Dina Nath Bakshi & Anr. (Deceased) ... vs Madan Mohan Lal Majhu (Deceased) ...
2010 Latest Caselaw 5583 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment Reserved on: 06.12.2010
%                                Judgment Delivered on: 08.12.2010

+                          R.S.A.No.103/2003

DINA NATH BAKSHI & ANR. (deceased)
THROUGH L.Rs.                         ...........Appellants
                  Through: Ms.Ginny Jetley Rautray, Adv.

                     Versus

MADAN MOHAN LAL MAJHU (deceased)
THROUGH L.Rs.                        ..........Respondents
                 Through: Mr.Vinay Sabharwal &
                          Mr.Sanjay Goswami, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

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

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

15.1.2003 which had reversed the finding of the trial judge dated

28.8.1978. Vide the judgment and decree dated 28.8.1978 the suit

of the plaintiff Madan Mohan Lal Majhu seeking declaration that he

be declared as the legal representative of Lal Devi was dismissed.

Vide the impugned judgment and decree dated 15.1.2003 the suit

of the plaintiff was decreed in his favour.

2. The factual matrix of the case is as follows:

(i) The suit property bearing quarter no.1/15, Jheel Khuranja,

Delhi had been allotted by the Rehabilitation Department to Badri

Nath as a refugee for residential purpose.

(ii) Badri Nath died on 29.1.1964.

(iii) After the death of Badri Nath his widow Lal Devi was his only

legal heir. She had paid a sum of Rs.113.44 p. at the Nirman

Bhawan pursuant to which a conveyance deed had been executed

in her favour.

(iv) Lal Devi died in 1970. She was issueless; she had died

intestate.

(v) Plaintiff Madan Mohan Lal claimed interest in the suit

property after the death of his aunt; contention was that he was the

sole legal heir left by Lal Devi in the line of succession.

(vi) Suit was filed to the said effect that the plaintiff be declared

as the legal heir of Lal Devi over and above the defendants who

were also claiming right in the suit property

(vii) The defendants had relied upon a will dated 3.4.1960

executed by Badri Nath in terms of which Badri Nath had

bequeathed all his movable and immovable property in favour of

his widow Lal Devi; after her death the property would devolve

upon the defendants i.e. Dina Nath Bakshi and Ram Kakra, sons of

Pt.Niranjan who shall in equal shares become the owners of the

suit property.

(viii) On the pleadings of the parties, the following seven issues

were framed by the trial judge; they read as follows:

1. Whether Smt.Lal Devi was the owner of disputed house in her own right before her death as alleged in the plaint? OPP

2. Whether the plaintiff is the legal heir of Lal Devi deceased? OPP

3. Whether deceased Badri Nath made any valid will in favour of the defendants? If so, its effect? OPP

4. Whether the jurisdiction of the civil court is barred in view of Preliminary objection No.2?

5. Whether the disputed property was allotted to Badri Nath against his individual claim in coparcenary property

left in Pakistan?

6A. Whether the present suit is not maintainable in view of preliminary objection no.1?

6. Whether the plaintiff is entitled to relief prayed for?

7. Relief.

(ix)) In view of the oral and documentary evidence led before the

trial judge, the suit of the plaintiff was dismissed. The court held

that the present suit which had sought declaration alone without

the consequential relief of possession is not maintainable in the

present form. The will of Badri Nath dated 3.4.1960 Ex.DW1/1

stood validly proved; the attesting witness and the scribe had come

in the witness box to testify to this effect. This will categorically

established that after the death of Badri Nath the property would

devolve upon his wife Lal Devi and in case she died intestate which

she admittedly had done so, the property would thereafter devolve

upon her nephews i.e. Dina Nath Bakshi and Ram Kakra. Suit of

the plaintiff was dismissed.

(x) In appeal this was reversed by the impugned judgment. The

impugned judgment had held that the suit in the present form is

maintainable; the will Ex.DW1/1 was not validly proved; the

rider in Ex.DW1/1 that after the death of Lal Devi in case she died

intestate the property would devolve upon her nephews Dina Nath

Bakshi and Ram Kakra was a repungant clause. The court had

relied upon Section 8 and Section 15 of the Hindu Succession Act

laying down the rules of succession; it held that since the will had

also not been duly proved it was established that Badri Nath had

died intestate. After his death the property would devolve on his

widow and thereafter in terms of Section 8(c) upon the agnates of

her husband; the plaintiff being the nephew of Badri Nath falling in

this category was entitled to a decree.

3. This is a second appeal. After its admission on 7.10.2004 the

following substantial question of law was formulated which inter

alia read as follows:

"Whether the Will dated 4th March, 1960 executed by Dina Nath has been duly proved in accordance with law?"

4. On behalf of the appellant it has been urged that the findings

of the appellate judge are perverse; the intention of the testator

has to be given the primary importance which had to be gathered

from the recitals in the will; applying this cardinal principle of the

intention of the testator to the will the latter clause in Ex.DW1/1

bequeathing the properties to Dina Nath Bakshi and Ram Kakra

clearly evidence the intention of the testator which was to give

limited estate to his wife and thereafter to her nephews. Reliance

has been placed upon (2003) 6 SCC 98 Arun Kumar & Anr. vs.

Shriniwas & Ors. as also another judgment of the Apex Court in

1991 383 S.Rajagopal chettiar vs. Hamasaveni Ammal & Ors.

Reliance has also been placed upon (2003) 8 SCC 537 Ramabai

Padmakar Patil (dead) vs. Rukminibai Vishnu Vekhande & Ors. It is

pointed out that one attesting witness examined is sufficient to

prove the will. It is submitted that in view of the judgment of the

Apex Court in (1976) 1 SCC 630 Navneet Lal @ Rangi vs. Gokul &

Ors., the true construction of the will must be adverted to and

where one out of the two reasonable constructions leads to

intestacy that should be discarded in favour of a construction

which does not create any such hiatus. It is pointed out that the

will dated 3.4.1960 executed by Badri Nath was a valid will. It is

lastly submitted that a suit for declaration in the present form was

not maintainable without seeking relief of possession as admittedly

the plaintiff was not in possession. For this proposition reliance

has been placed upon 1993 Supp (3) SCC 129 Vinay Krishna vs.

Keshav Chandra & Anr.

5. Arguments have been countered by learned counsel for the

respondent. It is submitted that the will Ex.DW1/1 which has a

rider attached to it whereby it stated that after the death of the

testator his widow would be the exclusive owner and after her

death the property would be owned by her nephews;, the principle

effect was to make the widow an absolute owner of this property.

Reliance has been placed upon AIR 1986 Punjab & Haryana 355

Mehma Singh vs. Dhan Kaur & Ors. to support his submission that

where the testator in the earlier part of the will confer an absolute

estate in favour of his wife, a subsequent clause repugnant to this

must be regarded as invalid; it cannot cut down the estate.

Reliance has also been placed upon AIR 1940 Privy Council 70

Jagat Singh & Ors. vs. Sangat Singh Ors. Reliance has been placed

upon 2010 (9) Scale Subhan Rao & Ors. vs. Parvathi Bai & Ors.,

1993 (25) DRJ 338 Smt.Rajrani Sehgal vs. Dr.Parshottam Lal &

Ors., AIR 1973 Gujrat 146 Full Bench Shantilal Babubhai & Ors. vs.

Bal Chhani & Ors., AIR 1958 Andhra Pradesh 447 Sangavarapu

Venkatasubba Rao vs. Krishnamurthy & Ors., AIR 1951 Orissa 49

Bandura Ramamurty vs. Koppula Vajram & Ors., AIR 1929 Privy

Council 283 Raghunath Prasad Singh & Anr. vs. Deputy

Commissioner & Ors. and another judgment reported in AIR 1938

Lahore 201 Umrao Singh vs. Baldev Singh to support the said

submission.

6. The question of law as aforenoted has to be answered. It

relates to the will of Dina Nath dated 3.4.1960. This will has been

proved before the court as Ex.DW1/1. This document has been

witnessed by Sunder Singh and Dewan Raghy Ram; the scribe of

the document is Harnam Singh, who had been examined as DW3;

he had categorically on oath stated that Ex.DW1/1 had been

written by him; the attesting witness Sunder Singh has been

examined as DW4; he had stated that the testator Dina Nath had

thumb-marked the will at Mark A in his presence and he can

identify his signatures.

7. Under Section 68 of the Indian Evidence Act a document

required to be attested will not be used as evidence unless at least

one attesting witness has been called to prove it. Sunder Singh as

aforenoted had been examined as DW4. The impugned judgment

has mis-appreciated that the examination of one attesting witness

alone is not sufficient to prove a will. This finding in the impugned

judgment being an illegality is set aside. Will Ex.DW1/1 stood

proved.

8. The next question which has to be answered is as to whether

Badri Nath was the owner of the property i.e. Quarter No.1/15,

Jheel Khuranja Colony, Ilaka Shahdara and was competent to

bequeath the said property. Ex.DW1/1 categorically recites that

this property is owned and possessed by the testator. He had been

allotted this quarter from the Department of Rehabilitation and

Compensation under Claim No.D/948/IVNTA/118 had been

deposited by him; sale certificate was yet to be received. Para 6 to

9 of Ex.DW1/1 relevant for the controversy in issue read as under:

6. That the executant shall remain absolute owner of the properties from column 1 to 4 above till my life and shall occupy the said property as owner and the executant shall have rights to use and transfer the said property and to receive the money in my life time. After my death the movable and immovable properties which I own and

possess, shall be owned and possessed by Smt.Lal Devi wife of executant and she will have rights to transfer the said property and to receive the pension amount from the post office.

7. In case Smt.Lal Devi died without executing the Will and transferring the said property in her life time, in such situation, the property remains indisposed of, will go to Shri Ram Kakra and Dinanath Bakshi Brahman sons of Pandit Niranjan Late occupation service I.A.F. residents of Kanpur, Harihar Nath, Shastri Nagar, shall become the owners in equal shares and they shall have rights to transfer the said property and to receive the amount, Shri Ram Kakra, and Dina Nath Bakshi above said are the Bhanja/Maternal newphew of my wife Smt.Lal Devi and they used to serve me and my wife all the times and are my well wisher and helpful to me. My other legal heirs and relatives will have no right and concern with my said properties in any manner.

8. The executant have rights to revoke or cancel the said Will at all times.

9. That all my funeral ceremonies shall be performed by my wife and Shri Ram Kakra and Dinanath Bakshi and my Will shall be acted upon accordingly.

The intention of the testator has to be gathered not by

reading any particular clause of the will but by reading the entire

document. This document read in entirety clearly shows that

while in a sound disposing mind, the testator had bequeathed the

suit property in favour of his wife with all rights in the suit

property including the right to transfer the property. It recites that

in case Lal Devi transfers her property in her life time the property

shall be disposed of in the said manner but in case she dies without

executing a will, the suit property will devolve upon Dinanath

Bakshi and Ram Kakra, Brahman sons of Pandit Niranjan who shall

then become owners in equal shares and they will have the right to

transfer the property and to receive all amounts therefrom. The

relationship of Ram Kakra and Dina Nath Bakshi has been

explained being the nephews of his wife Lal Devi. The intention to

bequeath the property in their favour was for the reason that they

were serving Badri Nath and Lal Devi at all times and were their

well-wishers and helpful to them. The legal heirs of relatives of

Badri Nath had been excluded.

9. The plaintiff in his plaint had set up that full price of the

quarter had not been paid by Badri Nath; balance amount had been

paid by his widow Lal Devi and conveyance deed had been

executed in her favour in the year 1964. Admittedly, this

conveyance deed had been executed in favour of Lal Devi after the

demise of her husband Badri Nath. Contention of the defendant

was that this property had been allotted to Badri Nath as a

compensation in lieu of the property which had been left by him in

Pakistan; he had paid the amounts due on the property.

DW6 S.B.Lal from the office of Settlement Commissioner,

Jaisalmer House had deposed that quarter no.1/15, Jheel Khuranja

colony, Ilaka Shahdra, Delhi had been allotted to Badri Nath, the

claimant; he was shown as claimant as per the record and this was

evident from the order dated 26.4.1952; after the last payment

made by Badri Nath no other payment was due from him; there

was only one entry in the record which stated that the sale deed

should be issued.

As per this record no amount was due from Badri Nath after

the last payment received in the department; only direction was

that the sale deed had to be issued. It was thus established that

Badri Nath was the owner of this suit property and was competent

to make a will qua this property.

The testator Badri Nath was fully competent to bequeath this

property in the manner in which it had done so.

10. The guidelines for construing a will have been reiterated by

the Supreme Court in the case of Arun Kumar (supra). The

intention of the testator has to be given primary importance which

had to be gathered from the recitals in the will; the surrounding

circumstances disclosed from the will, underlying scheme of the

disposition made under the will and also for the reasons for making

such a bequest. The will must be construed objectively and the

conclusion has to be deduced by a rational process of reasoning.

In this case a lady S had executed a will in respect of a property of

which she was absolute owner. In the will it was stated that after

her death her husband shall be the heir and owner of the property

but it was subject to a rider that such succession or ownership had

to be "as detailed below". This was immediately followed by a

recital and in accordance with the will three sons of her niece

would be the owners of the suit property after the death of her

husband. Will further stated that bequest "for the benefit and

enjoyment of the property by my above husband and minors boys".

The Supreme Court had held that this testament cannot be

construed to bequeath the property absolutely in favour of the

husband; if construed otherwise it would constitute violence to the

language and defeat the very intention of the testator. Will was

construed as having made the bequest in favour of her husband as

one for life interest and the remainder bequeathed absolutely in

favour of the three minor children after the life time of her

husband. Provisions of Section 124 of the Indian Succession Act

were held to have no relevance.

11. Applying the analogy and the ratio of the facts of the instant

case, it is clear that a life interest only had devolved upon Lal Devi

with right to transfer the property during her life time but in case

she died intestate the property would devolve upon Dina Nath

Bakshi and Ram Kakra; this was a valid bequest.

12. The present suit was a suit for declaration. The avermnets in

the plaint nowhere state that the plaintiff was in possession of this

property. The plaint in this case clearly deciphers that the plaintiff

is not in possession of the suit property. The written statement had

taken categorical stand that the defendants are in possession

thereof. This was not denied in the replication. Even then plaintiff

did not choose to amend the plaint. In such an eventuality, the

relief of possession ought to have been asked for. Court had

arbitrarily granted the relief of injunction without the

consequential prayer for possession. The suit was not maintainable

on this count also.

13. A suit for declaration without seeking consequential relief of

possession did not lie. In Vinay Krishna (surpa) where a suit had

been filed for declaration of title to the property, the property

admittedly not being in possession of the plaintiff, proviso of

Section 42 of the Specific Relief Act, 1877 had come into operation

and being a discretionary relief the court had held that this was a

fit case where such a declaration should be refused.

14. Judgment of Subhan Rao (supra) is inapplicable; in this case,

estate had been alienated during the lifetime of S by sales deeds

which were held to be valid. The other judgments relied upon by

the respondent are also all distinct on facts.

15. The result of the aforesaid discussion is that appeal is

allowed; suit of the plaintiff stands dismissed.

INDERMEET KAUR, J.

DECEMBER 08, 2010 rb