Sneha Ani John Alias Sneha Ani ... vs Swapna Deniz
2022 Latest Caselaw 1648 Bom

                                                            IAL15343-21INSL15324-21.DOC

                                                                                 Santosh
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION


                               INTERIM APPLICATION (L) NO. 15343 OF 2021
                                                   IN
                                      SUIT (L) NO. 15324 OF 2021

                      Sneha Ani John alias Sneha Ani Sayed                 ...Applicant
                      In the matter between
                      Sneha Ani John alias Sneha Ani Sayed                  ...Plaintiff
                                           Versus
                      Dr. Swapna Deniz                                    ...Defendant
SANTOSH
SUBHASH
KULKARNI              Ms. Eventa A. Gonsalves, a/w Mr. Reyden L. Gonsalves, for
Digitally signed by
SANTOSH SUBHASH
KULKARNI
                           the Applicant/Plaintiff.
                      Mr. Rohan Savant, i/b Prabhu Velar, for the Defendant.
Date: 2022.02.17
17:29:34 +0530




                                                    CORAM: N. J. JAMADAR, J.
                                            RESERVED ON: 8th DECEMBER, 2021
                                        PRONOUNCED ON: 17th FEBRUARY, 2022
                      ORDER:

1. The plaintiff has preferred this application for interim

reliefs seeking to restrain the defendant, her sister, from causing

obstruction to the plaintiff's peaceful user, occupation and

possession of the Row-house situated at B-24 - 94, Sunder

Nagar, Kalina, Santacruz (East), Mumabi and also from using or

occupying the first floor of the said premises ("Row House") and

Flat nos.101 and 102 at Maitrichaya Co-operative Housing

Society, Kalina, Santacruz (East), Mumbai ("Suit Flat Nos.101

and 102), for any purpose other than that of the trust, and

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disposing of the properties described in the Schedule (Exhibit-

Q) annexed to the plaint.

2. The substance of the plaintiff's case can be stated as

under:

(a) Dr. Mrs. Annie John ("Dr. Annie") was the mother of

the plaintiff. She expired on 3rd May, 2007, leaving her last Will

and Testament dated 19th April, 2002. Under the said Will Dr.

Annie, ostensibly, devised and bequeathed her movable and

immovable properties in favour of Dr. Thomas, her husband,

and father of the plaintiff and defendant. Dr. Annie directed Dr.

Thomas, who was appointed as the executor of her Will, to make

a Will and Testament and bequeath all the movable and

immovable properties to the plaintiff and expressly excluded all

other relations and persons, including the defendant, from any

of her properties. The plaintiff affirms that on a true

construction of Dr. Annie's Will, it becomes clear that, Dr.

Thomas was also disinherited from the estate of Dr. Annie and

the bequest to Dr. Thomas was only for the purpose of directing

him to devise and bequeath the movable and immovable

properties to the plaintiff.

(b) Dr. Thomas passed away on 13th February, 2018,

leaving his last Will and Testament dated 18th December, 2015.

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Under the said Will Dr. Thomas professed to bequeath, inter

alia, immovable properties as under:

A] Row-House, jointly to the plaintiff and defendant.

Ground floor, third floor and compound wall shall be

under common enjoyment of both.

First floor, to defendant.

To be used as a temporary shelter for poor patients who

come to TATA Hospital, Bombay, for treatment.

Second floor, to the plaintiff.

B] Suit flat nos.101 and 102 at Maitrichaya Co-operative

Housing Society, Kalina, jointly to the plaintiff and

defendant.

Those flats to be sold and 50% of the sale proceeds to be

used as corpus funds for the day to day functioning of the

trust.

Balance amount and all movable properties to be equally

divided between the plaintiff and defendant.

(c) The plaintiff avers that Dr. Annie was the exclusive

owner of the row-house. Suit Flat no.101 was also exclusively

owned by Dr. Annie. Thus, Dr. Thomas was not entitled to

bequeath either the row-house or Suit Flat no.101 to the

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defendant. It is further averred that after the demise of

Dr. Thomas, the defendant and her husband started a tirade

against the plaintiff to illegally usurp the properties left behind

by Dr. Annie and Dr. Thomas. Certain acts of commission and

omission are attributed to the defendant leading to the

complaints and counter-complaints. Since Dr. Thomas was

bound by the bequest contained in the last Will and Testament

of Dr. Annie dated 19th April, 2002, the bequest in favour of the

defendant purported to be made by Dr. Thomas does not confer

any right, title and interest in favour of the defendant. Yet the

defendant is causing obstruction to the peaceful possession and

enjoyment of the plaintiff over the suit properties and

threatening to dispose of and/or cause damage to the suit

properties. Thus, the plaintiff is constrained to institute the

suit and seek the interim reliefs.

3. The defendant has resisted the application by filing an

affidavit-in-reply. Without contesting the relationship between

the parties, the defendant contends that the plaint contains

mutually destructive and contradictory pleadings which dis-

entitle the plaintiff to any of the reliefs. The stand of the

plaintiff manifested in accepting Dr. Annie's Will and,

simultaneously, disputing Dr. Thomas's Will is stated to be

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barred by the "principle of approbate and reprobate". The

defendant asserts that the plaintiff has lodged a Caveat [(Stm)

No.277 of 2019] contesting the Testamentary Petition No.1627

of 2019 instituted by the defendant for obtaining probate of Dr.

Thomas's Will. The plaintiff having elected to dispute Dr.

Thomas's Will is precluded from relying upon the disposition

under Dr. Thomas's Will. Yet the plaintiff's claim for interim

reliefs is rested on the testamentary disposition made by Dr.

Thomas. The defendant denies that the bequest in favour of Dr.

Thomas was of limited nature. According to the defendant,

under Will of Dr. Annie, Dr. Thomas became absolute owner of

all the properties bequeathed to him. The plaintiff cannot draw

any mileage from non-dispositive portions of the Will to question

the bequest in favour of Dr. Thomas.

4. The defendant has denied the allegations of obstruction to

the possession and enjoyment of the plaintiff, at the hands of

the defendant. In contrast, the defendant has attributed certain

acts of commission and omission to the plaintiff. In the

circumstances of the case, according to the defendant, the

plaintiff is not entitled to any of the equitable reliefs.

5. An Affidavit-in-rejoinder is filed on behalf of the plaintiff.

In addition to controverting the contentions in the affidavit-in-

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reply, the plaintiff has asserted that she has lodged the caveat

in the testamentary petition filed by the defendant for the

limited purpose of opposing the appointment of the defendant

as the executor of the Will of Dr. Thomas and, therefore, the

stand of the defendant that the plaintiff is not entitled to reliefs

on the strength of the disposition in the Will of Dr. Thomas is

misconceived.

6. In the backdrop of the aforesaid pleadings, averments in

the application for interim relief, affidavit-in-reply thereto and

rejoinder, I have heard Ms. Eventa A. Gonsalves, for the

Applicant and Mr. Rohan Sawant, for the Defendant, at some

length. With the assistance of the learned Counsels for the

parties I have also perused the material on record.

7. Evidently, the controversy revolves around the question as

to whether Dr. Thomas had the dispositive power over the

properties, which he professed to bequeath under the Will dated

18th December, 2015. An affirmative answer to this question,

albeit, prima facie, leads to another question reflecting upon the

entitlement of the plaintiff to the reliefs, namely, whether the

plaintiff having disputed the Will of Dr. Thomas is entitled to

claim the reliefs on the strength of the dispositions contained in

the Will of Dr. Thomas?

IAL15343-21INSL15324-21.DOC

8. For an answer, it may be apposite to first extract the

disposition under the Will of Dr. Annie, dated 19th April, 2002.

Under the said Will, Dr. Annie, professed to dispose the

immovable properties being Flat no.401, Sudha Building, Marol,

Andheri (East), Flat no.101, Maitrichaya Co-operative Housing

Limited (Suit Flat no.101) and Shop no.2 situated at Anil

Sharma Chawl, Kalina, apart from the movable properties

comprising the cash balance in the savings bank accounts,

financial instruments and gold jewelry etc. Since the dispute

revolves around the nature of the disposition in favour of Dr.

Thomas, the relevant part of the Will of Dr. Annie is extracted

below:

"I hereby appoint my husband Mr. (Dr.) Thomas John as Executor for the purposes of this LAST WILL AND TESTAMENT.

I hereby devise and bequeath all the above immovable and movable properties in favour of my husband Dr. Thomas John after my death.

I hereby also devise and bequeath all my properties which are not mentioned over and which I may acquire in future in favor of my husband Mr. (Dr.) Thomas John.

It is my desire that after my death and/or during my husband's life he shall make a WILL AND TESTAMENT devising and bequeathing and the above properties in favour of my second daughter Miss. SNEHA JOHN.

I hereby exclude all my other relations and persons from any of my property, movable or immovable, tangible and/or intangible of whatsoever nature and direct my executor not to give anything to them even out of my residuary estate."

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9. An endeavour was made on behalf of the plaintiff to

demonstrate that the aforesaid bequest in favour of Dr. Thomas

was of a limited nature, in the sense that, Dr. Thomas was

ordained to further devise and bequeath, inter alia, the Suit Flat

No.101 in favour of the defendant is non-est in the eye of law.

Consequently, the plaintiff contests the disposition under the

Will of Dr. Thomas.

10. Ms. Gonsalves would urge that the aforesaid position

becomes clear from the clear and unambiguous direction in the

Will of Dr. Annie that Dr. Thomas shall make a Will and

Testament and bequeath the properties (disposed under the Will

of Dr. Annie) in favour of the plaintiff. No other inference than

that of the said disposition in favour of Dr. Thomas being for the

lifetime only and that too for the purpose of making further

bequest in favour of the plaintiff can be drawn, urged Miss.

Gonsalves.

11. Mr. Sawant, the learned Counsel for the defendant, joined

the issue by canvassing a submission that the aforesaid

submission on behalf of the plaintiff losses sight of the

distinction between a 'dispositive direction' and a 'non-

IAL15343-21INSL15324-21.DOC

dispositive desire' of the testatrix. As there is a clear and

categorical disposition of the property in favour of Dr. Thomas,

the subsequent desire of the testatrix as to how Dr. Thomas

shall deal with those properties, in future, does not erode the

earlier disposition in favour of Dr. Thomas, urged Mr. Sawant.

12. The dispositions in the Will are required to be read as a

whole. It is impermissible to read a particular statement in the

Will isolated from the rest and torn out of context. From a

meaningful reading of the portions extracted above, from the

Will of Dr. Annie, it becomes abundantly clear that Dr. Annie

had bequeathed all the immovable and movable properties, then

existing and which Dr. Annie could acquire in future, to Dr.

Thomas. Indeed she had excluded all other relations and

persons from the inheritance. It is also true that Dr. Annie had

expressed a desire that Dr. Thomas shall make a Will and

Testament devising and bequeathing those properties in favour

of the plaintiff. However, this desire of Dr. Annie cannot be

extolled to such a pedestal as to detract from the disposition in

favour of Dr. Thomas.

13. I find substance in the submission of Mr. Sawant that

there was a clear and unambiguous disposition in favour of Dr.

Thomas and the subsequent desire expressed by Dr. Annie was

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an instance of non-dispositive expression. The reliance placed

by Mr. Sawant on the judgment of the Supreme Court in the

case of M. S. Bhavani and another vs. M. S. Raghu Nandan 1

appears well founded.

14. In the said case, where there was an identical expression

of desire that the legatee shall sale the premises (which was

bequeathed) and the sale proceeds shall be divided between the

testator's daughter and son, the Supreme Court held that the

use of non-mandatory words such, "desire" indicate that the

testator did not wish to compel the legatee to sell the suit

property. The observations in paragraphs 11, 12.2 and 12.4 are

significant and hence extracted below:

"11. Since the issue essentially turns on the interpretation of the Will, it would be useful to note certain principles that should be borne in mind while undertaking the construction of a will. At its very core, the exercise involves an endeavour to try and find out the intention of the testator. This intention has to be gathered primarily from the language of the will, reading the entire document as a whole, without indulging in any conjecture or speculation as to what the testator would have done had he been better informed or better advised. In construing the language of a will, the Courts may look to the nature and the grammatical meaning of the words used, and also consider surrounding circumstances such as the position of the testator, his family relationship, and other factors that may surface once the Court puts itself in the position of a person making the will [see Shyamal Kanti Guha v. Meena Bose, (2008) 8 SCC 115].

..........

12.2 However, we hasten to add here that such right vested with Nirmala Murthy was intended to be completely unfettered in nature. The contention raised by Respondent

1 (2020) 5 Supreme Court Cases 361.

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No. 1 that she only had a life interest in the property as the testator necessarily wanted a sale of the property, cannot be accepted. This is because the part of the Will where the testator states that "the house should be sold and sale amount be divided among my daughter and my son" is preceded by the expression "it is my desire". Juxtaposed with this, the bequest in favour of Nirmala Murthy is characterized by words such as "my wife shall be sole legal and rightful heir over my immovable and movable property and she will have every right and authority to sell, mortgage and lease...". The assertive language used in favour of Nirmala Murthy is a clear indication of the creation of an absolute bequest in her favour, while the use of non- mandatory words such as "desire" indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose.

...........

12.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi [(1995) 5 SCC 444], to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequests. We may note the following excerpt from the decision: (SCC p.445, paras 4 & 6).

"4. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well-known maxim "cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est" which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier (See: Hammond, Re, Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR 903] ).

...6. It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled. (See: Rameshwar Bakhsh Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ 1133] )."

(emphasis supplied) Here, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator."

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15. The aforesaid pronouncement appears to be on all four

with the facts of the case at hand. From the construction of the

Will as a whole, no other inference than that of Dr. Thomas

having been constituted the universal legatee is sustainable.

The subsequent desire of Dr. Annie that Dr. Thomas shall make

a bequest of the property in favour of the plaintiff lacks the

characteristics of 'bequest' and clearly falls in the realm of a

'desire' only.

16. The necessary corollary of aforesaid finding, albeit prima

facie, is that the plaintiff has to surmount a challenge to her

claim based on the principle of bar against approbation and

reprobation.

17. To properly appreciate the challenge, it may be necessary

to first extract the relevant part of Will of Dr. Thomas:

"After my death entire immovable and movable property then possessed by me shall be held and distributed in the following manner:

I appoint Dr. Swapna elder daughter to execute this WILL with the help of Sneha, Dr. Sony Abraham and or Sominichandy.

DISTRIBUTION Row House Sunder Nagar Kalina will be retained as such. Kalina HSG Society can transfer it jointly in the name of Swapna + Sneha as per the rule of Nomination. Ground Floor, 3rd Floor and compound will be common for both.

1st Floor is given to Swapna. My wife and myself suffered from cancer and this is my last wish, space given to Swapna will be used as temporary shelter for poor patients who come from outside Bombay to Tata Hospital for treatment on behalf of our trust.

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2nd Floor is given to Sneha, both should jointly maintain the building and give municipal, society dues without creating problem.

Both can make iron spiral staircase in the chowk for their respective floor. Additional FSI if any will be equal for both.

If this arrangement is not workable last to last option to dispose it off with highest market rate.

To cherish my eternal wife Ani John my daughters shall operate Trust in her name to give glory to their mother and deposit Rs.1.5 crore (Rupees One Crore Fifty lakhs) as corpus fund to run activities of trust, after selling Sunder Nagar House.

Maitrichaya Flats 101 + 102 can be transferred by HSG society to Swapna + Sneha as per nomination rule. It should be sold at the market rate along with all movable properties mentioned above will be divided equally among both Swapna and Sneha after keeping 50% of Maitrichaya flat price as corpus fund for the trust of Ani John to Glorify the name of their mother. Value received from Maitrichaya 101 + 102 50% will be kept as corpus fund for day to day functioning of the trust."

18. At this juncture, it would be contextually relevant to

extract the prayers in the plaint to ascertain the extent to which

the plaintiff has disputed the Will of Dr. Thomas. Prayer Clauses

(a) to (d) read as under:

"(a) For a declaration that the flat no.101 admeasuring 300 sq. ft. built up area, together with five shares, bearing nos.26 to 30 under share certificate no.6 of Matrichaya Co.op. Hsg. Ltd., Kalina, University Campus, Santacruz (East), Mumbai 400 098, belongs solely to the plaintiff by virtue of the last Will and Testament of the deceased mother Dr. (Mrs.) Annie John, dated 19th April, 2002 and the Defendant has no right, or interest of any nature whatsoever into or upon the said flat no.101 and the said shares;

(b) For a declaration that, the row house bearing B-24-94, Sunder Nagar, Kalina, Santacruz (East), Mumbai 400 098, and situate on land bearing C.T.S. No.4686, admeasuring 148.5 sq. yds. of Revenue village of KoleKalyan, Santacruz (East), Mumbai Suburban District, together with the five shares of Rs.50/- each bearing distinctive Nos.272 fo 276 under Share Certificate No.61 of 1963 of Kalina Co-operative Premises Society Ltd. Sunder Nagar, Kalina, Santacruz

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(East), Mumbai 400 098, was solely purchased by Dr. (Mrs.) Annie John and belonged solely to Dr. (Mrs.) Annie John and the late Dr. Thomas John had no right, title, interest or share in the said Row House or any part thereof.

(c) For a declaration that the late Dr. Thomas John had no right to bequeath the "Row House, situate at B-24 - 94 Sunder Nagar, Kalina, Santacruz (East), Mumbai, admeasuring 148.5 sq. yds. alongwith building of 3000 sq. area" and the said bequest is illegal and void and not binding on the plaintiff.

(d) For a declaration that the Row House bearing No.B-24

- 94, Sunder Nagar, Kalina, Santacruz (East), Mumbai - 400 098, and situate on land bearing C.T.S. No.4686 of Revenue Village of Kolekalyan, Santacruz (East), Mumbai Suburban District, together with the five shares of Rs.50/- each bearing distinctive Nos.272 to 276 under Share Certificate No.61 of 1963 of Kalina Co-operative Premises Society Ltd. Sunder Nagar, Kalina, Santacruz (East), Mumbai 400 098, belongs solely to the plaintiff by virtue of the last Will and Testament of the deceased mother Dr. (Mrs.) Annie John dated 19 th April, 2002 and the defendant has no right or interest of any nature whatsoever into or upon the said Row House and the said five shares."

19. Evidently, the plaintiff had sought declarations in no

uncertain terms that the plaintiff by virtue of the last Will and

Testament of Dr. Annie became the absolute owner of Suit Flat

No.101, and that Dr. Thomas had no dispositive power over the

row-house and the bequest in favour of the defendant is illegal,

void and not binding on the plaintiff. In paragraph 30 of the

plaint, the plaintiff has asserted that the bequest of Suit Flat

No.101 by Dr. Thomas under the Will dated 18 th December, 2015

is against and in breach of the Will of Dr. Annie and the

defendant is not entitled to any share in the Suit Flat No.101 as

well.

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20. At this stage, it may be appropriate to compare and

contrast the prayers in the interim application, which read as

under:

"(a) That pending the hearing and final disposal of this suit, the defendant, her husband, servants and agents be restrained by an order and injunction of this Hon'ble Court, from obstructing the plaintiff in the peaceful user, occupation and possession of the Row House situated at B- 24 - 94 Sunder Nagar, Kalina, Santacruz (East), Mumbai, admeasuring 148.5 sq. yds., along with building of 3000 sq. area and from placing any obstructions, articles, materials on the staircase or in the passage or access to the first floor of the Row House.

(b) That pending the hearing and final disposal of this suit, the Defendant be restrained by an order and injunction of this Hon'ble Court from selling, transferring, assigning or creating any third party rights, and/or inducting any third person into or upon the said properties, listed herein and more particularly described in the schedule, annexed at Exhibit-Q to the plaint and briefly described herein.

(c) That pending the hearing and final disposal of this suit, the defendant, her husband, family members, servants and agents be restrained by an order and injunction from using or occupying the first floor of the Row House, Row House bearing No.B-24-94, Sunder Nagar, Kalina, Santacruz (East), Mumbai 400 098, and situate on land bering C.T.S. No.4686 of Revenue village of Kolekalyan, Santacruz (Est), Mumbai Suburban District and Flat Nos.101 and 102, at Maitri Chhaya Cooperative Housing Society Ltd., Kalina, Santacruz (East), Mumbai, for any purpose, other than for the purposes of the Trust, i.e. of Muttithodtahil Thomas Sosamma Dr. Annie John Memorial Charitable Trust.

21. From a bare perusal of the aforesaid prayers, especially

prayer Clause (c), an inference is inescapable that the plaintiff is

seeking injunction against the defendant on the strength of the

testamentary disposition under the Will of Dr. Thomas. The

relief in the nature of restraining the defendant from using the

row-house and Suit Flat Nos.101 and 102 for a purpose other

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than that of trust namely; Muttithodtahil Thomas Sosamma Dr.

Annie John Memorial Charitable Trust, clearly emanates from

the Will of Dr. Thomas. It is imperative to note that during the

course of the submissions on behalf of the plaintiff, emphasis

was laid on the fact that the defendant was obstructing the

access of the plaintiff to the second floor of the row-house by

blocking the staircase leading to the second floor. This claim of

the plaintiff over the second floor of row-house also flows from

the bequest under the Will of Dr. Thomas.

22. Mr. Sawant, the learned Counsel for the defendant, would

urge that the plaintiff cannot be permitted to dispute the Will of

Dr. Thomas and, at the same time, base the suit claim on the

strength of the bequest made thereunder. It is legally

impermissible for a party to accept a legacy under the Will and

simultaneously challenge the testamentary instrument under

which he claims the legacy.

23. In order to bolster up this submission, Mr. Sawant placed

reliance on a judgment of this Court in the case of Mirzban

Darabshaw Surti vs. Cedric Vaz and another2. In the said case

a learned Single Judge has enunciated the principle that a

party cannot be permitted to accept the benefit under an

2 2015 (2) Mh.L.J. 184.

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instrument and repudiate its other provisions. The

observations in paragraphs 15 to 19 exposit the legal position as

under:

"15. It is, I think, a well-settled principle that a person who accepts a benefit under an instrument must accept it in its entirety. He cannot accept the benefit and repudiate its other provisions. This is a very old principle, enunciated by Lord Cairns L.C., in Codrington v Codrington, (1875) LR 7 HL 854 thus:

"Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them."

16. His acceptance of the benefit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e., affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. In a very large number of decisions it has been held that a person cannot take under and against the same instrument. C. Beepathumma and ors. vs. V. s. Kadambolithaya and ors., AIR 1965 SC 24. In Ramakottayya vs. Viraraghavayya, ILR, (1928) Mad. 556; cited in C. Beepathumma (supra). Coutts Trotter, CJ observed that the principle is often put in another form: a person cannot approbate and reprobate the same transaction. As the Supreme Court held in Beepathumma, the principle is:

"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."

17. Faced with legacies and bequests, the Defendants have a choice. They may elect to receive those legacies and bequests, in which case they cannot assail the document under which they do so. In other words, on their acceptance of those legacies, they make an election and renounce all rights inconsistent with those legacies. On the other hand, it is, and was, always open to them to renounce the legacies and continue their challenge to the Will. But what no Defendant can do is to simultaneously accept a legacy that only accrues as such and challenge the testamentary instrument by which he or she receives it. The only exception to this is where the amount or item received

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would come to the recipient even on intestacy, or is less than what he or she might receive if the challenge to the will succeeds. It is only in that situation that no question of an election would arise. Where, however, the recipient takes a specific legacy and that legacy or bequest is not one that would follow on intestacy, the recipient cannot, having accepted the legacy, impugn or impeach the document under which it is made.

18. The law in India follows the law in England on this, where the principle of approbate and reprobate is part of the doctrine of election. This is reflected inter alia in Sections 187 and 188 of the Indian Succession Act, 1925:

Section 187: When acceptance of benefit given by Will constitutes election to take under Will Acceptance of a benefit given by a Will constitutes an election by the legatee to take under the Will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.

Section 188: Circumstances in which knowledge or waiver is presumed or inferred (1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the Will without doing any act to express dissent.

(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.

19. A Division Bench of this Court interpreted both sections in Lyla Darius Jehangir (nee Ghaswala) v Bakhtawar Lentin of Mumbai & Ors., 2007(1) Mh.L.J. 545 = 2007(1) Bom.C.R. 915. In the case before it, the Division Bench held, citing the Supreme Court decision in Beepathumma (Paragraph numbers are from the Manupatra report)

39. In C. Beepathuma and Ors. v. Velasari Shankaranarayana Kadambolithaya and Ors . [1964] 5 SCR 836, the Supreme Court exposited the doctrine of election to the effect that one who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. This principle is often put in another form that a person cannot approbate and reprobate the same transaction.

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40. Having elected to receive the bequests as per the Will dated 12th April, 1989 it is too late in the day for her to put different constructions to various clauses under the Will. (Emphasis supplied)"

24. As indicated above, in the case at hand, on the one hand,

the plaintiff asserts that she became absolute owner of the Suit

Flat No.101 under the Will of Dr. Annie and Dr. Thomas had no

dispositive power not only over Suit Flat No.101, but row-house

as well. On the other hand, the plaintiff is seeking interim

reliefs against the defendant on the strength of the dispositions

and directions in the Will of Dr. Thomas. On the first principles,

the plaintiff cannot claim a benefit under the Will of Dr. Thomas

and at the same time not only repudiate the other dispositions

under the said Will but even question the dispositive power of

Dr. Thomas.

25. Ms. Gonsalves attempted to salvage the position by

canvassing a submission that the resistance to the

testamentary petition by the plaintiff was limited to the

appointment of the defendant as the executrix of the Will of Dr.

Thomas and it cannot be said that the plaintiff has repudiated

the said Will. I find it difficult to accede to this submission.

Reference to the pleadings in the testamentary petition, is

wholly unwarranted. From the averments in the plaint itself, it

becomes evident that the plaintiff has questioned the power of

IAL15343-21INSL15324-21.DOC

Dr. Thomas to dispose of the properties, by testamentary

instrument, at more than one place. There are clear averments

to the effect that Dr. Thomas had no right, title and interest to

dispose of Suit Flat No.101 as well as the row-house.

26. The situation, which thus obtains is that the plaintiff is

not prima facie entitled to claim the reliefs based on the

testamentary instrument, which she has categorically

repudiated. Resultantly, no interim relief, as sought by the

plaintiff, can be granted.

27. Nonetheless and, indisputably, the plaintiff is in

possession of the second floor of the Row-house. Thus, the

Court is confronted with the issue of alleged obstruction of

access to the second floor of the row-house. In the order dated

8th September, 2021, this Court recorded the statement made on

behalf of the defendant that the defendant has no objection to

the use of the lift by the plaintiff to access the second floor and

the said statement was accepted as an undertaking to the

Court. In the circumstances of the case and having regard to

the relationship between the parties, it may be expedient to

continue the said arrangement till the disposal of the suit.

IAL15343-21INSL15324-21.DOC

28. Hence, the following order:

:ORDER:

      (i)     The application stands dismissed.

      (ii)    However, the statement, which was made on behalf

of the defendant on 8th September, 2021 and

accepted as an undertaking to the Court, shall

continue to operate till the disposal of the suit.

(iii) Costs in cause.

[N. J. JAMADAR, J.]