Pawan Kumar Chadha vs Anil Kumar Chadha and Another

Manmohan Singh, J.—By this order I shall dispose of I.A No. 4399/2009 filed by the plaintiff u/s 24 of the CPC for withdrawal of probate petition bearing No. 121/2008, which is pending in the court of learned Additional District Judge, Tis Hazari Courts, Delhi.

The plaintiff filed the present suit for partition, declaration, permanent injunction and rendition of accounts etc. before this Court on 16.07.2008. The said suit came up for hearing on 18.07.2008 when the summons in the main suit and notice in the interim application were issued to the defendants for the next date of hearing. The court also granted interim order of status quo with regard to the title and possession of the suit premises.

The brief facts of the matter are that the plaintiff and the defendant No. 1 are the two sons of late Shri Kuldip Chadha, who was the son of late Shri Amarnath. Shri Amarnath who was the grand father of the plaintiff and defendant No. 1, set up a company under the name and style of M/s. Amarnath & Sons along with his brother in the year 1917. After partition of the country in 1947, the family of Shri Amarnath moved to Delhi and he set up a business under the same name and style of M/s. Amarnath & Sons. The business was being operated from Sadar Bazar, Delhi. Shri Amarnath expired on 05.11.1961 leaving behind two sons as mentioned in para-1 of the plaint. Shri Kuldip Chadha, the father of the plaintiff and defendant No. 1 succeeded to M/s. Amarnath & Sons and applied for allotment of an industrial plot with the DDA on October 12, 1966 as a result of which he was allotted a plot bearing No. 10/4, Block D, Okhla Industrial Area, Phase-II, New Delhi. The possession of the plot was given to M/s. Amarnath & Sons on 02.03.1976 by the DDA. In the year 1983, Shri Kuldip Chadha purchased a residential plot bearing No. B-6/20, Safdarjung Enclave, New Delhi out of the funds of M/s. Amarnath & Sons as alleged by the plaintiff.

It is not in dispute that right from the beginning the family of the plaintiff as well as the first defendant were staying at the aforementioned residential property, which is a three storeyed building. The present suit has been filed by the plaintiff for partition and separation of property No. 10/4, Block D, Okhla Industrial Area, Phase- II, New Delhi as well as property No. B-6/20, Safdarjung Enclave, New Delhi. The defendant No. 2 is the mother of the plaintiff and defendant No. 1.

After grant of the interim order on 18.07.2008, the stay order was sent to the defendants by courier on 19.07.2008. On 22.07.2008 the defendants filed a probate petition before the court of learned Additional District Judge, Tis Hazari Courts, Delhi. Learned Counsel for the plaintiff submits that in the said probate petition, the defendants did not give the correct address of the plaintiff and therefore, it did not come to the plaintiffs knowledge at an earlier stage. On the other hand, learned Counsel for the defendants states that the plaintiff has been changing his address from time to time and therefore, there is no fault on the part of the defendants in giving the incorrect address of the plaintiff. The present suit is at an initial stage and the Issues are yet to be framed. In the probate petition also, the evidence of the parties is yet to be recorded.

The question involved in the present transfer application, in the present circumstances is, whether the probate petition which was filed subsequent to the present suit is to be transferred to this Court or not. A similar situation arose in the case of Virender Gupta Vs. Nitender Gupta and Others, wherein a suit for partition was filed by one party and the other party had claimed ownership of the suit property on the basis of Will for which the other party had filed probate proceedings. The court ordered that the suit and probate proceedings be tried together on the ground that the issue in one suit was all embracing and fully covered the entire disputes between the parties and the applications were accordingly allowed. A similar situation also arose in the case of Mrs. Rajni Mehra and others Vs. Shri Pran Nath Mehra and others and similar orders on the same lines were passed by this Court.

In the case of Ravi Khanna v. Pankaj Khanna and Ors. 152 (2008) DLT 484 it was held that mere pendency of a suit for partition puts no bar for grant of probate or letter of administration under the Provisions of the Succession Act. It is settled law that probate Court has jurisdiction to determine about the genuineness of the Will and whether the petitioner who applied for the probate was entitled to grant of probate of the Will or not.

In the case of Nirmala Devi Vs. Arun Kumar Gupta and Others, , both the probate proceedings and the civil suit were clubbed and heard together where the civil suit was filed prior to filing of probate proceedings. Similar position was reiterated in the case of Balbir Singh Wasu v. Lakhbir Singh and Ors. (2005) 12 SCC 503 where the suit was pending since 1987 and probate was filed in 1997, suit was transferred and clubbed with probate case pending in the Court of Sub-Judge.

Learned Counsel for the defendants has referred to various paragraphs of the reply and argued that the present application is pre- mature and therefore the same is not maintainable. He has also argued that issues in both the matters are different, therefore, this application is liable to be rejected.

In view of the judgments referred to above, the present dispute is also on similar facts and it is not in dispute that the parties in both the cases are the same and the main dispute is with regard to the partition of the property in question. However, the only difference is that in the probate petition the dispute is only pertaining to one property i.e. property No. D-10/4, Okhla Industrial Area, Phase-II, New Delhi.

Considering the overall facts and circumstances of the matter, the decision in Virender Gupta v. Nitender Gupta [supra] is binding upon this Court and the present application is therefore allowed. Even otherwise, since both the matters are at the initial stage, therefore, no prejudice would be caused to the defendants if the said probate petition is transferred to this Court and tried along with the present suit and in fact, it will curtail the time of the court, costs of the parties as well as avoid multiplicity of proceedings. Therefore, it is directed that the file of the probate petition bearing No. 121/2006 titled as Smt. Chand Chadda v. State and Ors. pending before the court of learned Additional District Judge, Tis Hazari Courts, Delhi [earlier pending before the court Smt. Bimla Makin, Additional District Judge, Tis Hazari Courts, Delhi] be transferred to this Court and the same be tried along with the present suit bearing CS[OS] No. 1339/2009.

The application is accordingly disposed of. CS[OS] No. 1339/2009.

List the matter before the Court on 7th September, 2009 for further proceedings.