Delhi District Court
Sh. Ram Nath (Since Deceased) vs Sh. Prem Chand on 14 July, 2011
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
MCA No. 52/10
Date of Institution of Appeal : 09.01.2006
Date on which Reserved for Order : 02.06.2011
Date of Judgment/Order : 14.07.2011
Case I.D. Number : 02402C0018262006
IN THE MATTER OF:-
Sh. Ram Nath (Since deceased)
S/o Late Sh. Salig Ram,
through its L.R's
Sh. Manohar lal,
Sh. Sushil kumar,
Vijay Kumar,
All R/o House No.198/29, Sri Ram Nagar,
Shahdara Delhi-32.
.......Appellant.
Versus
Sh. Prem Chand,
S/o Late Sh. Ram Nath,
R/o House No.198/29, Sri Ram Nagar,
Shahdara, Delhi-32.
.......Respondent.
Judgment:
1. This appeal has been filed against the impugned decree and judgment dated 29.11.05 passed by the court of Ld. Civil Judge, KKD Delhi by which suit no.
216/76 (new no.08/04), suit no.194/77 (new no.08/04) and suit no.829/1982 (new no.07/04) were decided. During the pendency of the appeal ld. Counsel for MCA No. 52/10 Page No. 1 of 14 appellant on 11.3.11 had submitted that he would restrict his appeal only against the judgment and decree dated 29.5.05 passed in suit no.216/1976 titled as Prem Chand Vs. Ram Nath.
2. Brief facts leading to the filing of the appeal are that the plaintiff Prem Chand has filed the suit for rendition of accounts against his father Ram Nath and his three brothers Manohar Lal, Sushil Kumar and Vijay Kumar contending that the residential house bearing no.198/09 Sriram Nagar Shahdara Delhi was constructed by the plaintiff and D1 in 1958 being member of hindu undivided family (HUF). Plaintiff therefore prayed that he be declared as joint owner of the said premises and prayed to restrain the defendants from transferring, alienating or creating third party interest in the suit property or to dispossess the plaintiff from the same.
3. Joint written statement to the suit was filed by defendants in which it was submitted that the suit property was the self-acquired property of defendant no.1 and that there was no joint hindu family.
4. On the pleadings of the parties following issues were framed by the ld. Trial Court:
1.Whether the plaintiff and defendants are the members of Hindu Undivided Family & defendant no.1 is the Karta of the same? If so to what effect.
2.Whether the business M/s Ram Nath & Sons being jointly run by plaintiff & MCA No. 52/10 Page No. 2 of 14 defendant no.1? If so in what capacity.
3.Whether the defendants are liable for rendition of accounts of joint family business being run at four places as alleged in para 6 of the plaint?
4.Relief.
5. Along with suit no.216/76 (new no.08/04), two other suits being suit no.
194/77 (new no.08/04) and suit no.829/1982 (new no.07/04) were also decided. Plaintiff examined himself as PW1 and Sh. Inder Singh as PW2 in suit no.216/76 (new no.08/04) and suit no.194/77 (new no.08/04). In suit no.829/1982 (new no. 07/04) GS Mishra was examined as PW-1, Manohar Lal as PW-2, Jai Narain as PW-3 and Vijay Kumar as PW-4 and the defendant in this suit examined Prem Chand as DW-1, Yash Pal as DW-2 and Jitender Singh as DW-3.
6. During the pendency of the suit, defendant no.1 Ram Nath (father of plaintiff Prem Nath) expired leaving behind will dated 10.8.1976. Subsequently on an application u/o 22 rule 4 CPC 3 by order dt.26.11.85 three more issues as under
were framed:
1.Whether deceased Ram Nath executed a will in favour of Leela Wati, his wife? If so its effect.
2.Whether Smt. Leela Wati is the sole LR of deceased Ram Nath.?
3.Relief.
7. By impugned order ld. Trial court decreed suit no.216/76 (new no.08/04) of MCA No. 52/10 Page No. 3 of 14 the respondent. With respect to issue no.1 i.e. Whether the plaintiff and defendants were members of HUF and defendant no.1 was the Karta of the same, ld. Trial court held that the plaintiff had failed to prove the jointness of the family and decided the said issue against the plaintiff.
8. Issue no.2 i.e. Whether the business of M/s Ram Nath & sons were being jointly run by plaintiff and defendant no.1 was also decided against plaintiff. It was held that late Ram Nath was the sole owner of the suit property.
9. The third issue i.e. Whether defendants were liable for rendition of accounts, ld. Trial court held that plaintiff was not entitled to rendition of accounts and the said issue was also decided against the plaintiff.
10. With respect to the issues framed on 26.11.1985 ld. Trial court held that will executed by Late Ram Nath dated 10.8.1976 in favour of his wife Leela Wati was proved as Ex.PW1/1 and she became beneficiary of the suit property. In arriving at the said finding the ld. Trial court relied on findings on issue no.1 in the suit which it was held that the suit property was the exclusive property of Late Ram Nath and therefore observed that he had absolute right to bequeath the suit property.
11. During the pendency of the suit Smt. Leela Wati expired on 7.11.1999 intestate. Hence the question arose whether the plaintiff Prem Chand by virtue of being the son of Smt. Leela Wati wife of Ram Nath acquired any interest in the MCA No. 52/10 Page No. 4 of 14 suit property as Smt. Leela Wati had died intestate. After perusing the terms of the will dated 10.8.1976 ld. Trial court by the impugned order held that the condition imposed on Smt. Leela Wati in the will dated 10.8.1976 to the effect that during her lifetime she would be owner of the property but after her death the same would devolve on the other sons of Ram Nath namely Manohar Lal, Sushil Kumar and Vijay Kumar (respondents in this appeal) was void as by virtue of provisions of Section 14 (1) of Hindu Succession Act 1956 Smt. Leela Wati would become a full owner of the same. Hence by impugned order the ld. Trial court decreed the suit of the plaintiff declaring Prem Chand as joint owner of the suit property.
12. Ld. Counsel for appellant has argued that the ld. Trial court misinterpreted not only the terms of the will dated 10.8.1976 executed by Late Ram Nath in favour of his wife Leela Wati but also the provisions of Section 14 of Hindu Succession Act 1956. Ld. Counsel for appellant argued that while interpreting the terms of the will, the intention of the testator is to be culled out and full effect to the same has to be given. Ld. Counsel for appellant further argued that u/s 14 (2) of Hindu Succession Act 1956, where a hindu female acquires rights to any property under a will with a restricted estate, her rights to the said property would remain restricted in terms of the will. The rights of a female hindu in respect of suit property acquired by way of will would not be converted to that as a full owner thereof u/s 14 (1) of the Act. Counsel for appellant relied on the judgment of MCA No. 52/10 Page No. 5 of 14 Hon'ble Supreme Court in the case of Gumpha Vs. Jai Bai reported in (1994) 2 SCC 571. Counsel for appellant also relied on the judgment of Hon'ble Supreme Court in the case of Bhura Vs. Kashi Ram reported in 1994 (2) SCC page 111 in support of his contention that ordinarily the terms of a will ought to be given its full effect.
13. Counsel for respondent on the other hand supported the findings arrived at by the ld. Trial court and argued that by virtue of Section 14 (1) of the Hindu Succession Act 1956 mother of the plaintiff Smt. Leela Wati became full owner of the suit property and since she died intestate, plaintiff inherited the share in the suit property.
14. I have heard ld. Counsels for parties and perused the record.
15. All the issues framed in the suit as originally filed by plaintiff were decided against him in the impugned order. No appeal against the same has been filed by respondent/plaintiff and the said findings have attained finality. During the pendency of the suit Sh. Ram Nath had died leaving behind a will dated 10.8.1976 in favour of his wife Smt. Leela Wati. The said will was proved as EX.PW1/1. Smt. Leela Wati died intestate on 7.1.1999 and the plaintiff/respondent inherited the rights of Smt. Leela Wati in the suit property.
16. The only question therefore which arises for consideration in this appeal is whether by virtue of the will dated 10.8.1976 executed by Late Ram Nath, Smt. MCA No. 52/10 Page No. 6 of 14 Leela Wati acquired a limited state in the suit property or became a full owner thereof by virtue of Section 14(1) of Hindu Succession Act 1956. Before adverting to the said question it would be prudent to reproduce the relevant portion of the will dated 10.8.1976 which is as under:
"That I am absolute owner of my movable and immovable property whatsoever and wheresoever during my life time and after my death, my wife Smt. Leela Wati shall be the absolute owner of my entire property- movable and immovable-whatsoever and wheresoever and after her death my three sons - 3/Shri Manohar lal, Sushil Kumar and Vijay Kumar shall inherit my entire movable and immovable property whatsoever and wheresoever in equal shares. Sh. Prem Chand shall have no right, title or interest in any of my movable or immovable property. My aforesaid three daughters shall also no right, title or interest in any of my property.
In case of my wife Smt. Leela Wati pre-deceased me, then after my death, my three sons - S/Shri Manohar Lal, Sushil Kumar and Vijay Kumar shall inherit the property in equal shares. However, to make it quite clear that in no circumstances, Shri Prem Chand or any of his family member shall inherit any of my movable and immovable property."
17. The perusal of terms of will dated 10.8.1976 clearly reveal that Late Sh. Ram Nath had desired that after his death his wife Smt. Leela Wati would be the owner of his entire property and after her death the same would devolve on his three sons Sh. Manohar Lal, Sushil Kumar and Vijay Kumar. It was clearly provided in that the respondent Sh. Prem Chand would not have any right, title or interest in any of his movable or immovable properties. The testator also desired that in case Smt. Leela Wati, his wife pre-deceased him then after his death all his property would devolve on his aforesaid three sons but Sh. Prem Chand would MCA No. 52/10 Page No. 7 of 14 not inherit any of his movable or immovable properties.
18. Section 14 of Hindu Succession Act reads as under:
"14. Property of a female Hindu to be her absolute property.--(1) Any property possessed by a female Hindu, whether acquired before or af- ter the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as strid- hana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property ac-
quired by way of gift or under a will or any other instrument or under a de- cree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
19. Sub Section (2) of Section 14 of Hindu Succession Act provides that where a female hindu acquires any right in a property by virtue of will which provides for a restricted estate, then the provisions of Section 14 (1) of Act would not come into play. The said provision was interpreted by the Hon'ble Supreme Court in the case of Gumpha (Supra). The operative portion of the said judgment reads as under:
"12............... But what is its effect on the right of his widow if the testator gives only right of maintenance. Can it be said to be in lieu of maintenance? The answer is simple. The legislature then would have used the words, 'for MCA No. 52/10 Page No. 8 of 14 maintenance' and not instead of 'or in lieu of maintenance'. That could not have been the purpose. Under the Act, a female unlike customary law is an heir. She inherits the property in her own right. 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 in Tulasamma8 it would be creation of right for the first time and not in recognition of pre-existing right. Even the expres- sion in any manner whatsoever cannot be of any help for deciding the right and interest of a female Hindu acquired under a will. The expression is no doubt very wide but its width cannot be extended to those acquisitions which are specifically dealt with by sub-section (2). Its operation has to be confined to such an acquisition which is not covered by sub-section (2) or any of the clauses of the explanation. It is true that the explanation is not exhaustive as is clear from the use of the word 'includes' but its ambit can- not be stretched so as to nullify the effect of sub-section (2). A reading of the two sub-sections together indicates that even though the law was revo- lutionized and a female Hindu was made an absolute owner in respect of any property acquired by her either before or after the date of enforcement of the Act yet the law did not intend to confer a higher and better right than what was enjoyed by a male Hindu. In Tulasamma case8 it was held by this Court that a female Hindu could acquire rights under Section 14(1) only if she was possessed of the property and that possession was by some legal authority. To put it differently a trespasser or a female Hindu who cannot es- tablish any right in the property of which she was possessed could not ac-
quire any right. (Eramma v. Verrupanna14; Kuldip Singh v. Surain Singh15 and Dindayal v. Rajaram16). It necessarily follows that the possession must MCA No. 52/10 Page No. 9 of 14 be founded on some basis which may be acceptable in law and the right that she acquires under Section 14 depends on the nature of possession she enjoyed over the property. Consequently if a female Hindu acquires possession after the enforcement of the Succession Act and that pos- session was traceable to an instrument or a document described in sub-section (2) then she could not get higher right than what is stipu- lated in the document itself. The purpose and the legislative intention which surfaces from a combined reading of the two sub-sections is that it at- tempts to remove the disability which was imposed by the customary 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."
(Emphasis supplied)
20. The Hon'ble Supreme Court in the case of Gumpha (supra) has clearly held that only in cases where a female hindu had a pre-existing right in a property would such right be converted from limited to a full owner u/s 14(1) of Act. Where however the female hindu did not have any pre-existing right and she acquires a limited estate in the same by virtue of a will then her rights in the said property would remain limited to the terms of the will.
21. In the present case the terms of will dated 10.8.1976 very clearly prescribed that Smt. Leela Wati late mother of plaintiff/defendant would acquire only a lifetime interest in the suit property and after her death the property would devolved upon MCA No. 52/10 Page No. 10 of 14 her three sons namely Sh. Manohar Lal, Sushil Kumar and Vijay Kumar and Sh. Prem Chand would acquire no rights in the same.
22. During the course of the arguments ld. Counsel for respondent had argued that the words used in the will are "absolute owner" when referred to Smt. Leela Wati which was contended that by virtue of the said words Smt. Leela Wati would become an absolute owner in terms of the same. Said submission, in the opinion of this court has no merit. In the case of Bhura (supra) the Hon'ble Supreme Court was pleased to observe in para 6 and 7 as under:
"6......We have perused the entire will and we find that even though it is not happily worded it does bring out his intention. It is settled law that the courts must make all efforts to determine the real intention of the tes- tator by reading the will as a whole and giving effect to the intentions of the testator. Construction, which would advance the intention of the testator has to be preferred and as far as possible effect is required to be given to every disposition contained in the will, unless the law pre- vents such effect being given to it. The recitals in the will (Ex. P-4) go to show that the testator wanted to provide his daughter, Sarjabai interest in the estate but at the same time intended that the property should ultimately be retained in his family for which purpose, he had soon to take Gopi Chand in adoption and was also hopeful of begetting a natural son through one of his wives. This also becomes evident from the fact that the testator, as a last resort, even intended his brother Nanak Ram to inherit the proper- ty after the death of his wives, in the event of his natural born son or the adopted son dying issueless. The bequeath in favour of Sarjabai (as ex-MCA No. 52/10 Page No. 11 of 14
tracted above) clearly speaks of the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of Sarjabai only for her lifetime and not an absolute estate. We, therefore, agree with the High Court that under the will Sarjabai did not get more than a lifetime estate because the language of the will is inconsistent with her having got an absolute right over the land.
7. The limited estate conferred upon Sarjabai by the will (WP-4) could not even be enlarged into an absolute estate under the Hindu Succession Act, 1956, even though she was possessed of that proper- ty at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that nothing contained in sub- section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to any property acquired by way of gift or under a will or by any other instrument prescribing a restricted right in such property. In view of our finding that the will (Ex. P-4) itself prescribed a restricted right of life-es- tate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Suc- cession Act, 1956."
(Emphasis supplied)
23. In the case of Bhura (Supra) the Hon'ble Supreme court held that courts must make all efforts to determine the real intention of the testator by reading the will as a whole and given effect to the intention of the testator. Interpretation which would adverse the intention of the testator has to be preferred. In this case as well MCA No. 52/10 Page No. 12 of 14 the Hon'ble Supreme Court had observed that where the will confers the limited estate upon the beneficiary, the said estate could not be enlarged into an absolute estate under the Hindu Succession Act 1956.
24. Reading the terms of the will as a whole it is manifestly clear that late Ram Nath desired that respondent/plaintiff Prem Chand should not be entitled to any right to his movable or immovable properties. He also desired that after his death his wife would be the owner of the property during her lifetime and after her death all his interest in his property would devolve upon his three sons namely Sh. Manohar Lal, Sushil Kumar and Vijay Kumar. Although the words used with respect to Smt. Leela Wati are "absolute owner", in the opinion of this court the same cannot be read in isolation. Keeping in view the entire terms of the will the words "absolute owner" may have been used by the testator to ensure that Smt. Leela Wati would have right over the estate of the deceased Ram Nath during her lifetime. Hence I hold that the testator Ram Nath intended that during her lifetime his wife Smt. Leela Wati would only be entitled to a limited estate in the property of Ram Nath including the suit property bearing no.198/09 Sriram Nagar Shahdara Delhi after her death the same would devolve solely on his three sons namely Sh. Manohar Lal, Sushil Kumar and Vijay Kumar.
25. The findings of the ld. Trial court to the effect that limited estate in favour of Smt. Leela Wati got converted as a full owner by virtue of Section 14 (1) MCA No. 52/10 Page No. 13 of 14 of the Hindu Succession Act cannot be sustained and is hereby set aside. Appeal of the appellant is allowed. The impugned decree and judgment dated 29.11.05 passed in suit no.216/76 (new no.08/04) is set aside and the suit of the plaintiff is dismissed with costs.
26. A copy of this order along with TCR be sent back to the Ld. Trial Court.
27. File be consigned to the record room.
Dictated to the Steno and Announced in the Open Court today i.e. 14.07.2011 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi MCA No. 52/10 Page No. 14 of 14 MCA No. 52/10 Page No. 15 of 14