Delhi District Court
Mr. Raman Dhir vs Col. Pradeep Dhir on 17 November, 2022
IN THE COURT OF SH. SUDHANSHU KAUSHIK :
ADDL. DISTRICT JUDGE-02 & WAQF TRIBUNAL :
PATIALA HOUSE COURTS : NEW DELHI
CIVIL SUIT NO.59099/2016
CNR NO.DLND01-013269-2016
1. MR. RAMAN DHIR
S/O LATE SH. SURENDER NATH DHIR
R/O G-193, PALAM VIHAR,
GURGAON (HARYANA)
2. MRS. NANO KWATRA
W/O SH. AJAY KWATRA
R/O 24, SHERBOURNE CLOSE,
COLNBROOK, SLOUGH,
BERAKSHIRE, SL-30PG
PRESENTLY AT :
R/O G-193, PALAM VIHAR,
GURGAON (HARYANA)
.....PLAINTIFFS
VERSUS
1. COL. PRADEEP DHIR
S/O LATE SH. SURENDER NATH DHIR
R/O 11, TURNER ROAD, CLEMENTOWN,
DEHRADUN
2. STATE BANK OF INDIA
(THROUGH ITS MANAGER, BRANCH CODE-8655)
NRI MARINA ARCADE, CONNAUGHT CIRCUS,
NEW DELHI-110001
3. STATE BANK OF INDIA
(THROUGH ITS MANAGER, BRANCH CODE-1538)
MAIN BAZAR, MEHRAULI,
NEW DELHI-110030
4. STATE BANK OF INDIA
(THROUGH ITS MANAGER, BRANCH CODE-4095)
2/3619, DARYAGANJ, NETAJI SUBHASH MARG,
NEW DELHI-110002
CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 1 of 34
5. STATE BANK OF INDIA
(THROUGH ITS MANAGER, BRANCH CODE-4458)
PALAM TRIANGLA, GURGAON,
HARYANA-122017
6. AXIS BANK
(THROUGH ITS MANAGER)
SHOP NO.1 TO 9, SURYA PALAM CENTRAL,
H-BLOCK, OPP. CELEBRITY TOWERS,
PALAM VIHAR, GURGAON,
HARYANA-122017
7. ORIENTAL BANK OF COMMERCE
(THROUGH ITS MANAGER)
PALAM VIHAR, GURGAON,
HARYANA-122017
.....DEFENDANTS
DATE OF INSTITUTION : 22.12.2011
DATE OF CONCLUSION OF FINAL ARGUMENT : 17.11.2022
DATE OF PRONOUNCEMENT OF ORDER : 17.11.2022
JUDGMENT
Brief background of the matter
1. The controversy revolves around the interpretation of a registered Will dated 31.05.2011 executed by Late Smt. Vimla Dhir. Before coming to the pleadings, it would be appropriate to give brief background of the matter, which is as under:
1.1 Plaintiff No.1/Sh. Raman Dhir, Plaintiff No.2/Ms. Nano Kwatra and Defendant No.1/Col. Pradeep Dhir are children of Late Smt. Vimla Dhir. On the demise of their mother, dispute erupted between them over distribution of movable properties in the form of FDRs, mutual funds and money lying in CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 2 of 34 the bank accounts of their mother. Defendant No.2 to 7 are the banks holding the funds of Late Smt. Vimla Dhir. Deceased had made her children nominee in the FDRs and bank accounts. Parties, being the legal heirs of Late Smt. Vimla Dhir, have not disputed that deceased, during her lifetime, executed a Will dated 31.05.2011 bequeathing her movable as well as immovable properties. Dispute relates only to one part of the Will, namely, bequest pertaining to the money lying in the FDRs, mutual funds and bank accounts.
1.2 Initially, plaintiffs filed the suit seeking reliefs; (a) Declaration to the effect that they are entitled to an amount of Rs.70,00,000/- out of Rs.1,80,00,000/- lying in the accounts and FDRs of their deceased mother;
(b) Permanent injunction to restrain defendant No.2 to 7 from releasing the amount lying in the FDRs and bank accounts to defendant No.1 as the nominee of the deceased.
1.3 Instead of filing the written statement, defendant No.1 moved an application under Order VII Rule 11 of CPC seeking rejection of the plaint on the ground that the suit is not maintainable unless the plaintiffs obtain probate from a competent court under the Indian Succession Act. Before hearing could be done on this application, plaintiff sought amendment of the plaint alleging that the banks have already released the amount lying in the bank accounts to defendant No.1. The amendment was allowed vide order dated 28.09.2012 and amended plaint was taken on record. CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 3 of 34 1.4 In the amended plaint, plaintiffs sought reliefs; (a) Declaration that defendant No.1 is entitled to an amount of Rs.1,10,00,000/- and plaintiffs are entitled to receive the amount in excess of Rs.1,10,00,000/-; (b) Permanent injunction to restrain defendant No.2 to 7 from releasing the amount lying in the FDRs and bank accounts to defendant No.1; (c) Permanent injunction to restrain defendant No.1 from getting the amount released from the banks; (d) In the event the amount has already been released by defendant No.2 to 7, a decree of recovery against defendant No.1 for such amount in excess of Rs.1,10,00,000/- along with interest at the rate of Rs.18% per annum from the date of withdrawal till the date of payment by defendant No.1.
Pleadings
2. Now, coming to the pleading of the parties. The brief facts as disclosed in the plaint are that;
A) During her lifetime, deceased Smt. Vimla Dhir and her husband Sh. Surender Nath Dhir created several movable and immovable properties from their income. Sh. Surender Nath Dhir executed a Will dated 11.05.2001 bequeathing his entire movable and immovable properties to his wife. On his demise, accordingly to the Will, his property devolved upon his wife Smt. Vimla Dhir; B) Smt. Vimla Dhir executed a registered Will dated 31.05.2011 in respect of her entire estate including immovable properties, bank accounts, fixed deposits, mutual funds, LIC Policies etc.; CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 4 of 34 C) Smt. Vimla Dhir expired on 31.10.2011 and on her demise, the Will dated 31.05.2011 became operational. In terms of this Will, defendant No.1 was to get only a sum of Rs.1,10,00,000/- lying in the bank accounts of her mother and the remaining amount was to be given to plaintiff No.1;
D) The Will came to light on 10.11.2011 at the time when the parties were discussing the distribution of the properties after completing the last rites of their mother. Parties agreed that the intention of their mother, as contained in the Will, should be given effect; E) However, defendant No.1 started claiming that he is entitled to receive the entire amount kept in the bank accounts and FDRs of the mother as he was a nominee in most of the bank accounts; F) On coming to know about the intentions of defendant No.1, plaintiffs issued an intimation to the concerned banks requesting them not to release the amount lying in the bank accounts and FDRs till inter-se dispute between the legal heirs is resolved. Plaintiffs also issued a legal notice dated 14.12.2011 to the concerned banks;
G) None of the banks except defendant No.4/State Bank of India replied to the legal notice. Plaintiffs contacted the banks and it was conveyed by the banks that the amount shall be released to the nominee;
CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 5 of 34 H) Subsequently, plaintiffs learnt that banks have released the amount to defendant No.1. Defendant No.1 is not entitled to keep the amount released to him by the banks merely because he was a nominee in the bank accounts. He was only a trustee of the bank accounts. In view of the express intention of Late Smt. Vimla Dhir in the Will dated 31.05.2011, defendant No.1 was only entitled to an amount of Rs.1,10,00,000/- and the amount over and above shall fall to the share of the plaintiffs.
3. Defendant No.1 filed written statement to the amended plaint. He disputed and denied the registered Will dated 31.05.2011. He took the stand that being the nominee in the bank accounts & FDRs, he had an absolute right to receive the amount lying therein. He stated that plaintiffs have no right over the amount received by him. He came up with a version that the Will can not be acted upon unless adjudicated by a probate court. He mentioned that the court lacks jurisdiction to try and entertain the suit on the basis of Will and the same should be rejected. He took objection that plaintiffs have failed to affix the appropriate court fee. He mentioned that the suit is barred by the provisions of Banking Regulation Act, 1949.
4. Subsequently, defendant No.1 sought amendment of the written statement. The amendment was allowed vide order dated 26.02.2013 and the amended written statement was taken on record. By amending the CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 6 of 34 written statement, defendant No.1 changed his stands and accepted the Will. He withdrew the application under Order VII Rule 11 CPC and restricted his case to the interpretation of the Will dated 31.05.2011. He took a stand that in terms of the Will, testator Smt. Vimla Dhir treated her nominees as the beneficiaries of the funds and she did not wish to pass away intestate viz-a-viz funds mentioned in the Will. He mentioned that plaintiffs have no right to recover the amount received by him from the bank accounts of the deceased as he was the sole nominee in those accounts. He mentioned that during lifetime, his mother changed the nomination in some of the bank accounts wherein earlier, plaintiff No.1 was the nominee. He stated that the mother revoked the earlier nomination in favour of plaintiff No.1 and changed it in his name and thereafter, the nominations were never changed during her lifetime. He mentioned that being the sole nominee of the bank accounts and FDRs, he was entitled to receive the entire amount lying in those accounts. He contended that if the version of plaintiff is accepted that he is entitled to a sum of Rs.1,10,00,000/- only, it leads to a conclusion that his mother Dhir died intestate viz-a-viz the amount in excess of Rs.1,10,00,000/-. He mentioned that in such a case, as per the law of succession, he would be entitled to 1/3rd share of the excess amount. He mentioned that there is no nomination in the shares of the deceased with SBI Bank. CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 7 of 34
5. Defendant No.2/State Bank of India, Connaught Circus Branch and Defendant No.5/State Bank of India, Palam Branch filed joint written statement mentioning that the amount lying in the bank accounts was released to Defendant No.1 as he was a nominee in the accounts. Defendant No.4/State Bank of India, Daryaganj Branch also submitted a similar written statement mentioning that the amount kept in FDRs by the deceased Smt. Vimla Dhir was released to Defendant No.1.
6. Plaintiffs filed replication to the initial written statement as well as to the subsequent amended written statement filed by defendant No.1 and reiterated the contents of the plaint. No replication was filed to the written statement of the other defendants.
Issues
7. On the basis of pleadings, vide order dated 05.04.2013, the following issues were framed:
i. Whether the defendant No.1 under the Will dated 31.05.2011 of the mother Smt. Vimla Dhir is entitled to a sum of Rs.1,10,00,000/- only irrespective of the nominations even if in his favour for any excess amount and if so whether the defendant No.1 is liable to pay the excess amounts withdrawn by him to the plaintiffs? OPP ii. Whether Smt. Vimla Dhir, after the date of execution of the Will, has changed any nomination earlier standing in the name of plaintiff No.1, in favour of defendant No.1? OPD CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 8 of 34 iii. If the above issue is answered in favour of the defendant No.1, what is the effect if any of the said change in nomination on the bequest under the Will? OPP iv. If the plaintiffs are found entitled to any monies, whether the plaintiffs are entitled to any interest thereon from the defendant No.1 and if so, at what rate and for what period?OPP v. Relief.
8. During the course of proceedings, plaintiff No.1 moved an application under Order XXXIX Rule 1 & 2 of CPC seeking directions that defendant No.1 may be directed to deposit in the court, the amount withdrawn by him from the bank accounts of the deceased in excess of Rs.1,10,00,000/- and the excess amount be kept in an interest bearing fixed deposit. He also filed another application under Section 151 CPC seeking directions that defendant No.1 may be directed to file an affidavit disclosing the details of movable assets including bank accounts, mutual funds and shares, which were owned by late Smt. Vimla Dhir wherein defendant No.1 has been made a nominee. On these applications, vide order dated 05.04.2013, defendant No.1 was directed to file an affidavit disclosing therein the amount withdrawn by him from the bank accounts. In compliance of the order, defendant No.1 filed an affidavit dated 18.04.2013 and an additional affidavit dated 25.04.2013 and it was found that he had withdrawn a sum of Rs.1,25,26,338/- from the bank accounts. It was directed by the court that defendant No.1 shall CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 9 of 34 deposit the excess amount of Rs.15,26,338/- in the court and sum of Rs.75,000/- received by him as interest in the form of FDR. Further directions were issued that defendant No.1 shall also deposit in the court the documents pertaining to HDFC Mutual Fund and ICICI Mutual Fund wherein the amount of deceased was lying. Defendant No.1 was restrained from withdrawing the interest received in respect of these funds. In compliance of these orders, the amount was deposited by defendant No.1.
Plaintiff's Evidence
9. Plaintiffs examined only one witness i.e. Sh. Ram Dhir (plaintiff No.1) as PW-1. He supported the contents of the plaint and tendered the following documents; (a) The registered Will dated 31.05.2011, which is Ex.PW-1/1; (b) The intimation given by the plaintiffs to the banks for not releasing the amount, which is Ex.PW-1/2; and (c) The legal notice dated 14.12.2011 sent by the plaintiffs to defendant No.2 to 7 calling upon them not to release the amount kept in the bank accounts of deceased Smt. Vimla Dhir, which is Ex.PW-1/3. The witness was cross-examined by defendant No.1.
Defendant's Evidence
10. On the other hand, defendant No.1 examined five witnesses; CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 10 of 34 10.1 DW-1/Col. Pradeep Dhir (defendant No.1) supported the line of defence taken by him in the written statement. He was cross-examined by the plaintiffs.
10.2 DW-2/D.K.Verma (Single Window Operator, Oriental Bank of Commerce) produced the statement and details of the nominee of term deposit account No.07543212011417 in the name of Late Smt. Vimla Dhir wherein defendant No.1 was a nominee. The certified copy of the statement is Ex.DW-2/1 (colly). He also produced the statement of saving bank account No.07542010008460, which was a joint account of deceased and defendant No.1. There is no nominee in this account. The certified copy of the same is Ex.DW-2/2.
10.3 DW-3/Deen Dayal Kumar (Assistant Manager, SBI, Connaught Place) produced the details of bank accounts of deceased Smt. Vimla Dhir.
10.4 DW-4/Vinod Kumar Kathpalia (Dy. Manager, SBI, Mehrauli) mentioned that on checking the database of the bank, no deposit in the name of deceased was found in the bank. He stated that as per the standard practice, a person having bank account was entitled to hold a locker in the bank. He mentioned that he does not know if deceased was holding any bank account, fixed deposit or locker in the bank in the year 2011.
CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 11 of 34 10.5 DW-5/Raghu Sharma (Branch Manager, Axis Bank, Palam Vihar) (inadvertently mentioned as DW-6) produced the statement of bank account No.910010018474184 and mentioned that the said account was closed on 04.03.2014. He also produced the fixed deposits bearing No.910040019188414 and 910040019192374 held by the deceased Smt. Vimla Dhir. He stated that the fixed deposits were withdrawn on 15.02.2014.
10.6 DW-6/Madhvika Chaudhary (Chief Manager, SBI, Anand Vihar) (inadvertently mentioned as DW-7) produced the record pertaining to bank account No.30109218004 and fixed deposit No.30626787050.
Arguments of plaintiff
11. Counsel for the plaintiffs argued that defendant No.1 has wrongly obtained and kept the entire amount lying in bank accounts and deposits of the deceased. He contended that although, defendant No.1 was a nominee in the bank accounts and fixed deposits of the deceased but this does not confer upon him right or title to retain the entire amount lying in these accounts. He submitted that the nominee of a bank account merely gets a right to receive the funds lying in the accounts of the deceased without prejudice to the entitlement of other legal heirs. He has mentioned that the nomination confers a bare right to collect the money when the same becomes payable but the nominee does not become the owner of the money and he is liable to make it over to whomsoever is CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 12 of 34 entitled to the same under the law. He mentioned that nomination in the bank accounts does not make a person entitle to receive the amount to the exclusion of other legal heirs of deceased. He submitted that nomination in the bank account is inconsequential and it is meant only to get the amount released from the account.
11.1 Counsel for the plaintiffs contended that in terms of the Will dated 31.05.2011, deceased bequeathed a definitive amount of Rs.1,10,00,000/- in favour of defendant No.1 and he can not claim any other amount over and above the said amount. He contended that the deceased intended to give only a definitive sum of money to defendant No.1 and the intention could be gathered from the various clauses of the Will. He mentioned that deceased was an independent educated woman. He mentioned that in case, deceased intended to give the entire amount lying in the bank accounts and FDRs to defendant No.1, she would have categorically stated so in the Will. He mentioned that the Will should be read as a whole and various clauses of the Will can not be read in isolation. He contended that there is no inconsistency in the Will. He emphasized that the interpretation of the Will is clear and simple. He mentioned that in terms of the Will, defendant No.1 was not entitled to any amount over a sum of Rs.1,10,00,000/-. He has prayed that the suit may be decreed.
11.2 In order to support his contention, counsel has relied on the decisions in "Ramkishore Lal Vs Kamal Narain" AIR 1963 SC 890, "Navneet Lal Vs CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 13 of 34 Gokul & Ors." (1976) 1 SCC 630, "Bajrang Factory Ltd. & Ors. Vs University of Calcutta & Ors." (2007) 7 SCC 183, "Rajinder Singh Chowdhary Vs S.Manjit Singh Chowdhary & Ors." (2003) ILR 1 Delhi 338, "Shyamal Kanti Guha (D) Through LRs & Ors. Vs Meena Bose" (2008) 8 SCC 115, "Madhuri Ghosh & Ors. Vs Debobroto Dutta & Ors." (2016) 10 SCC 805, "M.S.Bhavani & Ors. Vs M.S.Raghu Nandan" (2020) 5 SCC 361, "Sanjay Roy Vs Sandeep Soni & Ors." MANU/DE/1824/2022, "Deborbroto Dutta & Ors. Vs Madhuri Ghosh & Ors." MANU/UP/1184/2013, "Mathai Samuel & Ors. Vs Eapen (dead) by LRs & Ors." (2012) 13 SCC 80 and "Justice U.N.Bachawat (Retd.) & Ors. Vs Chief Post Master General & Ors." MANU/DE/1884/2015.
Arguments of defendant
12. On the other hand, counsel for defendant No.1 argued that it becomes clear on plain reading of the Will that testator treated her nominee as beneficiary of the funds and she did not wish to die intestate viz-a-viz the funds mentioned in the Will. He contended that the intention of the testator become evident from the fact that after executing the Will, she changed the nominations in her bank accounts and FDRs. He mentioned that the testator canceled her earlier nomination in the bank accounts and made defendant No.1 as her sole nominee. He contended that testator made extra effort in obtaining all the relevant documents from the banks and financial institutions and handed it over to defendant No.1. He CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 14 of 34 mentioned that the intention of the testator can be very well gathered from the fact that she canceled the nomination of plaintiff No.1 and made defendant No.1 as the sole nominee in the bank accounts. He contended that even if it is presumed that testator has bequeathed an amount of Rs.1,10,00,000/- to defendant No.1, it leads to a conclusion that the testator died intestate viz-a-viz the amount in FDRs and funds over and above Rs.1,10,00,000/-. He mentioned that in view of this, as per the law of succession, defendant No.1 shall be entitled to receive 1/3rd of the amount lying in the FDRs and funds over and above Rs.1,10,00,000/-.
12.1 Counsel for defendant No.1 argued that in case, two clauses of the Will are inconsistent, then as per the rule of construction of will, the last of such two inconsistent clauses shall prevail. He contended that testator made two bequest of funds to defendant No.1, first one by allotting a definitive sum of Rs.1,10,00,000/- and the second one on account of the nominations in the bank accounts and FDRs. He contended that two bequests were independent and one is not subject to or limited by the other. He argued that plaintiff No.1 has created a fiction that testator bestowed upon him all the funds and movable assets over an above Rs.1,10,00,000/-. He contended that there is no legal basis for creating the said fiction. He mentioned that plaintiffs have included all the funds of the testator in their claim over an above the sum of Rs.1,10,00,000/- even if the funds were not referred in the Will. He pointed CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 15 of 34 out that there were funds of the deceased wherein no nomination was made by her and the will is absolutely silent in respect of those funds. He mentioned that in the garb of present petition, plaintiff No.1 can not claim his entitlement over all the funds and shares of the deceased mother. 12.2 In order to support his submissions, counsel has placed reliance in the decisions in "Ittianam & Ors. Vs Cherichi @ Padmini" (Civil Appeal No.4432 of 2003), "Naveen Lal @ Rangi Vs Gokul & Ors." 1976 SCR (2) 924, and "Kaivelikkal Ambunhi (d) by LRs & Ors. Vs H.Ganesh Bhandary"
AIR 1995 SC 2491.
13. I have gone through the record in the light of respective arguments.
Issue-wise Finding Issue-I:- Whether the defendant No.1 under the Will dated 31.05.2011 of the mother Smt. Vimla Dhir is entitled to a sum of Rs.1.10 crores only irrespective of the nominations even if in his favour for any excess amount and if so whether the defendant No.1 is liable to pay the excess amounts withdrawn by him to the plaintiffs? OPP
14. The entire controversy revolves around the interpretation of the Will dated 31.05.2011 executed by the deceased. Although, in the initial written statement, defendant No.2 challenged the execution and genuineness of the Will but he changed this stand subsequently by amending the written statement. In the amended written statement, he admitted the genuineness of the Will and submitted that he is restricting his case to the interpretation of the Will. Thus, the focal point is the Will dated 31.05.2011.
CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 16 of 34
15. Before embarking upon the interpretation of the Will, it would be appropriate to refer to the relevant factors that need to be kept in mind for interpreting the intention of the testator. It is an admitted case that the testator was 81 years old at the time of execution of Will and she was maintaining good health and sound mind. There is evidence to demonstrate that the testator had undergone some surgery but otherwise, she was keeping good health. Evidence has come on record that deceased was an educated and independent female. There is evidence to show that deceased even traveled abroad independently. Neither plaintiffs nor defendant No.1 have disputed these aspects. Defendant No.1 has stated in cross-examination that his mother was well aware of her assets and she used to take care of her accounts on her own. These factors need to be kept in mind while interpreting the Will dated 31.05.2011.
16. The other factor on which emphasis has been laid by defendant No.1 is that the testator changed the nomination in her accounts after about 1½ month of executing the Will. Defendant No.1 has stated in cross- examination that her mother changed the nomination in the accounts of SBI, Daryaganj Branch on 16.06.2011. DW-5/Himanshu Jain, Branch Manager, SBI, Daryaganj Branch has deposed that the testator changed the original nominations in her fixed deposit account No.31646827367, 31640411604, 31646830288 and 316404097017. He deposed that CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 17 of 34 earlier, the nomination in these accounts was in the name of plaintiff No.1 but it was canceled by Late Smt. Vimla Dhir and defendant No.1 was made a nominee in these accounts. He stated that subsequently, the change in the nomination was confirmed by the bank. He has produced the original bank record and his testimony has not been challenged by the plaintiffs. Thus, it stands proved that the testator did change the nomination in fixed deposits in the bank accounts of SBI, Daryaganj Branch. Defendant No.1 has strongly relied on this circumstance and argued that her mother changed the nomination because she intended that the nominee of the account should be treated as beneficiary of the funds lying in those accounts.
17. The rules for the construction of the will have been provided in chapter-
VI of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act'). Section 74 of the Act mandates that it is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom. Section 78 of the Act states that if the things which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous and the bequest shall take effect. Section 82 of the Act states that the meaning of any clause in a will is to be collected from the entire CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 18 of 34 instrument and all its part are to be construed with reference to each other. Section 85 of the Act provides that no part of the will shall be rejected as destitute of meaning if it is possible to put reasonable construction upon it. Section 87 of the Act states that the intention of the testator can not be set aside because it can not take effect to the full extent, but effect is to be given to it as far as possible. Section 88 of the Act states that where two clauses of the will are irreconcilable, so that they can not possibly stand together, the last shall prevail. Section 101 of the Act provides the rules of construction where will purports to make two bequests to the same person. Section 102 of the Act deals with constitution of residuary legatee and states that a residuary legatee may be constituted by any words that show an intention on the part of a testator that the person designated shall take the surplus or residue of his property.
18. It would be appropriate to refer to the guidelines that can be inferred from various judicial pronouncements for interpreting the provisions of the Will. The principles for construing and interpreting a Will were laid down by the Hon'ble Supreme Court of India in the matter of "Navneet Lal Vs Gokul & Ors". 1976 (1) SCC 630. The Supreme Court held;
"(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 CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 19 of 34 the intended meaning of the words which have actually been employed. [Ram Gopal Vs Nand Lal 1951 SCR 766].
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha Vs Parthasarathy 1913 (41) Ind App 5173] 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 Vs T. Raju Ayyar and Others MANU/SC/0045/1950].
(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 Thakurain Bakhtraj Kuer 1953 (4) SCR 232].
(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 expression 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 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. [Paerey Lal Vs Rameshwar Das MANU/SC/0398/162].
(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 CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 20 of 34 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. [Ramachandra Shenoy & Another Vs Mrs. Hilda Brite & Other MANU/SC/0248/1963]".
19. It was observed in the matter of "Rajender Singh Chaudhary Vs S.Manjeet Singh Chaudhary" 2003 ILR 1 Delhi 338 that the central rule of construction of Will is to give effect to the intention of testator. It was observed that keeping in view this central object, different parts of the Will should be constructed harmoniously. It was held that it is this reason which prevents the court from rejecting any part of the Will as deemed surplus-age. For, the testator could not have intended to make any bequest in his Will as an exercise in futility. It was held that it is this central rule which enables the court on construction to read out the language of the part of the Will if giving full effect to the general words of that part of the Will result in making the other part of the Will defensible.
20. The above said principles of construction have been reiterated in the matter of "Shyam Lal Kanti Guha (D) through LRs Vs Meena Bose"
AIR 2009 SC 1194, "Madhuri Gosh & Anr. Vs Debobroto Dutta & Anr."
AIR 2016 SC 5242 and "M.S.Bhavangi & Ors. Vs M.S.Raghu Nandan"
AIR 2020 SC 1441.
CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 21 of 34
21. It has been held in the matter of "Mathai Samuel & Ors. Vs Eapen Eapen (D) through LRs. & Ors." AIR 2013 SC 532 that in order to ascertain the intention of testator, the point for consideration is not what the testator meant but what that he has written means. It was observed that it is often said that express intentions are assumed to be actual intention. It was further observed in the matter that subsequent events and conduct of the parties after the execution of Will shall not be taken into consideration while interpreting it.
22. It has been held in "K.S.Palanisamy Vs Hindu Community in General & Citizens of Gobichettipalayam" AIR 2017 SCC 147 that intention in testamentary deposition has to be primarily found from the actual words used in the Will and the court is not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word in the Will.
23. Now, coming to the present matter. The Will dated 31.05.2011 is a registered document. It would be appropriate to refer to the exact wording of the Will whereby the testator expressed her desire to distribute her estate amongst her children. The testator declared in the Will that she is executing the Will to avoid any uncertainty, misunderstanding or dispute amongst her children after her demise with respect to her estate. She further declared that in making the Will, she has made every endeavor to do justice and equality with all the three children. The relevant para on page-1 of the Will reads; CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 22 of 34 (hereinafter referred to as 'Para-A');
".... I have already reached the dusk of my life and any time the angles of His Almighty may come and take me along. So, before I take my last breath, I hereby make this will so as to avoid any uncertainty, misunderstanding or dispute amongst my children after my demise with respect to my estate. While making this will, I have made my endeavor to do justice and equity with all my three children.....".
24. Para-A of the Will does indicate that testator intended to distribute all her estate amongst her children so as to avoid any misunderstanding or dispute between them. The fact that the testator mentioned in the Will that she has tried to do justice and equality with all the three children also indicates that she distributed the entire estate to ensure that there is no vacuum and scope for uncertainty which may lead to misunderstanding or dispute amongst her children. The subsequent clause of the Will further goes on to demonstrate that the testator included her entire estate in the Will as she mentioned therein that on the demise of her husband, she inherited his entire estate by means of Will executed by him. Thereafter, in the next clause of the Will, the testator mentioned that her elder son (defendant No.1) has retired from the post of Colonel and he had settled in Dehradun. She mentioned that she possesses land, house, shop and other agriculture plots in Sultan Pur, Lodhi, District, Kapurthala, Punjab and the said properties were divided but her younger son (plaintiff No.1) did not get share at that time as he was not born. The relevant clauses on page-1 of the Will read as under; CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 23 of 34 (hereinafter referred to as 'Para-B') "As on date, I own and possess various movable and immovable properties. Amongst immovable properties, I own and possess agricultural land and ancestral house within the state of Punjab and some other properties in Punjab. My eldest son Col. Pradeep Dhir retired from the post of Colonel and he is well settled in Dehradun. I possess land, house, shop, other plots and agriculture land situated in Sultanpur Lodhi, Distt. Kapurthala, Punjab.
(hereinafter referred to as 'Para-C') "The said properties were divided amongst me, my husband, elder son and daughter. My younger son was not born at that time, so he had got share at that time. After death of my husband, I got his share also and now I want to divide my share between two sons equally. My elder son has already got one share from this property and he will get one more share from me. My elder son is contesting cases pertaining to his agricultural land against forest department and with other authorities. My husband had given to my elder son a plot of 500 Sq. Yds. in Mohali (Punjab) and 18 acre land in our Village. When my grandson got married, I gifted him expensive gifts items and I helped my elder son whenever he needed even two years ago, I helped him with a sum of Rs.20,00,000/- by cheque. As he is settled in Dehradun and doing his business there so I think he has no intention to shift to Gurgaon/Delhi. So I wish to give him one crore and ten lakhs Rupees besides this I have already given him twenty lakhs Rupees so he can use this money as he wanted/wished in any way. In this way, he will got one crore and thirty lakhs".
25. On going through the contents of Para-B & C of the Will, there remains no scope of doubt that the testator intended to give a definitive share to her elder son from her entire estate. The testator noted in Para-C of the Will that her younger son did not get any share in the properties at Kapurthala (Punjab). She further noted that her husband had already CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 24 of 34 given a 500 Sq.Yrds plot in Mohali (Punjab) and 18 acre of land in the native village to the elder son. She noted that she gifted expensive gifts to her elder son at the time of his marriage. She mentioned that she had helped her elder son on various occasions and even two years ago, she had given him a cheque of Rs.20,00,000/-. She noted that the elder son is settled in Dehradun and he is doing business over there. She noted that she thinks that the elder son had no intention to shift to Delhi or Gurgaon. Keeping all these considerations in mind, the testator decided to give Rs.1,10,00,000/- to her elder son/defendant No.1. I am of the considered opinion that the testator intended to divide her estate in such a manner that her elder son would get a sum of Rs.1,10,00,000/- and nothing further from her estate.
26. Now, coming to that part of the Will where the testator bequeathed her property in favour of her younger son. The testator mentioned in the Will that she bequeathed the house bearing No.G-193, Palam Vihar, Gurgaon, Haryana to her younger son and that shall be to the exclusion of others. The relevant paras read as under:
(hereinafter referred to 'Para-D') "I bequeathed the house bearing No.G-193, Palam Vihar, Gurgaon, Haryana (India) along with fittings, fixtures, furniture and other movable therein in favour of my younger son Raman Dhir to the exclusion of others".
(hereinafter referred to 'Para-E') CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 25 of 34 "My youngest son who is well settled at 3, Formby Close, Lower Early Benks, UK. I further bequeath the benefits of my LIC Policy in UK shall go and devolve upon my youngest son namely Raman Dhir to the exclusion of my other legal heirs and no one else shall have any right or interest in the said LIC Policy. I bequeath these properties to my younger son because he never demanded any money or financial help from me or my husband even in his marriage. I his marriage, he borne all expenses including expensive gifts to all relatives. His share in jewellery is also lying with me in bank locker. He can collect the same whenever he requires".
(hereinafter referred to as 'Para-F') "My daughter is living happily married life with Sh. Ajay Kwatra, who is a nice person. She is presently well settled with her husband in London. During all these years, they respect me a lot and I helped them whenever they needed. She has already got her share in Village properties, jewellery and money in which she has been nominated."
27. On going through the contents of paras D, E and F of the Will, it becomes apparent that the testator did not bequeath anything in favour of her daughter except the money in which she was nominated and her share in village properties and jewellery. Testator mentioned in the Will that her daughter is well settled and she has already received her share in village property, jewellery and money in which she has been nominated. The testator bequeathed the house No.G-193, Palam Vihar, Gurgaon to the plaintiff no.1 and declared that she further bequeaths the benefit of her LIC policy in UK in favour of plaintiff no.1 to the exclusion of any other legal heirs. The clauses of the Will read together leads to inescapable conclusion that the testator intended to divide her entire CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 26 of 34 estate to avoid any dispute and misunderstanding between her children. The fact that the testator mentioned towards the end of the Will that after the distribution of her estate in terms of the Will, no person shall have any right, title or interest in respect of her movable or immovable property also gives an indication that the testator included her entire estate in the Will so as to avoid any uncertainty.
28. Now coming to the contentious clause of the Will pertaining to the nominations of the bank deposits, FDR, Mutual Funds, Etc. The relevant para on the last page of the Will reads as under:
(hereinafter referred to as 'Para-G') "I more specifically further declare that I have appointed my three children namely Col. Pardeep Dhir, Mrs. Kano Kwatra and Mr. Raman Dhir (individually) as my nominees in various Bank Deposits, FDR's Mutual Funds of different Banks and financial institution. The Testator has already handed over the nominations and other relevant papers to her three children. After my demise the abovename three children can get release the above amount and assets on the basis of respective nominations."
29. It is the case of defendant No.1 that the testator intended in terms of the deposition contained in para-G of the Will that the amount lying in the bank deposits, FDR, mutual funds of banks and financial institutions shall be taken by the children according to the nominations made by her in these respective accounts. I do not agree with this line of interpretation. It is a settled law that nomination of the bank account does not confer ownership. The nomination made by the testator ought to CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 27 of 34 be construed on a different pedestal than a testamentary deposition. Reliance can be placed on the decision by the High Court of Delhi in the matter of "Suman Kumari @ Suman Singh Vs Nand Kishore & Anr." decided in Writ Petition (C) 6701/2018 on 06.11.2020. It has been observed in the matter of "Union of Bharat Vs Asha Bai" AIR 1957 MP 79 that appointing a nominee only creates right in the nominee to receive money according to the nomination but it does not make the nominee owner of the funds. It was observed in the matter of "Sarbati Devi Vs Usha Devi" 1984 (1) SCC 424 that the nominee gets only right to receive the amount to distribute the same amongst the legal heirs of the deceased. The position of law has been reiterated in number of subsequent judicial pronouncements.
30. In para-G of the Will wherein it was mentioned by the testator that she has already appointed her three children as nominee in various bank deposits, FDRs, mutual funds of different banks and financial institutions. The testator has clearly mentioned in this para that after her demise, the children can get released the amount lying in these accounts on the basis of respective nominations. However, this does not mean that testator intended that defendant No.1 would be entitled to keep the amount received by him from those accounts wherein he has been made nominee by the testator. It can be observed that para G of the Will starts with the words, 'I more specifically further declare that....'. This is an CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 28 of 34 indication that testator intended that this para of the Will has to be read together with the bequeath made by her in the earlier paras of the Will and para G is meant to give affect to the bequeath made in the earlier paras. The para-G of the Will cannot be read in isolation. In order to arrive at the correct construction of the Will, para-G has to be read in the light of other paras of the Will. The testator clearly mentioned in the Will that her children can get the amount released on the basis of nomination but this has to be read in conjunction with para-B & C of the Will. One has to examine the composite character of the Will and interpret the same in accordance with the normal and natural meaning which is discernible from the document. In order to ascertain the intention of testator, the point for consideration is not what the testator meant but what she has written means. It is often said that express intentions are assumed to be actual intentions. Reference in the regard can be made in the matter of A.Sreenivasa Pai's case (supra) wherein it was held that in construing a document, the fundamental rule to be adopted is to ascertain the intention adopted from the words employed in it.
31. The harmonious interpretation of the various paras of the Will leads to an inescapable conclusion that the intention of the testator, as revealed from the language of the Will, was that her elder son would receive a definitive amount of Rs.1,10,00,000/- from the money kept in the bank CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 29 of 34 accounts, mutual funds & FDRs. Accordingly, issue No.1 is decided in favour of plaintiffs and against defendants.
Issue-II:- Whether Smt. Vimla Dhir, after the date of execution of the Will, has changed any nomination earlier standing in the name of plaintiff No.1, in favour of defendant No.1? OPD Issue-III:- If the above issue is answered in favour of the defendant No.1, what is the effect if any of the said change in nomination on the bequest under the Will? OPP
32. Both the issues are interconnected and they can be dealt together. There is irrefutable evidence that the deceased did change nomination in the bank accounts after executing the Will on 31.05.2011. As observed in para 16 of the judgment, DW-5/Himanshu Jain, Branch Manager, State Bank of India stepped into the witness-box and deposed that Late Sh. Vimla Dhir canceled the earlier nomination in fixed deposit accounts No.31637644759, 31640409707, 31640411604, 31646827367 and 31646830288 on 16.06.2011. He mentioned that nomination in these accounts was earlier in the name of plaintiff No.1 but it was changed by the deceased in favour of defendant No.1. Plaintiffs have not challenged the version of this witness. In view of the testimony of DW-5, it stands established that Smt. Vimla Dhir changed the nomination in the bank accounts earlier standing in the name of plaintiff No.1, in favour of defendant No.1.
33. Now, coming to the question if the said change in nomination has an effect on the bequest under the Will dated 31.05.2011. In view of the CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 30 of 34 finding given on Issue No.1, it stands concluded that the nomination of a bank account does not confer ownership on the nominee of the funds lying in the bank account wherein he has been nominated. The sole purpose of nomination is to receive money according to the nomination but it does not make the nominee the owner of funds. Nominee retains the money for the benefit of those persons who are entitled to it either by virtue of testament or on account of succession. Reliance in this regard can be placed on the decision by the High Court of Delhi in the matter of "Justice U.N.Bachawat (Retd.) & Anr. Vs Chief Post Master General & Ors." MANU/DE/1884/2015. Defendant No.1 has set up an argument that by subsequently changing the nomination in the bank account, deceased intended to make sure that the amount is received by defendant No.1 as beneficiary under the Will. The argument is not convincing. It has been held in the matter of Mathai Samuel & Ors.'s case (supra) that subsequent event or conduct of the parties, after the execution of the document, shall not be taken into consideration in interpreting a document especially when there is no ambiguity in the language of the document.
34. Section 85 of the Indian Succession Act, expressly provides that no part of the Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it. In the present matter, the Will clearly defines the share of the children. Defendant No.1 has been given a CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 31 of 34 definitive share under the Will and it was clearly indicated by the testator that he would get an amount of Rs.1,10,00,000/- and nothing more. If the version presented by the defendant No.1 is accepted, it would make this part of the Will redundant and useless. If that be so, the testator would not have mentioned categorically in the Will that defendant No.1 shall receive a definitive sum of money. The subsequent change in the nomination does not effect the bequeath made under the Will. The Issue No.2 is decided in favour of defendant No.1 while Issue No.3 is decided in favour of plaintiffs and against defendant No.1. Issue No.4:- If the plaintiffs are found entitled to any monies, whether the plaintiffs are entitled to any interest thereon from the defendant No.1 and if so, at what rate and for what period?OPP
35. In view of the finding given in respect of Issue No.1 to 3, it is established that plaintiff No.1 is entitled to receive the amount over and above Rs.1,10,00,000/- kept in mutual funds and in the bank accounts of the testator wherein defendant No.1 was the nominee. There is evidence to show that defendant No.1 has withdrawn the amount in excess of the definitive share given to him under the Will. In case, the excess amount would not have been withdrawn, it would have continued to fetch interest. Thus, plaintiff No.1 is entitled to receive interest on the excess amount withdrawn by defendant No.1. However, record shows that in compliance of the directions given by the court, the excess amount withdrawn by defendant No.1 already stands deposited in the court in the CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 32 of 34 form of FDRs. Plaintiff No.1 is entitled to receive the amount kept in the FDRs along with accrued interest thereon. Issue No.4 is also decided in favour of plaintiffs and against defendant No.1.
RELIEF
36. Accordingly, the suit is decreed with the following reliefs;
(a) A decree of declaration to the effect that in terms of Will dated 31.05.2011 of Late Smt. Vimla Dhir, defendant No.1 is entitled to a sum of Rs.1,10,00,000/- (Rupees One Crore and Ten Lac only) and plaintiff No.1 is entitled to money in excess of Rs.1,10,00,000/- which are/were lying in bank accounts, FDRs, mutual funds, shares or any other form in the name of Late Smt. Vimla Dhir excluding the money in which plaintiff No.2 was the nominee.
(b) A decree of permanent injunction whereby defendant No.2 to 7 are restrained from releasing any amount kept with them in the name of Late Smt. Vimla Dhir to defendant No.1.
(c) A decree of recovery of money whereby defendant No.1 is directed to hand over the amount received by him from the bank accounts and FDRs of Late Smt. Vimla Dhir in excess of Rs.1,10,00,000/- (Rupees One Crore and Ten Lac only) to plaintiff No.1 (details whereof have been disclosed in the affidavit dated 18.04.2013 and additional affidavit dated 25.04.2013 filed by CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 33 of 34 defendant No.1) along with interest at the rate of 6% per annum from the date of withdrawal till the date of payment.
(d) A decree of recovery of amount of mutual funds of Late Smt. Vimla Dhir lying in ICICI (Folio No.2268489/53) and HDFC (Folio No.3575961/26) (details given in para-2E of affidavit dated 18.04.2013 filed by defendant No.1).
(e) Cost of the suit.
37. Decree sheet be prepared accordingly.
38. File be consigned to record room.
Announced in open Court
on 17.11.2022
(Sudhanshu Kaushik)
Addl. District Judge-02 & Waqf Tribunal,
Patiala House Courts, New Delhi/17.11.2022
CS No.59099/2016 Mr. Raman Dhir & Anr. Vs Col. Pradeep Dhir & Ors. page 34 of 34