Delhi District Court
Sh. Peshori Lal (Since Deceased) vs Sh. Gulshan Kumar on 28 February, 2015
IN THE COURT OF SH. CHANDRA BOSE, CIVIL JUDGE SENIOR DIVISION
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 293/12
ID No. 02401C0419162009
Sh. Peshori Lal (since deceased)
Through his LRs
i) Mrs. Pramila Vaid
W/o Sh. Vinod Vaid
R/o 43, 2C, New Palasia Extn.
Indore, M.P.
ii) Mrs. Seema Sethi
W/o Sh. Ashish Sethi
R/o House No. 159, Sector27A,
Chandigarh (U.T.)
iii) Mr. Tarun Anand
S/o late Sh. Peshori Lal Anand
R/o Sarkhej Colony,
Ahmedabad, Gujarat. ............. plaintiff
vs.
Sh. Gulshan Kumar
S/o Late Sh. Boota Mal
R/o 34E/3, West Patel Nagar,
New Delhi. ............. defendant
Date of Institution of Suit : 30071979
Date of reserve for judgment : 24012015
Date of announcement of Judgment : 28022015
Suit No. 293/12 1/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
SUIT FOR PARTITION
Judgment :
1. The brief facts, as per the plaint, are that the plaintiff and defendant
are brothers and the plaintiff carry on his business in Indore and lives there. That
Smt. Lakshmi Devi owned a House No. 34/3, East Patel Nagar, New Delhi and plot
No. 38, South Vishan Road, Vishwas Nagar, Shahdara, Delhi and during her
lifetime she had executed a Will dated 11121968 and same was registered on 26
051970 in Delhi. That during the pendency of the present suit, the Will dated 11
121968 has been probated in respect of which Letters of Administration had been
ordered. That the 2nd Will propounded by the defendant dated 28071978 alleged
to have been executed by Sh. Boota Mal which has also been probated vide
judgment dated 20052011. That Sh. Boota Mal Anand had neither capacity nor
was competent to execute the alleged Will dated 28071978 in favour of the
defendant since he inherited only life estate under the Will dated 11121968
executed by Smt. Lakshmi Devi and she gave the absolute and exclusive rights
and interests to her two sons after the death of Boota Mal Anand. That after the
death of Sh. Boota Mal Anand, the parties could exercise the rights in the
properties and do not wish to remain joint. That the plaintiff prayed for partition of
the properties as per Will executed by late Smt. Lakshmi Devi dated 11121968.
2. WS filed on behalf of the defendant wherein in preliminary objections
Suit No. 293/12 2/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
it is stated that the suit is liable to be stayed as the Probate proceedings filed by the
defendant as well as by the plaintiff are pending adjudication. That the suit for
partition is misconceived and plaintiff has got no right to claim any partition on the
basis of the Will of Smt. Lakshmi Devi as under the said Will her husband, Sh.
Boota Mal Anand, was the absolute owner of the property who in turn executed a
Will dated 28071978 in favour of the defendant. That in a reference under
Section 18 of the Land Acquisition Act, late Sh. Boota Mal Anand applied under
Order 22 Rule 2 & 3 CPC on 26021970 to be substituted in place of Smt. Lakshmi
Devi and he claimed to be owner of the properties and plaintiff and other LRs did
not contest the claim of Sh. Boota Mal Anand. That the plaint is also liable to be
rejected since the same has not been signed and verified as per the Provisions of
the CPC.
3. On merits, it is stated that in so far as plots no. 37 and 38 are
concerned, they were acquired. It is further stated that so far as the Will of Smt.
Lakshmi Devi is concerned, that was acted upon by Sh. Boota Mal Anand, father of
the defendant and plaintiff, who, under the said Will of Smt. Lakshmi Devi, claimed
as an absolute owner of the properties and the said Will was accordingly acted
upon by Sh. Boota Mal Anand. That it is denied that Sh. Boota Mal Anand had no
capacity nor was competent to execute Will dated 25071978 and had life estate
interest and in law he could enjoy the property during his lifetime and Smt. Lakshmi
Suit No. 293/12 3/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
Devi clearly limited the right of her husband during his lifetime alone or that she
gave absolute and exclusive rights and interests to her two sons after the death of
Sh. Boota Mal Anand. It is further denied that the Will dated 28071978 is nonest,
illegal void or does not convey any bequest in favour of the defendant as alleged or
otherwise. Other averments of the plaintiff have been denied as wrong.
4. Replication filed by the plaintiff, wherein it is stated that the
subsequent Will dated 28071978 executed by Sh. Boota Mal Anand is a clear
case of forgery and a manufactured Will by the defendant with a view to usurp the
whole property. Other averments made in the WS have been denied and
averments made in the plaint have been reiterated and reaffirmed.
5. From the pleadings of the parties, following issues were framed vide
order dated 07091982 :
1. Whether the suit has been properly valued for purposes
of courtfee and jurisdiction? If not, to what effect? OPD
2. Whether the suit is liable to be stayed in view of the
pendency of probate proceedings in the High Court? OPD
3. Whether the plaintiff is entitled to the relief claimed in the
suit? OPP
4. Relief.
6. During the pendency of the suit an application under Section 151
Suit No. 293/12 4/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
CPC was moved for adjourning the matter sinedie which was allowed vide order
dated 08121982 and the suit was adjourned sinedie and restored vide order
dated 02112007.
7. During the pendency of the suit, an application under Order 14 Rule
5 CPC was moved and following additional issues were framed vide order dated
28032013 :
1. Whether late Sh. Buta Mal had any right or testamentary
capacity to execute the Will dated 28071978 under the
Will dated 11121968 executed by Smt. Lakshmi Devi?
OPP
2. Whether late Sh. Buta Mal became absolute owner of the
suit properties after the demise of Smt. Lakshmi Devi on
the basis of Will dated 11121968 executed by her? OPD
8. Thereafter, plaintiff expired and his LRs were brought on record.
9. At the stage of PE, ld. Counsel for the LRs of the deceased plaintiff
submitted that no evidence is required on behalf of the LRs of the deceased
plaintiff and on his submissions, PE was closed vide order dated 07112013.
10. DE was also closed vide order dated 18112014, at the request of ld.
Counsel for the defendant.
11. I heard final arguments on behalf of the ld. Counsel for LRs of the
Suit No. 293/12 5/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
deceased plaintiff and ld. Counsel for the defendant.
12. I considered the submissions of ld. Counsel for LRs of the deceased
plaintiff and ld. Counsel for the defendant and perused the entire record. My issue
wise findings are as under :
Findings on issue no. 1 : Whether the suit has been properly valued for
purposes of courtfee and jurisdiction? If not, to what effect? OPD
13. It is submitted by the ld. Counsel for LRs of the plaintiff that the
defendant had stated in his WS that the value of the alleged share of the plaintiff is
not less then Rs.1,50,000/ and the plaintiff is ready to pay the court fee on this
amount. He further submits that this court has, at present, pecuniary jurisdiction
where the value of the suit is upto Rs.3 lacs.
14. Considering the submissions of ld. counsel for LRs of the plaintiff as
submitted above and accepting the value of the share of the plaintiff as Rs.1.50
lacs as stated in the WS, I am of the view that the LRs of the plaintiff have to pay
court fee on Rs.1.50 lacs and therefore they are directed to furnish the deficient
court fee accordingly. Since the pecuniary jurisdiction of this court, at present,
is upto Rs.3 lacs, I am of the view that this court has pecuniary jurisdiction to
decide the present suit. This issue is decided accordingly.
Suit No. 293/12 6/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
Findings on issue no. 2 : Whether the suit is liable to be stayed in view of the
pendency of probate proceedings in the High Court? OPD
15. The ld. counsels for LRs of the plaintiff as well as defendant have
agreed that this issue has become infructuous as the Probate proceedings before
the Hon'ble High Court of Delhi has already been completed.
16. In my view, it would be appropriate to decide the additional issue
nos. 1 and 2 framed on 28032013 together.
Findings on additional issue no. 1 : Whether late Sh. Buta Mal had any right
or testamentary capacity to execute the Will dated 28071978 under the Will
dated 11121968 executed by Smt. Lakshmi Devi? OPP
and
Findings on additional issue no. 2 : Whether late Sh. Buta Mal became
absolute owner of the suit properties after the demise of Smt. Lakshmi Devi
on the basis of Will dated 11121968 executed by her? OPD
17. It is submitted by the ld. counsel for LRs of the plaintiff that the only
question that arises for deciding this issue is the construction / interpretation of the
Will dated 11121968 executed by Smt. Lakshmi Devi, mother of the parties and if
this Hon'ble Court is pleased to arrive at a conclusion upon interpreting the Will
dated 11121968 executed by the mother of the parties that absolute interest was
bequeathed upon Sh. Boota Mal, father of the parties and he had become absolute
owner of the suit property after the demise of Smt. Lakshmi Devi and had right /
testamentary capacity to execute the Will dated 28071978, the suit deserves to be
Suit No. 293/12 7/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
dismissed and if this Hon'ble Court is pleased to arrive on conclusion that late Sh.
Boota Mal had not become absolute owner of the suit property after the demise of
late Smt. Lakshmi Devi and had no right/ testamentary capacity to execute the Will
dated 28071978, in favour of the defendant, then the suit is to be decreed in
favour of the plaintiff. Ld. Counsel for the defendant also submitted the same
arguments.
18. It is further submitted by the ld. Counsel for LRs of the plaintiff that in
the Will dated 11121968 executed by late Smt. Lakshmi Devi, late Sh. Boota Mal
was only given restricted right and was not made owner of the suit properties and
therefore, late Sh. Boota Mal had no right to execute the Will dated 28071978 and
as such the defendant is not having exclusive right and interest in the suit property
and the plaintiff and the defendant have equal rights in the suit properties. Ld.
counsel for LRs of the plaintiff has cited following caselaws in support of his
arguments :
1. Kaivelikkal Ambunhi (dead) by LRs & ors. vs. H. Ganesh
Bhandary, AIR 1995 Supreme Court 2491;
2. Arunkumar and another vs. Shriniwas and others, (2003)
6 SCC 98 and
3. Kamla Nijhawan & ors. vs. Sushil Kumar Nijhawan & ors.,
215 (2014) DLT 386.
19. In caselaw namely Kaivelikkal Ambunhi (dead) by LRs & ors.
Suit No. 293/12 8/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
vs. H. Ganesh Bhandary (supra), It has been held that :
"the rules of interpretation of the "Will" are different
from the rules which govern the interpretation of other
documents say, for example, a Sale deed or a Gift
Deed or a Mortgage Deed or, for that matter any other
instrument by which interest in immovable property is
created. While in these documents if there is any
inconsistency between the earlier or the subsequent
part or specific clause interse contained therein, the
earlier part will prevail over the latter as against the
rule of interpretation applicable to a Will under which
the subsequent part, clause or portion prevails over
the earlier part on the principle that in the matter of
"Will" the testator can always change his mind and
create another interest in place of the bequest already
made in the earlier part or on an earlier occasion.
Undoubtedly, it is the last Will which prevails".
20. In caselaw namely Arunkumar and another vs. Shriniwas and
others (Supra), it has been held by Hon'ble Supreme Court that :
"the intention of testator to be given primary
importance and the court should construe the words
in the background of the intended meaning which the
testator himself desired to ascribe to the words used.
The intention of the testator to be gathered from
recitals in the Will surrounding circumstances
disclosed from the Will, underlying scheme of the
disposition made under the Will as also the reasons
for making be bequest therein. The will must be
construed objectively and conclusion must be
deducted by a rational process of reasoning".
21. In caselaw namely Kamla Nijhawan & ors. vs. Sushil Kumar
Nijhawan & ors. (Supra), after applying five principals of caselaw namely
Navneet Lal @ Rangi vs. Gokul & ors. (1976) 1 SCC 630 and reading the Will as
a whole, it was held that :
Suit No. 293/12 9/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
"the testator only created life estate in respect of
various immovable properties in London and in India
in favour of the plaintiff and the Will was made
absolutely in favour of two sons after the death of the
wife".
22. On the other hand, ld. Counsel of the defendant has relied upon
following caselaws in support of his arguments filed alongwith the written
submissions :
1. Kunwar Rameshwar Bakhsh Singh and others vs.
Thakurain Bairaj Kaur and others, AIR 1935 PC 187;
2. Ram Gopal vs. Nand Lal and others, AIR 1951 SC 139;
3. Ramkishorelal and another vs. Kamlanarayan, AIR 1963
SC 890;
4. Ramachandra Shenoy & anr. vs. Mrs. Hilda Brite & ors.,
AIR 1964 SC 1323;
5. Navneet Lal @ Rangi vs. Gokul & ors., 1976 (1) SCC 630;
6. Mysore Minerals Ltd., M. G. Road, Bangalore vs.
Commissioners of Income Tax, Karnataka, Bangalore,
1999 (7) SCC 106;
7. Kamla Devi vs. Prabhawatti Devi (SMT) and others, 2001
(10) SCC 602;
8. Mauleshwar Mani and others vs. Jagdish Prasad and
others, 2002 (2) SCC 468;
9. Bay Berry Apartments (P) Ltd. vs. Shobha and others,
2006 (13) SCC 737;
10. Anil Kak vs. Kumari Sharada Raje and others, 2008 (7)
Suit No. 293/12 10/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
SCC 695;
11. Sadaram Suryanarayana and another vs. Kalla Surya
Kantham and another, 2010 (13) SCC 147 and
12. Mathai Samuel and others vs. Eapen Eapen (dead) by
LRs. And others, 2012 (13) SCC 80.
23. In caselaw namely Kunwar Rameshwar Bakhsh Singh and
others vs. Thakurain Bairaj Kaur and others (supra), it has been held that :
"it is a duty of the court to find out the intention of the
testator and that the intention is to be gathered from
the language used by the testator because it is the
words used in the instrument by which he has
conveyed the expression of his wishes. The meaning
to be attached to the words may, however, be affected
by surrounding circumstances and when this is the
case, those surrounding circumstances should be
taken into consideration. As laid down by S. 82 of the
Indian Succession Act, the meaning of any clause in a
Will is to be collected from the entire instrument and
all the parts of a Will are to be construed with
reference to each other and so as, if possible, to form
one consistent whole. Where it is not possible to
reconcile all the parts of the latter must prevail".
24. In caselaw namely Ram Gopal vs. Nand Lal and others (supra),
it has been held in para no. 7 that :
"In construing a document whether in English or in
vernacular, the fundamental rule is to ascertain the
intention from the words used; the surrounding
circumstances are to be considered but that is only
for the purpose of finding out the intended meaning of
the words which have actually been employed".
and in para no. 13 it is held that :
"The extent of interest, which the donee is to take,
depends upon the intention of the donor as
Suit No. 293/12 11/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
expressed by the language used, & if the dispositive
words employed in the document are clear
unambiguous & import absolute ownership, the
purpose of the grant would not, by itself, restrict or
cut down the interest."
25. In caselaw Ramkishorelal and another vs. Kamlanarayan
(supra), it has been held that :
"The golden rule of construction, it has been said, is
to ascertain the intention of the parties to the
instrument after considering all the words, in their
ordinary, natural sense. To ascertain this intention,
the Court has to consider the relevant portion of the
document as a whole and also to take into account the
circumstances under which the particular words were
used. Very often the status and the training of the
parties using the words have to be taken into
consideration. It has to be borne in mind that very
many words are used in more then one sense and that
sense differs in different circumstances. Again, even
where a particular word has to a trained conveyancer
a clear and definite significance and one can be sure
about the sense in which such conveyancer would use
it, it may not be reasonable and proper to give the
same strict interpretation of the word when used by
one who is not so equally skilled in the art of
conveyancing. Sometimes it happens in the case of
documents as regards disposition of properties,
whether they are testamentary or nontestamentary
instruments, that there is a clear conflict between
what is said in one part of the document and in
another. A familiar instance of this is where in an
earlier part of the document some property is given
absolutely to one person but later on, other directions
about the same property are given which conflict with
and take away from the absolute title given in the
earlier portion. It is well settled that in case of such a
conflict the earlier disposition of absolute title should
prevail and the later directions of disposition should
be disregarded as unsuccessful attempts to restrict
the title already given. It is clear, however, that an
attempt should always be made to read the two parts
Suit No. 293/12 12/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
of the document harmoniously, if possible, it is only
when this is not possible e.g. Where an absolute title
is given in clear and unambiguous terms and the later
provisions trench on the same, that the later
provisions have to be held to be void".
26. In caselaw Ramachandra Shenoy & anr. vs. Mrs. Hilda Brite &
ors. (supra), it is held that :
"It is one of the cardinal principles of construction of
Wills that to the extent that it is legally possible effect
should be given to every disposition contained in the
Will unless the law prevents effect being given to it.
Of course, if there are two repugnant provisions
conferring successive interests, if the first interest
created is valid the subsequent interest cannot take
effect but a Court of construction will proceed to the
farthest extent to avoid repugnancy, so that effect
could be given as far as possible to every
testamentary intention contained in the Will. It is for
this reason that where there is a bequest to A even
thought it be in terms apparently absolute followed by
a gift of the same to B absolutely "on" or "after" or
"at" A's death. A is primafacie held to take a life
interest and B an interest in remainder, the apparently
absolute interest of A being cut down to accommodate
the interest created in favour of B".
27. In caselaw Navneet Lal @ Rangi vs. Gokul & ors. (supra), five
principles for constructions of the Wills were held to be as under :
(1) "In construing a document whether in English or in
vernacular the fundamental rule is to ascertain the
intention from the words used; the surrounding
circumstances are to be considered; but that is only
for the purpose of finding out the intended meaning of
the words which have actually been employed.
(2) In construing the language of the Will the court is
entitled to put itself into the testator's armchair and is
bound to be in mind also other matters than merely
Suit No. 293/12 13/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
the words used. It must consider the surrounding
circumstances, the position of the testator, his family
relationship, the probability that he would use words
in a particular sense. But all this is solely as an aid to
arriving at a right construction of the Will, and to
ascertain the meaning of its language when used by
that particular testator in that document.
(3) The true intention of the testator has to be gathered
not by attaching importance to isolated expressions
but by reading the Will as a whole with all its
provisions and ignoring none of them as redundant or
contradictory.
(4) The Court must accept, if possible, such construction
as would give to every expression some effect rather
than that which would render any of the expression
inoperative. The Court will look at the circumstances
under which the testator makes his Will, such as the
state of his property, of his family and the like. Where
apparently conflicting dispositions can be reconciled
by giving full effect to every word used in a document,
such a construction should be accepted instead of a
construction which would have the effect of cutting
down the clear meaning of the words used by the
testator. Further, where one of the two reasonable
constructions would lead to intestacy, that should be
discarded in favour of a construction which does not
create any such hiatus".
(5) It is one of the cardinal principles of construction of
Wills that to the extent that it is legally possible effect
should be given to every disposition contained in the
Will unless the law prevents effect being given to it.
Of course, if there are two repugnant provisions
conferring successive interests, if the first interest
created is valid the subsequent interest cannot take
effect but a court of construction will proceed to the
farthest extent to avoid repugnancy, so that effect
could be given as far as possible to every
testamentary intention contained in the Will."
28. In caselaw Mysore Minerals Ltd., M. G. Road, Bangalore vs.
Suit No. 293/12 14/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
Commissioners of Income Tax, Karnataka, Bangalore (supra), it has been held
that :
"the meaning of the terms "own", "ownership",
"owned" depend on the context in which terms are
used".
29. In caselaw Kamla Devi vs. Prabhawatti Devi (SMT) and others
(supra), it has been held in para no. 8 that :
"The Will in its earlier part recites that on the
testator's death, his wife (the appellant), shall become
the owner of the property which survives. Use of the
word "survives" here means what remains after the
testator's death. While the testator was still living, he
may dispose of some and thus she would become the
owner of what survives. Similarly, no rider is placed
in this Will, after vesting of this property unto her or
in any way limiting her right of transfer or disposal.
Finally, the words subsequent to the testator's "death
the persons enumerated thereinafter shall be the
owners of the property that subsists" make it
absolutely clear that this property given to her under
the Will was not limited but made her absolute owner.
The significant words in the said sentence record
clearly, subsequent to the death of the appellant, the
persons enumerated in the Will shall be the owner of
the property of what subsists. This means, whatever
remains, or the residual property at the time of her
death. It clearly confers on the appellant absolute
ownership and not limited ownership".
30. In caselaw Mauleshwar Mani and others vs. Jagdish Prasad
and others (supra), it has been held in para no. 8 that :
"The first part of the Will provided that after the death
of the testator or author of the Will, his wife whose
name is Smt. Sona Devi would be entitled to the entire
assets and properties of Jamuna Prasad with the right
of transfer. The second part of the Will is that after
Suit No. 293/12 15/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
the death of Smt. Sona Devi nine sons of the
daughters would inherit the property. Here what we
are concerned with is whether Smt. Sona Devi has
acquired an absolute estate or a limited estate under
the Will. In this connection the employment of words
"pane ki musthak" and "ba akhtiar intakal" in the Will
which means entitlement of properties with the right
of transfer are very relevant. It is obvious from the
aforesaid clause that the testator conferred an estate
by providing that the wife would be entitled to get the
property with right of alienation. Whether the
property has been given by a testator to the devisee
with a right of alienation such bequeath is a
conferment of an absolute estate. Thus the first
devisee was to get the property with a right of transfer
under the Will and under subsequent clause the very
same property was to go to the nine sons of the
daughters after the death of the first devisee. The
Will, therefore, gave in the express term inheritable
estate with power of alienation to Smt. Sona Devi. We
are, therefore, very clear in our mind that what was
given to Smt. Sona Devi was an unlimited and an
absolute estate".
it has been held in para no. 11 that :
"From the decisions referred to above, the legal
principle that emerges, interalia are:
(1) where under a Will, a testator has bequeathed
his absolute interest in the property in favour of his
wife, any subsequent bequest which is repugnant to
the first bequeath would be invalid; and
(2) where a testator has given a restricted or
limited right in his property to his widow, it is open to
the testator to bequeath the property after the death of
his wife in the same Will".
and it has further been held in para no. 12 that :
"In view of the aforesaid principles that once the
testator has given an absolute right and interest in his
entire property to a devisee it is not open to the
testator to further bequeath the same property in
favour of the second set of persons in the same Will, a
Suit No. 293/12 16/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
testator cannot create successive lagatees in his Will.
The object behind is that once an absolute right is
vested in the first devisee the testator cannot change
the line of succession of the first devisee, Where a
testator having conferred an absolute right on anyone,
the subsequent bequest for the same property in
favour of other persons would be repugnant to the
first bequest in the Will and has to be held invalid".
31. In caselaw Bay Berry Apartments (P) Ltd. vs. Shobha and
others (supra), it has been held that :
"only when the contents are not clear the application
of principles of construction of a document have to be
applied. It is further held that in construing the
document, the court can not assign any other
meaning. Although some parts of a document should
not be read in isolation, the contents of the (general)
bequeathing clause being really important, would
have primacy over other parts of the Will".
32. In caselaw Anil Kak vs. Kumari Sharada Raje and others
(supra), it has been held that :
"the intention of the testator has to be found out from
the entire Will and the Will has to be read as a whole
and endeavor should be made to give effect to each
part of it. Only when one part cannot be given effect
to, having regard to another part, the principle of
purposive construction or general principles of
construction of deeds may be applied. If a part is
invalid, the entire document need not be invalidated".
33. In caselaw Sadaram Suryanarayana and another vs. Kalla
Surya Kantham and another (supra), it has been held that :
"The first part of the Will executed by K makes an
unequivocal and absolute bequest in favour of the
daughters of the testatrix. The use of words like
Suit No. 293/12 17/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar
"absolute rights of sale, gift, mortgage, etc."
employed by the testatrix make the intention of the
testatrix abundantly clear. The contention of the
respondentplaintiff that even then the same, should
be treated only as life estate otherwise the second part of the Will by which the female offspring of the legatees would get the property could not take effect, does not bear scrutiny because the ultimate purpose of interpretation of any document is to discover and give effect to the true intention of the executor".
34. In caselaw Mathai Samuel and others vs. Eapen Eapen (dead) by LRs and others (supra), it has been held that :
"generally governing principles as to court to interpret a document only if it is ambiguous or its meaning is uncertain and primary rule as to interpretation of a document is to ascertain the intention of executants of document and said intention must be gathered from what has been said/ written in the document and not what may be supposed to have been intended and the words used in document must be understood in their normal and natural meaning with reference to the language employed therein."
35. Ld. counsel for the defendant submits that the very first line of the Will reads as :
"This Will is executed on....at.... by me in favour of Shri Boota Mal son of ....."
and thus clearly establishes that the predominant and prominent intention of the testatrix was to make the Will in favour of her husband Boota Mal. I am of the view that the intention of the testatrix has to be gathered by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory as held in Navneet Lal @ Rangi vs. Gokul & ors. (supra). Therefore, the intention Suit No. 293/12 18/22 Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar of the testatrix can not be gathered only from the first line of the Will which has been referred by the ld. counsel for the defendant.
36. It is further submitted by the ld. counsel for the defendant that the intention of the testatrix to exclude the daughters is what emerges from Clause 4. I agree with the submissions of ld. counsel for the defendant that the daughters were excluded by Clause 4 of the Will executed by late Smt. Lakshmi Devi.
37. It is further submitted by the ld. counsel for the defendant that Clause 5 of the Will read with preamble clearly establishes the intention of the testatrix and two aspects emerged: one, that the husband was to be the owner and second, the sons and daughters will have no right in the properties. Again I am of the view that only by considering the clause 4, the intention of the testatrix can not be ascertained and the entire Will has to be considered to gather the intention of the testatrix.
38. I considered and applied the ratio of the caselaws as cited above by Ld.counsel for the LRs of the plaintiff and Ld.counsel for the defendant for interpreting the Will executed by Smt.Lakshmi Devi and I am of the view that the intention of Smt.Lakshmi Devi was to create only life estate in respect of properties as mentioned in the said Will in favour of Late Sh.Boota Mal, her husband. The Suit No. 293/12 19/22 Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar ratio of judgment namely Arunkumar and another vs. Shriniwas and others (Supra) is squarely applicable to the facts of the present case. Therefore, I am of the view that the Will executed by Smt. Lakshmi Devi can not be construed to the effect that the properties as mentioned in the said Will were bequeathed in favour of her husband Boota Mal as absolute estate as such a construction would not only amount to rewriting the several clauses in the said Will but would also constitute violence to the language and further defeat the very intention of the testatrix. The only possible and reasonable construction that could be placed on the Will executed by Smt.Lakshmi Devi for giving full effect to her intention as found expressed in all the relevant portion of the said Will would be to construe the bequest made in favour of her husband as one for life interest and the remainder bequeathed absolutely in favour of her two sons after death of her husband. Moreover, in clause 6 of the Will dated 11121968, it has been categorically mentioned that above cited persons (who are Pishori Lal and Gulshan Kumar) will become fullfledged owners of the aforesaid properties after my death as well as death of my husband. This shows that the intention of the testatrix Smt. Lakshmi Devi was that the properties in question must go to her sons namely Gulshan Kumar and Pishori Lal and they shall be fullfledged owners of the same which again shows that her intention was not to make Sh. Boota Mal, her husband, the absolute owner of the Suit No. 293/12 20/22 Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar properties as mentioned in the Will. Therefore, it is held that late Sh. Boota Mal had not become the absolute owner of the suit properties after demise of Smt. Lakshmi Devi on the basis of the Will dated 11121968 executed by her and had no right or testamentary capacity to execute the Will dated 2807 1978 under the Will dated 11121968 executed by her wife Smt. Lakshmi Devi. Thus, additional issues No.1 and 2 are decided accordingly. Findings on issue no. 3 : Whether the plaintiff is entitled to the relief claimed in the suit? OPP
39. The plaintiff had claimed that a decree may be passed in his favour that he has ½ share of the two plots (as mentioned in the Will executed by late Smt. Lakshmi Devi) and ½ share in the 2nd floor of property bearing No. 34E/3, East Patel Nagar, New Delhi and he also has first floor i.e. upper portion of the said property in his share.
40. It was stated in the WS that two plots as mentioned in the Will were acquired and plaintiff has also not disputed this fact. Therefore, partition of the said plots has become infructuous.
41. In view of my findings on all the issues and particularly on two additional issues framed on 28032013, it is held that the LRs of plaintiff are Suit No. 293/12 21/22 Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar entitled to upper portion/ first floor and ½ share in 2 nd floor of property bearing No. 34E/3, East Patel Nagar, New Delhi. This issue is decided accordingly.
Relief
42. In view of my findings on all the issues as above, the suit is decreed to the effect that the LRs of the plaintiff are entitled to upper portion/ first floor and ½ share in 2nd floor of property bearing No. 34E/3, East Patel Nagar, New Delhi. Cost of the suit is also awarded. Decree sheet be prepared accordingly after payment of the deficient court fees. File be consigned to the record room after necessary compliance.
Announced in the open court (CHANDRA BOSE)
on the 28th day of February, 2015 Civil JudgeSenior Division
Central District, Delhi.
Suit No. 293/12 22/22
Peshori Lal (since deceased) thru. LRs Vs Gulshan Kumar