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2005 DIGILAW 1009 (PNJ)

Krishana v. Raj Kumari

2005-09-21

S.S.SARON

body2005
Judgment S.S.Saron, J. 1. This order will dispose of R.S.A. 959 of 2001 filed by Smt Krishana and Payal, widow and daughter respectively of late Atam Parkash as also the cross-objections No. 17-C of 2001 filed by Smt Raj Kumari and Smt Nishu, also the widow and daughter respectively of said Atam Parkash. 2. The dispute in the case is with respect to the estate of Atam Parkash (deceased) who died on 25.2.1988. It is not disputed that during his life time, Atam Parkash executed a registered Will dated 9.4.1982 (Ex P4). The case of the plaintiffs - Smt Krishna and Ms Payal is that they are the widow and daughter respectively of aforesaid deceased Atam Parkash. The suit was filed by them for declaration to the effect that they are the only legal heirs of the deceased and are entitled to inherit his estate (moveable and immoveable) and that the defendants had nothing to do with the estate of the deceased. It was alleged that Smt Shanti Devi (defendant No. 1) is the mother of the deceased and Smt Raj Kumari (defendant No. 2) and Smt Nishu (defendant No. 3) are the alleged widow and daughter respectively of deceased Atam Parkash. It is further stated that Atam Parkash was the owner in possession of two houses i.e. House No.6-A, Khanna Colony, Sonepat, and another house No. 61, 4 Marlas, Sonepat. The second house was sold by deceased Atam Parkash during his life time and at the time of his demise, he was in possession of House No. 6-A, Khanna Colony, Sonepat along with the plaintiffs who used to reside with them. The possession of the said house, it was stated, since the date of marriage of Smt Krishna (plaintiff No. 1) with Atam Parkash, was that of plaintiff No. 1 and Atam Parkash and since the birth of Ms Payal (plaintiff No. 2), she has also been residing in the said house. After the demise of Atam Parkash -husband of plaintiff No. 1 and father of plaintiff No. 2, they were in possession of the same. It is further stated that Smt Krishna was married with Atam Parkash deceased on 16.6.1970 at Arya Samaj, Anar Kali Mandir Marg, New Delhi as per Hindu rites. It is since 16.6.1990 that plaintiff No. 1 had been residing with Atam Parkash and had been discharging her duties as his wife. It is further stated that Smt Krishna was married with Atam Parkash deceased on 16.6.1970 at Arya Samaj, Anar Kali Mandir Marg, New Delhi as per Hindu rites. It is since 16.6.1990 that plaintiff No. 1 had been residing with Atam Parkash and had been discharging her duties as his wife. Plaintiff No. 2 was born on 13.10.1972 and has been residing with her parents since then. It is further stated that Atam Parkash executed a legal and valid Will dated 9.4.1982 in sound and disposing mind bequeathing all his properties in favour of the plaintiff. The said Will, it is sated, is the outcome of sound and disposing mind of Atam Parkash who was in full knowledge that he was a patient of high blood pressure and, therefore, executed his Will so as to avoid any complications after his death. The deceased clearly mentioned in the Will that defendant Nos. 2 and 3 were residing separately for the last more than 12 years at the time of execution of the said Will and that they were sufficiently compensated by him and that they were not entitled to inherit any property (moveable and immoveable) left by him (Atam Parkash) after his death. 3. Besides, defendant Nos. 2 and 3 were otherwise estopped by their own acts and conduct to claim the estate left by Atam Parkash. It is also stated that defendant No. 2 had executed an affidavit dated 6.5.1992 (sic 1982) duly attested by Notary Public in this regard. It is further stated that defendant No. 1 was being properly looked after by Atam Parkash and the plaintiffs and during the life time of Ram Baksh (father of Atam Parkash), he had given enough money to defendant No. 1 and she had enough means to support herself. It is also stated that in the said property, the plaintiffs are the absolute owners and also in possession of House No. 6-A, Khanna Colony. Sonepat i.e. the estate left by Atam Parkash. Defendant Nos. 2 and 3, it is stated were well aware that the plaintiffs were the sole owners of the estate left by Atam Parkash and after his death, they did not move any department or any authority for inheritance. Sonepat i.e. the estate left by Atam Parkash. Defendant Nos. 2 and 3, it is stated were well aware that the plaintiffs were the sole owners of the estate left by Atam Parkash and after his death, they did not move any department or any authority for inheritance. It was only the plaintiffs who moved the department as well as the Courts for declaration to the effect that they are the only legal heirs of deceased Atam Parkash. It is further stated that the property also stands transferred in the Municipal Records in favour of the plaintiffs and it is the plaintiffs who had been asserting themselves as owners without any obstruction and had been paying the house tax, etc., electricity bill and other charges are also being paid by them. After the death of Atam Parkash, plaintiff Nos. 1 and 2 moved the Court of District Judge, Sonepat for grant of Succession Certificate with respect to his estate. Defendant No. 1 was made party to the said petition and general public also was given due notice of the same. Defendant No. 1 appeared through her counsel and ultimately succession certificate was awarded by the District Judge on 7.10.1988 in respect of the property as is mentioned in the order that was passed. Later on, Smt. Shanti Devi (defendant No. 1) filed certain objections which lingered on for a number of years and thereafter she put up defendant Nos. 2 and 3 as parties. It is further stated that on 12.6.1993, statements were made by the parties that the order was subject to the decision of the Civil Court. In short, the case of the plaintiffs is that they are exclusive owners of property i.e. House No.6-A, Khanna Colony, Sonepat and are also entitled to the amount to be paid by the department such as gratuity, provident fund, pension, exgratia grant, compensation amounts with regard to earned leave i.e. leave encashment, etc. and that the defendants had nothing to do with the same. 4. Defendant No. 1 filed her written statement in which it was stated that plaintiff No. 1 has wrongly been mentioned as the widow of Atam Parkash and plaintiff No. 2 as daughter of Atam Parkash. Besides, defendant No. 2 it is alleged has wrongly been stated to be the alleged widow of Atam Parkash and in fact she is the widow of Atam Parkash. Besides, defendant No. 2 it is alleged has wrongly been stated to be the alleged widow of Atam Parkash and in fact she is the widow of Atam Parkash. Besides, defendant No. 3 is the daughter of Atam Parkash. It is however, admitted that Atam Parkash was an employee of the Haryana State Electricity Board and was working as UDC at the time of his death. The date of death is also admitted. However, it is stated that it is incorrect to say that the plaintiffs are the LRs of deceased Atam Parkash. In fact, defendant No. 1 is the mother, defendant No. 2 is the legally wedded wife and defendant No. 3 is the real daughter of deceased Atam Parkash. It is also admitted that Atam Parkash was the owner in possession of House No. 6-A, Khanna Colony, Sonepat and the other house which was sold by the deceased during his life time. However, it is stated that the plaintiffs have got no right, title or interest with the properties of Atam Parkash deceased and in this way they were not in possession of House No.6-A, Khanna Colony, Sonepat. It is stated that it is absolutely incorrect to say that any marriage was solemnized between plaintiff No. 1 and deceased Atam Parkash. It is further incorrect to state that plaintiff No. 2 is the child born out of the wedlock between deceased Atam Parkash and plaintiff No. 1. In fact, the plaintiffs are stated to have taken possession of the property bearing House No. 6-A, Khanna Colony, Sonepat, after the death of Atam Parkash, illegally and wrongly. In fact, the defendants were living in the aforesaid house during the life time of Atam Parkash and they are the legal owners of the abovesaid property. 5. Defendant Nos. 2 and 3 filed separate written statement which is more or less in line with the written statement filed by defendant No. 1. 6. On the pleadings of the parties, following issues were framed: 1. Whether the plaintiffs are the only legal heirs of deceased Atam Parkash? OPP 2. Whether Atam Parkash deceased executed a valid will in favour of plaintiffs on 9.4.82? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPD 5. Relief. 7. OPP 2. Whether Atam Parkash deceased executed a valid will in favour of plaintiffs on 9.4.82? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPD 5. Relief. 7. After considering the evidence and material on record, the learned Civil Judge (Junior Division), Sonepat, vide judgment and order dated 10.9.1999 held that plaintiff No. 1 is not the legally wedded wife of deceased Atam Parkash and that plaintiffs are not the only LRs of deceased Atam Parkash. The Will executed by deceased Atam Parkash on 9.4.1982 was held to be a valid Will in favour of the plaintiffs. The suit was held to be maintainable and had been properly valued for the purposes of Court fee and jurisdiction. In the relief clause, it was held by the learned Civil Judge as follows: It is pertinent to mention that the accused Atam Parkash has specifically mentioned his movable properties in the aforesaid will dated 9.4.82 (Ex.P4) but purposely left to mention the three shops which found place in the statement of Raj Kumari dated 6.3.1992 recorded by the Distt Judge, Sonepat. These three shops belonging to the deceased Atam Parkash, also found place in the statement made by Smt Shanti Devi on 11.5.99 by the then District Judge, Sonepat. The "Will" has always an effect to exclude the natural legal heirs from the properties and therefore, it cannot be interpreted. There was nothing to prevent the deceased Atam Parkash from specifically mentioning these three shops in the Will when he has specifically mentioned the two houses. Similarly, the deceased has not mentioned the retiremental benefits such as gratuity, pension etc. in the Will. In the circumstances, I hold that the suit of plaintiffs is partly decreed to the extent that the plaintiffs are entitled for the properties movable and immovable specifically mentioned in the Will dated 9.4.1982. So far as the other properties which are not specifically mentioned in the will including the retiremental benefits such as gratuity, pension, etc shall be given to all the legal heirs i.e. defendants as well as the plaintiff No. 2 in accordance with the provisions of the Hindu Succession Act. In the given facts and circumstances of the case, I left the parties to bear their own costs. In the given facts and circumstances of the case, I left the parties to bear their own costs. Decree sheet be prepared and file be consigned to records as per rules. 8. Aggrieved against this judgment and decree, the parties filed three appeals i.e. one by Smt Krishna and Ms Payal (plaintiffs), second by Smt Raj Kumari and Smt Nishu (defendant Nos. 2 and 3) and the third by Smt Shanti Devi (defendant No. 1) mother of the deceased Atam Parkash. All the three appeals were dismissed by the learned Additional District Judge on 14.2.2001. Smt Shanti Devi (defendant No. 1) died during the pendency of the appeal before the Additional District Judge on 31.5.2000. It is stated that no LR of deceased-Smt Shanti Devi was brought on record in the appeal. Aggrieved against the judgment and decree dated 14.2.2001 passed by the learned Additional District Judge, the plaintiff-appellants have filed this Regular Second Appeal in this Court and defendant Nos. 2 and 3 have filed the cross objections. 9. Mr B.R. Vohra, Advocate, learned Counsel for the plaintiff appellants submits that the registered Will dated 9.4.1982 (Annexure P4) has admittedly been executed by deceased Atam Parkash. However, there has been misreading of the recital of the Will inasmuch as the deceased had willed his entire property in favour of the plaintiff-appellants. Besides, it is contended that Raj Kumari (defendant No. 2) had admitted in her cross examination that the three shops are part of House No. 6-A, Khanna Colony, Sonepat. It is further contended that Smt Raj Kumari (defendant No. 2) in her deposition in Court admitted the affidavit dated 6.5.1982 (Ex.PW6/A) which is regarding her being adequately compensated by deceased Atam Parkash. Therefore, it is contended that the recital of the will had not been correctly appreciated. 10. In response, Mr. S.S. Narula, learned Counsel for the defendants respondents and cross objectors submits that the Will has been interpreted by the Courts below in accordance with law and the same calls for no interference by this Court in this second appeal. It is further stated that no question of law is involved with respect to the interpretation of the Will and, therefore, the findings of fact reached at by the Courts below are liable to be affirmed. It is further stated that no question of law is involved with respect to the interpretation of the Will and, therefore, the findings of fact reached at by the Courts below are liable to be affirmed. It is further stated that the dues which are payable by the Electricity Board are to be paid in accordance with the departmental rules and regulations. 11. I have given my thoughtful consideration to the contentions of the learned Counsel for the parties. 12. The question of law that would arise for consideration by this Court is whether the Will that has been executed is liable to be read as a whole and whether it was the intention of the testator to transfer his entire estate in pursuance of the Will dated 9.4.1982 (Annexure P4). 13. It may appropriately be noticed that the Hon ble Supreme Court in Arun Kumar and Anr. v. Shriniwas and Ors. 2003(1) P.L.J. 479 has reiterated its earlier decision in the case of Navneet Lal alias Rangi v. Gokul and Ors. It was observed that the essential principles which should guide the Courts in interpretation of Wills, in contrast to the other class or category of documents, have been set out, on review of the entire case law on the subject, succinctly in the said decision of the Supreme Court. It was observed that the essential principles which should guide the Courts in interpretation of Wills, in contrast to the other class or category of documents, have been set out, on review of the entire case law on the subject, succinctly in the said decision of the Supreme Court. Those principles are: (i) The fundamental rule is to ascertain the intention of the testator from the words used, the surrounding circumstances for the purpose of finding out the intended meaning of the words which have been employed; (ii) The Court, in doing so, is entitled to put itself into the armchair of the testator and is bound to bear in mind also other matters than merely the words used and the probability that the testator had/would have used the words in a particular sense, in order to arrive at a right construction of the Will and ascertain the meaning of the language used; (iii) 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, giving such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative; (iv) 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; (v) It is one of the cardinal principals 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. If even there appear to be two repugnant provisions conferring successive interests and the first interest created is valid the subsequent interest cannot take effect, the Court 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. 14. If even there appear to be two repugnant provisions conferring successive interests and the first interest created is valid the subsequent interest cannot take effect, the Court 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. 14. Keeping in view the above principles, in my view it may appropriately be noticed that in the Will dated 9.4.1982 (Exhibit P4) of Atam Parkash, the boundaries of House No. 6-A, Khanna Colony, Sonepat, have been mentioned and one house bearing No. 61, 4 Marlas, which had after the execution of the Will, been sold by the testator is also mentioned. In the Will, it is stated by the testator that he has two wives, out of whom Smt Raj Kumari has taken cash, gold, silver, etc. and has separated from him and she is living separate for the last 12 years and Kumari Nishu i.e. the daughter of the testator from Smt Raj Kumari is also living separate from him and her share has also been taken by Raj Kumari. Therefore, they have no right or interest in the property of the testator. Smt Krishna Devi (plaintiff No. 1) is residing with him and is fulfilling her duties as a wife. Besides, he has one daughter namely Ms Payal. It is further recited that Smt Krishna serves her in all respects and he is happy with the service rendered by her. It is further stated that so long as he is alive, he will remain the owner of his moveable and immoveable properties i.e. both the houses which were then available and his entire money in any bank, post office and office and after his death, his wife - Smt Krishna and his daughter - Ms Payal (plaintiffs) in equal shares would be the owners. A reading of the recital of the said Will shows that the testator intended to Will his entire move-able and immoveable properties in favour of the plaintiffs in equal shares. As held by Hon ble the Supreme Court in Arun Kumars case (supra) that it is the fundamental rule to ascertain the intention of the testator from the words used, the surrounding circumstances for the purpose of finding out the intended meaning of the words which have been used. As held by Hon ble the Supreme Court in Arun Kumars case (supra) that it is the fundamental rule to ascertain the intention of the testator from the words used, the surrounding circumstances for the purpose of finding out the intended meaning of the words which have been used. Therefore, in answer to the question of law that has been posed, it is appropriate to note that a Will that has been executed and proved is liable to be read as a whole and in its entirety. The intention of the testator is to be ascertained keeping in view the other surrounding circumstances and his family relationship. The Will is to be construed to find out the intention of the testator, which is to be ascertained from the words used in the Will. The testator in the case in hand intended and has willed his entire property to the plaintiffs. The Will records that defendant No. 2 has taken her share as also the share of defendant No. 3. Therefore, the relations were clearly strained between the testator and defendants No. 2 and 3, who have been excluded from his estate. As such, the mere fact that plaintiff No. 1 has been held to be not the legally wedded wife of the deceased, is of no significance. The surrounding circumstances show that the intention of the testator is to exclude the defendants No. 2 and 3 from inheritance. 15. The circumstances also show that the learned Courts below have taken the three shops to be separate and not included in the Will. However, it has come on the record during the cross examination of Smt Raj Kumari (defendant No. 2) that the House No. 6-A, Khanna Colony, Sonepat, has two rooms, one hall, one kitchen, one store, one bathroom, gallery, latrine, one room on the roof and kitchen and three shops. Therefore, the three shops which the learned trial Court has taken as separate in fact are part of House No. 6-A aforesaid and the intention of the testator was to Will the same in favour of the plaintiffs in equal shares. Not only this, Smt Raj Kumari (defendant No. 2) has also, during her deposition in the Court, admitted her affidavit dated 6.5.1982 (Ex.PW6/A). Not only this, Smt Raj Kumari (defendant No. 2) has also, during her deposition in the Court, admitted her affidavit dated 6.5.1982 (Ex.PW6/A). In her cross examination, it is stated by her that the affidavit dated 6.5.1982 bears her signatures and the certified copy of the same is Ex.PW6/A. In the said affidavit, it has been deposed by Smt Raj Kumari that she has received cash to the extent of her share in the entire property of the deceased Atam Parkash and that she has no further share. It is further stated that she will not make any claim regarding her share and that of her daughter. In the face of the aforesaid facts and circumstances and taking into account the recital in the Will, in my view, it was the intention of the testator to Will his entire property (moveable and immoveable) to the plaintiffs-appellants in equal shares and there has been misreading of this aspect by both the Courts below. 16. The contention of the learned Counsel for the respondent which deserves consideration is as regards payment of departmental dues of the deceased Atam Parkash to defendant Nos. 2 and 3. In this respect, it is appropriate to note that no such rules and regulations of the department have been referred to or adverted to in pursuance of which the defendant Nos. 2 and 3 are entitled to these dues. Even otherwise, normally in the departmental claims, a provision for nomination is provided but the rights of the beneficiaries are not defeated. The plaintiffs being the beneficiaries in pursuance of the Will, their claim for pension and other dues cannot be defeated. Therefore, this contention of the learned Counsel for the respondents is devoid of any merit particularly when no rules in pursuance of which the claim of defendant Nos. 2 and 3 can be acceded to has been shown. 17. For the foregoing reasons, this Regular Second Appeal is allowed and the suit of the plaintiffs-appellants is decreed in its entirety. The cross objections filed by the defendants-respondents are dismissed. The judgment and decree under appeal shall stand modified accordingly.