Delhi High Court
Shri H.P.S. Chawla vs Mcd on 21 November, 2005
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Late Raj Chawla Sahni was the sister of the petitioner Shri H.P.S. Chawla. Second respondent, Dr. N.P.S. Chawla is the other brother of Late Raj Chawla Sahni. The two brothers are in dispute arising out of a will dated 13.5.1984, admittedly the last testament executed by Raj Chawla Sahni who died on 5.6.1984.
2. As would be unfolded hereinafter a small typographical error, but at a place where it found itself, has rendered it a little difficult to understand as to who was intended to be the beneficiary under the will.
3. Admittedly, between the petitioner and the second respondent, petitioner is neither a doctor nor has a Ph.D. doctorate in his favor. Admittedly, N.P.S. Chawla is a doctor. Unfortunately, while transcribing the will following was transcribed:-
Dr. H.P.S. Chawla residing at C-2/47 Safdarjung Development Area, (Hauzkhas Side), New Delhi, Mr. N.P.S. Chawla at present residing at 1365, York Avenue, New York, USA.
4. As is evident, "Dr." was prefixed before the name of the petitioner and "Mr." was prefixed before the name of N.P.S. Chawla. Had this been the only error, one would have no problem for, in relation to the address of the two brothers as set out, identity could be established and it could be reasonably held that the prefix before the two names is wrong. Unfortunately, the problem got compounded for the reason N.P.S. Chawla was residing at the Safdarjung Development address and H.P.S. Chawla was residing in New York.
5. Two views were possible. The first was that reference to Dr. H.P.S. Chawla was intended to be to N.P.S. Chawla i.e. letter "H" was typographical error and ought to have read "N" vice versa the letter "N" while referring to Mr. N.P.S. Chawla should be read as "H" and vice versa, the letter "H" while referring to Dr. H.P.S. Chawla be read as the letter "N". The second view could be that the testator mixed up not only the first letter of the name of the two brothers but even their address.
6. Unfortunately, a will speaks after the death of the testator. The testator cannot be summoned or questioned to ascertain his/her wishes. This has created a problem in the instant case for the reason no other part of the will throws any light to unravel the mystery which is a result of the error as aforenoted.
7. Raj Chawla Sahni, amongst other, was the owner of a free hold land bearing municipal No. S-420, Greater Kailash, Part-II, New Delhi. In the will she made a bequest in favor of "Dr. H.P.S. Chawla".
8. But the problem was whether she intended to bequest to part in favor of the petitioner or respondent No. 2 was not clear for the reasons noted herein above compounded further with the fact that while making the bequest she referred to "Dr. H.P.S. Chawla" and not "Mr. N.P.S. Chawla".
9. Pertaining to the will a dispute arose amongst the beneficiaries. Apart from the petitioner and respondent No. 2 bequest was made in favor of the third brother Mr. T.P.S. Chawla and a sister Mrs. Nirmala.
10. Probate was sought by Dr. N.P.S. Chawla. The same was registered as Probate Case No. 45/1986, Dr. N.P.S. Chawla v. State, in this Court. On 18.8.1988, an order was passed in the probate afore-noted. Inter alia, the order recorded as under:-
The will also bequests immovable properties belonging to the deceased. Direction is accordingly issued to the Municipal Corporation of Delhi to mutate house No. N-258, Greater Kailash-I, New Delhi to the name of Mrs. Nirmal Danier and Mr. N.P.S. Chawla and plot of land No. F-420 Greater Kailash II, New Delhi to the name of Dr. H.P.S. Chawla. Direction is also issued to New Okhla Industrial Development Authority, U.P., to transfer the factory situated at Sector No. 4, Block No. B-8, NOIDA to the name of Shri T.P.S. Chawla.
Direction is also issued to Haryana State Industrial Development Corporation Limited to transfer plot No. 230 Dunda Hera in favor of Shri T.P.S. Chawla.
Mr. Sethi further states that as stated in the aforesaid order of the Division Bench, the possession of House No. N-258, Greater Kailash-I, New Delhi has been handed over to Dr. N.P.S. Chawla by giving to him the keys of the said house. Mr. Sethi states that the said house is vacant and with the handing over of the keys, vacant possession of the same is handed over to Dr. N.P.S. Chawla. The same is accordingly recorded.
11. Unfortunately, two errors came to be recorded in the order afore-noted. The first was that reference to the land instead of being S-420 got noted as F-420. The second was that the said land was directed to be mutated in the name of "Dr. H.P.S. Chawla".
12. Again, there was a dispute. Whether the order intended the plot in question to be mutated in the name of Mr. H.P.S. Chawla or Dr. N.P.S. Chawla was not clear.
13. Whereas the petitioner contended that the prefix "Dr." should be read as "Mr.", respondent No. 2 contended that the letter "H" be read as "N".
14. One would have expected the two brothers to have sought and obtained the requisite clarification but unfortunately, the two seem to reveal in litigation and I have a feeling that they have started enjoying the same, they do not do so.
15. IA 14428/92 was filed in the probate proceedings. The application sought a correction in the order dated 18.8.1988. Two corrections were sought by and under the said application. First was to correct the number of the property from F-420 to S-420 and the other was to correct the error whether Dr. H.P.S. Chawla was actually Dr. N.P.S. Chawla or Dr. H.P.S. Chawla was actually Mr. H.P.S. Chawla.
16. Unfortunately, parties got the application aforesaid disposed of vide order dated 12.1.1993 by getting a correction/clarification recorded from the Court pertaining to the description of the property alone.
17. Inter alia, order dated 12.1.1993, while disposing of IA 14428/92, clarified as under:-
Counsel for the petitioner states, on instructions, that he does not press for the time being, prayer (b) in the application.
Counsel for the non-applicants state that they have no objection to the necessary correction being carried out in the said order.
Under the circumstances, the application is allowed to the extent of prayer (a). The correct property No. be read as S-420, Greater Kailash-II, New Delhi for all intents and purposes. The application stands disposed of.
18. A perusal of the facts herein above noted reveal that Raj Chawla Sahni had executed a will under by which she bequeathed her estate between her 3 brothers and the sister. The will was not disputed by any legatee.
19. Dispute between the parties relate to interpretation of the will. As stands highlighted from the facts noted above the dispute was between two legatee brothers namely Mr. H.P.S. Chawla and Dr. N.P.S. Chawla. While Dr. N.P.S. Chawla was a practicing doctor and was residing throughout in India and never lived abroad, Mr. H.P.S. Chawla who is not a doctor but had lived in New York for about 13 years. In the will reference was made to Mr. N.P.S. Chawla, residing at New York and Dr. H.P.S. Chawla residing in New Delhi. The bone of contention became that the properties shown to have been bequeathed to Dr. N.P.S. Chawla were in fact to go to Mr. H.P.S. Chawla and vice versa.
20. How the petitioner understood the bequest is to be evidenced from his pleadings in the suit filed by him as plaintiff which was registered as Suit No. 1106/1992. In the said suit, in para 3, petitioner averred as under:-
3. In the aforesaid Will there is ambiguity with respect to the bequests made to the Plaintiff and Defendant No. 2 inasmuch as part of the estate has been bequeathed to "Mr. N.P.S. Chawla" whereas he is actually "Dr. N.P.S. Chawla" and some part of the estate to "Dr. H.P.S. Chawla" who is not a Doctor. The addresses of the Plaintiff and Defendants No. 2 given in the will have at places been interchanged compounding the confusion. It is the case of the Defendant No. 2 that he is entitled to inherit the said Plot and that the Plaintiff is entitled to inherit the balance of the said property except for the super structure on the ground floor, which has been bequeathed to the Defendant No. 1. This ambiguity is the subject-matter of an application for clarification filed in the probate proceedings pending in this Hon'ble Court in probate case 45 (LA) of 1986, in which the authenticity of the Will has not been disputed.
21. Further, in Suit No. 1821/1984 filed by the petitioner in this Court, in para 5, while referring to the will, petitioner stated as under:-
5. That per the Will, the legatee are:-
I. Shri H.P.S. Chawla, Plaintiff.
(i) Upper half of house No. 258-N, Greater Kailash, Part-I, New Delhi.
(ii) Proceeds of Life Insurance Policy No. 24178292 for Rs. 30,000.00
(iii) One half proceeds of Life Insurance Policy No. 24757998 for Rs. 70,000/-.
(iv) One half proceeds of Life Insurance Policy No. 50303730 for Rs. 1,20,000/-
(v) One half proceeds of capital bond certificate No. 0032939 for Rupees ten lakhs.
(vi) National Saving Certificates for Rs. 30,000/-
(vii) Post Office Certificate No. 818278 of Rs. 25,000/- II. Justice T.P.S. Chawla, Defendant No. 1
(i) Factory situated at Sector 4, Block B-8, Noida (UP)
(ii) Plot of land with partly constructed factory at plot No. 230 Dundahera (Haryana).
(iii) Life Insurance Policy No. 24178291 for Rs. 30,000/-
(iv) One half proceeds of Life Insurance Policy No. 24757988 for Rs. 70,000/-
(v) Capital Bond Certificate No. 0023343 for Rs. 5,00,000/-.
(vi) National Saving Certificate for Rs. 35,000/-.
(vii) Business of Asian Antiques and Handicrafts together with all business liabilities.
(viii) Life Insurance Policy No. 24933458 for Rs. 38,000/-
(ix) Credit balance in CDS account (Approx) Rs. 13,00,000/- plus interest. III. Dr. N.P.S. Chawla, Defendant No. 2
(i) Plot No. S-420, Greater Kailash Part II, New Delhi.
(ii) Life Insurance Policy No. 24761042 for Rs. 65,000/-
(iii) National Saving Certificates for Rs. 30,000/-.
(iv) Capital Bond No. 0032939 for Rs. 10,00,000/-
IV. Smt. Nirmal Daniere, Defendant No. 3
(i) Ground floor of House No. N-258, Greater Kailash Part I, New Delhi.
(ii) Shares of Goodyear India Ltd. American Refrigeration Co. Ltd. And Units of Unit Trust of India.
(iii) Life Insurance Policy No. 24544459 for Rs. 25,000/-
(iv) Life Insurance Policy No. 24307621 for Rs. 25,000/-
(v) One half proceeds of Life Insurance Policy No. 50303730 for Rs. 1,20,000/-
(vi) Capital Bond Certificates Nos. 0033785 and 0033784 for Rs. 30,000/- cash.
(vii) National Saving Certificate for Rs. 5,000/-
Besides the above properties the deceased Mrs. Raj Chawla Sahni left behind movable properties, automobiles and fixtures in 20 Amrita Sher Gill Marg, New Delhi, details of which are given in Annexure A to the Plaint. According to the will of the said Mrs. Raj Chawla Sahni, the properties, automobiles and fixtures were bequeathed to the Plaintiff and Defendants 1,2, & 3 in equal shares.
22. A perusal of the pleadings of the petitioner as herein above noted show that the petitioner himself pleaded that plot No. S-420 Greater Kailash, Part II, New Delhi stands bequeathed to respondent No. 2.
23. In the backdrop of the facts above noted relating to the will and the past litigation between the parties, facts which are relevant for the present petition may be noted.
24. Relying upon the order dated 18.8.1988 and 12.1.1993 passed in Probate No. 45/1986, petitioner moved an application before the municipal authorities stating that the two orders were a result of settlement and as per the settlement, dispute pertaining to the will was sorted out. Petitioner requested the Municipal Corporation of Delhi to mutate plot No. S-420 Greater Kailash Part II, New Delhi in his name. To establish his claim, petitioner brought to the notice of the municipal authorities the inheritance by the third brother Mr. T.P.S. Chawla and the sister and the estate duty paid.
25. Respondent No. 2 also moved an application seeking mutation of the plot in his name. He too, filed certain computations of estate duty and by whom paid to plead to the contrary.
26. It is a settled law that mutation in municipal record is only for the purposes of recording the name of a person who is primarily liable to pay property taxes. The said mutation is no proof of title. Further, if there is a dispute to title, municipal authorities have no jurisdiction to determine the dispute and it is for the parties to obtain necessary declaratory decree or a decree otherwise pertaining to a title from a Civil Court.
27. In view of the facts herein above noted and in particular the fact that the two brothers for unknown reasons, being aware of the consequences of the mistake in the will, as also the consequences of the mistake in the order dated 18.8.1988, sought to seek a limited clarification as noted in the year dated 12.1.1993. I fail to understand as to why the two did not seek specific clarificatory orders from this Court. As I read the orders above noted, I do not find any clear directions requiring plot No. S-420, Greater Kailash Part II, New Delhi to be mutated in the name of Mr. H.P.S. Chawla.
28. Unexplainably, the two brothers get the probate disposed of vide order dated 29.7.2002. Order reads as under:-
After the matter was argued at some length on 23.7.2002 and again briefly today, learned counsel for petitioner submits that he does not seek any further orders in the petition. Since according to him by virtue of various orders passed by this Court, the properties have already been distributed and in this view the petition be disposed of as such.
Learned counsel for petitioner No. 2 also submits that whatever properties come her share, has also been received by her under the court orders.
Learned counsel for respondent No. 2 submits that he has, in any case filed an application IA 184/97 in which prayer has been made to the effect that entire estate having already been administered, therefore he cannot object to this submission of the learned counsel of the petitioner.
This case is going on presently for considering IA 3124/89 which is an application filed by the petitioner regarding typographical mistakes in the Will, which application also he is not pressing any longer in view of his submission made in relation to the main case which was for grant of letter administration to the effect that the suit stand administered by virtue of various orders passed by the court from time to time.
Learned counsel for respondent No. 3 vehemently opposes the disposal of the present petition, since according to her, this court has framed issues and the will has not been proved and she also disputes that there has been distribution of properties.
It appears to me after hearing learned counsel for respondent No. 3 that substantially her case rests upon a settlement, and the other contentions put forward by her Along with her submissions in relation to the settlement, can appropriately be dealt with by the Civil court, which can adjudicate upon the rival versions of the parties on this aspect.
Since learned counsel for respondent No. 3 has pointed out that issues have been framed by this Court and various orders passed by this Court regarding statement of attesting witness, it would be in the interest of justice that the rights of respondent No. 3 are protected to the extent that the bar of limitation does not stand in the way of such respondent agitating the matter before the competent Civil Court.
Learned counsel for petitioner No. 1&2 and respondent No. 2 have taken a categorical stand to the effect that they will not raise any defense or objection on the ground of limitation in the proceedings before any competent Civil Court where respondent No. 3 may initiate in accordance with the law within the next one month.
In view of the submissions made by learned counsel for petitioners that they do not seek any further orders in the matter, this petition is disposed of and all pending applications also stands disposed of accordingly.
29. Perusal of the order dated 29.7.2002 shows that proceedings in the probate continued up to said date for consideration of IA 312/1989 which was an application filed pertaining to rectification of typographical mistakes in the will. Rather than obtaining correct and clarificatory orders knowing fully well that application for mutation was pending before the municipal authorities from 7.9.1992 and was not proceeding ahead due to the errors in the will and the error in the order dated 18.8.1988, limited clarification whereof was sought vide order dated 12.1.1993, the two brothers permitted the probate case to be disposed of leaving the two hanging in mid air.
30. The scope of the present writ petition is limited. Prayer made by Mr. N.P.S. Chawla is to direct MCD to mutate plot No. S-420, Greater Kailash Part II, in his name.
31. It is settled law that a title dispute cannot be adjudicated in a writ jurisdiction. Parties have to get title adjudication from a Civil Court. That apart, scope of the writ petition is limited, being, whether under the facts and circumstances, MCD was justified in not mutating name of the petitioner in its records as owner of property No. S-420, Greater Kailash, Part-II, New Delhi.
32. I find no illegality in the action of the MCD. The errors in the will as noted above, continued to exist. The errors are of a kind which cannot be resolved by looking at any other provisions of the will. Petitioner and respondent No. 2 were aware of the errors. They chose not to obtain clear orders from any Court. Averments of the petitioner in the two suits noted herein above shows that at one stage it was his case that the plot in question stand bequeathed in favor of respondent No. 2. Petitioner, later on, took a somersault and started interpreting order dated 18.8.1988 and 12.1.1993 passed in Probate No. 45/1986 as intending to convey the said property to him. As is to be noted from the language of the two orders, the orders do not convey with clarity what the petitioner reads in the two orders. In fact, IA 14428/1992 which sought clarification of the order dated 18.8.1988 admitted that the said order requires two clarifications, one pertaining to the description of the plot and the other pertaining to the description of the beneficiaries. As is to be noted from the order dated 12.1.1993, the brothers chose not to obtain the second clarification sought for. They were happy with the first clarification being recorded. So let them be happy or unhappy with what they have done. It cannot be helped. It is not the function of the municipal authorities to go about clarifying orders passed by Courts. It is not for the Municipal Authorities to hold an enquiry and determine as to how the parties apportioned the estate duty payable on the estate. It is not for the MCD to record evidence of the conduct of the parties as to how they acted pursuant to orders dated 18.8.1988 and 12.1.1993. The principle of law that ambiguity in a document can be interpreted in light of how the parties understood the document to be evidenced from their conduct is a principle which has to be applied in a civil proceeding brought by the parties before a Court of competent jurisdiction.
33. There is yet another problem. If what the petitioner asserts is correct and that is the way the orders of the Court have to be read, upper floor of the property No. N-258, Greater Kailash Part-I, New Delhi has to be inherited by Dr. N.P.S. Chawla. Undisputably petitioner is in occupation of the first floor and continues to occupy the same even today. Petitioner has not given any explanation and indeed is unable to furnish in as to under what authority of law he is occupying first floor and house No. N-258 Greater Kailash, Part-I. In this context it is relevant to note that as per the bequest upper floor of N-258 Greater Kailash, Part -I has been bequeathed to Mr. N.P.S. Chawla and plot No. S-420, Greater Kailash, Part-II has been bequeathed to Dr. H.P.S. Chawla. Whatever be the typographical error, it is obvious that one brother has to get the plot and the other has to get the first floor of house at Greater Kailash, Part-I. Under no circumstances can one brother get the plot as well as the first floor of the house at Grater Kailash, Part-I. It is obvious that the petitioner wants to grab the first floor of the house at Greater Kailash Part-I as also the plot at Greater Kailash, Part -II. He cannot have both.
34. Looked at from any angle the civil dispute between the parties has to be solved and resolved in a civil suit.
35. Mandamus as sought cannot be granted. The writ petition is accordingly dismissed with costs in sum of Rs. 5,000/- to be paid by the petitioner to respondent No. 2.