Judgment:
% + IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:
05. 07.2017 CS(OS) 1059/2012 S.K. CHOPRA Versus ..... Plaintiff ..... Defendants V.N. CHOPRA & ORS Advocates who appeared in this case: For the Plaintiff For the Defendants CORAM HON’BLE MR JUSTICE VIBHU BAKHRU : Mr Lalit Gupta, Mr Dhananjaya Sud and Mr Gaurav Lavania. : Mr Rakesh Tiku, Senior Advocate with Mr Sandeep Kumar, and Mr Rajesh Chopra, for LR of D-1. Ms Sonali Malhotra and Mr Amit Sanduja, for D-2 and D-3. VIBHU BAKHRU, J JUDGMENT1 The plaintiff has filed the above captioned suit, inter alia, seeking partition of the property bearing No.C-204, Anand Vihar, Delhi (hereafter „the suit property‟). It is not disputed that the suit property was a self- acquired property of late Sh. H.L. Chopra, who was the father of Dr S.K. Chopra (the plaintiff), Sh. V.N. Chopra (original defendant no.1, since deceased and replaced by legal heirs defendant nos. 1(a) to 1(d)) and late Brig. T.R. Chopra (predecessor-in-interest of defendant nos. 2 and 3). Late Sh. H.L. Chopra executed a will dated 19.01.1993 (hereafter „the Will‟) bequeathing the suit property to his wife, Smt. Inder Rani Chopra (since deceased) and after the demise of himself and his wife, to his three sons, CS (OS) 1059/2012 Page 1 of 14 namely, the plaintiff, Sh. V.N. Chopra (since deceased) and Brig. T.R. Chopra (since deceased).
2. Sh. H.L. Chopra, the testator, expired on 08.04.1993. His widow, Smt. Inder Rani Chopra expired on 17/18.01.2000. His son, Brig. T.R. Chopra also expired prior to filing of the present suit (which was filed on 05.03.2012). Sh. V.N. Chopra (original defendant No.1) expired on 22.09.2013 and his legal heirs being defendant nos.1(a) to 1(d) were brought on record.
3. There is no dispute that the plaintiff, late Sh. V.N. Chopra and late Brig. T.R. Chopra became the owner of the suit property in equal proportion (1/3rd each). Preliminary decree to the aforesaid effect was passed on 06.04.2015. The said decree has become final and there is no controversy as to the respective shares of the said parties in the suit property. The only dispute that now remains is with respect to the partition of the suit property.
4. According to the contesting defendants - namely, defendant nos 1(a) to 1(d) - each of the three sons of late Sh. H.L. Chopra (and now, the plaintiff and the respective heirs of the two deceased sons) own 1/3rd undivided share in the suit property. However, the enjoyment of the suit property is deferred till the lifetime of Sh. V.N. Chopra and his son, Sh. Rajesh Chopra (defendant No.1(b)), as according to the contesting defendants, the suit property was bequeathed to the three brothers, subject to the condition that Sh. V.N. Chopra and his son, Sh. Rajesh Chopra would be entitled to continue living in the suit property along with their families during their lifetime. Thus, according to the contesting defendants, the suit property cannot be partitioned or sold during the lifetime of Sh. CS (OS) 1059/2012 Page 2 of 14 Rajesh Chopra (defendant no 1(b)). This is stoutly disputed by the plaintiff and defendant nos. 2 and 3.
5. By an order dated 28.09.2015, this Court appointed a Local Commissioner to determine whether this suit property could be divided into three equal liveable units. Defendant No.1(b) appealed against the said order (being FAO(OS) No.641/2015), which was disposed of by the Division Bench of this Court on 05.02.2016. By the order dated 05.02.2016, the Division Bench - with the consent of the parties - set aside the order dated 28.09.2015 and directed this Court to proceed to consider the remaining controversy as indicated in the order dated 06.04.2015, viz. whether or not physical partition of the suit property or its partition by sale was required to be postponed till the life of defendant No.1(b) (the appellant before the Division Bench). This Court was also required to consider whether the Will contemplated a mode of partition as well as whether the provisions of the Partition Act, 1893 are applicable.
6. At this stage, the controversy considered by this Court concerns the interpretation of the Will. Submissions 7. Mr Lalit Gupta, the learned counsel appearing for the plaintiff referred to the contents of the Will and submitted that there was no ambiguity in the Will inasmuch that the three sons of the testator were entitled to become the absolute owners of the suit property in equal proportion. He contended that a harmonious reading of the Will as a whole, clearly indicated that the provisions entitling late Sh. V.N. Chopra and defendant no.1(b) to reside in the suit property, were applicable only till CS (OS) 1059/2012 Page 3 of 14 the suit property was partitioned or sold.
8. Secondly, he submitted that even if the Will is read in a manner so as to provide for a restriction as to the enjoyment of the suit property, the said restriction would be void in view of Section 138 of the Indian Succession Act, 1925. He referred to the decision of the Supreme Court in Gopala Menon v Sivaraman Nair and Others: AIR1979SC1345and the decision of a Coordinate Bench of this Court in Smt Rajrani Sehgal v Dr. Parshottam Lal and others: (1993) 25 DRJ338in support of his contention.
9. Thirdly, he submitted that the Will cannot be interpreted in the manner as contended by the contesting defendants as that would imply that the plaintiff and defendant nos. 2 and 3 would together be owners of 2/3rd share of the suit property and would be liable to pay all taxes and dues while Sh. Rajesh Chopra (defendant No.1(b)) would continue to enjoy the suit property exclusively. He submitted that this could never be the intention of the testator.
10. Lastly, he submitted that the Will expressly provided that the suit property could be sold with the consent of the three sons of the testator which included the original defendant no.1 (late Sh. V.N. Chopra), and, this privilege would not transmit to defendant No.1(b) on the demise of Sh. V.N. Chopra. Thus, the consent of defendant No.1(b) would not be necessary for selling the suit property.
11. Mr Rakesh Tiku, learned Senior Counsel appearing for the contesting defendants submitted that late Sh. V.N. Chopra and defendant No.1(b) are entitled to occupy the suit property during their lifetime even CS (OS) 1059/2012 Page 4 of 14 though the ownership of the suit property vested with the three brothers; as the same was subject to the condition that Sh. V.N. Chopra and defendant no.1(b) could reside with their families in the suit property. He submitted that the bequest of the suit property was subject to the said condition and it was not open for the plaintiff to accept the bequest without the attendant condition. Reasoning and Conclusion 12. As is apparent from the above, the principal controversy concerns the interpretation of the Will and thus it would be necessary to refer to the relevant paragraphs of the Will, which are set out below:-
"“3. I hereby give devise and bequeath absolutely and for ever to my wife Shrimati Inder Rani Chopra, her heirs, executors or Administrators for her use and benefit absolutely and for ever all my property moveable or immovable assets and credits of whatsoever character or wherever situated including all reversion, expectancy and future assets, if any acquired by me and I hereby appoint her the said Inder Rani sole executrix (or executor) of my Will, who will be entitled to obtain probate without the required to furnish any security.
4. In case my wife Shrimati Inder Rani Chopra dies in my life time, then I hereby make the following distribution of my moveable and immovable property:-
"a) All the proceeds of my Fixed Deposit Receipts and Saving Bank Accounts of different Banks will be operated by the person who will be the joint-holder of the F.D. Receipts and Saving Bank Accounts. b) I have obtained Plot No.C-204, Anand Vihar from the Railway Board Employees Co-operative Housing Society Ltd., Anand Vihar, Delhi 92. The entire cost of land and CS (OS) 1059/2012 Page 5 of 14 Development Charges have been paid by me from my savings and income. I have constructed one storey house at the said plot. After my death, my wife Shrimati Inder Rani will be the sole owner of the house will full authority to dispose off the same at her own will to rent it or dispose of the same at her own thinking. However, my son Shri Vishwa Nath Chopra and his son Rajesh Chopra will be entitled to stay in this house during their life time free of rent. All kind of taxes and expenses for maintaining the house in good ordr i.e. repairs etc. would be paid in equal proportion by all my three sons viz. Brig. Dr. T.R. Chopra, V.N. Chopra and Dr. S.K. Chopra. In case House is given on Rent partially or wholly, then the payment of above Taxes or Repair etc. will be the 1st Charge. c) After the death of myself and my wife, my three sons viz. Brig. (Dr.) Tilak Raj chopra and Vishwa Nath Chopra and Dr. Surrinder Kumar Chopra would be the sole proprietor of my said house. In case my wife dies in my life time or after my death the house will be disposed of in the following manner:-
"(a) I have obtained the following amount from my children (interest free) loan for the construction of the house:-
"i) Shri V.N. Chopra Rs. 1,47,000/- (One lac forty seven thousand) ii) Dr. S.K. Chopra Rs.1,00,000/- (One lac only) iii) Brig. (Dr.) T.R. Chopra Rs. 10,000/- (Ten thousand only). iv) Shri Rajesh Chopra (my grandson) Rs.8,000/- (eight thousand only) (b) When myself and my wife are not in the scene, then my son Shri Vishwa Nath Chopra and his son Rajesh Chopra CS (OS) 1059/2012 Page 6 of 14 will their families will be entitled to say (sic) in this house for ever without payment of any rent. (c) In case the house is sold (only with the concurrence of all my three sons), viz. Brig: (Dr. T.R. Chopra, Shri V.N. Chopra and Dr. S.K. Chopra, then the payment of above loan of my children will be the first charge and should be paid to them. However after the payment of the above loan, the remaining amount will be paid to all my three sons in equal proportion. In case it is not sold and the ownership of the house will be of all three sons in equal proportion. (d) Myself and my wife will have the absolute right to make any addition and alteration to the house. After my death, addition and alteration to the house will be made on consultation of all my three sons. Special Para It is my ferment desire and will and wish that all my three sons have the same love and affection, which they have at present. Aftr when we are not in the show, my sons, (Dr. Brig: T.R. Chopra and Dr. S.K. Chopra with their families will have full assess in the house and the room occupied by us will be at their disposal and can stay therein when ever they desire.” 13. A plain reading of paragraph 3 of the Will indicates that the testator had bequeathed all his property including the suit property to his wife, Smt. Inder Rani Chopra. The opening words of paragraph 4 of the Will indicates that the distribution of the property as provided thereafter would be applicable only in the case where the testator‟s wife, Smt. Inder Rani Chopra expired during his lifetime. However, a plain reading of sub- paragraph 4(b) of the Will also clearly indicates that the testator had bequeathed the suit property to his wife absolutely with full authority to dispose of the same and/or rent it, which is clear from the words:“After my CS (OS) 1059/2012 Page 7 of 14 death, my wife Shrimati Inder Rani will be the sole owner of the house will full authority to dispose off the same at her own will to rent it or dispose of the same at her own thinking”.
14. The provision that Sh. V.N. Chopra and defendant no.1(b) would be entitled to stay in the suit property, as expressed in the latter part of paragraph 4(b) and other parts of the Will, runs contrary to the express and unambiguous bequest in favour of Smt. Inder Rani Chopra. The clause that late Sh. V.N. Chopra and defendant no.1(b) would be entitled to stay in the suit property during their lifetime plainly runs contrary to the express provision that on demise of the testator, his wife would be the sole owner of the suit property with full authority to dispose of the same or rent it. It is obvious that if Smt. Inder Rani Chopra was to have the power to dispose of or rent the suit property, Sh. V.N. Chopra and defendant no.1(b) could not be contemplated to occupy the same. The bequest of the suit property to Smt. Inder Rani Chopra absolutely with full powers to dispose of the same, left no residuary right or interest in the suit property that could possibly be transmitted to any other person, simultaneously.
15. In Ramkishorelal and Another v Kamal Narayan:
1963. Supp (2) SCR417 the Supreme Court had considered the question of conflict in an instrument and had explained the approach to be observed in the following words:-
"“The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court had to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of CS (OS) 1059/2012 Page 8 of 14 the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyance. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens?. It is well settled that 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. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.” 16. The aforesaid decision was also referred to by the Supreme Court in its later decision in Mauleshwar Mani & Ors v. Jagdish Prasad & Ors : (2002) 2 SCC468 In that case, the testator had bequeathed the suit properties absolutely to his wife in the first part of the Will and in the latter part of the Will, had also bequeathed the same suit property to nine sons of his daughters. In the aforesaid contest, the Supreme Court held as under:-
"CS (OS) 1059/2012 Page 9 of 14 “The next question that arises for consideration is, the validity of the second part of the will whereby and whereunder the testator gave the very same property to nine sons of his daughters. In Ramkishorelal v. Kamalnarayan it was held that in a disposition of properties, if there is a clear conflict between what is said in one part of the document and in another where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion, in such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded. In Radha Sundar Dutta v. Mohd. Jahadur Rahim it was held where there is conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Rameshwar Bakhsh Singh v. Balraj Kuar it was laid down that where an absolute estate is created by a will in favour of devisee, the clauses in the will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid. 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.” 17. In a recent decision in Madhuri Ghosh and Anr. v. Debobroto Dutta and Anr.: (2016) 10 SCC805 the Supreme Court referred to the aforesaid decisions and held as under:-
"CS (OS) 1059/2012 Page 10 of 14 “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.” 18. In the present case, the testator was survived by his wife, Smt. Inder Rani Chopra who expired in January 2000. It is well settled that there is no hiatus in succession and thus the suit property vested absolutely with Smt. Inder Rani Chopra on the demise of the testator. Undisputedly, she had full right to dispose of the suit property and her absolute right could not be read as restricted in any manner. Although, the testator had in latter part of the Will expressed that Sh. V.N. Chopra and his son, Rajesh Chopra (defendant no.1(b)) would be entitled to stay in the suit property during their lifetime, free of rent, the same is wholly inapplicable; firstly, for the reason that such provision was made in paragraph 4 of the Will, which as the opening words of the said paragraph indicate would be applicable only if Smt. Inder Rani Chopra predeceased the testator. Secondly, the said dispensation is not valid in view of the unambiguous provision that Smt. Inder Rani Chopra would be the sole owner of the suit property with full authority to dispose of the same. Thus, in my view, the three brothers (the plaintiff, late Sh. V.N. Chopra and late Brig. T.R. Chopra) acquired right or title in the suit property only post the demise of their mother, Smt. Inder Rani Chopra. Considering that she was the absolute owner of the suit property after the demise of the testator, her legal heirs - the three brothers - acquired equal and absolute right in the suit property, post her death. The condition that Sh V.N. Chopra and defendant no.1(b) were entitled to stay in the suit property would plainly be of no consequence given that Smt. Inder Rani Chopra acquired the suit property absolutely on demise of the CS (OS) 1059/2012 Page 11 of 14 testator.
19. In view of the above, it is not necessary to consider the other paragraphs of the Will, however, for the sake of completeness, this Court has also examined the rival contentions as to the interpretation of the other clauses of the Will on an assumption (which as stated above, the Court does not accept) that the bequest of the suit property in favour of late Smt. Inder Rani Chopra was not absolute.
20. It is well settled that a Will has to be read as a whole to discern the intention of the testator. Bearing that in mind, it is apparent from a plain reading of the Will that the testator had desired his three sons to be the absolute owners of the suit property after the demise of his wife and himself. It is also apparent that he desired that all his three sons continue to enjoy the suit property and have full access to the same as is clear from the last paragraph of the Will (captioned as “Special Para”). It appears to be the testator‟s desire that his son, Sh. V.N. Chopra and his son (defendant no 1(b)) continue to live in the suit property without payment of rent. However, this could only be as long as the suit property continued to be held jointly by the three brothers. The testator has also contemplated that the suit property could be sold and had made express provisions regarding payment of the loans taken from his children and distribution of the sale proceeds. It is also clear that his intention was that the suit property be sold only in concurrence of his three sons. It is difficult to accept the contention that even after the demise of two of his sons, further consent of their legal heirs would be necessary for sale of the suit property.
21. Mr Tiku‟s contention that it was the intention of the testator that the bequest in favour of his sons was conditional and subject to the right of Sh. CS (OS) 1059/2012 Page 12 of 14 V.N Chopra and his son, defendant No.1(b) to continue to occupy the same is plainly unpersuasive. It is apparent that the testator desired that all his three sons enjoy the suit property and till it is sold, his son, Sh. V.N. Chopra along with his son, Rajesh Chopra who were residing in the suit property continue to do so. It also appears that the partition by metes and bounds was not contemplated by the testator and the only method of division referred to was sale of the suit property and distribution of the proceeds in the manner as indicated in the Will. However, his bequest of the suit property is unambiguous; in the event of his wife predeceasing him, the suit property was to devolve on his sons. This is plainly clear from the words:“After the death of myself and my wife, my three sons viz. Brig. (Dr.) Tilak Raj chopra and Vishwa Nath Chopra and Dr. Surrinder Kumar Chopra would be the sole proprietor of my said house”. Thus, any restriction regarding further use of the suit property would be unenforceable. As held in Rajrani Sehgal (supra), in cases where the intention of the testator to bequeath the property absolutely in favour of a named legatee is clear, further restrictions regarding the same would necessarily have to be ignored. However the above discussion is only academic because the parties derive their title in respect of the suit property from the deceased widow of the testator (late Smt. Inder Rani Chopra) and not the testator.
22. In view of the above, this Court finds no impediment in partitioning the suit property by metes and bounds, if possible, and/or by sale thereof. It appears from the report of the Local Commissioner that the suit property cannot be divided into three equal liveable units.
23. The parties may file objections to the report of the local CS (OS) 1059/2012 Page 13 of 14 Commissioner, if not already filed earlier, within a period of two weeks. List for consideration of the said report on 04.08.2017. The parties would also be heard on the question of applicability of the Partition Act, 1893 on that date. JULY05 2017 pkv VIBHU BAKHRU, J CS (OS) 1059/2012 Page 14 of 14