Delhi High Court
Sandeep Soni vs Sanjay Roy And Others on 1 February, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
NEUTRAL CITATION NO: 2022/DHC/000739
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st February, 2022
+ O.M.P. (COMM) 36/2021 & I.A. 1193/2021
SANDEEP SONI ..... Petitioner
Through: Mr. Rohan Jaitley, Mr. Rakesh Saini,
Mr. Akshay Sharma and Mr. Dev
Pratap Shahi, Advocates.
versus
SANJAY ROY AND OTHERS ..... Respondents
Through: Mr. Jai Sahai Endlaw and
Mr. Ashutosh Rana, Advocates for R-
2 & 3.
Mr. Lalit Bhardwaj and Mr. Jatin
Anand Dwivedi, Advocates for R-1.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
[VIA VIDEO CONFERENCING] SANJEEV NARULA, J. (Oral):
1. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereinafter, "the Act'], impugns the Arbitral Award dated 2nd March, 2020 passed by the Sole Arbitrator.
BRIEF FACTS
2. Shri. Subhash Chand Roy, the deceased father of the Respondents [hereinafter, "Testator"], was the absolute owner of lease-hold rights of O.M.P. (COMM) 36/2021 Page 1 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 property bearing 'No. D-603, Chittaranjan Park, New Delhi-110017 (ad measuring 160 sq. yards)' [hereinafter, "suit property"]. He executed a Will dated 15th March, 1988 [hereinafter, the "Will"], bequeathing the suit property in favour of his wife. He passed away on 30th January, 1991 and was survived by his wife viz. Smt. Kalyani Roy (since deceased) and children viz. Respondents No. 1 to 3.
3. On the basis of the afore-noted Will and confirmatory affidavits filed by the Respondents (dated 22nd October, 1994) accepting the Will, the suit property stood mutated in the name of Smt. Kalyani Roy in the records of the Land & Development Office [hereinafter, "L & DO"] vide Mutation Letter No. L&DO/PSII/280 dated 6th April, 1995. Subsequently, a 'Conveyance Deed' dated 7th December, 2001, was executed by the L & DO in favour of Smt. Kalyani Roy.
4. As owner of the suit property, Smt. Kalyani Roy executed a 'Collaboration Agreement' dated 9th August, 2016 with the Petitioner, and in terms thereof, he was to demolish the existing structure on the suit property, develop and reconstruct the same after getting the building plan sanctioned from the concerned authority. The Collaboration Agreement specified Petitioner's allocation in the proposed redeveloped property as well as the schedule of payments. Subsequently, on 25th September, 2016, a 'Supplementary Agreement' was executed between Smt. Kalyani Roy and Petitioner, wherein it was agreed that since possession of the Ground Floor of the suit property was not handed over to the Petitioner, a further payment O.M.P. (COMM) 36/2021 Page 2 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 of Rs. 80,00,000 would be made to Smt. Kalyani Roy only on handing over of the complete possession of the property. Thereafter, on 27th October, 2016, an Agreement (Deed of Extension) was executed between Smt. Kalyani Roy and the Petitioner, whereby time period for handing over the vacant and physical possession of the suit property was extended till 30th April, 2017.
5. On 28th September, 2016, Respondent No. 1 viz. Shri. Sanjay Roy filed a suit for injunction before the Court of Senior Civil Judge, Saket District Courts, New Delhi, wherein the Smt. Kalyani Roy, Respondents No. 2 and 3 and the Petitioner were restrained from dispossessing Respondent No. 1 from the ground floor of the suit property. Pursuant thereto, Smt. Kalyani Roy requested Petitioner for extension of time for handing over the possession of the suit property. Thereafter, Smt. Kalyani Roy demised on 19th January, 2017, leaving behind a will dated 30th March, 2016 - bequeathing her property to her four children i.e., Respondents herein, in equal shares.
6. According to the Petitioner, Respondents being the legal heirs of the owner, were legally bound to perform the obligations of their mother - late Smt. Kalyani Roy, in terms of the Collaboration Agreement. Since they failed to hand over the vacant and physical possession of the suit property, they breached their obligations under the afore-noted Agreements. Thus, owing to the disputes between the parties, consequent to a petition filed by the Petitioner under Section 11 of the Act, the Arbitral Tribunal was O.M.P. (COMM) 36/2021 Page 3 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 constituted by this Court on 6th September, 2018.1 AT ARBITRATION
7. In arbitration, Petitioner made the following claims:
"(i) Respondent No.1 not to obstruct the access of the Claimant to the first, second and terrace floors of the property No. D-603, Chittranjan Park, New Delhi- 110019.
(ii) The Respondent No.1 to hand over the possession of the Ground Floor of the property No. D-603, Chittranjan Park, New Delhi-110 019 to give effect to the Collaboration Agreement dated 9-8-2016 for the redevelopment and reconstruction of the property bearing No. D-603, Chittranjan Park, New Delhi-110019.
(iii) to direct the Respondent No. 1 to execute all documents for submission to Competent Authorities for giving full effect and compliance of the Collaboration Agreement dated 9th August, 2016 executed by Mrs. Kalyani Roy and in case of his failure to do so to authorize Respondents No.2 and 3 to execute the documents on behalf of Respondent No.1 which may be deemed to have been executed by Respondent No.1.
(iv) Award the cost of arbitration proceedings to the Claimant;"
8. Respondent No. 1 - Shri. Sanjay Roy filed a Statement of Defence and controverted the claims. In contrast, Respondents No. 2 and 3 supported the Petitioner and wanted the suit property to be developed/ reconstrued in terms of the Collaboration Agreement and Supplementary Agreements.
9. After due consideration of the materials placed on record, the Arbitral Tribunal denied the claims/ reliefs sought by the Petitioner. The learned Arbitrator concluded that Smt. Kalyani Roy only had a life interest in the suit property, and consequently, had no right to enter into any Agreement with the Petitioner on the footing that she is the absolute owner of the property. Aggrieved with the aforesaid conclusion, the Petitioner has 1 In ARB.P. 413/2017 O.M.P. (COMM) 36/2021 Page 4 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 approached this Court, impugning the Arbitral Award.
CONTENTION OF THE PARTIES ON BEHALF OF THE PETITIONER
10. Mr. Rohan Jaitley, counsel for the Petitioner, contends that the impugned Award is patently illegal as the learned Arbitrator misinterpreted the Testator's Will and arrived at a wrong conclusion that Smt. Kalyani Roy did not have an absolute title to the suit property in terms of the Will. The Will is clear and unambiguous and makes intention of the Testator clear that he indeed wanted to bequeath the suit property absolutely to his wife viz. Smt. Kalyani Roy. The affidavits filed by Respondent No. 1 before the L & DO - wherein he accepts the said Will to be genuine and states that he has no objection in case the Will was to be acted upon, was entirely ignored. Further, he submits that the reliance placed upon the subsequent paragraph appearing in the Will, does not in any manner negate the absolute bequest by the Testator in favour of late Smt. Kalyani Roy.
ON BEHALF OF RESPONDENTS NO. 2 & 311. Mr. Jai Sahai Endlaw, counsel for Respondents No. 2 and 3, supports the contentions of the Petitioner and submits that the impugned Award is indeed liable to be set aside - in view of the well-settled legal position relating to construction of wills being ignored by the learned Arbitrator. Mr. Endlaw submits that the Testator had chosen the language in his Will very carefully, making his intention clear that he wanted his wife viz. late Smt. Kalyani Roy to become the absolute owner of the suit property. This O.M.P. (COMM) 36/2021 Page 5 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 becomes evident from a bare perusal of the Will in question. In this regard, Mr. Endlaw places reliance upon the judgments of the Supreme Court in Sadaram Suryanarayan & Anr. v. Kalla Surya Kantham & Anr.2 and Madhuri Ghosh v. Debobroto Dutta & Anr.3 As regards the observations made by the learned Arbitrator on the alternate arguments qua Section 14 of the Hindu Succession Act, 1956, Mr. Endlaw submits that the law in relation to said provision, as settled by the Supreme Court, has also been misunderstood by the Arbitrator. In support of his submissions, he places reliance upon V. Tulasamma v. V. Sesha Reddy.4 ON BEHALF OF RESPONDENT NO. 1
12. On the other hand, Mr. Lalit Bhardwaj, counsel for Respondent No. 1, defends the impugned Award and submits that the decision as well as reasoning of the learned Arbitrator calls for no interference. He submits that the learned Arbitrator has properly construed the Will, as late Smt. Kalyani Roy was given only a life interest in the suit property and not full ownership. He submits that the if the meaning of the Will is unclear, then the Court has to construe it in order to ascertain the real intention of the Testator. The Court is empowered to put itself into the testator's armchair and is also bound to bear in mind matters other than the mere use of words viz. surrounding circumstances, position of the testator, his familial relationships, the probability for using particular words in a certain sense. An isolated expression found in the Will should not be given undue importance, and rather, the Will must be read as a whole in order to construe 2 2010 SCC OnLine SC 1198.
3(2016) 10 SCC 805.
O.M.P. (COMM) 36/2021 Page 6 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 it in the proper perspective. While construing a will, it is permissible to look at the surrounding circumstances - which the learned Arbitrator has rightly taken into consideration. The findings given by the learned Arbitrator are in consonance with the law expounded on the subject and calls for no interference. In support of this submission, Mr. Bhardwaj places reliance upon the decisions in Venkata Narasimha v. Parthasarathy,5 Raj Bajarang Bahadur Singh v. Balchtraj Kuer,6 Pearey Lal v. Rameshwar Das,7 Navneet Lal @ Rangi v. Gokul,8 Usha Subbarao v. B.E. Vishveswariah,9 Madhuri Ghosh (supra) and V. Balwant Kaur v. Charan Singh.10
13. Further, Mr. Bhardwaj submits that regardless of the view taken by the learned Arbitrator, the impugned Award cannot be interfered under any of the grounds urged by the Petitioner, considering the limited scope of interference provided under Section 34 of the Act. He submits that the Supreme Court in Project Director, National Highways Authority of India v. M. Hakeem & Anr.11 held that the Court has no power to modify/ vary an arbitral award and that a challenge to an award under Section 34 does not entail a challenge on merits of the award. He submits that the Award is well- reasoned and the Court while exercising jurisdiction under Section 34 of the Act is not to sit in an appeal. Further, neither is the Award is in conflict with the public policy of India, nor is it vitiated by any patent illegality appearing 4 (1977) 3 SCC 99.
5(1913) 41 IA 51 (PC).
6AIR 1953 SC 7.
7AIR 1963 SC 1703.
8(1976) 1 SCC 630.
9AIR 1996 SC 2260.
10(2000) 6 SCC 310.
11(2021) 9 SCC 1.
O.M.P. (COMM) 36/2021 Page 7 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 on the face of the award. On this proposition, Mr. Bhardwaj places reliance on the decision of the Supreme Court in MMTC Ltd. v. Vedanta Ltd.,12 Ssangyong Engg. & Construction Co. Ltd. v. NHAI.13 ANALYSIS
14. The Court has considered the contentions of all counsel. The claims of the Petitioner before the Arbitral Tribunal were in the nature of specific performance of the Collaboration Agreement - executed with late Smt. Kalyani Roy. However, in view of the objection raised by Respondent No. 1 qua the title of Smt. Kalyani Roy, an issue fell for consideration before the Tribunal as to whether late Smt. Kalyani Roy acquired an 'absolute interest' or a 'life interest' in respect of the suit property under the Testator's Will. On this issue, the learned Arbitrator found Smt. Kalyani Roy to only have a life interest in the suit property, and thus, it was held that she could not have entered into the Collaboration Agreement with the Petitioner.
15. Since the controversy centres around construction of a will, it would be imperative to take note of the contents of the Will in dispute, the relevant portion whereof reads as follows:
"I devise and bequeath my three-storyed house No.603, constructed on plot of land measuring 160 sq. yds. Situated at Chittranjan Park, New Delhi, in favour of my wife Mrs. Kalyani Roy, who shall become the owner of the same with all rights, and privileges after my death only and shall get it transferred and mutated in her own name in the records of departments concerned. In case she pre-deceases me then my above said property shall be inherited by (1) Mrs. Gauri Sarkar wife of Mr. Pranob Kumar Sarkar, who is my daughter, and 12 (2019) 4 SCC 163.13
(2019) 15 SCC 131.O.M.P. (COMM) 36/2021 Page 8 of 20
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 my three sons named (i) Sh. Partha Sarathi Roy (ii) Sh. Amitabh Roy and (iii) Sh. Sanjay Roy, jointly and in equal shares, after my death only.
I further declare that in case my wife Mrs. Kalyani Roy dies after me, then after her death my above said house shall be inherited by my daughter Mrs. Gauri Sarkar wife of Mr. Pranob Kumar Sarkar, who is my daughter, and my three sons named (i) Sh. Aartha Sarathi Roy (ii) Sh. Amitabh Roy and (iii) Sh. Sanjay Roy, jointly and in equal shares, who shall be entitled to get the same transferred and mutated in their joints names in the records of the departments concerned."
[Emphasis Supplied]
16. The learned Arbitrator's findings are as follows:
"I have considered the matter in light of the rival submissions, the judicial precedents and the Contents of the will. A few fundamental principles of general nature on the construction of wills have to be first noticed. The mean of a will may not be always be clear, in which case it is the duty of the court to construe the will in order to ascertain the real intention of the testator. In Venlcatd Narasimha vs. Parthasarthy (1913) 41 IA 51 (PC), the Privy Council held that in construing the language of the will the court is entitled to put itself into the testator's armchair and is therefore bound to bear in mind also matters other than the mere words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use particular words in a particular sense etc. In Raj Bajarang Bahadur Singh vs. Bakhtraj Kuer (A1R 1953 SC 7), the Supreme Court held that 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 al1 its provisions and ignoring none of them as redundant or contradictory. In Pearey Lal vs Rameshwar Das (AIR 1963 SC 1703) it was held that in construing a Will it is permissible to look at the surrounding circumstances such as the state of the testator's property, his family and the like. Apparently conflicting dispositions, if they can be reconciled by giving full effect to every word used in the will, should be so reconciled instead of accepting a construction that would cut down the clear meaning of the words used by the testator. These principles of construction were reiterated by the Supreme Court in Navneet Lal@ Rangi vs. Gokul (cited supra) and Usha Subbarao vs. B.E. Vishveshwaria (AIR 1996 SC 2260).O.M.P. (COMM) 36/2021 Page 9 of 20
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 In my opinion, app1ying the general rule of construction of wills as expounded in the judgments of the Supreme Court cited above, both the clauses in the will - the first clause which gave the property to Kalyani Roy absolutely and the later clause which gave her a life interest - can be harmoniously construed and reconciled if regard is had to the intention of the Subhash Roy dictated by the surrounding circumstances and the language used by him. Under the first clause, the property was bequeathed to Kalyani Roy with full ownership rights. It was immediately followed by words which contemplated the contingency of Kalyani Roy pre-deceasing the testator, in which case the property was to go to their four children "jointly and in equal shares" after the death of the testator. This shows that the wish of the testator was that the property sha11 continue to remain with the children. The later clause, relied upon by Mr. Bharadwaj, is consistent with this intention, in as much as it provides that in case Kalyani Roy dies after the testator (which actually happened) - i.e., after the will of the testator had come into effect - then the property shall be inherited by the 4 children "jointly and in equal shares".
The intention of the testator seems to give the property in equal shares to the 4 children not only after his death (in case Kalyani pre- deceased him) but also after the death of Kalyani and this intention cannot be given effect to if the will is construed in Such a manner as to constitute Kalyani Roy as the absolute owner of the property under the will. The intention of the testator appears to be to secure a life interest to her during her lifetime and to confer the property upon the four children jointly and in equal shares, so that the property continues to remain with the family members. It also needs to be kept in view that in the third paragraph of the will, the testator has expressly stated that the will is being made in order to avoid dispute or litigation with respect to the property after his death. Thus, reading the will as a whole and taking into account the intention of the testator having regard not only to the language used but also to the surrounding circumstances, I am inclined to accept the view canvassed by Mr. Bharadwaj, learned counsel for Sanjay Roy (R-1) that Kalyani Roy was given only a life interest in the property under the will of her husband.
Mr. Rakesh Saini, learned counsel for the Claimant heavily relied on the judgment of the Supreme Court in Madhuri Ghosh and Another vs. Debobroto Dutta & Another (supra). In that case, there were no words of limitation used in the paragraph of the will by which the wife and daughter of the testator were given absolute right in the property and in the second. paragraph. The same persons were given only a life interest in the property which was to thereupon devolve on other persons with full rights of ownership. It was held that the earlier O.M.P. (COMM) 36/2021 Page 10 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 part of the directions prevail and therefore the property must be taken to have been bequeathed to the wife and daughter with absolute ownership rights. As against this, learned counsel for the first respondent has drawn my attention to an earlier ruling of the Supreme Court in Kaivelikkal Ambunchi (dead) by LRs and others vs. H. Ganesh Bhandari (1995) 5 SCC 444 in which on facts identical to the present case the Supreme Court, relying on Section 88 of the Indian Succession Act, 1925 together with its illustrations held that the rule of interpretation which says that in case of inconsistency between two clauses in a document it is the former which will prevail over the latter is confined to non-testamentary instruments and that in the case of a will, as stipulated in section 88 of the Indian Succession Act the last of the two inconsistent clauses shall prevail, and accordingly where a property is given under the first part of a will to a person absolutely and the same person is given only a limited interest in the same property in a later part of the will, it is the later part which will prevail. This judgment in my opinion governs the present case, having regard to the intention of Subhash Roy that the property shall continue to remain in his family and the ultimate beneficiaries, even after the death of Kalyani Roy, should be their four children who shall receive the property jointly and in equal shares. A will is the last wish of the testator. In the aforesaid judgment, the Supreme Court has observed in para 3 that in a will it is the subsequent part which 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". Similarly in V. Balwant Kaur vs. Charan Singh (2000) 6 SCC 310, it was held by the Supreme Court that where in the earlier part of the will the testator stated that his daughter shall be his heir, owner and title holder of all his properties but in the later part stated that on the death of the daughter the brothers of the testator shall be the heirs of the property, the recital in the later part of the will would operate and make the daughter only a limited estate holder in the properties bequeathed to her, on the principle that the last clause represents the last intention of the testator. This judgment also supports the contention of Mr. Bhardwaj.
I accordingly hold that on a proper construction and understanding of the will, Kalyani Roy was given only a. life interest in the CR Park property and not full ownership."
[Emphasis Supplied]
17. The learned Arbitrator has analysed the Will and concluded that the O.M.P. (COMM) 36/2021 Page 11 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 intention of the Testator was to bequeath the property in equal shares to his children - not after his death, but rather, after the death of his wife; and this intention cannot be given effect to, if the Will is construed in a manner so as to constitute Smt. Kalyani Roy as the absolute owner of the property under the Will. Accordingly, the learned Arbitrator has held that the intention of the Testator was only to give a life interest to Smt. Kalyani Roy. The reasoning and findings as disclosed in the impugned Award, can be summarised as follows: (i) the Will, in the first part, bequeathed the property to Testator's wife, and in the second part, bequeathed the property to his children viz. Respondents No. 1 to 4, after her demise; (ii) the aforesaid two clauses were inconsistent, and in such a situation, as stipulated under Section 88 of the Indian Succession Act, the last of the two inconsistent clauses shall prevail (relying upon the Kaivelikkal Ambunhi v. H. Ganesh Bhandary14 judgement); (iii) the intention of the Testator was to give the suit property to his children after his (and his wife's) lifetime; (iv) such bequest contained in the Testator's Will could not be given effect to, if the bequest is read absolutely in favour of Smt. Kalyani Roy; (v) the last clause in the Testator's Will - in favour of Respondents No. 1 to 4 - was the last intention of the Testator (relying upon V. Balwant Kaur v. Charan Singh 15 judgement); (vi) the bequest in favour of Smt. Kalyani Roy did not get enlarged into absolute interest, as contended by the Petitioner and Respondents No. 2 and 3; (vii) Respondent No. 1's participation in the mutation proceedings in favour of Smt. Kalyani Roy did not preclude him from questioning her title to the suit property.
14(1995) 5 SCC 444.
15(2000) 6 SCC 310.
O.M.P. (COMM) 36/2021 Page 12 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739
18. In the opinion of the Court, findings rendered by the learned Arbitrator are premised on an incorrect construction of the Will. Section 87 of the Indian Succession Act, 1925 postulates that the intention of a testator shall be effectuated as far as possible, and not be set-aside, merely because it cannot take effect to the full extent. The fourth paragraph of the Will in the impugned Award (referred to as the "first part" of the Will) is clear and unambiguous. The words used therein manifest Testator's intention, without any limitation. The bequest of the suit property in favour of his wife viz. late Smt. Kalyani Roy is evidently 'absolute' and 'unfettered'. The Testator uses precise expressions such as "devise and bequeath" in the first line, and thereafter, states that she shall become the "owner" of the suit property with "all rights and privileges"; the Testator also categorically declares that after his death, Smt. Kalyani Roy "shall get it transferred and mutated in her own name in the records of the department". The afore-noted words and expression are apt to describe an absolute bequest and conferment of full ownership of the suit property in favour of Smt. Kalyani Roy. Such bequest is not limited in any manner whatsoever and there is no room for any ambiguity. The paragraph appearing subsequently i.e., the fifth paragraph (referred to as the "second part" of Will) therefore, cannot be interpreted to limit or restrict the devolution of ownership in favour of Smt. Kalyani Roy. It is a well-settled proposition in relation to construction of wills that where an absolute bequest is made in respect of a property to a certain person, a subsequent bequest made qua the same property in the same will to other persons, which is repugnant to the first bequest, will have no effect.
O.M.P. (COMM) 36/2021 Page 13 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739
19. Indeed, the Will must be read as a whole. The golden rule of construction is to ascertain the intention of the parties to the instrument after considering all words in their ordinary and natural sense. The endeavour of the Court should be to effectuate the Testator's intention as far as possible in consonance with Section 87 of the Indian Succession Act, while reading the Will. The initial question for consideration is whether on a proper construction of the Will, an absolute bequest is made out in favour Smt. Kalyani Roy. The language of the "first part" of the Will brings out the true intention of the Testator. The intention, as gathered by the learned Arbitrator, by relying upon the subsequent bequest, is a complete misconstruction of the Will. The learned Arbitrator should have noticed that the earlier disposition in the Will was of the absolute title and the later directions qua such disposition should have been disregarded. This interpretation principle has been laid down in several decisions of the Supreme Court, as discussed hereinafter.
20. In Madhuri Ghosh & Anr. v. Debobroto Dutta & Anr. (supra), a question arose, regarding the construction of a will, the relevant clauses therein read as under:
"3. [...] Since the bone of contention revolves around the correct construction of this will. Paras 2 and 4 of the will are set out herein:
2. That House No. 77, Ram Bagh, Allahabad was inherited by me from my mother Smt Subodh Bala Ghose vide registered will dated 27-2-1983 and I am the absolute owner of said immovable property. So long as I am alive I shall be the exclusive owner of the said property and after my death my said House No. 77, Ram Bagh, Allahabad shall vest on my wife Smt Madhuri Ghose and my elder daughter Sunanda Ghose jointly. After the death of my wife Smt Madhuri Ghose my daughter Km Sunanda Ghose shall become the exclusive owner of the said house Property No. 77, Ram Bagh, Allahabad. In case Km Sunanda Ghose predeceases my O.M.P. (COMM) 36/2021 Page 14 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 wife Smt Madhuri Ghose, then Smt Madhuri Ghose shall become the exclusive owner of the said House Property No. 77, Ram Bagh, Allahabad. The ownership of my Ambassador Car No. UPD 2575 shall pass on to my wife Smt Madhuri Ghose.
4. That after the death of my wife Smt Madhuri Ghose and my daughter Km Sunanda Ghose, my grandson Indranil Chaudhary, son of Amit Chaudhary r/o AE- 232, Sector Salt Lake City, Calcutta shall become the owner of the ground floor of House No. 77, Ram Bagh, Allahabad and he shall be exclusive owner of the said portion and my granddaughter Km Mohana Chaudhary d/o Amit Chaudhary r/o AE-232, Sector Salt Lake City, Calcutta shall become the exclusive owner of second floor of House No. 77, Ram Bagh, Allahabad and my grandson Devopriyo Dutta s/o Devobrito Dutto r/o 77, Ram Bagh, Allahabad shall become the owner of Ist floor of House No. 77, Ram Bagh, Allahabad and none else shall have any right or title on the said house."
21. Dealing with the inconsistencies in the provisions of the said will, the Court held in view of the settled-law on the subject, clause 4 extracted above would not impact the bequest made under clause 2. Further, the Court expounded the legal principles on construction of a will in following words:
"11. From the decisions referred to above, the legal principle that emerges, inter alia, 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.
[Emphasis Supplied]
22. The learned Arbitrator has distinguished the afore-noted judgment and held it to be inapplicable. He held that that (i) there were no words of limitation used in the Will in the said case and that (ii) there was no apparent inconsistency in the provisions of the Will. The Court disagrees with the learned Arbitrator's analysis qua Madhuri Ghosh (supra). The principles laid down by the Supreme Court for resolving inconsistency in clauses of O.M.P. (COMM) 36/2021 Page 15 of 20 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 the wills, as noted above, have been completely ignored. The first part of the Will in question, as discussed above, is without limitation, and therefore, cannot be a distinguishing factor for disregarding the rationale in Madhuri Ghosh (supra). Secondly, in Madhuri Ghosh (supra), there were inconsistencies in the will therein, as categorically observed by the Supreme Court. Therefore, reasoning of the learned Arbitrator to depart from the legal principles elucidated in Madhuri Ghosh (supra) are not convincing. At this juncture it must be further noted that recently, the Supreme Court in M.S. Bhawani v. M.S. Raghu Nandan,16 reaffirmed the decision in Madhuri Ghosh (supra), holding as follows:
"12. 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 testator cannot create successive legatees in his will. The object behind is that once 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. In the present case, the testator Jamuna Prasad under the will had bequest his entire estate, movable and immovable property including the land under self- cultivation, house and groves, etc. to his wife Smt Sona Devi and thereafter by subsequent bequest the testator gave the very same properties to nine sons of his daughters, which was not permissible."
(emphasis supplied) Notably, these observations were reaffirmed by this Court in Madhuri Ghosh as well."
[Emphasis Supplied]
23. Further, in Ramkishorelal Narain v. Kamal Narain,17 whilst dealing with a question apropos the construction of a will, the Supreme Court examined an absolute bequest made in an earlier part of a will, which was in 16 2020 5 SCC 361.
O.M.P. (COMM) 36/2021 Page 16 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 conflict with directions made subsequent thereto - that curtailed the earlier absolute bequest. On this issue, it is apposite to note the observations of the Court, which are as follows:
"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 (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void."
24. As regards Arbitrator's reliance upon the judgements in Kaivelikkal Ambunhi v. H. Ganesh Bhandary (supra) and V. Balwant Kaur v. Charan Singh (supra), which reiterate the principle elucidated under Section 88 of the Indian Succession Act, the Court observes that each document has to be interpreted in the peculiar circumstances and keeping in view the language employed by the Testator. The reliance on caselaw on interpretation of Will is therefore relevant only on the proposition of law of general application.
25. That said, the Court finds the reliance placed on Section 88 of the Indian Succession Act to be misplaced. Firstly, the "rights and privileges"
(expression used in the Will) conferred on Smt. Kalyani Roy - include the right to use, exploit, alienate and/ or enter into any agreement as an owner. To hold that she had only a life interest, and consequently, no power to execute the Collaboration Agreement, is diminishing the absolute rights and privileges conferred on her. Secondly, Section 88 of the Indian Succession 17 1963 AIR 890.O.M.P. (COMM) 36/2021 Page 17 of 20
This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 Act will be attracted when two clauses in a will are inconsistent and irreconcilable to each other. The Supreme Court in Shyamal Kanti Guha v. Meena Bose18 has held that if it is possible to give effect to both the clauses, which although apparently appear to be irreconcilable, the Court must take recourse thereto. In the instant case, the "second part" of the Will can easily be reconciled with the first. It could come into operation if Smt. Kalyani Roy, during her lifetime, does not alienate or create third-party rights in the suit property. This is also in line with the intention expressed by the Testator for bequeathing the property to his children, if his wife pre-deceased him. Thus, the intention of the Testator was to bequeath the property to his wife - absolutely and without any limitation; and only if she did not alienate or exercise ownership rights in the same, it would then devolve amongst the Testator's children, after the lifetime of Smt. Kalyani Roy. However, under no circumstances, can the "second part" of the Will be construed to curtail the 'absolute interest' of Smt. Kalyani Roy to a 'limited interest', without power of alienation. Every expression in the Will has to be given effect to and if the interpretation given by the learned Arbitrator is accepted, it would render the first part inoperative. It amounts to re-writing the terms of the Will. The "second part" of the Will, therefore, has to be given effect to - in line with the general intention of the entire Will, and not by invoking Section 88 of the Indian Succession Act.
26. For the foregoing reasons, the Award is liable to be set-aside.
182008 (8) SCC 115.
O.M.P. (COMM) 36/2021 Page 18 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739
27. Before parting, the Court must also deal with the contention urged by Respondent No. 1 regarding the scope of jurisdiction of this Court. The law on this subject is also now well-settled. In ONGC v. Saw Pipes,19 it was held that the arbitral award can be set-aside if it is contrary to the fundamental policy of the Indian Law or is patently illegal and where such illegality goes into the root of the matter. In Associate Builder v. DDA,20 the Supreme Court held that if an award is against justice or morality, the same is liable to be set aside. In the instant case, the Court finds the findings of the learned Arbitrator, to be completely contrary to the law, and this goes into the root of the matter. The interpretation of the Will is discordant, and therefore, the impugned Award is liable to be set-aside.
28. Lastly, it must also be observed that the Arbitrator has also delved into the question of applicability of Section 14 of the Hindu Succession Act, 1956 and has rejected the reliance placed upon the said provision. The learned Arbitrator held that the life interest in the suit property could not be enlarged into an absolute ownership under Section 14 of the said Act. No need is felt to examine such findings, as the issue becomes irrelevant in light of the view expressed by this Court that the right of ownership of Smt. Kalyani Roy was absolute in itself.
29. The present petition is allowed and the impugned Award is set-aside. The Petitioner is now at liberty to exercise afresh - his remedies for adjudication of disputes that were raised before the Arbitral Tribunal in 19 2003 SCC OnLine SC 545.
O.M.P. (COMM) 36/2021 Page 19 of 20This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000739 accordance with law.
SANJEEV NARULA, J FEBRUARY 1, 2022 nk (corrected and released on 27th February, 2022) 20 2014 SCC OnLine SC 937.
O.M.P. (COMM) 36/2021 Page 20 of 20This is a digitally signed Judgement.