Suresh Chand Mathur vs Harish Chand Mathur
2010 Latest Caselaw 5084 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 28.10.2010
                     Judgment Pronounced on: 09.11.2010

+           CS(OS) No. 1818/2001


SURESH CHAND MATHUR                            .....Plaintiff


                           - versus -


HARISH CHAND MATHUR                           .....Defendant

Advocates who appeared in this case:

For the Plaintiff            : Mr Kirti Uppal with Ms Shipra
                             Mathur, Advs.
For the Defendant            : Mr Abijat, Adv.


CORAM:-

HON'BLE MR JUSTICE V.K. JAIN

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 Yes in Digest?

V.K. JAIN, J

1. This is a suit for declaration. The plaintiffs and

defendants are brothers. Property No. B-4/196, Safdarjung

Enclave, New Delhi was owned by late Smt. Shakuntala

Devi Mathur, mother of the parties. She expired on 05 th

November, 1998, leaving a Will dated 17th September, 1981,

which was registered on the same date. The property was

bequeathed by the Testator in the following terms:-

"(1) On the ground floor of the house situated at B-4/196, Safdarjung Enclave, New Delhi, I am in occupation of a drawing room measuring 13'-10½" into 11'-10" and one dining room measuring 13'-10½" into 10'-0", one toilet measuring 8'-C" into 4'-8", one kitchen measuring 8'-C" into 7'-0". The same is bequeathed to my son Shri Harish Chand Mathur. In addition to the above one bedroom measuring 13'-10½" into 11'-10" with attached toilet measuring 6'-5" into 6'-4½" presently under the tenancy of one Shri Sohan Minz is also bequeathed to the said Shri Harish Chand Mathur. The entire open space including Canopy, verandah, etc. on the front side and half portion of the open space on the back side to the property is bequeathed to the said Shri Harish Chand Mathur. The entire portion thus bequeathed to said Shri Harish Chand Mathur has been marked as Red in the appended plain.

(3) The remaining portion of the ground floor, consisting of one bed, measuring 13'-10½" into 10'-0" and one kitchen (Box) measuring 8'-0" into 5'-0", which is presently part of the tenanted portion with said Shri Sohan Minz including half portion of the open space on the back side of the property is

bequeathed to my son Shri Ishwar Chand Mathur.

(4) That under the municipal laws, the Ist and second Floor of the house can be further constructed, which I have not been able to carry out for want of funds. My sons Shri Suresh Chand Mathur, Shri Mahesh Chand Mathur and Shri Naresh Chand Mathur are settled in life and are in a position to construct the property for themselves, and with that view in mind, I further bequeath:

(a) The portion on the first floor above the dining and drawing room including toilets and kitchen, presently under my possession, to Shri Mahesh Chand Mathur for the purpose of constructing thereon suitable property according to the municipal law.

(b) Similarly, Shri Suresh Chand Mathur is bequeathed the portion on the first floor above the two bed rooms attached bath room and kitchen, presently under the tenancy of Shri Sohan Minz for the purpose of constructing property according to municipal laws.

(c) Similarly, Shri Naresh Chand Mathur is bequeathed space on the second floor for construction of house according to the municipal laws over all constructions on first floor. Provided that in the event the construction on the first floor is not carried out by the legatees over their respective portions within 10 years after my death, the portion thus bequeathed, shall revert to my son Shri Naresh Chand Mathur, who shall thereafter have a complete right over the

same as full owner. In that event rights of Naresh Chand regarding second floor will revert to Shri Harish Chand Mathur. Provided, further, that in case of Shri Naresh Chand Mathur who has been bequeathed the second floor does not carry out the constructions within ten years of constructions on first floor or within ten years of his entitlement to first floor as aforesaid, his entitlement will revert back to Shri Harish Chand. Shri Harish Chand Mathur shall have the right of extending the aforesaid period of ten years by consenting in writing to that effect. In case of pre-death of Shri Harish Chand, his heirs, will step in his place. It may be added here that Shri Mahesh Chand, Shri Suresh Chand Mathur and Shri Naresh Chand Mathur shall have complete right of construction over the space bequeathed to them. They shall, however, have no right to transfer the portion, thus bequeathed to them without first carrying out the constructions according to the municipal laws. They shall have free right of access and passage to the first or the second floor, as the case may be from the front side of the house, where the staircase is situated. They shall have no other right to the assets and property left by me after death.

2. It has been alleged in the plaint that late Smt.

Shakuntala Devi Mathur changed her mind in November,

1997, by wring a letter, addressed to her children, on a non-

judicial stamp paper, annexing therewith some pieces of

paper written in her own handwriting and containing her

real intention in the matter. In one of the annexures to the

aforesaid letter, she recorded that her house B-4/196 will

go to her five sons and her daughter shall have no rights

therein. This document, according to the plaintiffs,

constituted a deemed codicil to the Will dated 17th

September, 1981. The plaintiffs have sought a declaration

that the restriction, contained in the Will dated 17th

September, 1981 on transfer of the shares of the plaintiffs

in the aforesaid property is void and invalid under Section

138 of Indian Succession Act and that the letter dated 06 th

November, 1996 reflects the real and last intention/desire of

the Testatrix and amounts to a deemed codicil. They have

also sought declaration that the defendants have no specific

share in the property in terms of the Will, read with the

deemed codicil.

3. The suit has been contested by defendant No.1,

who has taken a preliminary objection that the suit for

declaration simplicitor is not maintainable as the plaintiff

has not claimed any consequential relief. He has taken

another preliminary objection that the suit is not properly

valued for the purpose of Court Fee and jurisdiction as the

market value of the suit property is Rs 82,54,232/- and

3/5th share in this property sould be valued at Rs

49,32,540/-, whereas the suit has been valued only at Rs

21 lacs. He has also taken another preliminary objection

that since the alleged deemed codicil has not been attested

by any witness, it does not comply with the mandatory

requirement of law and, therefore, the plaint does not

disclose any valid cause of action.

4. On merits, it has been alleged that the document

dated 06th November, 1996 and its annexures are forged

and fabricated documents. It has been claimed that the

documents relied upon by the plaintiff are inconsistent with

each other and the annexures of the document dated 06th

November, 1996 do not bear any date. It has also been

alleged that the deceased had bequeathed clearly

demarcated and specified areas and rights to her sons.

5. The following issues are framed on the pleadings of

the parties:-

(i) Whether the suit is not maintainable? OPD

(ii) Whether the suit has not been properly valued for

purposes Court fee and pecuniary jurisdiction?

OPD

(iii) Whether late Smt. Shakuntala Devi had executed

documents marked annexures 3 to 9 to the plaint?

OPP

(iv) In case Issue No.3 is proved in the affirmative,

whether the said documents either collectively or

independently constitute a deemed codicil, which

supersedes or modifies the registered Will of the

testatrix dated 17th September, 1981? OPP

(v) Whether the restrictions contained in para 4 of the

registered will dated 17 th September, 1981 on

transfer of the share in the suit property is void

and invalid under Section 138 of the Indian

Succession Act, 1925? If so, whether the plaintiffs

have absolute right to sell their respective

portions? OPP

(vi) Relief.

6. Issue No.1

No submissions were made on this issue during

the course of the arguments. The issue is decided against

defendant No.1.

7. Issue No.2

No submissions were made on this issue during

the course of the arguments. The issue is decided against

defendant No.1.

8. Issue No.3

The plaintiffs have filed their own affidavit by way

of evidence. In their affidavits, the plaintiffs have supported

the case setup in the plaint. They have also produced their

sister Smt. Shashi Mathur in the witness box as PW-4.

Smt. Shashi Mathur has stated that on the 13th day after

the death of her mother, the almirah was opened in the

presence of all the brothers and sisters, the documents were

taken out from it, and were handed over to her after

supplying photocopies to all brothers and sisters. She has

identified the handwriting of her mother Smt. Shakuntala

Devi on the documents Ex.PW-4/1 to PW-4/7. During

cross-examination, she stated that her mother had started

writing regarding change of circumstances, but she did not

change her Will which she had got registered in the office of

Sub-Registrar in her presence.

7. Defendant No.1 has filed his own affidavit by way

of evidence. No other witness has been produced by him in

support of his case.

8. I see no reason to disbelieve the testimony of Smt.

Shakuntala Devi as regards the handwriting on the

documents Ex.PW-4/1 to PW-4/7. During cross-

examination of the witness, no such suggestion was given to

her that these documents are not in the handwriting of the

deceased. When a witness deposes a particular fact and no

suggestion to the contrary is given to him during cross-

examination, the person against whom the deposition is

made is deemed to have admitted that fact. Since defendant

No.1 was disputing the claims of the plaintiff that Ex.PW-

4/1 to PW-4/7 are in the handwriting of late Smt.

Shakuntala Devi, it was incumbent upon him to dispute the

deposition of PW-4 in this regard by suggesting to her that

in fact these documents were not in the hand of late Smt.

Shakuntala Devi. Even defendant No.1, in his affidavit by

way of evidence, did not claim that the documents Ex.PW-

4/1 to PW-4/7 were not in the hand of his mother. In his

cross-examination, defendant No.1 admitted that besides

the Will, 8 FDRs and documents Ex.PW-4/1 to PW-4/7 were

recovered from the almirah of the deceased, after her death.

In fact, in the later part of the cross-examination, he

specifically admitted that documents Ex.PW-4/1 to PW-4/7

are in the handwriting of his mother. Thus, it is now an

admitted fact that documents are in the handwriting of late

Smt. Shakuntala Devi. The issue is decided in favour of the

plaintiff and against the defendant.

These issues are interconnected and can be

conveniently decided together.

EX.PW-4/2 is the main document relied upon by

the plaintiffs, though certain portions of the property are

also referred to in the stamped document Ex.PW-4/1 and

the document Ex.PW-4/3. Vide document PW-4/2, the

deceased wrote that her house B-4/196 belongs to all her 5

songs Suresh Chand, Naresh Chand, Mahesh Chand,

Ishwar Chand and Harish Chand and that her daughters

have no right in it. This document, however, does not bear

any date and is not signed by any person as an attesting

witness. In the absence of any date on this document, it

cannot be ascertained whether it was written before or after

execution of the Will dated 17th September, 1981. No

evidence has been led by the plaintiffs to prove the date on

which this document was written by late Smt. Shakuntala

Devi. None of the plaintiffs claimed to be present at the

time when this document was written by her. PW-4 also did

not tell the Court as to on which date, this document was

written by her mother. It is true that the document Ex.PW-

4/1 which is dated 06 th November, 1996 and has been

written on stamp paper purchased on the very same day

refers to certain documents. But, since the Ex.PW-4/1 does

not describe the documents referred in it, it cannot be

ascertained whether Ex.PW-4/2 was one of those

documents or not. This is more so when Ex.PW-4/2 does

not bear any date. The same applies to the document

Ex.PW-4/3, which contains a reference to some portion of

the suit property. In fact, PW-2 expressly admitted in his

cross-examination that he was not aware of the documents

Ex.PW-4/1 to PW-4/7 during the lifetime of his mother.

10. What is more important is that none of the

documents, out of Ex.PW-4/1 to Ex.PW-4/7, is witnessed

by any person. Section 63 of Indian Succession Act, to the

extent, it is relevant, reads as under:

Execution of unprivileged Wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged] or a mariner at sea, shall execute his will according to the following rules:--

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Since Smt. Shankuntala Devi Mathur was not a

soldier or an airman, employed in an expedition or engaged

in actual warfare not was she a mariner at sea, any Will or

Codicil by her was required to be executed in terms of

Section 63(C) of the Act. As provided in Section 2(b) of the

Act "codicil" means an instrument made in relation to a

Will, and explaining, altering or adding to its dispositions,

and shall be deemed to form part of the Will. The Codicil,

therefore, is also required to be executed in the same

manner in which a Will is to be executed.

11. In Bhagat Ram And Another vs. Suresh and

Ors.: (2003) 12 SCC 35, Supreme Court observed that since

by fiction of law, the codicil, though it may have been

executed separately and at a place or time different from the

Will, forms part of the related Will, it would be anomalous to

accept the contention that though a Will is required to be

executed and proved as per the rules contained in the

Succession Act and the Evidence Act, the document

explaining, altering or adding to the Will and forming part of

the Will is not required to be executed or proved in the same

manner. In this regard, the Court made a reference to

Section 70 of the Act which expressly provides that no

unprivileged Will or codicil, nor any part thereof, shall be

revoked otherwise than by marriage or by another Will or

codicil or by some writing, declaring an intention to revoke

the same and executed in the manner in which an

unprivileged Will is required to be executed. The Court

expressly held that the same rule of execution, therefore,

apply to a codicil, which apply to a Will to which the codicil

relate and the evidence adduced in proof of execution of a

codicil must satisfy the same requirements as apply to the

proof of execution of a Will.

12. In Lalitaben Jayantilal Popat Vs. Pragnaben

Jamnadas Kataria: AIR 2009 SC 1389, after referring to

provisions of Section 63 of the Indian Succession Act,

Supreme Court held that one of the requirements of due

execution of a Will is its attestation by two more witnesses

which is mandatory. No judgment to the contrary has been

brought to my notice by the learned counsel for the plaintiff.

Since none of the documents out of Ex.PW-4/1 to PW-4/7

has been executed in the manner, prescribed in Section

63(C) of the Indian Succession Act, they cannot be

considered as a valid Will or codicil to the Will dated 17th

September, 1981. The issue is decided against the plaintiffs

and in favour of defendant No.1.

Section 138 of Indian Succession Act reads as

under:-

"Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person.- Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction."

14. A bare perusal of the above-referred Section would

show that it applies to a case, where, on a reading of the

Will, the intention of the Testator is found to be to give

whole of his estate absolutely to the legatee, but, he has

imposed restrictions on the right of the legatee to use and

enjoy that property as its absolute owner. In such a case,

though the bequest will stand, the subsequent clause in the

Will placing restriction on the right of the legatee would be

treated as void. In other words, this Section applies to a

case where the Testator has devised an absolute estate to

the legatee, but, has specifically added a clause, which has

the effect of reducing his power to deal with that property as

an absolute estate. In such a case, the restriction placed on

the right of the legatee needs to be rejected on account of its

being repugnant to the absolute bequest of that property to

the legatee. To take certain examples where a Will provides

that on the death of the Testator, the legatee shall enjoy the

property as its absolute owner, but he will not be entitled to

alienate it or where he, while bequeathing the property to

one of his family members, puts a rider that he will have no

right to alienate it for a particular period or where he

stipulates in his Will that the legatee will be able to sell the

property bequeathed to him only to a particular person,

thereby restricting the right of the legatee as absolute owner

of the estate.

15. However, the Will, executed by late Smt.

Shakuntala Devi on 17th September, 1981, does not come

within the purview of Section 138 of Indian Succession Act,

since this is not a case where any legatee has been given

absolute right in any part of the property and then the right

of that particular legatee with respect to use and enjoyment

of that part of the property has been restricted or taken

away. In this Will, there is no stipulation that any of the

legatees will have no right or will have a limited right with

respect to disposal of that property. A perusal of the Will

would show that one part of the ground floor has been

bequeathed to Shri Harish Chand Mathur, whereas the

remaining part of the ground floor has been bequeathed to

Ishwar Chand Mathur. The open space on the first floor,

above the dining and drawing room, including toilets and

kitchen was bequeathed to Shri Mahesh Chand Mathr, who

could make construction thereon in accordance with

municipal law. Another open space on the first floor, above

the two bed rooms, attached bath room and kitchen which

were under the tenancy of one Sohan, was bequeathed to

Suresh Chand Mathur, for raising construction thereon in

accordance with municipal laws. The construction on the

first floor by Shri Mahesh Chand Mathur and Shri Suresh

Chand Mathur was to be raised within 10 years of the death

of the Testator. In the event of Shri Mahesh Chand Mathur

and/or Suresh Chand Mathur failing to raise construction

on the first floor within the time stipulated in the Will, the

portion of the person failing to raise construction on the

first floor was to revert to Naresh Chand Mathur, who, then

was to have complete right on the same as a full owner. In

that event, the rights which Naresh Chand Mathur was

given in the event of construction being raised on the first

floor within the time stipulated in the Will, were to revert to

Shri Harish Chand Mathur. In the event of Shri Naresh

Chand Mathur also failing to raise construction on the first

floor within 10 years of his becoming entitled to first floor,

his entitlement is also to revert back to Shri Harish Chand

Mathur. The stipulation for construction to be raised on the

first floor, by Shri Mahesh Chand Mathur and Shri Suresh

Chand Mathur, within 10 years of the death of the Testator,

was not such a condition which could not have been fulfilled

and, therefore, cannot be said to be an impossible condition.

The conditional bequest of the estate is not unknown to law

and is well-recognized by it.

16. A conditional bequest does not come within the

purview of Section 138 of Indian Succession Act which

applies to an altogether different situation where there is an

absolute bequest of the legatee, but his right to deal with

the property as its absolute owner is sought to be curtailed

by the Testator. In fact, Section 131 of Indian Succession

Act is the provision which applies to the bequest made by

late Smt. Shakuntala Devi. This provision, to the extent it is

relevant, reads as under:-

              "Bequest     over,    conditional   upon
              happening or        not happening of

specified uncertain event. (1) A bequest be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person.

Illustration

(ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a will, the estate shall go to B. A disputes the competency of the testator to make a will. The estate goes to B."

This section deals with a defeasance clause,

whereas Section 138 of the Act deals with a repugnant

clause. The distinction behind a repugnant provision and a

defeasance provision is that where the intention of the

Testator is to maintain an absolute estate conferred on the

legatee, but he simply adds some restriction, in derogation

of incidents of such absolute ownership, such restrictive

clause would be repugnant to the absolute grant and,

therefore void, but, where the grant of an absolute estate is

expressly or impliedly made subject to defeasance o the

happening of a contingency and where the effect of such

defeasance would not be a violation of any rule of law, the

original estate is curtailed and the gift over is taken to be

valid and operative. Section 138 thus provides for

divestment of the estate which has already vested, but is

subject to divested by some act or event at an after period.

Of course, the defeasance must be in favour of somebody in

existence at the time the bequest is made.

17. In Administrator-General vs. Hughes: 21 IC 183,

the Testator made a bequest in favour of a Baptist Church

with a condition that (1) no ordained Minister or missionary

be ever elected as a Deacon of the Church or be allowed to

canvass for votes to secure his election. (2) that two cups,

one of fermented and the other of unfermented wine should

be provided at the communion service; (3) that the said

Deacons do not introduce any innovation into the practice

of the said Church, but adhere to the old practices. In the

event of the non-fulfillment of the conditions there was a gift

over in favour of another Church. It was held that there

was nothing illegal or impossible in the conditions and on

non-fulfilment of those conditions, the gift over came into

operation.

In Shyama Charan vs. Sarup Chandra: 14 IC 708,

the Testator made an absolute estate to a legatee with

condition superadded that the legatee shall personally live

in the house and that if he does not live personally in the

house, his interest shall and the estate will go over to

someone else. Holding that there was nothing illegal in the

condition, the bequest was upheld by the Court.

In Enasu vs. Antony AIR 1969 Ker 207, a clause

in the Will provided that if any of the persons who had been

enjoined to meet the expenses of the funeral ceremonies of

the Testator and his wife and of certain specified charities

commits default in meeting such expenses, then such

person shall have no right to the property earmarked for

such expenses. The condition was held to be a condition

subsequent.

18. Since Shri Mahesh Chand Mathur and Shri Suresh

Chand Mathur admittedly have failed to raise construction

on the first floor within 10 years of the death of the

deceased Testator, the portion bequeathed to them on the

first floor stands bequeathed to Shri Naresh Chand Mathur,

who will have to raise construction on it within 10 years

from the date he became entitled to raise construction on

the first floor. The rights in the second floor over the

construction which Shri Naresh Chand Mathur is required

to raise within the time stipulated in the Will will devolve on

Harish Chand Mathur. If Shri Naresh Chand Mathur does

not raise construction on the first floor within 10 years of

becoming entitled to raise such a construction, his rights in

respect of the first floor will revert back to Shri Harish

Chand Mathur.

19. The learned counsel for the plaintiff has referred to

the decision of this Court in Smt. Rajrani Sehgal Vs. Dr.

Parshottam Lal and others AIR 1992, Delhi, 134. The will

of the Testator in that case, to the extent it is relevant for

our purpose, provided as under:-

"I wish that after my death my son Dr. Parshotam Lal will be entitled to the whole of my properties....

.....I also wish that my son Dr. Parshotam Lal shall not sell or mortgage or transfer or pawn the immoveable properties during his life time.

I also wish that my grandsons or my daughter in law shall not sell, transfer or mortgage the properties to anybody after the, death of Parshotam Lal.

I also further wish that the sons or daughters of my grandsons shall not sell, transfer or mortgage the properties to anybody."

20. It was contended by the appellant before this Court

that the Testator had created perpetuity in his family and

has tended to limit the absolute enjoyment of the estate for

an indefinite period which was prohibited by law since it

offended the rule against perpetuity as contemplated by

Section 114 of the Act and, therefore, the bequest in favour

of the Testator was void and inoperative. On the other hand,

it was contended on behalf of the son/respondent before

this Court that once the Court was satisfied that the

Testator wanted to give his all to the named legatee, then all

subsequent restrictions would be void being repugnant to

the predominant intention of passing the entire estate to the

heir. This Court was of the view that the Testator had

expressed an unequivocal desire that his son would be

entitled to all his immovable and movable properties and

that the restrictions imposed against alienation were to be

treated as repugnant to the dominant intention of the

Testator and were liable to be ignored. This judgment has

absolutely no applicability to the facts of this case before

this Court, where there is no restriction on the right of any

legatee to deal with the portion bequeathed to him, in any

manner he desired.

21. The plaintiff has also referred to Ramchandra vs.

Anasuyabai: AIR 1969 Mysore 69, Pyare LAl vs.

Rameshwar Das: AIR 1963 SC 1706 (1706), K. Babu Rao

vs. Datta Rao: AIR 1992 Kant 290, Ajit Chandra vs. Akhil

Chandra, AIR 1960 Cal 551, Surinder Kumar and Ors vs.

Gyan Chand and Ors.: AIR 1957 SC 875, 1958. I have gone

through this judgment. None of them has any applicability

to the matters in issue before this Court. The issue is,

therefore, decided against the plaintiffs.

22. Issue No.6

In view of my findings on Issue Nos. 1 to 5, the

plaintiffs are not entitled to any of the declaration sought by

them in the suit.

ORDER

23. The suit is hereby dismissed without any order as

to costs. Decree sheet be prepared accordingly.

(V.K. JAIN) JUDGE

NOVEMBER 09, 2010 bg