Delhi District Court
Col. Rajinder Singh (Retired) vs Sh. Simran Singh on 17 April, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 2316/08
Unique Case I.D. No. 02401C1273232008
1. Col. Rajinder Singh (Retired)
S/o Late Major Prem Singh
R/o C91, First Floor,
Defence Colony, New Delhi110024.
2. Sh. Dibjyot Singh
S/o Col. Rajinder Singh
R/o 428, N Hollywood Way BURBANK,
CA91505, U.S.A. ...........Plaintiffs
Versus
1. Sh. Simran Singh
S/o Sh. Saran Singh
R/o C91, Ground Floor,
Defence Colony,
New Delhi110024.
2. Sh. Ajab Singh
S/o Late Major Prem Singh,
R/o 118, Block V, 2nd Floor,
Eros Garden, Chaimwood Village,
Suraj Kund Road,
Faridabad121009. .........Defendants
Date of filing of the suit : 13.10.2008
Date of reserving judgment : 13.04.2012
Date of pronouncement of judgment : 17.04.2012
J U D G M E N T
Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 1/38
1. The plaintiff no. 1 is the father of the plaintiff no. 2 as well as brother of the defendant no. 2 and brother in law of the defendant no.1 as plaintiff no. 1's sister is married to the defendant no.1. This is a suit filed by the plaintiffs against the defendant no. 1 for recovery of arrears of rent. The admitted position of facts between the parties as it exists is given succinctly here as under:
2. Father of the plaintiff no. 1as well as the defendant no. 2 and grandfather of the plaintiff no. 2 Maj. (Retd.) Prem Singh was the exclusive owner of the entire suit property comprising of ground, first and second floor bearing no. C91, Defence Colony, New Delhi, and said Maj. (Retd.) Prem Singh had also executed a Will dated 01.09.1978, wherein it was stated that "ground floor of the house in question shall stand bequeathed to Smt. Amrit Kaur for life and on her death, the said ground floor shall stand bequeathed to Sh. Ajab Singh 40%, Rajinder Singh 40% and Dibjyot Singh 20%. First floor to Sh. Rajinder Singh and his wife Smt. Jasbir Kaur, second floor to Sh. Ajab Singh and his wife Smt. Ajit Kaur. Later on said Maj. (Retd.) Prem Singh had expired on 15.11.1979 and thereafter, his Will was also got probated by the parties to the suit, which was granted to them vide judgment dated 18.12.1986 as well as its clarifications contained in order dated 05.01.1987.
3. The suit property was stated to be the ground floor of C91, Defence Colony, New Delhi comprising of two bedrooms, two bathrooms, drawing/dinning, kitchen, front Varandah and a lawn, with garage and built up room set on the garage for residence as was shown in the red colour in the site plan. The defendant no. 1 was stated to be Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 2/38 residing in the same as a tenant/leasee being an employee of Punjab and Sind Bank under the lease deed dated 02.03.2001 executed between late Smt. Amrit Kaur wife of Maj. (Retd.) Prem Singh as owner/landlady and the defendant no. 1 for a period expiring on 28.02.2004 for a monthly rent of Rs.7,000/ besides electricity, water and other charges payable on or before 7th day of each English Calender month. The said lease deed was also followed by another lease deed dated 12.02.2004 executed between the parties for a period from 01.03.2004 till 28.02.2009 at the same rate of rent. The defendant no. 1 was stated to have retired as Deputy General Manager from Punjab and Sind Bank and after his retirement, he had become a tenant under said Smt. Amrit Kaur directly, who was also related to her as her soninlaw. Mother of plaintiff no. 1 and the defendant no. 2 Smt. Amrit Kaur was also stated to have expired on 04.08.2007 at Amritsar and therefore, as per plaintiffs, her life estate and interest in the suit property under the Will dated 01.09.1978 had come to an end after her death.
4. As per the plaintiff no. 1 and 2, they had become entitled to 60% share at the ground floor of the property and rest of the 40% had fallen to the share of the defendant no.2. However, the defendant no. 1 at no point of time had paid them even a single penny of rent and they were claiming a rent only w.e.f. 04.08.2007 till 30.09.2008 at the rent of Rs.7,000/ per month against the defendant no. 1 who had become a tenant under them by operation of law after the death of their mother Smt. Amrit Kaur. Although the total arrears of the defendant no. 1 was stated to be amounting to Rs.97,065/, however, since the plaintiffs were claiming only their own share to Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 3/38 the exclusion of the share of the defendant no. 2, who was also entitled to 40% share in the aforesaid amount. Hence, they had restricted their claim only for recovery of amount of Rs.58,239/ and as per them, they were also entitled to an interest on the said amount from the defendant no. 1 @ 9% per annum. It has also been contended and pleaded by the plaintiffs that they had issued a legal notice dated 29.12.2007, which was followed by communication dated 26.05.2008 and final notice dated 20.09.2008 calling upon the defendant no. 1 to make payment of the said amount, which he had miserably failed to do and the defendant no. 1 was also stated to have raised a false plea that late Smt. Amrit Kaur had bequeathed the entire ground floor of the premises in question to her daughter Smt. Antarjit Kaur, wife of the defendant no. 1 vide Will and as such the defendant no. 1 had thereafter settled all his claims with the new owner, namely, Smt. Antarjit Kaur with respect to the arrears of rent and started living with her in the suit property in his independent capacity of being her husband.
5. Cause of action in favour of the plaintiffs and against the defendant no.1 was stated to have firstly accrued on 04.08.2007 when Smt.Antarjit Kaur had expired and the suit premises to the extent of 60% had devolved upon them by virtue of Will dated 01.09.1978. It arose again when the defendant no.1 had failed to pay the arrears of rent to the plaintiffs despite legal notice dted 20.09.2008 and was stated to be continuing in nature as the defendant no.1 was adamant not to pay even a single penny to the plaintiffs. Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 4/38
6. Since both the parties to the suit were residing and working for gain at Delhi and suit premises was also situated at Delhi, hence it was submitted that this Court had territorial jurisdiction as well as pecuniary jurisdiction to try and entertain the present suit.
7. After service of the summons upon the defendants, the defendant no. 2 had chosen not to contest the present suit on its merits and was therefore, proceeded exparte vide orders dated 22.02.2010. However, the defendant no. 1 had duly appeared to contest the suit on merits and had also filed his written statement on record, wherein he had taken the preliminary objection that no relationship of landlord and tenant existed between him and the plaintiffs and neither the suit premises was ever let out to the defendant by the plaintiffs nor he had ever attorned in favour of them nor had ever accepted them as his landlords and as such the plaintiffs had no locusstandi to file the present suit as they were having no right, title or interest of any nature whatsoever in the suit premises which had devolved upon his wife, namely, Smt. Antarjit Kaur, who had become the owner and landlady of the suit premises on 04.08.2007 by virtue of a Will executed in her favour by her mother late Smt. Amrit Kaur, after her death. The defendant no. 1 had not disputed or denied the ownership of late Maj. (Retd.) Prem Singh in respect of entire suit property as well as his death on 15.11.1979 leaving behind the legal heirs including, the plaintiff no.1, the defendant no.1, the defendant no.2, his widow Smt. Amrit Kaur and three daughter, namely, Smt. Harbhajan Kaur, Smt. Adrash Kaur and Smt. Antarjit Kaur. Execution of Will dated 01.09.1978 by Maj. (Retd.) Prem Singh was also admitted by the defendant no.1, Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 5/38 however it was stated by him further that by virtue of said Will, late Maj. (Retd.) Prem Singh had bequeathed the suit property in question in favour of Smt. Amrit Kaur absolutely and for ever and thus she had become an absolute owner thereof and had also relied upon the relevant para of the said Will, which are reproduced as under:
"I bequeath to my wife, Shrimati Amrit Kaur, for her use and benefit, absolutely and forever, all my property, except the property at paragraphs 5 (five) and 6 (six) below, both movable and immovable, whatever and wheresoever and of what nature and quality. The bequest to take effect after my death".
8. It was further contended that as per paras 5 and 6 of the Will, only first floor and second floor of the property were bequeathed in favour of the plaintiff no.1 as well as the defendant no.2. It was stated further that Smt. Amrit Kaur had unfortunately died on 04.08.2007 leaving behind her last Will and testament dated 25.08.2006, whereby she had bequeathed all her share and entitlement in the suit property in favour of her dauther Smt. Antarjit Kuar and as such after her death on 04.08.2007, her daughter had become absolute owner thereof. Late Smt. Amrit Kaur was stated to have let out the portion of the ground floor to the defendant no.1, who had continued as her tenant till the date of her death and on 01.10.2008, the defendant no. 1 was stated to have surrendered his tenancy and possession to the rightful owner and landlord Smt. Antarjit Kaur and had also settled all her rental accounts with her and as such the defendant no. 1 was neither a tenant nor was liable to pay any amount on account of rent, be it Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 6/38 arrears or future rent to the plaintiffs as suit premises was under
the occupation and possession of Smt. Antarjit Kaur as absolute owner thereof and the defendant no. 1 was living with her as her husband. It was also contended on his behalf that after bequeathing the property to his wife Smt. Amrit Kaur absolutely and for ever, Maj. (Retd.) Prem Singh was left with no right, title or interest in the said portion to have made any arrangement for its further bequeath in favour of the plaintiffs as well as the defendant no. 2 in respect of her (Late Smt. Amrit Kaur's) property.
9. On merits as well, all the factual assertions contained in the plaint, except those which were specifically admitted to be correct or were to be the matter of law being legal in nature, rest all the other factual contents were denied by the defendant no. 1 as wrong and incorrect.
10.To this written statement filed on record by the defendant no.1, the plaintiffs had also filed their replication, wherein all the preliminary objections taken by the defendant no. 1 in his written statement were dealt in detail and were denied as wrong and incorrect and on merits all the factual assertions of the corresponding paras of the plaint were reiterated and reaffirmed by the plaintiffs as correct.
11.Hence, on the pleadings of the parties, vide his order dated 22.03.2010, Ld. Predecessor of this Court was pleased to frame the following issues in the present case:
1. Whether the defendant no. 1 is a tenant in respect of suit property under plaintiff no. 1 and 2 and defendant no. 2? OPP Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 7/38
2. Whether the plaintiffs are entitled to recovery of Rs.
58,239/ as arrears of rent for the period from 04.08.2007 to 30.09.2008 @ Rs.7000/ per month from defendant no.1? OPP
3. Whether plaintiffs are entitled to pendente lite and future interest @ 9% per annum on the suit amount? OPP
4. Relief.
12.Despite having taken so many preliminary objections in his written statement filed on record by the defendant no. 1 herein, the Ld. Predecessor of this Court did not deem it fit and proper to frame an issue out of those.
13.After hearing Ld. Counsels for the parties as well as perusing the evidence adduced by them as well as on their behalf on record alongwith their written submissions, my issue wise findings are as under:
ISSUES NO. : 1 AND 2
Issue No. 1: "Whether the defendant no. 1 is a tenant in respect of suit property under plaintiff no. 1 and 2 and defendant no. 2?" OPP Issue No. 2 : "Whether the plaintiffs are entitled to recovery of Rs.58,239/ as arrears of rent for the period from 04.08.2007 to 30.09.2008 @ Rs.7000/ per month from defendant no.1?"
OPP Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 8/38
14.Onus to prove these issues was upon the plaintiffs and in discharge of the same, plaintiff no.1 himself had appeared as his own witness and filed in evidence, his examinationinchief by way of affidavit Ex. PW1/A, wherein besides reiterating the factual contents of his affidavit on solemn affirmation, he had also placed and proved on record the following documents:
Power of Attorney executed by the plaintiff no. 2 in favour of the plaintiff no.1 as Ex. PW1/1 along with Notary acknowledgment issued by Notary Public at California as Ex. PW1/2; site plan prepared upon his instructions showing the disputed portion in red colour as Ex. PW1/3; the certified copies of judgment and order of Probate issued by Ld. District Judge, Delhi have been placed on record as Ex. PW1/4 and PW1/5 respectively along with certified copies of letter of administration and copy of Will as Ex. PW1/6;
certified copy of the petition for obtaining probate of the Will along with memo of parties as Ex. PW1/7; certified copies of the written statement along with affidavit as well as Vakalatnama as filed by wife of the defendant no. 1 in the probate proceedings have been placed on record as Ex. PW1/8 to PW1/10. Signatures of Smt. Antarjit Kaur were also stated to be recognized by PW1; copy of notice dated 09.04.2010 under Order 12 Rule 8 CPC sent to the defendant no. 1 through Ld. Counsel for the plaintiff as Ex.
PW1/11 along with its postal receipts Ex. PW1/12 and Ex.
PW1/13; certified copy of the Will dated 01.09.1978 executed by Maj. (Retd.) Prem Singh had been placed on record as Ex. PW1/14;
certified copy of the lease deed dated 12.02.2004 executed between the defendant no. 1 and the deceased mother of the plaintiff no. 1 as Ex. PW1/15; death certificate of Smt. Amrit Kaur as Ex.Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 9/38
PW1/16, whereafter the plaintiffs were stated to have become owners of the property by operation of law of succession as well as by virtue of the probate of the Will dated 01.09.1978 granted in their favour; copy of legal notice dated 28.12.2007, 26.05.2008 and 20.09.2008 have also been mentioned by the PW1 in his evidence and has placed on record the same as Ex. PW1/17 along with postal receipts Ex. PW1/18 and PW1/19.
15.During his crossexamination by Sh. Vijay Zaveri, Ld. Counsel for the defendant no. 1, it was admitted as correct by PW1 that the Will dated 01.09.1978 sought to be produced by the defendant no. 1 by virtue of notice Ex. PW1/11 was the same Will which was present in the probate file decided by the Court of Ld. District Judge. It was also admitted by him that he was neither a party nor a witness to the lease deed dated 02.03.2001 as well as 12.02.2004 executed between the defendant no.1 and late Smt. Amrit Kaur. Further, it had been admitted by him that last lease deed was due to expire on 28.02.2009 but before its expiry, Smt. Amrit Kaur had already expired on 04.08.2007. The witness had shown his ignorance regarding the Will dated 25.08.2006 executed by his late mother Smt. Amrit Kaur and had denied the suggestion as wrong that Smt. Amrit Kaur had executed any such Will bequeathing the entire ground floor in favour of her daughter Smt. Antarjit Kaur. Further, it was denied by him that after the death of Smt. Amrit Kaur, Smt. Antarjit Kaur had become absolute owner and landlady of the tenanted premises by virtue of the Will executed in her favour by Smt. Amrit Kaur however it was though admitted by him that after 28.02.2009, lease was never renewed any further. Witness was Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 10/38 stated to be familiar with the signatures of his deceased mother and had also identified the same at point A on each page of document Mark X. However, he had denied the suggestion that prior to the expiry of lease on 28.02.2009, the defendant no. 1 had already surrendered the tenancy in favour of Smt. Antarjit Kaur on 01.10.2008 and it was also denied by him that the rent for the period up to July, 2007 was paid by the defendant no. 1 to Smt. Amrit Kaur and thereafter, the rent up to September, 2008 stood paid by him to Smt. Antarjit Kaur. Further, it was denied by him that the defendant no. 1 was neither a tenant nor any rent was due from him. Witness had categorically stated that he was not in possession of any document to show that the defendant no. 1 had ever attorned in his favour or had accepted him as his landlord after the death of Smt. Amrit Kaur. Further, it was admitted by him that neither the defendant no. 1 had ever paid him any rent nor he had ever recognized him as landlord in respect of the tenanted premises. Further, it was denied by him that by virtue of Will Ex. PW1/14, Smt. Amrit Kaur had become absolute owner of the ground floor of the suit premises and as such she was fully competent to bequeath the same in favour of her daughter Smt. Antarjit Kaur or that the plaintiffs had no right, title or interest in respect of the suit premises. It had also been denied by him that neither he nor the plaintiff no. 2 was the owner or landlord in respect of the suit premises and hence, were not entitled to recover any rent. Lastly, it was denied by him as wrong that no amount was due either on account of principal or interest or that he was deposing falsely in a false case. Thereafter, plaintiff evidence was closed.
Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 11/38
16.The defendant no. 1 had appeared in defence evidence as his own witness and filed on record, his examinationinchief by way of affidavit Ex. DW1/A, wherein he had reiterated the factual contents of his written statement on his solemn affirmation and had stated that his mother in law Smt. Amrit Kaur had died on 04.08.2007 leaving behind Will dated 25.08.2006, whereby she had bequeathed the entire ground floor in favour of her daughter Smt. Antarjit Kaur, who had become owner and landlady of the suit premises after her death. It was also stated by him that the tenancy and possession had already been surrendered by him in favour of Smt. Antarjit Kaur on 01.10.2008 and rent for a period up to July, 2007 was paid by him to Late Smt. Amrit Kaur and thereafter, up to September, 2008, rent had been paid and settled with Smt. Antarjit Kaur being the owner and landlady of the suit premises and further, that he had never attorned or accepted the plaintiffs as his landlords after the death of Smt. Amrit Kaur nor he had ever paid any rent to them. Hence, there existed no relationship of landlord and tenant between the plaintiffs and the defendant no. 1 and as such the plaintiffs had neither any cause of action to file this suit against him nor they were entitled for recovery of any arrears of rent or any interest as claimed by them.
17.During his crossexamination by Sh. R.P. Sagar, Ld. Counsel for the plaintiffs, he had admitted the execution of lease Ex. PW1/15 as well as Will Ex. PW1/14. However, he had denied the suggestion put to him that under the said Will Ex. PW1/14, Late Smt. Amrit Kaur had only a limited right of ownership during her lifetime in respect of the ground floor of property No. C91, Defence Colony, Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 12/38 New Delhi and after her death, the plaintiffs no. 1 and 2 and the defendant no. 2 were supposed to inherit the ownership of the ground floor in the ratio of 40%, 20% and 40% respectively. It was further denied by him that Smt. Amrit Kaur had no right to further bequeath the ground floor to any other person as per the Will and as such Smt.Amrit Kaur had no right to execute the Will Mark X. Further, it was denied by him that his wife Smt. Antarjit Kaur had never become the owner/landlord of the ground floor of the said property and as such he had no business or right to surrender his tenancy in favour of Smt. Antarjit Kaur. It was however, admitted to be correct by him that Smt. Antarjit Kaur was his wife and was fully aware about the present case and even at times, she had attended the matter with him in the Court. Ground floor was stated to be occupied by one more tenant with whom his wife was dealing and even the rent was also used to be tendered by the said tenant to his wife by way of cheque. He had further denied the suggestion that it was the plaintiffs who were dealing with the said tenant or that the tenant was tendering the rent to the plaintiffs. DW1 was stated to have never given any notice either to the plaintiffs or to the defendant no. 2 at the time of surrendering of his tenancy as there was no necessity for the same. Lastly, he had denied the suggestion as wrong that he was liable to pay the suit amount or interest to the plaintiffs.
18.DW2 is one Sh. Uma Kant Joshi, UDC from the office of Sub RegistrarVII, INA, New Delhi, who had placed on record the Will dated 25.08.2006 executed by Smt. Amrit Kaur and registered with the office of Sub Registrar. The said Will has been placed on record Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 13/38 as Ex. DW2/1, exhibition of which was objected to by Ld. Counsel for the plaintiffs as to the mode of its proof.
19.During his crossexamination, the witness had stated that the said Will was not registered in his presence nor he had any personal knowledge about the case and he had only brought the summoned record in pursuance to the issuance of summons by the Court.
20.It is pertinent to point out here itself that though the Will dated 25.08.2006 had been exhibited on record as Ex. DW2/1 but mere exhibition of the document would not confer upon it the status of its proof as well as it had not been proved on record in terms of the requirement of the provisions of Section 68 of the Indian Evidence Act.
21.I have heard both the Ld. Counsels appearing for their respective parties and have also carefully gone through the written submissions filed by them on record. After appreciation of the pleadings as well as the evidence of the parties, the controversy has been narrowed down only to the extent of interpretation of Will dated 01.09.1978, which is exhibited as Ex. PW1/14, which was executed by the late father of the plaintiff no. 1 and 2 as well as fatherinlaw of the defendant no.1.
22.The interpretation is also restricted to the extent as to whether by virtue of the operation of said Will which was also duly probated, whether Smt. Amrit Kaur had acquired an absolute and permanent right of ownership therein or the same was restricted right during Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 14/38 her lifetime alone and not a permanent and absolute right in itself. If the answer to the first query is in affirmative, then the plaintiffs are out of the Court and have no right, title or interest to claim the rent from the defendant no. 1. However, if the answer to second query is in affirmative, then I have no hesitation in holding that the plaintiffs have got all the rights of recovery of user charges from the defendant no. 1 in their proportionate share in the property.
23.Now, so far as interpretation of the Will is concerned, it has been submitted by Ld. Counsel for the plaintiffs in their written submissions that it had been admitted by the defendant no. 1 during his examinationinchief as well as crossexamination that he was a tenant under his motherinlaw, Late Smt. Amrit Kaur, who had expired on 04.08.2007. Now the question that arose for consideration was as to whether after the death of Smt. Amrit Kaur, the ground floor including the tenanted premises of the house in question was inherited by the plaintiffs no. 1 and 2 and the defendant no. 2 as per the Will of Maj. (Retd.) Prem Singh Ex. PW1/14 or by Smt. Antarjit Kaur wife of the defendant no. 1 by virtue of the alleged Will Ex. DW2/1 stated to have been executed by Late Smt. Amrit Kaur. In this regard, it was submitted that the Will dated 01.09.1978 executed by late Maj. (Retd.) Prem Singh, which was exhibited as Ex. PW1/14 was duly probated and the certified copy of the judgment and order were placed on record as Ex. PW1/4 and Ex. PW1/5 as well as the certified copies of the letter of administration of Will which was exhibited as Ex. PW1/6. Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 15/38
24.In order dated 05.01.1987, the original judgment dated 18.12.1986 granting probate in respect of Will dated 01.09.1978 was modified in the following terms :
"Vide this Will, the deceased had clarified that ground floor of the house shall stand bequeathed to Smt. Amrit Kaur for life and on her death, the said ground floor shall stand bequeathed to Ajab Singh 40%, Rajender Singh 40% and Dibjyot Singh 20% and first floor to Maj. Rajender Singh and his wife Jasbir Kaur and second floor to Sh. Ajab Singh and his wife Smt. Ajit Kaur."
25.Since the aforesaid order was never challenged by any of the legal heirs of late Maj. (Retd.) Prem Singh, hence the same had become final and binding upon the parties including the wife of the defendant no. 1 and hence, now she could not be permitted to back out from the same as it was a judgment in rem. It was also submitted that vide this order, it had become abundantly clear that Smt. Amrit Kaur, late mother of the plaintiff no. 1 and the defendant no. 2 as well as grandmother of the plaintiff no. 2 had inherited the ground floor of the property during her lifetime and after her death, the same had been inherited by the plaintiffs and the defendant no. 2 in their respective proportionate shares as defined under the said Will, because in the matters of Will, it is always the subsequent clause that prevails upon the earlier ones and since the defendant no. 1 had been relying only on para no. 2 of the Will in total and utter disregard and ignorance of contents of paras no. 3, 4 and 8, which would make it abundantly clear that the pleas taken by the defendant no.1 were patently wrong and the plaintiff's claim had been correct.
Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 16/38
26.Para no. 8 of the said Will is also reproduced hereunder for the ready reference:
"I have three daughters named Harbhajan Kaur, Adarsh Kaur & Anterjit Kaur, who are all married and well settled in their in laws house. They have no rights, whatsoever, in my above property".
27.Hence, once it had become clearly an established fact that late Smt. Amrit Kaur was only the owner of ground floor during her lifetime, thus plaintiffs and the defendant no. 2 had inherited the said ground floor and had become joint owners of the same after her death and therefore, they were entitled to their shares of arrears of rent as was claimed by them in the plaint. So far as the documents which were permitted to be placed on record by the orders of Hon'ble High Court of Delhi vide order dated 12.07.2011 were concerned, it was submitted that those documents were executed or had come into existence on the basis of the alleged Will dated 25.08.2006 Ex. PW2/1. However, while placing reliance on the said Will, it had been completely ignored by the concerned Court that it was not proved as per the requirement of Indian Evidence Act because no attesting witness had been produced to prove the same as required under Section 68 of the Act. Further, the perusal of the aforesaid documents such as plaint, compromise application under Order 23 Rule 3 CPC, affidavits as well as decree sheet, had made it abundantly clear that it was a collusive suit and decree had been obtained by Smt. Antarjit Kaur against his sisters Smt. Harbhajan Kaur and Smt. Adarsh Kaur in collusion with each other and after playing a fraud upon the court and thus the plaintiff Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 17/38 therein was also guilty of suppression and concealment of material facts by not disclosing about the other legal heirs of late Smt. Amrit Kaur. The said suit was filed by her after institution of the present suit, which was instituted on 13.10.2008 whereas the aforesaid suit was filed on 10.08.2010 despite the fact that Smt. Antarjit Kaur was well aware about the judgment and orders of the probate Court Ex. PW1/4 and PW1/5 and also the proceedings of the present suit, about which she had complete knowledge as was also admitted by the defendant no. 1 himself during his crossexamination. The said Smt. Antarjit Kaur fraudulently and with ulterior motive and malafide intention had concealed the aforesaid facts in the aforesaid suit from the Court with a view to obtain a collusive decree in her favour.
28.Besides this, it is also pertinent to mention here itself that said Smt. Antarjit Kaur had not appeared as a witness in the present suit to support and corroborate the claim of her husband who is defendant no. 1 herein in respect of his surrender of tenancy in her favour as well as payment of arrears of rent to her.
29.In his written submissions filed on record, it has been contended by the defendant no. 1 that the respected fatherinlaw of the defendant no. 1 had bequeathed the ground floor and the residue to his wife in lieu of love and affection and the preexisting right of maintenance, to which she was otherwise also entitled being his wife. The ground floor of the property bearing no. 91, Defence Colony, New Delhi110024 hence, was the absolute property of defendant no. 1's motherinlaw by virtue of Section 14 of Hindu Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 18/38 Succession Act as the same was given to her in recognition of her preexisting right of maintenance and survival out of her husband's estate. She was, therefore, competent to deal with the property as per her wishes including bequeathing the same by way of Will dated 25.08.2006 in favour of the wife of the defendant no. 1. Legal position in this regard was summarized by him as under:
"As per section 14 of the Hindu Succession Act, any property possessed by a Female (Hindu) after the commencement of this Act, shall be held by her as full owner and not a limited owner.
Section 14 (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Section 14 (2) Nothing contained in subsection (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree 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.
1) The Legal Position in respect of the right of the female (Hindu) was laid down by the Supreme Court in V. Tulasamma V. Sesha Resddy (1977) 3 SCC 99, where in the legal consequences were summarized in para 62. 62 (1) says the Hindu Female's right to maintenance is not an empty formality Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 19/38 or an illusionary claiming conceded as a matter of grace and generosity, but is a tangible right against property which flows from a spiritual relationship between 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 property, the female has the legal right to be maintained there from. 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 preexisting right so that any transfer, declaring or recognizing such a right does not confer any new title but merely endorses or confirms the preexisting rights.
In Shakuntla Devi vs. Kamla (2005) 5 SCC 390 in para 6, the Hon'ble Supreme Court held that "Relying upon judgment of this court in the case of V. Tulasamma Vs Sesa Reddy holding inter alia, that though the suit property was given to the wives of Hirday Ram as limited owners but in view of Section 14 (1) of the Hindu Succession Act, 1956 Uttamdassi became the absolute owner of the suit property and had the right to alienate the same by way of sale, gift, or Will.
Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 20/38 The said judgment was also followed in the case of Santosh & Ors. Versus Saraswati Bai and Anr. (2008) (1) SCC 465 (para 15 & 16). In the said judgment Hon'ble Supreme Court had held that property given to a female (Hindu) towards her maintenance after the commencement of the act, she becomes the absolute owner thereof, the moment she is placed in the possession of the said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award where under the property is given to her. This proposition follows from the words of Section 14 (1), which insofar as is relevant read: any property possessed by a female Hindu .... after the commencement of this Act shall be held by her as full owner and not a limited owner. In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession.
Section 14 (2) is confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where the property acquired by Hindu female in lieu of her right to maintenance, inter alia, it is in virtue of a pre Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 21/38 existing right and such an acquisition would not be within the scope and ambit of Section 14 (2) even if the instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property.
In the light of aforesaid citations, it was further submitted that it was pertinent to mention here that Smt. Amrit Kaur, had executed a Will dated 25.08.2006 (Mark X and Ex. DW2/1) in favour of Smt. Anerjit Kaur (wife of the Defendant No.1) and that Smt. Amrit Kaur had died on 04.08.2007, thereafter Smt. Anterjit Kaur (wife of the Defendant no. 1) had also in order to execute the Will dated 25.08.2006, Smt. Anterjit Kaur (wife of the Defendant no. 1) had also tried to pay both her sisters i.e. Smt. Harbajan Kaur and Smt. Adarsh Kaur a sum of Rs. 5,00,000/ each on several occasions. Thereafter, the wife of Defendant no. 1 had also filed a Suit in the Court of Civil Judge, Saket Court bearing Suit no. 447 of 2010 for declaration and permanent injunction, declaring that the Smt. Anterjit Kaur (wife of Defendant no. 1) shall become the absolute owner of the entire ground floor of the property bearing no. C91, Defence Colony, New Delhi after payment of Rs.5 lacs to both her sisters namely Smt. Harbajan Kaur and Smt. Adarsh Kaur. That the said suit bearing no. 447/2010 was decreed in favour of Smt. Anterjit Kaur (wife of Defendant no. 1) vide Decree and Order dated 18.12.2010 and Smt. Anterjit Kaur (wife of Defendant no.1) had been declared as the absolute owner of the Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 22/38 Ground Floor of the property bearing no.C91, Defence Colony, New Delhi.
Further it was pertinent to mention that this Hon'ble Court vide order dated 24.07.2009 had observed that the present suit was a simplicitor suit for recovery of rent wherein relationship of landlord was denied by the defendant no. 1.
Secondly by virtue of Will dated 25.08.2006 Smt. Anterjit Kaur had become the owner of the Suit Property.
Thirdly vide order and decree dated 18.12.2010 Smt. Anterjit Kaur had been declared as owner of the suit premises. In this circumstance, it was necessary for the plaintiffs herein to have filed firstly suit for declaration as to who was the rightful owner of the premises and then suit for recovery of rent."
30.Besides filing of these written submissions, the parties have also relied upon the judgments and citations in their favour as well which are discussed separately hereunder:
Citations Relied upon by the Plaintiffs:
(1). Kaivelikkal Ambunhi (dead) by LRs. And others V. H. Ganesh Bhandary, AIR 1995 SC 2491, wherein the Hon'ble Supreme Court had held as under:Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 23/38
"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 Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which intererst in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the 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 an earlier occasion. Undoubtedly, it is the last Will which prevails.
4. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim "cum duo inter se pugnantia reperiuntur in testamento ultimum ratum 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, provide 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
(i). The testator by the first clause of his will leaves his estate of Ramnagar "to A", and by the last clause of his Will leaves it "to B and not to A", B will have it.Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 24/38
(ii). If a man at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for benefit of B, the latter disposition will prevail."
(2). Sadhu Singh vs. Gurdwara Sahib Narike & Ors. 2006 (4) RCR (Civil) 468, wherein the Hon'ble Supreme Court had held as under:
"Construction of Will - If it is not possible to harmonize various clauses of Will, it will be last clause that will prevail over the former and giving way to intention expressed therein.
A. Hindu Succession Act, 1956, Sections 30, 14 (1) and 14 (2) - Will by a person in respect of properties of which he was absolute owner - Will stipulated that after his death his wife so long as she remains alive will be the absolute owner of all his properties and after her death, the rights over the property would be inherited by his two nephews - Testator added in the Will that she will not be entitled to mortgage or sell the properties during her life time - Held, wife acquired only life estate - Wife donated the property to Gurdwara - Donation is not valid - Decree for eviction of Gurdwara passed.
C. What the court has to attempt is a harmonious construction so as to give effect to all the terms of the Will if it is in any manner possible - While attempting such a construction, the rules are settled - Unlike in the case of a transfer in praesenti wherein the first clause of the conveyance would prevail over anything that may be found to be repugnant to it later, in the case of a Will, every effort must be made to harmonize the various clauses of Will and if that is not possible, it will be last clause that will prevail over the former and giving way to the intention expressed therein." (1964) 2 SCR 722 relied upon.Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 25/38
H. Hindu Succession Act 1956, Sections 14 (1) and 14 (2)
- Property possessed by a Hindu female - Any acquisition of possession of property (not right) by a female Hindu after the coming into force of the Act, cannot normally attract Section 14 (1) of the Act - It would depend on the nature of the right acquired by her - If she takes it as an heir under the Act, she takes it absolutely - If while getting possession of the property after the Act, under a devise, gift or other transaction, any restriction is placed on her right, the restriction will have play in view of Section 14 (2) of the Act."
(3). S.P. Chengalvaraya (D) vs. Jaganath (D), 1994 RLR (SC) 102, wherein the Hon'ble Supreme Court had held as under:
"If a party withholds vital document to deceive and cheat to secure unfair gain and advantage then it is fraud on the Court and opponent and decree obtained is a nullity. A party is bound to produce all relevant documents. Unscrupulous persons are abusing Courtprocess using it as a lever to retain illegal gains. A person whose case is based on falsehood can be summarily thrown out at any stage of litigation. Rules cannot be reduced to absurdity to become engine of fraud by dishonest litigants".
4. G M(OSD), BN Cotton Mills Vs. Bharat Lal, 2011 RLR (NSC) 7, wherein the Hon'ble Supreme Court had held as under:
"Civi P C. O. 6 R. 14A1 if a person does not give his correct address and conceals same mala fide then he is not entitled to any relief. When Supreme Court discovers this and finds claim to be false, his success in 3 Courts below is set aside."
5. Mrs. Vijaya Gursahaney vs. DDA & Ors. 1994 RLR (DB) 367, wherein the Hon'ble High Court of Delhi had held as under: Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 26/38
"DDA claim for unearned income from a legatee of lessee's will is not maintainable if legatee obtains Letters of Administration from Distt. Judge under Succession Act. Grant of Letters is a Judgment in rem."
6. Jagan Singh (Dead) Through LRs vs. Dhanwanti and Anr., Civil Appeal No. 2467 of 2005, wherein it has been held by Hon'ble Mr. Justice H.L. Gokhale in his judgment dated 19.01.2012 that;
"In Amar Singh (supra) this Court explained an earlier judgment Ramji Dixit Vs. Bhirgunath reported in AIR 1968 SC 1058. In that matter after the death of the owner, the land had devolved upon his wife as a Hindu widow's estate. A dispute arose about the alienations effected by her, and it was held that undoubtedly she had the right to alienate. But as can be seen, in that matter the estate had devolved by inheritance, and not by will. That is why in para 8 of Amr Singh (Supra) this Court specifically observed that the facts in Ramji Dixit were quite distinguishable. Besides, as held by this Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745, a widow who succeeds to the property of her deceased husband on the strength of his will, cannot claim any right other than those conferred by the will. Thus life estate given to her under a will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act, 1956."
7. Similarly reliance has also been placed on Ram Dass, Chela of Late Mahant Net Ram Vs. Thakurdwara Radha Krishan (Regd. Soc.) 173 (2010) DLT 549, wherein the Hon'ble High Court of Delhi had held as under:
Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 27/38
"(iii) Succession - Probate - Decision of a Probate Court is a judgment in rem - A probate granted by the competent Court is conclusive of the validity of such a Will until it is revoked; no evidence can be admitted to impleach it except the proceedings demanding revocation of the Will." AIR 1984 SC 1866 Rukmani vs. Narender Lal, (Relied upon).
8. Anoop Kaur and another vs. Anup Singh Grewal AIR 2003 Punjab and Haryana 241, wherein the Hon'ble Punjab and Haryana High Court had held as under:
" .... Succession of female heirs - Terms of Will stating that after death of testator, his wife would be sole owner of property who will have no right to alienate property and that entire responsibility of bringing up, education and marriage of his minor daughters would be on her and after her death their son would be the absolute owner of all the property - Wife of testator thus, had limited right in property till her lifetime - Question of ripening the said limited estate into full ownership under S. 14 (1) does not arise. (Para 11).
9. Ramrameshwari Devi and Others vs. Nirmala Devi and Others, (2011) 8 SCC 249, wherein it has been held by Hon'ble Apex Court that Courts should scrutinize, check and verify pleadings and documents filed by parties immediately after filing of pliant. It should prepare a complete schedule and fix dates for all stages of suit at the time of filing of plaint.
10. Rajasthan Financial Corporation Vs. Pukhraj Jain and Others, AIR 2001 Rajasthan 71 (Jaipur Bench) wherein it was held that filing of an application U/O 13 Rule 2 CPC after arguments were over was not permissible as there was no stage in between closure of case for judgment and pronouncement of judgment. Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 28/38 However, judgments cited at Sl. no. 3, 4, 6 and 7 above are not relevant for the purpose of decision of issues in hands. Citations Relied upon by the Defendants:
(1). V. Tulasamma and Ors. Vs. Sesha Reddy (Dead) by Lrs., (1977) 3 SCC 99, wherein the Hon'ble Supreme Court had held as under:
"27. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidence and characteristics of a Hindu woman's right to maintenance:
(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;
(2) though the widow's right to maintenance is not a right to property but is is undoubtedly a preexisting right in property, i.e. it is a jus and rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court:
(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance:Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 29/38
(4) that the right to maintenance is undoubtedly a preexisting right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946 and is, therefore, a pre existing right:
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of coowner in the property of her husband, though her co ownership is of a subordinate nature: and (6) that where a Hindu widow is a possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to property or purchases the same is in a position to make due arrangements for her maintenance."
(2).Similarly reliance has also been placed by the defendant on Shakuntla Devi Vs. Kamla and Others , (2005) 5 SCC 390, wherein the Hon'ble Supreme Court had held as under:
"...........declaratory decrees obtained by appellantplaintiff to the effect that reversionary interest in suit property vested in her, could not operate as res judicata against the respondent defendants, in possession of the suit property since both declaratory decrees could be assailed by the defendant as being contrary to the ruling in Tulasamma case, (1977) 3 SCC 99 - Hence in the suit for possession the appellantplaintiffs could not rely on the said declaratory decrees - Specific Relief Act, 1963 - S. 35.
B. Hindu Succession Act, 1956 - Ss. 14 (1) and 14 (2) - Relative scope - Hindu wife, U, bequeathed life interest only in suit property for her maintenance by Will - Applicability of S. 14 (1) - Held, following Tulasamma case, (1977) 3 SCC 99, by virtue of S. 14 (1), the limited right (the life interest) obtained under the Will of her husband by the wife, U, got enlarged to an absolute right in the suit property.Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 30/38
3. Santosh and Others vs. Saraswathibai and Another (2008) 1 SCC 465, wherein the Hon'ble Supreme Court had held as under:
"S. 14 (2) is confined to cases where a limited or restricted estate is acquired by a female Hindu for the first time as a grant without any preexisting right - Where property is acquired by a Hindu female in lieu of her right to maintenance, it is in virtue of a preexisting right - Where her right as a co owner by virtue of provisions of the Act is crystallized such acquisition would fall under S. 14 (1) and not S. 14 (2), even if the instrument, decree, order or award allotting or recognizing the acquisition of the property prescribes a restricted estate in the property - Hindu Adoptions and Maintenance Act, 1956 - Ss. 18 and 19.
4. Beni Bai Vs. Raghubir Prasad, (1999) 3 SCC 234, wherein the Hon'ble Supreme Court had held as under:
" .... Subsection (1) would apply where the Hindu widow was given a limited right to property in recognition of her pre existing right to maintenance - Position not affected by the fact that such right was recognized in a will so where the widow had entered possession pursuant to the Will, subsection (2) of S. 14 was not applicable - Will executed by owner of a house conferring on his wife life interest in the house in lieu of her maintenance after his death and conferring on respondent full ownership of the house after death of the widow - After death of the testator in 1943 his widow entering into possession of the house for her lifetime and in 1962 she executing a gift deed in respect of the house in favour of her daughter (appellant) - Respondent filing suit for declaration that the gift deed was invalid and illegal - Held, the widow having possessed the house in lieu of the preexisting right, she became an absolute owner under subsection (1) and the gift deed executed by her was valid - Subsection (2) not attracted -Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 31/38
Hindu Women's Rights to Property Act, 1937 - Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946.
5. Kikiben & Ors Vs. Balvantlal Shivlal (dead) by LRs and Ors. 2000 (1) SCALE 357, wherein the Hon'ble Supreme Court had held as under:
" .... Will giving life interest to wife and absolute interest in favour of his brother - Testator died in 1959 - Will probated jointly by widow and his brother as Executors under the will - Claim of daughters of test - Whether daughters can have any claim or right in suit properties as legal heirs of deceased mother - Held, Yes - Mother (widow) got the properties absolutely notwithstanding a limited interest under the will, as per Sec. 14 (1) of the Act - Argument that widow, having participated in probate proceedings, must be deemed to have alienated her right in that property, not acceptable - in probate proceeding the right, title or interest in immovable properties cannot be decided - Only right to administer properties is settled in probate proceedings - High Court was not justified in holding that on facts of this case Sec. 14 (2) will apply, it being contrary to decision of this Court. (Para 6).
6. Talat Parveen Naqvi vs. Delhi Development Authority and Anr. MANU/DE/4520/2009, wherein the Hon'ble High Court of Delhi had held as under:
"The plaintiff obtained Probate of this Will in her favour. It is settled law that Probate Court only determines genuineness of the Will. Grant of Probate does not confer any title on the person in whosoever favour Probate is granted."Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 32/38
7. Ravi Khanna Vs. Pankaj Khanna & Ors. 152 (2008) DLT 484, wherein the Hon'ble High Court of Delhi had held as under:
" ..... It is settled law that probate Court has jurisdiction to determine about the genuineness of the Will and whether the petitioner who applied for the probate was entitled to grant of probate of the Will or not. The order of the Probate Court does not decide as to title of the property mentioned in the Will and whether or not a testator had a right to bequeath the property by way of a Will or not."
8. Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others, (2008) 4 SCC 300, wherein the Hon'ble Supreme Court had held as under:
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
9. Ishwardeo Narain Singh vs. Sm. Kanta Devi and Ors. AIR 1954 SC 280, wherein the Hon'ble Supreme Court had held as under:
"The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court."Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 33/38
31.The ratio and crux of the last four judgments relied upon by the defendant no. 1 is that granting of probate does not confer any right, title or interest upon the person in whose favour the testator had bequeathed the properties by way of Will and what it actually determines is the genuineness of the will.
32.If the legal position as emerging out of these citations as had been relied upon by both the sides is examined from this aspect then there remains no doubt in one's mind in holding that though grant of probate only determines genuineness of a Will declared so by a Court of competent jurisdiction and does not confer any title upon a person in whose favour the probate was granted but simultaneously one must also not loose sight of the fact that since the probate order dated 18.12.1986 as well as its clarificatory order dated 05.01.1987 in respect of the will dated 01.09.1978 executed by late Major (Retd.) Prem Singh had remained unchallenged and thus had become final, wherein it was held that the ground floor of the property was bequeathed to Smt. Amrit Kaur by way of the aforesaid Will for her life only and upon her death it was to be devolved upon the plaintiffs and the defendant no. 2 in respective proportion as mentioned in the said Will.
33.So far as the question relating to interpretation of the various clauses of the Will is concerned, I may draw support in this regard from the ratio of the case AIR 1995 (Supra) that in case of any discrepancy or dispute interse within the clauses of a will, the later one shall prevail upon the earlier ones. Hence, if in the light of aforesaid ratio, the Will Ex. PW1/14 is examined, then it becomes absolutely clear that besides conferring a restricted and limited Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 34/38 right to Smt. Amrit Kaur to derive the benefits of the property i.e. ground floor, it was clarified further by testator in para 8 of the Will that since all his three daughters including the wife of the defendant no. 1 were married and well settled in their inlaws home, hence, they had no right in the aforesaid properties which clearly goes to show that late Maj. (Retd.) Prem Singh never wanted to confer absolutely any right, title or interest in his aforesaid property up on either of his daughters either directly or indirectly and it is the settled proposition of law that once a person cannot do a thing directly then same cannot be done by him even indirectly as well.
34.So far as the contention of the defendant supported by the law on the subject relating to the applicability of Section 14 (1) and Section 14 (2) of Hindu Succession Act is concerned, though it has been stated that where the property has been granted to a female in recognition of her preexisting right of maintenance, then in all eventualities, the property in her hands even if it comes by way of an instrument in the form of a Will, gift deed or otherwise is concerned shall form her absolute property with powers to alienate the same. However, I am afraid that same is not the position as on date in view of judgment in Jagan Singh's case passed by Hon'ble Mr. Justice H.L. Gokhle (Supra), wherein Hon'ble Supreme Court has further clarified the legal position in this regard that where a widow has succeeded to the property of her deceased husband on the strength of a Will, then she cannot claim any other right then those confered upon her by the Will. Thus a life interest or an estate given to her under a Will cannot become an absolute estate under the provisions of Section 14 (2) of the Hindu Succession Act. Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 35/38
35. Further more, I have no hesitation in holding that it is not the case of the defendant no. 1 in the present case that apart from property bequeathed in favour of his deceased motherinlaw by late Maj. (Retd.) Prem Singh, she had no other means or resources to maintain herself because admittedly late Maj. (Retd.) Prem Singh was a retired army officer who must have got not only his retiral benefits but also was entitled to family pension to be paid to his widow after his death and it was not the case of the defendant no. 1 that she was not getting the family pension or was not enjoying the other retirement funds and benefits of her deceased husband so that the bequeathation of the property in her favour could have been regarded and considered as the only source of her preexisting right of maintenance.
36.Accordingly, in view of the law cited at bar by both sides, I have no hesitation in holding that upon an harmonious construction of the clauses of the Will, late mother of the plaintiff no. 1 and the defendant no. 2 as well as grandmother of the plaintiff no. 2, late Smt. Amrit Kaur had only acquired a life estate and interest and not an absolute interest in the property in question which was bound to revert back to the plaintiffs as well as the defendant no. 2 as per their respective proportionate shares in the same after her death.
37.Since after the death of late Smt. Amrit Kaur, the property was bound to revert back to the plaintiffs and the defendant no.2, hence, the defendant no. 1 who was in occupation, possession and enjoyment of the property as well was also required to pay them the Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 36/38 occupation and possessory charges for enjoyment of the property under his occupation and possession which he had miserably failed to do in the present case. Once the contents of the Will left by late Maj. (Retd.) Prem Singh were well within the knowledge of the defendant no.1 as well, then the question of his executing any attornment in favour of the plaintiffs does not arise at all and he cannot escape from his liabilities by taking this plea any further.
38.Since the plaintiffs have claimed the occupational charges/recovery of rent from the defendant no. 1 at the pre existing rate of Rs.7,000/ per month as was paid earlier by him to Smt. Amrit Kaur. Hence, even the said claim of the plaintiffs cannot be held as arbitrary or excessive.
39.Accordingly, both the issues are hereby decided in favour of the plaintiffs and against the defendant no. 1 and it is hereby held that without commenting upon the right, title, interest or status of the plaintiffs, they were entitled to recovery of Rs.58,239/ as arrears of rent for the period commencing from 04.08.2007 to 30.09.2008 the defendant no. 1 who had become their tenant by virtue of Will Ex. PW1/14 after the death of Smt. Amrit Kaur.
ISSUE NO : 3.
"Whether plaintiffs are entitled to pendente lite and future interest @ 9% per annum on the suit amount?" OPP Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 37/38
40.In view of my findings to issues no. 1 and 2 as given herein above, I further hold that upon the said arrears, the plaintiffs are also entitled to recover pendente lite and future interest from the defendant no. 1 @ 9% per annum, which does not appear to be on a higher side because the banks today are normally awarding an interest of more than 10% to the Senior Citizens on their fixed deposits. Accordingly, all the issues are hereby decided and answered in favour of the plaintiffs and against the defendant no. 1. RELIEF :
41.In view of my aforesaid findings a decree for recovery of Rs. 58239/ along with pendente lite and future interest thereon @ 9% per annum from the date of institution of the suit till its realization is hereby passed in favour of the plaintiffs and against the defendant no.1. Plaintiff shall also be entitled to costs of the suit
42.Decree sheet be prepared accordingly.
43.File be consigned to Record Room.
Announced in the open Court today the 17th April, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 17.04.2012 Suit No. 2316/08 Col. Rajender Singh vs Simran Singh Page No. 38/38