Bombay High Court
Preeti Sharma Menon vs Jagdish Chander Sampat Lal Sharma ... on 14 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:9069
19-tp-3196-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION NO.3196 OF 2023
WITH
WILL NO.1303 OF 2023
Preeti Sharma Menon ....Petitioner
vs.
Jagdishchander Sampatlal Sharma (deceased) ...Respondent
Mr. Asadullah Shaikh a/w. Mr. Saba Shaikh i/b. M/s. S.U. Lakdawala
& Co., for the Petitioner.
CORAM : N. J. JAMADAR, J.
DATE : JUNE 14, 2024
P.C.:
1. Heard the learned counsel for the parties.
2. This petition is filed for Letters of Administration with the Will annexed of property and credits of Jagdishchander Sampatlal Sharma (the deceased), who passed away on 27th November, 2020.
3. The substance of the petition is that the deceased left behind his last Will and Testament, jointly made with Mrs. Usha Jagdish Sharma, his wife. Mr. Girish Menon, who has been appointed as an Executor, has renounced his right to obtain the probate and execute the Will. The petitioner is one of the legatees named in the said Will. Apart from the widow, the deceased has left behind, the petitioner and two married daughters namely, Sarika Patel and Shweta Bhatia. There are no other legal heirs. Hence, this petition for grant of Letters of Administration.
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4. By an order dated 9th January, 2024, the First Assistant Master raised the following objections:-
"In the Will, it has been mentioned that :
"We are blessed with 3 daughters who are married and well settled. They are Sarika Patel, Preeti Menon and Shweta Bhatia. Our property to be shared among three children in equal proportion after the death of both the parents. The property will devolve to the beneficiaries of this Will only after the death of both the parents of this Will. In the event any of the daughters are deceased before the Will makers their share will devolve to their surviving children. The surviving parent will have all the right on the property till his or her death".
Upon perusal of the aforesaid para, it is noticed that the properties i.e. movable and immovable bequeathed to their children after the death of both the parents only and also surviving parent will have all rights on the property till her death. One of the parent i.e. wife of deceased namely Usha Jagdish Sharma is still alive then how petitioner is beneficiary at this stage."
5. The petitioner has moved a praecipe to dispense with the aforesaid office objection as the matter is uncontested and Usha Sharma, the widow of the deceased and testatrix to the joint Will has filed her affidavit giving consent to issue the Letters of Administration. Therefore, the office objection be dispensed with.
6. I have heard Mr. Asadullah Shaikh, learned counsel for the petitioner. The learned counsel took the Court through the recitals in the Will and the affidavit filed by the heirs of the deceased giving consent for the grant of Letters of Administration.
7. The learned counsel for the petitioner submitted that though the afore-extracted clause in the Will indicates that the widow of the Vishal Parekar ...2 ::: Uploaded on - 24/06/2024 ::: Downloaded on - 25/06/2024 15:56:08 ::: 19-tp-3196-2023.doc deceased will have all the right to the property till her death, yet the said stipulation can be said to be only in the nature of a limited estate for her life. Since the widow of the deceased has given her consent for grant of Letters of Administration, according to the learned counsel for the petitioner, there is no impediment in granting the Letters of Administration.
8. The learned counsel for the petitioner placed reliance on a decision of the Supreme Court in the case of K.S. Palanisami (Dead) Through LRs.1; a judgment of the Delhi High Court in the case of Vickram Bahl and Anr. vs. Siddhartha Bahl and Anr. 2 and an order passed by this Court in Vidyadevi Nandlal Pathak vs. Atul Nandlal Pathak3.
9. From the perusal of the Will, it becomes abundantly clear that the Will in question is a joint Will. The fate of the petition, therefore, turns on the correct construct of the Will. It is well recognized that the Will must be read as a whole and the expressions used therein consistently. It has to be construed keeping in view the intent of the deceased that the widow, who survived him, shall have all the rights to the property, as is evinced from the tenor of the Will.
10. We are primarily concerned with the clause 3 of the Will. The relevant part of which is extracted in the office objection. 1 (2017) 13 Supreme Court Cases 15.
2 2020 SCC OnLine Del 570.
3 TPL No.33096 of 2022, Dt.4/5/2023.
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(extracted above). It contains a clear and explicit recital that the property will devolve to the beneficiary of the said Will only after the death of both the parents. Secondly, the surviving parent will have all the rights on the property till his/her death. The question that wrenches to the fore is whether the devolution of the property on the survivor was in the nature of limited estate or absolute, with all incidents of ownership.
11. In the case of K.S. Palanisami (supra), on which reliance was placed on behalf of the petitioner, the joint Will therein contained the following recitals.
"On the death of anyone of us, the survivor shall enjoy the entire properties, which are our self acquired properties, absolutely with all the rights and after his/her life time, and carry on the under- mentioned charities from and out of the income derived from them without alienating the same."
12. The Supreme Court enunciated that the intention in testamentary disposition has to be primarily found out from the actual words used in the Will. It is not open for the Court to ignore clear words or add something of its own or dilute the meaning of any clear word used in the Will. In the facts of the said case, the Supreme Court held that the intendment of testator/testatrix was clear that survivor shall have absolute right of enjoyment of properties. Paragraph Nos. 55 to 58 of the said judgment read as Vishal Parekar ...4 ::: Uploaded on - 24/06/2024 ::: Downloaded on - 25/06/2024 15:56:08 ::: 19-tp-3196-2023.doc under:-
55] The intention in testamentary disposition has to be primarily found out from the actual words used in the Will. The court is not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the Will. The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention. On the reading of the Will, the intendment of testator/testatrix is clear that survivor shall have absolute right of enjoyment of properties. There is no reason not to give effect to said intendment on the ground that the testator and testatrix have mutually intended to set apart the property for charity and holding that survivor shall have right of disposition be not in the interest of the trust.
56] We do not find any word or any indication in the Will to give a life estate to survivor. The Will clearly intended that survivor shall have absolute right to the properties and after his/her death; the charity shall be carried out from the income of the properties without alienation of the properties. High Court itself has noticed that testator was a person who was well versed with the law of Wills since two earlier Wills were already executed by Chettiar.
57] We are of the view that testators intended that survivor should be given right of alienation. Why the same word "without right of alienation" could not have been used in the earlier part of the same paragraph when they used the same word in end of the paragraph while providing for carrying out charities after the death of the survivor from the income derived from the properties without alienating the same.
58] We, thus, are of the clear opinion that the Will intended to give survivor absolute right with regard to properties with further intendment that after the death of survivor, the remaining property should be used for carrying out the charities. The clear intention of testator/testatrix while executing the Will that the charity shall be carried out from the income of the properties is not given up even during life time of survivor. The obligation to use the income of properties for charity is attached with the property described in the Will subject to giving survivor absolute right with regard to properties.
(emphasis supplied)
13. It would be contextually relevant to note that in the case of Vishal Parekar ...5 ::: Uploaded on - 24/06/2024 ::: Downloaded on - 25/06/2024 15:56:08 ::: 19-tp-3196-2023.doc Dilharshankar C. Bhachech vs. Controller of Estate Duty, Ahmedabad4 the Supreme Court had an occasion to consider the import of the joint Will and, with reference to the facts of the said case, enunciated the law as under:-
50] Therefore the will must be construed in its proper light and there must be definite agreement found from the tenor of the will or aliunde that either of the joint executants would not revoke the will after receiving the benefit under the will. Such definite agreement need not be express; it can be implied. The terms of the will have been set out exhaustively. It was undoubtedly a joint will. The property in question has been described as 'our property'. The expression 'owner' has also been used in the manner indicated in the sentence 'During our life time we shall continue to be the joint owners of the land bungalow and blocks with their common bath room and two privies....and shall be jointly entitled to the rents and income of the said land and blocks and the user and rent of the bungalow'. The will goes on further to say that on the death of one of them, the survivor shall become the 'owner of user of the said land bungalow and blocks including garage.... 'Therefore it is clear that the ownership which the joint executants contemplated was the user during the life time and entitlement to the rents and income of the same. It is this ownership which was to pass on the death of either of them to the survivor and the will thereafter goes on to say that 'the provisions hereinafter contained shall become effective after the death of the survivor of us'. And thereafter after the death it is provided "we hereby devise and bequeath our said furnished bungalow....... " The gift of the property to the three grand children as owners in full sense is to take effect on the death of the survivor of both the executants. It is clear that the property was intended to be kept in tact for the enjoyment of the ultimate legatees and during the life time of either of them the property would not in any way be parted with or diminished. This intention, expressed in the implied terms in the bargain in the will, in our opinion, would be fortified by devising the property to three grand children in species i.e. in specific form and not providing for any money or compensation for diminution of any part 4 (1986) 1 Supreme Court Cases 701.
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thereof before coming into effect of the will in question. If that is the position then, in our opinion, there is a definite agreement not to revoke the will by one of the executants after he or she has received the benefit under the will on the death of either of them.
(emphasis supplied)
14. In the case Vikram Bahl (supra), the Will contained the following dispositions:-
2] We are the joint owners of our House No.D-859, New Friends Colony, New Delhi-110065 and it is our self acquired house property.
3] We declare that when any one of us i.e. Wg. Cdr. N.N. Bahl (Retd.) or Mrs. Sundri N. Bahl expires the rights and interest of deceased in the said house property 859, New Friends Colony, New Delhi-110065 shall rest with the survivor & no one else shall have the right or interest in the share of the deceased share. However, after the death of both of us the said above house property No. D-859, New Friends Colony, New Delhi shall be owned by our two sons Mr. Vickram Bahl and Mr. Siddhartha Bahl and our grand daughter Miss Saachi Bahl (age 13 ½ years) daughter of our son Mr. Vickram Bahl and these three will be absolute owners of their respective shares as detailed here-in-below and they shall have the right to own and use their respective portions in the said property no. D-859, New Friends Colony, New Delhi-110065.
(emphasis supplied)
15. The Delhi High Court found that the will in question was a mutual Will. In that context, the Delhi High Court considered the question whether the plaintiffs, during the lifetime of defendant No. 2 could claim any right or cause of action whereof had accrued to the accused. The said question was answered in the following terms:-
24] Another doubt which plagued the undersigned during the hearing on 20th February, 2019, was with respect to the Vishal Parekar ...7 ::: Uploaded on - 24/06/2024 ::: Downloaded on - 25/06/2024 15:56:08 ::: 19-tp-3196-2023.doc cause of action i.e. whether the plaintiffs, during the lifetime of defendant No.2 could claim any right or cause of action whereof had accrued to them. The said doubt is also found to be unfounded in the light of the judgments cited by the senior counsel for the plaintiffs. As per the said judgments, on the demise of Wing Commander N.N. Bahl, the subject house is held by the defendant No.2 Sundri N. Bahl in trust for the plaintiffs and/or the defendant No.1 and the plaintiffs, as the beneficiaries of the said trust, would have a cause of action. Moreover, from the tenor of the judgments, it is evident that the rights in favour of the ultimate beneficiary under the mutual Will are crystalized on the demise of either of the executants and during the lifetime of the other executant of the mutual Will. Meera Dewan supra was also filed during the lifetime of the surviving spouse. Reference may also be made to Jagan Singh Vs. Dhanwanti (2012) 2 SCC 628 which was also a suit for injunction during the lifetime of the surviving spouse who along with the other, who had since died, had made a mutual Will. Resultantly it follows that the defendant No.2 during her lifetime cannot sell, alienate, transfer or otherwise deal with the property, so as to deprive the plaintiffs of what has been devised in their favour under the mutual Will of their parents and the plaintiffs have a cause of action in presenti to restrain the defendant No.2 from doing so. Though the defendant No.2, as per judgments aforesaid would be entitled to make a Will in contravention of the mutual Will but whosoever receives the property under the said Will of defendant No.2 would also be bound to the plaintiffs in terms of the mutual Will.
16. The order passed by this Court in the Vidyadevi Pathak (supra) is of little assistance to the petitioners as it was not a case of a joint Will but the sole beneficiary thereunder had given consent for issue of Letters of Administration in favour of his son.
17. The aforesaid pronouncements, do not assist the cause of the submission ought to be advanced on behalf of the petitioner. In my considered view, the question as to whether the widow of the Vishal Parekar ...8 ::: Uploaded on - 24/06/2024 ::: Downloaded on - 25/06/2024 15:56:08 ::: 19-tp-3196-2023.doc deceased, who is the joint executant of the Will had acquired a limited interest in the subject properties, or absolute estate, does not strictly arise for consideration.
18. The Will clearly stipulated that the property will devolve to the beneficiary under the Will only after the death of both the parents. The further stipulation that the surviving parent will have all the right on the property till his/her death, is required to be read in conjunction with the aforesaid intendment that the Will itself shall not take effect till the death of both the executants to the joint Will. Conversally, it is not a case of granting a limited estate by express words by providing that after the death of the surviving parent, the estate would devolve on the beneficiaries named under the Will.
19. A useful reference, in this context, can be made to the decision in the case of S. Rajagopal Chettiar vs. Hamasaveni Ammal and Others5, wherein the Supreme Court construed a recital in the Will therein to confer only a life estate on the one of the beneficiaries therein. The relevant part of the judgment reads as under:-
2] The question which arises on the basis of the contents of the above will is whether Rajalakshmi Ammal had acquired a life estate under the will or an absolute estate. The High Court took the view that it was one of the cardinal principles of construction of wills that so far as legally possible effect should be given to every disposition 5 (1991) 4 Supreme Court Cases 383.
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contained in the will unless the law prevents such effect being given to it. The High Court held that the fact that the testator directed that after Rajalakshmi Ammal it shall go to her male children clearly showed an intention that Rajalakshmi Ammal's interest in the properties should not be absolute. The High Court thus arrived to the conclusion that Rajalakshmi Ammal should be deemed to have held only a life estate in the properties and after her death, her 'male children got the properties absolutely.
3] After going through the contents of the will we agree with the view taken by the High Court. We do not agree with the contention of the learned counsel for the appellant raised before us that Padmanabha Chettiar, the testator, of the will wanted to give absolute right in the property to his wife Dhanalakshmi Ammal and thereafter absolute right in favour of his daughter Rajalakshmi Ammal. The above intention is negatived by a clear mention in the will that after Rajalakshmi Ammal the property shall ultimately go to her male children.
20. In the case at hand, on the one hand, there are no words which limit the enjoyment of the widow of the deceased-the survivor, and, on the other hand, there is a clear intendment that the Will shall take effect only after the death of both the parents.
21. In this view of the matter, the office objection raised by the department appears to be wholly sustainable. The tenability of the petition for Letters of Administration during the lifetime of the widow of the deceased/ survivor has been correctly questioned. I am, therefore, not inclined to dispense with the said objection and entertain the petition.
22. Resultantly, the petition stands dismissed.
(N. J. JAMADAR, J.)
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