IMPORTANT POINT
A Will should be construed in accordance with principles laid down in sections 74 and 82 of the Succession Act.

Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. Interpretation of a Will executed by one Shri Murari Lal Gupta, predecessor-in-interest of the parties herein falls for consideration in this appeal which arises out of a judgment and order dated 20th December, 2007 passed by a Division Bench of the Delhi High Court in F.A.O. (OS) No.268/2006.

3. Murari Lal Gupta and Girdhari Lal Gupta were brothers. A property bearing No.C-11, Green Park Extension, New Delhi stood in the name of Murari Lal Gupta (the testator). A double storeyed building and a barsati were constructed thereon. The said property was the subject matter of the Will.

Appellant herein is one of the heirs and legal representatives of the testator. He filed a suit for partition in the original side of the Delhi High Court. The said suit was, in view of the issues involved, namely, interpretation of the will, taken up for hearing on the basis of pleadings of the parties. A preliminary decree was passed, directing:

"(i) The plaintiffs together will get 1/4th of the half share of the branch of Late Murari Lal Gupta;

(ii) The defendants Nos. 1 (a) and 1(b) shall together get 1/4th out of the half share of Late Murari Lal Gupta;

(iii) The defendants 2 & 3 shall each get 1/4th of the half share of Late Murari Lal Gupta;

(iv) The defendant Nos. 5 and 6 will each get 1/3rd of the half share of Late Girdhari Lal Gupta; and

(v) The defendant Nos. 7 (a to f) together get 1/3rd of the half share of Late Girdhari Lal Gupta."

4. The aforementioned order was passed on the following premise:

"Considering the contents of paragraph 3 as also the contents of paragraph 5, I am of the opinion that the tenor of the will suggests that the property should be divided equitably. The testator has attempted to divide it equitably and to put such division beyond the pale of controversy.

However, for some odd reason, the division of the Second Floor (Barsati Floor) has not been made out in clear terms and this has resulted in the present dispute."

5. An intra court appeal was preferred there against. It was dismissed in limine. However, a special leave petition was filed before this Court which was marked as Special Leave Petition (C) No.12350 of 2006. Upon hearing the parties, the appeal was allowed and the matter was remitted by this Court by an order dated 27.04.2007, directing:

"The Division Bench of the High Court, in our opinion has not dealt with the matter fully and in particular the construction of the Will executed by Shri Murari Lal Gupta which in our opinion, deserved serious consideration. We, therefore, set aside the impugned Judgment and remit the matter back to the High Court. We would request the Division Bench of the High Court to consider the desirability of disposing the appeal, keeping in view the nature of the dispute between the parties, as expeditiously as possible and preferably within a period of three months from the date of communication of this order."

6. By reason of the impugned Judgment, the High Court has dismissed the said appeal.

7. Mr. Chinnasamy, learned senior counsel appearing on behalf of the appellant, would submit:

(i) Both the learned Single Judge as also the Division Bench of the High Court committed a serious error in passing the impugned judgment in so far as they failed to notice the distinction between a `declaration and `bequest parts in the Will in mind. Whereas paragraph 3 of the Will contains a declaration on the part of the testator in regard to the right of the parties, the actual `bequeath of the house has been made in terms of para 4 thereof.

(ii) The property in question being the self-acquired property of the testator, the concept of family arrangement was not applicable.

(iii) Right, title and interest in the property as well as the possession thereof having remained in the testator throughout and the bequest having been made only in respect of the first floor of the said property, the learned Single Judge as also the Division Bench commit