Full Judgment Text
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 07.03.2025
+ CS(OS) 677/2024
SAMIR SHARMA .....Plaintiff
Through: Mr. Shaunak Kashyap, Ms. Parul
Tuli, Ms. Nistha Gupta and Mr.
Ahmar Shad, Advs.
versus
STERRE SHARMA & ANR. .....Defendants
Through: Mr. Rajat Wadhwa, Mr. Amulya
Dhingra, Mr. Gurpreet Singh and Ms.
Divya Kanwar, Advs. for D-1
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
I.A. 37440/2024 (filed by plaintiff under Order XXXIX Rule 1 & 2 read
with Section 151 CPC for grant of ad-interim ex-parte injunction)
1. With the consent of the parties the present application is taken up for
disposal.
2. The present suit has been filed seeking partition, rendition of accounts
and injunction of the estate left behind by late Capt. Satish Sharma. The
plaintiff is the son whereas the defendant nos.1 & 2 are wife and daughter of
late Capt. Satish Sharma.
3. Along with the present suit, plaintiff has also filed the present
application for ad interim ex-parte injunction praying for restricting the
CS(OS) 677/2024 Page 1 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
defendants from creating any third-party interest in immovable properties
mentioned in Schedule-A to the plaint.
4. Mr. Shaunak Kashyap, the learned counsel appearing on behalf of the
plaintiff submits that the assets which form part of the estate of late Capt.
Satish Sharma have been enumerated in Schedule-A to the plaint and one of
the contentious properties is agricultural land.
5. He submits that the present suit has been filed by the plaintiff on the
ground that late Capt. Satish Sharma passed away intestate and the plaintiff
being class I legal heir is a co-owner in all the properties mentioned in
Schedule-A.
6. He submits that plaintiff is residing in property bearing nos. 28 and 30
Dera Mandi Road, New Delhi and eviction notice was served upon him by
defendant no.1 on 09.09.2022. Subsequently, another notice was served
upon the plaintiff on 12.07.2024 asking him to evict premises by December
2024.
7. He submits that prior to filing of the present suit a probate petition has
been filed in this Court by the defendant no.1 being TEST CAS. 60/2021
titled “Sterre Sharma Vs State Govt of NCT & Ors” with regard to
registered Will dated 19.06.2018 allegedly executed by late Capt. Satish
Sharma in favour of defendant no.1 and disinheriting plaintiff and defendant
no.2.
8. He further submits that since the defendant no.1 has also filed a
probate petition with regard to the said Will, therefore, the entire estate of
late Capt. Satish Sharma needs to be preserved.
9. He submits that in any case, the plaintiff has filed his objections in the
TEST. CAS. 60/2021 with regard to the validity of the Will inter alia on the
CS(OS) 677/2024 Page 2 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
ground that late Capt. Satish Sharma was suffering from Cancer which had
metastasized to his brain, therefore, he was not in a fit state of mind to
execute the Will. He submits that the objections are still pending
consideration before this Court.
10. On the other hand, Mr. Rajat Wadhwa, the learned counsel appearing
on behalf of defendant no.1 submits that the present suit is not maintainable
inasmuch as no prayer seeking declaration that the Will is illegal, null and
void has been sought in the present suit. He submits that the prayer for
declaration has deliberately not been sought in the present suit inasmuch as
the said prayer would have been barred by limitation. In addition, he submits
that the probate petition in the present case was filed as early as on
06.07.2021 whereas the present suit came to be filed only in August, 2024
which is clearly barred by limitation.
11. He submits that since there exists a registered Will in favour of the
defendant no.1, therefore, the prima facie case is not in favour of the
plaintiff.
12. He further submits that since the plaintiff has indulged into forum
shopping, therefore, for this reason too, the plaintiff is not entitled to interim
relief.
13. Elaborating further, he submits that prior to filing of present suit,
another suit being CS (SCJ) No. 941/2023 was also filed by the plaintiff
before the Court of learned Additional District Judge, Saket. In the said suit,
the plaintiff had also filed an application seeking interim relief in terms of
Order XXXIX Rules 1 & 2 CPC, however, no interim relief was granted.
14. He further contends that the suit is barred under order II Rule 2 CPC.
He, however, fairly states that during pendency of the said suit the present
CS(OS) 677/2024 Page 3 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
suit was filed by the plaintiff and the suit at Saket Court was withdrawn
subsequently with liberty to prosecute the present suit, which was granted.
15. He further submits that the wife of the plaintiff had also filed a
complaint case being CC No. 1573/2022 under the Protection of Women
from Domestic Violence Act, 2005 (‘Act’) wherein similar relief of status
quo in respect of one of the suit properties which is a residential house at
Dera Mandi was also sought. In the said proceedings also, no interim relief
has till date been granted.
16. In the backdrop of aforesaid facts, Mr. Wadhwa urges the Court that
the plaintiff is not entitled to any relief in the present suit either.
17. He places reliance on the decision of Hon’ble Supreme Court in Asma
Lateef and Another vs. Shabbir Ahmad and Others. (2024) 4 SCC 696 to
contend that even for granting an interim relief the Court is ought to first
decide the issue with regard to maintainability. He also places reliance on
the decision of Surinder Kaur vs. Ram Narula & Others., 2013 SCC
OnLine Del 4377 to contend that the relief of declaration is sine qua non for
maintainability of the present suit.
18. Likewise, reliance has also been placed on the decision of Black
Diamond Track Parts Private Limited and Others vs. Black Diamond
Motors Private Limited, 2021 SCC OnLine Del 2630 to contend that forum
shopping is not permissible.
19. He further places reliance on the decision of the Hon’ble Supreme
Court in Chiranjilal Shrilal Goenka (deceased) through LRs vs. Jasjit
Singh and others, (1993) 2 SCC 507 , in support of his contention that the
issue with regard to the validity of Will is in the exclusive domain of the
Probate Court especially when the probate has been filed. Therefore, no
CS(OS) 677/2024 Page 4 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
issue with regard to the validity and legality of the Will can be framed in
partition suit nor interim relief in respect of the estate of testator can be
granted.
20. On the other hand, Mr. Kashyap has placed reliance on the decision of
Dev Raj Chaudhry vs. Raj Kumar and Others, 2024 SCC OnLine Del 2997
to contend that not seeking declaratory relief with regard to the Will when
the probate petition is already pending is not fatal for the suit. Likewise,
reliance has also been placed by him on Amar Deep Singh vs. State & Ors.,
2005 (85) DRJ 179, in support of his submission that once a probate Court
is considering a petition for grant of probate or Letters of Administration in
respect of a Will, that Court alone is competent to decide on the question of
execution and/or validity or otherwise of Will in question.
21. Mr. Kashyap also controverts the submission of Mr. Wadhwa on the
aspect of limitation by submitting that right to partition is a perpetual right
unless satisfied by a decree. He further submits that joint ownership itself
creates perpetual right to partition which does not lapse with time. In support
of his submission, he has placed reliance on the two decisions of the
Hon’ble Supreme Court – (i) Vidya Devi alias Vidya Vati (dead) by LRs vs.
Prem Prakash and Others, (1995) 4 SCC 496 and (ii) Shubh Karan
Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and Others,
(2009) 9 SCC 689 .
22. I have heard the learned counsel for the parties and have also gone
through the material on record.
23. As noted above, the plaintiff is the son whereas the defendant nos.1
and 2 are wife and daughter, respectively of Late Captain Satish Sharma.
The suit has been filed by the plaintiff seeking partition, rendition of
CS(OS) 677/2024 Page 5 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
accounts and injunction of properties forming part of the estate of Late
Captain Satish Sharma, alleging that Late Captain Satish Sharma passed
away intestate, however, the defendant no.1 is claiming that Late Captain
Satish Sharma had executed a registered Will dated 19.06.2018 in her
favour, thereby disinheriting the plaintiff and defendant no.2.
24. The properties which form part of the suit have been enumerated in
Schedule ‘A’ to the plaint. It appears that all the said properties are also
subject matter of the aforesaid Will dated 19.06.2018.
25. It is not in controversy that the defendant no.1 has filed a TEST
CASE 60/2021 seeking probate of the aforesaid Will, which was filed on
15.07.2021, whereas the present suit was filed by the plaintiff in August
2024 praying inter alia for the partition of suit properties. In the suit, the
prayer made is only for partition, rendition of accounts and permanent
injunction in respect of the suit properties. No relief of declaration to the
effect that Will dated 19.06.2018 is null and void has been sought in the
present suit. It is in this backdrop, Mr. Wadhwa has argued that since there
is no prayer seeking such declaration, therefore, the suit is not maintainable.
26. The above contention of Mr. Wadhwa need not detain this court any
longer, inasmuch as, the law is well settled that the probate court alone has
the exclusive jurisdiction to adjudicate upon proof or validity of the Will. In
other words, the functions of the probate court are to see that the Will was
executed by the testator and that too in a sound disposing state of mind
without coercion or undue influence and the same is duly attested by two
witnesses. The probate court is, however, not competent to determine the
question of title to the suit properties. Reference in this regard may be had to
the decision of the Hon’ble Supreme Court in Kanwarjit Singh Dhillon vs.
CS(OS) 677/2024 Page 6 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
Hardyal Singh Dhillon and Others., (2007) 11 SCC 357 .
27. Further, it is no more res integra that probate proceedings and the
partition suit, being distinct proceedings, can go simultaneously. It was so
held by a coordinate bench of this court in Dev Raj Chaudhry (supra) .
28. Likewise, in Satula Devi v. Rajeev Sharma & Others., 2023 SCC
OnLine Del 2066 , one of the prayers sought in the plaint was for a decree
declaring the Will in question as null and void. The objection taken by the
learned counsel for the defendants therein was that the prayer cannot be
granted by the Civil Court as the validity of Will can only be a subject
matter of the probate proceedings initiated by the defendant no.2 therein,
which was pending consideration. This Court observed that the declaration
to the effect that the Will is null and void cannot be granted without there
being a decision on the validity of a Will that has been propounded before a
Probate Court. It is only after the decision on the validity of the Will by the
Probate Court that the same can be admitted into evidence and can be taken
into consideration by the Civil Court while deciding the suit for title. It was
further held that the validity of Will has to be decided by the probate court,
therefore, the same prayer sought in the suit shall not be maintainable. The
relevant part of the said decision reads as under:
“97. This submission of Mr. Sethi and Mr. Nayar is answered by
Mr. Vikas Singh by relying on paragraph 15 of the judgment in the
case of Chiranjilal Shrilal Goenka (deceased, through
LRs.) (supra) by stating that Probate Court cannot decide the
question of title qua the property mentioned in the Will dated July
18, 2011 and it is only the Civil Court which can decide the same.
There cannot be any dispute on the afore-said proposition of law
but at the same time, the declaration sought that the Will dated
July 18, 2011, be declared as null and void, cannot be decided
without there being a decision on the validity of that Will
CS(OS) 677/2024 Page 7 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
propounded by the defendant No. 2. It is only thereafter that the
decision on the validity of the Will by the Probate Court can be
admitted into evidence and can be taken into consideration by
the Civil Court while deciding the suit for title as the grant of
probate may not be decisive for declaration of title . [Ref
: Kanwarjit Singh Dhillon (supra)]. Still the issue of validity of
Will has to be decided by the Probate Court and it is precisely the
prayer at ‘b’ of the plaint. So, additionally, the prayer ‘b’ of the
suit shall not be maintainable before this Court exercising the
original civil jurisdiction.”
(emphasis supplied)
29. In view of the above, the legal position that emerges is that the
probate proceedings and partition suit can go simultaneously, but once a
petition has been filed seeking a probate with regard to a Will, the prayer for
declaring the said Will as null and void shall not be maintainable in a suit for
partition. Thus, there is no merit in the submission of Mr. Wadhwa that the
suit of the plaintiff, in the absence of prayer seeking such a declaration is not
maintainable.
30. Reliance placed by Mr. Wadhwa on the decision of Surinder Kaur
(supra) will not aid the case of the defendant no.1, inasmuch as, in the said
case, what weighed with this Court was the fact that on the basis of the Will
of the testatrix, the defendant no.1 therein had got the mutation of the suit
property sanctioned in his favour and subsequently, further rights had been
created by way of several sale transactions. In this factual backdrop, it was
observed that despite the plaintiff having knowledge of the mutation and
even after amendment to the plaint regarding the subsequent sale deeds, the
plaintiff had not sought declaration and cancellation of such documents
which was held to be fatal to the suit therein. The present is not a case where
the Will dated 19.06.2018 has been acted upon and any third-party rights
CS(OS) 677/2024 Page 8 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
have been created, that would require the plaintiff to seek declaration with
regard to the documents creating such third-party rights.
31. Insofar as the submissions of Mr. Wadhwa, that the suit is barred
under Order II Rule 2 CPC as the plaintiff had earlier filed a suit and further
that the plaintiff is resorting to forum shopping as similar interim relief was
sought in said earlier suit as well as in the probate petition, it may be
noticed that the earlier suit i.e. CS (SCJ) 941/2023 had been filed by the
plaintiff praying, inter-alia , for injunction against the defendant no.1 herein
from adding any moveable or immoveable assets of late Capt. Satish Sharma
into the corpus of family trust namely, ‘ Satish and Sterre Sharma Family
Trust ’. Incidentally, the said relief has not been sought in the instant suit and
the subject matter of the said suit is also different from the present suit in
which the relief sought is essentially for partition.
32. That apart, the said earlier suit now stands withdrawn with liberty to
pursue appropriate legal remedy. The cause of action in both the suits being
different, the bar under Order II Rule 2 CPC does not get attracted nor it can
be said that the plaintiff by filing the present suit in which the relief sought
is for partition and other incidental reliefs, is resorting to forum shopping.
33. Even otherwise, it is well settled that a suit which has been permitted
to be withdrawn at a stage much before any issue is framed can hardly be
said to be a suit finally heard and decided by a court and the principles
governing Order II Rule 2 CPC would also not bar the subsequent suit. In
this regard reference may be had to a decision of a co-ordinate bench of this
1
Court in Vakil Chand Jain vs. Prakash Chand Jain wherein it was held as
under:
CS(OS) 677/2024 Page 9 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
“28. The rationale behind Order II Rule 2 CPC also appears to
have an apparent linkage with the principles on which
Section 11 CPC operates. The principles could be either of res
judicata itself or of constructive res judicata. For both these
principles to be attracted, the issue that arises substantially in a
suit will have to be heard finally and decided by a court. Even if
one were to accept the submissions of Mr. Jain, learned Senior
counsel for the Defendant, that it is not necessary that the Court
should frame an issue which is “directly or substantially an
issue”, the requirement of Section 11 CPC is that such issue
should have “been heard and finally decided by such court .” A
suit which has been permitted to be withdrawn at a stage much
before any issue is framed, can hardly be said to be a suit
finally heard and decided by a court. Even factually in the
th
present case a perusal of the order dated 18 May 2001 in Suit
No. 204 of 2000 shows that the suit has hardly progressed. Soon
after the written statement was filed, the Plaintiff realised that
the court of the learned ADJ lacked the jurisdiction to try the
suit. In those circumstances, the Plaintiff applied to withdraw the
suit reserving the liberty to file a fresh suit. In the considered
view of this Court, neither the principle of constructive res
judicata nor res judicata is attracted to the present case. The
principles governing Order II Rule 2 CPC would also not bar
the Plaintiff in the present case from claiming the relief of
declaration or injunction in addition to the relief of partition .”
(emphasis supplied)
34. Also to be noted that an application seeking interlocutory relief in the
form of an interim injunction in a probate petition is not maintainable in
view of the bar contained in sub-section (2) of Section 269 of Indian
Succession Act, as the said provision specifically restricts the Probate Court
from protecting the property which is a subject matter of a Will, where the
deceased is a Hindu, Mohammedan, Buddhist Sikh or Jaina. Reference in
this regard may be had to the decision of the Coordinate Bench of this Court
1
2009 SCC OnLine Del 2769.
CS(OS) 677/2024 Page 10 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
2
in Fauzia Sultana vs. State and Another wherein relying upon an earlier
3
decision of the Coordinate Bench of this Court in Ajay Malhotra vs. State
as well as on a decision of the Division Bench of the Bombay High Court in
Ramchandra Ganpatrao Hande alias Handege vs. Vithalrao Hande and
4
others , it held as under:
52. In fact, I find that the Coordinate Bench of this Court in the
case of Ajay Malhotra v. State, Test Cas. 37/2018 decided on May
15, 2019, while considering an application under Order XXXIX
Rule 1 and 2 read with Section 151 CPC, 1908, filed in a probate
petition seeking probate of Will dated October 26, 2017, wherein
the petitioner had sought an interim injunction against respondent
Nos. 2 and 3 therein, restraining them from selling, alienating,
transferring or creating any third party rights or interest in respect
of any of the immovable properties bequeathed in favour of the
petitioner therein, under a document dated October 26, 2017,
purporting to be the Will and testament of the deceased testator,
had dismissed the same. While interpreting the provisions of Section
269(2) of the Indian Succession Act, 1925, this Court, held that the
said sub-section, specifically restricts the application of Section
269(1), if the probate is sought of the Will of the deceased person
who was Hindu, Muhammadan, Buddhist, Sikh or Jaina. This Court
while holding that such an Application, as not maintainable, has
held, as under:
“……………………….
15. It is also to be noticed that section 269 of the Act reads
as under:
“269. When and how District Judge to interfere for
protection of property.-
(1) Until probate is granted of the will of a deceased
person, or an administrator of his estate is constituted,
the District Judge, within whose jurisdiction any part of
2
2022 SCC OnLine Del 3583.
3
2019 SCC OnLine Del 8505.
4
2011 SCC OnLine Bom 440.
CS(OS) 677/2024 Page 11 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
the property of the deceased person is situate, is
authorised and required to interfere for the protection of
such property at the instance of any person claiming to
be interested therein, and in all other cases where the
Judge considers that the property incurs any risk of loss
or damage; and for that purpose, if he thinks fit, to
appoint an officer to take and keep possession of the
property.
(2) This section shall not apply when the deceased is a
Hindu, Muhammadan, Buddhist, Sikh or Jaina or an
exempted person, nor shall it apply to any part of the
property of an Indian Christian who has died intestate.”
The said provision also empowers the Court to pass orders
for the protection of the property of the deceased person.
Sub-section (2) of section 269 specifically restricts the
application of the said provision where the deceased is a
Hindu, Mohammedan, Sikh or Jaina. Admittedly, the
deceased here is a Hindu and therefore, not entitled to
invoke section 269. The fact that the legislature has
restricted the application of section 269, to certain category
of persons, clearly indicates by implication that the
legislature never intended to confer such power on the
testamentary court to give interim directions in relation to
the persons covered under section 269(2) of the Act.
16. No doubt this Court in Kulbir Singh v. State (1993) 52
DLT 57 has held that the Court has the power to grant
injunction exercising its inherent powers, however, the facts
of the said case are distinguishable and in that case, section
269(2) was not brought to the notice of the Court in the said
judgment.………………..
53. In fact, I find that the Division Bench of the Bombay High
Court clearly held that the effect of Sub-Section (2) of Section 269
of the Indian Succession Act, 1925, is to preclude exercise of power
in case of one of the excepted categories. It went on to hold that it
would not be permissible, in the face of the specific provision of
sub-section (2) of Section 269, to read into the provisions of
Sections 266 and 268 of the Indian Succession Act, 1925, a general
CS(OS) 677/2024 Page 12 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
power to grant interlocutory relief, even prior to the grant of
probate in respect of the property which is alleged to form part of
the estate of the deceased. In the case in hand, the deceased being a
Muhammadan, the bar under Section 269(2) shall come into play.
54. Suffice to state that the Coordinate Bench of this Court in Ajay
Malhotra (supra), has clearly held by referring to the judgment
of Shri Kulbir Singh (supra), that the latter judgment is
distinguishable, as Section 269(2) of the Indian Succession Act, 1925,
was not brought to the notice of this Court in the said judgment.
55. I agree with the above conclusion of the Coordinate Bench of
this Court and the law having been settled in terms of the judgment
of the Division Bench of the Bombay High Court, this Court is of
the view that the present application filed by the petitioner for the
prayers, as already noted above, shall not be maintainable in these
proceedings and as such, the same is dismissed .
(emphasis supplied)
35. To drive home his point of forum shopping, Mr. Wadhwa has also
urged that relief of injunction had been sought by the wife of the plaintiff as
well, by filing a complaint under the Act being CC No.1573/2022. Suffice it
to observe that the said petition was filed by the wife of the petitioner
claiming her right to stay in a ‘shared household’ in view of the statutory
provision under the Act, thus, the same cannot come in the way of the
plaintiff seeking partition in respect of the estate of his late father and
consequent interim relief in respect thereof, being a class I legal heir nor
filing of the present suit by the plaintiff on a separate cause of action can be
termed as forum shopping.
36. Next argument of Mr. Wadhwa that the relief seeking declaration qua
the Will has deliberately not been sought by the plaintiff as the same is
barred by limitation, is equally untenable. In the foregoing paragraphs, it
has already been held that relief seeking declaration to the effect that a Will
CS(OS) 677/2024 Page 13 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
is null and void is not maintainable in a civil suit for title or partition when a
petition seeking probate with regard to the same Will is pending, as the issue
with regard to the validity of the Will is to be adjudicated in the probate
petition. If the prayer seeking such a declaration itself is not maintainable,
the objection as to the same being barred by limitation would pale into
insignificance.
37. In so far as limitation period for a suit for partition is concerned, it is
trite that no period of limitation has been prescribed therefor and there is
always a running cause of action for seeking partition by one of the co-
sharers. However, the limitation for suit for partition would be governed by
Article 65 of the Limitation Act only when a co-sharer or joint owner in
possession of the property, professes a hostile title as against the other co-
sharers openly and to the knowledge of the other co-owners, in which case
the limitation period will be 12 years from the date when possession of a co-
sharer becomes adverse to that of other co-sharers. The reference in this
regard may be had to the decision of the Hon’ble Supreme Court in Vidya
Devi (supra) , wherein it was observed thus:
“20. The legislature has not prescribed any period of
limitation for filing a suit for partition because partition
is an incident attached to the property and there is
always a running cause of action for seeking partition
by one of the co-sharers if and when he decides not to
keep his share joint with other to co-sharers. Since the
filing of the suit is wholly dependent upon the will of the
co-sharer, the period of limitation, specially the date or
time from which such period would commence, could
not have been possibly provided for by the legislature
and, therefore, in this Act also a period of limitation, so
far as suits for partition are concerned, has not been
prescribed. This, however does not mean that a co-sharer
CS(OS) 677/2024 Page 14 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
who is arrayed as a defendant in the suit cannot raise the
plea of adverse possession against the co-sharer who has
come before the court as a plaintiff seeking partition of
his share in the joint property.
21. Normally, where the property is joint, co-sharers are
the representatives of each other. The co-sharer who
might be in possession of the joint property shall be
deemed to be in possession on behalf of all the co-
sharers. As such, it would be difficult to raise the plea of
adverse possession by one co-sharer against the other.
But if the co-sharer or the joint owner had been
professing hostile title as against other co-sharers
openly and to the knowledge of other joint owners, he
can, provided the hostile title or possession has
continued uninterruptedly for the whole period
prescribed for recovery of possession, legitimately
acquire title by adverse possession and can plead such
title in defence to the claim for partition.”
(emphasis supplied)
38. Now coming to the aspect of prima facie case, as noted above, the
defendant no.1 has filed a petition seeking probate of the Will of late Capt.
Satish Sharma in which the plaintiff has filed objections questioning the
legality and validity of the said Will. In the event the defendant no.1 fails to
establish the legality and validity of the Will in the pending probate petition,
the plaintiff shall automatically be entitled to a definite share in the estate of
late Capt. Satish Sharma by virtue of him being class I legal heir. This
means, till the time the legality and validity of the Will is not established by
grant of probate in favour of the defendant no.1, the claim of the plaintiff to
the estate of his late father cannot be ousted. Therefore, as of now, the
plaintiff has a prima facie case.
39. Further, in the present suit for partition, if the suit properties, which
CS(OS) 677/2024 Page 15 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03
are also subject matter of the aforesaid Will, are not prevented from being
dissipated by alienation or creation of third-party rights by the defendants,
nothing would remain to be partitioned, if the defendant no.1 fails to prove
the validity and legality of the Will and the plaintiff eventually succeeds in
the present suit. Thus, the balance of convenience lies in favour of the
plaintiff. This Court is also of the opinion that the plaintiff will suffer an
irreparable loss in case the interim relief is not granted.
40. In view of the above, the present application is allowed.
Consequently, the defendants are directed not to sell, alienate, transfer or
create any third-party interest in properties as enumerated in Schedule A to
the present suit, during the pendency of the present suit.
41. The application is disposed of in the above terms.
VIKAS MAHAJAN, J.
MARCH 07, 2025
N.S. ASWAL
CS(OS) 677/2024 Page 16 of 16
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:11.03.2025
19:04:03