CM(M)/1200/2008 of H.K.BANSAL (DECEASED) THR. V.K.BANSAL Vs AJAY KUMAR BANSAL & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ CM (M) 1200/2008

Date of Decision: May 20, 2010

H.K.BANSAL (DECEASED) THROUGH V.K. BANSAL

..... Petitioner

Through: Mr. Vikram Kapoor Adv. with Mr. Ashish Batra, Adv. versus

DR. AJAY KUMAR BANSAL & ORS. ..... Respondents Through: Mr. Jinendra Jain, Adv. with Mr. Vikrant Sharma, Adv.

CORAM: HON’BLE MS. JUSTICE ARUNA SURESH

(1) Whether reporters of local paper may be allowed to see the judgment? allowed to see the judgment?

(2) To be referred to the reporter or not?

Yes

(3) Whether the judgment should be reported in the Digest ?

Yes

J U M N T

ARUNA SURESH, J. (Oral)

CM (M) 1200/2008 and CM APPL. Nos.14934-35/2008

1.Plaintiff, H.K. Bansal had filed suit against the Respondents. During pendency of the suit, he expired leaving behind two sons namely, Vijay Bansal and Ajay Bansal, his

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widow Smt. Saraswati Bansal and three daughters, Smt. Geeta Mittal, Smt. Shashi Garg and Smt. Saroj Kushal. After his death, Vijay Bansal filed an application under Order 22 Rule 3 CPC for bringing on record his name as LR of deceased H.K. Bansal on the basis of registered Will purported to have been executed by the deceased during his lifetime on 24.11.2003.

2.Respondent Ajay Bansal filed an application under Section 151 CPC seeking dismissal of the suit claiming himself to be the absolute owner of the suit property in view of the family settlement and also that since Smt. Sarawati Bansal has been given right to live in the property till her death, Vijay Bansal had no right to continue with the suit.

3.Both these applications were considered by the Trial Court vide common order dated 09.07.2008 he kept in abeyance till the decision of the Probate Petition filed by Vijay Bansal.

4.Aggrieved by the said order, Vijay Bansal filed this petition in the name of deceased H.K. Bansal through himself. the name of deceased H.K. Bansal through himself.

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5.Mr. Vikram Kapoor counsel for the petitioner has submitted that the order of the Trial Court is erroneous in law as keeping in abeyance the decision on the applications would amount to stay on the property in perpetuity. Whereas Will dated 24.11.2003 reveals that disputed property devolved upon Vijay Kumar Bansal only to the exclusion of all other heirs. He has referred to ‘Kale & Ors. vs. Deputy Director of Consolidation, AIR 1976 SC 807’.that the order of the Trial Court is erroneous in law as keeping in abeyance the decision on the applications would amount to stay on the property in perpetuity. Whereas Will dated 24.11.2003 reveals that disputed property devolved upon Vijay Kumar Bansal only to the exclusion of all other heirs. He has referred to ‘Kale & Ors. vs. Deputy Director of Consolidation, AIR 1976 SC 807’.

6.H.K. Bansal had filed suit seeking possession of the suit property against his son Ajay Kumar Bansal and Smt. Manju Bansal. He had also claimed Rs.8,00,000/- as damages/mesne profits. Ajay Kumar Bansal disputed the right of H.K. Bansal in the suit property alleging that H.K. Bansal had no right, title or interest in the suit property and therefore he could not have executed valid Will in favour of Vijay Kumar Bansal. property against his son Ajay Kumar Bansal and Smt. Manju Bansal. He had also claimed Rs.8,00,000/- as damages/mesne profits. Ajay Kumar Bansal disputed the right of H.K. Bansal in the suit property alleging that H.K. Bansal had no right, title or interest in the suit property and therefore he could not have executed valid Will in favour of Vijay Kumar Bansal.

7.Since both the parties claim their right in the suit property, one by virtue of Will and other by virtue of family settlement, the Trial Court was of the view that unless the Probate Petition was decided it was not proper for him either one by virtue of Will and other by virtue of family settlement, the Trial Court was of the view that unless the Probate Petition was decided it was not proper for him either

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to allow the application of Vijay Kumar Bansal treating him as sole legal heir of the deceased or dismiss the suit accepting the plea of the Respondent that H.K. Bansal was not the owner of the property by virtue of family settlement and all other legal heirs of the deceased were not being arrayed either as plaintiff or as defendants to the suit.

Since the title of the property is disputed and H.K. Bansal left behind his widow and three daughters, besides two litigating sons, it would have been appropriate if Vijay Kumar Bansal had filed an application under Order 22 Rule 4 CPC for bringing on record all the legal heirs of deceased H.K. Bansal claiming himself to be the owner by virtue of Will. However, that was not so done. Besides, it is not disputed that Probate Petition is pending consideration pertaining to the Will in question and the said petition is being contested by the Respondents.

Under these circumstances, once Vijay Kumar Bansal had already approached the Court for grant of Probate, the said court has the exclusive jurisdiction to decide the genuineness

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of the Will and the Civil Court on its original side, or even on consent of parties has no jurisdiction to adjudicate upon proof or validity of the Will propounded by the deceased. The decision in the Probate Petition will have far reaching effect on the decision of the instant suit.

10.Under these circumstances, Kale & Ors.’s case (supra) is not much of an assistance to the Petitioner. much of an assistance to the Petitioner.

11.Parties to the suit are real brothers claiming right and title in the suit property by virtue of two different forums one Will and other family settlement. Therefore, to my mind, to avoid any multiplicity of proceedings and further bitterness inter se the parties, the Trial court adopt right approach in keeping the decision on the applications in abeyance to avoid conflicting opinion on the genuineness of the Will.

12.Hence, I find no merits in the present petition, the same is accordingly dismissed. accordingly dismissed.

MAY 20, 2010 vk

ARUNA SURESH, J.

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