Renu Chhabra and Anr v. Municipal Corporation of Delhi and Ors

S. RAVINDRA BHAT,J SEPTEMBER 15, 2008 'sn'

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 758/2006 Date of Decision: September 15, 2008 RENU CHHABRA ..... Plaintiff Through Mr.A.K.Mishra, Advocate. versus MCD ..... Defendant Through Mr.Vinod Sharma, Advocate for defendant No.7. Ms.Mansi Gupta for Ms.Smita Shankar, Advocate for MCD. % 15.09.2008 CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be reported YES in the Digest? Mr. Justice S. Ravindra Bhat (Oral) 1. Counsel for the parties were heard at the stage of framing issues. 2. The plaintiffs are sons of late Shri H.P.Rajpal. According to the suit averments, the said Late Shri Rajpal was owner of property being No.24/1, West Patel Nagar, New Delhi (hereafter referred to as Page 2 "the suit property"), which was purchased through a registered sale deed on 5.3.1973. It is averred that the said Late Shri Rajpal continued to manage the property as his own, since it was his self-acquired asset, till his death on 12.9.2004. The plaintiff No.2 alleges having maintained and looked after the property since 12.3.2001 as the legally constituted Attorney of his father. The owner/plaintiff's father died on 12.9.2004. 3. The plaintiffs aver to a pending suit, i.e. 1573/1990 being filed by the defendant No.7 (renumbered as suit No.243/2004), pending before the Court of Shri Mahavir Singhal, Ld. Additional District Judge, Tis Hazari Courts, Delhi. That suit was filed against the plaintiff's father, seeking specific performance of an agreement concerning in respect of the same suit property. The plaintiff in that suit alleged existence of an Agreement to Sell dated 5.9.1984. The plaintiffs further aver that they had moved the Court under Order 1 Rule 10 CPC before the Additional District Judge for deletion of names of defendants No.2 to 6 in those proceedings; they were along with the plaintiffs impleaded as the legal representatives of the deceased Shri Rajpal. However, that application was dismissed and the suit is pending adjudication. 4. The plaintiffs claim to be legatees in a registered Will dated 12.3.2001 executed by Late Shri H.P.Rajpal. The plaint avers inter alia as follows:- "12. That from the aforesaid sequence of facts it is Page 3 clear that the suit property was purchased by the father of the plaintiffs and that the plaintiffs have acquired their right/interest over the said suit property in terms of the last registered testament and Will dated 12.03.2001 which was executed by their deceased father. The said Will came to the knowledge of the plaintiffs on 25.06.2005 when they received the letter from Shri Sudesh Khosla who had been keeping the original copy of the said Will. Thereafter, the plaintiffs had filed the petition for seeking probate in their favour before this Hon'ble Court. The plaintiffs had sent their notice dated 01.07.2005 to the defendant No.7 and defendant No.1 but nothing was done by them. The suit property is still in the illegal and unauthorized possession of the defendant No.7. 13. That the cause of action for filing the present suit had accrued in favour of the plaintiffs on 25.06.2005 when they became aware of the existence of the last registered Will and Testament dated 12.03.2001 which was executed by their father for declaring his intention to give the suit property to the plaintiffs after his death. The cause of action had further accrued against the defendant Nos.2 to 6 when they had opposed the application filed by the plaintiffs in the suit No.243 of 2004 wherein the plaintiffs had sought for the deletion of their names as the necessary parties in the said suit. The cause of action against the defendant No.1 has accrued when despite receiving the notice dated 01.07.2005, no action has been taken so far by the said authority. The cause of action against all the defendants are continuing even presently. 14. That the suit property is