PRAVEEN BHUTANI Vs. MADAN MOHAN SETHI AND ANR.

JUDGEMENT

(1.) In the connected two appeals i.e. RFA No. 245/1998 and RFA No. 96/2005 and this Civil Miscellaneous (Main), the commonality is that applications under Order 22, Rule 4 of Civil P.C. are pending decision in these three cases. At the outset, both sides do not dispute that the order deciding the application under Order 22, Rule 4 of the Civil P.C. in C.M.(Main) shall be the order in the similar two pending applications in the connected two appeals. In this background, the impugned order of 23rd Sept., 2010 in C.M.(Main) is taken to be the lead matter.

(2.) The factual matrix which is common in the connected two appeals and C.M.(Main) is culled out by the trial Court in the impugned order of 23rd September, 2010 and needs no repetition. It would be suffice to note that C.M.(Main) arises out of a suit for injunction filed by M/s. Praveen Bhutani Estates (Pvt.) Limited in respect of one property which is subject matter of the connected two appeals and the C.M.(Main). It is not in dispute that Ms. Nirmal Shyam Kumari Sethi was alive when the decree in the connected two appeals was passed in her favour and she was also alive when a suit for injunction was filed wherein she was impleaded as defendant No. 2. It would be relevant to note that the petitioner/applicant-Mr.Praveen Bhutani who wishes to step in the shoes of Ms. Nirmal Shyam Kumari Sethi on the strength of a Will of 19th December, 2001, is also a Director of M/s. Praveen Bhutani Estates (Pvt.) Limited and the other two Directors of M/s. Bhutani Estates are his wife and his father. The permanent injunction sought by M/s. Praveen Bhutani Estates (Pvt.) Ltd. is to restrain appellant-Mr. M.M. Sethi in connected appeal (who was already suffered a decree in the connected appeal which is subjudice) from interfering in the ingress and egress in the Ground Floor of the suit property. Impugned order rejects petitioner 's application for substitution by noting that without seeking a probate in respect of the Will relied upon, he cannot seek his substitution in the suit for injunction. Impugned order allows the application for impleadment by the natural legal heirs of Late Ms. Nirmal Shyam Kumari Sethi and dismisses petitioner 's similar application.

(3.) The challenge to the impugned order is on the ground that in Delhi, the Will does not need to be probated. To submit so, learned senior counsel for the petitioner has relied upon a Division Bench decision of this Court in Captain (retd.) O.P. Sharma and anr. Vs. Kamla Sharma and ors., 158 (2009) Delhi Law Times 631 (DB). Reliance is also placed on behalf of the petitioner on Supreme Court decision in Binapani Kar Chowdhury Vs. Sri Satyabrata Basu and anr., (2006) 10 SCC 442 to submit that Sec. 213 of the Succession Act bars the passing of a final order or decree in the absence of probate or letters of administration in respect of a Will but does not bar the substitution of a person on the basis of a Will. Reliance is also placed upon Supreme Court decision in Suresh Kumar Bansal Vs. Krishna Bansal and anr., (2010) SCC 162 to submit that a legatee of unprobated Will of the deceased landlord can seek substitution in eviction proceedings to avoid the delay in its decision and in the said decision, apart from the natural legal heirs of the deceased landlord, the legatee of the unprobated Will was permitted to be brought on record with a rider that in the event of probate of the Will is not granted, the natural legal heirs of the deceased landlord would be entitled to get the possession on the basis of inheritance. Thus, it is submitted that the impugned order deserves to be set aside and petitioner 's applications under Order 22, Rule 4 of Civil P.C. ought to be allowed in this petition and the connected two appeals.