raj kumar makkad
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Ram Kumar vs Shanker Lal And Ors. on 8 February, 2002
Cites 14 docs - [View All]
The Indian Succession Act, 1925
Section 213 in The Indian Succession Act, 1925
Section 8 in The Indian Succession Act, 1925
The Urban Land (Ceiling And Regulation) Act, 1976
Section 57 in The Indian Succession Act, 1925
Rajasthan High Court
Equivalent citations: RLW 2003 (1) Raj 99, 2002 (3) WLC 483, 2002 (2) WLN 607
Bench: P Tatia
Ram Kumar vs Shanker Lal And Ors. on 8/2/2002
1. By this appeal, the appellant has challenged the order of the trial court dated 30.8.2001 by which the learned trial court dismissed injunction application of the plaintiff-appellant.
2. Brief facts of the case are that the plaintiff filed the suit for partition with respect to the property of one Shri Badridas. How it alleged to have come to the share of the plaintiff is having a chequered history as per the facts of the case. It is stated that Badridas Daga was having immovable properties mentioned in Schedule -'ka' annexed to the plaint. Badridas Daga executed a Will on 16.9.1962. After death of Badridas, Badridas's wife Smt. Chanda Bai, Badridas's brother Ramnath Daga, Ramnath's son Shankerlal presented an application for grant of probate before this Court, upon which the High Court granted probate by order dated 29.10.1968. As per the probate. Smt. Chanda Bai, Ramnath Daga and Shankerlal were appointed as executors as per the provisions of the Will. It was also provided in para No. 4 of the Will that Smt. Chanda Bai will be the owner of the immovable properties situated in the city of Bikaner and the properties mentioned in Schedule -'ka' are the properties situated in Bikaner. Therefore, Smt. Chanda Bai became owner of the above property after the death of Badridas. Smt. Chanda Bai expired on 6.1.1993 at Mumbai.
3. It is alleged by the plaintiff that since Badridas Daga and Smt. Chanda Bai had no issue, therefore, the property was to go in the hands of close relations of Badridas Daga, who was none else than Ramnath Daga, one of the executors of the Will and since Ramnath Daga expired before Smt. Chanda Bai on 26.1.1973, therefore, after the death of Smt. Chanda Bai on 6.1.1993, the property which was originally belonging to Badridas Daga got by Smt. Chanda Bai by virtue of Will dated 16.9.1962, came in the hands of successors of Ramnath Daga. According to the plaintiff, the plaintiff and the defendants No. 1 to 3 are the sons of Ramnath Daga. In these circumstances, the plaintiff is claiming l/4th share in the entire property mentioned in Schedule-'ka' and the defendants No. 1 to 3 are having 1/4th share each According to the plaintiff, the property was never partitioned and the defendant non-petitioners No. 1 to 3 are not agreeing for partition and the executors did not acted bonafidely. They have not passed on the benefits to the beneficiaries and, in the above circumstances; the plaintiff requested defendant Nos. 1 to 3 to partition the property but the defendants did not take any interest. Instead of agreeing for partition, the non-applicant No. 1 (respondent No. 1) through his son defendant No. 1 published an advertisement on 28.7.2000 for sale of the Bikaner Glass Factory, one of the properties in dispute, therefore, the plaintiff filed the suit for partition and also submitted an application for injunction that during the pendency of the suit, the respondents be restrained from alienating the property mentioned in Schedule- 'ka'.
4. The reply to above application was submitted by respondents Nos. 1 and 4. Respondent No. 4 is son of Shankerlal and Badridas Daga is great-grand father of respondent No. 4 Shiv Kumar. In reply, the Will dated 16.9.1902 was admitted. It was also admitted that, by the above Will, the property was given to Smt. Chanda Bai and the probate was obtained and it was also admitted that, as per the above Will, Smt. Chanda Bai became the sole owner of the property in dispute but it submitted that Smt. Chanda Bai, before her death on 6.1.1993, executed a Will dated 2.11.1973 and, by this Will, the property was given by Smt. Chanda Bai to respondent No. 4 Shiv Kumar, therefore, respondent No. 4 has absolute right, title and interest in the property. It was also submitted that respondent No. 4 is in exclusive possession of the property of deceased Smt. Chanda Bai. It is further submitted that respondent No. 4 was living with Smt. Chanda Bai since his childhood.
5. The respondent-defendants further submitted that the above Will dated 2.11.1973 was in full knowledge of the plaintiff. It was also submitted in the reply that defendant No. 1 Shahkerlal lost his mother in the childhood of defendant No. 1, therefore, defendant No. 1 was living with deceased Badridas Daga and Smt. Chanda Bai Daga. The father of defendant No. 1 Ramnath Daga contacted second marriage after which the plaintiff, defendant Nos. 2 and 3 and two daughters born to Ramnath.
6. It was also submitted by the defendants in reply to the injunction application that the proceedings under the Urban Land Ceilings Act, 1976 was initiated in the year 1976 in the life time of Smt. Chanda Bai and it continued at various levels and, ultimately, S.B. Civil Writ Petition No. 4080/1989 was filed by Smt. Chanda Bai. Smt. Chanda Bai expired during the pendency of the above writ petition. Then an application for bringing legal representative on record was submitted on the basis of the Will dated 2.11.1973 and, on the basis of the above Will, order dated 6.8.1993 was passed by the High Court for impleading legal representatives of Smt. Chanda Bai. The plaintiff did not present any application to get impleaded himself as legal representative of Smt. Chandra Bai before this court in the above writ petition. It was also submitted that Will dated 2.11.1973 was submitted before the Divisional Commissioner in another matter. It was submitted that the plaintiff-applicant, knowing all these facts, did not challenge the Will nor has challenged the Will in the present suit and, by suppressing this fact, filed the frivolous suit against the defendant to blackmail the defendants by putting hurdle in disposal of the property as defendant No. 4 issued a publication dated 28.7.2000 for sale of the property.
7. The defendants further submitted that, the plaintiff in his suit, deliberately suppressed that Ramnath Daga has two daughters. Ramnath Daga is also having son and daughters of his five sisters. Even if the case of the plaintiff is accepted then they all are the cosharers along with the plaintiff and the plaintiff can have only 1/36th share in the property. None of the above persons is impleaded as parties in the suit and none of other person is challenging the right of defendant No. 4 which shows the falsity in the case of the plaintiff.
8. The defendant Nos. 2 and 3 who are real brothers of the plaintiff submitted separate reply to the injunction application and admitted the facts mentioned in para Nos. 1 to 7 of the injunction application and in reply to para No. 8, stated that Smt. Chanda Bat died and the never executed any Will and, in substance, submitted that whatever the court passes the order they will obey the order.
9. The trial court, after considering the facts in detail, held that prima facie there is a Will in favour of defendant No. 4 (respondent No. 4). The plaintiff has not sought any relief of declaration of Will as null and void or ineffective nor the plaintiff has submitted any rejoinder to deny the facts alleged by the defendants. The trial court also held that as per the report of the commissioner, the possession of defendant No. 4 (respondent No. 4), Shiv Kumar has been prima facie proved and also considered the fact that the Will was produced in the Rajasthan High Court, therefore, there is no prima facie case in favour of the plaintiff-and also held that the balance qf convenience is not in favour of the plaintiff nor the plaintiff will suffer any irreparable injury and the trial court vide its order dated 30.8.2001, dismissed the injunction application. Hence this appeal.
10. The learned counsel for the appellant vehemently submitted that the trial court has committed serious illegality and could not appreciate the corrects facts of the case. According to the learned counsel for the appellants, the very basis of the order of the trial court is contrary to law. As per Section 213 of the Indian Succession Act, 1925 the respondent-defendants are precluded from establishing their any right under any Will for which the probate has not been granted. Admittedly the Will was executed at Mumbai. Section 213 read with Section 57 of the Indian Succession Act, 1925 make it very clear that the Will executed at Mumbai is required to be first probated for establishing right as executor or legatee.
11. The learned counsel for the contesting respondents submitted that as per Section 213 of the aforesaid Act, it is clear that this bar is against establishing a right of executor or legatee and this bar applies when the executor and legatee want to establish their right in the court of justice but this bar does not apply in the circumstances when the executor do not want to establish his right under the Will but only shows the court that there exists one Will of the deceased which makes the plaintiff disentitled from claiming his share.
12. Here in this case, the Will is in favour of respondent No. 4. The defendant No. 4 as well as defendant No. 1 are asserting that Smt. Chandra Bai executed the Will in favour of respondent No. 4 By saying so, respondent No. 1 is not seeking establishment of his right as executor or as legatee nor he is executor or legatee in the Will, therefore, the above bar does not apply to respondent-defendant No. 1.
13. It was also submitted by the learned counsel for the contesting respondents that even respondent No. 4, who is having Will in his favour without obtaining any probate, can show that the plaintiff has no case particularly in view of Section 8 of the Hindu Succession Act 1956 by virtue of which the plaintiff is claiming his right in this property. Section 8 applies only in cases where male Hindu dies interstate. The learned counsel for the respondent put emphasis on the language used in Section 8 which is being quoted here:
8. The property of a male Hindu dying interstate shall devolve according to the provisions of this Chapter; -
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
14. The defendant No. 4 simply has put forward a case that this is not a case of intestate devolution of interest and for this purpose, he can only put forward the Will and can prove existence of Will which will make the plaintiff disentitle for the relief as claimed in the suit and this cannot be said to be establishing a right as executor or legates in the court of justice.
15. The learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court reported in : Clarence Pais & Ors. v. Union of India (1). The Hon'ble Apex Court considered the above provisions, though in different context, but interpreted the provisions of Section 213 of the Indian Succession Act which reads as under:
"Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein. Certain aspects will have to be borne in mind to understand the exact scope of this Section. The bar that is imposed by this Section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The Section does not prohibit the Will being looked into for purposes other than those mentioned in the Section...."
16. According to the learned counsel for the respondents, the Hon'ble Apex Court has clearly laid down that the bar that is imposed by Section 213 is only in respect of establishment of right as an executor or legatee and not in respect of establishment of right in any other capacity. It further shows that section does not prohibit the Will being looked into for purposes other than those mentioned in the section. According to the learned counsel for the respondents, the other purpose certainly means other than establishing right in the court of justice and the Hon'ble Apex Court very specifically held that section does not prohibit looking of the will by the court of law. Therefore, the plaintiff has no prima facie case in his favour in view of the Will and particularly, in the facts of this case the Will is not under challenge despite it was in the knowledge of the plaintiff for such a long period.
17. The learned counsel for the respondent further submitted that the plaintiff has not even pleaded material facts as required under Section 8 of the Hindu Succession Act, 1956. The plaintiff was required to plead that the deceased died intestate because only when person dies intestate, then and then only Section 8 of the Act of 1956 can be made applicable. Therefore, the very foundation of his right is not given in the pleading. Even after the reply by the respondent-defendants putting forward the case on the basis of the Will, the plaintiff did not even choose to deny the existence of the will or challenged the Will by filling rejoinder or by amending the plaint. Therefore, the court was competent to look into the Will existence of which has not been denied, to hold that the plaintiff had no prima facie case.
18. Before proceeding with the matter, it is relevant to see the aims and objects of the enacting Indian Succession Act, 1925, as mentioned in the Book of Sen's Indian Succession Act, 1925, Second Edition 1989, which are quoted herein below: -
"Object and scope.-The object of the Act is to consolidate all Indian laws relating to succession. The separate existence on the statute book of a number of large and important enactments renders the present law difficult of ascertainment and there is, therefore, every jurisdiction for an attempt to consolidate it. The Bill has been prepared by the statute Law Revision Committee as a purely consolidating measures (Notes on clauses.)
19. Therefore, it is clear from the object and scope of the Act itself that, by this Act, the law relating to succession was consolidated only. The procedure is also prescribed for dealing with intestate and testate succession but this Act neither extinguishes or gives any additional right which is not otherwise provided to the successor. In the light of above, I have to examine the various provisions of the Indian Succession Act, 1925.
20. Section 213 of the Indian Succession Act, 1925 is quoted here which reads as under:
Section 213. Right as executor or legatee when established.
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muham-madans, and shall only apply-
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in Clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the the High Court at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
21. I considered the above submissions of both the parties. It is clear that Section 213 of the Indian Succession Act; 1925 bars establishing a right as executor or as legatee in any court of justice. This bar does not apply to the person who is not executor or legatee. If a person is facing a suit against himself on the basis of the right claimed as a natural successor of the deceased, is in knowledge of a Will in favour of third party and the defendants, in the suit, is neither executor nor legatee and the defendant by showing that title to the property does not vest in the plaintiff can non-suit the plaintiff, then he will be deprived to take a valuable defendance on the ground that the probate was not obtained by third party in whose favour the Will is there. There may be several instances in which the plaintiff can claim relief only after proving his title and the defendant can non-suit the plaintiff only for want of title vesting in the plaintiff even when the title does not vest in the defendant. In this situation if it is held that unprobated will cannot be looked into then the plaintiff will succeed in his suit without there being title in him and the defendant will be deprived of his property or right by a person having no title vesting in him, therefore, also bar cannot be extended to against third party who is neither executor nor legatee.
22. It will be further relevant to mention here that as per Section 222 of the Indian Succession Act, 1925, probate can only be granted to the executor appointed by the Will. Therefore, it is clear that third person who is not executor cannot obtain probate for the Will nor it can be imagined that the person, not claiming any right, title and interest in himself under a Will, will be asked to get probate in favour of other to save his enjoyment of property.
23. Therefore, it is held that the trial court has jurisdiction to look into fact of existence of the Will.
24. The learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in : Bina Murlidhar Hemdev and Ors., v. Kanhaiyalal Lokram Hemdev and Ors., (2), wherein the Hon'ble Apex Court granted the temporary injunction to the plaintiff notwithstanding the investment made by the builder. I perused the facts of the above case wherein Hon'ble the Apex Court observed that the builder having notice of the rectification deed and other documents and not bonafidely purchased the property but got the building plans sanctioned ignoring right of plaintiffs, therefore, the Hon'ble Apex Court granted the injunction. This judgment has not bonafidely purchased the property but got the building plans sanctioned ignoring right of plaintiffs, therefore, the Hon'ble Apex Court granted the injunction. This judgment has no application to the facts of the present case.
25. The learned counsel for the appellant relied upon another judgment delivered In : Bhoomireddy Chenna Reddy and Anr., v. Bhoospalli Pedda Verrappa (dead) by L.Rs. and Anr., (3). The facts of this case reveal that it has also no application to the facts of the present case.
26. Another judgment relied upon by the learned counsel for the appellant is delivered in : Gangubai Bablya Chaudhary and Ors., v. Sitaram Bhalchandra Sukhtankar and Ors., etc. (4), wherein the Hon'ble Apex Court found that there was a dispute with respect to the title of the land between the plaintiff and the defendant and the plaintiff and the defendant are found to be in possession of above 1/2 portion of the disputed land, therefore, in that situation, the injunction restraining the defendant from putting up construction on the entire land was held to be justified. The Hon'ble Apex Court also held that in case of refusal of injunction, the situation might become irreversible by the time dispute is decided but here in this case, when it appears that the plaintiff has not come with clean hands wants to take benefit of situation, has not challenged the execution of the Will by deceased Smt. Chanda Bai which was submitted before the court of law at various times. The same analogy cannot be applied which was applied in the case of Gangubai Bablya Chaudhary (supra) because the facts are entirely different.
27. The learned counsel for the appellant also relied upon the judgments delivered in : Pranakrushna v. Umakanta Panda and Ors., (5), Om Prakash and Ors., v. Chhaju Ram (6) and Gita Mishra v. Most. Adhikari Kunwar (7). The above judgments delivered in the cases of Om Prakash (supra) and Gita Mishra (supra), are relating to the injunction matter between co-sharers and it was held that the co-sharers cannot be permitted to raise construction on the land in his possession till partition takes place by meets and bounds and in the case of Pranakrushna (supra), injunction was granted against the alienation of property by cosharers. But here in the present case, the right and interest prima facie does not exist in favour of the plaintiff. Even if the Will is ignored then the plaintiff is having 1/36th share in the entire property and the plaintiff has not impleaded other co-sharers and other co-sharers have no objection with respect to the dealing with the property of defendant No. 4 then a rightful owner claiming title through a Will executed as back as on 2.11.1973, produced even before even the Rajasthan High Court in another proceedings and the plaintiff did not choose to challenge any of the action of defendant No. 4 or respondent No. 1 after the death of Smt. Chanda Bai in the year 1993, the plaintiff is not otherwise entitled for the relief of injunction even against alienation of the property because for grant of injunction, the plaintiff was required to prove prima facie case. His conduct may amount to give undue advantage to the plaintiff by issuing injunction in favour of the plaintiff against the apparent prima facie owner of the property.
28. After considering other facts of the matter which shows that the conduct of the plaintiff is not of such a nature which makes him entitled for relief of injunction rather the conduct of the plaintiff shows that he is not entitled for any relief of injunction. The trial court found that the plaintiff has suppressed the facts in the application that on which part of the property the plaintiff is in possession and from when it was in possession of the plaintiff. The plaintiff further suppressed the fact that who managed the property for 7 to 8 years after the death of Smt. Chanda Bai. The plaintiff has not pleaded through whom the plaintiff is in constructive possession of the property. The plaintiff has not challenged the Will in any manner in the suit nor he has challenged the fact of execution of Will by filing rejoinder. The possession of the property was not found with the plaintiff but it was found with respondent No. 4. Therefore, the above suppression of the facts and concealing the facts clearly disentitles the plaintiff from any equitable relief.
29. I do not find any reason for interference in the order passed by the trial court while exercising appellate jurisdiction as the order is not perverse, capricious or of such nature to take a different view than one taken by the learned trial court.
30. The learned counsel for the respondents also raised serious objection with respect to the lack of pleading and submitted that the plaintiff-appellant has failed to put forward material particulars in pleading then in view of the judgments of the Hon'ble Apex Court, it amounts to non-discloser of cause of action and, therefore, the plaintiff is not entitled for the relief of injunction.
31. It is true that the Hon'ble Apex Court held that giving of material particulars may amount to nondisclosure but while considering application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, when I found that there is no merit in the application, I need not to go into the meticulous examination of the lack of pleadings in the plaint at this stage.
32. Therefore, in view of the above discussion there is no force in this appeal and the appeal is liable to be dismissed but from the facts of this case it is clear that the respondent No. 4 wants to alienate the property in dispute and, therefore, it is proper that in case the respondents entered into any transaction with respect to the property in dispute they shall furnish full details of the transaction and in case any deed is executed then the deed be placed on record before the trial court and any deed, if executed by the respondent dealing with the property, then the respondents shall mention the fact of pendency of this litigation and shall also mention that the present dealing with the property shall be bound by the decision given by the court finally. This will safeguard the interest of both the parties.
33. The appeal is, therefore, dismissed with the above observations.