Balvinder Kaur Brar vs Baldev Singh Gill & Ors.

MANMOHAN, ACJ: (ORAL)

Allowed, subject to all just exceptions.

Accordingly, the present application stands disposed of.

Present appeal filed under Section 10 of the Delhi High Court Act, 1966 challenges the interlocutory order dated 7^th February, 2024 passed in CS (OS) No. 1213/2012, whereby, the learned Single Judge of this Court dismissed two interlocutory applications being I.A. Nos. 12929/2022 and 16091/2022. In I.A. No. 1292/2022, the Appellant has sought release of 50% of the amount of ₹ 38,42,204/- deposited with the registry of this Court. In I.A. No. 16091/2022, the Appellant has sought recall of the 50% of the amount of ₹ 38,42,204/- (along with interest accrued thereon) which stood released to Respondent No. 1 by an earlier order dated 17^th May, 2019.

The facts to the extent relevant for deciding the present appeal are as under:

The underlying suit has been filed by the Appellant against Respondent No. 1 for partition of the immovable properties left behind by late Sh. Harpal Singh Gill i.e., the father of the Appellant and Respondent No. 1. In this suit, the Appellant also seeks declaration, permanent injunction and invalidation of sale deeds executed by Respondent No. 1 in favour of his son Respondent No. 6. It is the case of the Appellant that the suit properties are coparcenary properties.

The Respondent No. 1 has resisted the claim of the Appellant by relying upon a Will dated 20^th May, 2009 for claiming absolute title to the subject properties.

In the suit, vide interim order dated 28^th March, 2014, the learned Single Judge directed Respondent Nos. 1 and 6 not to alienate, transfer or part with possession of any of the suit properties till the next date of hearing. Since the immovable properties comprise Agricultural lands at Muktsar, Punjab, the learned Single Judge vide order dated 05^th May, 2015 appointed Deputy Commissioner, Muktsar, Punjab as a Receiver with a direction to deposit the proceeds of the harvest of the standing crop on these lands with the registry of this Court. As per the report of the registry, an amount of ₹ 38,42,204/- stood deposited by the Receiver as on 15^th May, 2019.

In the meantime, Respondent No. 6 filed I.A. No. 900/2019 inter-alia seeking release of the aforesaid amount deposited by the Receiver for the medical needs of Respondent No. 1, who is bed-ridden since May, 2014 as a consequence of a paralytic stroke. The Appellant herein consented to the release of 50% of the ₹ 38,42,204/- (along with interest accrued thereon) directly to the Respondent No. 1 to meet his medical needs, without prejudice to her rights and contentions. Accordingly, the learned Single Judge vide order dated 17^th May, 2019 directed release of the 50% of the aforesaid amount directly to Respondent No. 1.

The Appellant was aggrieved by a finding recorded at paragraph 8 in the order dated 17^th May, 2019 and therefore, filed a review petition which was however, dismissed by the learned Single Judge vide order dated 15^th November, 2019. The Appellant, therefore, filed an appeal being FAO(OS) 09/2020 against the order dated 15^th November, 2019. In the said appeal, the Coordinate Bench (‘Appellate Court’) vide order dated 04^th August, 2022 set aside the observation made by the learned Single Judge at paragraph 8 of the order dated 17^th May, 2019 and directed the Appellant herein to pursue her claim for release of the balance 50% of the amount of ₹ 38,42,204/- (along with interest accrued thereon) before the learned Single Judge.

In pursuance to the liberty granted vide order dated 04^th August, 2022, the Appellant herein filed I.A. No. 12929/2022 before the learned Single Judge for release of 50% of the amount of ₹ 38,42,204/- (along with interest accrued thereon). In addition, the Appellant filed I.A. No. 16091/2022 seeking direction to Respondent Nos. 1 and 6 to deposit the amount released by the registry to Respondent No. 1 in pursuance to the earlier order dated 17^th May, 2019.

The aforesaid two applications have been dismissed by the learned Single Judge vide impugned order dated 07^th February, 2024.

Learned counsel for the Appellant states that the learned Single Judge has declined the relief for release of the 50% amount on the basis of the Will dated 20^th May, 2009 propounded by Respondent No. 1. He states that, however, the original of the alleged Will dated 20^th May, 2009 has not seen the light of the day as the Respondent No.1 has failed to produce the same before the learned Single Judge. He states that the alleged Will is ex-facie forged as the contents of the Will are contrary to the admitted facts, inasmuch as, the Will incorrectly records that late Sh. Harpal Singh Gill’s grand-daughter, Ms. Gini Gill is married, whereas in fact, Ms. Gill was married on 09^th December, 2009. He states that on this ground alone, the Will has to be discarded.

In reply, learned counsel for the Respondent No. 1 states that the original of the Will dated 20^th May, 2009 will be produced before the learned Single Judge on the next date of hearing for the inspection by the Court as well as by the Appellant herein. He states that the suit has been pending since 2012 and parties are yet to begin trial.

We have heard the learned counsel for the parties and perused the record.

The Appellant does not dispute that if the Will dated 20^th May, 2009 is proved to be valid and genuine, she would not be entitled to inherit the estate of late Sh. Harpal Singh Gill and consequently, she would have no right to receive any share in the amount deposited by the Receiver with the registry of this Court. In these admitted facts, the direction of the learned Single Judge in declining to release the amount to the Appellant, at this stage, does not merit any interference. In this regard, we may note that the application of Respondent No. 6 being I.A. No. 900/2019 seeking release of the (same) 50% balance amount deposited with the registry has also been dismissed. The learned Single Judge has, therefore, to balance the interest of the Appellant as well as Respondent Nos. 1 and 6, preserve the 50% balance amount to await the outcome of the adjudication of the rival pleas of the parties.

In view of the fact that the Appellate Court itself did not grant the relief of release of 50% in favour of the Appellant in FAO(OS) 09/2020 and left it to the discretion of the learned Single Judge to decide the said prayer of the Appellant, we are unable to hold that the Appellate Court issued any binding direction at paragraph 11.3 of its order.

The submission of the Appellant that the contents of the Will dated 20^th May, 2009 are contrary to the admitted facts cannot be adjudicated in the present appeal as there is no such finding returned by the learned Single Judge.

Similarly, the challenge by the Appellant to dismissal of I.A. No. 16091/2022 is also without any merits. The Appellant in this application sought a direction to Respondent No. 1 to deposit the amounts released to him in pursuance to the earlier order dated 17^th May, 2019. The finding of the learned Single Judge that the said application was not maintainable in view of the order dated 04^th August, 2022 of the Appellate Court declining the same relief is absolutely correct and calls for no interference.

We are also of the view that considering the fact that the suit was filed in the year 2012 and is still at the stage of framing of issues, it would be in the interest of justice that parties facilitate the trial instead of engaging the Court in these miscellaneous applications. The record of the underlying suit shows that though the matter has been repeatedly listed for framing of issues, yet the parties have not comeforth to assist the Court in proceeding with the trial.

We accordingly, find no merit in the present and the same is dismissed along with pending applications. However, the Respondent No. 1 is directed to produce before the learned Single Judge the original of the Will dated 20^th May, 2009 before the next date of hearing for the inspection by the Court and by the Appellant herein.