Shri Ram Krishan Gupta vs Smt. Rani Gupta And Ors.
2006 Latest Caselaw 553 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. By an order dated 18.01.2005, this Court had recorded that the entire case of the parties is based upon the will dated 13.11.1984 executed by Late Shri Murari Lal Gupta. It is further recorded in the said order that as the will has been admitted by all the parties, it should be considered whether any friable issues arise in this suit or the suit can be taken up for disposal straightway on the basis of the admitted will. The counsel for the parties have been heard on this aspect of the matter and it transpires that the learned Counsel appearing for the defendant No.3 has a different perspective and interpretation of the said will of Late Shri Murari Lal Gupta. The other parties are agreed upon their interpretation which is different from the meaning that is sought to be imputed by the defendant No.3. Accordingly, the only issue that arises for consideration is " what would be the shares of the parties in terms of the admitted will of Late Shri Murari Lal Gupta executed on 13.11.1984. This issue is entirely of interpretation and, therefore, has been taken up for determination straightaway.

2. To appreciate the rival contentions of the parties, it would be necessary to describe the relationship between the parties. Late Murari Lal Gupta and Late Girdhari Lal Gupta were brothers, Late Girdhari Lal Gupta being the younger of the two. The present plaintiffs are the legal heirs of the deceased son (Ram Kishan Gupta) of Late Murari Lal Gupta. The defendant Nos. 1 (a) and 1 (b) are the legal heirs of Radha Kishan Gupta who was another son of Late Murari Lal Gupta. The Defendant Nos. 2 & 3 are the other sons of Late Murari Lal Gupta. The defendant Nos. 4 to 7 (a to f) are the legal heirs of Late Girdhari Lal Gupta who was the younger brother of Late Murari Lal Gupta. In effect, there are two branches in this litigation. One of Late Murari Lal Gupta and the other of his brother, Late Girdhari Lal Gupta. The property concerned in the suit is only one and that is C-11, Green Park Extension, New Delhi. The question as to how much share each of the parties has in this property is the question that needs to be decided. According to all the parties, barring the defendant No.3, the entire suit property has to be divided half and half between the branch of Late Murari Lal Gupta and the branch of Late Girdhari Lal Gupta. The defendant No.3, however, has a different perspective which is that the Second Floor (Barsati Floor) of the property in question goes entirely to the branch of Late Murari Lal Gutpa. Initially, the suit as filed by the plaintiff espoused the same view point. Subsequently, however, during the pendency of the proceedings, the plaintiffs have come around to agreeing that the Second Floor (Barsati Floor) is also to be divided between the two branches equally.

3. For a proper appreciation of these submissions, paragraphs 3, 5 & 8 of the will of Late Murari Lal Gupta need to be examined. They read as under:

3. That at present I am absolute legal owner of immovable property consisting of a residential house No.C-11, Green Park Ext. New Delhi.16 which was got constructed by me on a plot of land purchased by me out of my own income and sources.

I further declare that half of the cost of the plot in this land was paid to me by my deceased younger brother Sh. Girdhari Lal Gupta. The construction of the building on the ground floor and the 1st floor and the barsati thereon was got done by me out of my own income and sources.

However, the half of the cost of construction was paid to me by my deceased younger brother. As a family settlement it has been agreed that the ownership of the ground floor of this house shall vest in my four sons and they shall have its complete possession for their use and similarly the ownership of the 1st floor of this building shall vest in the members of the family of my deceased younger brother Mr Girdhari Lal Gupta.

This arrangement has been agreed to by both the families and shall not be changed by any one of us except when necessary by mutual consent in writing by all concerned.

5. As regards share of my four sons in my aforesaid house I declare that they shall have equal shares of ownership of this property and therefore all the four sons shall have equal rights for its use and its possession for all times.

8. I have also cash deposited in my saving a/c in the State Bank of India, Green Park, New Delhi and I declare that all my four sons share the amount equally.

I have read the contents of my above will and found the same to be correct and as dictated by me. It is further stated that any controversies which may arise later on may be settled by the affected beneficiaries of this Will by discussion among themselves & on the principle of a decision by simple majority.

It is necessary to point out at this juncture that insofar as the two branches are concerned, once the shares of the branches are determined, there is no dispute inter se the members of each branch as to how much they are to get because they all share equally.

4. Reading clause 3 of the will, the learned Counsel for the defendant No.3 submitted that it should be construed in a manner as if the plot was purchased by Late Murari Lal Gupta and the building was also constructed by Late Murari Lal Gupta. Subsequently, of course, a portion of the cost was shared by his younger brother, Late Girdhari Lal Gupta. He submitted that the family settlement referred to in paragraph 3 relates only to the Ground Floor and the First Floor and in terms of that settlement, the Ground Floor was to go to the children of Late Murari Lal Gupta, whereas the First Floor was to be vested in the members of the family of Late Girdhari Lal Gupta. He submitted that there is no settlement with regard to the Second Floor (Barsati Floor) and, therefore, it should go to the heirs of the owner thereof, who according to him, was Late Murari Lal Gupta.

5. The learned Counsel appearing on behalf of the defendants 4 to 7 (a to f) is, however, of the view that paragraph 3 has to be interpreted in a manner that the plot was purchased and registered in the name of Late Murari Lal Gupta, but half of the funds thereof, as indicated in the paragraph itself, were contributed by his younger brother, Late Girdhari Lal Gupta. The same is the position with regard to the construction of the building and, therefore, the question of distribution of the Second Floor (Barsati Floor) will also follow the manner of distribution as followed in the case of the Ground Floor and First Floor, i.e., half portion to go to the heirs of Late Murari Lal Gupta and half portion to go to the heirs of Late Girdhari Lal Gupta.

6. Considering the contents of paragraph 3 as also the contents of paragraph 5, I am of the opinion that the tenor of the will suggests that the property should be divided equitably. The testator has attempted to divide it equitably and to put such division beyond the pale of controversy. However, for some odd reason, the division of the Second Floor (Barsati Floor) has not been made out in clear terms and this has resulted in the present dispute. The testator was, however, mindful enough to introduce the remedy and the solution to this problem in paragraph 8 of the will itself wherein he said that if there was any controversy with regard to the dispute or interpretation of any of the terms of the will, then it should be settled by the affected beneficiaries by discussion amongst themselves on the principle of decision by a simple majority. In the same vein, the testator has also made it clear in paragraph 3 that the arrangement has been agreed to by both the families, i.e., the family of Late Murari Lal Gupta and Late Girdhari Lal Gupta and that the same would not be changed by anyone, except when necessary, by mutual consent in writing by all concerned. The sentiment, therefore, expressed by the testator which all the parties are willing to abide by, is that the properties be divided equitably and half and half between the two branches. All the parties present and litigating before this Court, except the defendant No.3 agree to this. The defendant No.3 says that he is bound by the wishes of his late father, but he interprets his wishes differently. In such a situation, the best option would be the solution and remedy provided by the testator himself, i.e., by decision of a simple majority and the majority opinion as also my opinion is that the entire property be shared half and half between the two branches. Insofar as the Ground Floor and the First Floor are concerned, the division has already been done in the will inasmuch as the possession of the Ground Floor has to remain with the branch of Late Murari Lal Gupta and the First Floor goes to the branch of Late Girdhari Lal Gupta. Insofar as the Second Floor (Barsati Floor) is concerned, that has now to be divided half and half between the two branches. This takes care of the division insofar as the built up area is concerned. As regards the land, that would also be half and half between the two branches.

7. Accordingly, a preliminary decree is passed to the following effect:

i) The plaintiffs together will get 1/4th of the half share of the branch of Late Murari Lal Gupta;

ii) The defendant Nos. 1 (a) and 1(b) shall together get 1/4th out of the half share of Late Murari Lal Gupta;

iii) The defendants 2 & 3 shall each get 1/4th of the half share of Late Murari Lal Gupta;

iv) The defendant Nos. 5 and 6 will each get 1/3rd of the half share of Late Girdhari Lal Gupta; and

v) The defendant Nos.7 (a to f) together get 1/3rd of the half share of Late Girdhari Lal Gupta.

A preliminary decree be drawn up accordingly. Mrs Indrani Ghosh, Advocate [E-981, Chittaranjan Park, New Delhi-110019, Mobile No.9810618813] is appointed as the Commissioner to examine as to whether the suit property, in view of the shares determined above, can be divided by metes and bounds. A report to this effect be submitted by the said Commissioner within four weeks. The fees of the Commissioner is fixed at Rs. 20,000/- which shall be borne by the parties in accordance with their shares.

List this matter on 04.05.2006.

A copy of this order be given dusty to the parties as well as to the learned Commissioner.