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2009 DIGILAW 212 (DEL)

SWARAN SINGH BANDA v. MANPREET SINGH CHHATWAL

2009-02-17

SANJAY KISHAN KAUL, SUDERSHAN KUMAR MISRA

body2009
Judgment SANJAY KISHAN KAUL, J. 1. A man?s greed has no limits. Mahatma Gandhi said: “Earth provides enough to satisfy every man?s need, but not every man?s greed”. It is only the greed of the appellant which has resulted in a prolonged litigation in the family during which period of time his brother and his brother?s wife passed away and his nephew, respondent no.1, represented through a court-appointed guardian is residing in a Gurudwara. 2. Late Dr.(Major) Balwant Singh Banda owned immovable property bearing No.B-42, Defence Colony, New Delhi (herein after referred to as the said property). He had three sons and three daughters. He was married to Sardarni Onkar Kaur. Major Banda had acquired the suit property and constructed a residential building on the same. He died on 14.02.1979. Major Banda executed a registered Will dated 11.10.1974 prior to his demise. In terms of this Will, the property in the suit was to devolve upon his three sons. A share was also given to his wife Sardarni Onkar Kaur with a specific condition that after her death, her share would devolve in equal proportion upon the three sons. The Will excluded the daughters from any bequest. The Will specified a division of the property into three specified shares – i) built up portion of the ground floor excluding the garage; ii) first floor and iii)garage with three rooms built above it and the open courtyard in front of the garage on the ground floor, terrace on the first floor with a right to carry out construction on the terrace and two latrine-cum-bath rooms attached with the two rooms built above the garage. However, it was not specified in the Will as to who would inherit which of the three shares. The first floor of the property was let out during the life time of the testator and even after his demise, rents were realized and paid to the widow Sardarni Onkar Kaur, who passed away on 19.06.1982. 3. One of the sons, Sardar Surjeet Singh Chhatwal, died on 11.12.1981 and was survived by his wife and a son. He predeceased his mother Sardarni Onkar Kaur. A suit was filed seeking a decree of partition of the suit property being CS(OS)800/1990 by the wife and son of late Sardar Surjeet Singh Chhatwal. 3. One of the sons, Sardar Surjeet Singh Chhatwal, died on 11.12.1981 and was survived by his wife and a son. He predeceased his mother Sardarni Onkar Kaur. A suit was filed seeking a decree of partition of the suit property being CS(OS)800/1990 by the wife and son of late Sardar Surjeet Singh Chhatwal. It is the case of the original plaintiffs that on the demise of Sardarni Onkar Kaur, the property devolved in equal share of 1/3rd each on the plaintiffs, defendant no.1 Sardar Sarwan Singh Banda and defendant no.2 Sardar Amrit Mohan Singh Banda. The original plaintiffs sought partition and separate possession of their share in the suit property on account of the fact that defendant no.1 (appellant herein) was not willing to oblige. The plaintiffs also sought rendition of accounts of the rents realized by the appellant herein from various tenants from 1982 onwards. Defendant no.2, however, fully supported the claim of the plaintiffs. 4. The appellant, however, contested the suit. His defence was that the property was actually a Hindu Undivided Family property, the HUF consisting of late Dr. Major Balwant Singh Banda and three sons as co-parceners. It was thus pleaded that the testator could not have bequeathed the property or the extent of shares as indicated in the registered Will since he did not have any exclusive ownership rights. On the death of Dr. Major Balwant Singh Banda, defendant no.1 claims to have become the Karta of the HUF. It is also pleaded that the husband of plaintiff no.1, Sardar Surjit Singh Chhatwal, passed away when Sardarni Onkar Kaur, his mother, was alive and being a mother was entitled to a share out of the assets of the Sardar Surjit Singh Chhatwal. 5. The appellant thus claimed that at the time of his death, Sardar Surjit Singh Chhatwal, would have been entitled to 1/4th share (three brothers and their mother Sardarni Onkar Kuar having equal shares) and that 1/4th share in turn would devolve upon Sardar Surjit Singh Chhatwal?s wife, son and Sardarni Onkar Kaur. Thus these three persons would get 1/12th share each. On the death of Sardarni Onkar Kaur, it is claimed that her share would devolve upon all her legal heirs which would include her sons and daughters. 6. Thus these three persons would get 1/12th share each. On the death of Sardarni Onkar Kaur, it is claimed that her share would devolve upon all her legal heirs which would include her sons and daughters. 6. The appellant also claimed that late Sardar Surjit Singh Chhatwal left behind considerable properties including Plot No.562, Guru Harkishan Nagar, Delhi as also a plot in Baroda and a plot at Mehsana. On his demise, these properties are stated to have devolved upon his heirs which included original plaintiffs as also Sardarni Onkar Kaur being the mother and on the death of Sardarni Onkar Kaur her share in the properties would devolve upon her legal heirs. Not only that, the appellant also claimed that there were immovable properties including property bearing no. 1517, Sector 7, Faridabad and 8-G, Dadabari Kota which were purchased in the name of the second defendant for the benefit of the HUF and that all such properties formed part of a common pool of the HUF properties, which too were required to be partitioned. 7. In the process of litigation, plaintiff no.1, being the wife of Sardar Surjijt Singh Chhatwal, also passed away in the year 2002 leaving only plaintiff no.2, her son, as the sole heir. The plaintiff no.2 apparently was not in a mental condition to look after his interest in the suit proceedings or to prosecute the suit. The medical problem of the second plaintiff was diagnosed as Dementia and having impaired memory for 5-10 years. He was obeying commands, but, at times, was disoriented. The said plaintiff was also brought to the Court and was questioned to ascertain his ability to prosecute the proceedings and the court ultimately reached a conclusion that the said plaintiff was not in a position to protect his interest and on 25.09.2003, with consent of all the parties, appointed Mr.Arvind Nigam, Advocate as the guardian ad litem for plaintiff no.2. 8. On the pleadings of the parties, the issues which were finally framed are as under: i) To what shareholding are the plaintiffs entitled to, in the suit for partition? OPP. ii) Is the property being M-562, Guru Harkishan Nagar, Paschim Vihar, liable to be partitioned, as asserted by the defendants? OPD. iii) In case the answer to the above issues is in the affirmative, the extent of shares? OPD. OPP. ii) Is the property being M-562, Guru Harkishan Nagar, Paschim Vihar, liable to be partitioned, as asserted by the defendants? OPD. iii) In case the answer to the above issues is in the affirmative, the extent of shares? OPD. iv) Is the defendant No.1 liable to render accounts, if so, to what extent, for what period and for what amount? OPP. v) Relief. 9. Insofar as the controversy about the right of late father of the appellant in making the Will is concerned, in the testimony recorded of the appellant, the execution of the Will was unreservedly admitted and he admitted to the shares of the parties. Thus, the claim of the property being HUF was abandoned admitting the plea as set out in the plaint. The witness from the Office of the L&DO proved various communications addressed by the appellant containing unambiguous admissions of the appellant that 1/3rd share each devolved upon the three brothers and thus it was contended on behalf of the respondent no.1 herein that the appellant was estopped from pleading to the contrary. 10. The plea advanced at the stage of arguments before the learned Single Judge on behalf of the appellant was that since Surjit Singh Chhatwal pre-deceased his mother Sardarni Onkar Kaur, she was entitled to a share out of the estate of Sardar Surjit Singh Chhatwal and on the death of Sardarni Onkar Kaur, that portion of the share in turn would devolve on all her legal heirs. The letters written for purposes of mutation by the appellant were not denied but it was claimed that the same could not confer title. 11. The learned Single Judge considered the documents addressed by the appellant to the L&DO as set out in para 22 of the impugned order. These letters clearly show that the appellant took a clear and unequivocal stand at least in these letters that the suit property was to devolve in three shares on the three sons. The reasons for the same were also set out by the appellant that the intent of the Will was clear that no share was to devolve on the daughters and that the wife of the testator was only to have a life interest. The reasons for the same were also set out by the appellant that the intent of the Will was clear that no share was to devolve on the daughters and that the wife of the testator was only to have a life interest. Out of the four letters, which are more or less in the same terms, three letters are of the year 1989, prior to the filing of the suit, while the last letter is of the year 1996 i.e.after the filing of the suit. Not only that, the sisters of the appellant, who were subsequently impleaded as defendants in view of the nature of the defence raised in the written statement, had unequivocally given their no objection to the mutation of the property in favour of their two brothers and nephew (respondent no.1 herein) by filing necessary affidavits with the L&DO. 12. The learned Single Judge discussed the plea of estoppel, waiver and legal principles and came to the conclusion that the appellant was precluded from asserting a contrary position which would deprive a share to the plaintiffs to the extent of 1/3rd in the suit property. Similarly, the subsequently added defendants were also precluded from doing so in view of their categorical affidavits and stand before the L&DO. It is in view of these facts that Issue No.1 was answered in favour of the plaintiffs. 13. The other aspect arising from issue nos.2 and 3 was the claim in respect of the property bearing No.562, Guru Harkishan Nagar, Delhi which was owned by late Sardar Surjit Singh Chhatwal. The claim of the appellant was predicated on the factum of their mother Sardarni Onkar Kaur inheriting a share in the property on the demise of late Sardar Surjit Singh Chhatwal and the consequent entitlement of her legal heirs including the appellant. 14. This plea had been resisted on behalf of the original plaintiffs as the property in question was not a HUF property and no evidence in that behalf was led. Sardarni Onkar Kaur never laid a claim to her alleged share in that property in between the time of late Sardar Surjit Singh Chhatwal?s demise and her own demise. 14. This plea had been resisted on behalf of the original plaintiffs as the property in question was not a HUF property and no evidence in that behalf was led. Sardarni Onkar Kaur never laid a claim to her alleged share in that property in between the time of late Sardar Surjit Singh Chhatwal?s demise and her own demise. Further, the suit was for partition of the individually acquired property of the late father of the appellant and not a claim arising out of the self owned property of the brother of the appellant for which no separate suit was filed. In fact, it is nobody?s case that the appellant was in actual or constructive possession and not even a counter claim, if at all maintainable, had been filed for which court fees would have to be affixed. Learned Single Judge thus held that the appellant was not entitled to any share, the claim being time barred as late Sardar Surjit Singh Chhatwal had passed away in 1982. 15. Insofar as Issue No.4 is concerned, it was found that the plaintiffs had not produced any evidence in support of the claim that the premises had been let out from 1989 onwards. However, since the appellant had continued to occupy the property, he was held liable to render accounts for a period of three years prior to the filing of the suit i.e. from the period commencing from 01.01.1987 onwards. A preliminary decree of partition, in terms of the impugned order dated 23.10.2008, was thus passed declaring that the remaining plaintiff and the first two defendants were entitled to 1/3rd share each in the property at B-42, Defence Colony, New Delhi and that the appellant is liable to render accounts for the period commencing from 01.01.1987 onwards. 16. The learned Single Judge has imposed costs of Rs.1,50,000/- on the appellant and the reasons for the same have been set out in para 35 of the judgment. The decision is based on the false plea taken by defendant no.1 initially to prolong the suit claiming the property to be HUF and only when he entered the witness box, did he utter the truth. The conduct of the said defendant had resulted in the plaintiff no.2 being orphaned and the plaintiff being virtually rendered destitute and ultimately resulting in plaintiff no.2 staying in a Gurudwara. The conduct of the said defendant had resulted in the plaintiff no.2 being orphaned and the plaintiff being virtually rendered destitute and ultimately resulting in plaintiff no.2 staying in a Gurudwara. Respondent no.1 (original plaintiff no.2) herein is still staying in a Gurudwara having suffered great anxieties and mental trauma at a young age. The appellant did not let the matter rest even at that stage and has come up in appeal. It may also be noticed that the appellant is stated to be an advocate and is thus fully in the know of legal principles. 17. Learned counsel for the appellant contended before us that the main point which he was agitating was the consequence of the death of Sardar Surjit Singh Chhatwal intestate and their mother Sardarni Onkar Kaur passing away subsequently. It was thus pleaded that on the demise of Sardar Surjit Singh Chhatwal, his estate would devolve not only on his wife and son, but also on Sardarni Onkar Kaur, his mother, who passed away a year later and on the demise of the mother, the mother?s share would in turn devolve on her legal heirs, thus entitling the appellant to a fraction of the share. The claim is thus laid not only in respect of the Defence Colony property but also in respect of the property bearing No. 562, Guru Harkishan Nagar, Delhi. 18. Learned counsel sought to assail the findings of the learned Single Judge pleading that the succession of late Dr.Major Balwant Singh Banda opened on his demise and not on his wife?s demise and that the admissions made in the communications addressed by the appellant to the L&DO Office would not estop him from claiming otherwise. Learned counsel submitted that where a bequest creates a vested interest, the succession opens on the death of the testator and only the right of possession is postponed till the happening of an event which event has certainty to it. Thus, it was pleaded that the life interest of the widow Sardarni Onkar Kaur came to an end on her demise which event is a certainty and thus the bequest under the Will came into operation on the demise of the testator and only the right of enjoyment was postponed. Thus, it was pleaded that the life interest of the widow Sardarni Onkar Kaur came to an end on her demise which event is a certainty and thus the bequest under the Will came into operation on the demise of the testator and only the right of enjoyment was postponed. Learned counsel seeks to explain away the communications by pleading that the communications in question nowhere projected the actual shareholding of the three persons and only wanted the property to be mutated in the name of the three persons. The three sons of late Dr.Major Balwant Singh Banda are stated to have acquired a vested interest in the property while Sardarni Onkar Kaur acquired a life interest as the wife. Since Sardar Surjit Singh Chhatwal acquired vested interest, this vested interest devolved upon his legal heirs including Sardarni Onkar Kaur apart from the original two plaintiffs. 19. In respect of the property bearing No.562, Guru Harkishan Nagar, it is simply pleaded that Sardar Surjit Singh Chhatwal having passed away intestate, his legal heirs would be his mother, wife and son who would take the property in equal shares and on the demise of the mother Sardarni Onkar Kaur her share would devolve on her legal heirs. 20. Learned counsel referred to certain judgments of different courts in respect of the aspect of vested interest. In Usha Subbarao V. B.E.Vishveswariah; AIR 1986 SC 2260, it was observed that whether a bequest creates a vested interest or contingent interest depends upon intention to be gathered from a comprehensive view of all the terms of the document creating the interest, but while construing the terms, the Court should proceed with a bias in favour of the vested interest. In the facts of the case, while looking to the provisions of Section 119 and 120 of the Indian Succession Act, 1925 („the Indian Succession Act? for short) where a legatee was allowed to enjoy the income from bequeathed properties even during the period rights of separate enjoyment were not available to the legatee and there was a postponement of the right to claim partition of the house to the date when the wife of testator died, the bequeath under the Will was held not to be a contingent interest but a vested interest. In P.Somasundaram v. K.Rajammal; AIR 1976 Madras 295, the testator expressed an unambiguous intention that his wife, daughter-in-law and grand-daughter would maintain themselves out of the income of the properties during the lifetime of the wife and the daughter-in-law. After the lifetime of the wife and daughter-in-law, the grand-daughter was to get the property absolutely. It was held that the date of vesting in the grand daughter was the date of the testator?s death. The distinction between a vested and a contingent bequest was explained and it was observed that an interest is stated to be vested when it is not subject to any condition precedent, when it is to take the effect on the happening of an event which is certain, whereas an estate is contingent when the right to enjoyment depends upon the happening of an uncertain event which may or may not happen. Thus a person takes a vested interest in a property at the testator?s death when he acquires a proprietary right in it at the that time; but the right of enjoyment is only deferred till a future event happens which is certain to happen. On the other hand, a contingent interest is one in which neither any proprietary interest nor a right of enjoyment is given at the testator?s death, but both depend upon future uncertain events. Similar are the observations in Chilamakuri Chinna Pullappa v. Guraka Chinna Bayanna and Ors; AIR 1962 AP 54 and Smt.Kapuri Kuer v. Sham Narain Prasad and Ors; AIR 1962 Patna 149. 21. Learned counsel for the appellant pleaded that the appellant was well within his rights to claim the inclusion of all the properties in the suit including the Guru Harkishan Nagar property as a suit for partial partition was not maintainable in view of the provisions of Order 8 Rule 6A to 6G of the Code of Civil Procedure, 1908. Learned counsel relied upon the judgment in the case of Satchidananda Samanta v. Ranjan Kumar Basu and Ors; AIR 1992 Calcutta 222 to submit that while claiming partition of joint family properties, all properties brought into the hotch potch should be included in the suit. Learned counsel referred to the judgment in Inder Lal Khanna v.Krishan Lal Malhotra; AIR 1990 Punjab and Haryana 149 where issues arising out of the counter claim were framed and evidence led. Learned counsel referred to the judgment in Inder Lal Khanna v.Krishan Lal Malhotra; AIR 1990 Punjab and Haryana 149 where issues arising out of the counter claim were framed and evidence led. Since no prejudice was alleged by the plaintiff, it was observed that the plea that the counter claim filed by the defendant was not proper as it was not filed before the written statement should not be raised by the plaintiff in second appeal. In the alternative, it was pleaded that at best the appellant could have been called upon to pay the requisite court fees. 22. Learned counsel pleaded that estoppel or waiver could not come to the aid of the plaintiffs as they were rules of evidence and have to be specifically alleged and proved. Learned counsel referred to Dawsons Bank Ltd. v. Nippon Menkwa Kabushishi Kaish (Japan Cotton Trading Co. Ltd.); AIR 1935 Privy Council 79 to contend that there was no estoppel by waiver. In order for a statement to constitute an estoppel under Section 115 of the Evidence Act, 1872, the same should be clear and unambiguous and the representation must be of an existing fact and must be properly pleaded and proved. It was held that waiver means an abandonment of a right and it may be either express or implied from conduct but its basic requirement is that it must be an intentional act with knowledge and there may be no waiver unless the person who is stated to have waived is fully informed of his rights and with full knowledge of such rights, he intentionally abandons it. In this context, learned counsel also submitted that a party must actually alter its position to its detriment in the face of such original representations for a plea of estoppel. 23. Learned counsel seriously disputed that any directions could be passed to ascertain as to what amount the appellant was liable to pay on account of his self user of the property as in any case no claim of rent was established as there was no tenant in the property at the relevant time. This coupled with a fact that the original plaintiffs claimed to be in part possession of the premises. This coupled with a fact that the original plaintiffs claimed to be in part possession of the premises. Learned counsel also referred to the judgment in Bachhaj Nahar v. Nilima Mandal & Anr; 2008 (15) Scale 158 to contend that the Court should confine its decision to the questions that arise in the pleadings. 24. In the end, learned counsel for the appellant submitted that exorbitant costs have been imposed on the appellant while the delay was on the part of the original plaintiffs who took about thirteen years to complete their case. 25. Learned counsel for respondent no.1 has strongly emphasized the fact that the appellant has in fact indulged in perjury and committed contempt of court by filing false pleadings and prolonged litigation only to be in continuous occupation of the property at Defence Colony and to deprive respondent no.1 and his late mother of the enjoyment of the property. The appellant took a different stand in the communications to the L&DO and the deposition before the Court and thus is liable to be proceeded against in accordance with law. 26. Insofar as the merits of the controversy are concerned, it was emphasized that the appellant has sought to mix up two distinct causes of action. The first related to devolution of interest on the demise of Dr.(Major) Balwant Singh Banda and thereafter on the demise of his wife Sardarni Onkar Kaur. The cause of action for claiming any relief in respect of Guru Harkishan Nagar property is the demise of late Sardar Surjeet Singh Chhatwal. Thus, the very premise of there being a claim for any partial partition is belied by the fact that estate of late Dr.(Major) Balwant Singh Banda was included in the suit property by the plaintiffs which had nothing to do with the estate of late Sardar Surjeet Singh Chhatwal and had to be dealt with in a distinct and separate manner. There could thus be no counterclaim in respect of the properties devolving under different succession lineages and owned by different persons especially as the properties were not HUF properties. Further, neither any court fees had been paid on any counter claim nor was an undertaking given to pay the Court fees. There could thus be no counterclaim in respect of the properties devolving under different succession lineages and owned by different persons especially as the properties were not HUF properties. Further, neither any court fees had been paid on any counter claim nor was an undertaking given to pay the Court fees. The basic assertion of bringing all the properties into the hotch potch of the HUF stood negated by the fact that there was in fact no HUF nor did Sardar Surjeet Singh Chhatwal ever place his self acquired properties in the common pool of any joint family properties. 27. Learned counsel drew the attention of this Court to the judgment of the Supreme Court in Joginder Tuli v. S.L.Bhatia and Anr.; (1997) 1 SCC 502 where no court fees had been paid in respect of any counter claim and it was held that once court fees had not been paid within the time prescribed the claim was barred by limitation. Learned counsel also referred to Makhan Singh (Dead) by LRs v. Kulwant Singh; (2007) 10 SCC 602 and D.S.Lakshmaiah and Anr. v. L.Balasubramanyam and Anr.; (2003) 10 SCC 310 to contend that the onus to prove that there was a joint family property lies on the person claiming and asserting it to be so. 28. We may, however, note at this stage itself that before us and really even before the learned Single Judge this plea is not what had been sought to be urged on behalf of the appellant as the aspect of joint family property was given up. Learned counsel for respondent no.1 has laid great emphasis on the stand of the appellant himself in the various letters to L&DO where it was categorically stated that the Defence Colony property was a self acquired property of late Dr.(Major) Balwant Singh Banda and that the property under the Will had to devolve on his three sons. Learned counsel drew the attention of this Court to the principal document being a Will dated 11.10.1974 to contend that the intention of the testator was that in all circumstances the property should eventually devolve on his three sons. It is thus pleaded that the succession would open only on the demise of Sardarni Onkar Kaur, wife of late Dr.(Major) Balwant Singh Banda, as she had a life interest. It is thus pleaded that the succession would open only on the demise of Sardarni Onkar Kaur, wife of late Dr.(Major) Balwant Singh Banda, as she had a life interest. Learned counsel emphasized that in view of the provisions of Section 87 of the Indian Succession Act, the intention of a testator is not to be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. Section of 88 of the Indian Succession Act provides that where two clauses of gifts in a Will are irreconcileable, so that they cannot possibly stand together, the last shall prevail. A reading of the aforesaid provision is thus sought to lead to one conclusion i.e. devolution of interest absolutely in three shares on the three sons in the property at Defence Colony. 29. Learned counsel for the respondent no.1 has pointed out that the daughters of late Dr.(Major) Balwant Singh Banda sought to come into the picture only belatedly by moving applications for impleadment in the year 2008 which were allowed by the Order dated 31.01.2008 subject to their depositing Rs.1.5 lakhs within three weeks in Court for the benefit of respondent no.1. Only two of the applicants are stated to have deposited the amount. In any case, no appeal has been filed by those defendants and the appeal has been filed only by the appellant. Learned counsel sought to emphasize that the appellant cannot be permitted to resile from his own admissions before the L&DO and the plea of estoppel would be available to respondent no.1. 30. We have examined the records of the learned Single Judge and considered the submissions advanced on behalf of learned counsel for the parties. 31. In our considered view, the first aspect to be considered is the intent as conveyed by the testator in the testamentary document being the Will dated 11.10.1974. The testator has clearly stated that the property at Defence Colony was a self acquired property. Insofar as the devolution of interest is concerned, the same is in the following manner: “The ownership rights of premises B-42, Defence Colony will devolve after my demise in the name of my three sons, Sarwan Singh Banda, Surjit Singh Chhatwal and Amrit Mohan Singh Banda and my wife Smt.Onkar Kaur in equal shares. …….. …….. …….. Insofar as the devolution of interest is concerned, the same is in the following manner: “The ownership rights of premises B-42, Defence Colony will devolve after my demise in the name of my three sons, Sarwan Singh Banda, Surjit Singh Chhatwal and Amrit Mohan Singh Banda and my wife Smt.Onkar Kaur in equal shares. …….. …….. …….. After the demise of Smt. Onkar Kaur, my wife, her share in the property will devolve in equal shares to my three sons referred to above. None of my daughters will have any claim in any of my properties. They are financially very well off, and are living with their husbands at their respective residences. If any of the beneficiaries under the Will dies during my life time, then his legal heirs will be entitled to his share. If my wife pre-deceases me then her share as referred to in the Will, will devolve in the equal shares in my three sons or their legal shares as the case may be.” 32. The aforesaid portions of the Will thus leave no manner of doubt that the intent of the testator was clear, for the devolution of the interest in the property on his three sons with only a life interest in favour of his wife Sardarni Onkar Kaur. The sons had no right to claim partition so long as Sardarni Onkar Kaur was alive and the rentals being realized from the first floor of the Defence Colony property were to be paid to her and after her demise the property had to devolve in three shares as set out in the Will. 33. It cannot be lost sight of that a testamentary document is not to be read like a statute and the intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole. Supreme Court in Navneet Lal v. Gokul and Ors; (1976) 1 SCC 630 observed as under: “ 8. From the earlier decisions of this Court the following principles, inter alia, are well established: “(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal; AIR 1951 SC 139 ) (2) In construing the language of the will the court is entitled to put itself into the testator’s armchair (Venkata Narasimha v. Parthasarathy; 15 Bom LR 1010) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar; AIR 1951 SC 103 ) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer AIR 1953 SC 7 ) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das; AIR 1963 SC 1703 ) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. (Pearey Lal v. Rameshwar Das; AIR 1963 SC 1703 ) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite Mrs; AIR 1964 SC 1323 )” 34. The intention of the testator is more or less abundantly clear. It has already been noticed above that the stand originally taken by the appellant claiming the property to be a HUF property was false and was given up by the appellant only at the stage when the evidence was being recorded. The interesting part, however, is that while claiming mutation of the property various letters were addressed by the appellant to the L&DO. ExPW2/C being a letter dated 21.09.1989 clearly states that there was no intention on the part of the testator to convey to his widow any absolute interest in the property. PW2/D being a letter dated 29.11.1989 expressed the necessity for the mutation of the property to be made in the name of the three sons in accordance with the Will. Similarly, PW2/A being a letter dated 12.04.1989 refers to the position arising upon the demise of Sardarni Onkar Kaur and the requirement of transfer of a share in favour of the remaining three persons (sons). It was specifically prayed that the mutation should be in the name of all three sons. ExPW2/D-1 being a letter dated 25.06.1996 refers to the demise of late Smt.Onkar Kaur and the requirement of mutation in favour of the appellant himself, his brother (Defendant No.2) and nephew (respondent no.1 herein). Not only that, in furtherance to the object of carrying out mutation, the daughters of late Dr.(Major) Balwant Singh Banda/heirs of his deceased daughter submitted affidavits that they have no objection to the mutation of the property in favour of the remaining two sons of Dr.(Major) Balwant Singh Banda and son of the deceased son namely Sh. Manpreet Singh Chattwal. 35. Manpreet Singh Chattwal. 35. The significance of all these documents cannot be ignored. We do find some merit in the contention of the learned counsel for the appellant that since only life interest was created in favour of Sardarni Onkar Kaur and that has been the consistent stand of all the parties, what was created in favour of all the three sons was a vested interest with only a postponement of the right to claim partition. In fact, the factual matrix is similar to the judgment in Usha Subbarao V. B.E.Vishveswariah?s case (supra). The vesting thus came into being on the date of death of the testator as it was to take effect on the happening of a certain event, demise of Sardarni Onkar Kaur, with full enjoyment being deferred. We, however, have to see as to what are the consequences of the same as understood in the context of the documents executed by the parties. 36. The claim of the appellant in the Defence Colony property is predicated on Sardar Surjit Singh Chhatwal pre-deceasing his mother Sardarni Onkar Kaur. The share of Sardar Surjit Singh Chhatwal would thus devolve on his legal heirs as he had a vested right in the property. It is thus stated that one of the Class I legal heir would be the mother, Sardarni Onkar Kaur, who was still alive as on that date. Since Sardarni Onkar Kaur also passed away intestate, that portion of the property, which would devolve on her from Sardar Surjit Singh Chhatwal, would have a different character than the life interest which devolved on her in pursuance to the Will and that her interest would also be a vested interest. 37. If the aforesaid plea is accepted, the question arises as to how this portion of the estate which would devolve on Sardarni Onkar Kaur as her absolute interest was treated by her legal heirs. This portion would in turn get divided between the plaintiffs on the one hand being the legal heirs of a pre-deceased son as also the remaining two sons and daughters. The daughters have categorically given affidavits abandoning their rights in the property when the issue arose as to who should be recorded as the lessee of the property with the L&DO. It cannot be said that these daughters reserved the right to claim a share even after furnishing affidavits to the L&DO. The daughters have categorically given affidavits abandoning their rights in the property when the issue arose as to who should be recorded as the lessee of the property with the L&DO. It cannot be said that these daughters reserved the right to claim a share even after furnishing affidavits to the L&DO. The L&DO is the perpetual lessor of the property and in that sense there is some distinction between a freehold and a leasehold property. In a freehold property, the mutation is carried out by the Municipal Corporation for purposes of house tax. However, the mutation by the L&DO in its records is carried out to record as to who is the owner of the property on the demise of a person. The affidavits by the sisters clearly imply that they release the interest in favour of the plaintiffs to the extent it devolved on them from their mother. It is not a case where the mutation has been made in the absence of appropriate documents, but has been done in pursuance to the affidavits. 38. The sisters did not have any inherited right in the property, but claimed a right only by devolution of interest by succession from Sardarni Onkar Kaur. It was always open to them to step aside and not accept an interest and let it pass on to the other legal heirs. This is exactly what the sisters have done and possibly in furtherance to the overall intent of the testator. The aforesaid leaves the remaining two brothers appellant and respondent no.2. Respondent no.2 has supported the stand of respondent no.1 and does not claim any share. That leaves only the appellant. The appellant has categorically addressed communications and executed documents to ensure mutation in favour of the plaintiff no.2 and is thus similarly situated to his sisters. The appellant cannot be permitted to plead that his claim arose from him being a heir to his late mother out of the share which devolved on her on the demise of Sardar Surjit Singh Chhatwal. 39. There is also another aspect to the matter as the plea of the appellant in the written statement was that the property was a HUF property. Thus, the plea was completely different from what has been sought to be urged before us or before the learned Single Judge at the stage of final arguments. 39. There is also another aspect to the matter as the plea of the appellant in the written statement was that the property was a HUF property. Thus, the plea was completely different from what has been sought to be urged before us or before the learned Single Judge at the stage of final arguments. Thus, the very factual edifice has not been laid in the written statement. There is also no quibble over the legal principles that in order for a statement to constitute estoppel, there must be an existing fact and must be properly pleaded and proved. Similarly, a plea of waiver is an abandonment of right by a person who has full knowledge of such rights and there should be alterations of positions to the detriment of the person concerned {Dawsons Bank Ltd.?s case (supra)}. Plaintiffs approached the Court with a suit for partition in which a defence was taken by the appellant of the property being a HUF property. It is in that context that evidence was led in respect of the stand taken by the appellant and his sisters before the L&DO. The documents referred to aforesaid thus affirm the substratum of the plea of waiver as those persons had full knowledge of their rights and took a conscious decision to let the property devolve in a particular manner possibly taking into account the overall intent of the testator and thus waived any right from the devolution of interest acquired by Sardarni Onkar Kaur. 40. We thus find that the conclusion reached by the learned Single Judge, though for slightly different reasons, cannot be doubted that the share of Sardar Surjit Singh Chhatwal to the extent of 1/3rd in the Defence Colony property devolves on respondent no.1 alone. 41. Learned counsel for the appellant did seek to refer to certain judgments dealing with the aspect of throwing properties in a hotch potch, but we fail to appreciate this plea in the context of Guru Harkishan Nagar property. The appellant, in fact, never proved such a case and the claim was predicated once again on devolution of interest from the mother who in turn got a share as a legal heir of late Surjit Singh Chhatwal. The aforesaid property was the exclusive property of Sardar Surjit Singh Chhatwal. The appellant, in fact, never proved such a case and the claim was predicated once again on devolution of interest from the mother who in turn got a share as a legal heir of late Surjit Singh Chhatwal. The aforesaid property was the exclusive property of Sardar Surjit Singh Chhatwal. It was not a property owned by late Dr.(Major) Balwant Singh Banda and thus did not form a part of the Will or a part of his estate even otherwise. There cannot be, in our considered view, a clubbing of properties of all and sundry in one suit. The suit related to only devolution of property of Dr.Banda and thus the claim in respect of the self acquired property of Sardar Surjit Singh Chhatwal could only be by a separate suit which the appellant never filed. 42. There is also another aspect to the matter since it is not the case of the appellant that he was ever in possession of any portion of the property of the Guru Harkishan Nagar property. No proper claim was laid nor court fees paid. The claim for partition was well beyond time when it was laid and no court fees was paid. It is in this context that the observations in Joginder Tuli v. S.L.Bhatia and Anr?s case (supra) become relevant that if the court fees had not been paid within the time prescribed and the claim becomes time barred, the same cannot be treated as a counter claim even if it was so maintainable. 43. We are thus in agreement with the view of the learned Single Judge that there could not have been any adjudication of the claim of the appellant in respect of this property in the present suit and was, in any case, time barred. 44. We thus find no merit in the appeal including on the aspect of costs. The anguish of the learned Single Judge has been rightly expressed in para 35 of the impugned order. The appellant has taken contradictory pleas and prolonged the litigation. A sorry state of affairs has been brought to pass where the respondent no.1 despite being a co-owner of the property (irrespective of the percentage of his share even as claimed by the appellant) is living in a Gurudwara. The appellant has taken contradictory pleas and prolonged the litigation. A sorry state of affairs has been brought to pass where the respondent no.1 despite being a co-owner of the property (irrespective of the percentage of his share even as claimed by the appellant) is living in a Gurudwara. Such frivolous defences, when they prolong the suit, must be met with heavy compensatory costs apart from any other action which may be called for. No doubt, the plaintiffs came to be in possession of a small part of the property and since the demise of plaintiff no.1, plaintiff no.2 is staying in a Gurudwara, the appellant has been enjoying most of the property. The order directing mesne profits/damages for use and occupation by the appellant in excess of his share is, thus, rightly called for while appointing the local commissioner in pursuance to the preliminary decree passed in terms of the impugned order. 45. The last aspect which may be noticed arises from the plea of the respondent no.1 that the conduct of the appellant calls for a notice of contempt. This aspect has been dealt with by us in a separate order passed today and this is not being repeated herein to avoid unnecessary repetition. 46. We thus dismiss this appeal with costs of Rs.1,00,000/- in limine hoping that at least now expeditious steps would be taken in pursuance to the preliminary decree so that the environment in which the respondent no.1 can live improves and his expenses are met. The costs shall be deposited in the Court within four weeks. The Registry shall maintain an interest bearing deposit for the amount and disburse the interest amounts accruing on quarterly basis to the guardian ad litem for the benefit of respondent no.1. Necessary directions can be issued further at the time of passing of final decree by the learned Single Judge.