Chinmay Biswas v. State Govt of NCT of Delhi & Anr

16. On 21st March 2024, the Joint Registrar (Judicial) noted that respondent no.2 had been served on 30th March 2023. The reply/objections filed by respondent no.2 were lying under defects since a long time and they had not been re-filed after removingdefects. No applicationfor condonationofdelay was filed by respondent no.2, despite grant of various opportunities. The limitation for filing the objection/reply had already expired quite some time back. Accordingly, theright of respondent no.2 to file the reply/objections stood closed.

17. On 11th July 2024, when thematter was listed before the Court, counselfor respondentno.2stated thatreply/objections had been filed in 2023 itself, however, stilllyingunder objections sincethey were not accompanied with affidavit of admission/denial of documents. The Court,therefore, directed thatpetitioner would begranted leaveto lead evidence to provethe Will in accordancewith law, and the matter was listed beforethe Joint Registrar(Judicial)for recording of statements.

18. Evidence by way of affidavit of PW-1 to PW-3 was filed. The witnesses were examined on 10th September 2024 and were discharged. Registered Will dated 19th January 2007 was taken out from the sealed cover and exhibited as exhibit as Ex.PW-1/4.

19. On 05th December 2024, when the matter was listed before the Court,no oneappearedon behalfof respondent no.2. The respondent no.2 was therefore, proceeded exparte. The matter then was listed on 30th January, 2025 for final hearing.

20. I.A. 938/2025had been moved by respondent no.2 for recall of order dated 05th December 2024, proceeding ex-parte against respondent no.2. In light of above facts and circumstances and egregious dilation by respondentno.2,theCourt considered it fit not to recall the order, however,in the interest ofjustice, allowed counsel for respondent no.2 to address arguments on the basis of material on record. Accordingly, submissions were heard of both parties. Analysis

21. In order to prove the execution of the Will, petitioner as PW-1 had tendered its evidence through affidavit along with attesting witnesses as PW-2 and PW-3, who have tendered their evidence through affidavit.

22. PW-2 identified his signatures at all the pages at point B[1] and signatures ofthetestatrixat points markedas X[1], X[2], X[3], X[4] and X[5] and the Will dated 19th January 2007, exhibited as Ex. PW-1/4.

23. It was stated that the Will was executed by the testatrix in his presence and the presence of the other witness PW-3.

24. Both witnesses alsosigned as witnesses in the presences of the testator.

25. The evidence of PW-2 and PW-3 is reproduced below:

26. Contesting the Will on a point of law, respondent no.2 relied upon the decision in Kamal Parti v Raj Kumar Parti & Anr. 2020 SCC OnLine Del 2941, where in para 31 the Court noted as under:

27. Counselfor respondentno.2 pointed out that as per the Will of late Chuni Lal Biswas, it was stated as under: “…In my earnest wish that my wife Srimati Kamala Biswas will not sell the house at I-1727 C.R. Park withoutthe consent of my son ChinmayBiswas and my daughter Dr. Smt. Jayashri Basu Roy Choudhuri unless there is acute financial distress and hardship, whereas Srimati Kamala Biswas could rent out some portion of the house during her life time if my wife Srimati Kamla Biswas wants to rent out the portion of the house.”

28. Based on this, respondentno.2stated thatwithouttheconsent of both theson and thedaughter, therewere restrictions on thetestatrixto bequeath the subject property to anyone.

29. This argument is however, unmerited, considering that Will of late Shri Chuni Lal Biswas at best restricts the testatrix from selling out thehousewithouttheconsent ofboth sonand daughter and permits her to rent out someportionof the house during her lifetime. There is no restrictionon bequeathalwhich requires consent. On the contrary, there is a specific clause in the Will of late Shri Chuni Lal Biswas, which reads as under: “And whereasmy wife Srimati Kamala Biswas will on my demise inherit the house no. I-1727 at Chittranjan Park, New Delhi proceeds of all my financial investments, cash bank balance, she will have absolute right of ownership over the full house located at I-1727, C.R. Park, New Delhi- 110019.”

30. It is quiteclear, that the even as per the Will, the property was bequeathed to the testatrix to exercise full rights of ownership in respect of the said property and the condition if at all, which was imposed by late Shri Chuni Lal Biswas was only on the question of sale. The decision in Kamal Parti (supra) was on its particular facts and circumstances and would not apply as a general rule to all such Wills.

31. In response, counselfor petitioner responded by relying on the decisions in Umrao Singh v Baldev Singh 1932 SCC OnLineLah 410 and V. Tulasamma & Ors. v Sesha Reddy (1977) 3 SCC 99.

32. It was also contendedby petitioner that even the restriction for sale was qualified and waived in theevent of financialhardship. It was thus, in the recognition of a right to maintenance which is a preexistingright. Even if therewas a limited estate, withoutadmittingand withoutprejudice, it got enlarged into an absoluteestateunder Section 14(1) of the Hindu Succession Act 1956 (‘HSA’).

33. In such a case, since the testatrix would have a pre-existing right, to be maintained out of the property of her husband, the restriction would not apply to her and therefore, the bequest in her favour would be an absolute bequest.

34. On various occasions, interpretation of Wills, which contain absolute bequest in favour of beneficiary followed by a subsequent bequest, havebeen deliberated uponby theCourts. Adverting to these decisions and the opinion of the Courts may be instructive for the purposes of this matter.

35. The Constitution Bench of Supreme Court in Ramkishorelal and Anr. v Kamal Narayan 1962 SCC OnLine SC 113 observed as under:

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 convincing. 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 absolutetitle 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) [(1960)(3) SCR 604 at p. 611]. 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.”

36. In V. Tulasamma and Ors. v Sesha Reddy (1977) 3 SCC 99, Justice P. N. Bhagwati speaking for himself and Justice A.C. Gupta adverted to Section 14 of the HSA, its wide ambit and scope and absolute ownership in the hands of female Hindu and all kinds of propertywhich is required by her. In this regard, para 68 is instructive, extracted as under: “…Sub-section (1) of Section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words“any property” are, even withoutany amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all comprehensive, the Legislature has enacted an explanation which says that property would include “both movableand immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement” of the Act. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by sub-section (1) of Section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Shastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognise her status as an independent and absolute owner of property.…”

37. Even, as per theprincipal opinion given by Justice Fazal Ali in

V. Tulasamma (supra) in para 62, it was observed as under: “(1) TheHindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, butis a tangibleright against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a preexisting right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. (2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economicends soughtto be achieved by this long needed legislation. (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.”

38. In Mauleshwar Mani and Ors. v Jagdish Prasad and Ors. (2002)2 SCC 468, theSupremeCourt was dealing with a Will where thefirst part had been bequeathed in the name of the testator’s wife, whereas, thesecond part provided that after the death of the wife, the sons and daughterswouldinherit theproperty. TheCourtheld that the Will, gave in the express terms an inheritable estate with power of alienation to thewife, which was an unlimited and an absolute estate. The Courtrelied upon Ramkishorelal(supra)and Rameshwar Baksh Singh & Ors. v Balraj Kuar & Ors. and culled out legal principles, stating as under: “11. 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.

12. In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absoluteright on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid.”

39. Relying on both Ramkishorelal (supra) and Mauleshwar (supra), Justice R.F. Nariman in Madhuri Ghosh and Anr. v Debobroto Dutta and Anr. (2016) 10 SCC 805 dealt with a Will that was bequeathed by thetestatorto his wife and elder daughter and that after death ofthe wife, the elder daughterwould become the exclusive owner and if his daughter was to predecease the wife, then the wife would become the exclusive owner (para 2 of the Will). It was also stated thatafter thedeath ofhis wife and elder daughter, various other lineal descendants would become owners of specified parts of the house(para 4 of the Will). Thequestion for considerationwas whether only a life interest was created or absoluteinterestin favour ofthewife and theelder daughter. The Court held in clear terms, that what was granted in favour of testator’s widow and elder daughter, was an absolute right and not a limited interest while relying upon the legal principles culled out in Mauleshwar (supra).

40. This line of jurisprudencehas been relied uponmorerecently by a Single Judge of this Courtin RFA 607/2016 titled as Jasbir Kumar v Kanchan Kaur & Ors. 2017:DHC:715. The controversy before the Court wastheinterpretationofthe Will executed by Late Sh. Himmat Singh and as to whether theWill has conferred a limited estate on his widow or thebequest was an absoluteone. TheCourtfirst relied upon a decision in Bhura and Ors. v Kashi Ram (1994) 2 SCC 111 to emphasise that Courts must make all efforts to determine the real intention of the testator by reading the Will as a whole and on the decision in Radha Sundar Dutta v Mohd. Jahadur Rahim and Ors. AIR 1959 SC 24, statingthat wherethereis an apparent inconsistency in the Will and if there are two constructions of a document, the one which will give effect to all the clauses must be adopted. Using the framework of Section 14 (1) of HSA, the Court then held as under:

appellant, the said life estate gets translated into an absolute estate, under Section 14(1) of the Hindu Succession Act, 1956 which contemplates that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The aforesaid issue is no longer res integra having been decided by the Supreme Court in the case of C. Masilamani Mudaliar & Ors. vs. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil & Ors., (1996) 8 SCC 525 wherein, it was held that the right acquired by a Hindu wife/widow under a Will, is in recognition of her pre-existing right to maintenance known under the Shastric law and in the light of the provisions of the Hindu Adoption and Maintenance Act, 1956, it would transform into an absolute right underSection 14(1)of the Hindu Succession Act. Thus, it was held thatwhen a Hindu husbandbequeathsa life estate in a property unto his wife, she does not get a limited ownership with life interest, but becomes the absoluteownerthereof in terms of Section 14(1) of the Hindu Succession Act.”

41. In C. Masilamani Mudaliar and Ors v Idol of Sri Swaminathaswami Swaminathaswami Thirukoil & Ors. (1996) 8 SCC 525, the Supreme Court articulated on Section 14(1) of HSA more extensively and opined as under:

conformity with the constitutional goal. Harmonious interpretation, therefore, is required to be adopted in giving effect to the relevant provisions consistent with the constitutional animation to remove gender-based discrimination in matters of marriage, succession etc. Cognizant to these constitutional goals, Hindu Marriage Act, Hindu Adoption and Maintenance Act, Hindu Succession Act, etc. have been brought on statute removing the impediments which stood in the way under the Sastric law. Explanation I to Section 14(1) gives wide amplitude to the acquisition of property in the widest terms. It is merely illustrative and not exhaustive. The only condition precedent is whether Hindu female has a pre-existing right under the personal law or any other law to hold the property or the right to property. Any instrument, document, device etc. under which Hindu female came to possess the property — moveable or immovable — in recognition of her pre-existing right, though such instrument, document or device is worded with a restrictive estate, which received the colour of preexisting restrictive estate possession by a Hindu female, the operation of sub-section (1) of Section 14 read with Explanation I, remove the fetters and the limited right blossoms into an absolute right.

27. As held by this Court, if the acquisition of the property attracts sub-section (1) of Section 14, subsection (2) does notcome into play. If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc. then sub-section (2) of Section 14 gets attracted. Subsection (2) being in the nature of an exception, it does not engulf and wipe out the operation of sub-section (1). Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu underSection 30 is required to be understood in this perspective and if any attempt is madeto put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her pre-existing right or she gets the rights for the first time under the instrument without any vestige of pre-existing right. If the answer is in the positive, sub-section (1) of Section 14 gets attracted. Thus construed, both sub-sections (1) and (2) of Section 14 will be given their full play without rendering either as otiose or aids as means of avoidance.”

42. Accordingly, from the aforesaid facts, all aspects relating to proving the genuineness of the Will, have been complied with.

43. The Court does not find any impediment in grant of probate; accordingly, petition is allowed. Pending applications (if any) are disposed of as infructuous.

44. Subject to petitioner filing requisite court fees, administration and surety bond, probate along with a copy of the Will, shall be granted in favour of petitioner.

45. Judgment be uploaded on the website of this Court.

JUDGE FEBRUARY 27, 2025 /RK/na