Ram Baboo Jain And Ors vs Vipin Kumar Jain And Ors on 25 September, 2014

[Cites 14, Cited by 3]

Delhi High Court

Ram Baboo Jain And Ors vs Vipin Kumar Jain And Ors on 25 September, 2014

1. This is an application filed by the plaintiffs under Order XII Rule 6 CPC, seeking judgment on admissions. The necessary facts to be noticed for disposal of the application are that the parties to the present suit i.e. plaintiffs no.1 to 3 and defendant no.1 are brothers and defendants no.4 to 6 are the sisters. The parties are children of late Sh.Ratan Lal Jain and Smt.Shanti Devi Jain.

2. Admittedly, Sh.Ratan Lal Jain was the owner of a flat No.C-4/31 situated at Rajasthali Apartments, Madhuban Chowk, Pitampura, Delhi. The conveyance deed dated 19.12.2000 stands in the name of Sh.Ratan Lal Jain, who died on 8.12.2003, leaving behind a duly executed Will dated 3.6.2002. The wife of Sh.Ratan Lal Jain (Smt.Shanti Devi Jain) also died on 10.5.2011. The subject matter of the present suit is the aforesaid flat.

3. The plaintiffs claim 1/4th share in the said flat along with defendant no.1, CS(OS) 2370/2013 Page 1 of 9 based on the Will dated 3.6.2002. It may be noticed that the plaintiffs, defendants no.1, 4, 5 and 6 do not dispute the Will dated 3.6.2002.

4. Counsel for the plaintiffs submits that in view of the fact that the contesting parties do not dispute the Will dated 3.6.2002, a preliminary decree is liable to be passed, declaring the share of three plaintiffs and defendant no.1 as 1/4th share.

5. This application is opposed by counsel for the defendant no.1, who does not dispute the Will dated 3.6.2002 but submits that late Sh.Ratan Lal Jain had made a life interest with respect to the flat in favour of his wife, Smt.Shanti Devi Jain, who during her lifetime, nominated defendant no.1 in the records of the cooperative society, and further got the flat mutated in her name. It is the stand of defendant no.1 that since the mother dealt with the subject flat during her lifetime the present application is liable to be dismissed. It is also submitted by counsel for the defendant no.1 that since the Will has been acted upon and the mother has dealt with the subject property in favour of defendant no.1, the plaintiffs are left with no right in the same. In support of this proposition, counsel for the defendant no.1 has placed reliance on Narayanan Anandan Vs. Rakesh & Os. AIR 1995 Kerala 205 and more particularly on paragraph 6, which is reproduced below:

"6. Once absolute interest is created under a will and then it contains clauses restraining alienation or enjoyment such clauses will be invalid and only because of such restrictive clauses the bequest does not become bad. In Rameshwar Bakheh v. Balraj Kuar, AIR 1935 PC 187 the Privy Council held :

"Where an absolute estate is created by a will in favour of the devisee, the clauses in the will which are repugnant to such CS(OS) 2370/2013 Page 2 of 9 absolute estate cannot cut down the estate, but they must be held to be invalid."

It is also useful to refer to Fatima Sarohini Suresh v. Saraswathi Amma, 1985 Ker LJ 433: (AIR 1986 Kerala 56) wherein a Division Bench of this Court held (at p. 59 of AIR):

"It will not be inappropriate to proceed on the basis that Sections 10 to 14 of the T. P. Act and the corresponding provisions of the Indian Succession Act are but statutory recognition of principles even otherwise well-settled. To impose a total restraint on transfer of property or to impose rules which keep it out of circulation offend public policy, irrespective of whether such conditions are imposed by a deed of transfer, a will or a simple contract. A contract opposed to public policy is unenforceable; and in this view of the matter, the restrictive clauses in Ext. A2 have to be held as inoperative."

6. For the same proposition, counsel has also placed reliance on Smt. Chhabubai Balwantrao Shinde and Ors. Vs. Gulabrao Balwantrao Shinde and Ors. AIR 2001 Bombay 486 and more particularly paragraph 7 which is reproduced below:

"7. In that behalf Shri Raghuvanshi relied on a judgment of the Apex Court in Mahesh Chand Sharma v. Smt. Raj Kumari Sharma, . The Hon'ble Supreme Court in para 30, while interpreting Section 14(1) of Hindu Succession Act, has clearly held that even if there were to be a contrary compromise, the statutory provisions in Section 14(1) of Hindu Succession Act will apply inasmuch as the statutory provisions supersede the recitals in the Will and held that the right ripened into an absolute estate. Recently the Apex Court again in the case of Raghubar Singh v. Gulab Singh , while interpreting Section 14(1) has held that the limited interest automatically got enlarged into an absolute one in view of Section 14(1) of the Hindu Succession Act. The relevant observations are CS(OS) 2370/2013 Page 3 of 9 found in paragraphs 13 and 14 (of SRJ) :(Paras 22 to 25 of AIR) which read as under:--

"13. Thus we find that there is enough authority for the proposition that the right to maintenance of a Hindu female is a preexisting right, which existed in the Hindu Law long before the Act of 1937 or the Act of 1946 came into force and is not a creation of those statutes, which only recognised that position. In the words of Fazal Ali, J. in Tulasamma's case (AIR 1977 SC 1944 at pp. 1977-78) (supra) :

"The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu Jurists starting from Yajanvalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre- existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights."

Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of widow is "a pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those acts merely recongnised the position as was existing under the Shastric Hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession CS(OS) 2370/2013 Page 4 of 9 of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance.

"14. Explaining the meaning of the expression "possessed" as used by the legislature in Section 14(1) of the 1956 Act in Tulasamma's case (AIR 1977 SC 1944 at p. 1978) (supra) this Court held:

The words possessed by used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by the force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.

It is by force of Section 14(1) of the Act, that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as Sub-section (2) of Section 14 is concerned, it applies to instruments, decrees, awards, gifts, etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognise or confirms her share in the property or her "pre-existing right to maintenance" out of that property. As held in Tulasamma's case (supra), Sub- section (2) of Section 14 is in the nature of a proviso CS(OS) 2370/2013 Page 5 of 9 and has a field of its own, without interfering with the operation of Section 14(1) of the Act."

7. Reliance has also been placed by the counsel for defendant no.1 on Palchuri Hanumayamma (Smt). Vs. Tadikamalla Kotlingam (Dead) by Lrs. & Ors. (2001) 8 page 552.

8. To appreciate the rival submissions of counsel for the parties, it would be useful to reproduce the relevant portion of the Will:

"Residential flat bearing No.C-4/31, situated at Rajasthali Apartments, Madhuban Chowk, Pitampura, Delhi -110 034 and all other properties both moveable and immovable belonging to me at the time of my death in favour of my wife Smt.Shanti Devi Jain for her life time only, who shall have the life interest in the aforesaid residential flat, but she shall no right to sell, transfer or alienate the same in any manner and after her death the said property shall go and devolve on all my four sons namely Ram Baboo Jain, Om Prakash Jain, Vipin Kumar Jain and Pavan Kumar Jain, who shall be the sold and absolute owners thereof in equal shares and shall have full right to hold, use, enjoy and transfer the same in any manner, they like and my other heirs and successors shall have no right, title, interest, claim or concern of any nature whatsoever with the said flat. Since my three sons namely Ram Baboo Jain, Om Prakash Jain and Pavan Kumar Jain are already staying out of station and they shall have full right to stay in the aforesaid flat temporarily or permanently with their families at any time. In case if my wife said Smt.Shanti Devi Jain predecease me then the said property shall go and devolve on all my four sons aforesaid."

9. A bare reading of the Will would show that the father of the parties Sh.Ratan Lal Jain had clearly stated in the Will that in both movable and immovable properties belonging to the testator, his wife (Smt.Shanti Devi CS(OS) 2370/2013 Page 6 of 9 Jain) would have a life interest. A categorical assertion was also made that she (Smt.Shanti Devi Jain) will have no right to sell, transfer or alienate in any manner the movable / immovable properties and after her death the property would devolve upon all the four sons i.e. three plaintiffs and the defendant no.1, who would then became absolute owners in equal shares.

10. The judgment relied upon Narayanan Anandan (Supra) to my mind is not applicable to the facts of the present case. A reading of paragraph 4 of the case Narayanan Anandan (Supra) would show that the property was devolved on account of love and affection with a direction that the property should be given unconditionally to the second defendant, when he attains the age of 20 years and thereafter the property would devolve upon the person, whom he wants to be benefited or to his children. In the present case no such discretion has been vested in favour of late Smt.Shanti Devi Jain and thus the facts of the case are distinguishable to this matter.

11. To the contrary, in the case of Mst.Karmi Vs. Amru and Ors. AIR 1971 SC 745 (V 58 C 145) it has been held that a widow, who succeeds to properties of her deceased husband on the strength of the Will executed by the husband in her favour cannot claim any rights in the properties other than those conferred by the Will.

12. The judgment Smt. Chhabubai Balwantrao (Supra) relied upon by counsel for the defendant no.1, in my view is also not applicable to the facts of the present case, as in the aforesaid matter the property was given to the widow in lieu of maintenance, however, in the present case, neither the Will suggests that the life interest was given to Smt.Shanti Devi Jain towards maintenance, nor it is the case of the defendant no.1 that the CS(OS) 2370/2013 Page 7 of 9 mother was forced to transfer the property, as she required money to maintain herself, hence, the judgment is not applicable to the facts of the case.

13. While interpreting the Will it is paramount for the court to take into consideration the intention of the testator. In the case of Gnambal Ammal v. Raju Ayyar, AIR reported at 1951 SC 103, the Supreme Court has held as under:

"The cardinal maxim to be observed by Courts in construing 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 construing the language of the will, 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 arriving at a right construction of the will, and to ascertain the meaning of its language when used by 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"

14. Reading of the Will dated 3.6.2002 makes it absolutely clear the intention of the testator to give a life interest of the flat to his wife; the testator thereafter goes on to clarify that upon the death of his wife, the property is to devolve upon all his four sons who have been named in the Will. This intention was absolutely clear, hence, late Smt.Shanti Devi Jain had no CS(OS) 2370/2013 Page 8 of 9 right to transfer the property in question in favour of defendant no.1. The stand of defendant no.1 is without any merit. Accordingly, the present application is allowed.

CS(OS) 2370/2013

15. A preliminary decree is passed, defining the shares of the parties (plaintiffs 1 to 3 and defendant no.1) as 1/4th each.

16. Counsel for the plaintiff prays that a final decree should also be passed, as being a small flat, it is impossible for the same to be divided into four shares and appointing a Local Commissioner would be a futile exercise.

17. Keeping in mind the above situation in my mind, at this stage, a final decree is passed, defining the shares of the parties (plaintiffs 1 to 3 and defendant no.1) as 1/4th each.

18. At this stage, it is suggested by counsel for the defendant that in case the parties are unable to reach on a consensus with regard to sale of the property, the matter be referred to mediator.

19. Without prejudice to the rights and contentions, while a final decree is passed defining the shares of the parties (plaintiffs 1 to 3 and defendant no.1) as 1/4th each, three months time is granted to the parties to work out a settlement before Mediator, if possible, failing which it would be open for the parties to seek execution of the decree.

20. The suit stands decreed in above terms.

21. At joint request, the connected matter Test Case No.86/2011 be listed before this court on 29.9.2014. Ordered accordingly.

G.S.SISTANI, J SEPTEMBER 25, 2014 ssn CS(OS) 2370/2013 Page 9 of 9

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