Mr. Anil Panwar, Mr. Tanishq Panwar and Mr. Kawirangbou Charenamei, Advs.) v. SH. SANJEEV KUMAR SON OF LATE

Judgment

1. “i) Pass a decree of declaration in favour of the plaintiffs and against the defendants declaring therein that the defendant No.3 has no right to make gift of any part of the property in question i.e. BF-108, Janak Puri, New Delhi-110058 as shown red in the attached site plan except the life estate/interest; ii) Pass a decree of cancellation thereby cancelling the alleged gift deeds; one being dated 26.08.2018 being registration No. 5037 in Book No. 1, Volume No. 2942 on pages 171 to 179 dated 26.02.2018 thereby gifting the entire ground floor, entire first floor and entire third floor with roof/terrace rights and another gift deed dated 06.05.2019 being registration No. 9669 in Book No. I, Volume No. 4331 at pages 722 to 132 thereby gifting the entire second floor of the property in question i.e, BF- 108, Janak Puri, New Delhi-110058; iii) Pass a decree of injunction in favour of the plaintiffs and against the defendants restraining the defendants from creating third party interest in the suit property by way of transferring, alienating and parting with possession in any manner in the suit property i.e. BF-108, Janak Puri, New Delhi- 110058; iii-a) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendants restraining the defendants, their agents, servants and legal heirs from dispossessing the plaintiff No.1 from the second floor of property bearing No. BF-108, New Delhi-110058. 2 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

iv) Pass a decree of injunction in favour of the plaintiffs and against the defendants restraining the defendants from operating of locker No. 186 in Punjab National Bank, Hari Nagar, New Delhi- 110064 and also injunct the defendants from withdrawing the amount from the accounts mentioned in para 17 of the plaint. v) Award cost of suit in favour of the plaintiff and against the Defendants.”

2. The factual matrix of the case would indicate that the plaintiffs, namely, Shri Rajeev Kumar and Shri Rakesh Kumar and defendant no.1, namely, Shri Sanjeev Kumar are the sons of late Shri Shadi Lal Kumar and late Smt. Sunita Rani. Defendant no.2, Smt. Geeta Kumar is the wife of defendant no.1.

3. The root of the dispute lies in the interpretation of a registered Will dated 24.09.2015 executed by late Shri Shadi Lal Kumar, who passed away on 22.12.2015. By virtue of the said Will, late Shri Shadi Lal Kumar bequeathed certain moveable and immovable properties to his wife, late Smt. Sunita Rani, who survived him, and later, she passed away during the pendency of present proceedings.

4. It is pertinent to mention that at the time of institution of the present civil suit, Smt. Sunita Rani was impleaded as defendant no.3. Upon her demise, her name was deleted from the array of parties. Accordingly, any reference to defendant no.3 herein shall be construed as a reference to late Smt. Sunita Rani.

5. It is stated that sometime in the year 2021, the plaintiffs came to know about the execution of two registered gift deeds, dated 26.02.2018 and

06.05.2019, whereby, late Smt. Sunita Rani gifted the ground floor, first 3 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV floor, second floor and third floor, alongwith the roof rights of property bearing No.BF-108, Janak Puri, New Delhi-110058 to defendant no.2 Smt. Geeta Kumar (daughter-in-law of late Smt. Sunita Rani).

6. The relief clause in the suit would also indicate that a declaration of cancellation of gift deeds dated 26.02.2018 and 06.05.2019 has also been sought. As per the case set up by the plaintiffs, the Will dated 24.09.2015 was executed by late Shri Shadi Lal Kumar in favour of his wife late Smt. Sunita Rani bequeathing the properties for her lifetime and upon her demise, the properties were to devolve among the three sons, i.e. plaintiffs and defendant no.1.

7. The defendants appear to have filed a common written statement asserting therein that late Smt. Sunita Rani became the sole and absolute owner of the property by virtue of the registered Will dated 24.09.2015. It was also stated that she had the full rights to sell or dispose of the property in any manner, whatsoever, and if during her lifetime, she had executed gift deeds in favour of defendant no.2, the same is legally permissible and no fault can be found therein.

8. After the completion of pleadings vide order dated 02.03.2023, this Court framed the following preliminary issue:- “Whether by virtue of registered will dated 24.09.2015, defendant No.3 became the sole and absolute owner of the suit property or derived only a lifetime interest therein?”

9. The aforesaid order was assailed by the plaintiffs in an appeal being FAO(OS) 50/2023 before the Division Bench of this Court. In the said 4 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV appeal, the plaintiffs took the plea that the preliminary issue framed under Order XV Rule 3(1) of the Code of Civil Procedure, 1908 (CPC) can only be of the jurisdictional issues. Hence, according to them, the issue framed vide the order dated 02.03.2023 lacks the necessary characteristics to be framed under the aforesaid provision of CPC and thus, the order dated 02.03.2023 was sought to be assailed.

10. It was also one of the pleas taken by the plaintiffs that though the registered Will dated 24.09.2015 was admitted by them, however, the moveable properties left behind by their parents were equally divided amongst three sons. According to the plaintiffs, the aforesaid fact negates the contentions of the defendants that the moveable and immovable properties were bequeathed exclusively to defendant No.2.

11. The Division Bench, vide order dated 04.01.2024, disposed of the appeal, directing this Court to adjudicate on the issue framed vide order dated 02.03.2023 as a preliminary issue without evidence.

12. The aforesaid direction has been issued on the anvil of the fact that the defendants have consented not to raise any plea of coercion pleaded by them in reply to paragraph No.17 of the plaint. The Division Bench was of the opinion that the Will dated 24.09.2015 requires to be interpreted in view of the recitals made therein, which would not require any further evidence to be adduced by the parties, and therefore, the decision on the said issue will have a bearing on the outcome of the civil suit itself. Paragraphs Nos.9 to 17 of the order passed by the Division Bench read as under:- “9. This Court has considered the submissions of the learned counsel for 5 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV the parties and perused the record.

10. The twin facts of existence of the valid registered Will dated 24.09.2015 and the ownership of the suit property by late Sh. Shadi Lal Kumar are admitted by the parties.

11. The Appellants have expressed concern only with regard to the proof of averments made by them in paragraph 17 of the plaint as regards creation of fixed deposits. The Respondents in reply to the said paragraph in the written statement have admitted the contents of the table set out in the plaint. Therefore, the creation of the fixed deposits is not disputed by Respondent No.3.

12. The Respondents and more specifically Respondent No.3 is bound down to her statement made before this Court that the contention in the written statement (in reply to paragraph 17 of the plaint) with respect to the alleged coercion in creating the fixed deposits will not be pressed during arguments for decision of the issue framed in the impugned order.

13. It is accordingly, directed that the effect, if any, of the facts set out by the Appellants in the table at paragraph 17 of the plaint shall be considered by the learned Single Judge, as it stands, without taking into consideration the allegations of coercion made in the corresponding paragraph of the written statement.

14. The Appellants are satisfied with the aforesaid directions and are accordingly, agreeable to the adjudication of the issue framed by the learned Single Judge in the impugned order on the admitted facts between the parties.

15. In the considered opinion of this Court, there is no infirmity in the impugned order dated 02.03.2023. In view of the consent of the parties recorded in this order, the issue framed by the learned Single Judge satisfies the conditions set out in under Order XV Rule 3(1) CPC. Further, in view of the admitted position by all parties to the suit, as regards the absolute ownership of late Sh. Shadi Lal Kumar as well as the validity of the Will dated 24.09.2015, the claims and defences raised by the parties only involves the interpretation of the clause of the registered Will dated 24.09.2015 and no further evidence is required to be adduced for deciding the issue. This Court is also of the opinion that the decision on this issue will be sufficient for the decision of the entire suit.

16. With the aforesaid directions and binding the parties to the statements made before this Court, the present appeal is disposed of. The objection raised by the Respondents to the maintainability of the appeal has not been 6 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV decided in view of the consent recorded above.

17. Pending applications also stand disposed of.”

13. Mr. Anil Panwar, learned counsel appearing for the plaintiffs, takes this Court through the registered Will dated 24.09.2015 and emphasises that the said Will not only relates to the properties which are disputed in the instant civil suit, but encompasses within itself various moveable properties. He then contends that if the remaining moveable properties are divided equally between the plaintiffs and defendant no.1, there is no reason as to why the property in dispute in the instant civil suit should not be divided in the same manner. He, therefore, imputes mala fides on the part of the defendants in not adhering to the equitable division of the suit property.

14. Learned counsel further reads the recitals of the Will and submits that the reading of the entire document nowhere empowers the beneficiary of the Will, namely, late Smt. Sunita Rani to gift the suit properties. According to him, the intention of the Testator has to be adjudged on the basis of attending circumstances. He explains that the latter part of the Will unequivocally states that after the death of the Testator and his wife, namely, late Smt. Sunita Rani, simultaneously or separately, the properties would devolve to all three sons, who would all become the joint and complete owners of the properties in equal shares.

15. He further explains that if the first part of the Will is construed to mean that the beneficiary was entitled to dispose of the property or to gift it, then the second part of the Will would become redundant, and such an interpretation of the Will should not be resorted to in any manner. He then 7 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV contends that one of the floors, as stated in the gift deeds i.e., the third floor, did not even exist at the time of execution of the Will. To buttress his submissions, he placed reliance on the decisions in the cases of Bhagwat Sharan v. Purushottam1, Shyamal Kanti Guha v. Meena Bose2, Shakuntla v. Rajinder Singh Deswal3 and Laxmana v. Chandrappa Gowda4.

16. Per contra, Mr. Ankit Jain, learned senior counsel assisted by Mr. Pankaj Gupta, appearing on behalf of the defendants, contends that the issue in question deserves to be decided against the plaintiffs. According to him, the Will dated 24.09.2015 confers unfettered and absolute right in favour of the beneficiary to dispose of the property as per her wishes, without prior consent of any of the other legal heirs and if the beneficiary, namely, late Smt. Sunita Rani executed registered gift deeds in favour of defendant no.2, the said deeds confer an absolute right in favour of defendant no.2. According to him, during the lifetime of the beneficiary, if she had chosen to dispose of the property in any manner whatsoever, then there arises no question of devolving the said property into the share of other legal heirs.

17. According to him, the right of devolution of the property in favour of the other legal heirs is extinguished on the execution of the Will dated

24.09.2015. He submits that if there is a conflict between the former and latter part of the Will, it is the latter part that gives way to the former part of the Will, meaning thereby that the devolution of the property would succumb to the first part of the Will.