TMI Blog2018 (7) TMI 2103X X X X Extracts X X X X X X X X Extracts X X X X ..... entire property, it is in any case entitled to 20% share in the sale proceeds of the property and since none of the other beneficiaries under the document have sought Letters of Administration, ISKCON, even as one of the beneficiaries, is entitled to apply therefor. I would however implore the counsel for ISKCON to consider, whether in view of aforesaid aspects, a proceeding seeking Letters of Administration is the most appropriate proceeding for adjudication thereof or some other expeditious proceeding, where adjudication of all such aspects can be made, is to be initiated, so that valuable time is saved. Even if the document is proved to be the Will of Shanti Swaroop, another proceeding should not be required to determine the aforesaid aspects. Application dismissed. - CS(OS) No.3/1992 & IA No.2489/2016 - - - Dated:- 5-7-2018 - Mr. Rajiv Sahai Endlaw, J. Tanmay Mehta, Ms. Mamta Mehra Ms Mukta Kapur, Mr. Sudarshan Rajan, Mr. Arjun Gadhoke and Mr. Rajeev, Advs. for The Plaintiff. Ms. Sarika Soam, Adv. for Mr. Swaran Kamal Singh, Adv. for Mr. Sunil Kumar Gupta, Tanmay Mehta, Ms. Mamta Mehra Ms Mukta Kapur, Mr. Vikas Mehta and Mr. Rajat Sehgal, Ms. Sarika S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op that the entire property would be transferred in name of Satish, raised funds for construction of first and second floors of the property; (j) a portion of first floor of the property, since the year 1981, is exclusively used for business of Maharaja Exporters (India); (k) Satish even otherwise, being the eldest son, has always shouldered the responsibility of the family and for this reason also Shanti Swaroop admitted in his own handwriting and acknowledged orally that Satish was instrumental in procurement of the house and had contributed major cost of the house; (l) all the original title documents of the property are also in possession of Satish; (m) Shanti Swaroop also signed a proposed gift deed and indemnity bond dated 3rd September, 1991 and two letters also dated 3rd September, 1991 and 26th September, 1991 for obtaining permission from Delhi Development Authority (DDA) for transfer of title of the property to the name of Satish; and, (n) Shanti Swaroop is estopped from contending otherwise. 2.The suit was entertained and vide ex-parte ad-interim order dated 2 nd January, 1992, while issuing summons of the suit, Shanti Swaroop was restrained from creating third part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng any further construction or from otherwise dealing with the property. 4.International Society For Krishna Consciousness (ISKCON) filed IA No.1850/2009 for impleadment in the suit and notice whereof was ordered to be issued. 5.Satish filed yet another application to restrain Anil, Madhu and Sunil from interfering with his access to the first and second floors of the property and vide order dated 14th October, 2009, an arrangement with respect thereto was made. 6.Vide order dated 9th December, 2010, application of ISKCON for impleadment in the suit was allowed and ISKCON was impleaded as a defendant in the suit and filed a written statement pleading (I) that Shanti Swaroop was the exclusive owner of the property and executed a Will dated 11 th September, 2000 desiring that the subject property be sold and 20% of the sale proceeds go to ISKCON; (II) that it was further a clause in the Will of Shanti Swaroop that if any of his sons create a problem in the sale or if the executor failed to persuade Satish, Anil and Sunil to sell the property, then the entire house will be donated to ISKCON Temple for making Guest House for outstation devotees; and, (III) denying that Satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were ordered to be listed together. 10. Test.Cas. No.92/2014 has been filed by ISKCON seeking Letters of Administration annexed with document dated 11th September, 2000 claimed to be the validly executed last Will of Shanti Swaroop in respect of property No.F-10, East of Kailash, New Delhi, pleading that Shanti Swaroop was a devotee of ISKCON and had faith in Lord Krishna and on account thereof executed his last Will and testament dated 11 th September, 2000 registered with the Office of the Sub-Registrar-III, New Delhi on 14th September, 2000 as document No.2644 in Additional Book No.3, Volume No.1121 at Pages 32 to 36. 11. The relevant portion of the document claimed to be the Will is as under: WILL I, S.S.Gupta aged 70 years, son of Late Shri Raghbar Dayal, Resident of F-10, East of Kailash, New Delhi - 110065, do solemnly affirm as under:- 1. That today, I am in perfect state of mind and heart and I am writing this Declaration Deed-cum-WILL, without any pressure or prejudice from any one of my heirs or relatives or friends. In a sound disposing mind, I am writing this Declaration Deed-cum-WILL in which I attempt to do justice to all concerned, to the best of my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sunil Kumar to me on phone, on my face and during discussions with friends and relatives and after taking into consideration the present financial strength of my sons, I hereby execute this Declaration deed-cum-WILL, regarding my property at F-10, East of Kailash after my death as under:- As my sons won't be able to live or occupy a house together, I suggest, wish and desire that the property at F-10, East of Kailash may be disposed off and the proceeds from the same shall be distributed by the executors as under:- a) 20% share of the proceeds will go jointly to the eldest son, Satish Kumar, grandson Ritwick and granddaughter Mayuri. b) 14% share of the proceeds will go jointly to Sunil Kumar, youngest son, and grandsons Tushar and Kartik. c) 26% share of the proceeds will go jointly to Anil Kumar and his son Aditya and daughter Mahak. d) 10% share of the proceeds will go jointly to daughter Mrs. Madhu and her children, viz., Harsh, Abhinav and Mansi. e) 2% share of the sale proceeds will go to my sister Mrs. Bimla Devi, Delhi. f) 2% share of the sale proceeds will go to my sister Mrs. Raj Rani of Ambala Cantt. g) 20% of the sale proceeds wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. ISKCON, in the Test.Cas. No.92/2014 cited Satish, LRs of Anil, Madhu and Sunil as well as sisters, grandchildren and friends of Shanti Swaroop as close relatives. 14. Test.Cas. No.92/2014 was entertained and notice to close relatives and citation thereof ordered to be issued. 15. Satish has filed objections in Test.Cas. No.92/2014 pleading that (a) ISKCON as a Society is not entitled to seek Letters of Administration; (b) the petition having been filed after nearly 11 years from the demise of Shanti Swaroop, is barred by time; (c) though ISKCON had applied for transposition as petitioner in Test.Cas. No.31/2004 but the said application was dismissed in default; (d) Shanti Swaroop stood restrained by order dated 2nd January, 1992 in CS(OS) No.3/1992 from creating third party interest in the property and the alleged Will dated 11 th September, 2000 is in violation of the said order; (e) Satish is the exclusive owner of first and second floor of the property and Shanti Swaroop had no right to execute a Will with respect thereto; (f) Shanti Swaroop was not a devotee of ISKCON and did not have faith in Lord Krishna. 16. Sunil also filed objections in Test.Cas. No.92/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hna Consciousness (ISKCON) have been heard on the queries raised in the order dated 24th October, 2016 as well as on the aspect of whether in a probate proceeding the factual questions akin to those of title in terms of Clause 7 of the document dated 11 th September, 2000 stated to be the Will of the deceased Shri Shanti Swaroop Gupta can be gone into. 2. The counsel for the legal heirs of Mr. Anil Kumar Gupta states that Mr. Anil Kumar Gupta was ex parte in the suit. 3. Ms. Sarika Soam, Advocate appears for the respondent no.10 but does not know who respondent no.10 is. As per the memo of parties in the Test. Cas. Mr. Sunil Kumar Gupta is the respondent no.10. She seeks adjournment on the ground of Mr. Swaran Kamal Singh, Advocate for the respondent no.10 Mr. Sunil Kumar Gupta is unwell. 4. The matters are already 26 years old and cannot be kept pending. Moreover the said Mr. Swaran Kamal Singh, Advocate is not even found to have been appearing on the earlier dates. 5. Liberty is granted to the counsel to the said Mr. Swaran Kamal Singh, Advocate to if so desires file written arguments by 7th December, 2016. 6. It is deemed appropriate to, in this order dictate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (II) Shanti Swaroop having shown desire and intent to transfer title in the property to Satish; (III) Shanti Swaroop, in pursuance thereto, having got GPAs from the earlier owner of the property executed in favour of Satish and having signed an unregistered gift deed in favour of Satish; (IV) Shanti Swaroop having declared to all, his intention to transfer/gift the property to Satish. 25. There is also on record, a certified copy of the sale deed dated 29th August, 1984 of the property in favour of Shanti Swaroop. The registered GPAs in favour of Satish, got executed by Shanti Swaroop from the person from whom he had agreed to purchase the property and who ultimately executed sale deed in favour of Shanti Swaroop, are of a date prior thereto i.e. 22nd November, 1978 and 1st October, 1980. The said GPAs, after the executant thereof transferred title to Shanti Swaroop vide sale deed dated 29th August, 1984, are of no consequence. 26. It is not the plea in the plaint that there is any registered document executed by Shanti Swaroop, conveying title in property No.F-10, East of Kailash, New Delhi or any part thereof, in favour of Satish. Though the Division Bench of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shanti Swaroop in favour of Satish; (v) that the aforesaid also constitute acknowledgement by Shanti Swaroop, of Satish being the real owner of the property; (vi) that Satish is not claiming to be the benami owner but the real owner of the property; (vii) that the property must be considered and deemed to be released in favour of Satish by Shanti Swaroop; (vii) that the ownership of land is different from ownership of building; (viii) that even if Satish is not held entitled to ownership of land, nevertheless, Satish would be entitled to declaration of ownership of superstructure. 29. The counsel for Satish has placed reliance on (A) Binapani Paul Vs. Pratima Ghosh (2007) 6 SCC 100; (B) S. Satjit Singh Sons Vs. Union of India 1995 IV AD (Delhi) 646; (C) Rattanlal Vs. Kishorilal AIR 1993 Cal 141; and, (D) Controller of Estate Duty, Lucknow Vs. Aloke Mitra (1981) 2 SCC 121. 30. I have considered the aforesaid contentions. 31. Supreme Court, in Binapani Paul supra, in paras 26 to 28 of the judgment and to which attention was invited, referred to the earlier decisions of the Court in Thakur Bhim Singh Vs. Thakur Kan Singh (1980) 3 SCC 72 and Jaydayal Poddar V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Benami Act. 35. R. Rajagopal Reddy supra, rather than being in favour of Satish, is against Satish. The counsel, while relying thereon, glossed over para 11 thereof, as under, which puts the matter beyond a pale of doubt: 11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing rights of the real owners of properties held by others benami. Such an act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualise that Sub-section (1) of Section 4 states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the Section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and henceafter Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the Section may be retroactive. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and suit is filed in June 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him, then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Satish as owner of half of the ground floor of the property, after partition of the same. The said declaration of ownership of half of the ground floor is also claimed on the same pleas on which the declaration was claimed with respect to the first and second floors of the property with terrace and the suit for said declaration with respect to half of the ground floor also has to fail. 40. I may notice that though Shanti Swaroop, who was defendant No.1 in CS(OS) No.3/1992 has died and has been substituted as aforesaid by Madhu and Anil, but Satish, even after the demise of Shanti Swaroop, has not claimed partition of the said property as an heir of Shanti Swaroop. Thus, the need to put CS(OS) No.3/1992 to trial, for partition of the property amongst Satish, Anil, Sunil and Madhu as heirs of Shanti Swaroop, who admittedly was the sole owner of the property, is not felt. 41. Thus, CS(OS) No.3/1992 is dismissed. 42. In Test.Cas. No.92/2014, ISKCON as aforesaid, has sought Letters of Administration, with copy of the document dated 11th September, 2000 stated to be the validly executed last Will of Shanti Swaroop annexed thereto, with respect to estate of Shanti Swaroop compris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate for ISKCON on Section 137 of the Succession Act, has contended that Clause 7 of the Will would be invalid in view of Sections 138, 139 118 of the Succession Act. Reliance is also placed on Madhuri Ghosh Vs. Bebobroto Dutta (2016) 10 SCC 805 and on Sadaram Suryanarayana Vs. Kalla Surya Kantham (2010) 13 SCC 147. 48. However, I must admit that it remained to be considered, while also posting Test.Cas. No.92/2014 along with CS(OS) No.3/1992 for consideration, that the Court, while exercising testamentary jurisdiction, does not interpret the document of which Letters of Administration/Probate is sought and does not decide the inter se rights between the legatees under the Will. The Court, while exercising testamentary jurisdiction, is concerned only with the fact, whether the document annexed wherewith Letters of Administration/Probate is sought, is the validly executed last Will of the deceased. Reference in this regard can be made to Krishna Kumar Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300 and Sarla Gupta Vs. The State 2017 SCC OnLine Del 12689. Thus, though considerable time has been lost in the Test.Cas. No.92/2014 by reserving orders thereon, it is not deemed appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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