Delhi District Court
Sh. Amit Kumar vs Smt. Suman Lata on 13 October, 2015
IN THE COURT OF ANURAG SAIN, ADJ02 (EAST),
KARKARDOOMA COURTS, DELHI
RCA No.: 14/15
Unique Case ID No.02402C0150922015
1. Sh. Amit Kumar
S/o Late Sh. Raj Kumar
2. Smt. Beena Devi @ Simran
W/o Sh. Amit Kumar
Both R/o House No.C169,
3rd Floor, CBlock,
Pandav Nagar,
Delhi110092
.......Appellants
Versus
Smt. Suman Lata,
W/o Late Sh. Raj Kumar,
R/o H. No.C169,
Ground Floor, Pandav Nagar,
Delhi110092
........Respondent
Date of institution of appeal : 02.05.2015
Date of reserving judgment : 19.09.2015
Date of pronouncement : 13.10.2015
JUDGMENT
1. The present appeal under Section 96 of CPC is against the impugned judgment and decree dated 27.03.2015 in Civil Suit RCA No.: 14/15 bearing no.121/12 titled as Smt. Suman Lata Vs. Sh. Amit Kumar and Or. passed by the Ld. Senior Civil JudgecumRent Controller (east), Karkardooma Courts, Delhi whereby the Ld. Trial Court has decreed the suit of the respondent/plaintiff for permanent and mandatory injunction as well as for recovery of damages/mesne profits.
2. Brief facts of the case as mentioned in the plaint filed before the ld. trial court are that the respondent/plaintiff is the owner of the property bearing no.C169, Pandav Nagar, Delhi92 by virtue of Will dated 05.05.1992 executed by her brotherinlaw Late Sh. Sant Ram Sachdeva in her favour; The appellants/defendants are the son and daughterinlaw of the respondent/plaintiff and are in possession of one room set comprising of kitchen, latrinebathroom and common courtyard on the 3rd Floor of the property bearing no.C169, Pandav Nagar, Delhi92 (hereinafter referred to as the suit property) as licensee; The appellants/defendants are disrespectful towards the respondent/plaintiff and the respondent/plaintiff disinherited the appellants/defendants from her movable and immovable properties by public notice published in the newspaper 'The RCA No.: 14/15 Statesman' on 06.05.2011; The appellants/defendants are threatening to transfer the suit property to someone else against consideration without the consent and permission of the respondent/plaintiff; A legal notice dated 26.03.2012 was served upon the appellants/defendants thereby terminating their licence to which a false reply was filed by the appellants/defendants; It has been further averred that the appellants/defendants are in unlawful and wrongful possession of th suit property and are liable to pay mesne profits @ Rs.5,000/ per month w.e.f. 01.03.2012 till 31.05.2012 and further mesne profits @ Rs. 5,000/ per month from the date of institution of the suit till the vacation of the suit property along with interest @ 15% p.a. On these premise, the respondent/plaintiff has filed the suit against the appellants/defendants before the Ld. Trial Court.
3. The appellants/defendants filed their written statement before the Ld. Trial Court wherein the appellants/defendants have averred that the respondent/plaintiff is not the owner of the property by virtue of Will and defendant no.1 has equal right in the property as per the Will; Relationship between the parties has been admitted; It has been further averred that the RCA No.: 14/15 appellants/defendants have always respected the respondent/plaintiff and never threatened the respondent/plaintiff; The respondent/plaintiff wants to disturb the family life of the appellants/defendants and has beaten the appellants/defendants on a number of occasions and has threatened that she being an employee of CBI can go to any extent against the appellants/defendants; It has been further averred that the appellants/defendants were in possession of another room but the respondent/plaintiff dispossess the appellants/defendants from the second room with the help of the police persons and the appellants/defendants had never given any threat to the respondent/plaintiff; Service of legal notice dated 26.03.2012 has also been admitted and it has been averred that the appellants/defendants had given the reply to the said notice and the appellants/defendants have legal right in the property to retain the possession of the suit property as he is co owner of the property. Rest of the contents of the plaint have been denied by the appellants/defendants in the written statement.
4. Replication to the written statement was filed by the RCA No.: 14/15 respondent/plaintiff reiterating and reaffirming the facts as mentioned in the plaint and denying the contents of written statement.
5. The Ld. Trial Court vide order dated 30.04.2013 framed the following issues: (1)Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by the plaintiff in the plaint ? OPP (2)Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for by the plaintiff in the plaint? OPP (3)Whether the plaintiff is entitled for the recovery of Rs. 15,000/ along with interest as prayed for by the plaintiff in the plaint ? OPP (4)Relief, in any.
6. Perusal of the record shows that when the case was listed for judgment, the ld. trial court framed an additional issue regarding the relief of damages on 11.07.2014 which is as under: Whether the plaintiff is entitled to damages from the defendants and if so, at what rate and for what period? OPP
7. In order to prove her case before the ld. trial court, the respondent/plaintiff examined herself as PW1 and tendered her evidence by way of affidavit exhibited as Ex.PW1/A. She also RCA No.: 14/15 relied upon documents viz certified copy of Will dated 05.05.1992 as Ex. PW1/1, Site plan as Ex. PW1/2, copy of public notice published in newspaper as Ex. PW1/3, copy of police report as Ex. PW1/4, copy of legal notice as Ex.PW1/5, courier receipts as Ex.PW1/6, postal receipt as Ex.PW1/7 and reply of legal notice as Ex. PW1/8. This witness was cross examined by the ld. counsel for the appellants/defendants. Thereafter, vide separate statement, ld. counsel for the respondent/plaintiff closed evidence on 23.09.2013.
8. To rebut the case of the respondent/plaintiff, appellant no.1 examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A. Appellants/defendants also examined Smt. Rajbir Kaur, sister of the respondent/plaintiff (aunt of the appellants/defendants) who tendered her evidence by way of affidavit exhibited as Ex. DW2/A. These witnesses were cross examined by the ld. counsel for the respondent/plaintiff and the Ld. Trial Court vide order dated 18.11.2014 closed DE.
9. After hearing the arguments, Ld. Trial Court vide judgment dated 27.03.2015 decreed the suit of the respondent.
10.Being aggrieved by the impugned judgment and decree dated RCA No.: 14/15 27.03.2015, the appellant has challenged the impugned judgment and decree on various grounds by filing the present appeal. It has been averred that the judgment of ld. Trial Court is based on surmises and conjecture; the ld. Trial Court failed to appreciate that by virtue of Will, the appellant no.1 is residing in the suit property with the independent right; that the ld. Trial Court wrongly came to conclusion that plaintiff is the exclusive owner of the suit property however it is settled preposition that a document has either to be read in full or not at all; that the ld. Trial Court has wrongly came to conclusion that the appellants are merely licensee and a licensee's possession is only permissive in nature. On these premise, the appellant has filed the present appeal.
11. Trial Court record has been received.
12.The counsel for the appellant argued that the ld. Trial Court has acted on without appreciating the law relating to Will. He argued that the ld. Trial Court ought to have interpret the Will. He further argued that the ld. Trial Court judged the matter on one or two statement of the appellant, however it is the incumbent duty of the court to appreciate the case in the light of RCA No.: 14/15 law and facts. He further argued that the Will dt. 05.05.1992 of Lt. Sh. Sant Ram Sachdev so interpet was wrong, as the property after the demise of Sh. Raj Kumar and Smt. Suman Lata would have to be automatically devolve upon Sh. Amit and Sh. Krishan Kumar which has been admitted by respondent in her cross examination. Merely, because the appellant admitted that respondent as owner, it does not mean that the respondent becomes owner. He further argued that appellant is a layman and is not know the technical and legal meaning of the words. However, the Trial Court should have appreciated the facts keeping the same in mind. On these premise, appellant prayed for setting aside of judgment and decree dated 27.03.2015.
13.Ld. counsel for the respondent submitted that there is no illegality, perversity and impropriety in the judgment and decree. He further argued that the appellants are ill mannered and respondent. On these premise, he prayed for the dismissal of the present appeal.
14. I have heard ld. counsels for the parties and have carefully perused the record.
15.From the arguments of the counsel for the parties, the following RCA No.: 14/15 points are for the consideration of this court:
(i)Whether the judgment and decree passed by the court below are illegal and gross misreading of evidence hence cause miscarriage of justice?
(ii)Whether there is misinterpretation of evidence?
(iii)Whether the impugned judgment and decree are illegal and not sustainable in the eyes of law?
16. I have heard counsel for both the parties and perused the record.
17. The whole arguments of the parties revolves round the Will dt. 05.05.1992 executed by Lt. Sh. Sant Ram Sachdeva and its interpretation. Before adverting to the facts of the case a court has to see what is the Will and what are the contents of the Will, intention of the testator, last intention of the testator and inconsistency between two clauses of the Will.
18.Will is defined as legal declaration of the intention of the testator with respect to his property which he desires to be effected after his death. Will is the legal declaration of one's intention which will be performed after his death or an instrument by which his property to take effect after his death. RCA No.: 14/15 Thus there are three rules of Will :
a)Legal intention of the testator
b)Declaration of intention must be with respect to testator's property. There must be property in the document
c)The document should express desire that his intention must be carried into effect after his death.
19. The general rule of construction in interpreting a 'Will', is first to ascertain by an examination of the entire Will what is the nature and the grammatical meaning of the language used by the testator. The entire instrument and all its parts are to be construed in relation to each other and so as, if possible, to form one consistent whole.
20.The fundamental and foremost rule while reading and interpreting the Will, is that the intention of the testator should be found from the recitals/clauses mentioned by him in his Will and the effect should be given to it as far as possible for the construction of the Will. Every case in hand should be looked into independently and that the other cases will be of little assistance because the different clauses in different Wills will always differ from case to case.
RCA No.: 14/15
21. In Navneet Lal @ Rangi Vs. Gokul & Ors. 1976(1)SCC630, The Hon'ble Supreme Court Of India in para 8 has laid down five rules while construing/interpreting a Will and observed as under:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy) (1913) 41 Ind App 51 at p.73 (PC) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... But all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case (supra) and Gananmbal Ammal v.
T. Raju Ayyar: (AIR 1951 SC 103)] (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or RCA No.: 14/15 contradictory (Raj Bajrang Bahadur Singh v. Bakhtraj Kuer): ( AIR 1953 SC 7) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The could will look at the circumstances under which the testator make his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal vs. Rameshwar Das): (AIR 1983 SC 1703). (5) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. RCA No.: 14/15 (Ramachndra Shenoy v. Mr. Hilda Brite: (AIR 1964 SC 1323)
22. While interpreting a 'Will', it is the primary duty of a court is to read the Will as a whole and ascertain from the language of the recitals therein as to what was the intention of the testator, that is to construe the Will. In interpreting the 'Will' the regard must have to be, not merely to the words used but to the evident intention of the testator. However, those intentions must be ascertained by the proper construction of the words he uses, and once ascertained, they must not be departed from.
23.The Hon'ble Supreme Court of India, in the case titled Gnanambal Ammal Vs. T. Raju Ayyar and Ors. in AIR 1959 SC 103, in para 10 has held that:
"The cardinal maxim to be observed in construing a Will is to be endeavour to ascertain the intentions of the testator. This intentions has to be gathered, primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the Will as the Privy Council RCA No.: 14/15 observed in Venkata Narsimha V. Parthasarathy, "the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure." The court is entitled to put itself into the testator's armchair. But all this is solely as an aid in arriving at a right construction of the Will, and to ascertain the meaning of the language when used by that particular testator in that document. So, soon as the construction is settled the duty of the court is to carry out the intentions as expressed and none other. The court is in no case justified in adding to testamentary dispositions.... In all cases it must loyally carry out the Will as properly construed, and this duty is universal and is true alike of Wills, of every nationality and every religion or rank of life.
24. The Hon'ble Patna High court in the case titled Kapuri Kuer V. Sham Narain Prasad AIR 1962 Pat149 has held that :
"The cardinal maxim to be observed in construing a Will is to be endeavour to ascertain RCA No.: 14/15 the intentions of the testator. This intentions has to be gathered, primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the Will as the Privy Council observed in Venkata Narsimha V. Parthasarathy, "the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure." The court is entitled to put itself into the testator's armchair. But all this is solely as an aid in arriving at a right construction of the Will, and to ascertain the meaning of the language when used by that particular testator in that document. So, soon as the construction is settled the duty of the court is to carry out the intentions as expressed and none other. The court is in no case justified in adding to testamentary dispositions.... In all cases it must loyally carry out the Will as properly construed, and this duty is universal and is true alike of Wills, of every nationality and every religion or rank of life.
"The cardinal maxim to be observed by courts in RCA No.: 14/15 construing a Will is to endeavour to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. Thus, the intention of the testator and the effect of the dispositions contained in the Will must be decided by construing the Will as a whole and giving the relevant clauses in the Will their plain grammatical meaning considered together. In construing the language of the Will the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. The court is entitled to put itself in the testator's armchair'. But all this is solely to help as an aid to arriving at a right construction of the Will and to ascertain the meaning of the language when used by particular testator in that document. So, soon as the construction is settled, the duty of the court is to carry out the intention as expressed and none other. The court is in no case justified in adding to the testamentary dispositions. In all cases it must loyally carry out RCA No.: 14/15 the Will as properly construed, and this duty is universal, and is true alike of Wills, of every nationality and every religion or rank of life, in construing a Will it is generally profitable or useful to refer to the construction of other Wills, because the construction of each Will must necessarily depend upon the terms used by the Will considered as a whole, and the result which follows, on a fair and reasonable construction of the said words must vary from Will to Will."
25.Keeping the same in mind, the court proceeds to interpret/construe the Will executed by Lt. Sh. Sant Ram Sachdev dt. 5.5.1992. The Will has already been proved in the suit bearing no. 475/93 titled as Nirmal Kishore vs. Suman and Ors. For proper understanding of the Will, the Will is reproduced as under:
DEED OF FIRST AND LAST WILL This Deed of first and last willdeed hereby executed at Delhi and on this 5th day of May, 1992 by Sh. Sant Ram Sachdev aged about 80 years, S/o Late Shri Mohan Lal Sachdev resident of C169, Pandav Nagar, Delhi110092, hereinafter called the testator.
Life is but short and uncertain. Almighty God knows when it may come to an end. I, therefore with my free will and consent without any pressure or undue influence or coercion from others to make this will.
RCA No.: 14/15 I, the testator am the absolute owner and in possession of builtup property whatsoever constructed thereon, bearing property no. C169 "area measuring 100 sq. yds. (20'X45') situated in the abadi of CBlock, Pandav Nagar in the area of village Gharonda Neem ka Banger alias Patper Ganj village Shahdara, Delhi110092., which was purchased by me from Sh. Jeevan Dass S/o Sh. Bhagat Kala Ram, r/o B3/8, Krishna Nagar, Delhi110051, by means of sale deed as registered document no. 2496., in Addl. Book No. I, Volume No. 311., on pages 196 to 197., registered on dt. 26.2.1971., with the office of the SubRegistrar Sub. Distt. No.IV, Delhi110051.
I, the testator declare that I have four issues 1. Sh. Raj Kumar (son), 2. Smt. Nirmal, 3. Smt. Promila and 4. Smt. Prem (daughters) in which three daughters as above are well settled in their family and I have spend more enough in their marriage, who will have no right to concern whatsoever with the same property.
I, the testator am the absolute owner uptill as I am alive, and after my death the said testimony my son and daughterinlaw (Sh. Raj Kumar S/o Sh. Sant Ram Sachdev and Smt. Suman Lata w/o Sh. Raj Kumar) shall before the absolute owner of the abovesaid property, who will be free to use, enjoy, sell, mortgage gift or transfer the same to any other person as they like without any interference or disturbance from other legal heirs, and he will also become the holder of my bank account or other movable and immovable property which have not been mentioned in this deed and after the death of the said testimonies Sh. Raj Kumar and Smt. Suman Lata W/o Sh. Raj Kumar Sachdev, RCA No.: 14/15 the abovesaid property no. C169, my bank account or other movable and immovable properties shall be automatically transferred in the name of my grandsons 'Kishan Kumar and Amit Kumar' sons of Sh. Raj Kumar Sachdeva, who will become the sole and absolute owner of the abovesaid property and holder of bank accounts, who will be free to enjoy, hold, sell, mortgage, gift or transfer the same to any other person they like without any interference or disturbance from other legal heirs such as sons (except the testimony Raj Kumar and daughter in law Smt. Suman Lata). If anyone raises any objection against the said property, that will be considered as null and void.
This is my first and last Will............ revenue records. In witness whereof....... Above written.
26.In case of their being inconsistency/repugnancy between the two clauses of the 'Will', it is the duty of the court to see that the effect should be given as far as possible to every testamentary intention contained in the Will. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. If there is inconsistency between the clauses of the Will, in that eventuality, the last intention of the testator is to be given effect and thus, the latter clause shall prevail over the earlier clause. Because the testator can always change his mind and can create another bequest in place of bequest already made in earlier clauses of the Will.
RCA No.: 14/15
27. It can be seen from the recital in the Will that the intention of late Sh. Sant Ram Sachdev was that, nothing is to be given to his other legal heirs for the reasons stated in the Will and the property be bequeathed to his son Sh. Raj Kumar and daughter in law Suman Lata and after their demise, the property shall devolve upon his grand sons namely Amit Kumar (appellant herein) and Krishan Kumar. Though, it is stated in the 'Will', that after the demise of his son Raj Kumar and daughterinlaw Suman Lata shall be the absolute owner of the property and have right to sell or mortgage the same but the same is superseded in the opinion of the court, by the latter intention of the testator, whereby he has bequeathed the suit property upon Amit Kumar (appellant herein) and Krishan Kumar, his grand sons, after the demise of his son and daughterinlaw and they shall be the owner who will be free to enjoy, hold, sell, mortgage, gift or transfer the same to any other person they like without any interference or disturbance from other legal heirs.
28.Had the testator intended that after his demise his son and daughter in law would be the absolute owner and would have right to deal with the property in any manner whatsoever, then, RCA No.: 14/15 the testator would not have mentioned in his Will that after the demise of son and daughter in law of late Sh. Sant Ram Sachdev the property shall devolve upon his grand sons namely Amit Kumar (appellant herein) and Krishan Kumar and they shall be the absolute owner of the property and shall be free to sell, mortgage, gift to any other person without the interference of any other legal heir. This shows that the intention of the testator late Sh. Sant Ram Sachdev was that ultimately the suit property shall vest with his grand sons namely Amit Kumar (appellant herein) and Krishan Kumar.
29.The Hon'ble Supreme Court of India in the case titled Ramachandra Shenoy and Anr. vs. Mrs. Hilda Brite and Ors. in AIR 1964 SC1323 has held as under:
The elementary rule of construction of Wills is that the intention of the testator should be gathered by giving a harmonious interpretation to the various terms of the Will as a whole.
"It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first RCA No.: 14/15 interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will. It is for this reason that where there is a bequest to A, even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on"
or "after" or "at" A's death. A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B."
30. Further, the Hon'ble Supreme Court of India in the case titled Kaivelikkal Ambunhi (dead) by LRs and others vs. H. Ganesh Bhandary MANU/SC/0505/1995 has held as under:
3. The rules of interpretation of the "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gif Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the pearlier or the subsequent part or specific clauses interse therein, the earlier part will prevail over the later as against the rule of interpreation application to a will under which subsequent part, clause or portion prevails over the RCA No.: 14/15 earlier part on the principle that in the matter of 'Will', the testator can always change his mind and create another interest in place of the request already made in the earlier part or on and earlier occasion. Undoubtedly, it is the last Will which prevails.
4. A Will may contain several clauses and the later clause may be inconsistent with the earlier clause.
In such a situation, the last will of the testator is given effect to and it is on this basis that the later clause is held to prevail over the earlier clause. This is regulated by the well known maxim "cum duo inter se pugantia reperiuntur in testament ultimum return est" which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier.
5. This principle is also contained in Section 88 of the Indian Succession Act, 1925, which , together with its illustrations, provides as under: The last of two inconsistent clauses prevails Where two clauses or gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Illustrations (1) The testator by the first clause of his will leaves his estate or Ramnagar "to A" and by the last clause to his will leaves it "to B and not to A". B will have it.
(2) If a man at the commencement of his will gives his house to A, and at the close of it directs that his RCA No.: 14/15 house shall be sold and the proceeds invested for benefit of B, the latter disposition will prevail. The same duly applies with the facts of the present case.
31. From the facts and circumstances, what surfaces, in the opinion of this court, besides nothing to be given to his legal heirs by Lt. Sh. Sant Ram Sachdev, ultimately the property would vest with appellant no.1 and his brother Krishan Kumar and the respondent has the life interest in the suit property. By the latter intention of the testator whereby he has bequeathed the suit property to the appellant no.1 and Sh. Krishan Kumar his grand son, he has cut down the apparently absolute interest in favour of the respondent to the extent of life interest.
32.In the present case, the intention of the testator Lt. Sh. Sant Ram Sachdev, while executing the Will dt. 05.05.1992 is two folds. Firstly, late Sh. Sant Ram Sachdev does not want to give any property to his other legal heirs but wanted to bequeath property to his son Raj Kumar and daughter in law Suman Lata and thereafter to his grand sons namely Amit Kumar and Krishan Kumar. Amit Kumar is the appellant in the present case and Smt. Suman Lata is the respondent in the present matter. RCA No.: 14/15
33.As per record, one of the legal heir/daughter of Sh. Sant Ram Sachdev namely Ms. Nirmal Kishore, had filed a suit for partition, possession and permanent injunction against the other legal heirs of Lt. Sh. Sant Ram Sachdev including respondent and appellant and Krishan Kumar titled as Nirmal Kishore vs. Suman & Ors. bearing suit no. 475/93.
34.In the said suit, plaintiff Nirmal Kishore arrayed respondent herein as defendant no.1 and appellant herein as defendant no.3 and Krishan Kumar as defendant no.2 therein the appellant no.1 and his brother were minor at that point of time and respondent acted as natural guardian on their behalf. They contested the suit before the trial court and had taken the stand that Lt. Sh. Sant Ram Sachdev had executed the Will dt. 05.05.1992 in their favour. The trial court vide judgment decree dated 06.05.2000 dismissed the suit of Ms. Nirmal Kishore holding therein that the respondent, appellant and Krishan Kumar herein who are the defendant no.1 to 3 therein have proved the Will dt. 05.05.1992 duly executed in their favour and the plaintiff has no right, title or interest in the said property. In the said judgment trial court has also observed in para 13 that appellant, RCA No.: 14/15 respondent and Krishan Kumar are the owners of the suit property. From the records, it can be seen that said judgment is neither challenged nor it is the case of the parties during arguments that said judgment was challenged. Thus, from the said judgment it can be safely inferred that the appellant and his brother Krishan Kumar is also one of the coowner of the suit property along with the respondent.
35.Moreover, as per the records, the plaintiff who is the respondent herein during her cross examination deposed before the Ld. Trial Court that "...... It is correct that after the death of Sh. Sant Ram Sachdeva, the beneficiaries are son and daughter in law i.e. Raj Kumar and Suman Lata as per the Will Ex.PW1/1, thereafter, after the death of both the beneficiaries i.e. Raj Kumar and Suman Lata the property shall automatically transfer in the name of his grandson i.e. Krishan Kumar and Amit Kumar.......". This shows that the respondent herself knew that as to what was the last intention of the testator. Once there is categorical finding of the court that the appellant is also one of the owner of the suit property and the cross examination of the respondent wherein she has admitted that ultimately the RCA No.: 14/15 property shall be transferred to the appellant and his brother Krishan Kumar. Then, how the suit of the plaintiff/respondent in the present form was maintainable against the defendant/appellants. In the facts of the present case where the appellant himself is the owner then he cannot be dispossessed under the facts and circumstances of this case.
36.It is settled preposition of law, possession of one coowner is the possession of coowner and every coowner has the right to enjoy the joint property in reasonable mode.
37. Looking the facts of the case from the other angle as well, assuming that the intention of the testator is to make the respondent Smt. Suman Lata and her husband Lt. Sh. Raj Kumar absolute owner of the suit property by the testator as per his Will dated 05.05.1992, still the respondent cannot be termed as the absolute owner of the suit property as per the Will dt. 05.05.1992, the relevant portion of Will Ex.PW1/A is as under :
"I, the testator am the absolute owner uptill as I am alive, and after my death the said testimony my son and daughterinlaw (Sh. Raj Kumar S/o Sh. Sant Ram Sachdev and Smt. Suman Lata w/o Sh. Raj Kumar) shall before the absolute owner of the abovesaid property, who will be free to use, enjoy, RCA No.: 14/15 sell, mortgage gift or transfer the same to any other person as they like without any interference or disturbance from other legal heirs, and he will also become the holder of my bank account or other movable and immovable property which have not been mentioned in this deed and after the death of the said testimonies Sh. Raj Kumar and Smt. Suman Lata W/o Sh. Raj Kumar Sachdev, the abovesaid property no. C169, my bank account or other movable and immovable properties shall be automatically transferred in the name of my grandsons 'Kishan Kumar and Amit Kumar' sons of Sh. Raj Kumar Sachdeva, who will become the sole and absolute owner of the abovesaid property and holder of bank accounts, who will be free to enjoy, hold, sell, mortgage, gift or transfer the same to any other person they like without any interference or disturbance from other legal heirs such as sons (except the testimony Raj Kumar and daughter in law Smt. Suman Lata). If anyone raises any objection against the said property, that will be considered as null and void."
According to the same after demise of Sh. Sant Ram Sachdev, the property shall devolve upon his son Raj Kumar and daughterinlaw Suman Lata.
38.In the present case, son of testator namely Sh. Raj Kumar Sachdev expired on 24.05.1993 leaving behind the respondent Smt. Suman Lata and two sons namely Amit Kumar (appellant RCA No.: 14/15 herein) and Sh. Krishan Kumar. If property is bequeathed to two persons, would this mean on the demise of one person the other person shall become the absolute owner of the property. With respect the answer is 'No'.
39.Had the recital of the Will were, in case son of the testator pre deceased his daughter in law Suman Lata, the respondent herein, she shall become absolute owner of the suit property then thing would have been different, but it is not the case here.
40.If a person dies, the right of succession opens and his right shall be devolved upon his legal heirs in accordance with the same. In the present case Sh. Raj Kumar father of appellant and husband of respondent died on 24.05.1993 and the rights of Sh. Raj Kumar in case of his dying intestate would devolve upon his legal heirs by way of succession who here in the present case are appellant no.1, respondent and Sh. Krishan Kumar. Respondent in any circumstances, cannot be said to be the absolute owner of the suit property and if, she is not the absolute owner of the suit property then she has no right to file the suit for possession against the appellants qua the suit property. For the same, respondent has first to get her share RCA No.: 14/15 determined, which is devolved upon her by way of succession on account of death of her husband and father of the appellant i.e. Sh. Raj Kumar by filing a suit for partition and thereafter, suit for possession could be maintained to that extent of the portion which falls to the respondent and not in any circumstances to the whole of the suit property.
41. It seems that Ld. Trial Court went on the footing that the respondent/plaintiff is the owner of the suit property by virtue of Will dt. 05.05.1992 and that the appellant no.1/defendant have admitted in his cross examination that respondent is the owner of the suit property. At the outset, I may say that the courts ought to have to go by what the law is and not by the submission of the parties and in particular when the appellant has stated a absolute different averment in its pleadings viz. that they are also the coowner and has equal right in the suit property on the basis of the Will executed by their grandfather Lt. Sh. Sant Ram Sachdev. In such circumstances, the Trial court have to carefully analyze the facts and law and should not base his finding on the one or two statement of the appellant.
42.Before holding respondent as absolute owner of the property on RCA No.: 14/15 the basis of the Will it is the duty of the court to go through the Will and thereafter, the court should pass any order as it thinks fit. In the opinion of the court, the trial court has misread the recitals of the Will and misinterpreted the evidence on record.
43.In view of the law and facts of the case discussed above, the appellant Sh. Amit Kumar is not the licencee of Smt. Suman Lata but residing in the suit premises in the capacity of co owner. Therefore, under the facts and circumstances of the case, the present suit of the plaintiff/respondent was not maintainable. Hence, this appeal deserves to be allowed and the impugned judgment and decree dt. 27.03.2015 is liable to be set aside and is accordingly set aside.
44.Decree sheet be prepared accordingly.
45.Trial Court record be sent to the ld. Trial Court with copy of this order.
46.Appeal file be consigned to record room.
Announced in the open court
On 13.10.2015 (Anurag Sain)
Addl. District Judge02 (East)
Karkardooma Courts, Delhi
RCA No.: 14/15
RCA No.: 14/15
Present: None.
Vide separate judgment announced in the open court today, the appeal of the appellant is allowed and the impugned judgment and decree dt. 27.03.2015 is set aside holding that the suit of the plaintiff/respondent was not maintainable. Decree sheet be prepared accordingly. Trial Court record be sent to the ld. Trial Court with copy of this order.
Appeal file be consigned to record room.
(Anurag Sain) ADJ2, East, Karkardooma Court, Delhi/13.10.2015 RCA No.: 14/15 RCA No.: 14/15