S.K Mahajan, J.— By this order I propose to dispose of all the applications of the parties for the grant of an injunction as also for vacating the ex parte order of injunction passed on 24th August, 1994 as modified by the order dated 14th September, 1994. Brief facts which have resulted in the filing of the present suits are:
IA.Nos 7287/94 & 8092/94
2. That the property bearing No. C-92, Defence Colony, New Delhi was owned by Lt.Col Sant Singh Sabharwal, who died on 19th July, 1994. Plaintiffs and defendants 1 and 2 are the sons of the deceased whereas defendant No. 3 is his widow. Defendants 4 to 7 are the daughters of the deceased. The bone of contention is the property bearing No. C-92, Defence Colony, New Delhi which, according to defendant No. 1, had been bequeathed in his favour by the deceased by virtue of a Will dated 28th April, 1992. The plaintiffs claiming themselves to be entitled to 1/11th equal share in the property, left behind by the deceased, both moveable and immoveable, have filed this suit for partition and rendition of accounts against defendants 1 to 3. Admittedly, defendants 1 and 3 are residing on the ground floor of the property whereas the first floor of the property is under the tenancy of M/s. Shaw Wallace and Company and the rent for the same is being recovered by defendant No. 1. Along with the suit an application for injunction was also filed and this Court had, by order dated 24th August, 1994, directed the parties to maintain status quo with regard to possession of the property and from selling, transferring, alienating or parting with possession of the property to any other person. On an application of the defendant, this order was modified to the extent that defendant No. 3 was permitted to operate the accounts which were independent in her own name.
3. Besides filing the written statement, defendants 1 and 3 have also filed an application under Order 39 Rule 4 CPC for vacating the ex parte order of injunction passed in the above terms. The stand of the said defendants is that by virtue of the Will dated 28th April, 1992 while the moveable property had been bequeathed to defendant No. 3, it is defendant No. 1 who has been given the property being No. C-92, Defence Colony, New Delhi. It is also the case of the said defendants that the moveable properties of the deceased were held jointly with an endorsement “either or survivor” and after the death of Lt.Col Sant Singh Sabharwal, the other person who was a joint holder of the said moveable property has become entitled to the same to the exclusion of everybody else. It is also stated that during the lifetime of the deceased, defendant No. 1 had been given exclusive right of possession and occupancy with the right to let out the first floor and barsati floor constructed in C-92, Defence Colony, New Delhi, as also to receive the rent therefrom and utilise it for his exclusive use. This, according to the defendants 1 and 3, had been done because of defendant No. 1 having advanced loan to the deceased for construction of the first and second floor. It is, therefore, alleged that defendant No. 1 has the exclusive right, title and interest over and on the rent received from the tenants of the first and second floor of the property.
4. Defendant No. 2 has filed a separate written statement wherein he has denied the locus standi of the plaintiffs to file present suit, as no right had accrued to them by virtue of the last Will of the deceased. Defendant No. 2 has admitted the right of defendant No. 1 in the property. Defendants 4 to 7 on the other hand have filed written statement admitting the claim of the plaintiffs.
5. Mr. Rohtagi, Sr. Advocate appearing on behalf of the plaintiff has contended that unless the Will is probated, defendants 1 and 3 did not get any right in the property and consequently the plaintiffs are entitled to restrain the defendant No. 1 from at least to recover rent from the tenants of the property. Reliance for this purpose has been placed by him upon the Judgment reported as Usha Subramaniam and Another v. Cdr. Daljit Kumar Bhandari and Others, 54 (1994) DLT 628.
6. In Usha Subramaniam and Another v. Cdr. Daljit Kumar Bhandari and Others, (Supra), the facts were that after the death of one G.C Bhandari who was the owner of the property, his widow filed a suit for declaration that she was the owner of the suit property. No objections were filed by the other LRs of the deceased and the Court, therefore, decreed the suit in favour of Smt. Shakuntala Bhandari and property was mutated in her name by the Land and Development Officer. Property was thereafter let to a tenant. Defendant No. 5, acting as attorney of Smt. Shakuntala Bhandari, was allegedly managing the suit property. After the death of Smt. Shakuntala Bhandari, one of her daughters filed a suit for partition and prayed for an interim order of appointment of a receiver of the property. She also had challenged the decree passed in S.68/59 by which the property was mutated in the name of Shakuntala Bhandari on the ground that the same had been obtained by fraud and was a nullity. It was contended by her that Mr. G.L Bhandari had died intestate and, therefore, she was entitled to a share in the suit property. In defence, the plea taken by the defendants in that suit was that as Shakuntala Bhandari was the owner of the property, she had executed a Will on 7th August, 1974 and in terms of the Will, the plaintiff did not have any right, title or interest in the estate of late Shakuntala Bhandari. On these allegations, the Court observed that admittedly the probate had not been obtained by the defendants so far with regard to the Will of Shakuntala Bhandari and “in view of Section 213 of the Succession Act and the law laid down by the Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose and Others, AIR 1962 SC 1471, no right as an executor can be established in any Court unless probate or letters of administration had been obtained of the Will under which the right is claimed. The right of defendant No. 1 who is the executor in respect of the Will of late Smt. Shakuntala Bhandari, therefore, cannot be accepted as exclusive right to preserve the suit property.”
7. It appears that the attention of the Court was not invited to the fact that Section 213 of the Indian Succession Act has no applicability in Delhi. In Behari Lal Ram Charon v. Karam Chand Sahni and Others. AIR 1968 Punjab 108, Division Bench at Delhi of the Punjab High Court has clearly laid down that it was not necessary to obtain probate of à Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof. None of the two judgments referred by Mr. Rohtagi, will apply to the facts of the present case.
8. It is next contended by Mr. Rohtagi that it will be highly unnatural that the deceased could have disinherited his other heirs from the property and the Will clearly appears to have been executed in suspicious circumstances. It is, therefore, contended that it is for the defendants to place satisfactory material on record to remove the suspicious circumstances under which the Will has been executed. Reliance for this has been placed by him upon the judgments reported as Kalyan Singh v. Chhoti and Others, AIR 1990 SC 396 and Susama Bala Devi and Others v. Anant Nath Tarafdar and Others, AIR 1976 Calcutta 377.
9. The plaintiff, therefore, submits that till such time the suit is decided, defendants 1 an 3 should neither sell, transfer, alienate or part with possession of the property to any other person nor should they collect or claim any rent from the tenant in the premises.
10. The defendant No. 1 has not only placed on record a copy of the Will alleged to have been executed by the deceased but the copy of the agreement dated 26th February, 1982 between the deceased and defendant No. 1 has also been placed on record. The said agreement acknowledges that the defendant No. 1 had given a loan of Rs. 1,15,000/- for construction of the first floor and barsati floor of the property and in consideration of the said loan having been given, the deceased had given the right to occupy the first floor and barsati floor to defendant No. 1. In case of failure of the deceased to repay the loan, defendant No. 1 had been given the right to permanently occupy the said first and barsati floor and also to appropriate the rent which may be received by him from the tenants of the first and barsati floor to himself. Defendant No. 1 was also made liable to pay all dues, demands including house rent and municipal taxes in respect of the first and the barsati floor. Though, as I have held earlier, probate of the Will is not required to be obtained in Delhi and the Will can be set up even in collateral proceedings, however, at this stage I am not in a position to give any finding about the genuineness of the Will and it will be only during the course of proceedings and after the evidence has been led that a clear finding can be given whether the Will executed by the deceased was his last Will and testament. However, the fact remains that while ground floor is in possession of defendant No. 1, he is also recovering rent from the tenants in the property. It is not that defendant No. 1 has started recovering rent from the tenants after the death of his father but even during his lifetime he was recovering the rent and he had been given such power by virtue of agreement. In my opinion, it will not be proper to deprive the defendant No. 1 from recovering rent from the tenants which right is being enjoyed by him for a long time without any objection from any person till the present suit was filed.
11. On the basis of material on record, I am prima facie of the opinion that defendant No. 1 has not only the right to recover rent from the tenants of the 1st floor and barsati floor but he is also entitled to let the same to tenants. In case, however, defendant No. 1 chooses not to live on the ground floor of the property, he will not be entitled to let out the same without permission of the Court. I am, therefore, not inclined to disturb the status quo as it was existing on the date of filing of the suit. In my opinion, no case whatsoever has been made out by the plaintiff to restrain the defendants from recovering the rent from the tenants. However, with a view to protect the interest of the plaintiff, in case of their ultimate success, it will be proper that defendant No. 1 maintains proper account of the rent being received by him and the expenses which may be incurred by him in respect of the first and barsati floor. It will also be proper, in my opinion, that the said defendant does not sell or alienate the property to any other person till the decision of the suit.
12. For the foregoing, I modify the interim orders dated 24th August, 1994 and 14th September, 1994 to the extent that defendant No. 1 is restrained from selling or transferring the property to any other person till the disposal of the suit. Defendant No. 1 is also directed to maintain proper accounts of the rent received and the expenses incurred in respect of the first and barsati floor of the property. Defendants 1 and 3 shall also not part with possession of the ground floor of the property to any other person without permission of the Court.
13. With these observations, both the applications stands disposed of.
IA.No 8445/95 in Suit No. 2114/94
14. By this application, the plaintiff (who was defendant No. 1 in suit No. 1816/94) prays for grant of an injunction for restraining the defendants from in any manner interfering with the rights of the plaintiff in the property being No. C-92, Defence Colony, New Delhi. As I have already held while disposing of the applications in suit No. 1816/94, prima facie, the plaintiff is entitled to not only recover the rent from the tenants of first floor and barsati floor of the aforesaid property but he is also entitled to continue to be in possession of the ground floor of the premises which is in his possession since before the death of Sant Singh Sabharwal.
15. For the reasons given while disposing of the application in suit No. 1816/94, I am prima facie of the opinion that defendants are not entitled to interfere with the rights of the plaintiff in the property being No. C-92, Defence Colony, New Delhi. I, therefore, allow this application and restrain the defendants from interfering with either the possession of the plaintiffs on the ground floor of the property being No. C-92, Defence Colony, New Delhi or from interfering with the tenants at the first and barsati floor of the aforesaid property.
IA.No 7401/95
16. The defendants without filing the written statement in this suit have filed this application under section 10 of cpc for stay of the suit on the ground that the matter in controversy in this suit is similar to the matter in controversy in the previously instituted suit being No. 1816/94, it is, therefore, contended by learned counsel for the defendants that till disposal of suit No. 1816/94, proceedings in this suit be stayed. It is no doubt true that matter in controversy in this suit as well as in suit No. 1816/94 is similar, however, the relief claimed by the plaintiff in this suit may not be available to him in the earlier suit. In my opinion, in the interest of justice it will be proper that both the suits are consolidated and tried together instead of staying the proceedings in the present suit. No useful purpose will be served by staying the proceedings as there will not be any difficulty in trying both the suits together and by leading the evidence in one suit. Evidence in both the suits will be common. I, therefore, in the interest of justice, instead of staying this suit, consolidate this suit with suit No. 1816/94 and direct the proceedings to be taken in suit No. 1816/94.
17. With these observations, both the IAs stands disposed of.
18. Any observation made in this order shall not in any manner affect the merits of the case.