SANJAY GUPTA Vs. VED KANTI GUPTA

JUDGEMENT

(1.) This suit has been filed by the plaintiffs against the defendants for grant of a declaration that they are the absolute and exclusive owners in equal shares of property on Plot No. M-281, (measuring about 400 sq.yards) Greater Kailash Part-11, New Delhi; properties bearing Nos-4110/4111 and 4041 to 4043, Ajmeri Gate, Delhi. Plaintiffs are the sons of late Shri Kishan Chand Gupta while defendants I and 2 are the widow and daughter respectively of late Shri Kishan Chand Gupta. He died on 14th February,1994 leaving behind a duly executed will dated 26th October,1993. One of its attesting witness is defendant No. 1 herself. By means of the aforesaid will, Shri Kishan Chand Gupta bequeathed all his aforesaid three immovable properties, fully and absolutely, in favour of both the plaintiffs in equal shares. He had also left behind some debts and liabilities for being cleared and paid off by the plaintiffs. It is further averred that plaintiffs requested the defendants to admit and give in writing that all the aforesaid three immovable properties were exclusively and absolutely owned by the plaintiffs in equal shares and that the defendants had no right, title or interest whatsoever in the aforesaid properties. But they had been evading the issue and had not admitted the claims of the plaintiffs. The plaintiffs further claimed that they were in complete enjoyment, control and possession of the properties as owners after the death of their father.

(2.) Summons were issued against defendants in the suit. Both the defendants filed their written statement wherein they completely admitted the claim of the plaintiffs. They also stated that there were some mis- understandings between the plaintiffs on the one hand and the defendants on the other hand as to the mode and manner of clearing and paying off the debts and liabilities of late Sh.Kishan Chand Gupta which were taken as refusal by the plaintiffs on the part of the defendants in admitting their claim. Those mis-understandings had since been cleared and, therefore, they had no objection if a decree is passed in favour of the plaintiffs as against the defendants.

(3.) Initially I was of the view that without obtaining a probate or Letters of Administration by the plaintiffs, a declaratory suit may not be competent. Howvver, on behalf of the plaintiffs various authorities have been cited before me. The first case is of Dr. Mrs. Joginder Kaur Malik and another. Vs. Malik Anup Singh AIR 1966 Punj 385 (at Delhi) S.K.Kapur, J. held/that in the absence of a Probate or Letters of Administration, a suit simplicitor by a legatee for declaration of his right to collect debts and dues was maintainable". An objection was taken in that suit also on behalf of the defendants that the suit simplicitor for declaration without the will being probated or without obtaining Letters of Administration was not maintainable. The plea was negatived. Similarly in the case of Chander Bhan Vs.Har Nath Singh and others 20 (1981) DLT (SN) 32, it was held "Obtaining of a Probate was not necessary in case of will made by a Hindu in the Union Territory of Delhi." A similar view was taken in the case of Arjain Dass Vs. Madan Lal 1970 (Vol.6) DLT 260. Recently in the case of Mrs. Vijaya Gursahaney Vs. DDA and others 1994 Rajdhani Law Reporter (DB)367, a Division Bench of this Court observed that," As the law stands in Delhi, it is not necessary to have the will probated or to have the Letters of Administration obtained".