Delhi High Court
Smt. Uma Sharma & Anr vs Shri Kamal Kumar Bhanot & Ors on 10 May, 2010
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 185/2009
SMT. UMA SHARMA & ANR. ..... Plaintiffs
Through : Mr. R.K. Singh with Dr. Sunil Kumar, Advocates.
Versus
SHRI KAMAL KUMAR BHANOT & ORS. ..... Defendants
Through : Mr. O.P. Malviya, Advocate, for Defendant Nos. 1 to 3.
.
+ CS(OS) 337/2009
HEMANT BHANOT ..... Plaintiff
. Through : Mr. R.K. Singh with Dr. Sunil Kumar, Advocates.
versus
K.K. BHANOT & ORS ..... Defendants
Through : Mr. O.P. Malviya, Advocate, for Defendant Nos. 1 to 3.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
*
1. These are two connected suits; CS (OS) No. 185/2009 is a suit for declaration and
permanent injunction by Uma and Shashi Sharma (first and the second plaintiff, hereafter
referred to collectively as "the daughters"), both daughters of Late Rajinder Lal against their
brothers (the four defendants), in respect of property bearing House No. F-3/30, Krishna Nagar,
CS (OS) No. 185/2009 & 337/2009 Page 1
Shahdra, Delhi (hereafter "suit premises"). CS (OS) No. 337/2009 (hereafter "the partition suit")
claims a decree for partition and permanent injunction; it is filed by Hemant Bhanot son of Late
Rajinder Lal against his three brothers (Kamal Kumar, Upinder Kumar and Rajesh Kumar; the
brothers being collectively referred to as "the brothers"). With consent of counsel for parties, the
two suits were heard together, as the only issue involved was the interpretation of a Will of the
late Balwant Rani (hereafter called "the testatrix")
2. The daughters' suit avers that the parties father, Late Rajinder Lal was the son of the
testatrix, absolute owner of the suit premises, during her lifetime. The daughters contend that
after her demise (in 1989) the Late Rajinder Lal inherited it, and and upon his demise (in 2001) it
devolved equally upon the children of Rajinder Lal, i.e. the parties in the two suits. It is stated
that though the testatrix had two sons (Rajinder Lal and Krishna Gopal), but on account of some
disputes with the other son, she executed a will favouring the branch of Rajinder Lal (hereafter,
"the will"). The will was registered - with the Sub-Registrar as Document No. 250, Book No. 3,
Volume 93 at pages 73-75.
3. It is not in dispute that Rajinder Lal, after the death of the testatrix, preferred a probate
petition (No.2 of 1990) before this Court; however, during its pendency, Rajinder Lal expired
survived by his children (plaintiffs and defendants in these two suits). An application made by
third defendant for impleadment of legal representatives was allowed by order dated 05.11.2003.
By order dated, 12.10.2006, the third defendant was appointed as an Administrator in respect of
suit premises and probate was granted in favour of the original petitioner, Late Rajinder Lal,
entitling the parties to this suit to their respective share in the suit property.
4. The parties claim to be in joint possession of the suit premises, however, only the fourth
defendant is residing in it, as other parties own residential houses. It is stated that all the parties
to this suit shared the charges with the third defendant in hope of getting their respective shares.
The daughters allege that after letters of administration were issued in favour of the third
defendant, they were informed by the fourth defendant that the sons do not wish to give them
(the daughters) a share in the suit premises. On 11.12.2008, therefore, the daughters allege to
have served a legal notice upon the sons demanding that they should not to sell or create any
third party interest in the said property without their prior consent. In response to which dated
11.12.2008, the defendants claimed that the plaintiffs were not the legal heirs of Rajinder Lal.
CS (OS) No. 185/2009 & 337/2009 Page 2
The plaintiffs claim to have gained knowledge of the defendants' surreptitious plans of creating
third party interest in the suit premises, therefore, they approach the Court to seek a legal
remedy.
5. On 12.02.2009, Hemant Kumar (third defendant in the sisters' suit) filed the suit for
partitions and permanent injunction against his three brothers in respect of the same property, i.e.
the suit premises. Placing reliance on the will, it is claimed that the plaintiff and the defendants
are the beneficiaries under the will, to the exclusion of their sisters. It is claimed that in the
Probate petition 2/1990 the brothers, i.e. parties in this suit, were impleaded as legal
representatives of the original petitioners, and probate was granted and Letters of Administration
was issued to Hemant Kumar. It is claimed that the brothers are entitled to a 1/4th share each, in
the suit premises. It is claimed that the parties are in joint possession of the suit premises.
According to the site plan annexed with the plaint, the third defendant is occupying more than
his share in the suit premises, which is shown in red. The plaintiff, Hemant Kumar sent a legal
notice dated 06.10.2008 to the defendants, and also claimed damages for Rs. 50,000/- from the
third defendant. In his response the third defendant allegedly showed adamancy, and wanted to
remain in possession of the excess portion. The plaintiff- Hemant Kumar, alleges knowledge of
the defendants' intention to create third party interest in the suit premises. Based on these
averments, partition by metes and bounds of the suit premises is sought. The sisters, i.e. plaintiffs
in suit no. 185/2009 were not made a party to this suit.
6. By order dated 19.02.2010, CS(OS) 337/2009, the partition suit, was directed to be listed
along with CS(OS) 185/2009, (the sister's injunction suit) as both the suits were in regard to the
same property and amongst the members of the same family. In the sister's suit the first and third
defendants filed a joint written statement and the second and the fourth defendants filed two
separate written statements. All the defendants raised a preliminary objection as to
maintainability of the suit, on the ground of improper verification. The sisters/plaintiffs,
acknowledging the mistake/omission, stated that it was a clerical error and unintentional, not
affecting the merits of this case and the defect can be cured at any stage.
7. The contesting brother defendants submit that the will only gave Rajider Lal and his wife
Padmawati, a life estate directing that the property shall ultimately devolve on their sons, i.e. the
defendants. The other heirs were specifically excluded from inheriting the suit premises, as such
CS (OS) No. 185/2009 & 337/2009 Page 3
the sisters cannot be treated as the legal heirs of the testatrix. Further, it is stated that even in the
Probate case no. 2/1990 the sons only were impleaded as legal representatives of the original
petitioner Rajinder Lal; they are thus clearly the only beneficiaries under the will. It is also
denied that the parties to suit are in joint possession of the suit premises, while stating that the
same is in joint possession of the defendants and the plaintiffs have never borne any charges with
respect to the suit premises. As such, say these defendants (i.e. the sons), the plaintiffs (i.e. the
daughters) have no cause of action.
8. The fourth defendant in his written statement states that according to the will "the
children" of Rajinder Lal are entitled to equal shares in the suit premises. Further, he admits that
the plaintiffs and the defendants are in joint possession of the suit premises. He elaborates this
stating that-
"There are two shops, 5 rooms, two stores, two kitchen, open court yard and a passage.
One shop is occupied by the answering defendant himself and another by defendant no. 3
which shop has been rented out to some one and he is usurping the rental above. Room
on the ground floor is occupied by the younger sister i.e. plaintiff no. 2 and larger room
on the first floor is occupied by the plaintiff no. 1 herself. Only two small rooms on the
first floor one kitchen and one store are in possession of the answering defendant which
is less than his respective share in suit property."
The defendant further does not deny that the first three defendants are attempting to create third
party rights in the suit premises. Nonetheless, the defendant claims that the suit is liable to be
dismissed with costs.
9. In Suit no. 337/2009 the first two defendants were proceeded ex-parte by order dated
12.01.2010. The third defendant (who is the fourth defendant in CS(OS) No. 185/2009) has filed
a written statement stating that as per order dated 28.01.2009 in suit no. 185/2009, this Court has
directed all parties to maintain status quo in respect of the suit property; the parties to this suit are
parties to the said suit, as well. He admits that grand-daughters (i.e. plaintiffs in CS(OS) No.
185/2009) of the testatrix are also beneficiaries under the will, he specifically denied that the
only the parties to CS(OS) No. 337/2009 are beneficiaries under the will. The parties and their
counsel had agreed that since the principal dispute pertains to the correct interpretation of the
will, and no other factual issues arise for resolution, they would not insist upon leading oral
evidence, and that the court could decide the questions arising, on the documents and pleadings
in the two suits.
CS (OS) No. 185/2009 & 337/2009 Page 4
10. The issues which arise for the court's consideration and decision, are:
(1) Whether on a correct interpretation of the testatrix's will, the daughters establish
that they have any right, title or interest in the suit property;
(2) If the answer to the above issue is in the affirmative, what are the share(s) of the
respective parties to the two suits;
(3) Relief.
Analysis and Findings
Issue Nos. 1 & 2
11. These two issues are taken up together for consideration, as they are inter-related. It is
seen that the will is contentious in both suits and its interpretation is determinative of the rights
of the parties to the two suits. The certified copy of will is supplied as Ex. PW-2/1 in CS(OS)
185/2009; the relevant portions of the will read as under:
"I, Smt. Balwant Rani w/o Late Shri Meher Chand aged about 82 years r/o F-
3/30, Krishan Nagar, Shahdra, Delhi-51, do hereby state that I am conscious that due to
old age, I may pass any day, I am making my last will. This will I am making without
duress and pressure.
That I am absolute owner of House No. F-3/30, Krishan Nagar, Shahdara, Delhi.
The land was purchased from D.L.F. by me. I got constructed house in 1957 by selling
my jewelry and also received financial help from my elder son Rajender Lal for this
purpose. My Late husband Shri Meher Chand and my second sin Shri Krishan Gopal and
other family members did not help me in this venture.
------xxxx------ ------xxxx------ ------xxxx------
I wish and declare accordingly the Shri Rajendra Lal and his wife smt. Padma
Wati shall be the beneficiaries and legaties of my this will. My other children relations
and their heirs shall have no right in the property at F-3/30, Krishan Nagar and in my ¾,
share in property No. 55 and 55A, Moti Nagar, New Delhi. These properties shall
devolve on shri Rajender Lal his wife and their children. In case of death of any one of
the above legaties, the survivor shall be the sole owner of the above properties and shall
have the right to mortgage, dispose of the property, and in case of both surviving they
can jointly do the same. After their death, their sons will have the right to enjoy the
property in equal share to the exclusion of my other sons, daughter, relations and their
children.
CS (OS) No. 185/2009 & 337/2009 Page 5
I hereby given, bequeath absolutely for ever to my above named son and
daughter-in-law their sons successors, and survivors. ..............."
12. The sons, i.e. defendants in CS(OS) No. 185/2009 are placing reliance on these parts of
the will to say that they become the sole beneficiaries under the will, after the demise of their
parents, to the exclusion of their sisters. They argue that what was bequeathed to their parents,
was a life interest and not an absolute interest, with the ultimate intention of the testatrix being
that the property should finally devolve upon them. Strong reliance is placed on the expression
"sons" of Rajinder Lal and his wife, which occurs in two places, in the will, for this argument.
This argument is unacceptable in view of the clear tenor of the will that in case of death of either
Rajinder Lal or Padma Wati, the survivor shall be the sole owner and shall have the right to
mortgage and/or dispose of the property and during their life-time, they could do so, jointly. Had
The testatrix's intention been otherwise she would never have given the right to dispose of the
property or mortgage it, to her son and his wife. The law is settled, and the Court need not delve
deep into the issue. Therefore, the above argument, in the considered opinion of this Court, does
not survive.
13. The daughters rely on that part of the will where the testatrix expresses her desire in
saying that- "These properties shall devolve on Shri Rajender Lal his wife and their children". It
is argued that the term "children" includes both sons and daughters of the original beneficiaries,
and the sons cannot claim exclusive rights over the suit premises. Thus, it is argued that the said
property is to be equally shared by plaintiffs and the defendants. The counsel for the sons argues
that although the expression "children" is used in an earlier part of the will, but later the
expression is "sons", which curtails the ambit of the "children" limiting it only to "sons". He
argues that this latter expression clarifies the intention of the testator.
14. The Indian Succession Act, 1925 (hereafter called "the Succession Act") regulates
testamentary succession. It contains provisions which guide the courts about the interpretation of
testamentary instruments, such as wills and codicils. Unlike in England, where courts developed
rules of construction and principles governing succession - intestate as well as testamentary,
over the centuries, through the evolutionary process of common law, courts in this country are
guided by specific provisions. In this, the Succession Act is remarkably nuanced and takes care
of various contingencies. It not only provisions for rules of interpretations, but visualizes
CS (OS) No. 185/2009 & 337/2009 Page 6
situations where testators' intentions can be seemingly confusing, even conflicting, and guides
the Court about the correct approach to be adopted. The relevant provisions of the Act, dealing
with such rules of construction, are extracted below:
"82. Meaning of clause to be collected from entire will.- The meaning of any clause in a
will is to be collected from the entire instrument, and all its parts are to be construed with
reference to each other.
Illustrations
(i) The testator gives to B a specific fund or property at the death of A, and by a
subsequent clause gives the whole of his property to A. The effect of the several clauses
taken together is to vest the specific fund or property in A for life, and after his decease in
B; it appearing from the bequest to B that the testator meant to use in a restricted sense
the words in which he describes what he gives to A.
(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths
the whole of his estate to A, and in another part of his will bequeaths Black Acre to B, the
latter bequest is to be read as an exception out of the first as if he had said "I give Black
Acre to B, and all the rest of my estate to A.
----xxxx---- ----xxxx---- ----xxxx----
84. Which of two possible constructions preferred.- Where a clause is susceptible of two
meanings according to one of which it has some effect, and according to the other of
which it can have none, the former shall be preferred.
85. No part rejected, if can be it reasonably construed.- No part of a will shall be
rejected as destitute of meaning if it is possible to put a reasonable construction upon it.
----xxxx---- ----xxxx---- ----xxxx----
87. Testator's intention to be effectuated as far as possible.- The intention of the testator
shall not be set aside because it cannot take effect to the full extent, but effect is to be
given to it as far as possible.
Illustration
The testator by a will made on his death-bed bequeathed all his property to C. D. for life
and after his decease to a certain hospital. The intention of the testator cannot take effect
to its full extent because the gift to the hospital is void under section 118, but it will take
effect so far as regards the gift to C. D.
88. The last of two inconsistent clauses prevails.- Where two clauses of gifts in a will are
CS (OS) No. 185/2009 & 337/2009 Page 7
irreconcileable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the first clause of his will leaves his estate of Ramnagar "to A," and by the
last clause of his will leaves it "to B and not to A". B will have it.
(ii) If a man, at the commencement of his will gives his house to A, and at the close of it
directs that his house shall be sold and the proceeds invested for the benefit of B, the latter
disposition will prevail.
----xxxx---- ----xxxx---- ----xxxx----
95. Bequest without words of limitation.- Where property is bequeathed to any person,
he is entitled to the whole interest of the testator therein, unless it appears from the will
that only a restricted interest was intended for him."
Section 97 is in the following terms:
"Where property is bequeathed to a person, and words are added which describe a class
of persons but do not denote them as direct objects of a distinct and independent gift,
such person is entitled to the whole interest of the testator therein, unless a contrary
intention appears by the will."
Illustration (i) is as follows:
"A bequest is made to A and his children, to A and his children by his present wife, to A
and his heirs, to A and the heirs of his body, to A and the heirs male of his body, to A and
the heirs female of his body, to A and his issue, to A and his family, to A and his
descendants, to A and his representatives......in each of these cases, A takes the whole
interest which the testator had in the property."
15. Both parties had referred to the decision in Gnambal Ammal v. Raju Ayyar, AIR 1951 SC
103. It was held by the Supreme Court, in that judgment, that:
"The cardinal maxim to be observed by courts in constructing a will is to endeavour to
ascertain the intentions of the testator. This intention has to be gathered primarily from
the language of the document which is to be read as a whole without indulging in any
conjecture or speculation as to what the testator would have done if he had been better
informed or better advised. In constructing the language of the will as the Privy Council
observed in Venkata Narasimha v. Parthasarthy [42 I.A. 51 at p. 70], "the courts are
entitled and bound to bear in mind other matters than merely the words used. They must
consider the surrounding circumstances, the position of the testator, his family
relationship, the probability that he would use words in a particular sense, and many
other things which are often summed up in the somewhat picturesque figure 'The court is
entitled to put itself into the testator's armchair'..... But all this is solely as an aid to
CS (OS) No. 185/2009 & 337/2009 Page 8
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. So soon as the construction is
settled, the duty of the court is to carry out the intentions as expressed, and none other.
The court is in no case justified in adding to testamentary dispositions..... In all cases it
must loyally carry out the will as properly construed, and this duty is universal, and is
true alike of wills of every nationality and every religion or rank of life."
A question is sometimes raised as to whether in construing a will the court should lean
against intestacy. The desire to avoid intestacy was considered by the Privy Council in
the case referred to above as a rule based on English necessity and English habits of
thought which should not necessarily bind an Indian court. It seems that a presumption
against intestacy may be raised if it is justified by the context of the document or the
surrounding circumstances; but it can be invoked only when there is undoubted
ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer
observed in Re Edwards; Jones v. Jones [[1906] 1 Ch. 570 at p. 574], "it cannot be that
merely with a view to avoiding intestacy you are to do otherwise than construe plain
words according to their plain meaning". It is in the light of the above principles that we
should proceed to examine the contents of the will before us."
16. These principles were applied, and revisited in several later judgments. In Uma Devi
Nambiar and Ors. v. T.C. Sidhan (Dead), (2004) 2 SCC 321, after considering the same
principles, and noticing the previous decisions, the Supreme Court observed that:
"From various decisions of this Court e.g. Ram Gopal v. Nand Lal, AIR 1951 SC 139.
Gnambal Ammal v. Raju Ayyar, AIR 1951 SC 103, Raj Bajrang Bhadaur Singh v.
Thakurain Bakhtraj Kher, AIR 1953 SC 7, Pearey Lal v. Rameshwar Das, AIR 1963 SC
1703, Ramchandra v. Hilda Brite, AIR 1964 SC 1323 and Navneet Lal v. Gokul, ( 1976 )
1 SCC 630, the following principles are well established:
(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 bear in mind also other matters than merely
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 in isolated expressions but by reading the Will as a whole with all its
provisions and ignoring none of them as redundant or contradictory.
CS (OS) No. 185/2009 & 337/2009 Page 9
(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 expressions
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) 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.
11. In Kalvelikal Ambunhi v. H. Ganesh Bhandary, AIR1995 SC 2491, it is
observed that a Will may contain several clauses and the latter clause may be
inconsistent with the earlier clause. In such a situation, the last intention of the
testator is given effect to and it is on this basis that the latter clause is held to
prevail over the earlier clause. As observed in Hammond v. Treharne, 1938 (3)
All ER 308, if in a Will there are two inconsistent provisions, latter shall prevail
over the earlier clause. This is regulated by the well-known maxim "cum duo inter
se pugantia reperiuntur in testamentary ultimum ratumestest". This principle is
also contained in Section 88 of the Act which together with its illustrations,
provides as under:
"88. The last of two inconsistent clauses prevails. - Where two clauses of gifts in a
Will are irreconcilable, so that they cannot possibly stand together, the last shall
prevail.
Illustrations
(i) the testator by the first clause of his Will leaves his estate of Ramnagar to "A",
and by the last clause of his Will leaves it to "B" and not to "A". B will have it.
(ii) if a man, at the commencement of his Will give his house to A and at the close
of it directs that his house shall be sold and the proceeds invested for the benefit
of B, the latter disposition will prevail.
12. This rule of interpretation can be invoked if different clauses cannot be
reconciled. (See Rameshwar v. Balrai, AIR 1935 PC 187). It is to be noted that
rules of interpretation of will are different from rules which govern interpretation
CS (OS) No. 185/2009 & 337/2009 Page 10
of other documents like 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 of specific clauses, inter se 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.
13. What is the intention of the testator has to be found out on a reading of the
Will and there cannot be any hard and fast rule of uniform application to find out
as to whether the grant was absolute or it was subject to any condition or
stipulation. The true intention of the testator has to be gathered not only by
attaching importance to isolated expressions but by reading the Will as a whole
with all the provisions and ignoring none of them as redundant or contradictory.
As observed in Navneet Lal's case (Supra), although there is no binding rule that
the Court should avoid intestacy at any cost, yet the Court would be justified in
preferring that construction of the Will which avoids intestacy. Where the words
are ambiguous attempt should be made to avoid that construction which leads to
intestacy."
17. In the present case, the text of the will (which concededly was probated, by this court, in
a previous proceeding) indicates the following elements:
(1) Rajender Lal and his wife were constituted as the heirs of the testatrix ("shall be the
beneficiaries and legaties of my this will");
(2) The other children of the testatrix were disinherited, and not nominated as legatees ("My
other children relations and their heirs shall have no right in the property");
(3) Rajinder Lal and his wife, and their children were to be the beneficiaries entitled to the
suit properties, to the exclusion of other heirs (sons) of the testatrix ("These properties shall
devolve on shri Rajender Lal his wife and their children" );
(4) Rajinder Lal and his wife had the right to mortgage, transfer or alienate the estate, i.e. the
suit property, and in the event of death of either, the survivor was to get the estate ("In case of
death of any one of the above legaties, the survivor shall be the sole owner of the above
properties and shall have the right to mortgage, dispose of the property, and in case of both
surviving they can jointly do the same");
(5) After death of both (Rajinder Lal and his wife) their sons, "survivors" and "successors"
were to be the legatees ("After their death, their sons will have the right to enjoy the property in
CS (OS) No. 185/2009 & 337/2009 Page 11
equal share to the exclusion of my other sons, daughter, relations and their children.....I hereby
given, bequeath absolutely for ever to my above named son and daughter-in-law their sons
successors, and survivors. .................").
18. The rival arguments of the parties are that on the one hand, the daughters contend that the
testatrix intended that Rajinder Lal, his wife and "children" were nominated as heirs, and
therefore, took the estate, absolutely and in equal shares, upon her death. The sons, on the other
hand, contend that the estate which devolved on Rajinder Lal and his wife, was limited to their
life, and that they, to the exclusion of their sisters, and to the exclusion of other heirs of the
testatrix, are entitled to the suit property. The question is about the true intention of the testatrix-
to be gathered from the text of the will, its internal indications, and the surrounding
circumstances, if any.
19. In Administrator of Madras v. Money, 15 Mad. 448 a testator executed a Will bequething
some properties to the legatees and added that 'the same shall be inherited by any child or
children'. It was held that this was in effect a gift to the legatees and their children as heirs. It
was a bequest to a person with the addition of words which describe a class of persons but did
not denote them as direct objects of a distinct and independent gift and by operation of the
principle of Section 97 of the Succession Act, 1925 the legatee took the entire interest of the
testator therein. The Court held that:
"In my opinion, this being an absolute gift to the children of Mrs. Wilkins share and
share alike, and the subsequent direction that the property shall not be sold until the
youngest attains 18 years of age being of no legal effect, the children who survived the
testator took each an equal share in the property which vested in them on the death of the
Testator..... The postponement of the power of disposition over the property being of no
legal effect there remains only the absolute gift to the children of Mrs. Wilkins 'jointly
share and share alike'."
In Agnes Harriet v. Murray AIR 1925 Oudh 24 and Dadabhai v. Cowasji, AIR 1923 Bom 177 it
was held that a bequest to certain legatees "and their children from generation to generation"
conferred absolute interest on the legatees. In the judgment reported as Dowager Rani Lalitha
Kumari Devi and Ors. v. The Raja of Vizianagaram and Ors., AIR 1954 Mad 19, the will in
question, materially, stated that:
CS (OS) No. 185/2009 & 337/2009 Page 12
"Whereas I, the above said Anandagajapathiraj Maharajah of Vizianagaram have at
present no issue either male or female I do hereby appoint Chittibabu Vijiaramaraj and
his male issue to be my legal heir, successor and representative and I do hereby bequeath
to the said Chittibabu Viziaramaraj all the property moveable and immoveable of the
Samasthanam as well as my personal property together with all rights, titles, privileges,
honours and insignia of the family which I now possess or may hereafter acquire.
XXXX
(4) If I should beget a son or a daughter he or she shall be my legal heir and shall be
entitled to all the property above described and this will shall be null and void provided
he or she survives me.
(5) In the event of the abovesaid Chittibabu Vijayaramaraj predecease me or me
surviving dies without being adopted or without issue male or female Her Highness my
mother or my sister whichever of the two may then be living shall have full power to
appoint my successor and if both be living Her Highness my mother alone shall execute
the right and after the demise of both without a successor being appointed by either of
them the ruling power shall select a proper boy to be my heir and successor with the
permission of my nyaties."
On an appeal, where it was contended that the will conferred on Chitibabu an estate "in tail
male" and such an estate was unknown to Hindu law and the bequest must therefore be deemed
to be only of a life estate to Chittibabu, the Court observed, construing Section 97, particularly
the Illustration (i) to the provision, that:
"In each of these cases A takes the whole interest which the testator had in the property.
No doubt this section does not apply directly to Hindu Wills. But it lays down a general
principle of interpretation which could equally be applied to a will by a Hindu. This and
the other general principles laid down in the Succession Act are not based on any
conceptions alien to Hindu law. They are all of them based on common sense, logic and a
spirit of beneficent construction (vide also -- 'Damodara Moothan v. Ammu Amma', AIR
1944 Mad 22 (B). The learned trial Judge relied upon the ruling of the Privy Council in
'16 Cal 383 (PC) (A)'). I do not think that the construction placed upon the language of a
particular will taken as a whole materially helps to construe another will in which the
language is different."
It was held that:
"A powerful reason for holding that the testator did not intend to create an estate in tail
male is that the provisions of the will clearly show that he was not averse to the
succession of female heirs. Thus in para 1 he refers to his not having female issue and in
para 4 he states that if he should beget a son or a daughter he or she should be his legal
heir. In para 5 again the power of appointing a successor is conferred on his mother and
CS (OS) No. 185/2009 & 337/2009 Page 13
sister only if Chitti Babu should die without issue male or female. In para 7 it is provided
that the allowances mentioned in the will should be paid by whoever was in possession of
the estate whether it be "he or she". In the face of these indications it is impossible to
argue that the intention of the testator was to create an estate in tail male. It was also
urged that the restriction on the power of alienation imposed on the holders of the estate
for all times is an indication that an estate in tail was intended but if that was the
intention there was no need to impose that restriction as no holder of the estate in tail has
power to alienate the property so as to bind the successors. It is more consistent with the
grant of an absolute estate and is nothing more than the expression of a pious wish not
unusual among testators that their properties should remain intact in the hands of their
successors.
70. Another material consideration which militates against the contention put forward by
the respondents is that the testator appears to have used the word issue in the sense of
children and not descendants. If male issue in para 1 of the will does not mean male descendants, then there can be no estate in tail and the foundation on which the argument of the respondents rests will be gone. In para 1 the testator says that he has no issue, male or female and in para 4 that if he should have a son or a daughter, he or she shall be his heir. In this context issue must mean only child and not descendants because the daughter's daughter will not be an heir. Again in para 5, the appointment of a successor is provided if Chitti Babu is to die without issue male or female. Here also the word must signify only children. Thus there is ample indication in the will that the testator used the word issue in the limited sense of the children of the first generation. If that is so, then there can be no question of estate in tail..."
20. The effect of a bequest made to a person, followed by general description of a class of persons, was considered in Pullayya v. Veeraghavamma, AIR 1954 A. P. 2, where it was held that:
"Section 97 of the Succession Act does not apply directly to wills by Hindus, but it lays down a general principle of interpretation of wills, which could equally be applied to a will by a Hindu, though if the clear intentions of the, testator appeared otherwise, the Section could not be applied."
Similarly, the Andhra Pradesh High Court, in Sham Kumar v Ayyagari Krishna Murthy and Ors., 2003 (6) ALT 331 held, while considering Section 97, and the effect of Section 138, that:
"19. It is true that the Will provides for devolution of properties according to the wishes of the Testator and in a way the line of Succession as provided under the Personal Law is given a go-bye. A Testator is entitled to stipulate the chain of succession or the stages through which the property should pass until it vests absolutely in an individual or set of individuals. Law gives the right and liberty to the Testator to that extent. However, at a point where the property is to vest absolutely in a person or a set of individuals, the freedom of the Testator is circumscribed; in that he cannot restrict the method and CS (OS) No. 185/2009 & 337/2009 Page 14 manner of exercise of rights of ownership by the persons in whom the property vests absolutely. Law recognizes absolute vestiture and not the conditions circumscribing the enjoyment of the property by the persons in whom it vested absolutely..."
21. The two clearest textual indications about the testatrix's intention are discernable from one, the debarment of her other children, (i.e. other than the Rajender Lal branch) from the estate, and, two, that Rajender Lal and his wife were to inherit the estate, and had the right to mortgage, or transfer it. This latter indication, in this Court's opinion, informs that the testatrix did not intend a life estate, to Rajinder Lal and his wife; the rule of construction to be pressed here, is indicated in Section 95, which is that in the absence of any words of limitation (rather, in this case, the position being to the contrary, the testatrix clarifying the right of Rajinder Lal and his wife to transfer or encumber the property or estate) the first named two legatees, took an absolute estate, which vested in them. If any doubts exist about this interpretation, the intention to be gathered, on a reading of the will, with Section 97 is dispelled. Illustration (i) states that when a legatee is named specifically, and others of a description or class, follow such nomination, the legatee takes the estate absolutely, and that the subsequent words would not limit his estate, or limit the absolute enjoyment to the property. Viewed from this statutory perspective, the Court is compelled to reject the sons' contention that a limited, or life estate devolved on Rajender Lal and his wife (i.e. their mother), in terms of the will, and that they, as their "sons" were entitled - to the exclusion of the sisters - to absolute and equal share in the suit property. The matter can be viewed in another manner. The reference, in the will, to Rajender Lal and his wife, and the right of either to succeed, as survivor, and, to cap it, importantly with the absolute right of either or both, to transfer or encumber the property is carried further when the reference to the legatees, is always in the context of these two heirs; the others follow by description. It is for this reason, that the rule prescribed in Section 97 aptly guides the interpretation of the will, in these cases. The mere reference to sons in two parts of the will - the last with a further reference to their survivors and successors, only underscores the testatrix's anxiety that Rajender Lal's branch - to the exclusion of her other heirs was entitled to the property.
22. So far as the daughter's contention that all children took the estate, absolutely, because of the reference to them, with Rajender Lal (and his wife) is concerned, the Court is of the opinion that this too, cannot be accepted for the same reason, i.e. application of Section 97. In any case, CS (OS) No. 185/2009 & 337/2009 Page 15 the end result - as far as the daughters are concerned, would be the same, because with the death of Rajender Lal and his wife, the estate devolved on all the parties, through intestacy, as none of them claims that either of them (i.e. Rajender lal or his wife) devised any bequest, or testamentary instrument. Issue No. 1, is therefore answered in favour of the daughters; it is held that they are, along with their brothers, entitled to the estate of the testatrix, being the children of late Rajender Lal and his wife, who were alive when the estate opened for succession.
23. As regards the second issue, it is held that there is no dispute that the properties were the acquisition of the testatrix, and she held them absolutely. Her other heirs were disinherited from her estate. Rajender Lal and his wife succeeded to the property and enjoyed it during their life time. After the death, it devolved equally on all their children, who are Class I heirs, on account of intestate succession. Therefore, on an application of the rules indicated in Section 8 of the Hindu Succession Act, 1956, they are entitled to equal shares in the suit property. It is accordingly held that the parties in both the proceedings, are held entitled to one sixth undivided share each, in the suit property.
Issue No. 324. In view of the above findings, the daughters' suit - i.e. CS (OS) No. 185/2009 has to succeed in full. Accordingly a decree for declaration, to the effect that the plaintiffs are entitled to equal shares, with the defendants, in the suit property, (F-3/30, Krishna Nagar, Shahdara, Delhi) and a consequential permanent injunction, restraining the defendant sons or their representatives, or anyone acting on their behalf, from alienation, transferring or parting with possession of the same, or any part thereof, is issued.
25. So far as CS (OS) 337/2009 is concerned, the findings on the two issues are determinative of this aspect. It is noteworthy, here, that the sons did not intentionally implead the daughters in this proceeding. Yet, they did not dispute that the subject matter of the two proceedings were common, and since they are parties in the other suit, the findings there would bind them. In the circumstances, that the daughters were not impleaded here is not significant, since their interests have been noticed, and indeed, they have been heard in the common hearings. In these circumstances, it is held that the parties in CS (OS) 337/2009, along with the CS (OS) No. 185/2009 & 337/2009 Page 16 plaintiffs in CS (OS) 185/2009 are entitled to equal, undivided one sixth share in the suit property. A preliminary decree to that effect shall be drawn. Shri Ravi Awasthi, Advocate (Mobile No.9891207152) is hereby appointed as Local Commissioner to inspect the premises, and report to the Court, about the actual physical possession in respect of the said property (F- 3/30, Krishna Nagar, Shahdara) as well as indicate the dimensions of the property, and recommend the most convenient mode for partitioning it, through metes and bounds. The Commissioner shall, after inspecting the premises, and ascertaining the views of the parties, file a report, within eight weeks. The Commissioner shall be paid Rs. 50,000/- (Rupees fifty thousand) as fees; the parties in both suits, shall bear the fees, in equal proportions. List the Suit, CS (OS) 337/2009, for directions towards preparing final decree, on 25th August, 2010.
26. The decrees in the two suits shall be drawn in terms of the directions indicated in the two previous paragraphs of this judgment. In the circumstances, there shall be no order on costs.
MAY 10, 2010 (S.RAVINDRA BHAT)
JUDGE
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