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TMI Blog2008 (8) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... y Case No. 3/2006. It is the case of the defendants No. 1 and 2 that the said Shri Ashok Malik left a Will dated 28th February, 1998 and they have applied for probate of the same in the courts at Chandigarh. The plaintiff has instituted the present suit (a) for declaration that the agricultural land situated at Rajasthan and Haryana and the flat at Belvedere Tower, DLF City Phase II, Gurgaon are the properties of Shri Ashok Malik and the plaintiff alone is entitled to the said properties in accordance with the Will dated 29th October, 2002; (b) for further declaration that in terms of the said Will, the defendants do not have any share in the aforesaid properties; (c) for declaration that certain other properties in Gurgaon and Rohtak, which the defendant No. 1 has got transferred to her name on the basis of the Will set up by the defendant No. 1, is bad and; (d) for further declaration that certain other properties again at Haryana in the joint names of Shri Ashok Malik and the defendant No. 1 or in the sole name of the defendant No. 1 are, in fact, the properties of Shri Ashok Malik only and in terms of the will dated 29th October, 2002 of Shri Ashok Malik the plaintiff alone is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further urged that the bar of Benami was not applicable between husband and wife. The counsel for the plaintiff stated that the question of whether the defendant No. 1 or the deceased was the owner of the property could not be adjudicated in the probate proceedings and the plaintiff had instituted the suit to curtail delays even after succeeding in probate proceedings. During the hearing, on inquiry, counsel for the plaintiff admitted that the defendants No. 1 and 2 were in possession of the properties with respect to which declaration was claimed. Upon further inquiry as to why the plaintiff had not claimed the consequential relief of possession of the properties, the counsel for the plaintiff stated that the plaintiff has in the plaint craved leave under Order 2 Rule 2 CPC in this respect and would be claiming the said relief in the event of the probate being allowed and further in the event of it being declared that the deceased only was the owner of the properties which stand in the name of the defendant No. 1 or in the joint names of deceased and defendant No. 1. 7. Re: The suit being premature or the plaint disclosing no cause of action. A. The Madhya Pradesh High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emise (in as much as title does not remain in abeyance), but the fact remains that the plaintiff as on the date of institution of suit and even today has a mere chance or hope of having title to the property. In fact, no declaration can be made till the outcome of the probate proceedings. Even if inquiry is held whether the defendant No. 1 was the benami and deceased real owner of the properties and declaration pursuant thereto made, the said declaration will be ineffectual and abortive in the event of probate of Will dated 29th October, 2002 failing. F. As far back as in Sheoparsan Singh v. Ramanandan Prasad AIR 1916 PC 78 it was said: There is so much more danger in India than here of harassing and vexatious litigation that the courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation G. The institution of the present suit brings to life the fears expressed more than a century ago. I fail to see what purpose will be achieved by the plaintiff by pursuing the present suit, when the plaintiff herself being out of possession of the properties is at this stage not suing for possession and as aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f (within the meaning of Article 58 of schedule 1 of Limitation Act) only on plaintiff being found the beneficiary of the Will set up by her. 8. Re: Territorial Jurisdiction A. The Single Judge judgment of this Court in Rohit Kochar relied upon by the counsel for plaintiff has been reversed by Division Bench of this Court in Vipul Infrastructure Developers Ltd. v. Rohit Kochar 2008 4 AD Delhi 63. The other judgment of this Court is Union Bank of India also does not advance the case of the plaintiff. The relief of declaration cannot fall in the proviso to Section 16 CPC in as much as defendant is not required to do anything. The Apex court in Harshad Chiman Lal Modi has held that the proviso does not apply to suits for specific performance also even where the defendant is within the jurisdiction of the court. Grant of the relief of declaration will necessarily entail determination of rights to or interest in immovable property and which the legislature has provided, can be done only by court within the local jurisdiction of which the property is situated. If declaration is granted in favour of the plaintiff, the same will necessarily entail also declaring transfer of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been claimed as a consequential relief to the relief of declaration. Once it is held that the plaint for relief of declaration is liable to be rejected/dismissed, the plaint insofar as for the relief of permanent injunction is concerned also does not survive. Be that as it may, the relief of permanent injunction is also barred by the provisions of Section 41(h) of the Specific Relief Act. The plaintiff has equally efficacious relief of protecting the estate of the deceased by applying to the probate court under Part VII, chapter XXIII of the Indian Succession Act, 1925. It has been held in Cotton Corporation of India v. United Industrial Bank [1983]3SCR962 that the relief of permanent injunction is barred by the provisions of Section 41 of the Specific Relief act. 11. In view of the findings aforesaid, the plaint is rejected/dismissed for the reason of not disclosing any cause of action and/or for the reason of the relief of declaration being premature and/or the plaintiff being not entitled to the same on the date of the institution of the suit and further on the ground of the relief of declaration claimed in the plaint being barred by law i.e., Section 16 of the CPC and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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