Delhi District Court
Sh. Navnit Kumar Ashtana & Anr vs Smt. Sunita Ashtana & Anr on 15 September, 2007
IN THE COURT OF SH. MANOJ JAIN: ADDL. DISTRICT JUDGE:
DELHI
Suit No. 7/05
IN RE:
Sh. Navnit Kumar Ashtana & Anr. .................Plaintiffs
Versus
Smt. Sunita Ashtana & Anr. ................Defendants
ORDER
1 Sh. Virender Kumar Ashtana (since deceased) owned and possessed property no. 153, Pushpanjali, Vikas Marg Extension, Delhi-92 (hereinafter referred to as 'suit property'). He had two sons, namely, Sh. Vinit Kumar Ashtana and Sh. Navnit Kumar Ashtana and one daughter Smt. Rashmi Umesh Kapadia. Sh. Virender Kumar Ashtana died on 26.07.2000. His wife and his eldest son Sh. Vinit Kumar Ashtana had predeceased him. Defendant no. 1 is widow of such predeceased son and defendant no. 2 is daughter of such predeceased son. It has been claimed in the suit filed by Sh. Navnit Kumar Ashtana and his sister Smt. Rashmi Umesh Kapadia that after the death of their father, suit property has devolved upon three branches in equal proportion and plaintiff no. 1, plaintiff no. 2 and defendants are entitled to 1/3 share each and they have accordingly prayed for partition. Various other reliefs have also been claimed. 1 (Suit No. 7/05) 2 Defendants have resisted the suit and have claimed that suit is without any cause of action as Sh. Virender Kumar Ashtana had left behind a registered Will dated 22.01.1999 and as per aforesaid Will, suit property has devolved upon the defendants as true and absolute owners to the exclusion of all others and plaintiffs have no rights whatsoever to seek partition. Various other pleas have also been taken in the written statement. 3 Issues were framed on 09.05.2007 and relevant part of said order reads as under:
''From the perusal of the pleadings on record, following issues emerge out;-
(i) Whether the suit has been filed
without any cause of action? OPD
(ii) Whether by virtue of registered will
dated 22.1.1999 suit property has devolved upon the defendants no. 1 and 2 as absolute owners to the exclusion of all others.? OPD
(iii) Whether the suit has not been valued properly for the purposes of court fee?
OPD
(iv) Whether the suit has been filed by a duly authorized person/attorney? OPP
(v) Whether the written statement has not been properly verified? OPP
(vi) Whether the plaintiff is entitled to decree of partition as prayed for? OPP
(vii) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
(viii) Relief.
As far as issue No. 2 is concerned, both the counsels have very fairly contended that for the purposes of adjudication of said issue, there is 2 (Suit No. 7/05) no requirement of leading any evidence and such issue is required to be decided on the basis of registered will coupled with the legal provisions. Aforesaid issue is accordingly treated as preliminary issue.
4 I have heard arguments on aforesaid preliminary issue. Entire fate of the case hinges upon the interpretation of Will. 5 Counsel for defendants has contended that as per registered Will left behind by the testator, suit property has devolved upon the defendants and, therefore, suit is totally misconceived and plaintiffs are not justified in seeking partition.
6 Learned counsel for the plaintiffs has, on the other hand, refuted aforesaid contention and has contended that since eldest son of the testator i.e. Vinit Kumar Ashtana had predeceased the testator, legacy has lapsed under Section 105 of Indian Succession Act and, therefore, Will has no role to play and all the three branches are entitled to inherit the suit property on equal basis i.e. on 1/3 basis each.
7 It is also not in dispute that late Sh. Vinit Kumar Ashtana had also one son, namely, Virat Ashtana who also unfortunately expired on 21.09.2003.
9 At the very outset, I would like to mention that plaintiffs are guilty of suppressing of a very material & crucial fact. In the entire plaint, 3 (Suit No. 7/05) there is no reference whatsoever with respect to registered Will. Factum of execution of registered Will was brought to the notice by the defendants in their written statement and such fact was not disputed by the plaintiffs when the replication was filed. Even during course of the arguments, Ms. Anju Lal, learned counsel for the plaintiffs has not disputed the execution of the registered Will. She has, however, contended that there was no requirement of mentioning the factum of Will as legacy had lapsed. Even if if had allegedly lapsed, I feel that plaintiffs should have transparent enough in their approach and should have mentioned the factum of Will in the plaint itself. I do not know whether suppression is deliberate or otherwise but certainly it is not in good taste. More so, when plaintiff no. 1 himself had appointed plaintiff no. 2 as his attorney to apply for probate or letter of administration as per the same Will only. Once such Will was duly acknowledged by the plaintiffs themselves and they had obtained benefits in terms of the same, it was least expected that they would not reveal such Will in their plaint.
10 Now let me straightway come to the relevant part of the Will which reads as under:
''I bequeath my house No. 153, Pushpanjali, Vikas Marg Extension (Central Revenue's Cooperative Housing Society), Delhi-110092, along with all the goods lying in the house i.e. fixtures, Airconditioners, clothes, Furnitures, Utensils, to my eldest son Shri Vinit Kumar Ashtana. However, he shall not sell this house in his life-time, as it is my wish and also was my late wife's wish that this house should not be sold immediately after our demise. After my son's death and that of his wife Smt. Sunita, this house shall be inherited by their son (my grand 4 (Suit No. 7/05) son) Master Virat Kumar Ashtana. I am bequeathing this house to my eldest son Shri Vinit Kumar Ashtana without any pressure from any corner. This desire of mine was conceived by me when my wife was alive and she was very happy to hear my desire and with a smile she had said ''My dear'', you have said what I had desired, but always kept silent so that you may not take it otherwise. You may give your wealth to anybody desired by you if I leave you for heaven earlier to you, but give this house to our eldest son. ''Although I am bequeathing this house to my son Shri Vinit Kumar Ashtana, yet this does not mean that I am doing this under emotional pressure. I feel great pleasure to think that I have respected my late wife's wishes.
11 Section 105 of Indian Succession Act reads as under:
''105 In what case legacy lapses- (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person.
12 Ld counsel for the plaintiff has contended that if the will is read in the right earnest, it become apparent that the testator had only desired to seek a life interest in favour of his eldest son and did not want to bequeath the suit property in favour of wife of his such eldest son. It has been argued that since the legatee i.e. Shri Vinit Kumar Ashtana has predeceased the testator the legacy stood lapsed and, therefore, the suit property had come to the joint family pool and was to devolve as if there were no will. She has also placed her reliance upon one judgment of Lahore High Court cited as Smt. Shiv Devi and others Versus Nauharia Ram AIR 1940 Lahore 318. I have seen the aforesaid judgment and in the 5 (Suit No. 7/05) aforesaid judgment, it has been observed that in order to prevent legacy from lapsing, the testator must clearly exclude lapse and must indicate as to who was to take in case of legatee dying in his life time. 13 I need not remind myself that it is the duty of the court to carry out the intention of the testator in the true spirit and testator's intention is to be effectuated as far as possible. In the case of AIR 2004 SUPREME COURT 2060 "COMMR., JALANDHAR DIVN. V. M.K. ABROL" it has been observed that as per Section 87 of the Succession Act, 1925 the intention of the testator shall be effectuated as far as possible. It was also observed that in the matter of interpretation of wills, the Court has to look at the wishes of the testator indicated therein. 14 In SMT. PRAMOD KUMARI BHATIA V. OM PRAKASH BHATIA, AIR 1980 SC 446, the Apex Court observed that the court would be justified in exercising its curial draughtsmanship for the testator and supplying the specific words missing from the will. It was held that the Court had undoubted jurisdiction to do so. It also approved the following passage from Jarman on Wills, 8th Edn. at page 592 :-
"Where it is clear on the face of a Will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words, which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context."6 (Suit No. 7/05)
15 In the case of AIR 1953 SUPREME COURT 304 "LAKSHMANA NADAR V. B. RAMIER" it has been held that the court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships, etc.; in other words, to ascertain his wishes by putting itself so to say, in his armchair. 16 On a careful perusal of the will, it becomes apparent that the testator had excluded his other son i.e. Shri Navnit Kumar Ashtana and did not want to bequeath suit property in favour of Shri Navnit Kumar Ashtana i.e. plaintiff. His sole desire was to bequeath the property to his eldest son. Branch emanating from plaintiff Sh Navnit Kumar Ashtana was excluded and this is the only logical inference which one can draw from the will in question. The testator wanted his eldest son to inherit the property and also desired that after the death of his eldest son and also of his wife, the property would be inherited by their son i.e. Master Virat Kumar Ashtana. He also mentioned that it was the desire of his late wife as well. On the perusal of the will, it also becomes apparent that he had no grudge against his another son or against his daughter and rather it was claimed in the will that he had already spent a substantial amount of money on Sh. Navnit Kumar Ashtana (plaintiff no. 1 herein) in order to establish his business and he also bequeathed his movable property excepting those goods lying in the suit house in favour of the plaintiff no. 1. Thus all the articles lying in the locker, fixed deposits, units and cash balance in his saving account and 7 (Suit No. 7/05) pension account were given to none other than plaintiff No.1. Arrangement was also made for plaintiff No.2. It is really unfortunate that plaintiffs are not able to decipher the intention of their father. In Hindu System, it is rather pious duty of the son to carry out the last desire of his father in the right earnest but in the case in hand, the situation is different and plaintiffs are trying to twist the will in such a way so as to clearly defeat the desire of the testator as per their own whims & fancies and interest. It is not permissible at all. The intention of the testator is loud and clear and he wanted the suit property to go to his eldest son and after the death of his son and his wife to their son Virat Kumar Ashtana.
17 I have seen the judgment of Shiv Devi (supra). However, in one later judgment of Hon'ble Supreme Court, it has been held that the intention to exclude lapse can also be gathered. I also deem it fit and proper to extract following observations and case law discussed by Hon'ble Supreme Court in the case of S. Jhansi Lakshmi Bai v. Pothana Appa Rao AIR 1969 SUPREME COURT 1355
11. We are concerned to construe the provisions of Section 105 of the Indian Succession Act. That section enacts that a legacy shall lapse and form part of the residue of the testator's property if the legatee does not survive the testator except where it appears by the will that the testator intended that the legacy shall on the legatee not surviving him go to some other person. We are unable to agree that the intention of the testator that a legacy shall not lapse may be given effect to only if the testator expressly directs that if the legatee dies during his lifetime the legacy shall go to some other person, and that intention to exclude lapse cannot be inferred. Section 105 (1) does not say, nor does it imply that the testator must 8 (Suit No. 7/05) have expressly envisaged the possibility of lapse in consequence of the legatee dying during his lifetime and must have made a provision for that contingency.
12. In In re, Lowman; Devenish v. Pester, (1895) 2 Ch 348 a testator, who under a settlement was absolutely entitled to a moiety of the proceeds of a certain real estate under a trust for sale, by his will devised that the real estate by its proper description, together with certain real estate of his own, to trustees, to the use of H, for life, with remainder to trustees to preserve the contingent remainders, with remainder to the use of the first and other sons of H successively in tail male, with remainder to the use of the first and other sons of his niece E successively in tail male, with remainder to the use of the first and other sons of his niece M successively in tail male, with remainder to the use of the first and other sons of his niece F successively in tail male, with remainder over. H survived the testator and died a bachelor. M also survived the testator and died unmarried. E was still alive but unmarried and Seventy years of age. F had two sons, the eldest of whom died before the testator. It was held that when there are in a will successive limitations of personal estate in favour of several persons absolutely, the first of those persons who survives the testator takes absolutely, although he would have taken nothing if any previous legatee had survived and had taken: the effect of the failure of an earlier gift is to accelerate, not to destroy, the later gift.
13. This rule was applied in In re, Dunstan;
Dunstan v. Dunstan, (1918) 2 Ch 304. A testatrix by her will gave freeholds absolutely to A, subject to the bequest that whatever out of the freeholds should remain alter A's death shall be given to a named charity. It was held that if A had survived the testatrix the gift to the charity would have been repugnant and void, and A would have taken the freeholds absolutely. But since A died in the lifetime of the testatrix, the doctrine of repugnancy did not apply, and the gift to charity was accelerated and took effect.
9 (Suit No. 7/05) 18 Let me refer to Section 109 of Indian Succession Act which reads as under:-
When bequest to testator's child or lineal descendant does not lapse on his death in testator's life time:
Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will."
19 Section 109 of Indian Succession Act deals with the special circumstances when bequest is made to the testator's child or lineal descendant. This section provides that bequest shall not lapse when it is made to any child or lineal descendant of the testator, even if the legatee dies in the lifetime of the testator, provided any of his lineal descendant survives the testator. In other words, if the legatee dies leaving behind a son or daughter or any other lineal descendant who is alive at the time of the death of the testator, the bequest shall not lapse. 20 In the case of SMT. SHANTI V. SMT. BHAGWANI, AIR 1984 PUNJAB AND HARYANA 313, Hon'ble High Court had expressed the opinion that Section 109 of the Act was enacted to protect the legacy for the benefit of the legal heirs of the predeceased child. It was observed as 10 (Suit No. 7/05) follows at pages 315-316:-
"10. . . . . . . . . . . .When the testator specifically excludes some of his children and wants his estate to go to the remaining children, then what he really means is that it should go to them and in case of any one of them predeceases him then it should go to the heirs of the predeceased child and precisely for that matter provision was made in Section 109 of the Act that such predeceased child by fiction of law shall be deemed to have died immediately after the death of the testator so that the heirs of the pre- deceased child get the benefit of the testament and qua his share it should not lapse. The exclusion of some of the children from inheritance goes to show that the testator never intended that any part of his estate should go to them and if Section 109 of the Act is not applied then the legacy made to predeceased child will revert back to the testator and all his children will share the same. The result would be that the children whom he never wanted to succeed would succeed to some share. To avoid this result to flow Section 109 of the Act clearly provided that whenever testament is made in favour of any child or other lineal descendants, their heirs should succeed if they predecease the testator on the fiction that the death of child took place soon after the dealt of the testator."
21 It was also quoted and approved in the case of Karnail Singh v. Mohinder Kaur AIR 2003 PUNJAB AND HARYANA 135 22 In the case of M. C. VASUDEVAN NAMBIAR V. M. C. KRISHNAN NAMBIAR AIR 1987 KERALA 88 , it has been observed as under:-
Three conditions have to be fulfilled under this Section, namely (i) the bequest must be to a child or other lineal descendant of the, testator, 11 (Suit No. 7/05)
(ii) the child or lineal descendant dies in the lifetime of the testator leaving a lineal descendant who survives the testator; and (iii) there is no contrary intention in the will. The policy of the Section is to prevent a portion given by a testator to a child going, from the estate of such child, or his family being left portion less by reason only of the death of the child before the testator. The effect of the Section is to prolong the life of the original devisee or legatee beyond the life of the testator and to give effect to the will, by avoiding a lapse. On the very terms of the Section, it operates to confer the bequest on the heirs of the child or lineal descendant unless a contrary intention appears by the will. The contrary intention that the legacy should lapse on the death of the legatee before the testator, has to be found in the will itself. The words "unless a contrary intention appears by the will" mean that there must be a clear, unambiguous and unequivocal intention by the testator in the will itself before a bequest in favour of a child or lineal descendant can be defeated. (Vide the decision of the High Court of Bombay in Amy Rusi v. Framroj, (1954) 56 Bom LR 910). The intention of the testator should be clear that he intended the bequest to lapse in the event of the legatee predeceasing him. Section 105 of the Indian Succession Act lays down that if the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property unless it appears by the will that the testator intended that it should go to some other person.
Section 107 deals with the case of a legacy to legatees, in words which show that the testator intended to give them distinct shares of the legacy, then if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property. These two Sections lay down the general rule of lapse in the case of a legatee pre-deceasing the testator. Section 109 is an exception to this general rule of lapse, in the case of a bequest to a child or other lineal descendant. The intent of the Section appears to be to prevent a lapse unless the testator has evinced a clear intention that the legacy should lapse on the death of the legatee before the 12 (Suit No. 7/05) succession opened.
23 Thus, it becomes clear that the intention of testator was to bequeath the property to the branch of his eldest son and to no one else. Moreover, in view of Section 109 of Indian Succession Act, legacy does not lapse at all because at the time of death of Shri Vinit Kumar Ashtana, his son Virat Kumar Ashtana was alive. Let me give some relevant dates:-
(1)Date of execution of will 22.01.1999
(2)Date of death of death of testator 26.07.2000
(3)Death of death of Vinit Kumar Kr. Ashtana 21.07.2000 (4)Date of death of Virat Kumar Ashtana 21.09.2003 24 Though Shri Vinit Kumar Ashtana had predeceased the testator by few days yet as per the tone and clearcut intention of the testator, the property could not be reverted back to the joint family pool. Section 109 which is in fact an exception to Section 105 of Indian Succession Act clearly stipulates that in such a situation, the legacy would not lapse and would take effect as if the death of the legatee had happened immediately after the death of the testator. Since Master Virat Kumar Ashtana was alive at that time and since there is no contrary intention appearing in the will and in view of the aforesaid judgments, the property could not have been reverted to the joint family pool. Rather if this is allowed to happen, it would defeat the intention of testator and would disturb the departed soul.
13 (Suit No. 7/05) 25 In view of my aforesaid discussion, it becomes apparent that the present suit is totally misconceived and plaintiffs can not stake any claim of any nature whatsoever in the suit property and are not justified in seeking partition of the suit property. Suit property had devolved upon the defendants as per the explicit intention of testator. 26 Accordingly, preliminary issue No.2 is decided in favour of the defendants and against the plaintiff and, resultantly, the suit is ordered to be dismissed. No order as to costs.
27 Decree sheet be prepared accordingly.
28 File be consigned to Record Room.
Announced in the open court.
Today on 15.09.2007 (MANOJ JAIN) ADDITIONAL DISTRUCT JUDGE DELHI 14 (Suit No. 7/05)