Delhi District Court
(Central) Delhi vs ) Sh. Rajesh Khanna on 14 December, 2012
1
IN THE COURT OF SH. SANJEEV AGGARWAL ADJ03
(CENTRAL) DELHI
Suit No. 416/08
Asha Mehra,
D/o Sh. Ram Kishan Dass Khanna,
from his second wife Smt. Maharani Devi,
R/o A4/24, Krishna Nagar, Delhi .....Plaintiff
Versus
1) Sh. Rajesh Khanna,
S/o Late Sh. Ramesh Prasad Khanna,
R/o 710, Katraneel Nai Basti,
Delhi110006
2)Preeti Khanna,
D/o Late Sh. Ramesh Khanna,
R/o 710, Katraneel, Nai Basti,
Delhi110006
3)Sh. Nandlal Mehra,
Husband of Late Smt. Bhawanto Devi,
R/o C12/469,
Yamuna Vihar, Delhi
4)Sh. Ajay Prasad Mehra,
S/o Sh. Nandlal Mehra,
R/o C12/469, Yamuna Vihar,
Delhi
5)Dinesh Prasad Mehra,
S/o Sh. Nandlal Mehra,
R/o B97, Ram Prasta(near Vivek Vihar) Delhi.
6)Sh. Dev Prasad Kapoor,
R/o 710, Katraneel, Nai Basti,
Delhi110006
7)M/s Rinki Book Binding House
343/4B/2, Bhola Nath Nagar,
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
2
Shahdara
8)M/s International Traders,
343/4B/2, Bhola Nath Nagar,
Shahdara.
9)Mr. Dharam Chand,
343/4B/2, Bhola Nath Nagar,
Shahdara
10)M/s Mehak Trading Center Beauty
Parlour, 343/4B/2, Bhola Nath Nagar,
Delhi
11)M/s Noble Chemicals,
343/4B/2, Bhola Nath Nagar,
Jharkandi Marg, Shahdara ...Defendants
Date of Institution of the Suit : 14.12.1989
Date on which order was reserved : 27.11.2012
Date of decision : 14.12.2012
J U D G M E NT
1. Vide this judgment, I shall dispose off the the
present suit for partition and other reliefs sought by the
plaintiff and against the defendants.
2. It is stated that the plaintiff is the daughter of
Late Sh.Ram Kishan Dass Khanna from his second wife Smt.
Maharani Devi, defendant No. 4 and 5 are the sons of Late
Smt. Bhagvanto Devi, daughter of Late Sh. Ram Kishan Dass
Khanna from the first wife(since deceased). Defendant Nos 1
& 2 are the children of Late Sh. Ramesh Prasad Khanna, S/o
Late Smt. Bhagvanto Devi(D/o Sh. Ram Krishan Dass Khanna
Suit No. 416/08
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his first wife). Defendant No. 3 is the husband of Late Sh.
Bhagvanto Devi(D/o Late Sh. Ram Krishan Dass Khanna, from
his first wife). The rest of the defendants are proforma
defendant being the tenants of the suit properties, and against
whom no relief as such is asked for, except certain injunctions
restraining them from altering the tenancies in any manner
prejudicial to the interests of the petitioner.
3. It is further stated that Sh. Ram Krishan Dass
Khanna was the owner of the property located at 710, Katra
Neel, Nai Basti, Delhi and certain other movable properties
such as money, shares in different companies, mills and
banks, ornaments, clothes and utensils etc., expired in the
year 1971, leaving behind his second wife, Smt. Maharani Devi
and two daughters namely Smt. Bhagwanto Devi from his first
wife, and Smt. Asha Mehra(the plaintiff herein) from his
second wife(now dead). All the said properties of Late Sh. Ram
Krishna Dass Khannan were his selfacquired properties.
4. It is further stated that prior to his death, in the
year 1952 Late Sh. Ram Krishan Dass Khanna had executed a
Will, which was registered with the SubRegistrar, Delhi on
02.08.52. According to the said will, upon his death all his
properties, movable and immovable, were to vest in his
second wife, Smt. Maharani Devi, for the purposes of her
maintenance except to the extent that provision was made
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therein for some other persons.
5. It is further stated that upon the death of Sh.
Ram Krishan Dass Khanna in the year 1971 and by virtue of
the operation of Section 14(1) of the Hindu Succession Act,
1956, all such properties of Late Sh. Ram Krishan Dass Khanna
vested in his wife Smt. Maharani Devi as an absolute estate
and she had full right of ownership and disposal in all the said
properties.
6. It is further stated that Smt. Maharani Devi was
also the joint owner to the extent of half share of property
located at 343/4B/2, Bhola Nath Nagar, Shahdara, alongwith
Smt. Bhagwanto Devi who was the owner of the other half
share in the said property. Smt. Mahrani Devi also had
movable property in the nature of cash and jewellery at the
time of her death.
7. It is further stated that Smt. Maharani Devi, the
mother of the plaintiff, passed away on 26.08.08. She is
survived only by her daughter, the plaintiff herein.
8. It is further stated that since Late Smt. Maharani
Devi had not made any will touching upon the properties left
to her by Late Sh. Ram Krishan Dass Khanna, her interest in
the property located at 343/3/B/2 Bhola Nath Nagar,
Shahdara, and her movable properties, her interest in the said
properties devolved upon the plaintiff upon the death of Smt.
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Maharani Devi. However, defendant No. 1 & 2 have
misappropriated the movable properties of Smt. Maharani
Devi and have deprived the plaintiff of the same.
9. The plaintiff has sought the following reliefs in
the present suit:
(i)Partition be made of the suit properties and
share of the plaintiff be handed over to her.
(ii)Defendant be asked to render accounts of the
income received from the suit properties and
the plaintiff be assigned and handed over her
share in the same.
(iii)Defendant Nos. 1 & 2 be ordered to handover
possession of the movable left by Late Smt.
Maharani Devi and Late Sh. Ram Krishan Dass
Khanna to the plaintiff.
10. Written Statement was filed on behalf of
defendants No. 1 & 2 in which it is stated that suit filed by the
plaintiff is not maintainable, as at the time of filing of the suit
the defendant No. 1 was a minor and should have been
impleaded through his next friend and guardian.
11. It is further stated that plaintiff is not in
possession of any portion of the suit property and has further
omitted to mention she is married wife of Sh. Bishan Narain
Mehra and living at A4/24, Krishna Nagar, Delhi which also
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devolved upon defendant No. 1 & 2 through her will.
12. It is further stated that plaintiff has no right to
demand partition of property No. 710, Katraneel, Nai Basti,
Delhi, as the same devolved upon Sh. R.P.Khanna, the
adopted son of Late Sh. Ram Kishan Dass Khanna, which has
further devolved upon his legal heirs i.e defendants No. 1 & 2
to the exclusion of the plaintiff and other legal heirs, if any,
while property No. 343/4B/2A, Bhola Nath Nagar, Shahdara,
Delhi was the property of Smt. Bhagwanto Devi, the natural
mother of Late Sh. R.P.Khanna i.e father of defendants No. 1 &
2 and daughter of Late Sh. Ram Kishan Dass Khanna from his
first wife, as such the plaintiff has no right to claim partition in
the said properties.
13. It is further stated that the plaintiff has not paid
adequate court fees on the present plaint, as such suit is liable
to be rejected.
14. In reply to the para No. 1 of the plaint it is stated
that the contents of para No. 1 of the plaint are denied except
in so far as the same relate to the plaintiff being the daughter
of Late Sh. Ram Kishan Khanna born out of his wedlock with
his second wife Smt. Maharani Devi and that the defendant
No. 3 is the husband of Late Smt. Bhagwanto Devi and
defendants No. 4 & 5 are the sons of Late Smt. Bhagwanto
Devi. It is further admitted that defendants No. 1 & 2 are the
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son and daughter of Late Sh. Ramesh Prasad Khanna, the
adopted son of Late Sh. Ram Kishan Dass Khanna which fact
has been admitted by the plaintiff. It is submitted that Sh.
Ramesh Prasad Khanna was born out of the wedlock of Smt.
Bhagwanto Devi Mehra and the defendant No. 3. The
defendants No. 1 & 2 are the grandsons and grand daughter of
Late Sh. Ram Kishan Dass Khanna. It is further not denied that
the defendant No. 3 is the husband of Late Sh. Bhagwanto
Devi.
15. It is further stated that property No. 710,
Katraneel, Nai Basti was the self acquired property of late Sh.
Ram Kishan Dass Khanna who expired in the year 1971 leaving
behind his second wife Smt. Maharani Devi and two daughters
namely Bhagwanto Devi and the plaintiff alongwith his
adopted son Ramesh Prasad Khanna who was adopted by
him on 15.01.1949 according to Hindu Rites and Customs
during the lifetime of Smt. Maharani Devi and Smt.
Bhagwanto Devi.
16. It is further stated that Late Sh. Ram Kishan Dass
Khanna and Smt. Maharani brought up late Sh. Ramesh
Prasad Khanna and had been treating him as their son until
their deaths. It is further averred that in the school record also
his name was got changed from Ramesh Prasad Mehra to
Ramesh Prasad Khanna and this fact was clearly in the
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knowledge of the plaintiff who has concealed this fact from
the court.
17. It is further stated that property No. 710
katraneeel had been bequeathed in favour of Late Sh.
R.P.Khanna which has devolved upon defendant No. 1 & 2.
18. It is further stated that Sh. Ram Kishan Dass
Khanna made a registered will of the house bearing No. 710,
Katra Neel, Delhi, which was registered on 02.08.1952 and
according to this will, the house in dispute was bequeathed in
favour of Smt. Maharani as a life estate without any power to
mortgage, sell or gift the same or to transfer the same in any
other manner and after the death of Smt. Maharani the said
house vested in Ramesh Prasad Khanna, the adopted son. As
Ramesh Prasad Khanna died in the lifetime of Smt. Maharani,
the will in his favour operated for the benefit of his heirs/
descendants. Consequently, on the death of Smt. Maharani on
26.08.08, the defendant No. 1 & 2 became exclusive owners by
virtue of the said will. As regards the house at Bhola Nath
Nagar, it is stated that the same belongs to Smt. Bhagwanto
Devi and Sh. Ram Kishan Dass Khanna had no right, title or
interest in it. So the question of the plaintiff having any right
or interest in the suit property does not arise.
19. It is further stated that plaintiff is/was never at
any time in possession of the suit property. It is further stated
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that no cause of action has arisen for filing the present suit
and the suit of the plaintiff is liable to be dismissed with cost.
20. Written Statement was also filed on behalf of
defendant No. 3 to the plaint of the plaintiff, as it was filed
initially, but no written statement was filed to the amended
plaint. In the written statement filed on behalf of defendant
No. 3 also the averments made in the plaint were denied and
it was stated that plaintiff has no legal right to claim the
partition of the property of late Sh. Ram Kishan Dass Khanna,
as the same have already bequeathed in favour of Late Sh.
R.P.Khanna by Late Sh. Ram Kishan Dass Khanna and
therefore the properties devolved upon LRs i.e defendant No.
1 & 2. All the other averments made in the plaint were also
denied and it was stated that the property bearing No.710,
Katra Neel, Nai Basti, Chandni Chowk, Delhi was a self
acquired property of Late Sh. Ram Kishan Dass Khanna who
expired in the year 1971 and Sh. Ram Kishan Dass Khanna had
also left behind his adopted son Sh. Ramesh Prasad Khanna
and he had willed the property at Chandni Chowk in favour of
Sh. Ramesh Prasad Khanna, whereas the property at Bhola
Nath Nagar was also in the name of Smt. Bhagwanto Devi.
21. From the pleadings of the parties following
issues were framed on 28.01.2005
Suit No. 416/08
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(i)Whether the suit is bad for misjoinder of the
parties ? OPD 1 & 2
(ii)Whether the suit has not been properly
instituted against defendant No. 1 in view of
the preliminary objection No. 2 in written
statement, if yes to what effect ? OPD1
(iii)Whether the plaintiff has not paid the
sufficient court fees on the plaint, if yes to
what effect ? OPD1 & 2.
(iv)Whether the property given to Smt.
Maharani Devi under the Will dated 02.08.52
was in lieu of her pre existing rights of
maintenance, if yes to what effect ? OPP
(v)Whether the adoption of Sh. Ramesh
Khanna by Sh. Ram Kishan Khanna is not
valid, if yes to what effect ? OPP.
(vi)Whether the plaintiff is entitled to decree of
partition as prayed for ? OPP.
(vii)Whether the plaintiff is entitled to decree
for rendition of account ? OPD.
(viii)Relief
22. I have heard Ld. Counsel for the plaintiff Mr.
Sonal Sinha and counsel for defendant No. 1 & 2 Ms. Jaya
Goel. Remaining defendants were exparte. I have also gone
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through the written synopsis filed on behalf of the plaintiff.
Counsel for plaintiff has relied upon following judgments in
support of its case.
1. Sri Ranmakrishna Mutt Rep. By Manager Vs. M.
Maheswaran and Ors. reported in MANU/SC/0811/2010.
2. Subhan Rao and Anr. Vs. Parvarthi Bai and Ors. reported
in MANU/SC/0703/2010.
3. Shakuntla Devi Vs. Kamla & Ors. reported in
MANU/SC/0277/2005.
4. V. Muthusami by LRs. Vs. Angammal and Ors. reported in
MANU/SC/0123/2002.
5. Smt. Palchuri Hanumayamma Vs. Tadikamalla Kotlingam
(D) by LRs and Ors. reported in MANU/0629/2001.
6. The Brahma Vart Sanatan Dharam Mahamandal Vs.
Kanhyalal Bagla and Ors. reported in
MANU/SC/0584/2001.
7. V. Tulasamma and Ors. Vs. Sesha Reddy (Dead) by LRs
reported in MANU/SC/0380/1977.
23. Counsel for defendant has also relied upon the
following judgments:
1. (1994) 2 SCC 511.
2. (1994) 2 SCC 521.
3. 95 (2002) Delhi Law Times 302.
4. 95 (2002) Delhi Law Times 312.
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5. AIR 1989 Madras 69.
6. AIR 1989 Madras 73.
7. (2003) 1 SCC 212.
8. (2003) 1 SCC 214.
9. JT 1994 (4) SC 125.
10.JT 1994 (4) SC 129.
24. In the present case, the plaintiff has filed the suit
for partition and rendition of account pertaining to two
properties i.e property bearing No. 710, Katra Neel, Nai Basti,
Delhi and another one bearing No. 343/4B/2, Bhola Nath
Nagar, Shahdara. However, during the course of the
arguments Ld. Counsel for the plaintiff Sh. Sonal Sinha stated
that plaintiff is not pressing any relief pertaining to the
property at Bhola Nagh Nagar, Delhi, which was also
mentioned in the written synopsis of the plaintiff filed on the
record. In these circumstances, the matter with regard to the
property at Bhola Nath Nagar needs no further discussion.
25. My issue wise findings are as under:
ISSUE NO. 1
26. The onus to prove this issue was upon the
defendants No. 1 & 2. Defendants No. 1 & 2 have not lead any
evidence on the record, why the present suit was bad for mis
joinder of parties and for which specific party and for non
inclusion of which party the suit was bad for misjoinder, nor
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any arguments were addressed on the said issue. In these
circumstances, issues No. 1 is decided in favour of the plaintiff
and against the defendants.
ISSUE NO. 2
27. The onus to prove this issue was also upon
defendant No. 1 that the suit filed by the plaintiff was not
maintainable in the present form, as at the time of filing of the
suit defendant No. 1 was a minor and the suit could have been
filed through next friend and guardian.
28. PW1 the plaintiff has filed her affidavit in
support of her plaint. In her cross examination she stated that
she cannot say that the defendant No. 1 was aged about 17
years when she filed the present suit. The said answer given by
the plaintiff was vague in nature. In any case, the onus was
upon defendant No. 1 to show to the court that defendant No.
1 was minor at the time of filing of the suit and should have
been sued through her guardian or next friend.
29. DW1 in his affidavit on oath has not stated even
a single word that his age at the time of filing of suit was 17
years, thereby putting the plaintiff under an obligation to sue
him through next friend or the guardian. In any case, the
defendant No. 1 was the best person to have proof available
with him regarding his age at the time of filing of the suit.
Since DW1 has himself stepped into the witness box, he
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
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should have proved his date of birth certificate on the record,
whereby showing that he was a minor of the age of 17 years at
the time of filing of the suit which has not been done,
therefore this issue is decided in favour of the plaintiff and
against the defendant No. 1.
ISSUE NO. 3
30. The onus was upon defendant No. 1 & 2 to prove
this issue. DW1 in his affidavit has stated that the value of the
suit at the time of filing of the suit was 18 lacs, whereas the
plaintiff had undervalued the suit by valuing it at Rs. 15 lacs.
The defendant No. 1 barring this assertion made by him in his
affidavit has not summoned or called any witness including
any witness from the office of SDM or Collector to show that
the valuation of the suit property was Rs. 18 lacs at the time of
filing of the suit, nor defendant No. 1 & 2 have summoned or
proved on the record any relevant sale deed executed at the
time of filing of the suit in the neighbourhood of the suit
property situated at Chandni Chowk, which could show that
the valuation of the suit property was around 18 lacs at the
time of filing of the suit. In the absence of such evidence lead
on record on behalf of defendants No. 1 & 2, this issue is
decided against them.
ISSUE NO. 5
31. The onus to prove this issue was upon the
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plaintiff. The plaintiff has challenged the adoption of Sh.
Ramesh Prasad Khanna by Sh. Ram Kishan Dass Khanna as
not being valid, same being contrary to the principles of
Hindu Law, as per the detailed objection taken in the written
submissions filed on the record. For understanding the
controversy in issue, the following pedigree table would be
helpful:
RAM KISHAN DASS KHANNA
First Wife < IInd wife
(Maharani Devi)
(died in 1980)
(D)
Bhagwanto Devi( died in 1980) Asha Mehra
(plaintiff)
___________________
S1 S2 S3(Ramesh Prasad Khanna)
(died on 04.11.87)
______________
S1 D1
(defendant No.1) (defendant No. 2)
32. Counsel for plaintiff has argued that so called
adoption of Sh. Ramesh Prasad Khanna by Sh. Ram Kishan
Dass Khanna pertains to the time prior to the passing of Hindu
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Adoption and Maintenance Act, therefore it would be
governed by the prevalent Hindu Law applicable in the year
1949 and as per the then prevalent Hindu Law a man could
not adopt a child whose mother he could not marry and
obviously Smt. Bhagvanto Devi, the natural mother of Sh.
Ramesh Prasad Khanna was the real daughter of Ram Kishan
Dass Khanna, therefore Ram Kishan Dass Khanna could not
have married his real daughter Smt. Bhagwanto Devi, as per
the law prevalent at that time, therefore the said adoption was
invalid in the eyes of law.
33. On the other hand, counsel for defendants No. 1
& 2 has argued that counsel for plaintiff cannot challenge the
adoption by way of present suit which was filed in the year
1989, whereas the alleged adoption had taken place in the year
1949 and the plaintiff in the garb of the present suit cannot
seek declaration that Sh. Ramesh Prasad Khanna was not the
legally adopted son of Sh. Ram Kishan Dass Khanna after a
gap of 40 years, as limitation for seeking any sought of
declaration is 3 years from the date of arising of cause of
action. She has further argued that even the plaintiff is relying
upon the will ExPW1/1, the true translated copy of which is
ExPW1/D1 in which also it is categorically mentioned by the
testator Sh. Ram Kishan Dass Khanna that Sh. Ramesh Prasad
Khanna had been duly adopted by him on 15.01.49 on
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performance of all religious ceremonies and customs and
therefore she has argued that the plaintiff cannot pick and
choose the terms of the grant on which she is relying upon and
the said grant has to be taken as a whole and the plaintiff
cannot take the stand contrary to the terms of the grant.
34. She has further argued that in any case the
defendant No. 1 has proved number of documents on record
which documents are more than 30 years old, which shows
that Sh. Ramesh Prasad Khanna was duly adopted by Sh. Ram
Kishan Dass Khanna in January 1949.
35. I find sufficient merit in the arguments of Ld.
Counsel for defendant No. 1 & 2 Ms. Jaya Goel, firstly counsel
for plaintiff has failed to show any law or customs prevailing in
the Hindu Society in the year 1949, which prohibited Sh. Ram
Kishan Dass Khanna from adopting the son of his daughter i.e
Ramesh Prasad Khanna. No such scripture or authority having
the sanction of law has been filed on the record by the counsel
for plaintiff to sustain his stand. Further the plaintiff is herself
relying upon the will ExPW1/D1 dated 17.07.52 in which the
testator through whom the plaintiff is claiming her right has
himself mentioned that he had adopted Sh. Ramesh Prasad
Khanna @ Gopal on 15.01.49 after performance of all the
Religious/Shastrik Rights and Caste Customs, therefore the
plaintiff is estopped from taking stand contrary to the terms of
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the said document or grant from which she is driving her right
with respect to the property at Chandni Chowk, Delhi. In any
case, the plaintiff cannot take stand derogating the terms of
the very grant through which she is claiming her rights with
respect to the property in question.
36. In any case, the defendant has proved number of
documents on the record, all of most of them are the
documents which are more than 30 years old. The said
documents are ExDW1/1 to ExDW1/21. For instance, there is
a document ExDW1/16, which is an affidavit filed by Sh. Ram
Kishan Dass Khanna and Sh. Nand Lal Mehra(natural father of
Ramesh Prasad Khanna) before the concerned authorities
clearly stating on oath that Sh. Ramesh Prasad Khanna had
been adopted by Sh. Ram Kishan Dass Khanna, therefore his
Sir Name be changed. Similarly there is ExDW1/17 given to
the Principal of the school where Sh. Ramesh Prasad Khanna
was studying requesting the principal to change the parentage
of said Ramesh Prasad Khanna as that of Sh. Ram Kishan Dass
Khanna. Even the intermediate school certificate of Sh. Ram
Prasad Khanna bears the parentage as son of Sh. Ram Kishan
Dass Khanna. All these documents are more than 30 years old
and as per Section 90 of the Indian Evidence Act where any
such document is produced from the custody of a person,
which the court considers proper, the court may presume that
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the signature and every part of such document, which
purports to be in the handwriting of any particular person, is
in that person'
s handwriting, and in case of a document
executed or attested, that it was so properly executed and
attested.
37. In view of the said legal presumption raised U/s
90 of the Indian Evidence Act in favour of the above
documents produced by defendant No. 1 in his evidence,
while appearing as DW1 which presumption the plaintiff has
failed to displace by leading any contrary evidence. Therefore
taking the evidence of the parties as a whole on this issue on
the broad probabilities scale where the probability of
happening of any event is measured, the probative force of the
evidence lead by the defendant No. 1 & 2 has much higher
weightage than the probative force of the plea of the plaintiff
with regard to this issue and the probative force of the evidence
lead by the defendants No. 1 & 2 on this scale is touching the
point of certainty, whereas the evidence lead by the plaintiff
on this scale is touching the scale of uncertainty. On this kind
of evidence the plaintiff cannot succeed.
38. Even otherwise, as per Article 57 to the Schedule
of Limitation Act, the period of limitation to obtain the
declaration that an alleged adoption is invalid, or never, infact,
took place is 3 years when the alleged adoption became
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known to the plaintiff. It is not the case of the plaintiff that the
said alleged adoption became known to the plaintiff only 3
years prior to the filing of the suit, therefore the plaintiff is also
estopped from challenging the said adoption being barred by
limitation, as per Article 57 of the Limitation Act. Looking from
every angle the plaintiff has failed to prove this issue. This
issue is accordingly decided in favour of defendants and
against the plaintiff.
ISSUE NO. 4
39. The onus to prove this issue was upon the
plaintiff. It is the most contentious issue between the parties.
The execution of the Will ExPW1/1 by Late Sh. Ram Kishan
Dass Khanna is admitted by the plaintiff, the true translated
copy of which is ExPW1/D1, as it is nowhere the case of the
plaintiff the said ExPW1/D1 is not a true translated copy. It is
also the admitted case of the defendant that Late Sh. Ram
Kishan Dass Khanna had executed the will ExPW1/1. Now in
this background since both the parties are relying upon the
will ExPW1/1, it is to be seen whether the said will dated
31.07.52 with respect to the property owned by Sh. Ram
Kishan Dass Khanna bearing No.710, Katra Neel, Nai Basti,
Delhi by virtue of which the second wife Smt. Maharani Devi
was given power to collect the rent from the tenants
occupying the said house. Though she was not given any
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power to mortgage, sell or gift away the said house to anyone,
therefore whether Smt. Maharani Devi who was in possession
of this property can be said to be in possession thereof in
pursuance of her preexisting right of maintenance when the
Hindu Succession Act 1956 came into force. As such by virtue
of the will dated 31.07.52, the lifetime interest which was
created in favour of Sh. Maharani Devi mentioned above was
on account of her preexisting right of maintenance and
therefore by Section 14(1) of Hindu Succession Act the said
limited interest got enlarged into an absolute one and
thereafter Smt. Maharani Devi on the death of her husband
became the absolute and exclusive owner of this property.
40. On the other hand, it is the contention of Ld.
Counsel for defendant No. 1 & 2 that Smt. Maharani Devi was
given restricted estate in the property of Chandni Chowk and
where any property is acquired by a female under the will
created in exercise of powers U/s 30 of the Hindu Succession
Act providing a restricted estate, the said female would only be
entitled to a limited estate under subsection (2) and not
absolute right under Sub Section 1 of Section 14, as the right of
maintenance under a will would be covered by sub section 2,
as it is not a preexisting right, as it would be a creation of right
for the first time and not in recognition of preexisting right.
Both the parties have relied upon their respective judgments
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
22
in support of their respective contentions mentioned above.
Counsel for plaintiff has relied upon the above mentioned
judgments (Supra) in support of his contention, the leading
one being V. Tulasamma and Ors. V. Sesha Reddy(dead) by
LRs reported in MANU/SC/0380/1977 (supra), in which the
Hon'b
le Supreme Court has recorded the following
conclusions:
1. 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
recognized and enjoined by pure
shastric Hindu Law and has been
strongly stressed even by the earlier
Hindu jurists starting from
Yajnavalkya 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 the 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
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
23
existing right so that any transfer
declaring or recognizing such a right
does not confer any new title but
merely endorses or confirms the pre
existing rights.
2. Section 14 (1) and the Explanation
thereto have been couched in the
widest possible terms and must be
liberally construed in favour of the
females so as to advance the object
of the 1956 Act and promote the
socioeconomic ends sought to be
achieved by this long needed
legislation.
3. Subsection (2) of section 14 is in the
nature of a proviso and has a filed of
its own without interfering with the
operation of section 14 (1)
materially. The proviso should not
be construed in a manner so as to
destroy the effect of the main
provision or the protection granted
by section 14 (1) or in a way so as to
become totally inconsistent with the
main provision.
4. Subsection (2) of section 14 applies
to instruments, decrees, awards,
gifts, etc. which create independent
and new titles in favour of the
females for the the first time and has
no application where the
instrument concerned merely seeks
to confirm, endorse, declare or
recognize preexisting rights. In
such cases a restricted estate in
favour of a female is legally
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
24
permissible and section 14(1) will
not operate in this sphere. Where,
however, an instrument merely
declares or recognizes a preexisting
right, such as a claim to
maintenance or partition or share to
which the female is entitled, the sub
section has absolutely no
application and the female' s limited
interest would automatically be
enlarged into an absolute one by
force of section 14(1) and the
restrictions placed, if any, under the
document would have to be ignored.
Thus where a property is alloted or
transferred to a female in lieu of
maintenance or a share at partition,
the instrument is taken out of the
ambit of sub section (2) and would
be governed by section 14(1)
restrictions placed on the powers of
the transferee.
5. The use of express terms like
'property acquired by a female
Hindu at a partition', 'o r in lieu of
maintenance' , 'o r arrears of
maintenance' , etc. in the
explanation to section 14(1) clearly
makes sub section (2) inapplicable
to these categories which have been
expressly excepted from the
operation of sub section (2).
6. The words ' possessed by' used by the
Legislature in Section 14(1) are of
the interest possible amplitude and
include the state of owning a
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
25
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 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 tresspasser
without any right or title.
7. That the words 'r estricted estate'
used in section 14(2) are wider than
limited interest as indicated in
section 14(1) and they include not
only limited interest, but also any
other kind of limitation that may be
placed on the transferee.
Bhagwati, J. recorded concurring
opinion on his own behalf and on
behalf of Gupta, J. in paragraph 70 of
the judgment, the relevant portion of
which is extracted below :
This line of approach in the
construction of subsection (2) of
section 14 is amply borne out by the
trend of judicial decisions in this
court. We may in this connection refer
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
26
to the decision in Badri Pershad Case.
The facts in that case were that one
Gajju Mal owning selfacquired
properties died in 1947 leaving five
sons and a widow. On August 5, 1950,
one Tulsi Ram Seth was appointed by
the parties as an arbitrator for
resolving certain differences which
had arisen relating to partition of the
properties left by Gajju Mal. The
Arbitrator made his award on October
31, 1950, and under clause 6 of the
award, the widow was awarded
certain properties and it was expressly
stated in the award that she would
have a widow' s estate in the properties
awarded to her. While the widow was
in possession of the properties, the Act
came into force and the question arose
whether on the coming into force of the
Act, she became full owner of the
properties under subsection (1) or her
estate in the properties remained a
restricted one under sub section (2) of
section 14. The court held that
although the award gave a restricted
estate to the widow in the properties
alloted to her, it was sub section (1)
which applied and not sub section (2),
because inter alia the properties given
to her under the award were on the
basis of a preexisting right which she
had as an heir of her husband under
the Hindu Women' s Right to Property
Act, 1937, and not as a new grant
made for the first time. So also in
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
27
Nirmal Chand V. Vidya Wanti (dead)
by her legal representatives there was
a regular partition deed made on
December 3, 1945, between Amind
Chand, a coparcener and Subhrai Bai,
the widow of the deceased cparcener,
under which a certain property was
alloted to Subhrai Bai and it was
specifically provided in the partition
deed that Subhrai Bai would be
entitled only to the user of the property
and she would have no right to
alienate it in any manner but would
only have a life interest. Subhrai Bai
died in 1957 subsequent to the coming
into force of the Act after making a will
bequeathing the property in favour of
her daughter Vidyawanti. The right of
Subhrai Bai to bequeath the property
by will was challenged on the ground
that she had only a limited in the
property and her case was covered by
subsection (2) and not subsection (1).
This contention was negatived and it
was held by this court that though it
was true that the instrument of
partition prescribed only a limited
interest for Subhrai Bai in the
property, that was in recognition of
the legal position which then prevailed
and hence it did not bring her case
within the exception contained in sub
section (2) of section 14. This court
observed :
If Subhrai Bai was entitled to a share
in her husband' s properties then the
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
28
suit properties must held to have been
alloted to her in accordance with law.
As the law ten stood she had only a life
interest in the properties taken by her.
Therefore the recital in the deed in
question that she would have only a
life interest in the properties alloted to
her share is merely recording the true
legal position. Hence it is not possible
to conclude that the properties in
question were given to her subject to
the condition of her enjoying it for her
lifetime. Therefore the trial court as
well as the first appellate court were
right in holding that the facts of the
case do not fall within section 14(2) of
the Hindu Succession Act, 1956.
It will be seen from these observations
that even through the property was
acquired by Subhrai Bai under the
instrument of partition, which gave
only a limited interest to her in the
property, this court held that the case
fell within sub section (1) and not sub
section (2). The reason obviously was
that the property was given Subhrai
Bai in virtue of a preexisting right
inheriting in her and when the
instrument of partition provided that
she would only have a limited interest
in the property, it merely provided for
something which even otherwise
would have been the legal position
under the law as it then stood. It is
only when property is acquired by a
Hindu female as a new grant for the
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
29
first time and the instrument, decree,
order or award giving the property
prescribes the terms on which it is to be
held by the Hindu female, namely, as a
restricted owner, that sub - section (2)
comes into play and excludes that
applicability of sub section (1). The
object of sub section (2) as pointed out
by this court in Badri Pershad Case
while quoting with approval the
observations made by the Madrasa
High Court in Rangaswami Naicker V.
Chinnamal is "only to remove the
disability of women imposed by law
and not to interfere with contracts,
grants or decrees etc. by virtue of
which a woman's right was restricted"
and, therefore, where property is
acquired by a Hindu female under the
instrument in virtue of a preexisting
right, such as a right to obtain
property on partition or a right to
maintenance and under the law as it
stood prior to the enactment of the Act,
she would have no more than limited
interest in the property, a provision in
the instrument giving her limited
interest in the property would be
merely by way of record or recognition
of the true legal position and the
restriction on her interest being a
"disability imposed by law" would be
wiped out and her limited interest
would be enlarged under Subsection
(1).
Suit No. 416/08
Asha Mehra Vs. Rajesh Khanna & Ors.
30
41. On the other hand, Ld. Counsel for defendants
No. 1 & 2 has relied upon the following leading judgment
(1994) 2 Supreme Court Cases 511Gumpha (Smt) And Ors. Vs.
Jaibai in which it was held as under:
2. How the dispute arose may
be narrated, in brief, to determine if
the High Court committed any error of
law in setting aside the concurrent
orders passed by the two courts below
dismissing the suit of the plaintiff
respondent for declaration of title and
recovery of possession. It has been found and is not disputed that the last male holder had two wives. He executed a will of his property in 1941 giving onehalf share to each of his wives till their life and the respondent, the only daughter, was to be ultimate beneficiary. The testator died in 1958. The next to die in 1966 was one of his wives, the stepmother of the plaintiff. But, few months before her death, she had executed a will in favour of defendantappellant, a complete stranger to the family, allegedly her domestic servant. It is the validity of the will basically, which has been subjectmatter of dispute. According to the respondent, the will was invalid as her mother having right of maintenance only, she had no right or title which she could validly transfer by way of will in favour of the appellant. On pleadings of parties Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
31various issues were framed. It is not necessary to narrate them as the finding on the nature of interest that the mother of the respondent had in the property, was recorded both by the trial court and first appellate court in her favour. It was held that her mother had life interest only. But the suit was dismissed as the life estate created under the will stood converted into absolute estate under Section 14 (1) of the Act as it was in recognition of preexisting right. The High court did not agree with this and held that the widow could not get larger interest than that was intended by the testator. Thus execution of the will by the last male holder in 1941, grant of life interest to the two wives, vesting of property ultimately in the daughter, death of testator in 1958, his wife whose share is now in dispute in 1966 and bequeathing of the property by her in favour of the appellant few months before her death are facts which have been found to have been proved by all the courts. The difference arose between the High Court and the two courts below on applicability of the law only.
3. What, therefore, falls for consideration is if the testamentary disposition of property by a male Hindu by a will which comes into operation after 1956, creating life interest in favour of his widow, Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
32subsists as such after his death or she becomes an absolute owner by operation of subsection (1) of Section 14 read the explanation. In other words, what is the dichotomy between two subsections of section 14 which forms the bedrock of revolutionary changes brought out in Hindu Law of succession in 1956. The Act was one out of the series of legislators enacted in 1956 effecting farreaching changes in the customary Hindu Law. It undid the social injustice to which the females were subjected for centuries byequating them with males in matters of inheritance, succession and disposition of property. The act confers rights of inheritance and sweeps away the traditional limitations on powers of females on disposition of property etc. which were regarded under the Hindu Law as inherent in her estate (S.S. Munna Lal V. S. S. Raj Kumar) They too become, "a stock of descent" (Kalawatibai V. Soiryabai) A female Hindu who, except for stridhan property, was a limited owner became an absolute owner under Section 14 of the Act. The section not only removed the disability from which a female suffered in acquiring and holding property but it converted any estate held by her on the date of commencement of the Act from limited or restricted estate to an absolute or full ownership. (See S. S. Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
33Munna V. S. S. Raj Kumar and Bai Vajia V. Thakorbhai Chelabhai) In Thota Sesharathamma V. Thota Manikyamma it was observed that Section 14 (1) was used as "a tool to undo past injustice to elevate her to equal status with dignity of person on part with man". In Kalawatibai it was observed that, "section was a step forward towards social amelioration of women who had been subjected to gross discrimination in matter of inheritance.
4. Even though the Act purports to codify the law relating to intestate succession yet to become a complete code it purports to deal with testamentary succession as well. Section 30 which is the line section in Chapter III dealing with testamentary succession codifies the law which had been judicially expounded. It has further effected far - reaching changes in customary law in this regard. It extends operation of the provision, now, even to coparcenary property and property dealt by customary law mentioned in the explanation appended to Section 30. The section reads as under : "30. Testamentary Succession - Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
34Act, 1925, or any other law for the time being in force and applicable to Hindus.
Explanation - The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall, notwithstanding anything contained in this Act, or any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section."
7. Law being thus and power of a Hindu to dispose of his property being absolute including the right to create limited or restricted estate in favour of a female the question is, does she take a life interest or she becomes an absolute owner by virtue of operation of Section 14 of the Act in respect of property which comes into her possession on death of the testator after 1956? Will under Indian Succession Act, which applies to Hindu Succession Act, as well, operates from the date of death of testator since on the date the last male holder died the Act applied the testamentary disposition made by him was governed by Chapter III of the Act. To this extent there can be no dispute. But when he died and the property came into possession of his widow the question is Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
35what right she got absolute under Section 14(1) or limited under the will by operation of section 14(2) of the Act. The purpose and objective of section 14 has been explained earlier. Its reach, too, is very wife. In V. tulasamma v. shesha Reddy it was held that the explanation appended to the section enlarge its ambit further by expanding the meaning of word 'property' to include both movable and immovable properties acquired by a female Hindu in any of the manner mentioned therein. Thus any property possessed by a female Hindu if it is covered in subsection (1), then by operation of law she becomes absolute owner of it. The meaning of the words 'possessed' and ' any property' was explained to have been used in wide and broad sense as including whatever the 'kind of property' and possessed either actually or constructively or in 'any form recognized by law' . The wide and extensive meaning to 'advance social purpose of legislation' was recognised as far back as 1962 in S. S. Munna Lal case was reiterated in Mangal Singh V. Shrimati Rattno reaffirmed in Seth Badri Prasad V. Kanso Devi advanced further in Tulasama case and has not been deviated since then.
8. Out of these, the two principles which need be explained are two and four as it is erroneous Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
36understanding about the concept of preexisting right which led the two courts below in dismissing suit, and furnished foundation of vehement submission advanced in this court. Why was the concept of preexisting right evolved? How far it applies? To appreciate, brief facts of that case are necessary to be mentioned.
Tulasamma was a widow. She filed a claim for maintenance as her husband had died as a member of the Joint Hindu Family. It ended ultimately by way of compromise. The property was given to her for maintenance with limited interest that she would not have passed accordingly. Since the property was given to Tulsamma in lieu of her right to maintenance, she acquired it as provided by the explanation appended to subsection (1) of section 14. But this right she got under a decree of a court which prescribed a restricted estate. Therefore, the right and interest which she got fell under subsection (2) of Section 14 as well. It obviously created an anomaly. It was, therefore, observed by Bhagwati, J. : "It is indeed unfortunate that though it became evidence as far back as 1967 that sub sections (1) and (2) of Section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu Female in lieu of maintenance and the Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
37instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always possess possess in order to guide the affairs of men, the legislature, for all these years, did not care to step into remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and unmoved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced judicial conflict and put an end to needless litigation. This is a classic instance of a statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers."
9. The court by interpretative process, thus, removed the anomaly arising out of ' inapt drafting' by construing subsection (1) wifely and reading subsection (2) as a proviso. But this wide meaning has to be so read as to be in conformity with section 30 and subsection (2) or section 14. Tulasamma case was concerned with the right of Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
38maintenance granted to a widow in a decree. It became necessary, therefore, to evolve the principle of preexisting right. That is if the maintenance was given in recognition of preexisting right then such acquisition of property was taken out of subsection (2) to promote the objective of section 14. But if that concept is extended to a will executed under section 30 it would militate against express provision in section 30 and subsection (2) of section 14. The right of maintenance explained in Tulasamma and reiterated in Bai Vajia Case was the one recognised under customary Hindu Law to maintain a widow, daughter in law, a mother as a member of the joint family property. It would not operate where a Hindu is bequeathing his property in exercise of his right under section 30 of the act. In G. Appaswami Chettiar V. R. Sarangapani Chettiar it was held by this court that where a female got a life estate under a will executed by her father, she was not entitled to claim absolute rights under section 14(1) and her claim was covered by section 14(2). In Kothi satyanarayana v. Galla Sithayya a life estate created under a deed of settlement was held to be an instrument contemplated under sub section (2) and therefore, a female Hindu was held not to have acquired better right than what was given to her Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
39under the instrument. That the legislature was aware of the unrestricted power of a Hindu to dispose of his property in any manner he considered poorer subject to such restrictions as were operating in different schools is clear from sub section (2) of section 14. It does not curtail or erode the absolute estate which comes into operation by law but excludes from it specifically the property acquired in the manner mentioned therein. That is if any property is acquired by a female Hindu as provided in subsection (2) then it would be beyond the purview of subsection (1). Reason for it was that the legislature never intended to confer larger estate on females than on males. If a Hindu could bequeath his property of which he was capable of and could create life interest or restricted estate for a male it would have been incongruous to create an absolute estate in favour of female. Subsection (2) of section 14 was read as proviso or exception to subsection (1) so that it may impinge as little as possible on the broad sweep of the ameliorative provision contained in subsection (1). In Tulasamma it was observed that, "it cannot be construed in a manner which would rob subsect on of its efficacy and deprive a Hindu female of the protection sought to be given to her by subsection (!)". True it Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
40is an exception to subsection (1) "of that modicum of certainty which it must always possess". Yet the field of operation of the two subsections is independent and separate. The legislature while obliterating the dard side of Hindu Law could have intended to encroach upon right which existed under customary law and which it widened by adding explanation to section 30.
11. Acquisition of property under a will is not mentioned under sub section (1). It squarely falls under subsection (2). Would it make any difference if the testator after coming into force of the Act creates a restricted estate and provides for maintenance under the will? Can it be said to fall under any of the clauses mentioned in the explanation appended to sub section (1).
12. The expression 'in lieu of maintenance' or ' arrears of maintenance' would thus become inapplicable. Apart from it, a right of maintenance under a will after 1956 would fall under sub section (2) as even on ratio Tulasamma it would be creation of right for the first time and not in recognition of preexisting right. The purpose and the legislative intention which surfaces from a combined reading of two subsections is that it attempts to remove the disability which was imposed by the Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
41customary Hindu Law on acquisition of rights by a female Hindu but it does not enlarge or enhance the right which she gets under a will giving her a limited estate under section 30 of the act.
42. Now in view of the rival judgments relied upon by the Ld. Counsels for the parties, it is to be seen whether the will ExPW1/1 created a restricted estate in favour of Smt. Maharani Devi, the second wife of the testator Sh. Ram Kishan Dass Khanna in lieu of her preexisting right of maintenance which got enlarged into an absolute right by virtue of Section 14(1) of the Hindu Succession Act. The relevant extract of the will ExPW1/1 is reproduced as under:
I, Ram Kishan Dass Khanna S/o Lala Mohan Lal Khanna, Caste Khatri, Profession service, Cashier, National Bank of India Ltd., Delhi, R/o H. No. 710 Nai Basti Katra Neel, Delhi City.
Whereas the world is unstable and every living creature has to die one day. I am now aged 58 years old;
though I am healthy in every respect. But God knows when the end may come. As such every wise person must make such an agreement for his Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
42movable and immovable property so that after his death there may not be any dispute among his heirs/executors. I thte testator has purchased one storey house pucca built up within its boundary(three storey) No. 710 Siauted in Nai Basti, Katra Neel, Delhi City, Ward II which has been purchased with my own resources, vide Auction Certificate dated 18.05.1928, issued by the Court of Sheikh Abdul Majid, Subjudge, 1st class Delhi in a Civil Suit No. 300 of 1925 and Revision Partition No. 468 of 1927 Mst. Bhagwati Vs. Kali Charan etc., in connection with Auction of House dated 21.02.1928 confirmed by the court mentioned above on 05.05.1928 and constructed it. I am exclusive owner and in possession thereof. I have deposited Rs. 10,000/ (Rupees Ten Thousand Only) in connection with my service as Cashier National Bank of India Ltd., Delhi as Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
43security. Besides this I have deposits with the bank mentioned above. I have also kept share scripts of different companies, Mills and Banks with the said bank and I have share scripts of different companies and I have got my life Insurance Policy with come Life Insurance Company of Canada vide Policy No. 3302413 for Rs. 1500/ and policy No. 3352504 for Rs. 2000/.
Hence, I the testator hereby bequeath that so long as I am alive I shall be exclusive owner of my entire movable and immovable property of every kind. During life time I shall do with my property as I please. After my death my entire property, movable/immovable shall vest in Smt. Maha Rani, D/o Lala Jai Dayal Kapur, my wife and all my money and shares in different companies and Mills/Banks or ornaments, clothes and utensils etc.;, shall also vest in Smt. Maha Rani, my Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
44wife. The bank and the Insurance company, mentioned above and other companies and all Mills should after my death transfer entire money and shares which either stand in my individual name or in joint names of myself and my wife in favour of Smt. Maha Rani and give them to her. It shall be duty of Smt. Maha Rani, my wife to recover rent from all the tenants occupying the house mentioned above. She may give any portion on rent to anybody or to evict them; to repair the house, pay house tax etc. But she shall have no power to mortgage, sell or gift away the said house nor she shall be competent to transfer the house nor she shall be competent to transfer the house in any other manner or form. She shall live on income of the said house.
43. It is settled law that a document has to be read as a whole in such a manner in order to give effect to the terms of the said document in order to gather the intention of the Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
45testator. It is clearly mentioned in the will ExPW1/1 and translated copy of the will ExPW1/D1 that the said property bearing No.710, Katra Neel, Nai Basti, Chandni Chowk, Delhi was acquired by Sh. Ram Kishan Dass Khanna out of his funds and resources and the said testator made a provision in the said will that as long as he was alive he would be exclusive owner of the said property including other movable properties and that after his death, his entire property i.e movable as well as immovable shall vest in Smt. Maharani Devi and it shall be the duty of Smt. Maharani Devi to recover rent from all the tenants occupying the house at Chandni Chowk and she may give any portion on rent to anybody or to evict them or to repair the house and to pay house tax etc. However, there was the restriction on the powers of Smt. Maharani Devi in the next clause i.e she would have no power to mortgage, sell or gift away the said house, nor she would be competent to transfer the house in any such manner, nor she shall be competent to transfer the house in any other manner or form. However, she shall live on the income of the said house.
44. The testator made a further provision in the will that after the death of Smt. Maharani Devi, the entire property including the said house would vest in Sh. Ramesh Prasad Khanna @ Gopal and the testator also made provision that what would happen in case the said Ramesh Prasad Khanna @ Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
46Gopal predeceased of Smt. Maharani Devi in the latter part of the will. Now it has to be seen whether Smt. Maharani Devi was in possession of the property at Chandni Chowk pursuant to her preexisting right of maintenance, as on the date when the Hindu Succession Act came into force, therefore her life estate created by the will dated 02.12.52 stood enlarged into an absolute estate by virtue of Section 14(1) of the Hindu Succession Act and therefore she became the absolute and exclusive owner of the said property after the death of Sh. Ram Kishan Dass Khanna.
45. The judgment relied upon by counsel for the plaintiff including the leading case of V.Tulsamma only talks about her preexisting right of maintenance and it has been held in the said judgment that where a property is acquired by Hindu female under the instrument by virtue of a preexisting right, such a right to obtain property on partition or a right to maintenance and under the law as it stood prior to the enactment of Hindu Succession Act, she would have no more interest in the property, a provision in the instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal possession and the restriction on her interest being the disability imposed by law which would be wiped out and her limited interest would be enlarged under Sub Section (1). From the plain reading of the Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
47terms of the will reproduced as above ExPW1/1, it is clear that Smt.Maharani Devi was given the right to collect rent from the tenants occupying the house at Chandni Chowk including the right to give any portion of the said house to anyone or to evict them. She was not given the said powers to collect rent and to give the said house on rent to any tenant or to live on the income of the rent in lieu of maintenance or arrears of maintenance, as mentioned in explanation to Section 14(1) of the Hindu Succession Act, rather it appears that Smt. Maharani Devi was given the right to collect rent and to live on that income for the first time and not in recognition of her any preexisting right of maintenance i.e in lieu of maintenance or arrears of maintenance, rather the said right to collect rent and to give the portion of the said property to different tenants including the right to evict them and to live on the income derived from the said tenants was the right which was created in her favour for the first time by virtue of the will ExPW1/1 and it was not a preexisting right as averred in case of V.Tulsamma the leading judgment relied upon by Ld counsel for the plaintiff and other judgments. As it has been held in the judgment 1994(2) SCC 511 Supra by the Hon'bl e Supreme Court that the acquisition of the property under the will is not mentioned in 14(1) of the Hindu Succession Act, but the same squarely falls under Sub Section (2).
Suit No. 416/08Asha Mehra Vs. Rajesh Khanna & Ors.
4846. The Hon' ble Supreme Court has held in the aforesaid judgment that Section 30 of the Hindu Succession Act creates absolute power in a Hindu to dispose off his property by will and it includes the right to create the limited and restricted estate in favour of a female. The section does not impose any restriction express or implied except that the said Hindu Female should be capable of disposing the said property, therefore it is clear that legislature intended that the property disposed off by way of will by a Hindu who is capable of disposing the said property shall be subject to restrictions and conditions imposed by the testator himself in the will. Further Sub Section (1) of Section 14 has to be read in confirmity with Section 30 and Sub Section(2) of Section 14. It has also been held in the said judgment that Tulsamma case is concerned with the right of maintenance granted to the widow in a decree, since the property was given to Tulsamma in lieu of her right to maintenance, she acquired it as provided by explanation to sub section(1) of Section 14 of the Hindu Succession Act, but since this right she got under a decree of the court, which prescribed the restricted estate. Therefore the right and interest which she got fell under subsection (2) of Section 14 as well. However, the Hon'bl e Supreme Court removed the said anamoly and held that if this maintenance was given in recognition of preexisting right then such Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
49acquisition of property was taken out of subsection (2) to promote the objective of section 14. But it was also held in the said judgment if that concept is extended to a will executed under section 30 it would militate against express provision of section 30 and subsection (2) of section 14. It was also held that yet the field of operation of the two subsections are totally different. Consequently, it was held by the Hon'bl e Supreme Court in the aforesaid judgment that if a Female Hindu acquires possession after enforcement of the Succession Act and that possession was traceable to an instrument or document described in sub section(2), then she would not get the higher right than what is stipulated in the document itself. The purpose and the legislative intention which comes out from the combined reading of two sub sections is that it attempts to remove the disability which was imposed by customary law on acquisition of right by Female Hindu, but it does not enlarge or enhance the right which she gets under the will giving her limited estate U/s 30 of the Hindu Succession Act. The ratio of said judgment is squarely applicable to the facts of the present case, here also Smt. Maharani Devi was given a restricted right under a will by her husband not in recognition of her preexisting right of maintenance, but for the first time as per terms of said will.
47. In view of the aforesaid discussion the plaintiff Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
50has failed to prove that certain rights in the property bearing No. 710, Katra Neel, Nai Basti, Delhi given to Smt. Maharani Devi under the will dated 02.08.52 was in lieu of her pre existing right of maintenance. Consequently, the right of Smt. Maharani Devi to collect rent from the tenants in the said property and to live on the same got extinguished on her death and the said property would therefore devolve, as per the terms of the will upon other persons mentioned in the will. Plaintiff who is claiming her rights in the said property through Smt. Maharani will have no right, title or interest left in the same. In view of the aforesaid discussion this issue is decided in favour of defendants and against the plaintiff.
ISSUES No. 6 & 748. In view of my findings on issues No. 4 & 5, the plaintiff is not entitled to any relief of partition and rendition of account. These issues are answered accordingly. RELIEF
49. In view of my findings on issues No. 4 & 5, the the suit of the plaintiff stands dismissed with no order as to costs. Decree Sheet be drawn accordingly.
50. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 14.12.2012 ADJ(Central03) Delhi/14.12.2012 Suit No. 416/08 Asha Mehra Vs. Rajesh Khanna & Ors.
51 Suit No. 416/08Asha Mehra Vs. Rajesh Khanna & Ors.
52 Suit No. 416/08Asha Mehra Vs. Rajesh Khanna & Ors.
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