Delhi District Court
Laxmi Kumar Kapur vs Sh. Ravi Kapur on 30 August, 2019
1
IN THE COURT OF SH. DIG VINAY SINGH : ADJ-2
NORTH WEST : ROHINI COURTS : DELHI
CS NO. 78742/2016
Laxmi Kumar Kapur
(Deceased through LRs)
i. Smt. Vijay Laxmi Kapoor
W/o Late Sh. Laxmi Kumar Kapur
R/o B-101, Saransh Apartment,
Plot No. 34, I. P. Extension
New Delhi - 110092
ii. Smt. Dhruvy Madaan
W/o Mr. Amit Madaan
D/o Late Sh. Laxmi Kumar Kapur
R/o 20, Shiv Kala Mandir
Ram Nagar, Krishna Nagar
New Delhi - 110051
iii. Ms. Natasha Kapur
D/o Late Sh. Laxmi Kumar Kapur
iv. Mr. Ivank Kapur
S/o Late Sh. Laxmi Kumar Kapur .... Plaintiffs
(Residence of LR No. iii & iv same as of LR No. i.)
Versus
1. Sh. Ravi Kapur
S/o Late Sh. Jagdish Chandra Kapur
R/o C-2/114, West Enclave,
Pitampura, Delhi - 110034
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 1 of 20
2
2. Smt. Achla Malhotra
W/o Sh. Surender Kumar Malhotra
S/o Late Sh. Jagdish Chandra Kapur
R/o B-50/15, First Floor, My Floor
T.D.I. City, Kundli
District Sonipat (Haryana) ..... Defendants
Date of institution : 19.07.2013
Date of arguments: 16.08.2019
Date of judgment : 30.08.2019
JUDGMENT
1. This is a suit for partition, possession, declaration and, mesne profits.
Initially, the suit was filed for partition, declaration and mesne profits only and it was subsequently amended to the one including relief of possession also. The amendment was allowed on 15.05.2014 after the plaintiff filed an application in that regard, pursuant to certain observations contained in the order dtd. 03.04.2014 of Hon'ble Delhi High Court, which are mentioned below.
2. The parties are siblings. The plaintiff being younger brother of Defendant no.1 (D1). The Defendant no. 2 is sister (D2). During pendency of suit, the plaintiff expired and his LRs were brought on record on 15.04.2019. Facts of this case are not in dispute and therefore, vide order dated 03.04.2014 passed by Hon'ble Delhi High Court, as at that time the CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 2 of 20 3 minimum pecuniary jurisdiction was with Hon'ble High Court, it was ordered as follows in para no. 3 to 8 of the order:-
"3. The counsel for the plaintiff has argued that the parents of the plaintiff and the defendants had executed a mutual Will dated 20.04.2006 whereunder after the parents, the ground floor of the property is bequeathed to defendant no.2, the first floor to the defendant no. 1 and the second floor to the plaintiff, with the terrace of the second floor belonging equally to the plaintiff and the defendant no. 1; that the defendant no. 1 has got executed Gift Deeds of the entire property in his own favour from the surviving parent. The contention is that the Wills being mutual, the surviving parent could not have executed the Gift Deeds of the property in favour of the defendant no.1.
4. Accordingly, this suit has been filed for declaration of the said Gift Deeds as null and void and for partition of the property.
5. It has been enquired from the counsel for the plaintiff that if according to the plaintiff, the plaintiff under the Wills aforesaid has become the owner of the second floor of the property, then how the suit for partition with the final relief of delivery of second floor of the property to the plaintiff is maintainable and whether not the remedy of the plaintiff is to sue for possession of the second floor of the property.
6. The counsel for the plaintiff after passover and after pondering over the matter agrees to the aforesaid and seeks time to amend the plaint.
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 3 of 20 4
7. I may notice that it is further the contention of the counsel for the plaintiff that the Supreme Court in Krishna Kumar Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300 has held that the estate cannot be dealt with in contravention of the mutual Will.
8. The counsel for the defendants to look into the said aspect also inasmuch as if that is the position, no evidence would be required."
3. The matter was then listed for arguments and upon enhancement of pecuniary jurisdiction of the Additional District Judges in Delhi, the matter came to be transferred to this Court. Vide order dated 01.07.2017, the Ld. Predecessor Court posted the matter for framing of issues after rejecting the contention of the D1 that no evidence is required and that the dispute can be decided without evidence.
4. D1 challenged the said order in Hon'ble High Court under CM(M) 1071/2017, and vide order dated 22.09.2017 Hon'ble High Court observed that the D1 may approach this Court and argue that no issue of fact requiring trial arises. Accordingly, arguments were heard.
5. It is undisputed is that the parents of the parties involved, were jointly owner of suit property i.e. C-2/114, West Enclave, Pitam Pura, Delhi-34 comprising of ground floor, first floor, second floor and terrace. The property was jointly purchased by the parents of parties vide conveyance deed dated 21.11.1993 executed by DDA, which was also registered on 28.12.1993. Both the parents executed two Wills dated 20.04.2006 on identical terms. It is not in dispute that mother of parties expired on 08.04.2007 and subsequently father expired on 28.02.2013. Before his CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 4 of 20 5 death, Father gifted the property under two gift deeds dated 08.04.2019 & 15.07.2010 in favour of the D1 to the exclusion of plaintiff and D2. Under the gift dated 08.04.2009 the first and second floor of the property with roof rights were gifted and, under the second gift deed dated 15.07.2010 the ground floor was gifted. Father even executed a Will dated 06.08.2010.
6. The plaintiff claims that the two Wills dated 20.04.2006 are mutual Wills.
Whereas, D1 argues that though these two Wills were identical and verbatim same but they are not mutual. The entire controversy between the two sides is on this point.
7. The plaintiff has averred in the plaint that under the two Wills in question the parents had agreed that the surviving spouse shall enjoy the property upon the demise of other spouse and the surviving spouse shall be able to dispose of the same to meet his necessities only, if any. Plaintiff claims that the surviving spouse thus had a life estate only and was not competent to dispose of the property without there being any necessity and the surviving spouse could not have acted in contravention of the mutual Wills. The Wills also stipulated that in case the property subsists even after demise of the surviving spouse, the property shall devolve upon the parties in the suit in the following manner. The ground floor was to devolve upon the D2 (daughter of the testators). The first floor was to devolve upon D1 (elder son of the testators). The second floor was to devolve upon the plaintiff (younger son of the testators). The terrace above the second floor was to devolve upon the plaintiff and D1 in equal CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 5 of 20 6 share. Plaintiff claims that the father of parties had no necessity to dispose off the suit property in favour of anybody as he was well off. It is claimed that upon death of both the parents, when partition was demanded by the plaintiff, the D1 claimed that the father had gifted the property under two gift deeds to the exclusion of plaintiff and D2. It is also averred in the plaint that the D1 claimed that father of the parties even executed Will dated 06.08.2010. It is claimed that the further testaments are null & void and accordingly the properties be partitioned in accordance with the two Wills dated 20.04.2006 in question. It is also claimed by the plaintiff that even otherwise after execution of the two gift deeds, there was no requirement for execution of the Will dated 06.08.2010 and it is a void document.
8. It may be reiterated here that the fact of execution of the two gift deeds and the subsequent Will dated 06.08.2010 is not disputed by the plaintiff, but what is disputed is competence of the father to execute these documents.
9. The D2 supports the plaintiff.
10. The claim of D1 is that under the above mentioned two Wills the surviving spouse got complete rights over the property and those Wills did not create life estate only. Thus, according to D1 the gift deeds executed by the father as also the second Will dated 06.08.2010 was valid and the suit is without cause of action and ought to be dismissed. It is claimed by D1 that under the Will dated 06.08.2010 certain fixed deposits were distributed amongst the parties and received by the plaintiff as well, which CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 6 of 20 7 fact has been actively concealed by the plaintiff and once that Will has been acted upon it is not open to the plaintiff to seek partition or to seek declaration. Thus, the case of D1 is that upon death of mother of parties, father became absolute owner of the entire suit property, as he became the absolute owner of the undivided half share of the mother and he was owner of his own share, and thus was competent to execute the gift deeds as well as the subsequent Will under which he revoked his previous Will.
11. The relevant portion of the Will dated 20.04.2006 executed by mother reads as follows :-
"And whereas, the Testator is hereby bequeathing her title, right, interest and share etc. in the above mentioned property unto her husband on the premise that if the Testator precedes her husband Shri Jagdish Chandra Kapur, my share in the above mentioned property shall devolve upon him and he shall enjoy the same in his own exclusive rights, interest and control and shall be able to dispose off the same to meet his necessities, if any.
Save and except the above, if the above property subsists even after the demise of the husband of the Testator, the same shall devolve upon her other above mentioned legal heirs in the following manner ..............................."
12. Similarly, the relevant portions of the Will executed by father of the parties reads as follows :-
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 7 of 20 8 "And whereas, the Testator is hereby bequeathing his title, right, interest and share etc. in the above mentioned property unto his wife on the premise that if the Testator precedes her wife Smt. Jaiwanti Kapur, my share in the above mentioned property shall devolve upon her and she shall enjoy the same in her own exclusive rights, interest and control and shall be able to dispose off the same to meet her necessities, if any.
Save and except the above, if the above property subsists even after the demise of the wife of the Testator, the same shall devolve upon his other above mentioned legal heirs in the following manner ..............................."
13. Before interpreting the Wills left behind by the parents of parties and gathering the intention of the parents or finding out whether there was any mutuality, it would be appropriate to discuss the precedents relied upon by both the sides.
14. Plaintiff relied upon the case of Arunkumar v. Shriniwas, (2003) 6 SCC
98. The essential principles which should guide the courts in interpretation of wills, in contrast to the other class or category of documents, have been set out in para 7 of that case, relying upon the case of Navneet Lal v. Gokul [(1976) 1 SCC 630].The fundamental rule is to ascertain the intention of the testator from the words used, the surrounding circumstances for the purpose of finding out the intended meaning of the words which have been employed; the court, in doing so is entitled to put itself into the armchair of the testator and is bound to CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 8 of 20 9 bear in mind also other matters than merely the words used and the probability that the testator had/would have used the words in a particular sense, in order to arrive at a right construction of the will and ascertain the meaning of the language used; The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole, with all its provisions and ignoring none of them, as redundant or contradictory, giving such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative etc. In the case of Arun Kumar, a lady executed a Will in respect of a property she owned absolutely. In the Will, though it was stated that after the death of the testator her husband shall be the heir and owner of the property, but it was subjected to a rider and limitation indicating that such succession or ownership has to be "as detailed below", meaning thereby further stipulations were contained in the will. The said clause in the will was immediately followed by the provisions that in accordance with the will the three appellants shall be the owners of the property after the death of the husband. The intention of the testator in respect of what has been bequeathed in favour of the husband of the testator was only a limited life interest, was clear also by the words next following, "My property ... shall be enjoyed by my husband ... and the abovenamed ... three minors." It was found further stated in the will that the same was being made "for the benefit and enjoyment of the property by my above husband and minor boys". Reasons also were assigned in the will itself as to why those three minor children were chosen for being given the ultimate and absolute rights CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 9 of 20 10 after the death of her husband. In the light of the above noticed provisions in the will, it was held that the testament cannot be construed to bequeath the property absolutely in favour of the husband. The said case is clearly distinguishable from the facts of the present case.
15. Plaintiff also relied upon the case of Kamla Nijhawan Vs. Sushil Kumar Nijhawan and Ors. (2014) 215 DLT 386, where husband of the plaintiff executed a Will bequeathing properties upon plaintiff. Under Clause 'E' and subsequent stipulations in the Will, it was specifically mentioned by the testator that son of testator shall be the owner and the plaintiff wife shall be the owner till her life and the Will shall have effect after death of his wife / plaintiff, thereby meaning that the property was actually bequeathed to the son and the wife was not made absolute owner. It was held that the wife had a life estate only. The said case is also clearly distinguishable.
16. Plaintiff also relied upon the case of KUPPUSWAMI RAJA and another Vs PERUMAL RAJA and others. AIR 1964 Mad 291, where there was a bilateral agreement between the two brothers which was founded by mutual consideration and mutual trust and confidence and it was found that it was impossible to effectuate and carry out the scheme as mentioned in the Will if after the death of one, the other survivor were to possess an unilateral and unqualified power to revoke or cancel or modify that arrangement and it was found that such a power if upheld, would completely frustrate and defeat the very object and purpose for which CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 10 of 20 11 both the brothers executed the Will. The said case is also clearly distinguishable.
17. Plaintiff also relied upon the case of Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300, where it was held that similarity of the terms of purported mutual Wills would not be enough to establish the necessary agreement. Though the plaintiff heavily relied upon the fact that in this case of KK Birla in para 121, the para no. 32 of the case of Kuppuswami (supra) was quoted, but what has to be seen is as to what is the legal position emerging from the case of KK Birla. The said case is also clearly distinguishable on facts. It was specifically observed in KK Birla's case in para no. 117 that whether the Wills constitutes a mutual Will in the sense that thereby an agreement had been entered into by & between the husband and wife in regard to the application of the property in question, is the main thing. After examining various judgments, Hon'ble Supreme Court held as follows in para 134. (Emphasis on para 134 (iii)).
"134. The principles which can be deduced from the discussions made hereto before are:
(i) A will made in prejudice of an agreement will nevertheless be effective as a will as it is by its very nature and by its very essence a revocable instrument.
(ii) A subsequent infringing will would be valid even if it revokes an earlier mutual will.
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 11 of 20 12
(iii) Similarity of the terms would not be enough to establish the necessary agreement.
(iv) Whether a legatee has taken any benefit under the alleged wills of 1982 would, however, be relevant."
18. On the other hand, D1 has relied upon the case of K.S. Palanisami v.
Hindu Community in General & Citizens of Gobichettipalayam, (2017) 13 SCC 15. Though the counsel for plaintiff vehemently argued that this judgment relied upon by the D1 is distinguishable and he even filed in writing the factors distinguishing that judgment, but this judgment is in favour of the D1. Undoubtedly, in the case of K.S. Palanisami, husband and wife executed two Wills and in the Wills the intention of both the testator and the testatrix was to give property to charities which was manifest from the reading of the Will in its entirety and it also specified the list of charities and, therefore, the Hon'ble Court came to a conclusion that there was mutuality in the said Wills. In that case, in the third para of the Will it was provided that on the death of any of the spouses, the survivor shall enjoy the entire properties absolutely with all the rights but in the last part of the paragraph it was mentioned "his / her lifetime", the words used were also "and carry on under mentioned charities from and out of the income derived from them without alienating the same". Therefore, though the facts of that case may be different and the Wills in that case clearly stipulated mutuality and clearly stipulated agreement for charity, but in the present case there is no such mutuality or agreement for any particular purpose. Following was observed in that case:-
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 12 of 20 13 "30. We thus, first proceed to examine the nature and characteristics of joint will and joint and mutual will. .................. Theobald on Wills, 19th Edn.
(Sweet & Maxwell) has defined "joint will" and "mutual will" in Paras 1-011 and 1-012 in the following manner:
"1-011. Persons may make joint wills which are revocable at any time by either of them or by the survivor. A joint will is looked upon as the will of each testator, and may be proved on the death of one. But the survivor will be treated in equity as a trustee of the joint property if the equitable doctrine of mutual wills applies. Under this doctrine there must be an agreement for the survivor to be bound by the arrangement between them; but the mere fact of the execution of a joint will is not sufficient to establish such an agreement for the survivor to be bound. If this doctrine applies, a legacy to a legatee who survived the first testator, but predeceased the second, does not lapse. Where a joint will is followed by a separate will which is conditional on a condition that fails, the joint will is not revoked even though the subsequent separate will contains a revocation clause.
1-012. The term "mutual wills" is used to describe joint or separate wills made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The agreement is enforced after the death of the first to die by means of a constructive trust. There are often difficulties as to proving the agreement, and as to the nature, scope, and effect of the trust imposed on the estate of the second to die.
The revocable nature of the wills under which the interests are created is fully recognised by a probate court; but in certain circumstances equity protects and enforces the interests created by the agreement despite the CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 13 of 20 14 revocation of his will by one party after the death of the other without having revoked his will i.e. the survivor's property will be affected by the trust imposed so as to give effect to the agreement."
**************************
39. .............................. In para 55 propositions were laid down. Paras 50 and 55 are quoted as below: (Dilharshankar C. Bhachech case [Dilharshankar C. Bhachech v. CED, (1986) 1 SCC 701 : 1986 SCC (Tax) 268] , SCC pp. 719-21) "50. Therefore the will must be construed in its proper light and there must be definite agreement found from the tenor of the will or aliunde that either of the joint executants would not revoke the will after receiving the benefit under the will. Such definite agreement need not be express; it can be implied. ............................***
55. In view of the above discussion, the following propositions follow:
................ But there must be an agreement that the wills would not be revoked after the death of one of the executants or disposition will not be made contrary to the will after the death of one of the executants. Such an agreement may appear from the will or may be proved outside the will but that is not established by the mere fact that the wills are in identical terms. If such an agreement is shown, each party remains bound. (3) A different and separate agreement must be spelled out not to revoke the will after the death of one of the executants. That agreement must be clear though need not be by a separate writing but must follow as a necessary implication which would tantamount to an express agreement.
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 14 of 20 15 (4) The predominant intention of the executants at the time of the execution, after the acceptance of the benefit of the execution makes the will in this case irrevocable by the survivor of the executants.
........................"
19. D1 has also relied upon the case of Manilal Sunderjidoshi v. Kamal Manilal Doshi, 2013 SCC OnLine Bom 418, wherein following was observed :-
"81.Issue No. 5A. The concept of mutual Wills must be first understood. Halsbury's Laws of England, 4th Edition volume 50, paragraph 308 at Pg.208 explains mutual Wills thus:
308. Mutual Wills : Wills are mutual when the testators confer on each other reciprocal benefits, which may be absolute benefits in each other's property, or life interest with the same ultimate disposition of each estate on the death of the survivor. Apparently, a mutual Will in the strict sense of the term is a joint Will, but, where by agreement or arrangement similar provisions are made by separate Wills, these are also conveniently known as mutual Wills. Wills which by agreement confer benefit on persons other than the testators, without the testators conferring benefits on each other, can also be mutual Wills. Where there is an agreement not to revoke mutual Wills and one party dies having stood by the agreement, a survivor is bound by it.
82. ....................The above passage would show what kind of Wills could be treated as mutual Wills. The description of the Will as a mutual Will itself does not govern as to which Will can be admitted to probate and which cannot. .............
83. There is no condition precedent to the making of mutual Wills as set out in Halsbury's Laws of England. It may be mentioned that revocability is the prime, CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 15 of 20 16 salient feature of a Will. It is implicit in a testamentary disposition that the person making it has got the full right, privilege and authority to revoke it and to make another Will specially if circumstances in his life changed impelling him to revoke the earlier legacy and to alter that legacy or make a wholly new bequest.
This is the salutary legal provision granting the proprietary right to the fullest to the person having ownership and hence complete and unfettered dominion over his properties. It is statutorily granted under section 62 of the Indian Succession Act which runs thus:
"Section 62: Will may be revoked or altered.-- A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will."
84. Indeed it would be implicit in the right to life itself. It would impinge upon the freedom of an individual to deal with his properties freely and fully if he would not be entitled to deal with them during his/her lifetime inter vivos by selling, alienating or gifting it as he wished, or upon his/her death by a testamentary disposition bequeathing it to whoever he/she chose.
85. What is contended is that if the Plaintiff claims, as he has, that both the Plaintiff as well as his wife, the deceased, made Wills together on the same day they are mutual Wills. If they are mutual Wills the plaintiff cannot revoke his Will and if he has done so, which he has shown, that act itself would militate against the grant of probate of the Will of the deceased who is the first to die amongst the two executants of two separate but similar Wills as shown above. This would suggest that if two spouses make Wills separately on different dates, the incident of revocability would not be affected. But if they executed two Wills on a single day, with reciprocity, that ipso facto would take away the significant aspect of revocability from the one who is the later executant after having accepted the benefit under the bequest of the spouse earlier to die. A legal CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 16 of 20 17 provision which impinges upon the unfettered right of an individual to make any testamentary bequest as per his wish and to inherit from the bequest of another must be cautiously and scrupulously analysed before being zealously accepted.
86. A very neat set of English case law relating to "mutual Wills" which has been followed in India by judicial precedents is required to be set out, analysed, considered and applied to test this argument.
............................
94. A reading of the aforesaid three judgments shows that if a life interest is created and there is any further evidence of an agreement or arrangement the two executants of the Will binding themselves to make their Will revocable, an implied contract resulting in a constructive trust would ensue. If however, bequests are made unconditionally they would simpliciter take effect. In cases of no evidence of agreement of irrevocability, a trust cannot be imputed and the salubrious feature of revocability of the Will cannot be restricted or denied to the survivor of the mutual Wills.
95. Merely, therefore, calling a Will a mutual Will because another similar Will has been similarly executed either on the same date and time or thereafter, no trust per se can be imputed and no contract per se can be implied or specifically enforced by the beneficiaries of the joint Will under the later conditional bequests.
.................
104. It would, therefore, mean and show that if these two conditions precedent were not shown or satisfied, the two Wills may not be called mutual Wills at all. They would be two separate independent Wills capable of being probated as per law. Hence because the party may call them mutual Wills, they would not become mutual Wills. Merely because another party may CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 17 of 20 18 say that they are mutual Wills, they would not cease to carry with them the implicit requirement of non-revocability. Even if one of the two conditions is satisfied and usually that condition would be that the surviving testator would naturally receive benefit under the Will of the first to die amongst them, if they had not agreed that they would not revoke the mutual Wills the essence of revocability of Wills would be maintained."
20. In Helen Ann Gray v. Perpetual Trustee Co., Ltd., 1928 SCC Online PC 52, relied upon by D1, it was held that, the mere simultaneity of the wills and the similarity of their terms do not appear, taken by themselves, to have been looked on as more than some evidence of an agreement not to revoke.
21. In Jagat Singh v. Sangat Singh AIR 1940 PC 70, relied upon by D1, it was held that the Will provided that after the death of testator his widow would be exclusive owner of certain property with all kinds of power to deal with the property. After her death, whatever property remained were to be owned by the sons of the testator's nephew. Both the widow and the sons of the testator's nephew were prohibited from selling any immovable property. It was held that the true effect of the Will was to make the widow an absolute owner of the property and the prohibition against selling would not be regarded as showing an intention to give the widow an interest for life or the estate of a Hindu woman but as a condition which the testator was proposing to attach to an absolute interest. The prohibition against selling must be disregarded as repugnant to the absolute gift to the widow. In that Will, clause 4 was clear and in emphatic language, consistent only with the gift of an absolute interest and the CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 18 of 20 19 phrase "whatever property remains" contained in the Will was in keeping with that intention.
22. In Golak Behari Mondal v. Suradhani Dassi, AIR 1939 Cal 226, relied by the D1, it was held, as follows;
"6. The distinction between a defeasance clause and a repugnant one is sometimes a nice one. One useful test has been formulated by the Madras High Court in 63 Mad LJ 911 [Govindaraja Pillai v. Mangalam Pillai, (1933) 20 AIR Mad 80 : 139 IC 867 : 63 MLJ 911.] at p. 913. Where the intention of the donor or testator is to maintain the absolute estate conferred on the donee but he adds some restrictions in derogation of the incidents of such absolute ownership the clause is a repugnant one and is therefore void. If however the intention expressed, or to be necessarily implied, is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said estate would not be the violation of any rule of law the clause is a defeasance clause and would operate according to its tenor."
23. Coming back to the Wills of this Case, the two Wills left by the parents of the parties though are identical, bequeathing share of one in favour of another, but there is no element of mutuality or any agreement between the parents to appropriate the property in any particular manner or for particular purpose. The words "shall enjoy the same in his/her own exclusive rights, interest and control" and the words "and shall be able to dispose off the same to meet his / her necessities, if any", the words "save and accept the above, if the above property subsists even after the demise of the husband/wife of the testator, the same shall devolve upon his/her other heirs", makes abundantly clear that CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 19 of 20 20 what was intended by the testator and testatrix was that his/her share shall be exclusively owned by the surviving spouse. Not only exclusive rights were conferred, exclusive interest, exclusive control and, exclusive right to dispose off the property was conferred. The words to meet his/her necessities does not go to the extent of creating life interest. The intention of the testatrix was clear that even if the property survives and remains after the death of her husband, only in that eventuality her property would go to the heirs in the manner specified.
24. Thus, there was no agreement between the spouses that the surviving spouse shall acquire life interest only and the intention of the parents were to give exclusive ownership to the surviving spouse. The father, upon death of mother of parties, thus became exclusive owner of the property and was fully competent to dispose off the property without there being any rider and thus the subsequent gift deeds/Will cannot be questioned by the plaintiff.
25. No triable issue therefore arises in the present matter which may require evidence. The suit of the plaintiff therefore has to fail and is dismissed. No order as to cost. Decree sheet be prepared. File be consigned to the record room.
Digitally
DIG signed by DIG
VINAY SINGH
VINAY Date:
2019.08.30
SINGH 16:04:13
Announced in the open Court
+0530
on 30th August, 2019. Dig Vinay Singh
ADJ-2 : North West
Rohini Courts : Delhi
CS No. 78742/2016 Laxmi Kumar Kapur Vs. Ravi Kapur & Anr. 20 of 20