Swaran Singh Banda vs Manpreet Singh Chhatwal & Ors
2009 Latest Caselaw 564 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI



                                                            Reserved on : 28.01.2009
%                                                         Date of decision : 17.02.2009



+                    RFA (OS) No.3 of 2009 and CM 490 of 2009


SWARAN SINGH BANDA                                                  ...APPELLANT

                                       Through:      Mr.K.K.Bhuchar, Advocate.


                                                 Versus


MANPREET SINGH CHHATWAL & ORS                                       ...RESPONDENTS

                                       Through:      Mr.Arvind Nigam and Mr.Ashok
                                                     Chhabra, Advocates for the
                                                     guardian ad litem of R-1


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

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

2.          To be referred to Reporter or not?                          Yes

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


SANJAY KISHAN KAUL, J.

1. A man‟s greed has no limits. Mahatma Gandhi said: "Earth

provides enough to satisfy every man‟s need, but not every

man‟s greed". It is only the greed of the appellant which

has resulted in a prolonged litigation in the family during

which period of time his brother and his brother‟s wife

passed away and his nephew, respondent no.1,

represented through a court-appointed guardian is residing

in a Gurudwara.

2. Late Dr.(Major) Balwant Singh Banda owned immovable

property bearing No.B-42, Defence Colony, New Delhi

(herein after referred to as the said property). He had three

sons and three daughters. He was married to Sardarni

Onkar Kaur. Major Banda had acquired the suit property

and constructed a residential building on the same. He

died on 14.02.1979. Major Banda executed a registered

Will dated 11.10.1974 prior to his demise. In terms of this

Will, the property in the suit was to devolve upon his three

sons. A share was also given to his wife Sardarni Onkar

Kaur with a specific condition that after her death, her

share would devolve in equal proportion upon the three

sons. The Will excluded the daughters from any bequest.

The Will specified a division of the property into three

specified shares - i) built up portion of the ground floor

excluding the garage; ii) first floor and iii)garage with three

rooms built above it and the open courtyard in front of the

garage on the ground floor, terrace on the first floor with a

right to carry out construction on the terrace and two

latrine-cum-bath rooms attached with the two rooms built

above the garage. However, it was not specified in the Will

as to who would inherit which of the three shares. The first

floor of the property was let out during the life time of the

testator and even after his demise, rents were realized and

paid to the widow Sardarni Onkar Kaur, who passed away

on 19.06.1982.

3. One of the sons, Sardar Surjeet Singh Chhatwal, died on

11.12.1981 and was survived by his wife and a son. He

predeceased his mother Sardarni Onkar Kaur. A suit was

filed seeking a decree of partition of the suit property being

CS(OS)800/1990 by the wife and son of late Sardar Surjeet

Singh Chhatwal. It is the case of the original plaintiffs that

on the demise of Sardarni Onkar Kaur, the property

devolved in equal share of 1/3rd each on the plaintiffs,

defendant no.1 Sardar Sarwan Singh Banda and defendant

no.2 Sardar Amrit Mohan Singh Banda. The original

plaintiffs sought partition and separate possession of their

share in the suit property on account of the fact that

defendant no.1 (appellant herein) was not willing to oblige.

The plaintiffs also sought rendition of accounts of the rents

realized by the appellant herein from various tenants from

1982 onwards. Defendant no.2, however, fully supported

the claim of the plaintiffs.

4. The appellant, however, contested the suit. His defence

was that the property was actually a Hindu Undivided

Family property, the HUF consisting of late Dr. Major

Balwant Singh Banda and three sons as co-parceners. It

was thus pleaded that the testator could not have

bequeathed the property or the extent of shares as

indicated in the registered Will since he did not have any

exclusive ownership rights. On the death of Dr. Major

Balwant Singh Banda, defendant no.1 claims to have

become the Karta of the HUF. It is also pleaded that the

husband of plaintiff no.1, Sardar Surjit Singh Chhatwal,

passed away when Sardarni Onkar Kaur, his mother, was

alive and being a mother was entitled to a share out of the

assets of the Sardar Surjit Singh Chhatwal.

5. The appellant thus claimed that at the time of his death,

Sardar Surjit Singh Chhatwal, would have been entitled to

1/4th share (three brothers and their mother Sardarni Onkar

Kuar having equal shares) and that 1/4th share in turn would

devolve upon Sardar Surjit Singh Chhatwal‟s wife, son and

Sardarni Onkar Kaur. Thus these three persons would get

1/12th share each. On the death of Sardarni Onkar Kaur, it

is claimed that her share would devolve upon all her legal

heirs which would include her sons and daughters.

6. The appellant also claimed that late Sardar Surjit Singh

Chhatwal left behind considerable properties including Plot

No.562, Guru Harkishan Nagar, Delhi as also a plot in

Baroda and a plot at Mehsana. On his demise, these

properties are stated to have devolved upon his heirs which

included original plaintiffs as also Sardarni Onkar Kaur

being the mother and on the death of Sardarni Onkar Kaur

her share in the properties would devolve upon her legal

heirs. Not only that, the appellant also claimed that there

were immovable properties including property bearing no.

1517, Sector 7, Faridabad and 8-G, Dadabari Kota which

were purchased in the name of the second defendant for

the benefit of the HUF and that all such properties formed

part of a common pool of the HUF properties, which too

were required to be partitioned.

7. In the process of litigation, plaintiff no.1, being the wife of

Sardar Surjijt Singh Chhatwal, also passed away in the year

2002 leaving only plaintiff no.2, her son, as the sole heir.

The plaintiff no.2 apparently was not in a mental condition

to look after his interest in the suit proceedings or to

prosecute the suit. The medical problem of the second

plaintiff was diagnosed as Dementia and having impaired

memory for 5-10 years. He was obeying commands, but,

at times, was disoriented. The said plaintiff was also

brought to the Court and was questioned to ascertain his

ability to prosecute the proceedings and the court

ultimately reached a conclusion that the said plaintiff was

not in a position to protect his interest and on 25.09.2003,

with consent of all the parties, appointed Mr.Arvind Nigam,

Advocate as the guardian ad litem for plaintiff no.2.

8. On the pleadings of the parties, the issues which were

finally framed are as under:

i) To what shareholding are the plaintiffs entitled to, in the suit for partition? OPP.

ii) Is the property being M-562, Guru Harkishan Nagar, Paschim Vihar, liable to be partitioned, as asserted by the defendants? OPD.

iii) In case the answer to the above issues is in the affirmative, the extent of shares? OPD.

iv) Is the defendant No.1 liable to render accounts, if so, to what extent, for what period and for what amount? OPP.

v) Relief.

9. Insofar as the controversy about the right of late father of

the appellant in making the Will is concerned, in the

testimony recorded of the appellant, the execution of the

Will was unreservedly admitted and he admitted to the

shares of the parties. Thus, the claim of the property being

HUF was abandoned admitting the plea as set out in the

plaint. The witness from the Office of the L&DO proved

various communications addressed by the appellant

containing unambiguous admissions of the appellant that

1/3rd share each devolved upon the three brothers and thus

it was contended on behalf of the respondent no.1 herein

that the appellant was estopped from pleading to the

contrary.

10. The plea advanced at the stage of arguments before the

learned Single Judge on behalf of the appellant was that

since Surjit Singh Chhatwal pre-deceased his mother

Sardarni Onkar Kaur, she was entitled to a share out of the

estate of Sardar Surjit Singh Chhatwal and on the death of

Sardarni Onkar Kaur, that portion of the share in turn would

devolve on all her legal heirs. The letters written for

purposes of mutation by the appellant were not denied but

it was claimed that the same could not confer title.

11. The learned Single Judge considered the documents

addressed by the appellant to the L&DO as set out in para

22 of the impugned order. These letters clearly show that

the appellant took a clear and unequivocal stand at least in

these letters that the suit property was to devolve in three

shares on the three sons. The reasons for the same were

also set out by the appellant that the intent of the Will was

clear that no share was to devolve on the daughters and

that the wife of the testator was only to have a life interest.

Out of the four letters, which are more or less in the same

terms, three letters are of the year 1989, prior to the filing

of the suit, while the last letter is of the year 1996 i.e.after

the filing of the suit. Not only that, the sisters of the

appellant, who were subsequently impleaded as defendants

in view of the nature of the defence raised in the written

statement, had unequivocally given their no objection to

the mutation of the property in favour of their two brothers

and nephew (respondent no.1 herein) by filing necessary

affidavits with the L&DO.

12. The learned Single Judge discussed the plea of estoppel,

waiver and legal principles and came to the conclusion that

the appellant was precluded from asserting a contrary

position which would deprive a share to the plaintiffs to the

extent of 1/3rd in the suit property. Similarly, the

subsequently added defendants were also precluded from

doing so in view of their categorical affidavits and stand

before the L&DO. It is in view of these facts that Issue

No.1 was answered in favour of the plaintiffs.

13. The other aspect arising from issue nos.2 and 3 was the

claim in respect of the property bearing No.562, Guru

Harkishan Nagar, Delhi which was owned by late Sardar

Surjit Singh Chhatwal. The claim of the appellant was

predicated on the factum of their mother Sardarni Onkar

Kaur inheriting a share in the property on the demise of late

Sardar Surjit Singh Chhatwal and the consequent

entitlement of her legal heirs including the appellant.

14. This plea had been resisted on behalf of the original

plaintiffs as the property in question was not a HUF

property and no evidence in that behalf was led. Sardarni

Onkar Kaur never laid a claim to her alleged share in that

property in between the time of late Sardar Surjit Singh

Chhatwal‟s demise and her own demise. Further, the suit

was for partition of the individually acquired property of the

late father of the appellant and not a claim arising out of

the self owned property of the brother of the appellant for

which no separate suit was filed. In fact, it is nobody‟s case

that the appellant was in actual or constructive possession

and not even a counter claim, if at all maintainable, had

been filed for which court fees would have to be affixed.

Learned Single Judge thus held that the appellant was not

entitled to any share, the claim being time barred as late

Sardar Surjit Singh Chhatwal had passed away in 1982.

15. Insofar as Issue No.4 is concerned, it was found that the

plaintiffs had not produced any evidence in support of the

claim that the premises had been let out from 1989

onwards. However, since the appellant had continued to

occupy the property, he was held liable to render accounts

for a period of three years prior to the filing of the suit i.e.

from the period commencing from 01.01.1987 onwards. A

preliminary decree of partition, in terms of the impugned

order dated 23.10.2008, was thus passed declaring that the

remaining plaintiff and the first two defendants were

entitled to 1/3rd share each in the property at B-42, Defence

Colony, New Delhi and that the appellant is liable to render

accounts for the period commencing from 01.01.1987

onwards.

16. The learned Single Judge has imposed costs of

Rs.1,50,000/- on the appellant and the reasons for the

same have been set out in para 35 of the judgment. The

decision is based on the false plea taken by defendant no.1

initially to prolong the suit claiming the property to be HUF

and only when he entered the witness box, did he utter the

truth. The conduct of the said defendant had resulted in

the plaintiff no.2 being orphaned and the plaintiff being

virtually rendered destitute and ultimately resulting in

plaintiff no.2 staying in a Gurudwara. Respondent no.1

(original plaintiff no.2) herein is still staying in a Gurudwara

having suffered great anxieties and mental trauma at a

young age. The appellant did not let the matter rest even

at that stage and has come up in appeal. It may also be

noticed that the appellant is stated to be an advocate and

is thus fully in the know of legal principles.

17. Learned counsel for the appellant contended before us that

the main point which he was agitating was the

consequence of the death of Sardar Surjit Singh Chhatwal

intestate and their mother Sardarni Onkar Kaur passing

away subsequently. It was thus pleaded that on the

demise of Sardar Surjit Singh Chhatwal, his estate would

devolve not only on his wife and son, but also on Sardarni

Onkar Kaur, his mother, who passed away a year later and

on the demise of the mother, the mother‟s share would in

turn devolve on her legal heirs, thus entitling the appellant

to a fraction of the share. The claim is thus laid not only in

respect of the Defence Colony property but also in respect

of the property bearing No. 562, Guru Harkishan Nagar,

Delhi.

18. Learned counsel sought to assail the findings of the learned

Single Judge pleading that the succession of late Dr.Major

Balwant Singh Banda opened on his demise and not on his

wife‟s demise and that the admissions made in the

communications addressed by the appellant to the L&DO

Office would not estop him from claiming otherwise.

Learned counsel submitted that where a bequest creates a

vested interest, the succession opens on the death of the

testator and only the right of possession is postponed till

the happening of an event which event has certainty to it.

Thus, it was pleaded that the life interest of the widow

Sardarni Onkar Kaur came to an end on her demise which

event is a certainty and thus the bequest under the Will

came into operation on the demise of the testator and only

the right of enjoyment was postponed. Learned counsel

seeks to explain away the communications by pleading that

the communications in question nowhere projected the

actual shareholding of the three persons and only wanted

the property to be mutated in the name of the three

persons. The three sons of late Dr.Major Balwant Singh

Banda are stated to have acquired a vested interest in the

property while Sardarni Onkar Kaur acquired a life interest

as the wife. Since Sardar Surjit Singh Chhatwal acquired

vested interest, this vested interest devolved upon his legal

heirs including Sardarni Onkar Kaur apart from the original

two plaintiffs.

19. In respect of the property bearing No.562, Guru Harkishan

Nagar, it is simply pleaded that Sardar Surjit Singh

Chhatwal having passed away intestate, his legal heirs

would be his mother, wife and son who would take the

property in equal shares and on the demise of the mother

Sardarni Onkar Kaur her share would devolve on her legal

heirs.

20. Learned counsel referred to certain judgments of different

courts in respect of the aspect of vested interest. In Usha

Subbarao V. B.E.Vishveswariah; AIR 1986 SC 2260, it was

observed that whether a bequest creates a vested interest

or contingent interest depends upon intention to be

gathered from a comprehensive view of all the terms of the

document creating the interest, but while construing the

terms, the Court should proceed with a bias in favour of the

vested interest. In the facts of the case, while looking to

the provisions of Section 119 and 120 of the Indian

Succession Act, 1925 („the Indian Succession Act‟ for short)

where a legatee was allowed to enjoy the income from

bequeathed properties even during the period rights of

separate enjoyment were not available to the legatee and

there was a postponement of the right to claim partition of

the house to the date when the wife of testator died, the

bequeath under the Will was held not to be a contingent

interest but a vested interest. In P.Somasundaram v.

K.Rajammal; AIR 1976 Madras 295, the testator expressed

an unambiguous intention that his wife, daughter-in-law

and grand-daughter would maintain themselves out of the

income of the properties during the lifetime of the wife and

the daughter-in-law. After the lifetime of the wife and

daughter-in-law, the grand-daughter was to get the

property absolutely. It was held that the date of vesting in

the grand daughter was the date of the testator‟s death.

The distinction between a vested and a contingent bequest

was explained and it was observed that an interest is stated

to be vested when it is not subject to any condition

precedent, when it is to take the effect on the happening of

an event which is certain, whereas an estate is contingent

when the right to enjoyment depends upon the happening

of an uncertain event which may or may not happen. Thus

a person takes a vested interest in a property at the

testator‟s death when he acquires a proprietary right in it at

the that time; but the right of enjoyment is only deferred till

a future event happens which is certain to happen. On the

other hand, a contingent interest is one in which neither

any proprietary interest nor a right of enjoyment is given at

the testator‟s death, but both depend upon future uncertain

events. Similar are the observations in Chilamakuri Chinna

Pullappa v. Guraka Chinna Bayanna and Ors; AIR 1962 AP

54 and Smt.Kapuri Kuer v. Sham Narain Prasad and Ors; AIR

1962 Patna 149.

21. Learned counsel for the appellant pleaded that the

appellant was well within his rights to claim the inclusion of

all the properties in the suit including the Guru Harkishan

Nagar property as a suit for partial partition was not

maintainable in view of the provisions of Order 8 Rule 6A to

6G of the Code of Civil Procedure, 1908. Learned counsel

relied upon the judgment in the case of Satchidananda

Samanta v. Ranjan Kumar Basu and Ors; AIR 1992 Calcutta

222 to submit that while claiming partition of joint family

properties, all properties brought into the hotch potch

should be included in the suit. Learned counsel referred to

the judgment in Inder Lal Khanna v.Krishan Lal Malhotra;

AIR 1990 Punjab and Haryana 149 where issues arising out

of the counter claim were framed and evidence led. Since

no prejudice was alleged by the plaintiff, it was observed

that the plea that the counter claim filed by the defendant

was not proper as it was not filed before the written

statement should not be raised by the plaintiff in second

appeal. In the alternative, it was pleaded that at best the

appellant could have been called upon to pay the requisite

court fees.

22. Learned counsel pleaded that estoppel or waiver could not

come to the aid of the plaintiffs as they were rules of

evidence and have to be specifically alleged and proved.

Learned counsel referred to Dawsons Bank Ltd. v. Nippon

Menkwa Kabushishi Kaish (Japan Cotton Trading Co. Ltd.);

AIR 1935 Privy Council 79 to contend that there was no

estoppel by waiver. In order for a statement to constitute

an estoppel under Section 115 of the Evidence Act, 1872,

the same should be clear and unambiguous and the

representation must be of an existing fact and must be

properly pleaded and proved. It was held that waiver

means an abandonment of a right and it may be either

express or implied from conduct but its basic requirement

is that it must be an intentional act with knowledge and

there may be no waiver unless the person who is stated to

have waived is fully informed of his rights and with full

knowledge of such rights, he intentionally abandons it. In

this context, learned counsel also submitted that a party

must actually alter its position to its detriment in the face of

such original representations for a plea of estoppel.

23. Learned counsel seriously disputed that any directions

could be passed to ascertain as to what amount the

appellant was liable to pay on account of his self user of the

property as in any case no claim of rent was established as

there was no tenant in the property at the relevant time.

This coupled with a fact that the original plaintiffs claimed

to be in part possession of the premises. Learned counsel

also referred to the judgment in Bachhaj Nahar v. Nilima

Mandal & Anr; 2008 (15) Scale 158 to contend that the

Court should confine its decision to the questions that arise

in the pleadings.

24. In the end, learned counsel for the appellant submitted that

exorbitant costs have been imposed on the appellant while

the delay was on the part of the original plaintiffs who took

about thirteen years to complete their case.

25. Learned counsel for respondent no.1 has strongly

emphasized the fact that the appellant has in fact indulged

in perjury and committed contempt of court by filing false

pleadings and prolonged litigation only to be in continuous

occupation of the property at Defence Colony and to

deprive respondent no.1 and his late mother of the

enjoyment of the property. The appellant took a different

stand in the communications to the L&DO and the

deposition before the Court and thus is liable to be

proceeded against in accordance with law.

26. Insofar as the merits of the controversy are concerned, it

was emphasized that the appellant has sought to mix up

two distinct causes of action. The first related to devolution

of interest on the demise of Dr.(Major) Balwant Singh Banda

and thereafter on the demise of his wife Sardarni Onkar

Kaur. The cause of action for claiming any relief in respect

of Guru Harkishan Nagar property is the demise of late

Sardar Surjeet Singh Chhatwal. Thus, the very premise of

there being a claim for any partial partition is belied by the

fact that estate of late Dr.(Major) Balwant Singh Banda was

included in the suit property by the plaintiffs which had

nothing to do with the estate of late Sardar Surjeet Singh

Chhatwal and had to be dealt with in a distinct and

separate manner. There could thus be no counterclaim in

respect of the properties devolving under different

succession lineages and owned by different persons

especially as the properties were not HUF properties.

Further, neither any court fees had been paid on any

counter claim nor was an undertaking given to pay the

Court fees. The basic assertion of bringing all the

properties into the hotch potch of the HUF stood negated

by the fact that there was in fact no HUF nor did Sardar

Surjeet Singh Chhatwal ever place his self acquired

properties in the common pool of any joint family

properties.

27. Learned counsel drew the attention of this Court to the

judgment of the Supreme Court in Joginder Tuli v.

S.L.Bhatia and Anr.; (1997) 1 SCC 502 where no court fees

had been paid in respect of any counter claim and it was

held that once court fees had not been paid within the time

prescribed the claim was barred by limitation. Learned

counsel also referred to Makhan Singh (Dead) by LRs v.

Kulwant Singh; (2007) 10 SCC 602 and D.S.Lakshmaiah and

Anr. v. L.Balasubramanyam and Anr.; (2003) 10 SCC 310 to

contend that the onus to prove that there was a joint family

property lies on the person claiming and asserting it to be

so.

28. We may, however, note at this stage itself that before us

and really even before the learned Single Judge this plea is

not what had been sought to be urged on behalf of the

appellant as the aspect of joint family property was given

up. Learned counsel for respondent no.1 has laid great

emphasis on the stand of the appellant himself in the

various letters to L&DO where it was categorically stated

that the Defence Colony property was a self acquired

property of late Dr.(Major) Balwant Singh Banda and that

the property under the Will had to devolve on his three

sons. Learned counsel drew the attention of this Court to

the principal document being a Will dated 11.10.1974 to

contend that the intention of the testator was that in all

circumstances the property should eventually devolve on

his three sons. It is thus pleaded that the succession would

open only on the demise of Sardarni Onkar Kaur, wife of

late Dr.(Major) Balwant Singh Banda, as she had a life

interest. Learned counsel emphasized that in view of the

provisions of Section 87 of the Indian Succession Act, the

intention of a testator is not to be set aside because it

cannot take effect to the full extent, but effect is to be

given to it as far as possible. Section of 88 of the Indian

Succession Act provides that where two clauses of gifts in a

Will are irreconcileable, so that they cannot possibly stand

together, the last shall prevail. A reading of the aforesaid

provision is thus sought to lead to one conclusion i.e.

devolution of interest absolutely in three shares on the

three sons in the property at Defence Colony.

29. Learned counsel for the respondent no.1 has pointed out

that the daughters of late Dr.(Major) Balwant Singh Banda

sought to come into the picture only belatedly by moving

applications for impleadment in the year 2008 which were

allowed by the Order dated 31.01.2008 subject to their

depositing Rs.1.5 lakhs within three weeks in Court for the

benefit of respondent no.1. Only two of the applicants are

stated to have deposited the amount. In any case, no

appeal has been filed by those defendants and the appeal

has been filed only by the appellant. Learned counsel

sought to emphasize that the appellant cannot be

permitted to resile from his own admissions before the

L&DO and the plea of estoppel would be available to

respondent no.1.

30. We have examined the records of the learned Single Judge

and considered the submissions advanced on behalf of

learned counsel for the parties.

31. In our considered view, the first aspect to be considered is

the intent as conveyed by the testator in the testamentary

document being the Will dated 11.10.1974. The testator

has clearly stated that the property at Defence Colony was

a self acquired property. Insofar as the devolution of

interest is concerned, the same is in the following manner:

"The ownership rights of premises B-42, Defence Colony will devolve after my demise in the name of my three sons, Sarwan Singh Banda, Surjit Singh Chhatwal and Amrit Mohan Singh Banda

and my wife Smt.Onkar Kaur in equal shares.

........

........

........

After the demise of Smt. Onkar Kaur, my wife, her share in the property will devolve in equal shares to my three sons referred to above. None of my daughters will have any claim in any of my properties. They are financially very well off, and are living with their husbands at their respective residences. If any of the beneficiaries under the Will dies during my life time, then his legal heirs will be entitled to his share.

                       If my wife pre-deceases me         then her
                       share as referred to in the        Will, will
                       devolve in the equal shares in     my three
                       sons or their legal shares as      the case
                       may be."

32. The aforesaid portions of the Will thus leave no manner

of doubt that the intent of the testator was clear, for the

devolution of the interest in the property on his three

sons with only a life interest in favour of his wife Sardarni

Onkar Kaur. The sons had no right to claim partition so

long as Sardarni Onkar Kaur was alive and the rentals

being realized from the first floor of the Defence Colony

property were to be paid to her and after her demise the

property had to devolve in three shares as set out in the

Will.

33. It cannot be lost sight of that a testamentary document is

not to be read like a statute and the intention of the

testator has to be gathered not by attaching importance

to isolated expressions but by reading the Will as a

whole. Supreme Court in Navneet Lal v. Gokul and Ors;

(1976) 1 SCC 630 observed as under: "

8. From the earlier decisions of this Court the following principles, inter alia, are well established: "(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal; AIR 1951 SC 139) (2) In construing the language of the will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy;

15 Bom LR 1010) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar; AIR 1951 SC

103) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer AIR 1953 SC 7) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative.

The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the

effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das; AIR 1963 SC 1703) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite Mrs; AIR 1964 SC 1323)"

34. The intention of the testator is more or less abundantly

clear. It has already been noticed above that the stand

originally taken by the appellant claiming the property to be

a HUF property was false and was given up by the appellant

only at the stage when the evidence was being recorded.

The interesting part, however, is that while claiming

mutation of the property various letters were addressed by

the appellant to the L&DO. ExPW2/C being a letter dated

21.09.1989 clearly states that there was no intention on the

part of the testator to convey to his widow any absolute

interest in the property. PW2/D being a letter dated

29.11.1989 expressed the necessity for the mutation of the

property to be made in the name of the three sons in

accordance with the Will. Similarly, PW2/A being a letter

dated 12.04.1989 refers to the position arising upon the

demise of Sardarni Onkar Kaur and the requirement of

transfer of a share in favour of the remaining three persons

(sons). It was specifically prayed that the mutation should

be in the name of all three sons. ExPW2/D-1 being a letter

dated 25.06.1996 refers to the demise of late Smt.Onkar

Kaur and the requirement of mutation in favour of the

appellant himself, his brother (Defendant No.2) and

nephew (respondent no.1 herein). Not only that, in

furtherance to the object of carrying out mutation, the

daughters of late Dr.(Major) Balwant Singh Banda/heirs of

his deceased daughter submitted affidavits that they have

no objection to the mutation of the property in favour of the

remaining two sons of Dr.(Major) Balwant Singh Banda and

son of the deceased son namely Sh. Manpreet Singh

Chattwal.

35. The significance of all these documents cannot be ignored.

We do find some merit in the contention of the learned

counsel for the appellant that since only life interest was

created in favour of Sardarni Onkar Kaur and that has been

the consistent stand of all the parties, what was created in

favour of all the three sons was a vested interest with only

a postponement of the right to claim partition. In fact, the

factual matrix is similar to the judgment in Usha Subbarao

V. B.E.Vishveswariah‟s case (supra). The vesting thus came

into being on the date of death of the testator as it was to

take effect on the happening of a certain event, demise of

Sardarni Onkar Kaur, with full enjoyment being deferred.

We, however, have to see as to what are the consequences

of the same as understood in the context of the documents

executed by the parties.

36. The claim of the appellant in the Defence Colony property is

predicated on Sardar Surjit Singh Chhatwal pre-deceasing

his mother Sardarni Onkar Kaur. The share of Sardar Surjit

Singh Chhatwal would thus devolve on his legal heirs as he

had a vested right in the property. It is thus stated that

one of the Class I legal heir would be the mother, Sardarni

Onkar Kaur, who was still alive as on that date. Since

Sardarni Onkar Kaur also passed away intestate, that

portion of the property, which would devolve on her from

Sardar Surjit Singh Chhatwal, would have a different

character than the life interest which devolved on her in

pursuance to the Will and that her interest would also be a

vested interest.

37. If the aforesaid plea is accepted, the question arises as to

how this portion of the estate which would devolve on

Sardarni Onkar Kaur as her absolute interest was treated by

her legal heirs. This portion would in turn get divided

between the plaintiffs on the one hand being the legal heirs

of a pre-deceased son as also the remaining two sons and

daughters. The daughters have categorically given

affidavits abandoning their rights in the property when the

issue arose as to who should be recorded as the lessee of

the property with the L&DO. It cannot be said that these

daughters reserved the right to claim a share even after

furnishing affidavits to the L&DO. The L&DO is the

perpetual lessor of the property and in that sense there is

some distinction between a freehold and a leasehold

property. In a freehold property, the mutation is carried out

by the Municipal Corporation for purposes of house tax.

However, the mutation by the L&DO in its records is carried

out to record as to who is the owner of the property on the

demise of a person. The affidavits by the sisters clearly

imply that they release the interest in favour of the

plaintiffs to the extent it devolved on them from their

mother. It is not a case where the mutation has been made

in the absence of appropriate documents, but has been

done in pursuance to the affidavits.

38. The sisters did not have any inherited right in the property,

but claimed a right only by devolution of interest by

succession from Sardarni Onkar Kaur. It was always open

to them to step aside and not accept an interest and let it

pass on to the other legal heirs. This is exactly what the

sisters have done and possibly in furtherance to the overall

intent of the testator. The aforesaid leaves the remaining

two brothers appellant and respondent no.2. Respondent

no.2 has supported the stand of respondent no.1 and does

not claim any share. That leaves only the appellant. The

appellant has categorically addressed communications and

executed documents to ensure mutation in favour of the

plaintiff no.2 and is thus similarly situated to his sisters.

The appellant cannot be permitted to plead that his claim

arose from him being a heir to his late mother out of the

share which devolved on her on the demise of Sardar Surjit

Singh Chhatwal.

39. There is also another aspect to the matter as the plea of

the appellant in the written statement was that the

property was a HUF property. Thus, the plea was

completely different from what has been sought to be

urged before us or before the learned Single Judge at the

stage of final arguments. Thus, the very factual edifice has

not been laid in the written statement. There is also no

quibble over the legal principles that in order for a

statement to constitute estoppel, there must be an existing

fact and must be properly pleaded and proved. Similarly, a

plea of waiver is an abandonment of right by a person who

has full knowledge of such rights and there should be

alterations of positions to the detriment of the person

concerned {Dawsons Bank Ltd.‟s case (supra)}. Plaintiffs

approached the Court with a suit for partition in which a

defence was taken by the appellant of the property being a

HUF property. It is in that context that evidence was led in

respect of the stand taken by the appellant and his sisters

before the L&DO. The documents referred to aforesaid thus

affirm the substratum of the plea of waiver as those

persons had full knowledge of their rights and took a

conscious decision to let the property devolve in a

particular manner possibly taking into account the overall

intent of the testator and thus waived any right from the

devolution of interest acquired by Sardarni Onkar Kaur.

40. We thus find that the conclusion reached by the learned

Single Judge, though for slightly different reasons, cannot

be doubted that the share of Sardar Surjit Singh Chhatwal

to the extent of 1/3rd in the Defence Colony property

devolves on respondent no.1 alone.

41. Learned counsel for the appellant did seek to refer to

certain judgments dealing with the aspect of throwing

properties in a hotch potch, but we fail to appreciate this

plea in the context of Guru Harkishan Nagar property. The

appellant, in fact, never proved such a case and the claim

was predicated once again on devolution of interest from

the mother who in turn got a share as a legal heir of late

Surjit Singh Chhatwal. The aforesaid property was the

exclusive property of Sardar Surjit Singh Chhatwal. It was

not a property owned by late Dr.(Major) Balwant Singh

Banda and thus did not form a part of the Will or a part of

his estate even otherwise. There cannot be, in our

considered view, a clubbing of properties of all and sundry

in one suit. The suit related to only devolution of property

of Dr.Banda and thus the claim in respect of the self

acquired property of Sardar Surjit Singh Chhatwal could

only be by a separate suit which the appellant never filed.

42. There is also another aspect to the matter since it is not the

case of the appellant that he was ever in possession of any

portion of the property of the Guru Harkishan Nagar

property. No proper claim was laid nor court fees paid.

The claim for partition was well beyond time when it was

laid and no court fees was paid. It is in this context that the

observations in Joginder Tuli v. S.L.Bhatia and Anr‟s case

(supra) become relevant that if the court fees had not been

paid within the time prescribed and the claim becomes time

barred, the same cannot be treated as a counter claim even

if it was so maintainable.

43. We are thus in agreement with the view of the learned

Single Judge that there could not have been any

adjudication of the claim of the appellant in respect of this

property in the present suit and was, in any case, time

barred.

44. We thus find no merit in the appeal including on the aspect

of costs. The anguish of the learned Single Judge has been

rightly expressed in para 35 of the impugned order. The

appellant has taken contradictory pleas and prolonged the

litigation. A sorry state of affairs has been brought to pass

where the respondent no.1 despite being a co-owner of the

property (irrespective of the percentage of his share even

as claimed by the appellant) is living in a Gurudwara.

Such frivolous defences, when they prolong the suit, must

be met with heavy compensatory costs apart from any

other action which may be called for. No doubt, the

plaintiffs came to be in possession of a small part of the

property and since the demise of plaintiff no.1, plaintiff no.2

is staying in a Gurudwara, the appellant has been enjoying

most of the property. The order directing mesne

profits/damages for use and occupation by the appellant in

excess of his share is, thus, rightly called for while

appointing the local commissioner in pursuance to the

preliminary decree passed in terms of the impugned order.

45. The last aspect which may be noticed arises from the plea

of the respondent no.1 that the conduct of the appellant

calls for a notice of contempt. This aspect has been dealt

with by us in a separate order passed today and this is not

being repeated herein to avoid unnecessary repetition.

46. We thus dismiss this appeal with costs of Rs.1,00,000/- in

limine hoping that at least now expeditious steps would be

taken in pursuance to the preliminary decree so that the

environment in which the respondent no.1 can live

improves and his expenses are met. The costs shall be

deposited in the Court within four weeks. The Registry shall

maintain an interest bearing deposit for the amount and

disburse the interest amounts accruing on quarterly basis

to the guardian ad litem for the benefit of respondent no.1.

Necessary directions can be issued further at the time of

passing of final decree by the learned Single Judge.

SANJAY KISHAN KAUL, J.

FEBRUARY 17, 2009 SUDERSHAN KUMAR MISRA, J. dm