Mr. Rajesh Yadav, Senior Advocate with Mr. Preet Oberoi, Advocate v. KUMUDINI MITTAL ORS

Judgment

1. The present Appeal, filed under Section 96 read with Order XLI of the Civil Procedure Code, 19081 and Section 10 of the Delhi High Court Act, 1966, seeks to set aside the Order dated 29.05.20252, passed by the learned Single Judge of this Court in I.A. No. 11590/2025 filed in CS(OS) 438/2022 titled as „Ms. Simi Arun Pandeya v. Mr. Amit Mittal‟. The said application was filed under 1 CPC 2 Impugned Order Signature Not Verified RFA(OS) 51/2025 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:20.12.2025 14:17:13 Order XII Rule 6 of the CPC by the Appellant/Plaintiff. 2. The sole issue that arose for consideration before the learned Single Judge, and which stands adjudicated in the Impugned Order, is the very issue that survives for determination in the present Appeal. As expressly and fairly acknowledged by the learned Senior Counsel appearing for the Appellant/Plaintiff, the scope of the present Appeal is narrowly circumscribed and confined exclusively to the judicial construction and interpretation of Clause I(a) of the Will dated

03.07.1992, executed by late Smt. Angoori Devi Mittal, mother of the Appellant and grandmother of Respondent Nos. 2 and 3, which Will was duly attested and registered on 17.06.1999. BRIEF FACTS: 3. The present Appeal arises from CS(OS) 438/2022 instituted before this Court by the Appellant/Plaintiff seeking partition, declaration, rendition of accounts, permanent injunction, etc., of property bearing No. B-102, Swasthya Vihar, Delhi-1100923, forming part of the estate of late Smt. Angoori Devi Mittal and late Sh. Surendra Kumar Mittal. 4. It is admitted that the suit property was the self-acquired property of late Smt. Angoori Devi, who executed a Will dated

03.07.1992, registered on 17.06.1999. The execution and validity of the said Will were accepted by both sides. 5. The Appellant-Plaintiff and the Defendant, late Sh. Amit Mittal, are the only children of the Testatrix. Upon the demise of the original Defendant during the suit, his Class-I legal heirs were impleaded and 3 Suit Property Signature Not Verified RFA(OS) 51/2025 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:20.12.2025 14:17:13 now constitute the Respondents in the present Appeal. 6. Under the Will, the property is bequeathed floor-wise. The First Floor is bequeathed absolutely to the Plaintiff/Appellant. One room each on the Second Floor is bequeathed to the Plaintiff/Appellant and the original Defendant. Clause I(a) further vests the Ground Floor absolutely in the husband, Sh. Surendra Kumar Mittal4, with full and unfettered powers of disposal, and provides that, upon his demise, the Ground Floor shall devolve upon the son, namely, the original Defendant. 7. Late Sh. Surendra Kumar Mittal (Husband of the testatrix), the primary legatee of the Ground Floor, died intestate on 05.09.2019, without having disposed of or alienated the Ground Floor during his lifetime. 8. Before the learned Single Judge, the Appellant contended that the Ground Floor formed part of the father‟s intestate estate and, accordingly, devolved in equal shares upon the Plaintiff/Appellant and the original Defendant under the law of intestate succession. 9. The Respondents (Legal Heirs of the original Defendant) contended that Clause I(a) created a valid residuary or contingent bequest, which became operative upon the father‟s death since the Ground Floor remained undisposed, thereby vesting it exclusively in the original Defendant. 10. Vide Order dated 29.05.2025, while adjudicating the Plaintiff/ Appellant‟s application under Order XII Rule 6 of the CPC, the learned Single Judge accepted the Defendant/Respondents‟ construction, holding Clause I(a) to be a permissible two-stage 4 Surendra Kumar Mittal/ S.K. Mittal Signature Not Verified RFA(OS) 51/2025 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:20.12.2025 14:17:13 bequest - an absolute vesting in the husband followed by a residuary vesting in the son - and accordingly held that the Ground Floor devolved exclusively upon the original Defendant. 11. A preliminary decree was passed declaring the Appellant as owner of the First Floor and one Second Floor room, and the original Defendant as owner of the Ground Floor and the remaining Second Floor room, with both parties holding the land beneath the superstructure in equal shares. 12. The learned Single Judge further directed mediation regarding division of movable assets. Insofar as the findings on Clause I(a) and the consequential preliminary decree adversely affect the Appellant‟s rights, the present Appeal has been preferred. CONTENTIONS OF THE APPELLANT/ PLAINTIFF: 13. Learned Senior Counsel for the Appellant would contend, while confining the challenge solely to the construction of Clause I(a) of the Will, that the said clause embodies a two-tier disposition which, in law, cannot be sustained. He would submit, placing reliance upon the judgments of the Hon‟ble Supreme Court in Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors.5, and Sadaram Suryanarayana & Anr. v. Kalla Surya Kantham & Anr.6, to contend that in the case such as the one where the clause of the Will is in two parts and wherein in the first part there is a stipulation to the effect that the devolution of the estate would be on a person then the subsequent bequeath of the same cannot be held to be valid. It is, therefore, apposite to extract the relevant clauses of the Will as under:

03.07.1992, executed by late Smt. Angoori Devi Mittal, mother of the Appellant and grandmother of Respondent Nos. 2 and 3, which Will was duly attested and registered on 17.06.1999. BRIEF FACTS: 3. The present Appeal arises from CS(OS) 438/2022 instituted before this Court by the Appellant/Plaintiff seeking partition, declaration, rendition of accounts, permanent injunction, etc., of property bearing No. B-102, Swasthya Vihar, Delhi-1100923, forming part of the estate of late Smt. Angoori Devi Mittal and late Sh. Surendra Kumar Mittal. 4. It is admitted that the suit property was the self-acquired property of late Smt. Angoori Devi, who executed a Will dated

03.07.1992, registered on 17.06.1999. The execution and validity of the said Will were accepted by both sides. 5. The Appellant-Plaintiff and the Defendant, late Sh. Amit Mittal, are the only children of the Testatrix. Upon the demise of the original Defendant during the suit, his Class-I legal heirs were impleaded and 3 Suit Property Signature Not Verified RFA(OS) 51/2025 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:20.12.2025 14:17:13 now constitute the Respondents in the present Appeal. 6. Under the Will, the property is bequeathed floor-wise. The First Floor is bequeathed absolutely to the Plaintiff/Appellant. One room each on the Second Floor is bequeathed to the Plaintiff/Appellant and the original Defendant. Clause I(a) further vests the Ground Floor absolutely in the husband, Sh. Surendra Kumar Mittal4, with full and unfettered powers of disposal, and provides that, upon his demise, the Ground Floor shall devolve upon the son, namely, the original Defendant. 7. Late Sh. Surendra Kumar Mittal (Husband of the testatrix), the primary legatee of the Ground Floor, died intestate on 05.09.2019, without having disposed of or alienated the Ground Floor during his lifetime. 8. Before the learned Single Judge, the Appellant contended that the Ground Floor formed part of the father‟s intestate estate and, accordingly, devolved in equal shares upon the Plaintiff/Appellant and the original Defendant under the law of intestate succession. 9. The Respondents (Legal Heirs of the original Defendant) contended that Clause I(a) created a valid residuary or contingent bequest, which became operative upon the father‟s death since the Ground Floor remained undisposed, thereby vesting it exclusively in the original Defendant. 10. Vide Order dated 29.05.2025, while adjudicating the Plaintiff/ Appellant‟s application under Order XII Rule 6 of the CPC, the learned Single Judge accepted the Defendant/Respondents‟ construction, holding Clause I(a) to be a permissible two-stage 4 Surendra Kumar Mittal/ S.K. Mittal Signature Not Verified RFA(OS) 51/2025 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:20.12.2025 14:17:13 bequest - an absolute vesting in the husband followed by a residuary vesting in the son - and accordingly held that the Ground Floor devolved exclusively upon the original Defendant. 11. A preliminary decree was passed declaring the Appellant as owner of the First Floor and one Second Floor room, and the original Defendant as owner of the Ground Floor and the remaining Second Floor room, with both parties holding the land beneath the superstructure in equal shares. 12. The learned Single Judge further directed mediation regarding division of movable assets. Insofar as the findings on Clause I(a) and the consequential preliminary decree adversely affect the Appellant‟s rights, the present Appeal has been preferred. CONTENTIONS OF THE APPELLANT/ PLAINTIFF: 13. Learned Senior Counsel for the Appellant would contend, while confining the challenge solely to the construction of Clause I(a) of the Will, that the said clause embodies a two-tier disposition which, in law, cannot be sustained. He would submit, placing reliance upon the judgments of the Hon‟ble Supreme Court in Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors.5, and Sadaram Suryanarayana & Anr. v. Kalla Surya Kantham & Anr.6, to contend that in the case such as the one where the clause of the Will is in two parts and wherein in the first part there is a stipulation to the effect that the devolution of the estate would be on a person then the subsequent bequeath of the same cannot be held to be valid. It is, therefore, apposite to extract the relevant clauses of the Will as under: