Divya Mubayi vs Krishna Mubayi and Others

Manmohan Singh, J.—The plaintiff has filed the suit seeking a decree of partition and permanent injunction against the defendant in respect of the suit property situated at D-129, Defence Colony, New Delhi (hereinafter referred to as ''the suit property''). The plaintiff claims to have inherited 1/6th share in the suit property after the death of her grandfather Late Lt. General S.N. Mubayi.

The plaintiff is the daughter of late Mr. Sanjay Mubayi and defendant No. 3. The plaintiff is the only child born from the wedlock. Mr. Sanjay Mubayi (father of the plaintiff) died on 4.9.1996. He was survived by the plaintiff as his only child, the defendant No. 3 (widow), his father late Lt. General, S.N. Mubayi (who is now deceased), defendant No. 1 (mother) and defendant No. 2(his brother).

plaintiff''s father and defendant No. 2 are the sons of Late Lt. General S.N. Mubayi and defendant No. 1. Lt. General S.N. Mubayi was the owner of the suit property where he built a residential house. According to the plaintiff, the suit property was his self acquired property.

As per the averment in the plaint , the plaintiff was born in the suit property on 4.1.88. Due to some reasons and pursuant to an understanding between the plaintiff''s mother (defendant No. 3) and the plaintiffs grandparents (including defendant No. 1), her mother took up residence in her parents home in Vasant Vihar. However, the plaintiff''s case is that she visited her grandparents almost daily.

As per the plaintiff, after the death of her father, she became very close to both grandparents and visited them almost everyday after school. The plaintiff spent many nights with her grandparents in the suit property. A separate room was given to the plaintiff on the ground floor. The plaintiff had her personal belongings including her clothes etc. permanently in that room.

It is alleged by the plaintiff that her grandparents had immense love and affection for her and repeatedly told the plaintiff that the suit property was her home. The plaintiff''s grandfather Lt. Gen. S.N. Mubayi died on 9th September, 2005.

Defendant No. 1 is about 83 years old and fully dependent on defendant No. 2 for her well fair and upkeep. As per the plaintiff, she has expressed immense pain, sadness and anguish at defendant No. 2''s attitude and behaviour towards the plaintiff after the death of plaintiff''s grandfather.

It is alleged in the plaint that the plaintiff''s grandfather died intestate. It is submitted that the grandmother of the plaintiff repeatedly confirmed that the plaintiff''s grandfather did not leave behind any Will. Pursuant to the death of Lt. General S.N. Mubayi, his estate has been inherited equally among his legal heirs i.e. his widow (defendant No. 1), son Mr. Arun Mumbayi (defendant No. 2) and legal heirs of pre- deceased son i.e. the plaintiff and defendant No. 3.

As per plaintiff, the suit property was the plaintiff''s father residence. It was also the defendant No. 3''s matrimonial home.

The plaintiff has valued the suit for the relief of possession and partition of the plaintiff''s share in the suit property at Rs. 30 lakhs on which appropriate court fee of Rs. 31,625/- has been paid.

The plaintiff filed an application under Order 39 Rules 1 and 2 CPC read with Section 151 CPC being IA No. 2746/2008 for passing exparte ad-interim injunction order restraining the defendants, their attorneys, agents, assignees and representatives from selling, alienating, encumbering or creating any third party interest or parting with possession of the suit property.

In reply to this application filed by the plaintiff, the defendants submitted that Lt. General S.N. Mubayi has not die intestate and prior to his death, he executed a duly registered Will on 26.08.2000. Vide the said registered Will, Lt. General S.N. Mubayi bequeathed the suit property solely and exclusively to his son Mr. Arun Mubayi i.e. defendant No. 2. The existence of the said will was duly brought to the knowledge of the plaintiff by her grandparents. It is also a matter of record that the plaintiff, alongwith defendant No. 3 had been residing in separate premises at 1-A, Pashchimi Marg, Vasant Vihar from 1991-92 till date. It is not in dispute that prior to the filing of the present suit, the plaintiff was not staying in the suit premises.

The factum of the execution of the Will has been intentionally and deliberately concealed by the plaintiff to obtain favourable order from this Court. It is contended that the plaintiff by concealing material facts from this Court has played a fraud and is liable to be prosecuted for contempt of court.

Neither the plaintiff nor the defendant No. 3 possesses any right, title or interest in respect of the suit property in view of the registered Will executed by Lt. General S.N. Mubayi. The Will has been duly signed and attested by two witnesses in the presence of Sub- Registrar of assurances and as such no right, title or interest can be claimed qua the suit property by the plaintiff or defendant No. 3.

It is also alleged in the application filed by the defendant under Order VII Rule 11(b) being IA No. 4109/2008 that the plaintiff has undervalued the suit and has not paid the ad valorem court fee in respect of the suit property. It has clearly been stated in the plaint that there has been an ouster of possession of the plaintiff in respect of the suit property and in view of the clear ouster stated in the plaint, the plaintiff ought to have valued the suit for the reliefs of possession and partition on the basis of the market value of her alleged share in respect of the suit property. As such the suit is alleged to be grossly undervalued and is liable to be dismissed on this ground.

It is denied by the plaintiff in the replication that she has any knowledge of the alleged will executed by her late grandfather. She reiterated that the plaintiff''s grandfather and defendant No. 1 on various occasions repeatedly told and confirmed to the plaintiff that the suit property was her own and that she should always be the owner of her father''s share in the property.

The plaintiff has denied that late Sh. Lt. General S.N. Mubayi vide the alleged Will dated 26.8.2000 bequeathed the suit property exclusively in favour of defendant No. 2 as alleged or otherwise and also denies the factum that the existence of the alleged will was brought to the notice of the plaintiff by her grandfather and her grandmother.

It is stated that defendant No. 1 even after the demise of late Sh. Lt. General S.N. Mubayi confirmed to the plaintiff that he died intestate. According to the plaintiff, the defendant No. 2 is only a part owner of the suit property with the other co-owners and cannot claim any exclusive rights on the suit property.

It is argued that the plaintiff has correctly valued the suit in terms of her 1/6th share in the suit property on which requisite court fees has been paid.

It is submitted on behalf of the plaintiff that even by the defendant''s own admission, the plaintiff has valued her 1/6th share in the suit property which according to the plaintiff was Rs. 30 lac at the time of filing of the instant suit.

It has been held in number of cases decided by this Court that in a suit for partition u/s 7(iv)(b) of the Court Fees Act, 1870, the plaintiff has to pay ad-valorem court fees on the basis of market value of her share if she is not in possession of the suit property. I find no merit in the contention of the defendants on this ground. The ratio of judgments reported in Nisheet Bhalla and Others Vs. Malind Raj Bhalla and Others, , Renu Nagar Vs. Anup Sing Khosla and Another, , Saroj Salkan v. Sanjeev Singh and Ors. 2008 (155) DLT 300, Meenakshi Gupta v. Naveen Mahajan 149 (2008) DLT 746 , Sh. Sudershan Kumar Seth Vs. Sh. Pawan Kumar Seth and Others, relied upon by the defendants has no direct application in the facts of the present case. The plaintiff has paid court fees of Rs. 31,625/- and valued her 1/6th share in the suit property at Rs. 30 lac which is in my view, prima facie adequate and reasonable. As a result, the application of defendant under Order VII Rule 11(b) being IA No. 4110/2008 for rejection of the plaint is dismissed.

So far as the pending interim applications being I.A. Nos. 2746/2008 and 4110/2008 are concerned, it is not in dispute that by an order dated 3rd March, 2008, the defendant Nos. 1 and 2 were restrained from selling, alienating or encumbering in any manner the suit property. The said interim order is still in operation. The admission/denial in the main suit is already completed. As appeared from the pleadings, the plaintiff has disputed the existence of Will in favour of the defendant No. 2. Mr. Rajiv Sawhney, learned senior counsel for the plaintiff has argued that no valid reason has been assigned as to why the testator had chosen the defendant No. 2 alone for taking the entire benefit of the suit property. He submits that there is no explanation as to why the testator has forgotten the plaintiff, defendant No. 3 and his own wife (defendant No. 1) by execution of the said Will. He has also challenged the validity of the two attesting witnesses of the Will in favour of the defendant No. 1.

In support of his contention, learned senior counsel for the plaintiff has referred the judgments reported at Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others, Ram Piari Vs. Bhagwant and others, Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, and Nand Kishor Bajpai (since deceased) represented by Ashok Bajpai and Others Vs. Smt. Munni Devi and Others, .

On the other hand, learned Counsel for the defendant has argued that it is a valid and genuine registered Will and prima facie, its validity cannot be challenged in the present proceedings. There is no irregularity in the process of registering the Will before the Sub- Registrar as both attesting witnesses have put their thumb impression also. Hence, the question of suspicious circumstances does not arise. It is also argued that the Will was executed on 26th August, 2000 and the testator died on 9th September, 2005. Therefore, it shows that the Will of the testator was executed in favour of the defendant No. 2 at its own free will and since the Will is registered, this fact proves its genuineness.

It is to be noted that most of the judgments cited by learned Counsel for the defendant mentioned that the Will has been proved by the party concerned in the proceedings. However, in the present case, it is clear that if the stand of the defendants is correct based on the will, then the plaintiff would have no right or interest in the suit property. On the other hand, if the plaintiff is able to establish her claim and the will is not proved in accordance with law, then the plaintiff will have her share in the suit property. Without going into the merit of the Will, I am of the opinion that corpus of the property should remain intact till the final disposal of the suit as it has become question of fact in the matter, therefore, in my view, this question can be looked into only after the recording of evidence. No doubt the Will is registered but registration of Will is not sufficient to render the Will valid. Irreparable loss would be caused to the plaintiff if the interim order is vacated. Further, the plaintiff admittedly is not in possession of any portion of the property. Therefore, the ex parte ad interim order granted on 3.3.2008 passed in IA No. 2746/2008 under Order XXXIX Rule 1 and 2 CPC shall continue till the disposal of the suit. In view thereof, I.A. No. 2746/2008 is disposed of. Consequently, IA No. 4110/2008 filed by the defendant under Order 39 Rule 4 is also dismissed.

In view of the peculiar facts and circumstances of the case, the trial of the suit is expedited. The matter shall now be listed before court on 13th July, 2009 for framing of issues and thereafter, it will be set up for trial without any further delay.