Smt. Kunni Miglani vs Smt. Leela Miglani & Ors.
2009 Latest Caselaw 548 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CS(OS) 1156/2006

%                                        Date of decision:

SMT. KUNNI MIGLANI                               .......         Plaintiff
                           Through: Mr. Pramod Kumar Seth & Mr. N.L.
                                    Anand, Advocates

                                   Versus

SMT. LEELA MIGLANI & ORS.                        .......      Defendants
                           Through: Mr. Rajesh Kumar, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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

2.      To be referred to the reporter or not? Yes

3.      Whether the judgment should be reported
        in the Digest?                        Yes


RAJIV SAHAI ENDLAW, J.

1. This suit is with respect to single storied property No.R-653,

New Rajinder Nagar, New Delhi admeasuring about 200 sq. yds.

2. It is not in dispute that the said property belonged to Smt.

Motia Devi who died on 27th February, 1993. The plaintiff is the

daughter in law of Smt. Motia Devi. The defendants are the widow

and children of Shri Raj Kumar Muglani, another son of Smt. Motia

Devi.

3. It is also not in dispute that Smt. Motia Devi executed as

registered Will dated 7th November, 1986. The said Will dated 7th

November, 1986 of Smt. Motia Devi was duly probated. The

portions of the property bequeathed to the plaintiff and to the

predecessors of the defendants are described in the said Will as

under:-

2. That after my death, the aforesaid house/property shall devolve upon my son Shri Raj Kumar Miglani and Mrs. Kunni Miglani @ Ravinder Madan wife of my younger son Shri Devendra Miglani in unequal shares as follows:-

Shri Raj Kumar Miglani Shall become the owner of two rooms each measuring 12'.4.1/2" x 9'.9", kitchen store, bath, W.C. a part of Rear Court Yard, a part of Front Court Yard and a part of verandaha between kitchen and one room; the portion adjoining House No.R-654 on the Southern side.

And Mrs. Kunni Miglani shall become the owner of one room measuring 10' .3" x 14' .6" , one room measuring 9' .9" x 12' , a part of rear court yard, a part of front court yard, stair case leading to the roof, and a part of verandaha between kitchen and one room; the portion adjoining House No.R.652 on the Northern side. That the aforesaid house property shall be divided by Mrs. Kunni Miglani and Shri Raj Kumar Miglani by erecting a wall at a distance of 12' - 4.1/2" from House No.R-654 on the Southern side, and thus extending the wall of the two rooms falling in the share of Shri Raj Kumar Miglani.

3. That the wall dividing the aforesaid house shall be constructed at the expenses of Mrs. Kunni Miglani and Shri Raj Kumar Miglani in equal shares.

5. That Mrs. Kunni Miglani shall construct kitchen, laterine and bath room in her portion at her own expense. However, unless and until Mrs. Kunni Miglani is able to construct her kitchen, bath-room and latrine in her portion, she would be free and at liberty to use the existing kitchen, bath and laterine. Mrs. Kunni Miglani would construct kitchen, bath room and laterine in her own portion within a maximum period of six months from the date of my death. Similarly Shri Raj Kumar Miglani would construct the stair-case in his portion leading to the roof of the portion of the house to be owned by him after my death within six months from the date of my death at his own expense."

The site plan of the house is also annexed to the Will, though it

does not delineate the two portions aforesaid.

4. The plaintiff instituted the present suit for declaration that she

is the exclusive owner of the entire house/property No.R-653, New

Rajinder Nagar, New Delhi adjoining house No.R-652, New Rajinder,

Nagar, New Delhi excluding portion measuring 82.5 sq. yds.

adjoining house No.R-654, New Rajinder Nagar, New Delhi and for

permanent injunction restraining the defendants from transferring,

alienating or in any way parting with possession of the property in

suit and/or from dispossessing the plaintiff from the peaceful

possession of her portion of the property. A site plan of the house

was annexed to the plaint. It is the copy of the site plan annexed to

the Will, save that the portion which the plaintiff claimed as her's is

coloured red in the site plan and the portion of defendant is coloured

blue. The suit was valued for the purposes of declaration at

Rs.23,50,000/- on which court fee of only Rs.20 was affixed. The suit

was valued for the relief of injunction, for the purposes of court fees

and jurisdiction at Rs.200 only.

5. The defendants filed a written statement contending

That the suit was without cause of action; that the plaintiff

had not correctly valued the suit for the purposes of court

fees and jurisdiction and not paid the requisite court fees;

that the plaintiff was in possession of her portion of the

property and the defendants were in possession of their

portion of the property under the Will.

6. The plaintiff filed a replication to the aforesaid written

statement. Nothing further was stated in the replication.

7. Vide ex-parte order dated 26th May, 2006, the defendants were

restrained from interfering with the peaceful possession of the

plaintiff's portion of the party and from transferring that portion or

creating any third party interest therein.

8. On 27th March, 2008 when the suit was listed before this court

for framing of issues, it was noted that it is not disputed that the

property has to be apportioned in accordance with the Will aforesaid

and the only dispute was whether the portion in occupation of the

parties are in accordance with the Will or not. I may notice that I do

not find any averments whatsoever in the plaint to the effect that the

parties were not in possession of portions of the property in

accordance with the Will and no relief of apportionment or partition

of the property in accordance with the Will were claimed. It was not

the case of the plaintiff that the defendants are in possession of a

portion of the property in excess of their share. The plaintiff did not

claim the relief of possession of any excess portion of the property

from the defendants. This court appears to have recorded the oral

submissions of the parties to the aforesaid effect.

9. Be that as it may, this court on 27th March, 2008 appointed a

court commissioner to take the measurement of the entire property

and to give a report as to how the Will is to be given effect to. Mr.

Rohit Nagpal, Advocate was appointed as the court commissioner

with a direction to go through the Will carefully and after going

through Will to take measurement of the entire property and draw a

rough site plan, not to scale, suggesting which portion has to go to

whom and where the wall is to be erected. He was also directed to

make permanent marks in the property itself as to where the wall is

to be erected.

10. The court commissioner has filed his report. He has reported

that he along with an architect inspected the premises and took

measurement and the architect engaged by him also drew rough

sketch plan which has been annexed to the report. The report inter-

alia states:

"Mrs. Kunni Miglani the plaintiff submitted that walls should be erected according to the marks which I had put as per the Will.

"Mrs. Leela Miglani and Mr. Vijay Pal Singh the defendants have objected to the marks which has been put by me according to the Will."

11. The Report of the court commissioner save as aforesaid does

not state as to how the Will is to be given effect to, as he was

directed on 27th March, 2008. However, the site plan annexed to the

Report, and which is the same as the site plan annexed to the Will

and that annexed to the plaint has proposed a partition wall dividing

the two portions. The proposed wall is shown at a distance of

12'.4 ½" from the outer boundary wall of the property, abutting

property No.R-654. The proposed wall thus falls short of the existing

wall separating the rooms bequeathed to the plaintiff from those

bequeathed to predecessor of defendants.

12. The defendants filed IA No.13115/2008 objecting to the report

of the court commissioner. In this application it is stated for the first

time that the plaintiff, without informing the defendants had raised

the wall dividing the front and the rear courtyards also in

accordance with the Will during the lifetime of her husband only i.e.

much prior to the institution of this suit. The defendants along with

this application also filed a site plan showing the wall dividing the

front and rear courtyard constructed by plaintiff prior to institution

of suit, as well as photographs of the wall. It was further stated that

the dividing wall proposed by the court commissioner was 1'.6"

inside the portion of defendants from the wall dividing the

constructed area existing since life time of Smt. Motia Devi and the

wall dividing the open areas of front and rear courtyard constructed

subsequently and in the same straight line as dividing wall in

constructed area.

13. The plaintiff in reply to the objections admitted the

construction of the wall dividing the front and the rear courtyards

but stated that it was constructed by predecessor of defendants. It

was however admitted that expense thereof was shared equally. It

was however averred that the predecessor of the defendants had at

the time of construction of wall misrepresented that it was being

constructed as per the Will, the said wall is infact not in accordance

with the Will; the wall as per the Will has to be constructed at a

distance of 12'. 4 ½" from house No.R-654 as measured by the court

commissioner.

14. The counsel for parties during arguments today also argued

that the only dispute between the parties is as to whether the

portions of parties under the Will are as per dividing wall already

constructed or as proposed by the court commissioner.

15. I have noted above that that is not the case with which the

plaintiff approached the court. Technically, the dispute argued

during hearing has neither been pleaded nor court fees paid

thereon. However, the matter has been fully thrashed during the

hearing. No pleadings or evidence is required for adjudicating the

said dispute. It involves interpretation of the Will. The construction

much prior to institution of suit of wall dividing courtyard is

admitted. What has to be seen is whether it is as per the Will, as

contended by defendants or not. Only if I find that it is not as per

the Will, questions of effect of plaintiff acquiescing in construction

thereof, and requiring evidence will arise. During hearing I observed

the plaintiff and defendant No.1 are ladies of advance age, both

widows. They ought not to be returned to have their dispute

aforesaid decided in a properly instituted suit, if it can be

adjudicated here. Thus I proceeded to examine the matter.

16. The construction of property is old. The walls thereof must be

load bearing and thick i.e. thicker than single brick, partition wall

now the norm in a R.C.C. structure. The difference aforesaid

between the parties emanates from whether the distance of 12'.4 ½"

(mentioned in latter part of clause 2 of the Will reproduced in para 3

above) from house No.R-654, is to be measured from the outer end

(i.e. abutting R-654) of partition wall between suit property and

house No.R-654 or from the inner side of the said wall. If the said

distance is to be measured from outer end, it ends before the

existing wall, i.e. as measured by the court commissioner. Per

contra if it is to be measured from inner side, it ends at the existing

wall.

17. On interpretation of the Will I find that the existing wall is in

terms thereof.

18. Firstly, if the interpretation now propounded by plaintiff is to

be upheld, it will necessarily result in requiring demolition of

existing wall partitioning the two rooms bequeathed to predecessor

of defendants from that bequeathed to plaintiff. The Will does not

provide so. It only provides of "extending the wall of the two rooms

falling to the share of Shri Raj Kumar Miglani". The said extension

has to be in the straight line and has admittedly been done so.

19. Secondly, the Will bequeaths the rooms described by

measurement. The two rooms bequeathed to Shri Raj Kumar Miglani

i.e. predecessor of defendants are described as measuring 12'. 4 ½"

x 9'.9" each. The measurement 12'. 4 ½" is from side of house No.R-

654 to the wall dividing the said rooms from room bequeathed to

plaintiff. The site plan annexed to the Will also shows same

measurement. The site plan annexed to report of court commissioner

also does not dispute the said measurements. If the interpretation of

plaintiff is to be accepted, it will also interfere with the

measurements of the room and the area of rooms of defendants will

be reduced and that of room of plaintiff shall be increased.

20. Thirdly, the testatrix appears to have in latter part of Clause 2

(Supra) given the distance of 12'. 4 ½" from house No.R-654 for

construction of partition wall because as per site plan annexed to the

Will, that was the distance shown of existing partition wall from

house No.R-654. I have tried to put myself in the armchair of the

testatrix to fathom her intent. I am unable to conclude that she had

intended virtual remodeling of the house after her, as would be

inevitable if the interpretation of plaintiff is to be upheld. She has

attempted to divide the existing construction only into two portions.

Whatever essential facilities/amenities were lacking on either

portion, she allowed use of thereof in other portion for six months

after her death to enable construction thereof. It could never have

been her intention in providing distance of 12'. 4 ½" from house

No.R-645 for construction of partition wall to require demolition of

existing wall or that the said distance was to be measured inclusive

of the width of the wall separating R-654 and R-653, as plaintiff

would contend.

21. I, therefore, declare that the existing wall dividing the

constructed portions only is to be the dividing the two portions and

that wall only is to be extended in a straight line to divide the front

and rear courtyard, as has already been done. The counsel for the

plaintiff contends that the same will result in defendants getting

about 14 sq. yds. more than 82.5 sq. yds. being the area if 12'. 4 ½"

area from outer wall is to be taken. The area of 82.5 sq. yds. does

not find any mention in the Will. A single line in the Will cannot be

pulled out. On reading of all the clauses in the Will, pertaining to

the house, the conclusion is inescapable that 12'. 4 ½" is to be

counted from inner wall.

22. With the aforesaid declaration, suit is decreed. However, in

facts, parties are left to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) February 16, 2008 PP