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9. Defendant no.1 has contested the suit and the stand of the said defendant is that since the late Kaushalya Rani Khattar had a life interest, there could be no question of her bequeathing any portion of the immoveable property which would devolve in terms of the Will of late Sh. Hans Raj Khattar. It has been alleged that there is collusion between the plaintiffs and defendant no.2 so that the plaintiffs can claim a higher share in the roof rights even though defendant no.2 has not been granted any rights in the property in question.

10. On 10.08.2005, when the suit was listed before the court, it was stated by learned counsel for the parties that there was no dispute insofar as the execution of the Will dated 16.05.1989 was concerned whereby the ground floor of the property was bequeathed to defendant no.1 while the first floor with rights to construct on the terrace were given to the plaintiffs. Thus the only dispute was in respect of right for further construction and whether the terrace rights would include the roof rights. This was stated to be only a question of interpretation of the Will dated 16.05.1989. The counsel for the plaintiffs stated that in order to settle the matter, it could be agreed that the terrace rights do not form a part of the will and would consequently devolve on all the three legal heirs, plaintiff no1, defendant no.1 and defendant no.2. The settlement however could not be worked out. A probate petition was being considered along with the suit and the parties agreed to grant of probate of the Will dated 16.05.1989 since there was no dispute about the execution and the authenticity of the Will.

26. Learned counsel for the plaintiffs have referred to the judgment in Ramchandra Shenoy & Anr v. Hilda Brite and others; . The said judgment while dealing with issue of manner of construction of the Will observed that in such matters authorities or precedences are of no help as each Will has to be construed in its own terms and in the setting in which the clauses occur.

27. An analysis of the aforesaid judgments, thus, shows that the basic principle to be kept in mind is the intention of the testator. At times the intention may be expressed in clear terms while at other times the intent had to be derived from the reading of the Will as a whole. A reading of the Will makes it clear that after the life interest of late Smt. Kaushalya Rani Khattar was extinguished, the property had to devolve in a particular manner. The testator has made clear bequeath so far as the ground floor and the servant quarter on the first floor of the garage are concerned to devolve on Defendant No.1 while the first floor with the right to construct on the first floor has been given to the plaintiffs. The testator did not say that the right of building apart from the unbuilt portion of the first floor would also devolve on the plaintiffs. It is possible that the question of such bequeath did not arise because the plaintiffs had specified how the constructed portion was to devolve and what further construction could take place and on whom it would devolve. There is no bequeath in respect of any terrace rights or further construction.

28. It has, however, to be kept in mind that para (d) of the Will makes it clear that the testator had in fact taken a loan from the husband of defendant no.2 to construct the property, yet no share was given to her in the existing construction. Para (4) of the Will states that after the death of Smt.Kaushalya Rani Khattar, the property in question would devolve 'on my dear daughter Madhu Kohli and dear son Suresh Khattar and my grandson Apoorva in the manner stated in the Will'. Thus the total property had to devolve on the plaintiffs and defendant no.1 to the exclusion of defendant no.2.