those ancestral properties.
7. The plaintiff has gone to the extent of saying in reply to paragraph 3 that Shri Jiwan Dass Lau has wrongly and fraudulently described ancestral properties as his own self-acquired properties. It is claimed that defendant No. 1 before filing of the written statement never disclosed the existence of alleged Will dated 17th March, 1959 nor he obtained probate or letter of administration. In reply to paragraph 3 of the preliminary objections of defendant No. 2, the plaintiff did not specifically controverted the fact that he had admitted the genuineness and correctness of the Will in favour of defendant Nos.1 and 2 dated 16th April, 1959 executed by their father when he gave ‘No objection’ to the Military Authorities for payment of last pension to Smt. Devti Devi, mother of the parties. Consequently, this fact may be deemed to be admitted. It is further notable that the plaintiff takes an alternative stand in replication by pleading that “Even otherwise according to the alleged Will Smt. Devti Devi inherited the property in dispute after the death of Shri Jiwan Dass Lau who died on 29th August, 1963 and she became absolute owner in view of the provisions of Section 14 of the Hindu Succession Act. Smt. Devti Devi died on 28th March, 1984 and after her death her sons became co-owners of equal shares because she died intestate.” Thus, the plaintiff has virtually admitted existence of the Will executed by his father in favour of Smt. Devti Devi as far back as 1961 or 1964. Could he split the Will and read it in his own way? I think not. In the aforementioned circumstances, in absence of any specified ancestral property and the assertions made by Shri Jiwan Dass Lau in purchasing the plots of land in the name of Smt. Devti Devi thereafter asserting his self-acquired property before the Claims Commissioner, allotment of house in question in lieu thereof prima facie does not indicate any force in the plaintiff’ s claim that property in suit was ancestral property in the hands of Shri Jiwan Dass Lau and as such, he could not execute a Will in favour of his wife and after her death in favour of his two sons, namely, defendant Nos.1 and 2. It may be mentioned that the Will was registered on 9th May, 1959. The suit was filed in the year 1990. The lease deed was executed on 16th July, 1962. These documents have acquired some sanctity under Section 90 of the Indian Evidence Act raising and attracting presumption of genuineness of the documents, for the documents are coming from proper custody of the defendants.
8. One of the contentions of the plaintiff is that even by alleged Will dated 17th March, 1959 Smt. Devti Devi became absolute owner of the property in dispute after death of her husband Shri Jiwan Dass Lau under Section 14 of the Hindu Succession Act (hereinafter called ‘the Act’ for short). She expired on 18th March, 1984 intestate and hence, the plaintiff is owner of 1/5 share of the property in dispute. This contention makes it clear that Smt. Devti Devi had been given limited rights under the Will. The property under the Will could not become an absolute estate of the deceased Smt. Devti Devi under Section 14 of the Act. It would be proper here to reproduce Section 14(2) of the Act, which provides a restriction on the scope and ambit of Section 14(1) of the Act. Section 14(2) of the Act reads as under:
“14(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order or a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property.”
9. In Smt Karmi Vs. Amru and Ors., , it has been held that a widow who succeeds to the properties of her deceased husband on the strength of a Will executed by the husband in her favour cannot claim any rights other than those conferred by the Will. Thus, where only life estate is conferred on her under the Will, she cannot claim to have become absolute owner under the Act. Her grand-daughter cannot, therefore, claim any title to the properties on the basis of the Will executed in her favour by the widow. Similar view was taken in G. Appaswami Chettiar and Anr. Vs. R. Sarangapani Chottiar and Ors., on the strength of Section 14(2) of the Hindu Succession Act.
10. Once prima facie it appears that the property in Pakistan was self-acquired property of late Shri jiwan Dass Lau and he could execute the Will, it could not possibly be absolute property in the hands of Smt. Devti Devi allowing the plaintiff to claim 1/5 share in the property on death of Smt. Devti Devi.
11. The plaintiff is not seeking any relief of cancellation of the Will executed by deceased Shri Jiwan Dass Lau and without cancellation of the Will, the plaintiff may not be entitled to get any relief in the aforementioned circumstances.
12. It may be mentioned that according to defendant No. 1 he has sold his portion under an agreement to sell dated 29th May, 1990 and delivered the vacant and peaceful possession of the property to Smt. Raj Kumari under the agreement to sell. Smt. Raj Kumari has not been made a party so far despite disclosure in the written statement.
13. The claim of plaintiff is prima facie belied in view of the photocopies of the orders passed by Claims Officer dated 11th July, 1953. The plaintiff should have asserted his right way back in 1952,1953 and 1962 when the lease deed was executed in the exclusive name of Shri Jiwan Dass Lau.
14. In so far as the question of possession of the plaintiff is concerned, it is required to be seen in the aforesaid light that defendant Nos.1 and 2 had become owners by virtue of a registered Will on death of their mother Smt. Devti Devi on 18th March, 1984. According to defendant No. 2, he was in possession of the said room and he was running a ‘Kirana’ shop earlier and for some time he had locked the same. So far as the household articles are concerned, a sentence or two written by the A.S.I. may not be very much meaningful in absence of statement of any representative of defendant Nos.1 & 2.
15. In this regard, the plaintiff has not produced any document worth the name to indicate that he had any share in the suit property. His name has not been got mutated in the Municipal record. He has not paid any house tax or electricity charges nor he has any correspondence. He was admittedly living in any other house. He claims to be in possession in the additional room measuring 12 ft. X 10 ft. (shown red in the site plan) towards service lane. Three documents have been filed, all relating to an incident dated 10th March, 1991 and these are his own statements, statement of Rajender Kumar Bakshi, defendant No. 6, an entry of the report of the PCR and there is report DD No. 61-B of Sh. Amar Pal Singh, ASI, indicating quarrel and injuries of Sh. Rajender Kumar Bakshi and the fact that the household articles of Ram Swarup and Dilip Kumar Bakshi were allegedly found kept in two rooms and kitchen. Statement of Sh. Dilip Kumar Bakshi was to the effect that at that point of time his kitchen and room was properly locked alongwith his household articles. It is interesting to note that no kitchen has been shown in the site plan in red colour and in common user only one bath room and latrine has been shown. None of the defendants 2 to 7, including Sh. Dilip Kumar Bakshi in his written statement dated 24th October, 1990 has stated that they were in possession of any portion. The plaintiff also did not claim in his plaint that defendants 2 to 7 were in possession of any portion. Supposing for the sake of arguments that the plaintiff and his nephew had some portion in their occupation. “Would it amount to possession?” may be a question. If mother of the plaintiff was living and even after her death, brothers of the plaintiff have allowed him to keep certain household articles in some place in the house, it cannot be deemed to be a possession but a mere license to keep the household articles for the time being and the defendant Nos.1 and 2 have all right to revoke such a licence and to remove household articles of the plaintiff. The way a kitchen has been occupied just indicates the fact that the plaintiff is himself creating trouble and is not entitled to be shown any indulgence in the aforesaid circumstances. Thus, it would be very much apparent that the plaintiff has got no prima facie case nor he has any balance of convenience in his favour, for he is already living separately in another house. In such circumstances, the question of irreparable loss would not arise. As such, the plaintiff is not entitled to any injunction. There does not appear any force in this application. IA No. 5764/96 is accordingly dismissed. Stay granted on 27th July, 1990 is hereby vacated.
IA No. 2197193
16. Defendant No. 2 claims that the plaintiff was not in possession of any part of the suit property and as such ad valorem Court fee should be affixed on the plaint in terms of Section 7(iv)(b) of the Court Fee Act.
17. According to the submission of learned Counsel for the plaintiff, in a suit for partition by a coparcener alleging joint possession, fixed Court fee is payable under Article 17(vi) in Schedule-II of the Court Fee Act. In support of his submission, he relies upon Neelawati and Ors.Vs. N. Natarajan and Ors., and Jagdish Prasad v. Joti Prasad, 1975 RLR 203.
It is settled law that the question of Court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. I feel that there is no force in the application moved by the defendant. The plaintiff claims to be coparcener and claims to be in possession of one room as per the allegations in the plaint. Even the tentative findings arrived at for the purpose of deciding injunction application are not supposed to modify the foregoing negative answer to the question of Court fee raised by the defendants in view of the settled legal position. Accordingly, in terms of the judgment in Neelawati (supra), the application is dismissed.
IA No. 6628/96
18. The plaintiff has moved this application under Order 39, Rule 2(A) for violation of order dated 17th August, 1990. But it appears that there is no such order dated 17th August, 1990. There is an order dated 27th July, 1990, which reads as under:
“27.7.90
S.No. 2313/90
Present:Mr. M.N. Dutt for plaintiff.
Let the suit be registered. Issue summons for service of defendants by ordinary process as well as by means of registered A.D. post for 7th September, 1990.
I.A.5764/90
Notice to defendants for 7th September, 1990.
In the meanwhile, defendants No. 1 & 2 are hereby restrained from disposing of the property in dispute i.e. No. 12/33, Tilak Nagar, New Delhi to any other person or from handing over possession of their portion.
Dasti.
JULY 27,1990 S.N. SAPRA, J."
19. The scope of the order dated 27th July, 1990 is very limited and restrains the defendants from disposing of the property in dispute i.e. 12/33, Tilak Nagar, New Delhi to any other person or from handing over possession of their portion. In the application, there is no such allegation that either of the defendants had transferred the property to any third person after passing of the injunction order. The plea of forcible dispossession of the plaintiff from the portion in his possession shown in red in the site plan, it appears, is belied by his own statement before the A.S.I. made on 11th March, 1991, a photocopy of which he has himself filed and secondly, this statement does not indicate that the plaintiff had been dispossessed or any attempt had been made to dispossess him from any portion which was said to be in his possession. It indicates that defendant Veer Abhimanyu quarrelled with him and his nephews with an intention to mike them vacate. Defendant No. 1, Kishan Lall Lau, was not even present as per report and statement at the time of said quarrel. It is not alleged that any body had broken the lock and forcibly tried to occupy his portion. Secondly, he was not using common portion as is clear from omission to say so in paragraph 7 nor he claimed any such right as is being claimed now in the application under Order 39, Rule 2-A of the CPC about use of common facilities. Defendant Nos. 3 to 7 did not claim to be in possession of any portion in the house in their written statement dated 24th October, 1990. In such circumstances, in the light of the report of A.S.I. and his statement before A.S.I., it becomes apparent that the plaintiff had in the garb of dispute wanted to and actually occupied one more room and kitchen with the help and assistance of his nephews named in A.S.I.’s report. Even if what is mentioned in the application is accepted as true, alleged allegations are not covered by the injunction order to make out any case of contempt, for it was not an attempt to sell to any third party in violation of the injunction. Defendant No. 1 was not present and he had already sold his share on 29th May, 1990 about two months before the restraint order come into existence on 27th July, 1990. As such, I do not find any force in this application and reject the same with cost of Rs. 1,000/- each to the defendants No. 1 and 2.
Application dismissed with costs.