Delhi High Court
Kanwaljet Singh Chowdhary vs Harnam Singh And Anr. on 7 October, 1995
Equivalent citations: 60(1995)DLT827, 1995(35)DRJ468
Author: M. Jagannadha Rao
Bench: M.J. Rao
JUDGMENT M. Jagannadha Rao, C.J.
(1) This appeal is preferred by the plaintiff against the order of the learned Single Judge dated 12.9.1995 in I.A. 8824/94 in Suit No. 2197/94 vacating the interim injunction granted under Order 39, Rule 1 Civil Procedure Code on 17.10.1994. The plaintiff is the appellant before us. The suit was filed by the appellant for a declaration that he was the absolute owner of Flat No.28 at the 8th floor of Gopal Das Estate located at Barakhamba Road, New Delhi as per the Will of his mother dated Smt. Nand Kaur dated 8.10.1986. The 1st defendant in the suit is his father Chowdhary Harnam Singh and the 2nd defendant is Gopal Das Estate and Housing Private Ltd. which was constructing the house on the plot. The appellant sought a temporary injunction restraining his father from interfering with the suit property or with the rights of the plaintiff and also requiring the 2nd defendant/builder not to deliver possession of the flat to his father, the 1st defendant pending disposal of the suit.
(2) The testatrix, Smt. Nand Kaur was the mother of the appellant and was the wife of the 1st defendant. The 1st defendant had 5 sons and 1 daughter through Smt. Nand Kaur. The appellant is one of the sons. Smt. Nand Kaur executed a registered Will on 8.10.1986 and bequeathed various properties in favor of her husband and sons and daughter as follows in her will.
(3) She starts by saying that all her children are happily married and well settled in their businesses and avocations or jobs and that she is staying with her husband, the 1st defendant in her husband's house No. 27/10, East Patel Nagar, New Delhi. She then states that she is the absolute owner of the various properties mentioned in Items 1 to 6 of the Will - Items 1 to 3 are immovable properties, whereas Items 4 and 5 are movable properties, and Item 6 refers to residuary movable and immovable properties. Item 1 consists of shops, Item 2 is Flat No. 803 in Ashoka Estate, Barakhamba Road, New Delhi; while Item 3 is the suit property, which is a flat bearing No.28 on 8th floor in Gopal Das Estate, Barakhamba Road, New Delhi.
(4) In clause 1 of the Will she has stated that the properties mentioned therein will go to her son Shri Gurbachan Singh; the properties mentioned in clause 2 will go to her son Ch. Tejinder Singh; those mentioned in clause 3 will go to to her daughter Mrs. Gursharan Kaur; the item mentioned in clause 4,namely, the suit property will go to her son Lt. Col. Kanwaljeet Singh Chaudhary, the plaintiff/appellant before us; clause 5 deals with the mode of distribution of jewellery between all of her daughter-in-laws and the daughter; and clause 6 and 7 deals with fixed deposits etc. In clause 8 she stated as follows:- "8.That in case I pre-decease my husband Ch. Harnam Singh, then and in that eventuality, all the properties mentioned herein above shall first devolve upon my husband Ch. Harnam Singh, and after his death only, will pass on to the aforesaid parties in the manner herein provided."
(5) She appointed her son S. Jagjit Singh and her daughter, Mrs. Gursharan Singh Kaur to be the joint executors of the Will.
(6) The 1st defendant contended before the learned Single Judge that Clause 8 above mentioned being a latter clause would govern the rights created by his wife in favor of sons and daughter in earlier Clauses 1 to 7. As per that clause in case his wife predeceased him (1st defendant), then in that eventuality bequests made in clauses 1 to 7 would not operate immediately, and devolution will be first in favor of the 1st defendant and it was only after the death of the 1st defendant that they will pass to the children. It is contended that the contents of the latter clause will have precedence over the earlier clauses. It is also contended that the contingency mentioned in Clause 8 is clear. So far as clauses 1 to 7 bequeathing certain properties to the children are concerned, the testatrix presumed that those clauses will operate in case her husband predeceased her. So far as the contingency of her predeceasing her husband is concerned, that is governed by clause 8. In the present case, admittedly Smt. Nand Kaur died on 30.12.1989 and,therefore, according to the respondents, clause 8 is to operate.
(7) Learned Single Judge came to the conclusion that the bequest given in favor of the children, including the appellant in clause 1 to 7 would take effect only on the death of the 1st defendant, and this was the effect of clause 8 of the Will. Learned Single Judge also referred to the general principles of construction of Wills and, in particular, to the principle that in Wills the latter clause prevails. For the above said proposition, learned Single Judge relied upon decision of the Supreme Court of India in Kaivelikkal Ambunhi (Dead) by L.Rs & Others vs. H. Ganesh Bhandary (1995 (5) Scale 23).
(8) In this appeal the plaintiff/appellant has contended that the view taken by the learned Single Judge is not correct. The learned counsel contends that clause 4 which contains a bequest in favor of the appellant operates first and its effect is to give an absolute estate to the appellant in the property referred to in clause 4, and once that clause operates, the subsequent clause, namely, clause 8, which states that in the event of the testatrix predeceasing her husband, the properties in clauses 1 to 7 will go to her husband, and will go to the children only after the husband's death, does not operate. Learned counsel for the appellant also referred to provisions of the Indian Succession Act and to certain decisions of the Supreme Court and the High Courts.
(9) We are prima facie of the view that the interpretation put on the Will by the learned Single Judge is correct and does not warrant any interference. As pointed out by the Supreme Court in Kaivelikkal's case (supra), the principle applicable in regard to construction of documents is that greater effect is to be given to the latter clauses in the Will unlike clauses in a deed inter vivos. In fact, in the Supreme Court's case the testator created ab absolute estate in favor of one Kannan, son of his direct sister, Vellachi, but later on there was a subsequent recital that Schedule 'A' properties which had already been bequeathed in favor of Kannan, should be possessed and enjoyed by the "Tavazhi". The Kerala High Court relied upon various decisions of the Supreme Court and gave effect to the latter clause in the Will. If there is any inconsistency between an earlier clause and the latter clause, the latter would prevail. The Supreme Court observed that this followed from Section 88 of the Indian Succession Act, 1925. The Judgment of the High Court was confirmed.
(10) Learned counsel for the appellant submitted that the Will has to be read as a whole and clause 8 alone should not be given effect. We are in agreement that all the clauses have to be read as a whole to understand the intention of the testator or the testatrix. This is clear from Section 82 of the Indian Succession Act, 1925. In the present case, if all the clauses are read together, it is absolutely clear that under clauses 1 to 7 the testatrix gave various properties to her children, but when she came to clause 8 she clearly stated that the event of her predeceasing her husband, the properties will first go to her husband, and it was "only" after her husband's death that the earliest clauses 1 to 7 will take effect. In view of the clear language of clause 8, we are prima facie of the opinion that absolute bequests given in clauses 1 to 7 are prima facie contingent upon clause 8 not operating i.e. the wife not predeceasing her husband. Clauses 1 to 7 mention that she is the absolute owner of the properties and that after her the properties should go to her children as mentioned in those clauses. The testatrix no doubt did not specifically mention that these Clauses 1 to 7 would operate in case her husband died first. But that clauses 1 to 7 are contingent or Clause 8 is made clear when we come to clause 8. It is there made clear that the properties will devolve as per clauses 1 to 7 "only" in case the testatrix predeceased her husband and if so, after his death. Therefore, reading the Will as a whole, in our opinion, prima facie, the conclusion must be against the appellant.
(11) Learned counsel for the appellant,however, tried to refer to us certain decisions of the Supreme Court relating to deeds. We pointed out to him that those decisions have no relevance in the context of construction of Wills. The decision of the Supreme Court in Pearey Lal vs. Rameshwar Das relied upon on behalf of the appellant is of no help to him. In that case after stating that the Court should try its best to get at the intention of the testator by reading the Will as a whole, it was held that such a construction should be given which will not render any clause of will inoperative or lead to intestacy. It was also held that it is a well recognised rule of construction that 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. In that case, the testator executed a Will bequeathing his properties to his wife and the adopted son. A portion of the Will stated that on his death his wife and after her death, his adopted son will become "Malik" of all the properties. In that case, the wife lived in the house and the said adopted son was to get all the proprietary rights just like the testator. It so happened that the adopted son predeceased the testator. Thereafter, the testator's wife executed a Will bequeathing his properties to her brother's grandson. A suit was filed by her brother's grandson and it was held that the property was given to the adopted son only in case the wife predeceased him and inasmuch as the adopted son predeceased the testator's wife, the gift over in favor of the adopted son did not operate and the wife took an absolute estate. The plaintiff,would,therefore, succeed. It is true in that case that the use of the word "Malik" was treated as giving an absolute estate to the widow of the testator, but the Supreme Court pointed out that in case the adopted son survived the wife, the absolute interest of wife would be cut down and the son would take an absolute interest in the property.
(12) In the present case before us, it was merely stated in the Will by the testatrix that the properties would go to her children as per clauses 1 to 7, but when we come to clause 8 the operation of clauses 1 to 7 was restricted and it was stated clearly that they would operate "only" after the death of the husband in case the husband survived the testatrix. Having regard to the clear language of clause 8, we are prima facie of the view that the above Judgment of the Supreme court has no application to the present case.
(13) Learned counsel for the appellant then cited the Judgment of the Supreme Court in Veerattalingam and others vs. Ramesh and others . In that decision it was observed that the Court should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the position of the testator, his family relationship and the probability that he used the words in a particular sense also must be taken into account. However, such circumstances change from person to person and,therefore, it is seldom profitable to compare the words of one Will with those of another or to try to discover which of the Wills upon which the decisions have been given in reported cases, the disputed Will approximates closely. The Court should bear in mind the general principles of construction only. The learned counsel for the appellant wanted to lay stress on the observations of the Supreme Court in the above case that the words used in relation to construction of one Will cannot help in the matter of construction of any other Will. We fail to see how the above observations can help the appellant. We are here not comparing the terms of the present Will with the terms of another Will. In fact, the appellant is trying to approximate the language in the present Will with the language in decided cases.
(14) Learned counsel for the appellant then cited the decision of the Delhi High Court in Raghbir Singh and others vs. Budh Singh and others . In that case it was mentioned that the central rule of construction of Wills is that the intention of the testator should be carried out. With that central object in view, the different parts of the Will should be construed harmoniously. No bequest in the Will would have been made as a futile exercise. The Court could read down the language of one part of the Will if giving full effect to the general words of that part of the Will would result in making the other part of the Will defeasible. We have no quarrel with the proposition laid down in the above said Judgment. In fact in para 8 of that Judgment, it is stated that the principle in Section 82 of the Indian Succession Act that the intention of the testator is to be gathered from the entire instrument would prohibit the Court from considering the first part of the Will alone whereby the testator purported to give an absolute estate to the widow in that case. It was pointed out that the language in which such absolute estate was conferred by the testator on the widow has to be read along with the other parts of the Will so that the whole of the Will would become meaningful. If the Will was read as a whole, the properties would first go to the widow and after her death to the appellants therein. Far from supporting the appellant's case, this case goes against him.
(15) Learned counsel for the appellant then referred to Raj Kumari Sharma vs. Rajinder Nath Dewan and others Learned counsel referred us to para 25 of the said Judgment which deals with vested interest as opposed to a contingent interest and to Sections 119 and 120 of the Indian Succession Act. The rule as to the vesting of interest on or after the testator's death is controlled by the intention of the testator. On the facts of that case it was stated that there was no term in the Will, expressed or implied, to indicate any contrary intention on the part of the testator so as to make the interest of the legal heirs a contingent one. We do not think, prima facie, that the said decision applies to the present case. Here clause 8 deals with a specific contingency of the testatrix predeceasing her husband and as to what should happen to the earlier bequests made by her in paras 1 to 7 of the Will. The word "only" in clause 8 prima facie puts the matter beyond controversy. It clearly says that the bequest in favor of the children in clauses 1 to 7 will take effect "only" after the death of her husband in case she predeceased him.
(16) For the aforesaid reasons, we hold that the prima facie view taken by the learned Single Judge in vacating the interim injunction granted earlier in favor of the appellant is correct, and that the appeal is liable to be dismissed. The appeal is accordingly dismissed in liming.