Delhi High Court
Mrs. Madhu Kohli And Anr. vs Mr. Suresh Khattar And Anr. on 30 January, 2006
Equivalent citations: 128(2006)DLT117
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The plaintiff have filed a suit for partition, possession, recovery of damages for use and occupation, recovery of rent and permanent injunction in respect of property bearing No. B-3/17, Vasant Vihar, New Delhi. The property was owned by Mr.Hans Raj Khattar. Sh. Hans Raj Khattar was married to Smt. Kaushalya Rani Khattar and from the wedlock three children were born - two daughters and a son. The plaintiff no.1 and defendant no.2 are the daughters while defendant no.1 is the son. The plaintiff no.2 is the son of plaintiff no.1
2. Sh. Hans Raj Khattar passed away on 30.10.1990 and prior to his demise had executed a Will dated 16.06.1989. It may be noticed that there is no dispute about this Will, and in fact, probate in respect of this Will has already been granted by consent of all the legal heirs. Mrs Kaushalya Rani Khattar, his wife, passed away subsequently on 13.10.1998.
3. Sh. Hans Raj Khattar, as stated above, was the exclusive owner of the property bearing No. B-3/17, Vasant Vihar, New Delhi and in pursuance to the perpetual sub lease deed dated 20.05.1969 executed in his favor by the President of India with Government Servants Cooperative House Building Society Limited as its lessee.
4. In terms of the Will, the property in question was bequeathed to his wife Smt. Kaushalya Rani Khattar only for life and thereafter to plaintiff no.1 and defendant no.1 specifying the portions bequeathed to them.
5. Since the controversy arises between the parties on the interpretation of the Will, it would be necessary to re-produce the relevant portion of the Will:
4...
House No B-3/17, Vasant Vihar, New Delhi To my dear wife Smt.Kaushalya Rani for her life without any power of alienation and after her death to my dear daughter Madhu Kohli and dear son Suresh Khattar and my grandson Apoorva in the manner stated below:-
a) The ground floor comprising drawing/dining room, 3 bed rooms, 3 bathrooms, kitchen, one pooja room, garage, servant quarter on first floor of the garage total built up area about 2000 square feet to Shri Suresh Khattar.
b) The entire first floor comprising 2 bed rooms, 2 bathrooms, a wide verandah, a sitting room and a kitchenette - total built up area about 900 square feet to my daughter Madhu and her son Apoorva.
(c) Madhu and her son Apoorva shall have the right to make additional construction on the unbuilt portion of the first floor which is at present being used a terrace at her discretion.
5. Residual - to my dear wife Smt. Kaushalya Rani Khattar absolutely.
6. My daughter Kamlesh Saluja and my dear son in law Shri Rajinder Mohan Saluja are very well placed in life. But as a gesture of my love and affection towards them I give Rs 2,000/- each out of the balances of my bank account and other assets.
6. Mrs. Kaushalya Rani Khattar, prior to her death, also executed a Will dated 02.03.1993 which was duly registered. Smt. Khattar was staying with her daughter, plaintiff no.1. Plaintiff no.1 was staying in the house as she had strained relations with her husband and who had also subsequently passed away. It may be noticed that broadly in terms of the said Will, late Smt. Kaushalya Rani Khattar had bequeathed everything to plaintiff no.1. The relevant portion of the Will is as under:
1. I had besides other assets inherited one and a half storeyed property no B-3/17, Vasant Vihar, New Delhi-57 on the death of my husband, late Shri Hans Raj Khattar,who expired on 30.10.1990.
2. The first floor of my house no B-3/17, Vasant Vihar, New Delhi is at present being used by myself and my daughter Mrs. Madhu Kohli for residence. After my death the entire first floor shall become the exclusive property of my daughter Mrs. Madhu Kohli and her son Master Apoorava Kohli. Also the terrace of the first floor ( i.e. the roof of the first floor) shall be exclusive property of Mrs.Madhu Kohli and Apoorva Kohli to the exclusion of all my other children.
7. It is stated in the plaint that defendant no.1 was earlier residing separately in a rented accommodation, and at his request, was permitted to reside in part of the first floor. Sh. Khattar, however, refused to vacate the said portion. The ground floor portion was rented out which was vacated on 02.04.1999 and defendant no.1 is stated to be in possession of the said premises.
8. It is the stand of the plaintiffs that in terms of the two Wills, plaintiffs are the exclusive owners of the terrace rights i.e. roof of the first floor and roof of the servant quarter built on the property. In the alternative, a plea has been raised that the roof of the first floor and of the servant quarter should be owned jointly by the plaintiffs, defendant no.1 and defendant no.2 in three equal shares by the Law of Succession.
9. Defendant no.1 has contested the suit and the stand of the said defendant is that since the late Kaushalya Rani Khattar had a life interest, there could be no question of her bequeathing any portion of the immoveable property which would devolve in terms of the Will of late Sh. Hans Raj Khattar. It has been alleged that there is collusion between the plaintiffs and defendant no.2 so that the plaintiffs can claim a higher share in the roof rights even though defendant no.2 has not been granted any rights in the property in question.
10. On 10.08.2005, when the suit was listed before the court, it was stated by learned counsel for the parties that there was no dispute insofar as the execution of the Will dated 16.05.1989 was concerned whereby the ground floor of the property was bequeathed to defendant no.1 while the first floor with rights to construct on the terrace were given to the plaintiffs. Thus the only dispute was in respect of right for further construction and whether the terrace rights would include the roof rights. This was stated to be only a question of interpretation of the Will dated 16.05.1989. The counsel for the plaintiffs stated that in order to settle the matter, it could be agreed that the terrace rights do not form a part of the will and would consequently devolve on all the three legal heirs, plaintiff no1, defendant no.1 and defendant no.2. The settlement however could not be worked out. A probate petition was being considered along with the suit and the parties agreed to grant of probate of the Will dated 16.05.1989 since there was no dispute about the execution and the authenticity of the Will.
11. On 20.09.2005, learned counsel for the parties agreed that no oral evidence was required and the matters in issue could be decided on the basis of the interpretation of the Will.
12. It may be noticed that the issues were originally framed on 14.08.2002, but learned counsel for the parties stated that issues needed to be recast in view of the subsequent developments since a number of matters were not being pressed and the dispute was being restricted. Thus, the issues were reframed as under:
i)Whether the plaintiffs are exclusively entitled to the roof rights of the suit property B-3/17, Vasant Vihar. In view of the residual clause no (v) of the last Will and testament of the deceased Sh.Hans Raj Khattar dated 16.05.1989 read with Will of Mrs Kaushalaya Rani Khattar dated 02.03.1993? OPP
ii) If issue no.1 is decided against the plaintiffs, whether defendant no.2 is entitled to any share in the roof rights of the property? OPD-2
iii) To what shares are the parties entitled to in the suit property and to which portion thereof? Onus on parties.
iv) Relief.
13. On the said date, once again, learned counsel for the parties agreed that it was not in dispute that the ground floor and the servant quarter on the first floor would vest absolutely with defendant no.1 while the entire first floor including the right to construct on the unconstructed portion of the first floor vested with the plaintiffs.
14. Learned counsel for the parties advanced submissions and I have given a thoughtful consideration to the same.
ISSUE NO.1 :
15. First issue arises from Clause 4 of the Will dated 16.05.1989 which has been re-produced hereinbefore. A bequeath of late Sh. Hans Raj Khattar in favor of Smt. Kaushalya Rani Khattar in respect of the house in question was only for her life time. None of the parties dispute this fact nor do they claim that Smt. Kaushalya Rani Khattar acquired any higher rights than a life time right without any power of alienation as set out in the Will. Once this position is accepted, there can be no dispute about the fact that Mrs.Kaushalya Rani Khattar would not be in a position to bequeath any portion of the property as she had no power of alienation. In terms of the Will of late Mr.Hans Raj Khattar after the life time of Smt. Kaushalya Rani Khattar, the mode and manner of division of the immoveable property has been specified. There is no dispute that the ground floor of the property vests absolutely with defendant no.1, his son, as also the servant quarter on the first floor of the garage with a total built up of about 2,000 square feet. The entire first floor with the built up area of about 900 square feet vests with the plaintiffs. The plaintiffs have also been given the right to make additional construction on the unbuilt portion of the first floor which was being used as a terrace.
16. There is no mention of the terrace or roof rights or as to how the same should devolve. It was not even possibly conceived by the testator as to what would be the position of the further permissible floors.
17. The plaintiffs have placed reliance on a residual clause 5 whereby all that had not been provided for in the Will was bequeathed absolutely to late Smt. Kaushalya Rani Khattar. On the other hand, learned counsel for defendant no.1 submitted that when only life interest was created in favor of Smt. Kaushalya Rani Khattar in respect of the whole property, there could not be a question of any residual portion of the property remaining whereby residual clause 5 would come into operation. The plaintiffs have contended so since the Will of Smt.Kaushalya Rani Khattar has bequeathed terrace rights in favor of the plaintiffs and the right to make such a bequeath is being claimed on the basis of the residual clause no.5. Learned counsel for the plaintiffs referred to the judgment in Elizabeth v. Sutherland; AIR 1935 Rangoon 71 to advance the proposition that a residuary bequeath of personal estate carries not only everything not disposed of, but everything that in the event turns out not to be disposed of.
18. I am unable to accept the contention of the learned counsel for the plaintiffs for the reason that the testator late Sh.Hans Raj Khattar had made it extremely clear that insofar as the immoveable property is concerned, his wife Smt.Kaushalya Rani Khattar would have life interest in the property. Insofar as her life interest is concerned, no segregation has been made in respect of the ground floor, the first floor or the second floor. The question of further bequeath or the manner of devolution is to arise only after the life time of Smt. Kaushalya Rani Khattar. Smt. Kaushalya Rani Khattar had a life interest in the whole of the plot along with the structure thereon. Such right was 'without any power of alienation'. This being the position, there can be no occasion for any portion of the property devolving in terms of the residual clause.
19. Issue no.1 is thus answered against the plaintiffs.
ISSUE NO.2 & ISSUE NO.3
20. In view of issue no.1 being answered against the plaintiffs, the second issue arises as to the manner of the division of the roof rights and as to whether the defendant no.2 would have any share in the same.
21. The contention of the learned counsel for the plaintiffs was that the roof rights were never in contemplation of the testator while making the bequeath in favor of the plaintiffs and defendant no.1 which would come into operation after the demise of Smt.Kaushalya Rani Khattar. This plea was naturally in the alternative to the plea advanced in respect of issue no.1. It was thus the contention advanced on behalf of the plaintiffs that the roof rights or the right to any further construction would have to go by the Law of Succession. Defendant no.2 naturally supports this stand.
22. On the other hand, learned counsel for defendant no.1 initially sought to contend that the roof rights must be divided in the same proportion as the constructed area existing on the property, but could not seriously advance the contention in view of the nature of the Will. Thus the real contention advanced was that both the plaintiffs and defendant No.1 would inherit the roof rights in equal proportion to the exclusion of defendant no.2. This plea is advanced on the basis of the Will dated 16.05.1989 as it is contended that the intention of the testator has to be seen which was clear and the testator was not desirous of any portion devolving on defendant no.2. The disinheritance of defendant no.2 is not claimed on the basis of any strained relations, but on account of the fact that defendant no.2 was well placed. Sub para (d) of Para 4 of the Will records that the testator had taken a loan from the husband of defendant no.2 for construction of the house and a small amount had remained unpaid at the stage of execution of the Will as the rent was being repaid in Installments. The balance amount of the loan, if any, was to be paid by Smt. Kaushalya Rani Khattar out of the income from the property.
23. Learned counsel for defendant no.1 referred to the Judgment of the Supreme Court in Navneet Lal. v. Gokul; AIR 1976 Supreme Court 794 where the principles of construction of a Will were set out. It was observed in Para 8 as under:
8. From the earlier decisions of this Court the following principles, inter alia, are well established:-
(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. (Ram Gopal v. Nand Lal, 1950 SCR 766 at p.772 = ( at page 141).
(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 Gnanambal Ammal v. T. Raju Ayyar, ).
(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 contradictory (Raj Bajrang Bahadur Singh vs. Bakhtraj Kuer) .
(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 court will look at the circumstances under which the testator makes 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 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 favor of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das), ).
(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 and 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 (Ramachandra Shenoy v. Mrs. Hilda Brite ).
24. Learned counsel referred to the judgment of the Supreme Court in Lachman Singh v. Raja Ram Singh; . The dispute related to bequeath made of bhumidari rights and the suits were filed under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. It was observed as under:
4.Decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd.; Ram Prakash v. Mohd. Ali Khan; Vidya Sagar v. Sudesh Kumari and Jamshed Jahan Begum v. Lakhan Lal were brought to our notice explaining the nature of rights arising out of Section 18 of the Act. It was again pointed out that what is disposed of by the will is not the zamindari rights but the entire property of Arjun Singh which would include bhumidhari right. It has also been brought to our notice that Section 90 of the Indian Succession Act, 1925 should also be adopted in considering the Act. The contention on behalf of the appellants is that though the will had been executed, it is only in respect of zamindari haq which stood extenguished on the commencement of the Act and, therefore, the will could not affect the rights arising under the Act and, therefore, the view taken by the Additional Commissioner and the Board of Revenue stands to reason in preference to that of the High Court.
5. In construing a will, the principle enunciated in Section 90 of the Indian Succession Act is relevant. Where a property is bequeathed in generic and may increase, diminish or otherwise change during the testator's life so that the description may from time to time apply to different amounts of property of like nature or to different subjects, then the effect of the section is that the property answering the description at the death of the testator passes under the will unless contrary intention is shown.
6. The will became operative only on the death of Arjun Singh in 1958. Therefore, on that date, whether the will could have been executed by Arjun Singh and what right could flow there from has to be seen. It is not in dispute that under Section 18 of the Act, Arjun Singh became bhumidhar of the lands in question. A bhumidhar is enabled under Section 169 of the Act to make a will and bequeath his holding or any part thereof and general order of succession provided Under Section 171 is subject to Section 169 of the Act. the will executed by Arjun Singh, as far as the portion relevant for our purpose is concerned, reads as follows:
After my death, however, my all properties whether moveable or immoveable i.e. haquait zamindari and a residential house kachha and a gonda kacha will devolve on my wife Mrs Raj Kumari, d/o Gajaidhar Singh Thakur, resident of Baderi mentioned above who would enjoy its ownership under the provisions of the will, and after her death my above daughter Mrs Bitto, resident of above Badera willenjoy ownership rights over the properties of the will throughout her life, after her death my family heirs will succeed to the properties under the will.
(emphasis supplied)
25. Learned counsel for defendant no.1 finally referred to the judgment of the Full Bench of this Court in Major General Rajinder Singh Chowdhary v. S.Manjit Singh Chowdhary & Ors; 2000 VII AD (DELHI) 1157. It was observed in Para 8 as under:
What is the intention of the testator has to be found out on a reading of the Will and there cannot be any hard and fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation. The true intention of the testator has to be gathered not only by attaching importance to isolated expressions but by reading the will as a whole with all the provisions and ignoring none of them as redundant or contradictory ( See Raj Bajrang v. Thakurani AIR 1953 SC 1953). As observed in Navneet Lal's case (supra), although there is no binding rule that the court should avoid intestacy at any cost, yet the court would be justified in preferring that construction of the will which avoids intestacy. Where the words are the ambiguous attempt should be made to avoid the construction which leads to intestacy.
26. Learned counsel for the plaintiffs have referred to the judgment in Ramchandra Shenoy & Anr v. Hilda Brite and others; . The said judgment while dealing with issue of manner of construction of the Will observed that in such matters authorities or precedences are of no help as each Will has to be construed in its own terms and in the setting in which the clauses occur.
27. An analysis of the aforesaid judgments, thus, shows that the basic principle to be kept in mind is the intention of the testator. At times the intention may be expressed in clear terms while at other times the intent had to be derived from the reading of the Will as a whole. A reading of the Will makes it clear that after the life interest of late Smt. Kaushalya Rani Khattar was extinguished, the property had to devolve in a particular manner. The testator has made clear bequeath so far as the ground floor and the servant quarter on the first floor of the garage are concerned to devolve on Defendant No.1 while the first floor with the right to construct on the first floor has been given to the plaintiffs. The testator did not say that the right of building apart from the unbuilt portion of the first floor would also devolve on the plaintiffs. It is possible that the question of such bequeath did not arise because the plaintiffs had specified how the constructed portion was to devolve and what further construction could take place and on whom it would devolve. There is no bequeath in respect of any terrace rights or further construction.
28. It has, however, to be kept in mind that para (d) of the Will makes it clear that the testator had in fact taken a loan from the husband of defendant no.2 to construct the property, yet no share was given to her in the existing construction. Para (4) of the Will states that after the death of Smt.Kaushalya Rani Khattar, the property in question would devolve 'on my dear daughter Madhu Kohli and dear son Suresh Khattar and my grandson Apoorva in the manner stated in the Will'. Thus the total property had to devolve on the plaintiffs and defendant no.1 to the exclusion of defendant no.2.
29. To test the aforesaid proposition, an example can be taken where there is no further permissible construction as the property is fully constructed upon which is bequeathed in a particular manner whereby some heirs are not given any inheritance in the property. If in some future date further construction is permissible, would the legal heirs, who have been given no share in the property, acquire any interest on the further permissible construction? In my considered view, the answer to this would be in the negative. This is so because the whole property with the existing rights has devolved in a particular manner.
30. It can, however, not be lost sight of that any further construction may affect the rights of the occupants including the rights of the plaintiffs who have full rights of the first floor. No one person can have the right to carry out any further construction without the concurrence of the others as it may result in dilution of the share in the land or may affect the value of the constructed portion. Thus though I am of the considered view that the property devolve only on the plaintiffs and defendant no.1 in the manner provided in the Will, there is no right to further construct on the property which any of the parties can have without the concurrence of the co-owners of the property in question. It is not possible to segregate the shares of un-constructed portion of the property when no bequeath has been made in that behalf. The parties to whom the property has been bequeathed are thus entitled to enjoy it in the manner of the bequeath. The plaintiffs have a right to construct on the remaining portion of the first floor as per the bye-laws and defendant No. 1 is bound to cooperate with the plaintiffs for seeking any permission in this behalf and thus will have to sign all the documents as may be necessary for the full enjoyment of the plaintiffs of not only the existing first floor but the further first floor to be constructed. This will, however, not be the position in respect of any further permissible construction. In case the plaintiffs and defendant no.1 agree that there has to be certain further construction, and there is consent, and the said two parties are at ad idem then only can there be a further construction. In the absence of the same, neither the plaintiffs nor the defendant no.1 have a right to carry out any further construction on the property in question.
31. I am conscious of the fact that this may restrict the rights of both the plaintiffs and defendant no.1, but that is inevitable. All the parties explored the possibility of settlement, but defendant no.1 was adamant that he must claim fifty per cent share in what may possibly be constructed to the exclusion of defendant no.2. The apprehension was that plaintiff no.1 may get more if defendant no.2 released here share in their favor though defendant No. 2 categorically stated that she had not intention to do so. It is for such circumstances that it is often said that a large part of worries of people come not from what they have, or will get, but what the others might get. If defendant no.1 is unable to enjoy any further share, it is his own making. Of course this also has an impact on the plaintiffs, but that is inevitable.
32. It is thus concluded that defendant no.2 will not have any share but the plaintiffs and defendant no.1 will enjoy the property in the manner provided in the Will without any further right of construction except to the extent provided in the Will.
33. If beyond the will, some further construction has to be carried out, the same can only be with the consent of the plaintiffs and defendant no.1.
RELIEF
34. The plaintiffs are held entitled to the first floor of the property along with right to construct on the unbuilt portion of the first floor being used as terrace. The defendant no.1 is held entitled to the ground floor of the property constructed along with the first floor of the garage. In respect of common areas and other spaces, including garage, both the parties would have equal shares. The defendant no.1 will be liable to execute all documents as may be required by the plaintiffs for carrying out the balance construction on the first floor. Parties shall not be entitled to construct anything more than what is constructed upon in the property other than the remaining portion of the first floor. However, if such construction is permissible and the plaintiff and defendant No.1 want to make the same, it shall only be by the consent of the said parties.
35. The parties are left to bear their own costs.
36. Decree sheet be drawn up accordingly.