Delhi High Court
Shakuntla & Anr vs Rajinder Singh Deswal on 26 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 7th September, 2022
Judgment Delivered on : 26th September, 2022
+ CS(OS) 2664/2014 & I.A. 11202/2016 (u/S 151 of CPC)
SHAKUNTLA & ANR ..... Plaintiffs
Through: Mr.Ankit Jain, Ms. Bhoomija Verma,
Mr. Sarvesh R, Advocates
Versus
RAJINDER SINGH DESWAL ..... Defendant
Through: Mr. Harish Malhotra, Senior
Advocate with Mr. N. K. Kantawala
and Ms.Shloka Rawat, Advocates
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
1. The present suit has been instituted seeking partition of the property
bearing No. 8, Northwest Avenue Road, Punjabi Bagh Extn., New Delhi -
110026, measuring about 300 sq. yds (hereinafter referred as the 'Suit
Property').
2. The case set up by the plaintiffs in the plaint:
i) The suit property was originally purchased by Sh. Mamchand Deswal,
who constructed a house thereupon. He executed a registered will
dated 24th February, 1993. He passed away on 18th October, 1993,
leaving behind a widow, Smt. Nanki Devi and three children, being
Shakuntala, Krishna Prakash and Rajender Singh Deswal. Before his
death, Sh. Mamchand Deswal constructed a house on the plot of land,
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which is the suit property in the present suit.
ii) The plaintiff no.1 is a daughter, who is permanently settled in
Gurgaon, Haryana after her marriage in 1975; the plaintiff no.2 is
also a daughter, who is permanently settled in USA after her marriage
in 1981 and; the defendant is also permanently settled in Mumbai,
Maharashtra since 1968.
iii) On the death of Sh. Mamchand Deswal, Smt. Nanki Devi became the
sole and absolute owner of the suit property on the basis of a Will
dated 24th February, 1993, executed by Late Sh. Mamchand Deswal.
iv) Smt. Nanki Devi expired on 20th August, 2014 leaving behind a Will
dated 26th August, 2013, wherein she bequeathed the suit property in
favour of all the three children i.e. the two plaintiffs and the defendant
in equal shares.
v) The suit property was in the possession of Smt Nanki Devi till her
death. The first floor of the suit property was being let out by her from
time to time to different tenants.
3. Based on the aforesaid pleadings, a decree of partition is sought in
respect of the suit property to the extent of 1/3 rd share each in favour of the
two plaintiffs and the defendant.
4. Suit was contested by the defendant by filing a written statement, in
which it was pleaded that:
i) The defendant is in sole possession of the suit property. The
defendant has always been paying the annual house tax of the suit
property and the renovation of the suit property has also been carried
out by the defendant out of his own funds from time to time.
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ii) The suit property was in the name of the father of the parties and no
mutation has been carried out by the mother in her name after the
death of the father.
iii) The mother had only the life/limited interest in the suit property as per
aforesaid Will executed by the father of the parties. Hence, in terms of
the Will dated 26th August, 2013, executed by the mother of the
parties, the plaintiffs are not entitled to any share in the suit property,
as the mother had no right to bequeath the suit property.
5. Counsel appearing on behalf of the plaintiffs has made the following
submissions:
i) Clause 4 of the will dated 24th February, 1993 specifically provides
that after the death of the father of the parties, all his movable and
immovable properties will be inherited by his wife and will be the
'absolute' and 'exclusive' properties of Smt. Nanki Devi. The use of
the words 'absolute' and 'exclusive' clearly shows the intent of the
testator to absolutely vest the suit property in favour of his wife.
ii) Upon the death of the father of the parties, the mother of the parties
became the sole and absolute owner of the entire estate of the father
of the parties. Thus, there was nothing left with the father of the
parties, which could be bequeathed to the defendant.
iii) Clauses 4 and 7 of the Will are not mutually inconsistent and once the
testator bequeathed absolute interest under clause 4 of his Will, then
clause 7 stands repugnant and void-ab-initio.
iv) The father of the parties, after creating an absolute interest in favour
of his wife, cannot change the line of succession of his wife. It cannot
be contended that the Testator had any right to legislate as to how a
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property belonging to his wife would devolve upon her death. Any
property belonging to his wife, at the time of her death, would
devolve as per her own Will.
v) Reliance is placed on Sections 82 to 88 of the Indian Succession Act,
1925 and the following judgments, in support of the aforesaid submissions:
a) Mauleshwar Mani & Others. v. Jagdish Prasad and Others,
(2002) 2 SCO 468.
b) Judge Pal Khera v. Chand Rani Khera & Ors,
MANU/DE/1766/2012.
c) Sudaran Suryanarayana & Anr. v. Kalla Surya Kantham &
Anr., (2010) 13 SCC 147.
6. Senior counsel appearing for the defendant has made the following
submissions:
i) The father of the parties, through his Will dated 24th February, 1993,
clearly expressed his intent to create a life/limited interest in favour of
his wife, and after the death of his wife, the entire estate of Late Sh.
Mamchand Deswal, including both moveable and immovable
properties were to devolve absolutely upon the defendant. Therefore,
the defendant is the absolute owner of the suit property.
ii) In Clause 4 of the Will, no power has been given to the mother to
dispose of the properties. Therefore, only a life/limited interest was
created in favour of the mother.
iii) A reading of various provisions of the Will in a harmonious manner
shows that the intention of the father of the parties was that the
defendant alone shall inherit his entire movable and immovable
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properties. Separate provisions in the Will have been made in respect
of the two plaintiffs as well as the mother of the parties.
iv) If the interpretation of the clauses of the Will placed by the plaintiffs
is taken to be correct, the Clause 7 of the Will would become otiose.
v) Reliance is placed on the following judgments in support of the
aforesaid submissions:
d) Raghbir Singh vs. Budh Singh, AIR 1978 Delhi 86.
e) S. Rajagopal Chettiar v. Hamasaveni Ammal, AIR 1992 SC 704.
f) Navneet Lal v. Gokul, AIR 1976 SC 794.
7. In rejoinder, the counsel for the plaintiffs has submitted that:
(i) There is no separate provision in the Will executed by the father with
regard to the two plaintiffs, only a provision has been made in
respect of their daughter's wedding.
(ii) The words 'sole' and 'absolute' used in Clause 4 in the Will are
missing in Clause 7 of the Will.
8. The validity and legality of the Will dated 24th February, 1993 was
undisputed by the parties, and hence, vide order dated 28th July, 2015, this
Court granted liberty to the parties to address arguments on the effect of
clauses 4 and 7 of the aforesaid Will and framed the following preliminary
issue:
"What is the effect of Clauses 4 and 7 contained in the registered
will dated 24.2.1993, executed by late Sh. Mamchand Deswal
father of the parties? (Onus on the parties)"
9. Since the contentions of both sides are in respect of interpretation of
the Will executed by the father, it is deemed apposite to set out the relevant
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clauses of the Will:
"......
3. I have got my living wife Smt. NANKI DEVI, one married Son,
named Shri Rajinder Singh Deswal, two married daughters namely
Mrs. Shakuntla W/O Shri Bhupender Pal and Mrs. Krishna Prakash
W/O Shri Brahm Prakash.
4. I, therefore, of my own free will and desire, declare, devise and
bequeath that during my life time I shall continue to remain
absolute owner in possession of all my estate, moveable and
immoveable properties which at present I possess and which I will
acquire till my death and after my death the same will be inherited
bymy wife, Smt. Nanki Devi and will stand absolute and exclusive
properties of my wife.
5. I have bank accounts (saving and fixed deposits) joint accounts
with my wife Smt. Nanki Devi, in Punjab National Bank, State Bank
of India, and Union Bank of India, Punjabi Bagh, New Delhi-
110026. I have got a locker in my and my wife‟s name in Union Bank
of India, Punjabi Bagh, New Delhi-110026 and some important
documents are lying in the locker. After my death the same will
become the property of my wife Smt. Nanki Devi only and none of
my other legal heirs shall have any right and interest with it.
6. I own one double storey House No. 8, North West Avenue Road,
Punjabi Bagh Extension New Delhi-110026 on a plot of 300 sq. yards
which was constructed from my own earnings of my life time. One
storey of this house has been given on rent from which my monthly
expenses are met as my pension is insufficient to meet the expenses.
The monthly expenses of the house also includes, yearly House Tax,
white washing and maintenance of the building etc. etc.
7. After the death of my wife, Smt. Nanki Devi my son named
Rajinder Singh Deswal will inherit all my assets and property
moveable and immoveable.
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8. Both of my daughters are well settled in their respectable families
and enjoying happy life. My elder daughter (Mrs.Shakuntla)has got
one daughter named Pooja and one Son Parshant Kumar.After my
death a sum of Rs.21000/- should be paid to my daughterShakuntla
for her daughter's marriage „Pooja‟ from my bankaccounts.
9. My younger daughter Mrs. Krishna Prakash has also got two
child, one daughter named Neha and one son named Poras. After
mydeath a sum of Rs.21000/- should be paid from my Bank
accounts toMrs. Krishna Prakash for her daughter‟s marriage
(Neha).
...
11. The contents of my this Last Will have been typed by me and the
same are correct and according to my desire and wish."
10. The following facts emerge from the reading of the aforesaid Will:
i) In Clause 3 of the Will, the Testator lists out his Class-I legal heirs.
ii) In Clause 4 of the Will, the Testator states that he shall remain
'absolute owner in possession' of all his estate, movable and
immovable properties during his lifetime. The said clause goes on to
state that after the Testator's death, 'the same' i.e. all his movable and
immovable properties shall be inherited by his wife and shall be her
absolute and exclusive properties.
iii) Clause 5 of the Will deals with the bank accounts held by the Testator
jointly with his wife. It clearly provides that after his death the said
bank accounts shall become property of his wife only and none of the
other legal heirs shall have any right or interest in it.
iv) Clause 6 gives the description of the suit property and its current
status.
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v) Clause 7 provides that after the death of his wife, his son, the
defendant herein, will inherit all his assets and movable and
immovable property.
vi) Clauses 8 and 9 deal with the bequest made in favour of the families
of the daughters. The Testator notes that both his daughters are well
settled in their respectable families and enjoying a happy life.
Therefore, Rs.21,000/- be paid for the marriage of the daughters of
the plaintiffs.
vii) In Clause 11, the Testator clarifies that the aforesaid Will has been
prepared by the Testator himself.
11. Sections 82 to 88 of the Indian Succession Act, 1925 deal with the
aspect of interpretation of a will. The same are set out below:
"82. Meaning of clause to be collected from entire Will--The
meaning of any clause in a Will is to be collected from the entire
instrument, and all its parts are to be construed with reference to
each other.
Illustrations
(i) The testator gives to B as a specific fund or property at the
death of A, and by a subsequent clause gives the whole of his
property to A. The effect of the several clauses taken
together is to vest the specific fund or property in A for life,
and after his deceased in B; it appearing from the bequest to
B that the testator meant to use in a restricted sense the
words in which he describes what he gives to A.
....
83. When words may be understood in restricted sense, and
when in sense wider than usual.- General words may be
understood in a restricted sense where it may be collected from the
Will that the testator meant to use them in a restricted sense; and
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words may be understood in a wider sense than that which they
usually bear, where it may be collected from the other words of the
Will that the testator meant to use them in such wider sense.
84. Which of two possible constructions preferred.- Where a
clause is susceptible of two meanings according to one of which it
has some effect, and according to the other of which it can have
none, the former shall be preferred.
85. No part rejected, if it can be reasonably construed - No
part of a Will shall be rejected as destitute of meaning if it is
possible to put a reasonable construction upon it.
86. Interpretation of words repeated in different parts of Will -
If the same words occur in different parts of the same Will, they
shall be taken to have been used everywhere in the same sense,
unless a contrary intention appears.
87. Testator‟s intention to be effectuated as far as possible -
The intention of the testator shall not be set aside because it cannot
take effect to the full extent, but effect is to be given to it as far as
possible.
88 The last of two inconsistent clauses prevails - Where two
clauses of gifts in a Will are irreconcilable, so that they cannot
possibly stand together, the last shall prevail."
12. Both sides have relied upon various judgments in support of their
submissions for the interpretation of the Will. First, I shall examine the
judgments relied upon by the senior counsel appearing for the defendant.
13. In S. Rajagopal (supra), the word 'absolutely' was used in the earlier
part of the will in respect of the bequest in favour of the wife. However, in
the latter part of the will, it was provided that the property would go to the
male children of the testator after the death of the wife. The Supreme Court
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while analyzing the provisions of the will, came to the conclusion that in
view of the language used in the will, it was the intention of the testator to
create only a life interest in favour of his wife and this is clear from the fact
that a provision in the will stated that after the death of the wife of the
testator, the property would go to the male children of the testator. The
relevant portion of the said judgment is set out below:
"3. After going through the contents of the will we agree with the
view taken by the High Court. We do not agree with the
contention of the learned counsel for appellant raised before us
that Padmanabha Chettiar, the testator of the will wanted to give
absolute right in the property to his wife Dhanalakshmi Ammal
and thereafter absolute right in favour of his daughter
Rajalakshmi Ammal. The above intention is negatived by a clear
mention in the will that after Rajalakshmi Ammal the property
shall ultimately go to her male children. In case the intention of
the testator was to give the properties absolutely in favour of
Rajalakshmi Ammal and not merely life interest then there was
no question of mentioning that after her it should go to her
male children."
14. In Raghbir Singh (supra), a clause in the will provided that after the
death of the testator, his wife shall become the absolute owner of his entire
movable and immovable properties, with a right to transfer the properties in
a manner she likes. It was further stated in a subsequent clause of the will
that after the death of his wife, one of the sons would become absolute
owner of the property. The Division Bench applying the principles laid
down in Sections 82, 83, 85 and 87 of the Indian Succession Act, 1925 held
that in order to determine the intention of the testator, the will has to be read
as a whole. While interpreting the will, it has to be kept in mind that the
testator was not a legally trained person and the interpretation of the will
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should be done in such a manner that none of the provisions of the will
become otiose or redundant. Applying the aforesaid principles, the Division
Bench held that even though the word 'absolute' has been used in both the
clauses of the will, the latter part of the will shall prevail over the earlier part
of the will.
15. In Navneet Lal (supra), the Supreme Court laid out various principles
with regard to interpretation of the will:
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 : (1950)
SCR 766, 772] )
(2) In construing the language of the will the court is entitled
to put itself into the testator's armchair (Venkata
Narasimha v. Parthasarathy [41 IA 51, 72 : 21 IC 339 : 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 :
(1950) SCR 949, 955] )
(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 : (1953) SCR
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232, 240] )
(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 : 1963 Supp (2) SCR
834, 839, 842] )
(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 : (1964) 2 SCR 722,
735] )"
16. Applying the aforesaid principle to the interpretation of the will that
was the subject matter in the said judgment, it was observed in paragraph 23
as under:
23. All the above features run counter to the theory of an absolute estate
in favour of Smt Jarian. There is still another clinching factor. It is clear
from the will that the testator had misunderstanding and quarrels with
his brother regarding ancestral property and the matter had to be settled
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by arbitration leading to partition and separate enjoyment of property as
far back as 1889. It also appears from the recitals in the will that he had
grave apprehension that after his death his only reversioners, his brother
and nephew, "might trouble and harass my wife Mst Jarian and my
sister's son Gokul". One thing was, therefore, clear that the testator
never intended that his property should pass to his brother and nephew.
This intention of the testator would best be achieved by holding that
there was a devise of a life estate to his wife and an absolute estate
thereafter to Gokul indicating a different line of inheritance in the will.
On the other hand, if any absolute estate would have been conferred on
the widow, then on her death the property would have passed on by
inheritance to her husband's heirs who were none else than the brother
and the nephew of the testator. There was no other heir of Mst Jarian to
inherit the property after her death."
17. The facts in S. Rajagopal (supra) are almost identical to facts in the
present case. In the present case also, the Will contains a clause, wherein the
word 'absolutely' has been used by the Testator while bequeathing the
property in favour of the wife and a subsequent clause states that after the
death of the wife, the property shall be inherited by the son of the Testator,
the defendant herein.
18. The dicta of Raghbir Singh (supra) is fully applicable in the facts and
circumstances of the present case. In fact, in Raghbir Singh (supra), the
testator had given a right to transfer the properties to his wife, which is not
the case in the present case. No doubt, the Testator has used words such as
'absolute' and 'exclusive' in Clause 4 while bequeathing his properties in
favour of his wife. However, the issue that would have to be considered is
whether the Testator knew about the legal connotation of these words. It is
nobody's case that the Testator was a trained legal person, who understood
the legal connotation of the terms used by him in his Will. The intention of
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the Testator becomes clear in Clause 7, where he states that after the death
of his wife, his son would inherit all his assets and moveable and
immoveable properties.
19. The suit property was the only immoveable property owned by the
Testator. Therefore, Clause 7 of the Will would become redundant and
otiose, if it is held that an absolute bequest was made in favour of the wife
of the Testator in Clause 4. In terms of Section 85 of the Indian Succession
Act, 1925, no part of a Will shall be rejected as destitute of meaning if it is
possible to put a reasonable construction upon it. Further, in terms of
Section 88 of the Indian Succession Act, 1925, if two clauses of the gifts in
a will cannot be reconciled, the latter of the two shall prevail. In the present
case, if clauses 4 and 7 of the Will cannot be reconciled, it is clause 7 that
shall prevail.
20. In respect of the bank accounts, it has been clearly stated in Clause 5
of the Will that the said bank accounts will become the property of his wife
alone and none of the other legal heirs would have any right in it. The
words 'only' and 'none of the other legal heirs' shall have any right and
interest, seems to convey an unequivocal intention of the Testator that the
monies in the bank accounts are the exclusive property of his wife. It is
pertinent to note that the words such as 'none of the other legal heirs would
have any right in it' have not been used by the Testator in clause 4 of the
Will while bequeathing properties in favour of his wife.
21. Section 82 of the Indian Succession Act, 1925 provides that the will
has to be read as a whole. In the present case, the intent that emerges from
the reading of the Will as a whole was that the wife of the Testator would
have a life interest in the suit property and after her, the suit property would
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devolve upon his son. It is nobody's case that the Testator did not have good
relations with his son or that he did not wish to bequeath any of his
properties in favour of his son.
22. In the present case, the Testator has noted in Clause 8 of the Will that
both his daughters are well settled in their respectable families and enjoying
a happy life. Therefore, only a sum Rs.21,000/- was provided for the
marriage of their daughters. This suggests that the Testator did not intend
that his daughters inherit his movable and immovable properties. If the Will
is interpreted in a manner that the Testator's wife would get an absolute
right in the property, this would mean that the wife would have the right to
execute a Will in favour of her daughters i.e. the plaintiffs, or the plaintiffs
could inherit the suit property on account of intestate succession. A reading
of the Will as a whole suggests that this could not be the intention of the
Testator as clause 7 of the Will clearly states that after the death of the
mother, the defendant will inherit all the assets including movable and
immovable properties. Therefore, the reasoning in Navneet Lal (supra), as
propounded in paragraph 23 will be applicable in the present case.
23. The judgment in Navneet Lal (supra) has been sought to be
distinguished by the counsel for the plaintiff by stating that in the said case,
the intention of the testator was that after his death, the property did not fall
into the hands of his reversioners, his brothers and nephew and this intention
could be best achieved by holding that there was a life estate in favour of his
wife and therefore, the property fell to the respondent after the demise of his
wife. This logic is also applicable in the facts of the present case as the
intention of the Testator was not to give any of the properties to his
daughters and to provide Rs.21,000/- each to the daughters for their
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daughters' wedding.
24. Now, I shall examine the judgments relied upon by the counsel for the
plaintiffs.
25. The Supreme Court in the judgment in Mauleshwar Mani (supra)
laid down the following principles with regard to interpretation of will:
"11. From the decisions referred to above, the legal principle
that emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his absolute
interest in the property in favour of his wife, any subsequent
bequest which is repugnant to the first bequeath would be invalid;
and
(2) where a testator has given a restricted or limited right in his
property to his widow, it is open to the testator to bequeath the
property after the death of his wife in the same will."
26. In the facts of the case before the Supreme Court, the wife of the
testator was given an absolute estate with a right to transfer. On the basis of
the right to transfer being given in favour of the wife, the Supreme Court
came to conclusion that the subsequent bequest in the same will by the
testator in favour of his children was repugnant to the first bequest and is
therefore, invalid. The Supreme Court in paragraph 8 of the aforesaid
judgment has observed that where the property has been given by a testator
to the devisee with a right of alienation, such bequeath is a conferment of an
absolute estate. In the present case, the Will does not state that the wife will
have a right to transfer the properties of the Testator. Therefore, the said
judgment would not be applicable to the facts of the present case.
27. In Judge Pal Khera (supra), the clause in the will provided that the
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bequest is being made in favour of the testator's wife 'absolutely and
exclusively to the exclusion of all others'. The intention of the testator was
that the beneficiary under the said will takes full benefit to the exclusion of
all others. The expression 'to the exclusion of all others‟ was used in
combination with the words 'absolutely‟ and „exclusively' and this weighed
with the Division Bench in coming to the conclusion that the absolute estate
had been given to the wife. This is evident from the extracts of the judgment
set out below:
"12. The testator of the will has clearly penned that after his
demise, his moveable and immoveable property shall devolve upon his
wife absolutely and exclusively to the exclusion of all others.
26. These are words expressed to show an intention which is
unidirectional i.e. to highlight that the beneficiary takes full and to
the exclusion of others."
28. The Division Bench in the aforesaid judgment discussed the use of the
words 'use' 'hold' and 'enjoy' and held that even if the word 'sell' has not
been used, it cannot be said that the intention of the testator was to make a
limited bequest in favour of his wife. The Division Bench further held that
the aforesaid words were only in the nature of surplusage. Though, the
words 'absolutely' and 'exclusively' have been used in Clause 4 of the Will
in the present case, the expression 'to the exclusion of all others' is
conspicuously absent. Therefore, the observations in Judge Pal Khera
(supra) will not be applicable in the present case.
29. In Sadaram Suryanarayana (supra), the testatrix executed a will
bequeathing two different parts of her property in favour of each of her two
daughters, with the stipulation that the same would devolve on them with
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the absolute right of sale, gift, mortgage, etc. Subsequently, it was provided
that after the demise of the daughters, the 'retained and remaining property'
shall devolve upon their female children only. Interpreting the aforesaid
clause of the will, the Supreme Court observed that there was no conflict
between the former and latter part of the will, as the former part of the will
has made absolute bequest in favour of the daughters, whereas the latter part
of the will stipulated the devolution upon the female children of the
daughters in respect of 'retained and remaining property' only.
Accordingly, the Supreme Court harmoniously construed the aforesaid
clause in the will and held that there was no inconsistency between the two
clauses.
30. The will in Sadaram Suryanarayana (supra) stipulated an absolute
right of sale on the legatee in the former clause unlike the will in the present
case. The intention of the testatrix in the said judgment was to bequeath the
property on the female children of her daughters that remained available in
the hands of the daughters at the time of their death. In the present case, this
is clearly not the intention of the Testator as the expressions 'rights of sale,
gift, mortgage etc‟ and 'retained and remaining property‟ have not been
used in the Will.
31. In view of the discussion above, I am of the considered view that in
terms of the Will dated 24th February, 1993 executed by the father of the
parties, the mother of the parties had only been given a life/limited interest
in the suit property and after her death, the defendant was entitled to the suit
property. Consequently, the preliminary issue is decided in favour of the
defendant and against the plaintiffs.
32. Resultantly, the mother of parties was not entitled to execute a Will in
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respect of the suit property. The only right claimed by the plaintiffs in the
present suit is based on the Will of the mother. In view of my finding above
on the preliminary issue, nothing further remains to be adjudicated in the
present suit. The suit is dismissed. Parties to bear their own costs.
33. All pending applications stand disposed of.
34. Decree sheet be drawn accordingly.
AMIT BANSAL, J.
SEPTEMBER 26, 2022
dk
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