Nipun Goomer v. Sangeeta Goomer & Ors.

1. The present suit has been filed on behalf of the plaintiff seeking partition and other ancillary reliefs in respect of the following properties owned by Late Dr. Naresh Chander Goomer:

(i) D-32, Anand Vihar, Delhi-110092 (Anand Vihar Property)

(ii) Flat No.201, Ground Floor, GH-4, Meena Apartments, Paschim

(iii) Other movable assets of Dr. Naresh Chander Goomer

2. The plaintiff is the son of Late Dr. Naresh Chander Goomer from his first wife. The defendant no.1 is the second wife of Late Dr. Naresh Chander Goomer and the defendant no.2 is the daughter of Late Dr. Naresh Chander Goomer from his second wife. The defendant no.3 is the brother of Late Dr. Naresh Chander Goomer and the defendant no.4 is the sister of Late Dr. Naresh Chander Goomer.

3. Late Dr. Naresh Chander Goomer and his brother, the defendant no.3 had 40% share each in the Anand Vihar property and 20% share belonged to their sister, the defendant no. 4. Late Dr. Naresh Chander Goomer was the absolute owner of the Paschim Vihar property. Late Dr. Naresh Chander Goomer expired on 12th September, 2014. The plaintiff claims 1/3rd share out of the share belonging to Late Dr. Naresh Chander Goomer in all the suit properties on the basis of being a Class I heir of Late Dr. Naresh Chander Goomer.

4. Counsel for the plaintiff submits that in view of the admissions made on behalf of the defendants no.1 and 2 in respect of the Anand Vihar property in their written statement, a preliminary decree of partition be passed in favour of the plaintiff declaring the share of the plaintiff as 1/3rd in the 40% share of his father in the Anand Vihar property.

5. In the written statement filed on behalf of the defendant no.3, he claims 40% share in the Anand Vihar property and in the written statement filed on behalf of the defendant no.4, the defendant no.4 claims 20% share in the Anand Vihar property. The defendants no.3 and 4 support the case of the plaintiff seeking partition of the aforesaid property.

6. In the written statement filed on behalf of the defendants no.1 and 2, it has been stated that Late Dr. Naresh Chander Goomer executed his last registered Will dated 1st August, 2013, in terms of which, he had bequeathed the Paschim Vihar property in favour of his wife and 40% share in the Anand Vihar property in favour of his three legal heirs i.e. plaintiff, defendant no.1 and defendant no.2. A restriction has been created in the Will that till the time the daughter, the defendant no.2 is “settled in her married BANSAL life”, the said property shall not be sold/parted with. It is stated in the written statement that since defendant no.2 is still a student, the present suit is premature and not maintainable.

7. At the outset, a reference may be made to the Will of Late Dr. Naresh Chander Goomer, which has been filed by the defendants no.1 and 2. The relevant portions of the Will are extracted below:- “Whereas I have two children namely Nipun Goomer (son) and Ms. Ishani Goomer (daughter) and Besides my wife namely Dr. Sangeeta Goomer. Whereas I bequeath all my moveable immovable properties including each and everything that after my demise all my properties movable and immovable properties i.e. D-32, Anand Vihar, Delhi-92, which inherited by 40% share as per family settlement. That the share of the aforesaid property i.e. 40% shall be vested in my all above named legal heirs in equal ratio. It has been agreed the above said legal heirs shall not sale/parted of the above said property till the settled marriage life of my daughter namely Ishani Goomer and also the Testator is the owner of Flat property Flat No.201, G.F., GH-4, Meera Apartments, Paschim Vihar, New Delhi and the said property shall be vested in the name of my wife namely Sangita Goomer after my demise.”

8. Counsel for the defendants no.1 and 2 submits that in view of the restriction created in the Will, the Anand Vihar property cannot be sold till the defendant no.2 is settled in her married life. Counsel for the defendants no.1 and 2 further submits that since the defendant no.1 is a widow and the defendant no.2 is a student and the plaintiff is residing in Canada, taking into account the equities, a preliminary decree of partition in respect of the Anand Vihar property should not be passed.

9. Reliance is placed on the judgments of this Court in Sarvjit Singh BANSAL Sareen v. Ritu Menon, 2009 SCC OnLine Del 2892 and Smt. Paramjit Kaur v. Sh. Teja Singh, 2016 SCC OnLine Del 5011.

10. I have heard the counsels for the parties.

11. A reading of the Will and the written statement filed on behalf of the defendants no.1 and 2 would show that there is a clear admission that the plaintiff is entitled to 1/3rd share in the 40% share belonging to Late Sh. Naresh Chander Goomer in Anand Vihar property. The condition in the Will that the aforesaid property cannot be sold till the defendant no.2 is settled in her married life is on the face of it vague and uncertain, and is hit by Section 89 of the Indian Succession Act, 1925 as being void. As per Section 87 of the Indian Succession Act, 1925, the remaining part of the will has to be given effect to, in terms of which, the share of Late Sh. Naresh Chander Goomer in the aforesaid property has been bequeathed equally in favour of the plaintiff and the defendants no.1 and 2. 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. Therefore, even if the latter part of the bequest, which restricted the sale of the property for an uncertain period of time is void under Section 89 of the Indian Succession Act, 1925, as per Section 87 of the Indian Succession Act, 1925, the effect has to be given to the former part of the bequest giving equal share in the Anand Vihar property to the plaintiff and defendants no.1 and 2.

12. In Paramjit Kaur (supra) relied upon by the counsel for the defendants no.1 and 2, the Will provided for a restricted covenant for a definite period of time i.e. 10 years and the Court held that the same was valid. However, in the present case, the restricted covenant is for an BANSAL uncertain period of time and the same is hit by Section 89 of the Indian Succession Act, 1925. Therefore, the aforesaid judgment will not advance the case of the defendants.