Delhi High Court
Santosh Bhasin vs Umari Malhotra Decd Thr Lrs on 10 January, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th January 2024
+ RFA 830/2010 and CM APPL. 6551/2011 (CROSS OBJ.)
SANTOSH BHASIN ..... Appellant
Through: Mr. P. V. Kapur, Senior Advocate
with Mr. Jatin Sehgal, Mr. Pareesh
Virmani, Ms. Devna Soni, Ms. Shipra
Bali, Mr. Sidhant Kapur, Ms. Kaveri
Kapur, Mr. Dhananjay Sahai and Mr.
Shiv Raj Syal, Advocates.
versus
UMARI MALHOTRA DECD THR LRS ..... Respondents
Through: Mr. Rohit Kumar, Advocate.
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
By way of the present appeal filed under section 96 read with Order XLI Rule 1 of the Code of Civil Procedure 1908 („CPC‟), the appellant/Santosh Bhasin (plaintiff in the suit) impugns judgment and decree dated 20.09.2010 („impugned judgment‟) passed by the learned Additional District Judge („ADJ‟) in CS No.382/09/95. By way of CM Appl. No. 6551/2011 filed under Order XLI Rule 22 CPC by way of cross-objections, the respondents/legal representatives („LRs‟) of late Umari Malhotra (original defendant in the suit) also impugn paras 18 and 22 of the judgment in relation to certain findings
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 1 of 27 14:32:07 made with respect to the front lawn and driveway in the property that is subject matter of the dispute.
2. Notice on this appeal was issued on 09.12.2010, by which order, this court directed parties to maintain status quo with regard to title and construction of the property in question. Notice on CM Appl. No. 6551/2011, being the cross-objections filed in the matter, was issued on 01.04.2011. The appeal alongwith the application for cross- objections, were admitted to hearing on 19.09.2011, by which order the status quo order was also made absolute.
3. The court has heard Mr. P. V. Kapur, learned senior counsel appearing for the appellant; and Mr. Rohit Kumar, learned counsel appearing for the respondents.
4. The appellant has handed-up written synopsis dated 05.12.2023; and the respondents have filed their synopsis dated 01.12.2023.
BRIEF FACTS
5. By way of the suit, the appellant/plaintiff had sought a decree of partition, in equal shares, in respect of the barsati room and terrace atop the first floor of premises bearing No. C-316, Defence Colony, New Delhi („subject property‟) against her sister - Umari Malhotra - who was originally the defendant in the suit; in addition to a declaration in respect of the subject property. The appellant had also sought appointment of a Local Commissioner for carrying-out the division and partition of the subject property by metes and bounds; and for framing a scheme for convenient use and enjoyment of the portions partitioned.
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6. By way of the impugned judgment, while on the one hand the learned ADJ has held that the suit was filed beyond the period of limitation, on the other hand, the learned ADJ has proceeded to declare that as per Will dated 30.03.1970 („Will‟) executed by the late father of the parties viz. Lt. Col. Chaman Lal („testator‟), the testator has "...... bequeathed the ground floor with front lawn together with motor garage and servant quarters above the motor garage to the plaintiff (appellant) and the 1st floor and barsati floor which in the present context means roof upto sky in favour of his another daughter now deceased Umari Malhotra succeeded by the present defendants (respondents) ......". The learned ADJ has further held that both parties would have equal rights in the back courtyard, in accordance with judgment dated 24.05.1997 passed by a different learned court in suit No. R. 212/1993.
7. For completeness, it may be recorded that Will dated 30.03.1970 left by the testator was probated vide judgment dated 01.12.1977 passed by a Co-ordinate Bench of this court in Probate Case No. 21/1976.
8. Furthermore, the defendant/Umari Malhotra passed-away on 19.08.2004 during the pendency of the suit, and as a consequence, the LRs of the deceased were impleaded as party-defendants in the suit, who are now party-respondents in the present appeal.
9. For clarity, it may be noted that reference in this judgment to „defendant‟ is a reference specifically to late Umari Malhotra; and a reference to „respondents‟ is a reference to her LRs (being the defendant's widower, her son and daughter respectively).
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10. The factual narrative that is relevant for deciding the present appeal is the following :
10.1. As per the record, in particular as per the Site Plan exhibited as Ex. PW1/1 in the course of trial, property bearing No. C-316 Defence Colony, New Delhi, comprised a ground floor with a motor garage; a first floor alongwith a servants‟ quarters above the motor garage; and a barsati room on the terrace/roof. For clarity it may also be observed that as per affidavit dated 18.08.20091 filed in evidence by DW-1 (i.e. Umari Malhotra‟s husband) the defendant had constructed another room on the terrace, which portion is however not subject matter of the Will since it did not exist at the time the Will was made. 10.2. It is the admitted position that the land on which the property is situate is leasehold land with the Union of India being the paramount lessor. The parties to the dispute also admit that insofar as the land beneath the property is concerned, they have a 50% share each in the leasehold rights to such land2. 10.3. As far as the appellant is concerned, the dispute is only in relation to the interpretation of the Will insofar as it relates to the rights of the parties to the barsati room/terrace3; and as far as the respondents are concerned, the dispute is only in relation
1 cf. para 9 of Affidavit Ex. DW1/A 2 cf. Ex. DW-1/1 : Joint letter dated 16.10.1979 addressed by parties to MCD seeking bifurcation of house-
tax.
3
Claims (a) and (b) made in the plaint.
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to the front lawn and driveway in the property4, as detailed hereinafter.
10.4. Since the disputes relate to the interpretation of its terms, the relevant portions of the Will5 are extracted hereinbelow for ease of reference :
"I give, devise, and bequeath all my properties whatsoever nature wheresoever situate, which I may be possessed of to my daughters MRS. UMARI MALHOTRA and MRS. SANTOSH BHASIN, their heirs executors and administrators for their use and benefit absolutely with the exception of :
***** "It is my further Will and desire that the first floor (upper storey) of the house, situated at C/316, Defence Colony, New Delhi, be taken by MRS. UMARI MALHOTRA and the ground floor (lower storey) inclusive of motor garage and the first floor servant quarters to MRS. SANTOSH BHASIN."
(emphasis supplied) APPELLANT'S SUBMISSIONS
11. Learned senior counsel appearing for the appellant has made the following submissions :
11.1. The principal contention raised by the appellant is that a plain reading of the Will would show that the testator had bequeathed all his properties to his two daughters equally, except for the specific bequest made in respect of utensils, wearing apparel, and certain other assets6 which went to third parties. It is
4 Prayer in CM Appl. No. 6551/2011 i.e. cross-objections filed by respondents.
5
cf. Ex. PW-2/2; Will was probated vide judgment dated 01.12.1977 6 which portions of the Will have been redacted, since they are not relevant to the present decision.
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submitted that clearly it was the intention of the testator that the entire property would also stand bequeathed to his two daughters in equal shares, except, in order to avoid any confusion as to which portion of the property would be occupied by which daughter, the testator proceeded to specify in his Will that the first floor of the subject property - which the testator described as the upper storey - would be „taken‟ by the defendant, whereas the ground floor - which he described as the lower storey alongwith motor garage and first floor servants‟ quarters - would go „to‟ the appellant. 11.2. It is pointed-out that though, even on the date on which the Will was made, as per the respondents‟ own case7, there existed a barsati room (and a terrace) in which the testator had himself lived, he restricted the meaning of the words upper storey to mean only the first floor without referring to the barsati room or the terrace. However, insofar as the lower storey is concerned, the testator described it to include the motor garage and the servants‟ quarters on the first floor.
11.3. It is accordingly the appellant‟s contention that the barsati room/terrace were inherited in equal shares by the appellant and the defendant/respondents since that portion did not form subject matter of the Will and therefore devolved by intestacy. 11.4. It is also contended that the appellant‟s interpretation of the Will is also in conformity with the admitted position that the land upon which the property is constructed belongs 50-50 to 7 cf. DW-1‟s Cross Examination dated 22.01.2020
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 6 of 27 14:32:07 the appellant and the defendant/respondents, and once that is accepted, to contend that it was the testator‟s intention that the superstructure would stay „frozen‟ for all times to come, as it stood on the date of his demise, would reduce the Will to a „solemn farce‟.
11.5. In this backdrop, the appellant argues that though the learned ADJ expressly holds in the impugned judgment that the Will is silent about the barsati floor,8 she proceeds to then construe the expression upper storey as having meant to include the first floor and the barsati floor "upto sky".9 11.6. It is submitted that in arriving at that conclusion, the learned ADJ relies upon the so-called conduct of the parties after the testator‟s death, including certain letters addressed by the parties to the Municipal Corporation of Delhi („MCD‟) seeking mutation and assessment of their respective portions to property tax10 and letters addressed to the Delhi Electricity Supply Undertaking („DESU‟), the then electricity authority, for apportionment of electricity bills and for transfer of electricity connections in the subject property.11 11.7. The argument is that the terms of the Will cannot be interpreted by referring to the subsequent conduct of the parties but must
8 cf. para 11 of the impugned judgment 9 cf. para 22 of the impugned judgment 10 Ex. DW-1/1 and Ex. DW-1/2 11 Ex. PW-1/D5
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 7 of 27 14:32:07 only be based on the court putting itself in the testator‟s „arm chair‟, as it were.12 11.8. It is urged that what is not specifically referred to in the Will would stand bequeathed in equal share to both parties; and that this was indeed the understanding of the parties as admitted by respondent No.1 (widower of the deceased defendant) in his cross-examination dated 06.02.2010, in which respondent No. 1 accepted that it was correct that ownership of anything that was not specifically mentioned in the Will would vest equally in the defendant and the appellant.
11.9. It is stressed that, it is the appellant‟s case, that the terms of the Will are clear and suffer from no ambiguity; and that the barsati room/terrace stands bequeathed in two equal shares to the appellant and the defendant/respondents. It is further submitted that though ordinarily intestacy should be avoided if a person has left a testament, in the present case, since the Will is silent in relation to the barsati room/terrace, that portion of the property must devolve by intestacy in terms of section 30 of the Indian Succession Act, 1925 („Indian Succession Act‟) read with section 30 of the Hindu Succession Act 1956.13 11.10. It is submitted that the two letters, both dated 16.10.1979, one addressed jointly by the appellant and the defendant14 and the
12 cf. para 8 of Navneet Lal vs. Gokul, (1976) 1 SCC 360 citing Venkata Narasimha vs. Parthasarathy, 41 IA 51 13 Uma Devi Nambiar & Ors. vs. T.C. Sidhan (Dead), (2004) 2 SCC 321 at paras 12, 13; Nathu Ram vs. Alliance Bank of Simla, (2004) 2 SCC 321 at para 3 14 Ex. DW-1/1
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 8 of 27 14:32:07 second only by the defendant,15 to the Assessor & Collector, MCD, only sought apportionment of house tax in the respective names of the parties, to enable the parties to pay their respective shares of the property tax due for their respective shares. It is further pointed-out that a similar letter was also written to DESU16 in respect of the electricity connections/meters installed for the portions of the property that the parties were occupying. Senior counsel however argues that neither the MCD nor the DESU had anything to do with the title to the property; and therefore, the communications addressed to the said authorities were in no way an admission by the appellant of any kind of division or partition insofar as the title to the property is concerned. In this behalf, reference is made to the decision of a Co-ordinate Bench of this court in Ram Pratap vs. Purushotam @ Lala Ram,17 to submit that assessment of a property to house tax is no proof of title in favour of a party.
11.11. The appellant has also addressed the issue of the suit having been held to be time-barred, to submit that a suit for partition is governed by Article 113 of the Limitation Act, 1963 („Limitation Act‟), namely the residuary article, which provides a limitation period of 03 years from the date on which the „right to sue accrues‟. However, it is pointed-out that while deciding
15 Ex. DW-1/2 16 Ex. PW-1/D5 17 2017 SCC OnLine Del 6561 at para 19
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 9 of 27 14:32:07 the issue of limitation18, the learned ADJ first proceeds to incorrectly record that the suit is governed by Article 113, "...... which provides that any such suit be filed three years from the date of assertion by the person against whom partition is sought ......"; and then concludes that if the plaintiff (appellant in the present proceedings) were to lay any claim on the barsati floor of the subject property, she should have filed the suit for partition "...... within three years of judgment dated 01.12.1977 granting probate by the Hon'ble High Court ......". The learned ADJ further records that even if the period of limitation was to be counted from the date of assertion of rights in the barsati floor by the deceased defendant, "...... as per Article 113 of the Indian Limitation Act, the plaintiff ought to have filed the present suit within three years from the time MCD granted sub division and conveyed the order of sub division for fixing house tax of respective portions vide letter dated 09.09.1980 ......"; thereby holding that the suit is barred by limitation.
11.12. It is however argued on behalf of the appellant that firstly, a probate court does not decide „title‟ of the parties but only decides the genuineness and due execution of a Will.19 Secondly, it is argued that the bifurcation of property tax payable by the MCD did not give rise to any right to sue on the part of the appellant within the meaning of Article 113 of the
18 cf. para 19 of impugned judgment 19 Chiranjilal Shrilal Goenka vs. Jasjit Singh, (1993) 2 SCC 507 at para 15
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 10 of 27 14:32:07 Limitation Act, since that bifurcation only resulted in apportionment of the property tax payable for the respective portions that the parties were occupying.
11.13. It is submitted that the cause of action for a partition suit is a continuing cause of action and the right to sue accrues only when a party has notice that her entitlement to partition is being denied. In the present case, it is argued that the cause of action in favour of the appellant to file the partition suit arose when she moved from Calcutta to Delhi and was denied entry to the terrace and her demand for partition was not accepted. This, it is submitted happened on 27.10.1987; whereupon the suit bearing No. 382/09/95 seeking partition and declaration was filed on 05.09.1989, i.e. within the 03-year period of limitation provided in law. The appellant supports this submission by a judgment of a Co-ordinate Bench of this court in Vandana Sharma vs. Hemlata Goswamy & Anr.20 For completeness, it is pointed-out that thereafter the plaint was returned by the court on 03.05.1994 owing to lack of pecuniary jurisdiction; and was re-presented on 23.05.1994, whereupon the suit was registered on 15.02.1995.21
RESPONDENTS' SUBMISSIONS
12. Refuting the submissions made on behalf of the appellant, learned counsel appearing for the respondent raises the following contentions :
20
2014 SCC OnLine Del 1553 at paras 11, 13 21 cf. para 21 of impugned judgment
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 11 of 27 14:32:07 12.1. The joint application dated 16.10.1979 made by the parties to the MCD seeking bifurcation of their liability for payment of property tax22 amounted to parties recognising their respective shares and title to the various portions of the built-up area of the subject property. It is argued that the MCD allowed bifurcation vide its letter dated 09.09.198023, whereafter the parties have been paying house tax of their respective built-up portions, that is to say, the appellant has been paying property tax for the ground floor (lower storey) and the defendant/respondents have been paying property tax for the first floor and the barsati floor (upper storey), to which the parties therefore hold title.
12.2. It is argued that in 1983-84 the defendant had even carried-out additional construction on the terrace by adding one room and an attached bathroom, kitchen and latrine; and had even paid compounding fee to the MCD in respect of such additional construction on 08.11.1989.24 12.3. Furthermore, it is argued that when the appellant had denied to the respondent access to the door and the booster pump, water tank and pipe-system installed in the rear courtyard of the property, the defendant had filed a suit on 17.12.1987 bearing No. R-212/93 titled Mrs. Umari Malhotra vs. Smt. Santosh
22 Ex. DW-1/1 23 Ex. DW-1/3 24 cf. para 9 of Respondent No. 1‟s Affidavit-in-Evidence dated 18.08.2009 (Ex. DW-1/A); also cf. Ex.
DW-1/4 and Ex. DW-1/5
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 12 of 27 14:32:07 Bhasin seeking injunction against the appellant.25 It is submitted that during the pendency of the suit, the appellant wrote to DESU requesting that the electricity meters installed in the garage be relocated,26 in which again the appellant had admitted that the electricity meters for the first and second floors were in the names of the defendant/respondents. It is stated that this suit was decreed on 24.05.199727, and the court ruled that the land on which the property is constructed stood mutated in the joint names of the appellant and the defendant, who were co-lessees/owners of the land in terms of the lease deed executed by the President of India on 07.03.1979 and that they were therefore entitled to jointly enjoy the common areas of the property, except the specific portions given to the parties in terms of the Will.28 It is argued that an appeal bearing RCA No.32/9729 (re-numbered as RCA No. 15/2001/97) filed against judgment and decree dated 24.05.1997, was dismissed vide judgment dated 07.10.2003 by the Appellate Court;30 and so was the second appeal bearing RSA No.202/2003,31 which second appeal was dismissed as withdrawn before a Co-
25
Ex. PW-1/D1 26 Ex. PW-1/D5 27 Ex. PW-1/4 and Annexure R1 to CM Appl No. 6551/2011 (Cross-Objections) in the present appeal 28 Para 31 of judgment dated 24.05.1997 in Suit No. R-212/93 in Ex. PW-1/4 and Annexure R1 to CM Appl No. 6551/2011 (Cross-Objections) in the present appeal 29 Annexure R2 to CM Appl No. 6551/2011 (Cross-Objections) in the present appeal 30 Annexure R3 to CM Appl No. 6551/2011 (Cross-Objections) in the present appeal 31 Annexure R4 to CM Appl No. 6551/2011 (Cross-Objections) in the present appeal
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 13 of 27 14:32:07 ordinate Bench of this court on 15.12.2003.32 It is argued that the above shows that the parties had partitioned the ground floor along with the motor garage and the servants‟ quarters on the first floor from the first floor including the barsati room and terrace between themselves, which was their interpretation of the Will and is now binding upon them.
12.4. It is argued that the appellant has never been in possession of any portion of the „upper storey‟ comprising the first floor and the barsati room/terrace at any point of time; nor has the appellant ever asserted any rights in those portions. The submission is, that in fact, during the lifetime of the testator, the defendant was acknowledged as the owner of the „upper storey‟, and the defendant continued to remain in possession of that portion even after his demise.
12.5. Counsel points-out, that being aggrieved by certain observations made by the learned ADJ in paras 18 and 22 of impugned judgment in relation to the use of the open areas, specifically the front lawn and the driveway in the subject property, the respondents have filed their cross-objections vide CM Appl No. 6551/2011, praying that such observations are erroneous and are required to be struck-off. In this behalf, the submission is that since admittedly, the appellant and the defendant are co-lessees of the land, they have equal rights to use all common areas other than the built-up structure that has
32 Annexure R5 to CM Appl No. 6551/2011 (Cross-Objections) in the present appeal
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 14 of 27 14:32:07 been bequeathed upon them by their late father in terms of his Will.
12.6. On point of law, it is submitted that while construing a Will, the court must lean against intestacy; and where two constructions of a Will are reasonably possible, the one that avoids intestacy should be preferred.33
13. On the principles governing interpretation and construction of a Will, the respondents have placed reliance on Navneet Lal @ Rangi vs. Gokul & Ors.34 as re-iterated in Uma Devi Nambiar & Ors. vs. T.C. Sidhan35.
14. Counsel has also stressed that it must be appreciated that the barsati room/terrace has no separate access directly from the ground floor, and the way to the barsati room/terrace is only via a staircase going through the first floor. It is argued that first floor and barsati room/terrace are one composite unit for which the defendant had been paying property tax since 1980.
15. It is also the contention of learned counsel for the respondents that the stand taken by the appellant in the present case is contradictory to her categorical assertion in the suit, namely that the property already stood partitioned and the parties had taken possession of their respective portions, meaning thereby that the testator had not died intestate even insofar as the barsati room/terrace is concerned.
33
Ittianam and Ors. vs. Cherichi @ Padmini, (2010) 8 SCC 612 at paras 21, 33 and 34; and Pearey Lal vs. Rameshwar Das, (1963) Supp 2 SCR 834 34 (1976) 1 SCC 630 at para 8 35 (2004) 2 SCC 321 at para 10
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16. Counsel has strenuously argued that since the appellant had „elected‟ to take benefit under the Will by accepting and remaining in possession of the ground floor alongwith motor garage and the first floor servants‟ quarters, she cannot now challenge that position by claiming that the testator made no dispensation in relation to the barsati room/terrace and that that portion must therefore go by intestacy. In this behalf, counsel has placed reliance on the provisions of sections 187 and 188 of the Indian Succession Act, interpreting them based upon the decisions of the Supreme Court and the Bombay High Court respectively in C. Beepathumma and Others vs. Velasari Shankanarayana Kadambolithaya and Others36 and Lyla Darius Jehangir vs. Bakhtawar Lentil37.
17. It is contended that at the time when the property was constructed, the building bye-laws permitted construction of only two floors and a barsati; and therefore, the testator must be taken to have clearly divided the built-up structures in two parts and having bequeathed the same to each of his two daughters in terms of section 90 of the Indian Succession Act. In the circumstances, it is argued, that the concept of intestacy as set-out in section 30 of the Indian Succession Act is inapplicable since that would apply only to a case where there is no operative Will, or the Will is void, or incapable of taking effect. Reliance in this behalf is placed on the decision of the Supreme Court in Angurbala Mullick vs. Debabrata Mullick38.
36
(1964) 5 SCR 834 at paras 17 and 18 37 (2007) 1 Mh. L.J. 545 at paras 38, 39 and 40 38 1951 SCC 420 at para 28
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18. Counsel also argues that the learned ADJ has correctly held that the suit was barred by limitation, since once probate was granted on 01.12.1977 and bifurcation of property tax was carried-out on 09.09.1980, the appellant ought to have raised any claim she may have wanted to, by filing a suit within 03 years of those dates, which she did not do.
APPELLANT'S SUBMISSIONS IN REJOINDER
19. Responding to the contention raised on behalf of the respondent that sections 187 and 188 of the Indian Succession Act prohibit the appellant from raising any claim in relation to the barsati room/terrace of the subject property once she has „elected‟ to take benefit granted under the Will, viz., that she has taken possession of the ground floor alongwith motor garage and first-floor servants‟ quarters left by the testator, Mr. Kapur submits that the said contention proceeds on a complete misreading of sections 187 and 188.
20. It is argued that at no point in time did the appellant „elect‟ to forego her title to the barsati room/terrace, least of all by way of the applications/letters filed before the MCD seeking bifurcation of property tax payable. It is argued that by doing so, the appellant did not exercise any „election‟ insofar as the appellant's title to the barsati room/terrace is concerned. It is emphasized that at no point of time did the appellant ever accept that the defendant was the owner of the barsati room/terrace.
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21. It is further submitted that sections 187 and 188 of the Indian Succession Act would apply to a situation where a person is given a choice between two alternatives or conflicting rights, thereby offering to a beneficiary the choice to pick one of them. It is submitted that in the present case, a plain reading of the Will would show that the testator did not offer to any of the beneficiaries, whether the appellant or the defendant, any choice between any two alternatives; and that therefore sections 187 and 188 have no application to the present matter. To explain the point, reliance is placed on the following observations of the Supreme Court in C. Beepathumma (supra)39 the relevant portion whereof reads as follows :
"The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland--
"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."
(see Maitland's lectures on Equity Lecture 18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows:
"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."
22. In the present case, the submission is, that the Will is silent as to the disposition of the barsati room/terrace and therefore the fact that the 39 (1964) 5 SCR 836 at page 850
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 18 of 27 14:32:07 appellant has received the ground floor alongwith the motor garage and first floor servants‟ quarters through the Will is in no way inconsistent with the appellant claiming rights to an equal share in the barsati room/terrace. In any case, it is argued that this doctrine of election under sections 187 and 188 of the Indian Succession Act was never argued before the learned ADJ and a new ground is now sought to be raised in these proceedings, which is in any case, meritless.
23. Mr. Kapur submits that the appellant had demanded partition and possession of the barsati room/terrace for the first time only on 27.10.1987, on which date her claim was denied by the respondent, leading to the institution of the suit on 05.09.1989.
24. Furthermore, learned senior counsel also seeks to dispel the contention raised on behalf of the respondent that judgement dated 24.05.1997 in suit No. R-212/93 had any relevance for the present matter, submitting that that judgement cannot operate as res-judicata in relation to the issues in these proceedings since the issue of ownership of the barsati room/terrace and its partition was not an issue in that case at all. It is pointed-out that the said suit had been filed by the respondent inter-alia seeking the right of ingress and egress through the back-door on the ground floor of the subject property.
DISCUSSIONS & CONCLUSIONS
25. Upon a conspectus of the averments contained in the memorandum of appeal and in the cross-objections; drawing upon the written synopses/submissions handed-up/filed by learned counsel for the parties; and having heard counsel at length, this court would first
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 19 of 27 14:32:07 proceed to record the aspects of the matter on which parties are ad- idem and in respect of which there is no dispute.
26. The admitted position between the parties is the following :
26.1. The appellant and the defendant (now her LRs, the respondents) draw their rights, titles and interests in and to the subject property from Will dated 30.03.1970 left by their late father, who passed away on 26.11.1974.
26.2. The father was admittedly the sole owner of the subject property and was entitled to bequeath it in whatsoever manner he pleased.
26.3. It is also not in dispute that insofar as the land comprised in the subject property is concerned, the same has been bequeathed by the testator in two equal, undivided shares to his two daughters viz., the appellant and the defendant. Pursuant to the bequest received, the appellant and the defendant have also had their names mutated in the perpetual sub-lease in respect of the subject property40.
27. Now, there are two critical portions of the Will, which are required to be interpreted. The first one reads as follows :
"I give, devise, and bequeath all my properties of whatsoever nature wheresoever situate, which I may be possessed of to my daughters MRS. UMARI MALHOTRA and MRS. SANTOSH BHASIN, their heirs executors and administrators for their use and benefit absolutely with the exception of : ... ..."
(emphasis supplied)
40 DW-1 so admits in his cross-examination dated 06.02.2010
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 20 of 27 14:32:07 Therefore, the testator‟s wish was to bequeath all his properties to his two daughters and to their heirs, executors and administrators, without however defining any particular share in such bequest. On the date of the testator's demise, both daughters were alive. Absent any specific apportionment of shares, all the testator‟s properties, other than those specifically excepted in the Will, would stand bequeathed on a 50-50 basis to each of the two daughters viz., the appellant and the defendant.
28. The second critical portion of the Will reads as under :
"It is my further Will and desire that the first floor (upper storey) of the house, situated at C/316, Defence Colony, New Delhi, be taken by MRS. UMARI MALHOTRA and the ground floor (lower storey) inclusive of motor garage and the first floor servant quarters to MRS. SANTOSH BHASIN."
(emphasis supplied)
There is no dispute that at the time when the Will was drawn- up, the subject property comprised only the following constructed portions : A ground floor dwelling unit; a first floor dwelling unit; a motor garage; and a first floor servants‟ quarters i.e. above the motor garage. At a subsequent point in time, a barsati room came to be constructed on the roof top with an open terrace. In this backdrop, a plain reading of the aforesaid portion of the Will shows that what the testator wanted was that the first floor, which he also described as the upper storey, was to stand bequeathed to the defendant; and the ground floor, which the testator also described as the lower storey inclusive of the motor garage and the first floor servants‟ quarters, was to be bequeathed upon the appellant.
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29. So, while describing his bequest upon the appellant, alongwith its alternate description of lower storey, the testator specifically mentioned that such portion would comprise the ground floor inclusive of motor garage and first floor servants‟ quarters. However, when the testator was describing the portion of bequest upon the defendant, the testator described it simply as the first floor or the upper storey, with the alternate description of upper storey. It is hard to envisage that at the time of drawing-up his Will it had not crossed the testator‟s mind that there was a barsati room/terrace above the first floor, on which further construction could be made in the future. In fact, the record shows that the testator used to stay in the barsati room when he came to Delhi from Srinagar, when the other portions of the subject property were under tenancy41.
30. It also appears to be completely counter-intuitive to believe that at the time to drawing-up the Will, the testator had intended that the existing construction in the subject property would remain eternal and unchanging for all times to come, with neither any need nor desire on the part of either of his daughters to ever undertake any additional construction; and that the subject property would remain as-it-was, frozen in time.
31. Though it has been emphasised by learned counsel for the respondents that the reason the testator qualified the first floor to mean the upper storey was in order to include within that definition complete roof rights in favour of the respondents, in the opinion of this court, that would be a misconstruction of the Will. The reason for 41 cf. DW-1‟s cross-examination dated 22.01.2010
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 22 of 27 14:32:07 that is two-fold. Firstly, if the testator used the alternate description of upper storey to describe the first floor, he equally also used lower storey to describe the ground floor. Therefore, there was nothing so special in the testator describing the first floor as the upper storey. Secondly, a plain dictionary meaning of the word „storey‟ means : "...
42
...a room or set of rooms on one floor or level" , meaning thereby, in
ordinary parlance, as the testator would have understood it, the upper storey would imply the rooms on the first floor, thereby excluding the barsati room on the terrace above the first floor. Since the testator intended the appellant to also own the motor garage and the first floor servants‟ quarters, he specifically so stated in the Will; but he stopped short of conferring any rights upon the defendant in relation to the barsati room/terrace.
32. As contended by learned senior counsel for the appellant, section 30 of the Indian Succession Act provides that if any asset is not mentioned in a Will, such asset of a testator would go by intestacy. Section 30 of the Indian Succession Act reads as under :
30. As to what property deceased considered to have died intestate.--A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.
Illustrations
(i)-(iv) * * * * *
33. In view of the above, though in the present case, the deceased did leave a Will in respect of the subject property, bequeathing various portions of the properties to his two daughters, to the extent that the
42 cf. Shorter Oxford English Dictionary, 6 Edn. Vol. 2
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 23 of 27 14:32:07 Will is silent as to the bequest of the barsati room/terrace and any rights arising therefrom, such property and rights would go by intestacy, notwithstanding the general principle that where a person leaves a Will, ordinarily intestacy in respect of his assets should be avoided. The following observations of the Supreme Court in Uma Devi Nambiar and Ors. vs. T.C. Sidhan43 support this position :
"12. This rule of interpretation can be invoked if different clauses cannot be reconciled. (See Rameshwar Bakhsh Singh v. Balraj Kuar [AIR 1935 PC 187 : 40 CWN 8].) It is to be noted that rules of interpretation of Will are different from rules which govern interpretation of other documents like sale deed, or a gift deed, or a mortgage deed, or for that matter, any other instrument by which interest in immovable property is created. While in these documents, if there is any inconsistency between the earlier or the subsequent part or specific clauses, inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of Will the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails.
"13. What is the intention of the testator has to be found out on a reading of the Will and there cannot be any hard-and-fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation. The true intention of the testator has to be gathered not only by attaching importance to isolated expressions but by reading the Will as a whole with all the provisions and ignoring none of them as redundant or contradictory. As observed in Navneet Lal case [(1976) 1 SCC 630 : AIR 1976 SC 794] although there is no binding rule that the court should avoid intestacy at any cost, yet
43 (2004) 2 SCC 321
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 24 of 27 14:32:07 the court would be justified in preferring that construction of the Will which avoids intestacy. Where the words are ambiguous, attempt should be made to avoid that construction which leads to intestacy."
(emphasis supplied)
34. As a sequitur to the foregoing, in the opinion of this court, the following inferences arise :
34.1. Insofar as the impugned judgment is concerned, first and foremost, this court is unable to appreciate how, having held that the suit was filed beyond the period of limitation, could the learned ADJ have thereafter proceeded to decide the disputes on merits only "...... considering the protracted litigation between the two female heirs ......". Be that as it may, in the opinion of this court, the correct position is that the right to file a suit claiming partition would be covered by Article 113 of the Limitation Act, namely the residuary clause, since there is no specific article in the Schedule to the Limitation Act that covers such suit. Therefore, in terms of Article 113, such suit can be filed within 03 years after the right to sue accrues, i.e., in this case, when the appellant was denied her right of entry to the barsati room/terrace on 27.10.1987. The appellant filed the suit on 05.09.1989, which was within the period of limitation. 34.2. Insofar as the interpretation of the Will is concerned also, in the opinion of this court, the learned ADJ has returned erroneous findings. As of the date on which the Will was made, the subject property comprised land alongwith a dwelling-unit on the ground floor and a dwelling-unit on the first floor, with a
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 25 of 27 14:32:07 motor garage and a servants‟ quarters on the first floor.
Subsequently, a barsati room was constructed on the roof atop the first floor, leaving the rest of the roof as an open terrace. With this property in his contemplation, the testator bequeathed the „ground floor‟ plus the motor garage plus the first floor servants‟ quarters upon the appellant; and the „first floor‟ upon the defendant/respondents.
34.3. Insofar as rights in the land beneath are concerned, those could be taken to have been bequeathed in either of the following two ways. Firstly, by being included in the second para of the Will, which bequeathed all properties and assets of the testator upon his two daughters, without specifying any share in anyone‟s favour, meaning thereby that rights in the land went equally to both of them. Secondly, it may be said that the testator remained silent in the Will as to the bequest of the land; in which case, the rights in the land would again go equally to his two daughters. However, insofar as the built-up portion was concerned, in the fourth para of the Will, the testator specifically bequeathed the constructed portions in the manner as referred to above.
34.4. Though the barsati room and the terrace atop the first floor existed during the testator‟s lifetime, he neither referred to those portions in his Will nor did he make any codicil in that regard. The Will is accordingly silent as regards the barsati room/terrace. In which case, the barsati room/terrace would go by intestacy equally to the appellant and the defendant/
Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:10.01.2024 RFA 830/2010 Page 26 of 27 14:32:07 respondents. This interpretation of the Will also passes muster on the anvil of reason, since it is inconceivable that the testator would have thought that the construction upon the land would remain as-it-was during his lifetime, for all times to come; and that his two daughters would never need, or be permitted, to make any further construction on the property. Such an interpretation must be rejected as being completely counter- intuitive and opposed to common sense and reason.
35. In the above view of the matter, the appeal succeeds; and judgment and decree dated 20.09.2010 passed by the learned ADJ in suit No. 382/09/95 is set-aside; without however, any order as to costs.
36. For completeness, it is necessary to observe that since by way of the cross-objections filed, the respondents have impugned certain observations made in judgement and decree dated 20.09.2010 which has been set-aside in its entirety, all observations contained therein also stand effaced. To that extent, no orders are required on the cross- objections.
37. Decree sheet be drawn-up accordingly.
38. This court hastens to observe that the subject matter of the suit from which the present appeal arose, was limited to a claim for partition of the barsati room and the terrace atop the first floor; and accordingly, the present judgement is also restricted only to those portions.
39. Pending applications, if any, stand disposed of.
ANUP JAIRAM BHAMBHANI, J JANUARY 10, 2024/ds/uj/ak
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