Delhi District Court
Gurvinder Singh vs Rajinder Kaur on 26 December, 2025
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-007890-2024
Civil DJ No. 727/2024
Mr. Gurvinder Singh,
S/o Sh. Gurdit Singh
R/o H. No. WZ-13-A, Gali No.2,
Ravi Nagar, New Delhi-110018. ...Plaintiff.
Versus
1. Late Ms. Rajinder Kaur
Through LR
Mr. Jaspal Singh
S/o Late Sh. Bawa Singh Kalsi,
R/o WZ-13A, Ravi Nagar,
Gali No.3, New Delhi-110018.
2. Ms. Ranjeet Kaur,
W/o Sh. Satwant Singh,
R/o WZ-13A, Ravi Nagar,
Gali No.3, New Delhi-110018.
3. Ms. Gurdeep Kaur,
W/o Sh. Harkirat Singh,
R/o A-107, Sector-19,
Noida(UP)
4. Ms. Daljeet Kaur
W/o Sh. Dalbir Singh
R/o H. No.57/8, Tri Nagar,
New Delhi.
5. Ms. Nirmal Jeet Kuar
W/o Sh. Jarnail Singh,
R/o H. No. D-14, Shyam Nagar,
Gurvinder Singh VS. Rajinder Kaur Page No.1 of 66
Civil DJ No. 16/2022
Behind Sethi Restaurant,
Near Khayala Delhi-110012.
6. Ms. Palvinder Kaur
W/o Sh. Charanjeet Singh
R/o H-2531, Mandir Lane,
Shadipur, New Delhi.
7. Ms. Satwant Kaur
W/o Sh. Gurdit Singh,
H.No. 201, Sant Nagar,
Near Khandwa Nakka
Opp. Radha Swami Satsang,
Indoor-452001 (M.P.) ....Defendants.
SUIT FOR DECLARATION AND
PERMANENT INJUNCTION
DATE OF INSTITUTION : 09.12.2011
JUDGMENT RESERVED ON : 12.12.2025
JUDGMENT PRONOUNCED ON : 26.12.2025
Appearances:
1. Ms. Ravneet Kaur Malik & Ms. Rumella Jain, Ld. Counsels
for the Plaintiff.
2. Dr. R.S. Sasan, Ld. Counsel for the Defendant No.1.
3. Mr. Pradeep Kumar Sharma, Ld. Counsel for the Defendant
No.5, 6 & 7.
JUDGMENT
1. The Plaintiff has filed the present suit for the prayer of declaration of nullity with regard to the sale deed dated Gurvinder Singh VS. Rajinder Kaur Page No.2 of 66 Civil DJ No. 16/2022 30.07.2011 and for decree of permanent injunction with regard to suit property.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:
i. Late Bawa Singh Kalsi was the owner of suit property, i.e., the property bearing No.13-A, Gali No.2, Ravi Nagar, New Delhi-110018. Late Bawa Singh Kalsi was maternal grandfather of the Plaintiff, husband of the Defendant No.1 and father of the Defendant No. 2 to 7.
ii. Late Bawa Singh Kalsi died on 12.07.2008, leaving behind a Will dated 02.12.1999, duly registered with the office of Sub Registrar-II, Delhi as Document No. 67748 in Addl. Book No. III, Volume No. 4884 on pages 52-54 on 15.12.1999 before SR-II, New Delhi.
iii. In terms of the aforesaid Will dated 02.12.1999, Late Bawa Singh Kalsi bequeathed a life interest in the suit property to his wife, i.e., the Defendant No.1 and the suit property was bequeathed thereafter to Defendant No. 2 to 7 and to the Gurvinder Singh VS. Rajinder Kaur Page No.3 of 66 Civil DJ No. 16/2022 Plaintiff in equal shares, i.e., 1/7th share each as the absolute owners.
iv. In terms of the Will dated 02.12.1999, the Defendant No.1 was granted merely a right to enjoy the suit property during her life time and she was not empowered to dispose of the same or transfer the same in any manner nor was entitled to create any third party interest in the same. The Defendant No.1 was also not empowered to make any structural changes in the suit property.
v. The Defendant No.1 has applied for the probate of the Will dated 02.12.1999 and the same was granted on 27.08.2010 by the Court of Ld. Additional District Judge, West District, Tis Hazari Courts, Delhi in PC No. 202/06/05.
vi. The Defendant No.1 threatened to sell/transfer the suit property in July, 2011 and the Plaintiff served a legal notice dated 20.07.2011 upon her directing her not to sell/create any third party in the same. The Defendant No.1 ignored the notice dated 20.07.2011 and executed the Sale Deed dated 28.07.2011 in favour of Defendant No.2 in respect of back side portion of suit property ad-measuring 45 square yards. While executing the aforesaid sale deed, the Defendant No.1 represented herself Gurvinder Singh VS. Rajinder Kaur Page No.4 of 66 Civil DJ No. 16/2022 having clear title and absolute authority to sell the aforesaid property on the basis of the Will dated 02.12.1999 and in terms of Order of grant of probate dated 27.08.2011.
vii. The sale deed executed by the Defendant No.1 in favour Defendant No.2 is a sham transaction and does not confirm any right, title or interest in favour of Defendant No.1. The Defendant No.1 had limited rights to the suit property and was not entitled in law to transfer, sell or create any third party in the same.
viii. The Plaintiff apprehends that the Defendants would create further rights in the suit property against the interests of the Plaintiff, which they are not entitled. The Plaintiff No.1 is in actual, physical possession of the property consisting of two rooms kitchen, latrine and bathroom.
On the basis of the above-mentioned averments, the Plaintiff has prayed for declaration of nullity of the aforesaid sale deed dated 28.07.2011 and a decree of permanent injunction with regard to suit property.
3. Service of the Defendants & Written Statements:
3.1. The Defendants were duly served with the summons of the present suit and have entered appearance. The Defendant No.1 and 2 entered appearance on 19.12.2011 Gurvinder Singh VS. Rajinder Kaur Page No.5 of 66 Civil DJ No. 16/2022 through their Counsels. The Defendant No.3 to 7 entered appearance through their Counsels on 08.02.2012.
3.2. The Defendant No.1 filed written statement on 01.05.2013. The Defendant No.1 passed away, during the pendency of the suit on 10.07.2013. Since all the legal heirs of the Defendant No.1, except her son namely Mr. Jaspal Singh, were already on record, therefore, the Plaintiff filed an application for impleadment of Mr. Jaspal Singh and he was impleaded on record as legal representative of the Defendant No.1 on 27.03.2014. The LR of the Defendant No.1, namely Mr. Jaspal Singh, also filed the written statement, however the same was not taken on record in terms of Order dated 30.05.2014. Subsequently the aforesaid LR of the Defendant No.1 filed an application under Order I Rule 10 of the Code of Civil Procedure, 1908 on 15.07.2014 for his impleadment as a party and not merely as an LR of the Defendant No.1. The aforesaid application was allowed on 22.08.2014 and his previously filed written statement was taken on record.
In the order-sheets, Ms. Rajinder Kaur was mentioned as the Defendant No.1 till her death, however subsequently Mr. Jaspal Singh is sometimes mentioned as the Defendant No.1 and sometimes as LR of the Defendant No.1. Therefore, in the present judgment hereinafter, in order to obviate the confusion, Ms. Rajinder Kaur is Gurvinder Singh VS. Rajinder Kaur Page No.6 of 66 Civil DJ No. 16/2022 addressed as the Defendant No.1 and Mr. Jaspal Singh is referred to as the LR of the Defendant No.1.
3.3. The Defendant No.2 filed written statement on 01.07.2013. The Defendant No. 3 and 4 filed written statement on 15.09.2012. The Defendant No. 5 to 7 filed their written statement on 04.08.2012.
3.4. The Defendant No.1 has refuted the averments of the plaint in her written statement. It is stated by the Defendant No.1 that the right of maintenance of Defendant No.1 was pre-existing right and was an equitable charge on the suit property owned by late Bawa Singh Kalsi and therefore, the suit property was devised and bequeathed to Defendant No.1 by way of Will dated 02.12.1999 in recognition of her pre-existing right. It is stated that no restriction can be imported against the Defendant No.1 in absence of any restriction in the Will dated 02.12.1999. It is stated that the Defendant No.1 neither owned any property nor had any source of income and was fully Defendant upon her husband and his property for residence and maintenance. It is stated that Late Bawa Singh Kalsi provided residence & maintenance to Defendant No.1 during his lifetime and after his death, she continued to live in the suit property. It is stated that the Defendant No.1 had the right of residence & maintenance against the suit property and the aforesaid right was a pre-existing right.
Gurvinder Singh VS. Rajinder Kaur Page No.7 of 66 Civil DJ No. 16/2022 It is stated that since the Will in question conferred a right on the Defendant No.1 in recognition of her right to residence and maintenance, therefore, the Defendant No.1 became an absolute owner of the suit property. It is stated that after death of late Bawa Singh Kalsi, the Defendant No.1 was rendered destitute widow and neither the Plaintiff nor Defendants No. 3 to 7 provided any maintenance to the Defendant No.1. It is stated that the Plaintiff was not in possession of the property measuring 45 square yards., which was sold to the Defendant No.2 and therefore, mere suit for declaration was not maintainable. It is stated that the suit for declaration of title in respect of suit property and with regard to sale deed dated 28.07.2011 has to be valued either at market value or for sale consideration and therefore, the suit was not properly valued for the purpose of court fee and jurisdiction.
3.5. The Defendant No.2 has also refuted the averments of the plaint in her written statement. The written statement of the Defendant No.2 is on the lines of the written statement of the Defendant No.1 and she has reiterated the same contentions that the Defendant No.1 was an absolute owner and her right in the Will dated 02.12.1999 was granted in recognition of pre-existing right of maintenance and residence. It is reiterated that the right of the Defendant No.1 was not restricted and therefore she was entitled to deal with the suit property Gurvinder Singh VS. Rajinder Kaur Page No.8 of 66 Civil DJ No. 16/2022 as an absolute owner and the sale deed in favour of the Defendant No.2 was legal.
3.6. The Defendant No.3 and 4 have denied the averments of the plaint. They have reiterated the contentions of the Defendant No.2 in their written statement and stated that the Defendant No.1 was absolute owner of the suit property in terms of Will and was empowered to sell the same.
3.7. The LR of the Plaintiff, Mr. Jaspal, has also filed his written statement and it is stated that late Bawa Singh Kalsi sold to the suit property to the Mr. Jaspal Singh by executing General Power of Attorney, Agreement to Sell, Receipt, Possession letter, affidavit and also a registered Will dated 26.03.1999 and after execution of aforesaid document, no right or interest was left to be bequeathed by late Bawa Singh Kalsi. It is stated that the Plaintiff is not in possession of the suit property and therefore, was bound to pay Court fees as per the market value of the suit property.
3.8. The Defendant No. 5 to 7 have supported the case of the Plaintiff and stated in the written statement that the Defendant No. 1 has only limited right for her life in the suit property in terms of the Will dated 02.12.1999 and was not entitled to sell or dispose of the same and the sale deed in favour of the Defendant No.2 was illegal.
Gurvinder Singh VS. Rajinder Kaur Page No.9 of 66 Civil DJ No. 16/2022
4. The facts stated in the Replication:
4.1 The Plaintiff has filed the replications to the written statements of the Defendants, wherein the Plaintiff has traversed the contents of same to the extent the same were against the averments of the plaint and has made the necessary denials, reiterating the averments of the plaint.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 31.03.2015:
i. Whether the Plaintiff is entitled to the relief of declaration as prayed? OPP.
ii. Whether the Plaintiff is entitled to relief for injunction as prayed for? OPP.
iii. Whether the deceased Defendant No.1 was the absolute owner of the suit property and was entitled to sell the same? OPD2 to 4.
iv. Whether the latter impleaded Defendant Jaspal Singh has independent ownership of the suit prperty to the exclusion of all other LR's of Late Sh. Bawa Singh? OPD1.
v. Whether the suit has not been property valued for the purpose of jurisdiction and court fees? OPD 1 to 4.
Gurvinder Singh VS. Rajinder Kaur Page No.10 of 66
Civil DJ No. 16/2022
vi. Relief.
6. The Plaintiff's Evidence:
6.1 The Plaintiff has led his evidence and has examined two
witnesses in support of his case. The Plaintiff has appeared as PW-1 and has reiterated the contentions of the plaint in his examination-in-chief. The Plaintiff has exhibited and relied upon the following documents in his examination-in-chief:
i. Mark-A: Sale Deed dated 28.07.2011.
ii. Mark-B: Will dated 27.08.2010.
iii. Mark-C: Order dated 27.08.2010.
iv. Mark-D: Legal Notice dated 20.07.2011.
The PW-1 was cross-examined by Ld. Counsels for the Defendant and was discharged upon conclusion of his cross examination.
6.2 The Plaintiff has examined the official witness from the Office of Sub-Registrar-II to prove the factum of registration of the sale deed dated 30.07.2011, which is Ex.PW- 2/1(OSR). The PW-2 was not cross-examined despite the opportunity being granted to the Defendants and was discharged upon conclusion of his examination-in-chief.
Gurvinder Singh VS. Rajinder Kaur Page No.11 of 66 Civil DJ No. 16/2022
7. The Defendant's Evidence:
7.1. The Defendant No.1, i.e., late Rajinder Kaur, has already passed away prior to the stage of evidence. The LR of the Defendant No.1, i.e., Mr. Jaspal Singh, who was initially impleaded as the LR and subsequently as independent party, did not file any affidavit of evidence nor led any evidence in the matter. The Plaintiff's evidence was closed on 16.03.2017 and all the Defendants were directed to file their affidavits of evidence. No such affidavits were filed and on the next date of hearing, i.e., on 22.04.2016 one last and final opportunity was granted to the Defendants to file their affidavit of evidence. On the subsequent date of hearing, i.e., on 05.06.2017, the Defendant No.2 to 7 have filed their affidavit of evidence, whereas no affidavit of evidence was filed on behalf of Mr. Jaspal Singh nor any further opportunity for filing the same was sought. Thereafter the Defendant No.2 to 7 have led their evidence, whereas no evidence was led on behalf of Mr. Jaspal Singh. The aforesaid Mr. Jaspal Singh has appeared in the matter on 20.12.2019 and remained absent thereafter till 07.08.2023.
The presence of Mr. Jaspal Singh is marked on 07.08.2023 and subsequently on 31.01.2024 and he remained absent in the matter for the dates of hearing in between as well as after 31.01.2024.
7.2. The Defendant No.2 has led her evidence and has examined herself as DW-2, being the sole witness in support of her Gurvinder Singh VS. Rajinder Kaur Page No.12 of 66 Civil DJ No. 16/2022 case. The Defendant No.2 has reiterated the averments of her written statement in the examination in chief, however did not rely upon any document. The Defendant No.2 was cross- examined on behalf of the Plaintiff and was discharged upon conclusion of her cross-examination.
7.3. The Defendant No.3 & 4 have filed their affidavit of evidence and were examined in chief on 25.07.2017 and their cross-examination was deferred. Subsequently the Defendant No.3 and 4 did not appear to be cross-examined on behalf of the Plaintiff. Therefore, the right of the Defendant No.3 and 4 to lead evidence was closed on 29.09.2021.
7.4. The Defendant No.5 to 7 were supporting Defendants and they have examined themselves as the DW-5, DW-6 and DW-7 respectively. The Defendant No. 5 to 7 reiterated averments of their written statement in their examination in chief and did not rely upon any document. The Defendant No.5 to 7 were cross-examined on behalf of the Plaintiff and were discharged upon conclusion of their cross-examination. Thereafter the matter was posted for final arguments.
7.5. The suit has been initially filed and adjudicated before the Court of the Ld. Senior Civil Judge and evidence in the matter was concluded before the aforesaid Court. At the stage of final arguments, the Issue No.5 was treated as preliminary Issue and in terms of the same, the Court of Ld. Gurvinder Singh VS. Rajinder Kaur Page No.13 of 66 Civil DJ No. 16/2022 Civil Judge concluded on 31.01.2024 that the suit was not properly valued and the Plaintiff was granted an opportunity to correct the valuation. The Plaintiff subsequently filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, which was allowed on 26.07.2024 and in terms of the enhanced valuation, the matter was placed before the Ld. Principal District & Sessions Judge, West, THC, Delhi and thereafter on 10.09.2024, Ld. Principal District & Sessions Judge, West THC, Delhi transferred the present suit to this Court. The evidence in the matter on all the Issues has already been concluded and amendment was related to the Issue of valuation, i.e., Issue No.5 and in terms of Order dated 31.01.2024, the Plaintiff only corrected valuation and paid the ad-valorem Court fees on the same. Since the evidence on all the other Issues has already concluded and the amendment only related to correction of valuation in compliance of the Order dated 31.01.2024, therefore, this Court proceeded with the suit from the stage of final arguments after transfer of the suit.
8. Submissions of the Parties.
8.1. Ld. Counsel for the Plaintiff has submitted that the Defendant No.1 was only granted the life interest in the suit property in terms of the Will dated 02.12.1999 and the aforesaid right was limited to occupy and use of the suit property during her lifetime and therefore, she was unable to transfer the title of the suit in favour of anyone, including the Gurvinder Singh VS. Rajinder Kaur Page No.14 of 66 Civil DJ No. 16/2022 Defendant No.2. It is stated that the sale deed executed by the Defendant No.1 in favour of the Defendant No.2 was in violation of the rights conferred by the Will dated 02.12.1999, which has duly been probated. It is submitted that the suit property was separate property of late Bawa Singh Kalsi and the right to the Defendant No.1 was not granted in acknowledgment or recognition of any right to claim maintenance and therefore, the aforesaid right falls within Section 14(2) of the Hindu Succession Act, 1956. It is submitted that the right of the Defendant No.1 remained limited in terms of the Section 14(2) of the Hindu Succession Act, 1956. It is submitted that the sale deed in favour of the Defendant No.2 is sham and is merely an eyewash as no consideration for the same was paid or received. Ld. Counsel for the Plaintiff has relied upon the following judgments:
i. Akkamma & Ors. Vs. Vemavathi & Ors.: (2021) 18 SCC 371. ii. Shivdev Kaur Vs. R.S. Grewal: 2013 (4)SCC 636. iii. Jogi Ram Vs. Suresh Kumar & Anr.: (2022) 4 SCC 274. iv. Ranvir Dewan Vs. Rashmi Khanna (12.12.2017) : CA No. 21784 of 2017 by the Supreme Court of India.
8.2. Ld. Counsel for the Defendant No.2 has submitted that the Defendant No.2 was an absolute owner of the suit property in terms of Will dated 02.12.1999. It is submitted that the rights under Will dated 02.12.1999 were granted in recognition of her pre-existing right to maintenance and residence and therefore, she became an absolute owner of the Gurvinder Singh VS. Rajinder Kaur Page No.15 of 66 Civil DJ No. 16/2022 suit property, in terms of Section 14(1) of the Hindu Succession Act, 1956. It is submitted that the Defendant No.1 did not have any source of income and was dependant for her maintenance and residence upon her late husband and therefore, the right in the Will has to be accordingly understood. It is submitted that the Defendant No.1 was rendered destitute after the death of her husband and therefore, has sold the suit property to sustain herself as the Plaintiff and other Defendants did not come forward to maintain the Defendant No.1. It is submitted that the Plaintiff has not claimed the prayer of possession and therefore, the suit for declaration simpliciter is not maintainable. Ld. Counsel for the Defendant No.1 has further relied upon the following judgments:
i. Vasantha through LRs. Vs. Rajalakhsmi through LRs.: 2024/INSC/109.
ii. Gulwant Kaur Vs. Mohinder Singh: AIR 1987 SC 2251.
iii. Venkataraja & Ors. Vs. Vidyane: 2014(14) SCC 502;
iv. Vinay Krishna Vs. Keshav Chandra & Anr.:
AIR 1993 SC 957.
v. T.S. Ganesan Vs. Smt. Parvatham Ammal
(High Court of Madras).
8.3. Ld. Counsel for the Defendant No. 5 to 7 have supported the contentions of the Ld. Counsel for the Plaintiff. Ld. Counsel for the Defendant No. 5 to 7 has relied upon the judgment of Gurvinder Singh VS. Rajinder Kaur Page No.16 of 66 Civil DJ No. 16/2022 'Sadhu Singh Vs. Gurdwara Sahib Narike: AIR 2006 SC 3282', in addition to placing reliance upon the judgments already relied upon by the Ld. Counsel for the Plaintiff. No arguments have been addressed on behalf of the remaining Defendants.
9. Conclusions on Issues and reasons for such conclusions:
On the basis of the pleadings of the parties, 5 issues have been framed in the matter on 31.03.2015. The outcome of the Issue No.1 and 2 depends on the Issue No.3, 4 and 5. Therefore, the Issue No. 3, 4 and 5 are taken up for discussion first and the Issue No.1 and 2 will be discussed afterwards.
9.1. Issue No.3: Whether the deceased Defendant No.1 was the absolute owner of the suit property and was entitled to sell the same? OPD2 to 4.
9.1.1. The onus to prove the Issue No.3 is upon the Defendant No.2 to 4. The Defendant No.1, i.e., Late Ms. Rajinder Kaur, was wife of Late Bawa Singh Kalsi. It is admitted case of parties that late Bawa Singh Kalsi was owner of the suit property and purchased the same by virtue of a registered sale deed dated 12.09.1962. The original/certified copy of sale deed dated 12.09.1962 has not been produced and only a copy of the sale deed dated 12.09.1962 has been produced on record, Gurvinder Singh VS. Rajinder Kaur Page No.17 of 66 Civil DJ No. 16/2022 that too by the LR of the Defendant No.1, i.e. Mr. Jaspal Singh. Though the parties have admitted the title of late Bawa Singh Kalsi as well as the fact that the suit property was self-acquired property of late Bawa Singh Kalsi. Ld. Counsel for the Plaintiff has submitted that since there was no dispute with regard to the ownership of late Bawa Singh Kalsi, therefore, the Plaintiff does not dispute the copy of the sale deed dated 12.09.1962 produced on record by LR of the Defendant No.1.
9.1.2. It is stated by the Plaintiff that late Bawa Singh Kalsi executed a registered Will dated 02.12.1999, whereby the Defendant No.1 was granted life interest in the suit property and the Plaintiff alongwith the Defendant No.2 to 7 were granted absolute ownership of the suit property after the lifetime of the Defendant No.1. All the Defendants, except Mr. Jaspal Singh, have admitted the factum of execution and registration of the Will dated 02.12.1999. Mr. Jaspal Singh was son of late Bawa Singh Kalsi and the Defendant No.1, i.e., Late Rajinder Kaur, and he was excluded from inheriting any share in the suit property in terms of the Will dated 02.12.1999.
9.1.3. It is admitted by the parties that the Defendant No.1 has applied for probate of the Will dated 02.12.1999 and the same was granted in terms of Order/Judgment dated 21.11.2009 passed in Probate Case No. 202/06/05 by the Ld. Additional District Judge, West District, Tis Hazari Courts, Gurvinder Singh VS. Rajinder Kaur Page No.18 of 66 Civil DJ No. 16/2022 Delhi. It is submitted that the aforesaid grant of probate has not been set aside and has attained finality. Mr. Jaspal Singh, i.e., son of late Bawa Singh Kalsi and Late Rajinder Kaur, has contested the aforesaid probate case and filed objection against the Will dated 02.12.1999, which were duly adjudicated and dismissed on merits and legality of the Will dated 02.12.1999 was upheld.
9.1.4. The Plaintiff has only filed a copy of the Will dated 02.12.1999, which is identified as Mark-B in the affidavit of evidence of the Plaintiff. However, in the statement of tendering of affidavit of evidence, i.e., examination in chief, the Will dated 27.08.2010 is identified as Mark-B. There is no document on record such as Will dated 27.08.2010 and the parties have consistently referred to only one Will dated 02.12.1999. The actual exhibit numbers, i.e., Mark-A to Mark-D mentioned in statement of PW-1 dated 21.12.2015, have further not been marked on the documents to correctly identify the same. The examination in chief of the PW-1 has been conducted completely casually without even identifying the documents properly and only relying upon the copies.
9.1.5. Though subsequently, the Plaintiff has filed the certified copy of the case records of the Probate Case, i.e., P.C. No. 202/06/05 and the same was taken on record on 05.08.2025.
The aforesaid record contains the certified copy of Order/Judgment dated 21.11.2009, as well as the certified copy of the Will dated 02.12.1999. The aforesaid certified Gurvinder Singh VS. Rajinder Kaur Page No.19 of 66 Civil DJ No. 16/2022 copies of records/proceedings of PC No. 202/06/05 have not been disputed by parties. Therefore, the infirmity left in the Plaintiff's examination in chief, with regard to exhibition of Will dated 02.12.1999, is rectified.
9.1.6. The Judgment/Order dated 21.11.2009 in P.C. No. 202/06/05, passed by the Court of Ld. Additional District Judge has conclusively determined the validity of the Will dated 02.12.1999. The aforesaid case was contested by Mr. Jaspal Singh and his objections were rejected and probate of the Will dated 02.12.1999 was granted after due contest and thereby the validity of the Will dated 02.12.1999 is legally established. It will be useful to refer to Section 41 of the Indian Evidence Act, 1872. The decision of a probate case operates as a judgment in rem in view of the Section 41 of the Indian Evidence Act, 1872, which is being reproduced hereinbelow:
"41. Relevancy of certain judgments in probate, etc. jurisdiction- A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to an specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order pr decree is conclusive proof:
that any legal character which it confers accrued at the time when such judgment, order or decree came Gurvinder Singh VS. Rajinder Kaur Page No.20 of 66 Civil DJ No. 16/2022 into operation;
that any legal character, to which it declares any such person to be entitled, accrued, to that person to be entitled, accrued, to that person at the time when such judgment, order or decree declares it to have accrued to that person;
that any legal character which it takes away from any person ceased at the time from which judgment, order or decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."
Therefore, in terms of above-referred provision, read with the Order of grant of probate dated 21.11.2009, it is established that the Will dated 02.12.1999 is the last and legal Will of late Bawa Singh Kalsi.
9.1.7. Now it has to be examined as to what were the nature of the rights of the parties under the aforesaid Will dated 02.12.1999. It is stated by the Plaintiff and the Defendant No. 5 to 7 that the right granted to the Defendant No.1 in the Will dated 02.12.1999 was only a life interest and without any right to further transfer the property. It is case of the Defendant No.1, i.e., late Ms. Rajinder Kaur, and the Defendant No. 2 to 4 that the aforesaid bequest does not confer any limited estate on the Defendant No.1, however translates itself into absolute ownership as the right was conferred in recognition of the pre-existing right of Gurvinder Singh VS. Rajinder Kaur Page No.21 of 66 Civil DJ No. 16/2022 maintenance of the Defendant No.1. It is stated that the Defendant No.1 was financially dependent upon her husband, who was maintaining her and provided her residence during his lifetime and she had a pre-existing right to claim maintenance against the suit property and the right in the Will dated 02.12.1999 was granted to her in recognition of her aforesaid pre-existing right and she had become absolute owner of the suit property.
9.1.8. Thus, the contention of the Defendant No.2 to 4 is that the case under hand falls within purview of Section 14(1) of the Hindu Succession Act, 1956, whereas it is contended by the Plaintiff and the Defendant No. 5 to 7 that the case falls under Section 14(2) of the Hindu Succession Act, 1956. Section 14 of the Hindu Succession Act, 1956 is being reproduced hereinbelow:
"14. Property of a female Hindu to be her absolute property:
(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.
Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, Gurvinder Singh VS. Rajinder Kaur Page No.22 of 66 Civil DJ No. 16/2022 or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (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."
Therefore, only question to be answered is whether the right granted to the Defendant No.1 falls within the purview of Section 14(1) of the Act of 1956, which would translate into absolute ownership or falls under Section 14(2) of the Act, which would remain limited in terms of the bequest and does not affect the rights of the Plaintiff and the Defendant No.2 to 7.
9.1.9. Ld. Counsel for the parties have relied upon various judgments in order to stress upon the position of law. The judgment relied upon by Ld. Counsel for the Plaintiff and ratio of the same is mentioned hereinbelow:
i. "Ranvir Dewan Vs. Rashmi Khanna: CA No.21784 of 2017": The Hon'ble Supreme Court has held that Section 14(2) applies only where a Hindu female acquires property for the first time as a grant without any pre- existing right under an instrument prescribing a restricted estate. However, where property is allotted at partition or Gurvinder Singh VS. Rajinder Kaur Page No.23 of 66 Civil DJ No. 16/2022 in lieu of maintenance and is based on a pre-existing right, the same falls outside Section 14(2), even if the grant imposes restrictions. It is further held that once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.
ii. Shivdev Kaur (D) By L.Rs. and Ors. Vs. R.S. Grewal:
2013(4) SCC 636: The Hon'ble Supreme Court summarized the law on the issue to the effect that where a Hindu female is conferred only a life interest in property under a Will, gift, or any other instrument, such limited interest does not crystallize into absolute ownership by virtue of Section 14(1) of the Act. Any interpretation extending Section 14(1) to convert such restricted grants into absolute ownership would render the provisions of Sections 14(2) and 30 of the Act otiose and defeat the legislative intent. It was further held that Section 14(2) carves out an exception to rule provided in sub- section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a "life interest", it would remain the same even after commencement of the Act 1956, and such a Hindu female cannot acquire absolute title. The Court further examined that whether person is destitute or not, is a question of fact. The expression 'destitute' has not been defined under any Act. The dictionary meaning is "without resources, in want of necessaries". A Gurvinder Singh VS. Rajinder Kaur Page No.24 of 66 Civil DJ No. 16/2022 person can be held destitute when no one is to support him and is found wandering without any settled place of abode and without visible means of subsistence.
The judgment relied upon by Ld. Counsel for the Defendant No.2 and ratio of the same is mentioned hereinbelow:
i. Gulwant Kaur and Ors. Vs. Mohinder Singh and Ors.:
AIR 1987 SC 2251: The Hon'ble Supreme Court has held that Section 14 is intended to remove restrictions on a female Hindu's right to enjoy property as full owner, provided her possession has a lawful origin. This applies regardless of how the property was acquired--by inheritance, devise, partition, maintenance, gift, purchase, or otherwise. For property received in lieu of maintenance, the right to maintenance itself suffices as title to convert possession into full ownership under Section 14(1). Section 14(2) serves as an exception, applying only to property acquired under a written instrument or court decree, not to property traceable to antecedent rights. The Court further relied upon Tulasamma v. Sesha Reddi, [1977] 3 SCR 261 wherein, it was clearly laid down that sec. 14(1) would be applicable to property given to a female Hindu in lieu of maintenance. It was also made clear that sec. 14(2) would apply only to cases where the acquisition of property was made by a Hindu female without any pre-existing right. The document in the Gurvinder Singh VS. Rajinder Kaur Page No.25 of 66 Civil DJ No. 16/2022 aforesaid case was not a Will.
9.1.10. The Hon'ble High Court of Delhi has discussed the scope of Section 14(1) and (2) of the Hindu Succession Act, 1956 in greater detail in "Manmohan Singh & Anr. Vs. Shital Singh & Ors. (24.04.2024): 2024/DHC/3185." The Hon'ble High Court has discussed the judgments of the Hon'ble Supreme Court at length and the entire discussion on law as well as on fact of the case is relevant to the case at hand and therefore, the same is being reproduced hereinbelow:
"38. There are two competing arguments as to the legal interpretation of this Will. The first argument is that this entire bequest should be considered as maintenance for the wife under Section 14(1) of the 1956 Act which, therefore, results in her becoming the absolute owner of the property. The other argument is that the wife did not have any rights when the Will was executed. The Will, merely, gave her life estate, and upon her death, it would devolve in terms of the Will.
39. The legal position of Section 14 of the 1956 Act is now well-settled in the following decisions:-
i) V. Tulasamma (supra), in this decision, the Supreme Court conclusively laid down the incidents and characteristics of a Hindu woman's right to maintenance, and held that the provisions of Section 14 of the 1956 Act ought to be liberally construed in order to advance the object of the 1956 Act, which is to enlarge the limited interest possessed by a Hindu widow, which was in consonance with the changing temper of the times;
ii) In Jogi Ram (supra), the Supreme Court discusses the entire law on the subject and also considers the earlier decisions, including the decisions in Jupudy Pardha Sarathy (supra) and V. Tulasamma (supra).
iii) Jupudy Pardha Sarathy (supra) which the ld. Trial Court has relied upon, and;
Gurvinder Singh VS. Rajinder Kaur Page No.26 of 66 Civil DJ No. 16/2022
iv) Munni Devi (supra) relied upon by the contesting Respondents.
40. In Tulasamma (supra), the Appellant sought maintenance from joint family properties controlled by the deceased husband's brother, as her husband had passed away in 1931. A decree awarded her certain properties for her maintenance, granting her a limited interest without rights of alienation. Despite the 1956 Act, she leased out these properties, leading to a challenge asserting that such alienations were only valid for her lifetime. She claimed full ownership under Section 14(1) of the 1956 Act, but the Trial Court held that her interest did not expand under Section 14(2) of the 1956 Act. The Supreme Court allowed the appeal, and it was held that since the properties were acquired by the Appellant under the compromise in lieu of or in satisfaction of her right of maintenance, it is sub-section (1) and not sub-section (2) of Section 14 of the 1956 Act, that would be applicable, and hence the Appellant must be deemed to have become full owner notwithstanding that the compromise prescribed a limited interest to her. The Supreme Court also laid down the propositions emerging in respect of incidents and characteristics of a Hindu woman's right to maintenance. The relevant portions of the said decision are as follows:
"62. (1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised 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 therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, Gurvinder Singh VS. Rajinder Kaur Page No.27 of 66 Civil DJ No. 16/2022 even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long-needed legislation. (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-
existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions Gurvinder Singh VS. Rajinder Kaur Page No.28 of 66 Civil DJ No. 16/2022 placed on the powers of the transferee.
(5) The use of express terms like 'property acquired by a female Hindu at a partition', 'or in lieu of maintenance', 'or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2).
(6) The words 'possessed by' used by the legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words 'restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee."
41. In Jogi Ram (supra), the testator in terms of the Will dated 15th April, 1968 bequeathed to his wife a limited ownership for her enjoyment during her lifetime with respect to 50% of the land in question. The Will also provided that she could not alienate, transfer or create third party rights over the same. After her lifetime, her share of the property was to vest absolutely in Shri. Jogi Ram. The question before the Supreme Court was whether the bequest was absolute in favour the wife as maintenance under Section 14(1) of the 1956 Act, or bequest under the Will would follow, after the lifetime of the wife. The relevant portion of the judgment are set out Gurvinder Singh VS. Rajinder Kaur Page No.29 of 66 Civil DJ No. 16/2022 below:
"12. On the second aspect the High Court has taken a view that V. Tulasamma & Ors. (supra) case had sufficiently resolved any uncertainty under Sections 14(1) & 14(2) of the said Act. A Hindu female has a right to maintenance on a property if a charge was created for her maintenance, the right would become legally enforceable irrespective, even without a charge, the claim for maintenance was a pre-existing right so that any transfer declaring such right would not confer a new title but merely confirm pre-existing rights and Section 14(2) of the said Act cannot be interpreted in a manner that would dilute Sections 14(1) and 14(2) of the said Act. Only in a scenario where the instrument created a new title in favour of the wife for the first time, would Section 14(2) would come into play and not where there was a pre-existing right. Ram Devi was held to have been conferred with a limited right which would translate into an absolute right over the suit property as it was only a confirmation of the pre- existing right over the property.
...
17. There is no doubt that Section 14 of the said Act is the part of the said Act to give rights of a property to a Hindu female and was a progressive step. Sub-Section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner. The Explanation to sub Section (1) of Section 14 of the said Act defines the meaning of "property" in this subsection to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana. The Gurvinder Singh VS. Rajinder Kaur Page No.30 of 66 Civil DJ No. 16/2022 Explanation is quite expansive.
18. Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a 'non- obstante clause'. Thus, it says that "nothing contained in sub-section (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...." etc. where a restricted estate in such property is prescribed. In our view the objective of sub-Section (2) above is quite clear as enunciated repeatedly by this Court in various judicial pronouncements, i.e., there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said Act."
42. After having discussed the provision in detail, the Supreme Court interpreted the Will itself, and observed as under in relation to the intention of the testator:-
"19. Before considering the submissions it would be appropriate to turn to the Will itself. The Will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself. The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property. We may note that Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the Will was executed one of the daughters was unmarried and the Will also provided that in case for performing the marriage Ram Devi needs money she will have the right to Gurvinder Singh VS. Rajinder Kaur Page No.31 of 66 Civil DJ No. 16/2022 mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage.
20. We have set forth the terms and conditions of the Will to understand the intent of the testator. The testator is, at least, clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half and half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant."
43. In the above decision, the Supreme Court drew a distinction between 'income from property' and 'the property itself'. It came to the conclusion that the income from the property to the wife was maintenance, but not the property itself. The Supreme Court then framed the following two issues for consideration:-
"i. In the given factual scenario did Ram Devi become the absolute owner of the property in view of Section 14(1) of the said Act or in view of the Will the Explanation under Section 14(2) would apply.
ii. What is the effect of the first round of litigation which came up to this Court between the appellant and Ram Devi, the two beneficiaries of the Will."
44. The Court then analysed the decision in V. Tulasamma (supra) and held that the word 'possessed' in Section 14(1) of the 1956 Act has to be construed widely. The Hindu woman need not have physical or actual possession of the property so long she has a right in the property. The observations of the Supreme Court are as under:-
"29. In the light of the aforesaid passage, Sections 14(1) & 14(2) of the said Act were entered by the Court. The word "possessed" was held to be used in a wide sense not requiring a Hindu woman to be an actual or physical possession of the property and it would suffice if she has a right in the property. The discussion in para 33 thereafter Gurvinder Singh VS. Rajinder Kaur Page No.32 of 66 Civil DJ No. 16/2022 opines that the intention of the Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions, viz., a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of the Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act. The conclusions were thereafter set forth in para 62 of the judgment......."
45. After analysing the other decisions, in the facts of the said case, the Court observed that under Section 14(2) of the 1956 Act, a restricted right in favour of the female is permissible in law. The relevant portion is as under:-
"30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub- section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere.
31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view.
32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his Gurvinder Singh VS. Rajinder Kaur Page No.33 of 66 Civil DJ No. 16/2022 wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequitur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained."
46. The Supreme Court also distinguished the case of Jupudy Pardha Sarathy (supra) on the grounds that the decision concerned a Will dated before 1956, i.e., prior to the enactment of the Hindu Succession Act, 1956.
47. In another case, Mr. Ranvir Dewan v. Mrs. Rashmi Khanna & Anr. [MANU/SC/1584/2017 :
2017:INSC:1219 : 2017 13 SCR 542] the facts were that the Appellant-a son of the testator, and the Respondent No. 1-his sister, were each bequeathed different floors of a house by their father's Will. The mother was granted a "life interest" in the house, allowing her to reside there until her death. Conflicts arose between the siblings, leading to a joint suit by the Appellant and his mother against Respondent No. 1, seeking a declaration that the mother was the absolute owner of the house due to the expansion of her "life interest" into an absolute interest under Section 14(1) of the 1956 Act following her husband's death. However, both the Single Judge and the Division Bench of the High Court dismissed the suit, stating that the case fell under Section 14(2) of the 1956 Act, which maintained the mother's "life interest" as a "restricted estate" until her death. The Appellant and Respondent No. 1 were deemed the absolute owners of their respective portions of the house. The Supreme Court upheld this judgment, agreeing that the disposition of the property under the will was in line with Section 14(2) read with Section 30 of the 1956 Act, and found no Gurvinder Singh VS. Rajinder Kaur Page No.34 of 66 Civil DJ No. 16/2022 error in the trial court's judgments.
48. In the above decision, the Appellant's father was the sole owner of the said house. The Will he executed intended to grant only a 'life interest' to his wife (the Appellant's mother) in the house. This 'life interest' was granted independently of any pre-existing right she may have had. Furthermore, the Supreme Court noted that it was undisputed that this right was limited to her residing in the house during her lifetime and using the income from the property for her maintenance. The relevant portions of the said decision are as follows:
"33. In order to decide the question as to whether the appellant's case falls under Section 14(1) or (2) of the Act, it is necessary to first examine as to what is the true nature of the estate held by the testator. Second, what the testator had intended and actually bequeathed to his wife by his Will; and lastly, the right in the property received by Mrs. Pritam, viz., absolute interest by virtue of sub- section (1) or "life interest" by virtue of sub- section (2) of Section 14 of the Act. 34. Coming now to the facts of the case, it is not in dispute that the suit house was the self-acquired property of late Mr. Dewan. It is also not in dispute as one can take it from reading the contents of Will that Mr. Dewan had intended to give only "life interest" to his wife in the suit house, which he gave to her for the first time by way of disposition of his estate independent of her any right. It is also not in dispute that it was confined to a right of residence to live in the suit house during her lifetime and to use the income earned from the suit house to maintain herself and the suit house. It is also not in dispute that the testator gave to his son ground floor of the suit house and first floor to his daughter with absolute right of ownership. The testator also permitted both of them to get their names mutated in the municipal records as absolute owners and, also get them assessed as owners in the wealth tax assessment cases.
Gurvinder Singh VS. Rajinder Kaur Page No.35 of 66 Civil DJ No. 16/2022
35. So far as other properties, viz., one plot at Ghaziabad, share in HUF and moveable properties were concerned, Mr. Dewan gave these properties to Mrs. Pritam-his wife absolutely.
36. It is a settled principle of law that what the testator intended to bequeath to any person(s) in his Will has to be gathered primarily by reading the recitals of the Will only.
37. As mentioned above, reading of the Will would go to show that it does not leave any kind of ambiguity therein and one can easily find out as to how and in what manner and with what rights, the testator wished to give to three of his legal representatives his self acquired properties and how he wanted to make its disposition.
...
41. Reading of the aforementioned principle of law laid down in the cases of V. Tulasamma and Sadhu Singh (supra), it is clear that the ambit of Section 14(2) of the Act must be 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. however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre- existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act. even if the instrument, decree, order or award allotting the property prescribes a ''restricted estate" in the property.
42. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of plaintiff No. 2-Mrs. Pritam does not fall under Section 14(1) of the Act but it squarely falls under Section 14(2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu Singh's case(supra) would apply.
43. A fortiori, plaintiff No. 2-late Mrs. Pritam received Gurvinder Singh VS. Rajinder Kaur Page No.36 of 66 Civil DJ No. 16/2022 only "life interest" in the suit house by the Will dated 24.06.1986 from her late husband and such "life interest" was neither enlarged nor ripened into an absolute interest in the suit house and remained "life interest", i.e., "restricted estate" till her death under Section 14(2) of the Act. This we say for following factual reasons arising in the case.
44. First. the testator-Mr. Dewan being the exclusive owner of the snit house was free to dispose of his property the way he liked because it was his self earned property.
45. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only "life interest" to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition. the testator could make by virtue of Section 14(2) read with Section 30 of the Act.
46. Third, such "life interest" was in the nature of "restricted estate" under Section 14(2) of the Act which remained a "restricted".
47. Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.
48. Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, Gurvinder Singh VS. Rajinder Kaur Page No.37 of 66 Civil DJ No. 16/2022 therefore, no occasion for her to demand any kind of maintenance from her husband.
49. Sixth, it is a settled principle of law that the "life interest" means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the "life interest" only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her "life interest" in the suit house was extinguished on her death on 12.09.2016.
50. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of his self-acquired property in 1968. Though he gave to wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wife's death would go to testator's nephew. Due to these restrictions put by the testator on his wife's right to sell/mortgage, it was held that the wife received only the "life interest" in the properties by Will and such "life interest", being a "restricted estate" within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a "life interest" i.e. "restricted estate"
under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singh's case(supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singh's case.
51. In view of foregoing discussion, we are of the considered opinion that there is no error in the impugned judgment, which has rightly held that Gurvinder Singh VS. Rajinder Kaur Page No.38 of 66 Civil DJ No. 16/2022 the case of Mrs. Pritam (Plaintiff No. 2) falls under Section 14(2) of the Act insofar as it relates to the suit house."
49. The observations made by the Supreme Court in Jogi Ram (supra) and in Mr. Ranvir Dewan (supra) are squarely applicable to the facts of the present case. The Supreme Court, in fact, expresses concern that in every case where a Hindu man had a self-acquired property, if the wife is given limited estate during her lifetime, but if the same is construed as the absolute ownership in her favour, there could be a hesitation in giving life estate, which would be contrary to the interest of women itself- thus, adversely influencing how properties are bequeathed to women. It could have the effect of inadvertently harming the interests of women which needs to be secured for their lifetime and may also expose women to the caprices of their children. However, the above position may be different depending on facts where the Court could construe a limited estate as absolute ownership, due to various circumstances.
50. The Court also observes that when there is no right that the woman had prior to the execution of the instruments i.e. the Will, a limited estate is permissible under Section 14(2) of the 1956 Act.
51. In the present case, the following facts are not disputed:-
i) That the property was a self-acquired property of the testator and his wife did not have any inde- pendent rights or pre-existing rights in the same;
ii) That the wife did not pre-decease the testator;
iii) That the wife enjoyed the lease rentals from the subject property during her lifetime;
iv) She was not given any right to sell, alienate or transfer the property;
v) The testator specifically identified and be-
queathed which portions of the subject property would vest in each of his legal heirs after the wife's death. Such bequest was to be carried out Gurvinder Singh VS. Rajinder Kaur Page No.39 of 66 Civil DJ No. 16/2022 in the same manner, even if the wife predeceased him.
52. The above factors establish that the testator had expressed his clear intention regarding which of his legal heirs would enjoy specific portions of the property and which heirs would not be entitled to any share of his property.
53. The law of succession clearly recognizes a bequest made by way of a Will. The purpose of drafting a Will is to grant an individual the freedom to decide how the assets should be distributed after their death. Therefore, as held by the Supreme Court in Navneet Lal v. Gokul & Ors. (MANU/SC/0328/1975 : 1975 INSC 307) any interpretation of the law should further the said intention rather than contradict it.
54. In the case of Hindu women, who may not have their own income, receiving a life estate given to them by their husbands-who may predecease them-is an essential safeguard for their financial security during their lifetime. Such security is essential to ensure that the woman is not dependent on her children, after the demise of the husband. Under such circumstances, the wife has complete rights to enjoy the property during her lifetime. She can also enjoy the income from the said property throughout her life. However, it cannot be held that the entire property should be construed as maintenance giving the wife absolute rights over the property, after the death of her husband.
55. In the present case, the wife of the testator did not execute any Will during her lifetime, and died intestate. Mahinder Kaur continued to reside in the subject property for over 23 years after her husband's death, and even contributed to the development of the subject property. During these years no challenge to the said Will was raised, neither by her nor by the testator's children. Therefore, she obviously had no contrary intention to what her husband expressed in his Will. By not drafting a will of her own, Mahinder Kaur did not express any intention that differed from her husband's will, thereby reinforcing the assumption that she agreed Gurvinder Singh VS. Rajinder Kaur Page No.40 of 66 Civil DJ No. 16/2022 to the conditions he established before he breathed his last. The Will categorically states that the wife has no right to sell, alienate, or transfer the subject property. Given this position, to assert that upon the death of her husband she became the absolute owner of the subject property and could have sold or alienated the property would contradict the clear intent expressed in the Will as also the intention of the deceased mother clearly expressed through her conduct that she did not execute a Will or sell the property during her lifetime. Clearly, she intended to respect the wishes of her husband. As held in Jogi Ram (supra), an interpretation that she has absolute rights, would be contrary to the spirit of Section 14(2) of the 1956 Act itself. In this case, the wife's rights in the subject property clearly devolved upon her only under a Will. She did not 'possess' any rights in the property prior to her husband's death; she acquired rights solely under the Will. She had the right to enjoy the income generated from the subject property during her lifetime, and this cannot be considered an absolute interest.
56. The ld. Trial Court relied upon a judgement clearly not applicable and distinguishable on facts, as the Will in Jupudy Pardha Sarathy (supra) related to the year 1935, prior to the enactment of 1956 Act. This position having been clarified in Jogi Ram (supra), no further discussion is required.
57. The decision in Munni Devi (supra), relates to a case where the Hindu woman was residing in the premises, and was collecting rent from the tenants, who were occupying part of the premises, prior to the demise of her husband. In such circumstances, the Court held that the Hindu women become an absolute owner of the property under Section 14(1) of the 1956 Act. In the said case too, the Will was executed on 30th July, 1949, prior to the enactment of the 1956 Act. Further, the property in question was part of the HUF, and not self-acquired property. Hence, the same decision is also clearly distinguishable on facts, and is not applicable.
58. Thus, the impugned order passed by the ld. Trial Court dated 26th September, 2017 is, accordingly, set aside."
Gurvinder Singh VS. Rajinder Kaur Page No.41 of 66 Civil DJ No. 16/2022 9.1.11. Thus, in terms of the above-referred observations, it has been held by the Hon'ble High Court of Delhi that a limited estate granted in self acquired property of a Hindu male by way of Will would by itself confer absolute ownership on the wife. It is held that when there is no right that the woman had prior to the execution of the instruments i.e. the Will, a limited estate is permissible under Section 14(2) of the 1956 Act. It is held that the law of succession clearly recognizes a bequest made by way of a Will and the purpose of drafting a Will is to grant an individual the freedom to decide how the assets should be distributed after their death and therefore, any interpretation of the law should further the said intention rather than contradict it. It is held that in the case of Hindu women, who may not have their own income, receiving a life estate given to them by their husbands-who may predecease them-is an essential safeguard for their financial security during their lifetime and such security is essential to ensure that the woman is not dependent on her children, after the demise of the husband. It is held that under such circumstances, the wife has complete rights to enjoy the property during her lifetime and the wife can also enjoy the income from the said property throughout her life, however, it cannot be held that the entire property should be construed as maintenance giving the wife absolute rights over the property, after the death of her husband.
Gurvinder Singh VS. Rajinder Kaur Page No.42 of 66 Civil DJ No. 16/2022 9.1.12. The Hon'ble High Court of Delhi has further relied upon the observations made by the Supreme Court in Jogi Ram supra) and in Mr. Ranvir Dewan (supra), wherein the Supreme Court expressed concern that in every case where a Hindu man had a self-acquired property, if the wife is given limited estate during her lifetime, but if the same is construed as the absolute ownership in her favour, there could be a hesitation in giving life estate, which would be contrary to the interest of women itself-thus, adversely influencing how properties are bequeathed to women. It is observed that the aforesaid interpretation could have the effect of inadvertently harming the interests of women which needs to be secured for their lifetime and may also expose women to the caprices of their children, however, the above position may be different depending on facts where the Court could construe a limited estate as absolute ownership, due to various circumstances.
9.1.13. Therefore, the rights of the wife, i.e., Defendant No.1, under the Will dated 02.12.1999 are to be examined in view of the legal position as discussed hereinabove. The aforesaid rights are granted in the Will dated 02.12.1999 and therefore, the Will itself is most relevant document to infer and interpret the rights in question. The Will dated 02.12.1999 is being reproduced hereinbelow:
"....I Bawa Singh Kalsi son of Shri Santa Singh, aged about 75 years, RR/o WZ-13A, Gali no.2, Ravi Nagar, Delhi-110018 hereby revoke all my Wills and Codicils, if any, and make this my last Will and Testament on this 2nd day of Dec. 1999.
Gurvinder Singh VS. Rajinder Kaur Page No.43 of 66 Civil DJ No. 16/2022 I am at present in a perfect sound and disposing state of health and mind. Due to uncertainity of life, I want to devise and bequeath my property so that there should be no dispute with regard to my property when I am no more.
I am executing this last Will and Testament voluntarily and without any compulsion or pressure from my person and with an sound disposing state of mind.
I am absolute owner of House No.W-Z 13-A, Gali No.2 Ravi Nagar, Delhi-110018 built on a plot of land measuring 150 sq. yards. I purchased the aforesaid property by sale deed dated 12 Sept. 1962 registered with the office of Sub-Registrar, Delhi as document No. 3560 in Addl. Book NO.1 Vol No. 232 on Pages 257 to 260 dated 17 Sept. 1962.
I purchased house No.3A/74, measuring 150 sq.yds. situated at Vishnu Garden, Delhi though sale deed of the said property was executed in favour of my wife Smt. Rajinder Kaur.
I am blessed with one son namely Jaspal Singh and sexi daughters namely Smt. Satwant Kaur wife of Shri Gurdit Singh R/o A-802 Chaukhandi, New Delhi-110018, Smt. Nirmaljeet Kaur W/o Shri Jarnail Singh R/o H. NO. 61 Ashok Mohalla, Nangloi, Delhi, Smt. Ranjeet Kaur W/o Shri Satwant Singh R/o WZ-13A Gali NO.2 Ravi Nagar, Delhi-110018, Smt. Palvinder Kaur W/o Shri Charanjeet Singh R/o 2531 Mandir Lane Shadi Pur, New Delhi-110008, Smt. Gurdeep Kaur W/o Shri Harkirat Singh R/o A-107 Sector-19 NOIDA (U.P.) Smt. Daljeet Kaur W/o Shri Dalbir Singh R/o 57/8 Onkar Nagar Tri Nagar, New Delhi-110035. My wife namely Smt. Rajinder Kaur is alive.
My wife has already transferred the said house No.3A/74, situated at Vishnu Garden, Delhi built on plot of land measuring 150 sq.yards. To my son Shri Jaspal Singh, therefore, I do not want to give any share in my Gurvinder Singh VS. Rajinder Kaur Page No.44 of 66 Civil DJ No. 16/2022 house No.WZ-13A Gali N.2 Ravi Nagar Delhi to him. My said son is well settled in his life and the he has been living at the aforesaid house at Vishnu Garden, Delhi with his wife and children happily.
I have been living with my wife and Gurvinder Singh who is son of my daughter Satwant Kaur at the aforesaid house No.WZ-13-A Gali No.2, Ravi Nagar Delhi-110018. The said Gurvinder Singh has been looking after me properly in my old age and and I have immense love and affection for him.
I devise my said house No.WZ-13-A Gali No.2 Ravi Nagar Delhi to my wife Smt. Rajinder Kaur for her life and thereafter to my said daughters and Shri Gurvinder Singh in equal share i.e. 1/7th share each to hold the same as absolute owners with full power of disposal.
Any asset movable or immovable which are ommitted to be mentioned in the Will or which I may hereafter acquire shall be taken by my aforesaid daughters and Sh. Gurvinder Singh in equal share absolutely.
In witness whereof, I the testator abovenamed have signed the Will in the presence of the following witnesses of this 2nd day of Dec.1999..................."
In terms of the recitals of the above-mentioned Will, it is clear that suit property was bequeathed to late Rajinder Kaur for her life and thereafter to the Plaintiff and the Defendant No. 2 to 7 in 1/7th share as the absolute owners. It is further stated that any others properties, omitted or acquired subsequently, would be shared by the Plaintiff and the Defendant No.2 to 7 in equal share. The aforesaid Will and manner in which the narrative of rights of the parties is described in the same, does not indicate acknowledgement of Gurvinder Singh VS. Rajinder Kaur Page No.45 of 66 Civil DJ No. 16/2022 any right to maintenance pre-existing or present.
9.1.14. The Defendant No.1 passed away prior to framing of Issues.
The Defendant No.3 and 4 were examined in chief and they did present themselves for cross-examination and their right to lead evidence was closed. Since the Defendant No.3 and 4 have intentionally not presented themselves for cross- examination, therefore, their testimony, i.e., examination in chief, can-not be read in the matter. Only the Defendant No.2 has concluded her evidence. The Defendant No.2 did not rely upon any document and her evidence is also in terms of her oral averments. The examination in chief of the DW-2 is being reproduced hereinbelow:
"1. That the deponent says that I am the defendant no.2, in present matter and well conversant with the facts and circumstances of the case and competent to swear this affidavit.
2. That the deponent says that mother of defendant no.1 i.e. Smt. Rajinder Kaur (since deceased) was the legally wedded wife the Late Sh. Bawa Singh Kalsi, and he was liable to maintain herself.
3. That the deponent says that through will dated 02/12/1999 Late Sh. Baba Singh Khasli had given, bequeathed and devised the suit property i.e. the property bearing no.13 A, Gali No.2, Ravi Nagar, New Delhi to Rajinder Kaur, absolutely and forever without any restrictions of any nature whatsoever against the alienation.
4. That the deponent says that the right of maintenance of mother of defendant no.1 is a preexisting right and its recognition thereof, the suit property was devised and Gurvinder Singh VS. Rajinder Kaur Page No.46 of 66 Civil DJ No. 16/2022 bequeathed to Smt. Rajinder Kaur (since deceased).
5. The deponent says that through will dated 02/12/1999 Late Sh. Baba Singh Khasli had given, bequeathed and devised the suit property i.e. the property bearing no.13A, Gali No.2, Ravi Nagar, New Delhi to mother of defendant no.1 absolutely and forever without any restrictions of nay nature whatsoever against the alienation.
6. That the deponent says that the Late Sh. Baba Singh Khalsi in presence of all family members while executing the aforesaid will and had declared that after her death, the mother of defendant no.1 shall be absolute owner of the suit property and shall have unfettered right to sell, transfer or alienate the same.
7. That the mother of defendant no.1 by virtue of aforesaid will dated 02.12.1999 is the absolute owner and during the possession of the suit property and the she has every right to sell, transfer or alienate the same as the manner she like.
8. That during the life time of the defendant no.1, she has absolute right owner the suit property and no one else had any vested right on the same.
9. That Late Sh. Baba Singh Kalsi had died in the year of 2003 and thereafter mother defendant no.1 had no source of income to maintain her.
10. That during lifetime of the Late Baba Singh Khalsi, mother of defendant no.1 was dependent on only him.
11. That mother of defendant no.1 had sold the portion of the property to defendant no.2 to maintain herself as defendant no. 1had no source of income to maintain her.
12. That the contents of this affidavit are drafted by my counsel as per my instruction and same was read over me in my vernacular."
Gurvinder Singh VS. Rajinder Kaur Page No.47 of 66 Civil DJ No. 16/2022 In terms of the above-referred examination in chief, the evidence of the Defendant No.2 is limited to only a bare oral averment that her mother had a pre-existing right of maintenance and the Will in question was executed in recognition of the same. The Defendant No.2 was cross- examined on 08.04.2019 and her cross-examination is being reproduced hereinbelow:
"I do not remember the date, month and year when I filed the affidavit for evidence in Court nor I do not know where the same was attested. I have studied upto Class X. Q.I put it to you that do you know about the nature of the present suit filed by the Plaintiff?
A. Plaintiff has filed the suit for cancellation of Will. It is wrong to suggest that I do not know the nature of the suit filed by the Plaintiff.
I am working as a maid for the last 5-6 years back. In the year 2011-12, I was working as sales woman. At that time, I have not filed any income tax nor I have paid the same today. I have a bank account in Punjab National Bank at Vishnu Garden, Delhi. I do not remember the date and year of marriage of my father. My father has six daughters and one son. My father had expired in the year 2003. He was doing his own work (Kharad). It is correct that he was financing his own family. My mother Rajinder Kaur was a house wife. I do not remember the date, month and year when my father executed the Will. I have not read the Will executed by my father. I do not know whether the family members were present or not when my father executed the Will. It is incorrect to suggest that the contents of para 3 of my affidavit is not correct. I cannot admit or deny the suggestion that the Will was executed on 02.12.1999 by my father and in that will he had not given any right to you mother i.e. defendant No.1 for selling or transferring the property i.e. H.No. WZ-13A, Gali No. 2, Ravi Nagar, New Delhi. It is incorrect to Gurvinder Singh VS. Rajinder Kaur Page No.48 of 66 Civil DJ No. 16/2022 suggest that the contents of my affidavit were written on the instruction of my counsel. Plaintiff is the son of my real sister. It is correct that the Plaintiff since this childhood was living along with my father late Sh. Baba Singh Kalsi. It is incorrect to suggest that Plaintiff was looking after my father late Sh. Baba Singh Kalsi. The property i.e. H. NO. WZ-13A, Gali No.2, Ravi Nagar, New Delhi is consisting of 150 sq yds. I do not know whether my father was having any other property except the property mentioned in the Will. It is correct that as per Will one share was given to plaintiff Gurvinder Singh and six shares were bequeathed to six daughters. The entire was build up property at the time of death of my father. I cannot admit or deny the suggest that no right was given in the will to late Sh. Rajinder Kaur who is my mother for making any alteration in the property. My mother was getting widow mentioned and getting Rs.3000/-. I do not know whether she was receiving any interest from the bank. I cannot admit or deny the suggestion that my father left FD of Rs.11 lacs from which amount interest was receiving your mother and that amount was sufficient of her livelihood."
The Defendant No.2 was further cross-examination on 04.06.2019 and her cross-examination is being reproduced hereinbelow:
"In the year 2011-12, I was working as a daily wager and earning Rs.200/- wages per day. My husband had expired in the year 2009.
I do not know what is the source of Rs.13,60,000/- which I paid as consideration amount towards the purchase of 45 sq yds of property No.WZ-13-A, Gali No.2 Ravi Nagar, Delhi. I am having one son and one daughter but I do not know their age. In the year 2009, my husband was carpenter. He was not an income tax payee. I do not know whether or not my mother has been made an absolute owner through the Will dt. 02.12.1999 executed by my father in the name of my mother. I do not Gurvinder Singh VS. Rajinder Kaur Page No.49 of 66 Civil DJ No. 16/2022 know whether my mother had a right to sell the property bearing No.45 sq yds of property No.WZ-13-A, Gali No.2 Ravi Nagar, Delhi.
It is correct that Plaintiff was served a legal notice dt. 20.07.2011 which is marked as Mark A before instituting the present suit. (vol. The said legal notice was served to me after execution of Sale Deed). It is incorrect to suggest that the at the time of filing of the present suit, the plaintiff was having the possession of two rooms o the ground floor in the property bearing No. WZ-13-A, Gali No.2 Ravi Nagar, Delhi (vol. The plaintiff was living along with my mother on the first floor of the property). It is correct that Rajinder Kaur was having sufficient income to maintain herself and was not needing help from anybody. I do not know whether the property No. WZ-13-A, Gali No.2 Ravi Nagar, Delhi stands in the name of late my father Bawa Sing Kalsi. It is incorrect to suggest that the electricity meter in the name of Bawa Singh Kalsi. It is incorrect to suggest that the facts mentioned in para 11 of my affidavit Ex.DW-2/A are false. It is incorrect to suggest that I have no knowledge about the facts mentioned in my affidavit. It is wrong to suggest that I am deposing falsely."
In terms of the above-mentioned testimony the Defendant No.2 has failed to establish any pre-existing right of maintenance of the Defendant No.1, which was acknowledged by the Will in question or in terms of any other documents or by other circumstances. The Defendant No.2 has stated in the examination in chief that her father had told at the time of execution of the Will that her mother would be absolute owner, whereas in the cross-examination the witness has avoided to answer questions about the nature of right of her mother under the Will in question. She states that she could neither admit nor deny that her mother was not granted any right to sell or transfer the suit property Gurvinder Singh VS. Rajinder Kaur Page No.50 of 66 Civil DJ No. 16/2022 under the Will. She further states that she could neither admit or deny whether her was entitled to alter structure of the suit property in terms of the Will dated 02.12.1999. The Witness further states that she did not know whether the family members present or not, when the Will was executed. She further states in the cross-examination dated 04.06.2019 that she did not know as to whether her mother was made an absolute owner through the Will dated 02.12.1999 or whether her mother had a right to sell.
9.1.15. The Defendant No.2 was cross-examined about the financial capacity of the Defendant No.1. She states that the Defendant No.1 was getting Rs.3,000/- in terms of widow pension. The Defendant states to have no knowledge as to whether the Defendant No.1 was receiving any interest from the bank. She further avoid to answer the suggestion that her father left Fixed Deposit of Rs.11,00,000/- from which the interest was received by the mother. The Defendant No.2 further states (page 2 of cross-examination dated 04.06.2011) that her mother was having sufficient income and did not need help from anybody.
9.1.16. If terms of the Will dated 02.12.1999 are evaluated, there is no iota of doubt about the bequest made by the testator. The Will states in certain and unambiguous terms that the suit property is given to the Defendant No.1 only for life without any further right, which is evident from the following words of the Will:
Gurvinder Singh VS. Rajinder Kaur Page No.51 of 66 Civil DJ No. 16/2022 "..........I devise my said house No. WZ-13A, Gali No.2, Ravi Nagar, Delhi - 110018 to my wife for her life and thereafter to my said daughters and Shri Gurvinder Singh in equal shares i.e. 1/7th share each to hold the same as absolute owners with full power of disposal........."
The aforesaid words do not permit any exception. The right granted to wife is only a life interest without any power of disposal, whereas the subsequent part of bequest grants absolute ownership with power to disposal to the daughters and Mr. Gurvinder Singh. It is also further stated that subsequent properties, if acquired or properties omitted, if any, are also to be shared in 1/7 th share by the Plaintiff and the Defendant No.2 to 7 in equal share and no share or right in the same was intended to be given to wife. Therefore, the intention of the testator was not to grant absolute ownership to his wife and only intention was to create a limited estate for her lifetime and to vest the absolute ownership with other legal heirs, i.e., the Plaintiff and the Defendant No.2 to 7.
9.1.17. The aforesaid Will itself does not spell out any recognition of right to maintenance of the Wife. It is also mentioned in the Will that the Wife, i.e., the Defendant No.1, had transferred a House No. 3A/74, Vishnu Garden Delhi, ad-measuring 150 square yards in favour of the son namely Jaspal Singh and therefore, nothing was given to Mr. Jaspal Singh. The aforesaid part has not been challenged by the Defendant No.2 to 4. In fact, in the Probate Case, the Defendant No.1 has averred the aforesaid circumstances, which was one of Gurvinder Singh VS. Rajinder Kaur Page No.52 of 66 Civil DJ No. 16/2022 grounds for inferring the reasons for exclusion of the son namely Mr. Jaspal Singh. Thus, the wife in the present case had her property, which she transferred to her son. The contentions of the Defendant No.1 being a destitute are not proved. On the contrary, the Defendant No.2 admits that her mother had sufficient income and was not dependant on anyone. The Defendant No.2 to 4 has failed to prove any pre-existing right of maintenance of the Defendant No.1 and the rights of the parties in terms of the Will in question are to be understood in the ordinary and plain language of the document itself, more pertinently when the property in question is self-acquired property of the testator.
9.1.18. Therefore, the Issue No.3 is answered in the negative and against the Defendant No.2 to 4 and it is held that The Defendant No.1, i.e., Late Rajinder Kaur was only granted life interest in the suit property in terms of Will dated 02.12.1999 and was not the absolute owner of the same and was not entitled to sell the same.
9.2. Issue No.4: Whether the later impleaded Defendant
Jaspal Singh has independent
ownership of the suit property to the
exclusion of all other LR's of Late Sh.
Bawa Singh? OPD1.
9.2.1. The onus to prove this Issue was upon Mr. Jaspal Singh, i.e., son of the Defendant No.1. It is stated in the written statement filed by Mr. Jaspal Singh that he had purchased the suit property from late Bawa Singh Kalsi in terms of Gurvinder Singh VS. Rajinder Kaur Page No.53 of 66 Civil DJ No. 16/2022 General Power of Attorney, Agreement to Sell, Receipt, Possession letter, affidavit and also a registered Will dated 26.03.1999 and after execution of aforesaid documents, no right or interest was left to be bequeathed by late Bawa Singh Kalsi.
9.2.2. Mr. Jaspal Singh did not lead any evidence in the matter to prove that General Power of Attorney, Agreement to Sell, Receipt, Possession letter, affidavit and registered Will dated 26.03.1999 were executed in his favour by late Bawa Singh Kalsi. Neither the execution nor registration of the Will and GPA dated 26.03.1999 was proved. The remaining documents were unregistered and did not confer any title on Mr. Jaspal Singh. The Hon'ble Supreme Court has held in, "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana (11.10.2011) : 2011 INSC 739", that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance and the transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The aforesaid proposition has been carried forward by the Hon'ble Supreme Court in "Shakeel Ahmed Vs. Syed Akhlaq Hussain (01.11.2023): 2023 INSC 1016." The view of Shakeel Ahmed (supra) has further been followed by the Hon'ble High Court of Delhi in "Dheeraj Jain and Ors.
Vs. Savitri Devi and Ors. (02.02.2024): 2024:DHC:744", to stress upon the fact that the law with regard to section 17 Gurvinder Singh VS. Rajinder Kaur Page No.54 of 66 Civil DJ No. 16/2022 of the Registration Act, 1908 remained consistent all along and no cut-off date or a prospective date could have been read into such a provision.
9.2.3. Therefore, Mr. Jaspal Singh cannot claim ownership on the basis of the above-mentioned documents. Further after the Will dated 26.03.1999, the subsequent Will dated 02.12.1999 has been duly acknowledged by the Court in Probate Case No. 202/06/05 and therefore, earlier Will stood revoked. Since Mr. Jaspal Singh has failed to prove the execution of the General Power of Attorney, Agreement to Sell, Receipt, Possession letter, affidavit and registered Will dated 26.03.1999, therefore, the Issue No.4 is decided in favour of the Plaintiff and against the LR of the Defendant No.1, i.e., Mr. Jaspal Singh.
9.3. Issue No.5: Whether the suit has not been property valued for the purpose of jurisdiction and court fees? OPD 1 to 4.
9.3.1. The aforesaid objection of valuation has been raised by the Defendant No.1 to 4 in their written statement. Subsequently, the aforesaid Issue was considered as the preliminary Issue and the Court of Ld. Civil Judge passed an order dated 31.1.2024, whereby it is held that the suit was not properly valued and the Plaintiff was granted an opportunity to correct the valuation. The Plaintiff thereafter amended the plaint and valued the prayer of declaration for Gurvinder Singh VS. Rajinder Kaur Page No.55 of 66 Civil DJ No. 16/2022 the amount of sale consideration mentioned in the document and has paid adÂvalorem Court fees on the same. Since the Plaintiff has corrected the valuation, in terms of Order dated 31.01.2024, therefore, the Issue of valuation stood closed and does not survive for discussion.
9.4. Issue No. 1: Whether the Plaintiff is entitled to the relief of declaration as prayed? OPP.
9.4.1. The onus to prove the Issue No.1 is upon the Plaintiff. The Plaintiff has filed the present suit for the principal prayer of declaration of nullity with regard to sale deed dated 30.07.2011 executed by the Defendant No.1 in favour of the Defendant No.2. The Defendant No.1 has executed the sale deed dated 30.07.2011 in favour of the Defendant No.2 on the strength on Will dated 02.12.1999 and grant of probate dated 21.11.2009. The Defendant No.1 has claimed to be an absolute owner of the suit property. However, it has been held under the Issue No.3 that the Defendant No.1 only had a life interest in the suit property in terms of right granted under the Will dated 02.12.1999 and she was legally incapable to transfer the suit property or any part of it. Since the Defendant No.1 did not have any power to sell or transfer the suit property, therefore, no title in favour of the Defendant No.2 was conveyed. The Defendant No.2, being the daughter, had notice of the Will dated 02.12.1999 and probate dated 21.11.2009 and therefore, she was transferee with notice about the infirmity of the rights of her mother.
Gurvinder Singh VS. Rajinder Kaur Page No.56 of 66 Civil DJ No. 16/2022 9.4.2. Further the cross-examination of the Defendant No.2 raises serious question mark about any consideration being paid in terms of the aforesaid transaction. The Defendant No.2 has stated in her cross-examination (dated 04.06.2019) that her husband had expired in the year 2009 and she was only earning Rs.200/- per day as daily wager in 2011-12. She further states that she did not know as to what was the source of Rs.13,50,000/- stated to be paid as consideration in the sale deed dated 30.07.2011. Therefore, the Plaintiff is entitled to declaration of nullity against the sale deed.
9.4.3. It is stated in the written statement of the Defendant No.1 and 2 that the Plaintiff was not in possession of the portion of the suit property pertaining to the sale deed 30.07.2011 and the Plaintiff has not prayed for possession of the aforesaid portion, therefore, the suit for declaration is not maintainable. Ld. Counsel for the Defendant No.2 has submitted that the Plaintiff has not claimed the prayer of possession in the suit and therefore, the relief of declaration cannot be granted in terms of Section 34 of the Specific Relief Act, 1963.
9.4.4. Section 34 of the Secific Relief Act, 1963 is being reproduced hereinbelow:
"34. Discretion of court as to declaration of status or right:
Any person entitled to any legal character, or to any Gurvinder Singh VS. Rajinder Kaur Page No.57 of 66 Civil DJ No. 16/2022 right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
The Plaintiff has claimed the rights in the suit property on the basis of the registered Will dated 02.12.1999 executed by late Bawa Singh Kalsi.
9.4.5. It is admitted case of the parties that late Bawa Singh Kalsi was owner of the suit property and he had purchased the same in terms of a sale deed registered 12.09.1962. Though neither the original nor certified copy of the sale deed dated 12.09.1962 has been filed on record, however none of the Defendants dispute the fact of late Bawa Singh Kalsi being the owner of the suit property in terms of sale deed dated 12.09.1962. It is mentioned in the Will dated 01.12.1999 that the suit property was purchased by late Bawa Singh Kalsi on 12.09.1962 by way of sale deed duly registered with the office of Sub-regitrar, delhi as document No. 3560, in Additional Book No.1, Volume No.232, on page 257 to 260 on 17.09.1962. It is also mentioned in Exhibit PW-2/1 that the sale deed executed by the Defendant No.1 in favour of the Defendant No.2 that late Bawa Singh Kalsi was the owner of the suit property and the suit property was Gurvinder Singh VS. Rajinder Kaur Page No.58 of 66 Civil DJ No. 16/2022 purchased by late Bawa Singh Kalsi on 12.09.1962 by way of sale deed duly registered with the office of Sub-Registrar, delhi as document No. 3560, in Additional Book No.1, Volume No.232, on page 257 to 260 on 17.09.1962.
9.4.6. In so far as the objection of possession not being sought is concerned, the rights of the parties as on the date of filing of the suit are required to be understood. It is case of the Plaintiff that in terms of Will dated 02.12.1999, the Defendant No.1 was granted only a life interest and he and the Defendant No.2 to 7 were granted ownership in equal shares after expiry of life interest. It is stated that the Defendant No.1's right was limited to occupy and use the suit property and she was legally incapable of transferring the title of the same in favour of anyone. It is stated that the Defendant No.1 has executed a sale deed in favour of the Defendant No.2 and therefore, the same should be declared null and void as the Defendant No.1 did not have any right to sell or transfer the suit property.
9.4.7. Thus the right of the Plaintiff, in terms of the Will dated 02.12.1999 would be available only after the lifetime of the Defendant No.1. During the lifetime of the Defendant No.1, the aforesaid rights did not come into effect. The Defendant No.1 was alive when the present suit was instituted and during her lifetime, the Plaintiff could neither have sought possession nor any further prayer other than injunction, which was sought in the suit.
Gurvinder Singh VS. Rajinder Kaur Page No.59 of 66 Civil DJ No. 16/2022 9.4.8. Moreover, the appropriate relief against the Defendant No.2 would not be possession. Even if the sale deed in her favour was null and void, the Defendant No.1 was still owner of the suit property in 1/7th share, after life interest in favour of her mother came to an end. The appropriate relief in the suit therefore, even against the Defendant No.2, after the death of the Defendant No.1, was not possession, but would be of partition. It has been held by the Hon'ble High Court of Delhi in "Vijay Manchanda and Ors. vs. Ashok Manchanda (15.12.2009) : Manu/DE/3524/2009: CRP No. 172/2008 & FAO 423/2008", that a co-owner has no right to recover possession from another co-owner or co-sharer and a co-owner is only entitled to maintain a suit for partition against the other co-owner. The relevant observations of the Hon'ble High Court are being reproduced hereinbelow:
"15. The next question which arises is whether the plaintiff can maintain a suit for cancellation of a document simpliciter even when the plaintiff is found entitled to further relief. The counsel for the defendants has contended that the principle in the proviso to Section 34 of the Specific Relief Act applies to Section 31 also; the same being a facet of declaration only. He has in this regard also drawn attention to AIR 1932 Vindya Pradesh 69. On the contrary, the counsel for the plaintiff has contended that Sections 31 and 34 are situated in different chapters of the Specific Relief Act and while the legislature has deemed it appropriate to insert the proviso in Section 34, no such condition has been imposed in Section 31.
16. However, the aforesaid question need not detain me further in as much I am unable to accept the plea of Gurvinder Singh VS. Rajinder Kaur Page No.60 of 66 Civil DJ No. 16/2022 the defendants that the plaintiff is entitled to the further relief of possession. The claim of the plaintiff is not of exclusive ownership of the property/flat. The claim is of joint ownership of the property/flat along with the defendant No. 2. One co-owner cannot claim the relief of possession against the other co- owner. Thus contrary to what the counsel for the defendants has urged, I do not find the plaintiff to be entitled to a further relief of possession and for the reason of not claiming which relief it can be held that the plaintiff is not entitled to maintain the suit for the relief of declaration of cancellation of document simplicitor. In Joy Gopal Singha v. Probodh Chandra Bhattacharjee MANU/WB/0064/1935 : AIR 1935 Cal 646, a Division Bench held that a co- owner / co- sharer has no right to recover possession from another co-owner / co-sharer. This view has consistently been taken by all the High Courts as well as the Supreme Court, as noticed by another Division Bench in Minor Nantu Bag v. Rasana Bala Dasi MANU/WB/0220/2000 : AIR 2001 Cal 53. The plaintiff as co-owner is only entitled to maintain a suit for partition against the other co-owner. However, the relief of partition is not such which a person/party can be compelled to claim. A person/party may be satisfied in keeping the property joint and may not be interested in partition and separate possession of his share. It would be inequitable if a co-owner is forced to have a partition of the property and cannot otherwise get his share of the property which is actually being received by his co- sharer even though the effect of partition may be a practical destruction of the property or a deterioration in its value. It was held in Abu Shahid v. Abdul Dobhash MANU/WB/0097/1939 : AIR 1940 Cal 363 that this principle which is statutorily recognized in English law can be applied as a rule of equity, justice and good conscience in India. It thus cannot be said that merely because the plaintiff is claiming the relief of cancellation of sale deed of one half share of the property to which the plaintiff Gurvinder Singh VS. Rajinder Kaur Page No.61 of 66 Civil DJ No. 16/2022 claims entitled to, he is also required to necessarily claim the relief of partition. If the plaintiff succeeds in having the relief of cancellation of sale deed, the result thereof would be that the defendant No. 2 and the plaintiff in terms of the agreement to sell would be the owners of one half share each in the property and the plaintiff would be entitled to the sale deed of the other half share in his favour."
The partition is continuing cause of action and no limitation has been prescribed for the same. The limitation for a suit for partition arises in terms of Article 110 of the Indian Limitation Act, 1963, only when the person is excluded from the joint family property. Article 110 of the Limitation Act, 1963 is being reproduced hereinbelow:
Description of Period of Time from which period begins to suit limitation run By a person Twelve When the exclusion becomes excluded from a years. known to the plaintiff.
joint family
property to
enforce a right to
share therein.
In order to create a bar of limitation, it has to be shown that that the suit has been filed after the period of 12 years from the date of exclusion of the Plaintiff or denial of the right of the Plaintiff. It has held by the Hon'ble Supreme Court of India in, "Krishna Pillai Rajasekharan Nair (D) by Lrs. Vs. Padmanabha Pillai (D) by Lrs. and Ors. AIR2004SC1206", that for a suit for partition the starting point of limitation is, when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition Gurvinder Singh VS. Rajinder Kaur Page No.62 of 66 Civil DJ No. 16/2022 being denied.
9.4.9. The Plaintiff was not entitled to claim possession of the part in possession of the suit property, at the time of institution of the suit or even subsequent to the death of the Defendant No.1. The Judgments relied upon by Ld. Counsel for the Defendant No.2 are not relevant to the facts of the case. The Plaintiff was not entitled to claim partition of the suit property, when the present suit was instituted as the Defendant No.1 was alive. The right to seek partition, at best, can only arise with the death of the Defendant No.1, i.e., late Rajinder Kaur. Since the Defendant No.2 to 4 have denied the rights of the Plaintiff in the suit property and continued to contest the present suit, therefore, in view of this Court the limitation for seeking partition commenced from the date of death of the Defendant No.1. The Plaintiff on her death either had the option to amend the present suit or to institute a fresh suit for partition. Even if the no amendment was sought, the present suit will not be invalidated by the same and the Plaintiff had a right to file a separate suit for partition. The aforesaid right remains available with the Plaintiff for a period of further 12 years from the date of accrual of cause of action, i.e., from the date of death of the Defendant No.1, i.e., from 10.07.2013.
Though the period 12 years come to an end on 09.07.2025, if computed from the aforesaid date, however the Covid period between 15.03.2020 to 28.02.2022 is to excluded from computation of the limitation.
Gurvinder Singh VS. Rajinder Kaur Page No.63 of 66 Civil DJ No. 16/2022 9.4.10. The Hon'ble Supreme Court of India has stated in Order dated 10.01.2022, passed in,"In Re: Cognizance for Extension of Limitation: Suo Motu Writ Petition (C) No. 3 of 2020", that the period between 15.03.2020 to 28.02.2022 is liable to be excluded for computation of limitation. The aforesaid Order on limitation dated 10.01.2022 was considered by the full bench of the Hon'ble Supreme Court of India during in "Arif Azim Co. Ltd. Vs. Aptech Ltd: AIR2024SC 1347" and it is held that the entire period between 15.03.2020 to 28.02.2022 would be excluded from the purview of limitation and the balance period of limitation has to be computed with effect from 01.03.2022. The aforesaid judgment has been followed by the Hon'ble High Court of Delhi in, "Chroma-Ator Energy Systems Pvt. Ltd. Vs. Indraprastha Gas Limited:
2024/DHC/2569.", and the Hon'ble High Court of Delhi has excluded the entire period of 15.03.2020 to 28.02.2022 and computed the balance period of limitation with effect from 01.03.2022, after such exclusion. The aforesaid position has also been followed by the Hon'ble High Court of Delhi in, "Saipem Triune Engineering Pvt. Ltd. Vs. Indian Oil Petronas Pvt. Ltd.: 2024/DHC /7753." After relying upon the observations in Arif Azim (supra), the Hon'ble High Court computed the period of limitation, after exclusion of the entire period from 15.03.2020 to 28.02.2022, wherein the limitation expired subsequent to 31.05.2022.
Gurvinder Singh VS. Rajinder Kaur Page No.64 of 66 Civil DJ No. 16/2022 9.4.11. If the aforesaid period is excluded, the limitation for suit of partition will expire on 23.06.2027. Therefore, even if the date of death of the Defendant No.1, in view of ongoing dispute is to be considered the date of denial in terms of Article 110 of the Limitation Act, 1963, the Plaintiff has an option to file the aforesaid suit for partition till 23.06.2027.
9.4.12. Therefore, this Court is of the view that the Plaintiff entitled to declaration of nullity of the sale deed dated 30.07.2011. The Issue No.1 is accordingly decided in favour of the Plaintiff and against the Defendant No.1 to 4.
9.5. Issue No. 2: Whether the Plaintiff is entitled to relief for injunction as prayed for? OPP.
9.5.1. Since the Plaintiff has made out the entitlement for prayer of declaration, therefore, the prayer for permanent injunction is only a consequential prayer. However since the parties are entitled to file the suit for partition, therefore, this Court is not inclined to grant any indefinite injunction of permanent nature. The parties have to act swiftly for enforcement of their rights and for availing their remedies and without availing the same cannot claim the right to enjoy injunction against others in perpetuity. Therefore, a decree for permanent injunction is passed and the Defendants are restrained from creating any third party right in the suit property or from parting with the possession of the suit property till the time, the right of the Plaintiff to seek partition legally survives and does not become barred by limitation.
Gurvinder Singh VS. Rajinder Kaur Page No.65 of 66 Civil DJ No. 16/2022
10. Relief:
10.1. The decree of declaration is passed in favour of the Plaintiff and against the Defendant No.1 to 4 and the sale deed executed by Late Rajinder Kaur in favour of the Defendant No. 2 Ms.Ranjeet Kaur, with regard to the property bearing No.13A, Gali No. 2, Ravi Nagar, New Delhi-110018 registered vide document No.19139 in Addl. Book No.1, Vol.
No. 18956 on pages 85 to 92, registered on 30.07.2011 before Sub- Registrar-II, Basai Dara Pur, New Delhi is declared null & void and is directed to be cancelled. The concerned Sub- Registrar is directed to note the factum of declaration/ cancellation of the aforesaid instrument on the instrument/copy contained in his books. A decree for permanent injunction is also passed and the Defendants are restrained from creating any third party right in the suit property or from parting with the possession of the suit property till the time, the right of the Plaintiff to seek partition legally survives and does not become barred by limitation. The decree sheet be drawn up accordingly.
The files be consigned to record room after due Digitally signed compliance. by ANIL CHANDHEL ANIL CHANDHEL Date:
2025.12.26 Announced in the open Court (ANIL CHANDHEL) 16:36:34 +0000 today on 26th of December, 2025 District Judge-04 (West District) THC/DELHI 26.11.2025.
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