HC allows man to enter in family property possessed by servants

New Delhi, Dec 4 (PTI) The Delhi High Court allowed a man to enter in a property, belonging to his family and where his brother was living before his death, saying it was unfortunate that a property dispute has arisen as no family member was continuously residing with the deceased.

After the death of the man's brother, the dispute arose on the alleged will executed by the deceased.

While the man claimed that after the death of his brother, he was an absolute owner of the property, the deceased' servants claimed that a will was executed in their favour and they did not allow the man to enter in the house.

Justice Prathiba M Singh said it would be completely inequitable and unjust to exclude the petitioner man from a house in which he prima facie owned 37.5 per cent share.

The high court was hearing a petition, challenging the trial court's order which had dismissed a plea by the deceased's brother seeking appointment of a curator of the property.

He has also filed a probate petition seeking probate of the 'will' and the plea is pending in the trial court.

'This court, is of the clear opinion that the petitioner that is, the brother of the deceased and the son of the original owner, cannot be deprived of entering and occupying the suit property. The Respondents were the domestic help of the deceased and cannot convert themselves into owners of the suit property, especially since their rights are yet to be established in the probate petition,' it said in its order.

Justice Singh said, 'It is unfortunate that such a circumstance has even arisen, due to the fact that no member of the family was continuously residing with the deceased. The siblings of the deceased, having settled abroad, the deceased may have given some control of the suit property to the Respondents, who were residing in the servant quarter in the property, however, that cannot convert them into owners of the suit property.' Piroja Edalji and her son Hoshang Edalji were 50 per cent owners of the suit property at Kailash Hills here. Piroja passed away on December 19, 2012, leaving behind two daughters and two sons. The petitioner, Rohinton Edalji was one of the sons of Piroja and the brother of Hoshang, who died on March 29, 2018.

After Hoshang's death, disputes arose between the petitioner and his family and Hoshang's domestic help, Babulal, and his family.

The case of the petitioner was that upon the death of his brother, when he went back to the suit property, Babulal did not permit him to enter the suit property. He was, therefore, forced to file a complaint with the police and an FIR was registered on May 9, 2018.

After this, Babulal and his family members set up an alleged Will dated September 15, 2017, which they claimed has been executed by Hoshang, in their favour. They then filed a probate petition seeking probate of the said Will.

During the pendency of the probate petition, Rohinton moved an application under the Indian Succession Act for appointment of a Curator which was dismissed by the trial court.

The trial court had on August 13, 2018, dismissed a petition seeking to remove the Hoshang Edalji's servant and his family members from the possession of the demised property and allowing the Rohinton Edalji and other legal heirs to have its possession.

The petition had further sought appointment of a curator in terms of Section 195 of the Indian Succession Act, 1925 to take over the possession of the demised property and moveable assets till the case was pending.

The high court, in its order, directed that the suit property shall remain with the Edalji family until the decision in the probate petition and they be permitted to occupy it.

It further said considering that during the lifetime of the deceased, the respondents were in occupation of the servant's quarter on the terrace of the suit property, they are permitted to only occupy the servant's quarter, during the pendency of the probate petition.

It also remanded back the case to the trial court to conduct an inquiry and pass final orders in the probate petition.

The high court appointed retired distric judge H S Sharma as a local commissioner to oversee the peaceful handover of the possession of the suit property to the petitioner.

The petitioner had claimed that the respondents (Babulal and his family) have illegally grabbed the property.

On the other hand, counsel for the respondents told the court that the Rohinton had tried to illegally evict them, even though he has given a statement in the probate petition that he will not try to dispossess them, except in accordance with law. PTI URD SKV RKS RCJ