SARABJIT SINGH  Vs SURINDER MOHAN TARUN -Judgment by Delhi High Court

$~44

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 15th January, 2024
+ CS(OS) 1418/2010 & I.As. 3210/2022, 17178/2023, 21704/2023, 22504/2023, 22505/2023, 22506/2023, 25820/2023, O.A. 84/2023

SARABJIT SINGH ….. Plaintiff
Through: Mr. B.B. Gupta, Sr. Advocate with Mr. Pradeep Bhardwaj & Mr. Chirag Rathi, Advocates.
versus
SURINDER MOHAN TARUN ….. Defendant
Through: Mr. Chandra Shekar, Mr. Udit Arora & Mr. Prashant Shekhar, Advocates for applicant in I.A. 6723/2022.
Mr. Rohit Khanna & Mr. Sudhir Batra, Advocates for applicant in I.A. 21703/2023.
Mr. Upendra Pratap Singh, Advocate in I.A. 19418/2022.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 6723/2022 (u/O XXII Rule 4 r/w Order I Rule 10 & Section 151 of CPC, 1908 by applicant/Ved Vyas, Special Power of Attorney Holder of surviving legal heirs of the deceased defendant for bringing the applicants as the legal heirs of the deceased defendant on record)

1. An application has been filed by the applicants to be substituted as legal heirs of the deceased defendant Surendra Mohan Tarun, claiming themselves to be his Class-II legal heirs.
2. It is submitted in the application that the defendant was a bachelor and he died in Safdarjung Hospital on 16.11.2021. The applicants are all the cousin brothers and sister of the deceased. They had performed the last rites of the deceased and are entitled to be impleaded as the legal heirs. The application is supported with a family tree which shows that Sh. Basant, father of deceased defendant Surendera Mohan had three brothers namely Shri Kotu Ram Gupta who died on 01.01.1969, Shri Surinder Dass who died before partition and Late Shri Teerth Ram who died on 07.06.1967. The applicants are the son and daughters of Late Shri Teerth Ram and Late Shri Kotu Ram Gupta.
3. The plaintiffs have contested the application who have submitted that the applicants have not placed on record any documentary evidence or material in support of their assertions. They are not entitled to be impleaded as the legal heirs of the deceased defendant.
4. Ms. K. Jeevan Rita Murthy, has also filed an application for substitution and has also filed a detailed reply denying the right of the applicants to be impleaded as the legal heirs of the deceased defendant.
5. Submissions heard.
6. It is an admitted fact that Surinder Mohan Tarun, defendant had died on 16.11.2021 as a bachelor and has no Class-I legal heirs surviving him. He was the only son of his father Late Shri Basant who had died before the partition. Therefore, it is evident that there is no Class-I legal heir of defendant Surinder Mohan Tarun.
7. The applicants as per the Family Tree chart attached along with the application, are the legal heirs of the two brothers (Shri Teerth Ram and Shri Kotu Ram Gupta) of the father of deceased defendant late Shri Basant. They are, therefore, the Class-II heirs in Category-VII, there being no other legal heir in the categories from I to VI of Class-II legal heirs.
8. They are, therefore, impleaded as the defendants being Class-II legal heirs of deceased defendant Surinder Mohan Tarun.
9. The application if accordingly allowed. Amended memo of parties be filed by the plaintiff within fifteen days.

I.A. 10026/2022 (u/O XXII Rules 4 & 5 of CPC, 1908 by applicant/plaintiff for bringing on record the legal heirs of deceased defendant)
10. An application has been filed on behalf of the plaintiff for bringing on record the LRs of deceased defendant.
11. It is submitted in the application that the application had been moved on behalf of the applicants/ legal representatives of the defendant to be substituted as the Class-II legal heirs. The plaintiff asserted that he has no knowledge about the legal heirs/legal representatives of the deceased defendant. He also is not aware if the application in I.A.6723/2022 are genuine or not. A prayer is, therefore, made to direct the Subordinate Court to conduct any inquiry to ascertain the legal representatives of the deceased defendant.
12. Submissions heard.
13. There is no merit in the application of the plaintiff for conducting an inquiry to ascertain the legal representatives of deceased defendant, since the application I.A.6723/2022 has been filed by the Class-II legal heirs of the deceased defendant.
14. There is no merit in the application which is hereby dismissed.
I.A. 19418/2022 (u/O XXII Rule 4 r/w Order I Rule 10 & Section 151 of CPC, 1908 by applicant/K. Jeevan Rita Murthy for his substitution as legal representative of deceased defendant and bring him on record)
I.A. 21703/2023 (u/O I Rule 10 r/w Section 151 of CPC, 1908 by applicant/Shambhu seeking his impleadment in the array of defendants as a necessary and proper party to present Suit)
15. Application I.A.19418/2022 has been filed on behalf of Ms. K. Jeevan Rita Murthy who has submitted in the application that she has come to know about the pendency of the present case on 21.10.2022 while she was getting the house painted and the police visited the suit premises on the complaint of one Mr. Udit Arora the Counsel who was representing one Shri Ved Vyas (who has claimed himself to be the Class-II legal heir of the deceased defendant). The applicant has asserted that she was living separately from her husband since 2017 when she met the deceased defendant through common friends. They became close and she started residing with him in the suit premises and provided him with the companionship and also took care of him in his old age till his demise on 16.11.2021.
16. The applicant has asserted that the defendant who was not keeping well before his death, had informed her that he had handed over some documents of his property to Mr. Manish Kundra, his old associate. After the demise of the defendant, the applicant contacted Mr. Manish Kundra who informed her that deceased had issued a Will in favour of the applicant in respect of his entire properties. He further informed that the deceased had executed another Will before this Will, bequeathing all his properties in favour of the applicant and had asked his Advocate Mr. Suraj Saxena to get it registered. However, he neither got it registered nor returned the same to the deceased defendant and consequently defendant had executed another Will which was drawn by Mr. Manish Kundra on the instructions of the deceased defendant. The true copy of the last Will of the deceased along with the translated copy has been annexed with the application.
17. The applicant then inquired from Advocate Suraj Saxena about the Will to which he stated that the Will has been executed in favour of the applicant and that he would take appropriate legal steps for which he got some legal papers signed. However, he avoided to provide any information regarding the same to the applicant and after few months started threatening her to vacate the property. It is submitted that Mr. Suraj Saxena in connivance with Mr. Udit Arora, Mr. Ved Vyas, plaintiff and others are trying to forcefully evict the applicant from the suit property. It is submitted that by virtue of the Will, the suit property has been bequeathed to the applicant. She is, therefore, the owner and deserves to be impleaded as the legal representative of the deceased defendant.
18. Similarly, another application I.A.21703/2023 under Order I Rule 10 read with Section 151 CPC has been filed on behalf of Shri Shambhu S/o Jagpal.
19. The applicant Shri Shambhu S/o Jagpal has submitted that he is the nephew of the deceased defendant, who had executed a Will dated 03.07.1998 in his favour which has been registered on 08.08.2022 after the demise of the defendant. Being the nephew, the possession of the suit property was handed over to the applicant who had submitted an application for the mutation of the property in his name. He had also applied to get the property freehold by depositing a sum of Rs.13,90,933/-. He has also been paying the House Tax of the property to MCD. The deceased Surinder Mohan Tarun had also got published a Public Notice in the newspaper �Veer Arjun� on 17.12.2011 wherein the Will of Shri Sarabjit Singh was got cancelled. The defendant had never received any consideration amount from any person including the plaintiff and the documents relied upon by the plaintiff are forged and fabricated. Defendant was the original allottee and in possession of the suit property. Moreover, Ms. K. Jeevan Rita Murthy had merely been allowed by the deceased to live with him and to take care of his day to day needs. It is submitted that the applicant by virtue of the Will, had inherited the ownership in the property and is entitled to be substituted in place of deceased defendant.
20. Submissions heard in both the applications.
21. The deceased plaintiff, who is now represented by his LRs (as per Order dated 03.11.2022), had filed a suit for Possession against the defendant Surinder Mohan Tarun on the averments that defendant was the erstwhile owner from whom the property had been purchased by the deceased plaintiff vide Agreement to Sell, GPA, Possession letter, Affidavit, Receipt and a Will dated 15.03.1982 and had become owner of the suit property. He was also handed over the original perpetual Sub-Lease dated 23.01.1971 along with the physical possession of the suit premises.
22. In around 2008, when the plaintiff thought of selling the suit property, he decided to get it converted into freehold from DDA as per the prevailing policy and also to get the same mutated in his name. The person whom he had approached for getting the Conveyance Deed executed in his favour, had even given him the Conveyance Deed dated 30.09.2008.
23. However, the plaintiff subsequently came to know that no such Conveyance Deed had been executed by the office of DDA or stamped with Sub-Registrar, INA. He was duped by the aforesaid persons namely, Preetpal Singh, etc for which separate action has been taken by the plaintiff. An FIR No.97/2010 dated 24.06.2010 has been registered at P.S. Sadar, District Roop Nagar, Punjab and the investigations are ongoing in the said FIR. The plaintiff had asserted that he continued to be in possession and occupation of the suit property.
24. He had further claimed in the plaint that taking advantage of the plaintiff being a resident of Punjab, the defendant forcibly took back the possession of the suit premises. In June, 2009 he was informed that the defendant has been visiting the suit property even though he had no right, title or interest and had handed over the physical possession to the plaintiff in March, 1982. Subsequently, he came to know that defendant has encroached into the suit property and taken the possession back. Hence, he filed the present suit seeking recovery of possession from the defendant claiming to have purchased the suit property from the defendant.
25. From the averments made in the plaint, it is evident that the claim of the plaintiff is for recovery of possession claiming himself to be the owner of the suit property by virtue of documents including a Will dated 15.03.1982. The suit has been filed in the year 2010. The applicants K. Jeevan Rita Murthy and Shri Shambhu are claiming to have become the owners of the property on the basis of separate Wills executed in their favour by deceased defendant.
26. It was observed in Kasturi vs Iyyamperumal & Ors. (2005) 6 SCC 733 that in a suit for deciding the question of who is a necessary party, the question is to be decided keeping in mind the scope of the suit. In a suit for specific performance, the guiding principle is that the presence of such party is necessary to adjudicate the controversy involved in the suit for specific performance of the Contract for sale. If on the addition of the person, the scope of the suit for specific performance would be enlarged and would be converted to a suit for title, presence of such parties cannot be said to be necessary at all.
27. Sub Rule 2 of Order�I Rule 10�CPC�uses the expression �all the questions involved in the suit�, from which it is abundantly clear that the legislature intended that the controversies raised between the parties to the litigation alone must be gone into, that is to say the controversies with regard to the right which is set up and the relief claimed on one side and denied on the other side and not the controversies which may arise between the parties to the suit and the third party. This would only lead to complicated litigation by going into the trial to decide issues which are totally outside the scope of the suit
28. The applicants herein are claiming an independent title having derived the same from deceased defendant by virtue of the alleged Wills. This is a simplicitor suit for possession and its nature cannot be changed into one of determination of the title inter se the defendant and his legal heirs. The applicants Ms. K. Jeevan Rita Murthy and Shri Shambhu are at liberty to pursue their independent remedy by way of a separate litigation.
29. The applicants are not a necessary and proper party to the present suit and their applications are, therefore, dismissed.
CS(OS) 1418/2010 & IAs 22504-06/2023, 25820/2023, 21704/2023, 17178/2023, 3210/2022 with OA 84/2023

List the Suit and applications before this Court on 22.04.2024

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 15, 2024/va

CS(OS) 1418/2010 Page 8 of 8