The Single Bench of the Delhi High Court in the case of Pankaja Panda & Ors. vs Leela Kapila & Ors. consisting of Justice Amit Bansal observed that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect.
Facts
The suit was instituted seeking partition of the property belonging to one Mrs. Sheila Kapila, who expired intestate, leaving behind four children who inherited the aforesaid property equally. The eldest daughter also died intestate. At present, the three plaintiffs are the sole legal heirs of late Mrs. Sheila Kapila. The defendant no.1 (Mrs. Leela Kapila) is settled in England and is entitled to 25% undivided share in the suit property. The defendant no. 2 (Mr. Jitendra Kapila) is settled in the USA and is entitled to the same share. Late Dr. Rajendra Kapila, being one of the sons of late Mrs. Sheila Kapila, was a resident of USA and had expired. Before his death, he executed a Will in terms of which he bequeathed all his estate to his second wife, the defendant no.3. The defendants no.4 and 5 are the son and daughter of late Dr. Rajendra Kapila respectively, from his first wife. Legal proceedings are going on in USA between the defendant no.3 on one hand and the defendants no.4 and 5 on the other hand, in respect of late Dr. Rajendra Kapila’s estate. The suit property is not capable of division by metes and bounds. ix. The plaintiffs no.1 to 3 together, defendant no.1, defendant no.2, and the defendants no.3, are entitled to 25% undivided share each in the suit property. Based on the aforesaid pleadings, a decree of partition was sought in respect of the suit property.
Contentions Made
Petitioner: The counsel for the plaintiffs invoked the provisions of O15R1 and O12R6 of CPC to seek a decree since no triable issues arise in the present suit.
Respondent: There has been no admission on behalf of the defendants no.4 and 5. So, no decree can be passed at this stage and the suit requires a trial. In terms of the Will of late Mrs. Sheila Kapila, the defendants no.1 and 2 are not entitled to any share in the suit property since they have only been given beneficial life interest and not an absolute interest in the said property.
Observations of the Court
The Bench observed that Clause (i) of the will states that the house shall belong to the four children with each having 25% share in the property. Clause (iii) states that if any of the four beneficiaries die then their share shall transfer to their children who will have the full ownership of the property with the power of disposal. Clause (iii) of the said Will would not take away the absolute vesting of the property by late Mrs. Sheila Kapila in favour of her children in terms of Clause (i). In this regard, reliance was placed on Madhuri Ghosh & Anr v. Debobroto Dutta & Anr.
Relying on various cases, it was noted that in law, the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect. In case of such a conflict the earlier disposition of absolute title should prevail, and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given.
It was also noted that this Court has the power under O15R1 and O12R6 of CPC to pass a decree without going through a trial.
Judgment
Clause (i) of the alleged Will clearly states that the suit property “shall belong” to all her four children equally. This is an absolute grant in favour of her four children without any limitations. Therefore, once an absolute bequest has been made under Clause (i), the subsequent Clauses (ii) and (iii) of the alleged Will, even if seeking to take away the absolute title given in Clause (i), will not be of any effect.
The Bench was of the view that the aforesaid property should be put to sale and the proceeds thereof be distributed equally amongst the parties in terms of their shares as determined above. Since there is a dispute in respect of the 25% share of the legal heirs of late Dr. Rajendra Kapila, it is directed that the proceeds of sale received in respect of his share be deposited in the Court and the same shall be subject to the outcome of any legal proceedings between the defendant no.3 and the defendants no. 4 and 5. In view of the above, a Local Commissioner was appointed to carry out conversion from leasehold to freehold and to conduct the sale of the suit property as per directions passed by the Court.
Case: Pankaja Panda & Ors. vs Leela Kapila & Ors.
Citation: CS(OS) 701/2021 & I.A.17202/2021 (O-XXXIX R-1 & 2 of CPC)
Bench: Justice Amit Bansal
Decided on: 10th May 2022
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