Dr.(Mrs.)Shashi Ahuja vs Shri Kulbhushan Malik & Others
2008 Latest Caselaw 1336 Del

                                                                   REPORTED
I-6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of Decision: 13th August, 2008

+     CS(OS) 513/2001



      DR. (MRS) SHASHI AHUJA                       ..... Plaintiff
                     Through: Mr. Pramod Kr. Seth, Advocate

                   versus

      SHRI KULBHUSHAN MALIK & ORS. FC+           ..... Defendants
                   Through: Mr. Ashok Gurnani, Advocate



      CORAM:
      HON'BLE MS. JUSTICE REVA KHETRAPAL

1.    Whether reporters of local papers may be allowed
      to see the judgment?

2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?


:     MS. JUSTICE REVA KHETRAPAL, J. (ORAL)

IA No.12625/2007 (application filed on behalf of the legal representatives of the deceased-plaintiff under Order XXII Rule 3 read with Section 151 CPC for impleadment)

1. This is an application filed on behalf of the legal representatives of the

deceased-plaintiff Dr. (Mrs.) Shashi Ahuja under Order XXII Rule 3 read with

Section 151 CPC for impleadment. The plaintiff Dr. (Mrs.) Shashi Ahuja is

th stated to have died on 13 September, 2007 and her death certificate has been

enclosed with the application. The plaintiff left behind her the following legal

representatives:-

(i) Shri Shyam Sunder Ahuja - Husband of the plaintiff

(ii) Shri Aseem Ahuja - Son of the plaintiff

(iii) Shri Paawan Ahuja - Son of the plaintiff

(iv) Ms. Ruchi, wife of Shri Sumit Khattar - Daughter of the plaintiff

2. Reply to the above application has been filed by the defendants No.1 to 3,

opposing the application on the ground that after the death of the deceased-

plaintiff, the cause of action does not survive in favour of her legal

representatives. It is further denied that the husband of the deceased-plaintiff,

Mr. Shyam Sunder Ahuja is also one of the legal heirs or legal representatives of

the deceased-plaintiff. It is submitted that since the property in question belonged

to Shri Chaman Lal Malik and thereafter was owned by his wife, late Smt.

Kamlavati, the deceased mother of the deceased-plaintiff, the issue of inheritance

of the same would be governed by Section 15 of the Hindu Succession Act, 1956

and, that Sub-Section (2)(a) of Section 15 provides that, if, any property is

inherited by a female Hindu from her father or mother it shall devolve, in the

absence of any son or daughter of the deceased (including the children of any pre-

deceased son or daughter), not upon the other heirs specified in Sub-Section (1) in

the order specified therein, but upon the heirs of the father. In the instant case, it

is further stated, a perusal of the order dated 20th December, 2005 passed by this

Court shows that the Will claimed to have been executed by late Smt. Kamlavati

Malik dated 20th October, 1996 in favour of the deceased-plaintiff Dr. (Mrs.)

Shashi Ahuja is being challenged by the defendants on the ground that it is not

duly attested. For the sake of convenience, the order dated 20th December, 2005 is

reproduced hereunder:-

           "Present:       Mr.     Ashok   Gurnami,   Advocate    for   the
           Defendant.

           + IA 10525/2005 in CS(OS) 513/2001
           *     Learned counsel for the defendant does not press this

application and states that he will raise the issue about the manner of attestation of the Will at the relevant stage of time.

Dismissed as not pressed."

3. Reliance is also placed by the learned counsel for the defendants/non-

applicants on a judgment of the Gauhati High Court Smt. Dhanistha Kalita vs.

Ramakanta Kalita and Ors. AIR 2003 GAUHATI 92 to urge that the source from

which a female Hindu dying intestate inherits the property is always important

and that would govern the situation. Otherwise, persons who are not even

remotely related to the person who originally held the property, would acquire

rights to inherit that property.

4. Further, reliance is placed by counsel for the defendants/non-applicants

upon the judgment of the Hon'ble Supreme Court in the case of Gujarat Urja

Vikash Nigam Ltd. vs. Essar Power Ltd. reported in AIR 2008 SC 1921 and in

particular upon paragraph 51 of the said judgment, which reads as follows:-

"51. No doubt ordinarily the literal rule of interpretation should be followed, and hence the Court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd."

5. The learned counsel for the defendants/non-applicant contends that keeping

in mind the aforementioned dicta laid down by the Hon'ble Supreme Court, this

Court should, treating the present case as an exceptional case, interpret Sub-

Section (1) of Section 15 in a manner so as to ensure that the property of the

deceased mother of the deceased-plaintiff does not devolve upon the husband.

6. It would be apposite at this juncture to reproduce Section 15 of the Hindu

Succession Act, 1956, which reads as under:-

"15. General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from

her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children or any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."

7. On a plain reading of Section 15, it is clear that the property of a female

Hindu dying intestate shall devolve firstly upon the sons and daughters (including

the children of any pre-deceased son or daughter) and the husband. Any other

interpretation, in my considered opinion, would not be in consonance with the

statute and would amount to violating the words of the statute, which is not

legally permissible. I am fortified in coming to the aforesaid conclusion from the

fact that the legislature has deemed it expedient to make a clear distinction in the

case of devolution of the property of a female Hindu dying intestate when

property is inherited by her from her father or mother [Sub-Section (2) of Section

15] and the devolution of the property of a female Hindu dying intestate when the

same is her absolute property, including the property she may have acquired by

bequest from her father or mother. I am also buttressed in arriving at the

aforesaid conclusion from a Division Bench Judgment of the Gujarat High Court

in the case of Jayantilal Mansukhlal and Anr. vs. Mehta Chhanalal Ambalal

reported in AIR 1968 GUJARAT 212, which is relied upon by the learned counsel

for the plaintiff. The relevant portion of the said judgment, which is contained in

paragraph 23, is set out hereunder:-

"(23) Now, it is not disputed that Kanta has died intestate and without leaving any issue. The property would, therefore, devolve on her husband, the present respondent, as laid down in Section 15(1)(a) of the Hindu Succession Act, 1956, Mr. Patel has, however disputed this proposition and contended that Kanta's property had devolved upon the appellants who were the heirs of Kanta's father. Mr. Patel's submission was that Kanta had inherited the property from her mother Mangu and she herself having died intestate and without any issue, her property would devolve upon the appellants as provided for by Clause (a) of sub-section (2) of Section 15 of the Hindu Succession Act, 1956. This argument is, however, based on a false premise and an assumption that the property in question was the one inherited by Kanta. It is clear that Clause (a) deals with devolution of "any property inherited by a female Hindu from her father or mother" and provides that "in the absence of any son or daughter of the deceased", the property shall devolve not upon the other heirs referred to in sub-section (1) in the order specified therein, but "upon the heirs of the father". The instant case is clearly a case of a devise and not of an inheritance. Kanta's property is indisputably the one which had devolved on her by a "devise" or a "bequest" under the will of her mother Mangu. The words "devise" and "inheritance" are distinct expressions as is apparent from the use of the two distinct words in the explanation to sub-section (1) of Section 14 of the Act. Clause (a) of sub-section (2) of Section 15 clearly relates to inheritance and as such, can have no application in the case of a devise as is the case before us. We cannot, therefore, accept Mr. Patel's contention that the respondent-husband is not the heir to the property of Kanta."

8. In view of the aforesaid, I have not the least bit of hesitation in allowing

the present application for bringing on record the legal heirs of the deceased-

plaintiff, Dr. (Mrs.) Shashi Ahuja, as mentioned in paragraph 5 of the application.

It bears mentioning that though the defendants now claim that the property of the

deceased-plaintiff was not a bequest, this is a matter which cannot be gone into

for the simple reason that the defendants themselves have admitted it to be a

bequest from the mother of the deceased, but subsequently have turned round to

contend that the document (Will) bequeathing the property is not a properly

attested document. Further, despite the passing of the order dated 20 th December,

2005, no issue has been framed in this regard, evidently for the reason that no

pleadings exist therefor.

The application is accordingly allowed. Amended memo of parties shall be

filed by the counsel for the plaintiff within one week.

IA No.4868/2001 [u/O-16 R-1(3) read with Section 151 CPC on behalf of the plaintiff)

This is an application praying that the Court may permit the plaintiff to

summon the Sub-Registrar, Vikas Sadan, INA, New Delhi along with the relevant

record pertaining to the Will dated 20th October, 1996 of Smt. Kamlavati Malik,

wife of Shri C.L. Malik, registered on 22nd October, 1996, on any date after 7th

May, 2007 and the date 4th May, 2007 may be cancelled as the counsel for the

plaintiff shall be out of station on the said date.

The second part of the prayer made in the application has become

infructuous. Insofar as the prayer for permission for summoning the Sub-

Registrar is concerned, the same is allowed.

The application stands disposed of accordingly.

IA Nos.6471/2001 (u/O-39 R-2A read with Section 151 CPC on behalf of the defendant No.1) and 7961/2003 (u/O-39 R-1, 2 and 2A read with Section 151 CPC on behalf of the defendants No.1 to 3)

This Court by order dated December 05, 2005 had directed that these

applications be taken up along with the disposal of the suit in view of the nature

of the applications, whereby violation of orders is claimed.

Accordingly, list both these applications before the Court on completion of

the trial.

CS(OS) 513/2001

List before the Joint Registrar on 22nd August, 2008 for fixation of dates for

trial.

REVA KHETRAPAL,J AUGUST 13, 2008 km