SANGEETA MULWANI & ANR vs KAVITA KESWANI

2024-05-13 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:26th February, 2024
Pronounced on: 13th May, 2024

+ CS (OS) 220/2018
1. MRS. SANGEETA MULWANI
W/o Sh. Mahesh Mulwani
D/o Late Mohan Chuhermal Mirchandani
R/o 2391, Erin Centre, Blvd. Mississauga,
Ontario, Canada, Postal Code-l5M 5B2
To be represented through Plaintiff No.2

2. MRS. JYOTI PARDASANI
W/o Sh. Nanik Pardasani
D/o Late Mohan Chuhermal Mirchandani
R/o G-45, Lajpat Nagar-III, New Delhi-110024.
….. Plaintiffs
Through: Mr. F.K. Jha and Mr. Gaurav Jha, Adovcates.
versus

MRS. KAVITA KESWANI
W/o Sh. Rajender Keswani
R/o B-6/5, Ground Floor, Opposite NCC Office,
Safdarjung Enclave, New Delhi-110029.
…..Defendant
Through: D. Moitra, Advocate.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A.3989/2023 (under Section 9 read with Section 151 CPC on behalf of defendant for Dismissal of the Suit)
1. An application under Section 9 CPC has been filed on behalf of the defendant, for dismissal of the suit as being without jurisdiction and not maintainable.
2. It is submitted that the plaintiff by way of the present suit has sought Declaration that Will Dated 19.11.2005 is a genuine, legal and enforceable document which can only be adjudicated under Indian Succession Act, 1925. The relief in respect of Declaration in regard to the genuineness of the Will is barred under Section 31 and 34 of the Specific Relief Act, 1963. Furthermore, the Gift Deeds and other documents sought to be challenged are of 2005 to 2007 which are barred by limitation. Hence, the suit is liable to be dismissed.
3. The plaintiff by way of its Reply, has asserted that a subsequent Will dated 10.12.2016 has been filed by the defendant which is shrouded with suspicious circumstances and has not been filed along with the Written Statement. It is denied that the Civil Courts do not have jurisdiction in regard to the validity of the Will. The Division Bench of this Court has framed an issue qua the validity of Will in case titled as Om Prakash Yadav vs. Kanta Yadav reported in 2017 SCC OnLine Del 6961. This issue has already been decided by Order dated 20.02.2019 and is, therefore, res judicata. Therefore, this application is without merit and is liable to be dismissed. The plaintiff has relied on the following judgements:
(i) Kanta Yadav vs. Om Prakash Yadav (2020) 14 SCC 102
(ii) Om Prakash Yadav vs. Kanta Yadav 2017 SCC OnLine Del 6961
(iii) Chetan Dayal vs. Aruna Malhotra 2009 SCC OnLine Del 4191
(iv) Rajan Suri vs. The State & Ors. 2005 SCC OnLine Del 1290
(v) Kanwarjit Singh Dhillon vs. Hardayal Singh Dhillon & Ors. (2007) 11 SCC 357
(vi) Mrs. Vinifred Nora Theophilus vs. Mrs. Lila Dean & Ors. AIR 2002 Del 6
(vii) Harinder Singh Kochar vs. State & Ors. 2010 SCC OnLIne Del 2809
(viii) Jerbanoo Rustomji Garda vs. Pootlamai Manecksha Mehta AIR 1955 Bom 447
(ix) Amrita vs. Rakesh Kumar 2016 SCC OnLine Pat 824
(x) Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. (2010) 12 SCC 112
4. Submissions heard.
5. The Preliminary objection taken in regard to Declaration of Will dated 19.01.2005 as a valid, legal and genuine, has been rightly asserted by the defendant to be barred under law. The Indian Succession Act, 1925 mandates that the genuineness of the Will is to be determined in accordance with its provisions. The Probate of the Will may be obtained under Section 272 of the Indian Succession Act by the Executor, while the Letter of Administration may be taken by the legal heirs/ beneficiaries in respect of any Will under Section 278 of the Indian Succession Act. The Civil Court do not have any jurisdiction to declare a Will as genuine. The limited jurisdiction which the Civil Courts may exercise is in cases where as a defence by a party opposing the Will and it is claimed that this is not the case here as it is the plaintiff who is the beneficiary who is seeking Declaration of Will as genuine, legal and enforceable.
6. All the judgments that have been relied upon by the plaintiff pertain to questioning the genuineness of a Will and for declaring it as invalid, for which there is no provision under the Indian Succession Act. It deals with only giving Probate or Letter of Administration in respect of Wills which are found to be genuine. In fact, in the case of Kanwarjit Singh Dhillon vs. Hardayal Singh Dhillon & Ors. (2007) 11 SCC 357, it has been held by the Apex Court that it is only the Probate Court which can examine the genuineness of the Will and cannot confer any titular right on the parties.
7. The relief claimed to declare the Will as valid is barred by law and is not maintainable.
8. The defendant has also asserted that the Gift Deeds and other registered documents are of 2005 to 2007 and the relief so claimed in respect of those documents, is barred by limitation. However, the plaintiff has specifically averred that he came to know about these documents only in 2017. It is a mixed question of fact and law whether the plaintiff was aware about these documents prior to 2017. This Court in its earlier Order dated 20.02.2019 has already rejected the application of the defendant under Section VII Rule 11 CPC on the same ground.
9. The application of the defendant is partly allowed and the relief claimed in respect of the Will being genuine, is held to be barred by law and is not maintainable.
CS (OS) 220/2018
10. List on 28.05.2024 before the learned Joint Registrar.

(NEENA BANSAL KRISHNA)
JUDGE

MAY 13, 2024/va

CS (OS) 220/2018 Page 4 of 4