(August 27, 2001) 2001 (TLS)125844

2002-DLT-95-302 :: 2002-AD (Del)-1-38

RAJINDER SINGH CHOWDHARY Vs. Sardar Manjit Singh Chowdhary

Vijender Jain

( 1 ) THIS suit has been filed by the plaintiff for partition of the properties on the ground that Sardar mohan Singh Chowdhary, father of the parties left a will dated 22/2/1978 by which he bequeathed all his movable as well ae immovable properties including house No. 9707/xvi, 2c/23, New Rohtak Road, New Delhi in favour of his wife smt. Ved Kaur absolutely with full powers of disposal in any manner she liked. The written statement was filed by defendant nos. 1 and 2 i. e. Sardar Manjit Singh Chowdhary and Dr. Mohinder Pratap Singh Chowdhary, inter alia, contending that the will of their deceased father only created a life estate and no absolute bequest was made in favour of Smt. Ved Kaur, mother of the parties.

( 2 ) ON the pleadings of the parties, on 28/8/1998 an issue was framed to the following effect : (i) Whether on the death of Shri Mohan singh Chowdhary, his widow Smt. Ved Kaur became an absolute owner of all the properties mentioned in Schedule-B to the plaint by virtue of the will dated 22/2/78 ? if so, to what effect? (ii) Relief.

( 3 ) IT was further stated at the bar by learned counsel appearing for the parties that the entire case hinges on the interpretation of Ex. P 1 i. e. the will dated 22/2/1978 and the matter could be disposed of without adducing any oral evidence in the category of short cause. Predecessor of this Court on 2/2/2000, inter alia, held that the judgment of a division Bench of this Court in Raghbir Singh and Ors. Vs. Budh Singh and ors. AIR 1978 Delhi 86 may not be a good law in view of the law laid down by Supreme Court in Gopala Menon vs. Sivaraman Nair and Ors. (1981) 3 SCC 586 and referred the matter before a Full Bench. Pursuant to that reference a full Bench was constituted and the Full Bench vide its decision on 15/9/2000 returned the reference in the following terms : (i) In the above background we feel unnecessary to go into the question relating to correctness of view expressed in Raghbir singh s case (supra) (ii) The Court while dealing with the matter has to read the will and decide true intention of the testator in the background of legal principles as set out above. We, therefore, feel that is a matter which shall be dealt with by the learned single Judge. It is unnecessary to state that while deciding the suit, the legal principles applicable to interpretation of wills as broadly stated above shall be kept in view. The reference is accordingly answered.

( 4 ) MR. DALJIT Singh, learned senior counsel appearing for the plaintiff has contended that Ex. P 1 is the will of the father of the parties by which he bequeathed all his movable and immovable properties including the property in question in favour of his wife smt. Ved Kaur and as Smt. Ved Kaur died intestate leaving behind plaintiff and defendants as legal heirs, they were entitled to 1/7th share as per the law of succession.

( 5 ) IT was contended by Mr. Singh that the bequest made by Sardar Mohan Singh to his wife was absolute and anything which was repugnant to the absolute bequest given to Ved Kaur was inconsequential as from the plain reading of the will it would be manifestly clear that the bequest made to the wife was absolute. Learned counsel for the plaintiff placed reliance on Section 138 of indian Succession Act, which is reproduced below :

"direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person. Where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction. "

( 6 ) RELIANCE was placed by Mr. Singh on Gopala Menon vs. Sivaraman Nair and Ors. (1981) 3 SCC 586 and it was contended that absolute an