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High Court Of Delhi
RAGHBIR SINGH - Appellant
Versus
BUDH SLNGH ETC - Respondent
REGULAR FIRST APPEAL 102 of 1974
Decided On : 08/11/1977
WILL CONSTRUCTION - ABSOLUTE ESTATE - LIFE ESTATE - CONSTRUCTION OF WILL - INTENTION OF TESTATOR - SECTION 82, 83, 85, 87 OF INDIAN SUCCESSION ACT, 1925 - HINDU WILL - ABSOLUTE ESTATE TO WIDOW - LIFE ESTATE TO WIDOW - ABSOLUTE ESTATE TO SONS AFTER WIDOW'S DEATH - CONSTRUCTION OF WILL TO GIVE EFFECT TO ALL PARTS OF WILL - INTENTION OF TESTATOR TO EXCLUDE SON FROM SUCCESSION - CONSTRUCTION OF WILL TO GIVE EFFECT TO INTENTION OF TESTATOR.
Fact of the Case:
A Hindu testator made a will bequeathing his entire property to his wife absolutely, with a subsequent provision bequeathing different properties to his three sons after the wife's death. One of the sons, excluded from succession by the will, filed a suit for partition without disclosing the will, claiming intestate succession. The contesting sons set up the will and argued that the plaintiff was not entitled to a share in the property.
Finding of the Court:
The court held that the will conferred an absolute estate on the widow only in respect of the movables, a life estate in respect of the immovable property, and an absolute right on the appellants to the immovable property after the widow's death. The court found that the testator intended to exclude the plaintiff son from succession and that this intention would be defeated if the estate given to the widow was construed as an absolute estate.
Issues: 1. Whether the will conferred an absolute estate on the widow or a life estate? 2. Whether the testator intended to exclude the plaintiff son from succession?
Ratio Decidendi: 1. The court applied sections 82, 83, 85, and 87 of the Indian Succession Act, 1925, to construe the will. It held that the intention of the testator should be carried out, and that the different parts of the will should be construed harmoniously to avoid rejecting any part as surplusage. 2. The court found that the testator's intention was to exclude the plaintiff son from succession, and that this intention would be defeated if the estate given to the widow was construed as an absolute estate. The court also noted that the testator had excluded his daughters from the will, and that construing the estate given to the widow as an absolute estate would allow them to inherit a share of the property as heirs of the widow under Hindu law.
Final Decision: The court set aside the judgment and decree of the trial court and remanded the case for framing and deciding the issue regarding the execution, attestation, and validity of the will. The court directed that the construction of the will, as determined in the appeal, should not be attempted again by the trial court.
( 1 ) THE decision of this appeal turns on the construction of a will made by a Hindu testator. One Chaudhary Zaharia Mall made this will on 23-3-1967. After his death, one of his sons, Budh Singh, filed a suit for partition against the other sons and daughters of the testator without disclosing the will and on the ground that the succession, to the property of late Zaharia Mall would be intestate. The suit was contested by the other three sons of the testator, the daughters remaining ex parte. The contesting sons set up the will and pointed out that Budh Singh had been excluded from succession to the testator by the said will. The plaintiff Budh Singh 586 filed a replication in, which the factum and the validity of the will was denied. Alternatively, however, it was pleaded that even according to the alleged will Budh Singh was entitled to l/6th share in the property. The parties did not adduce any evidence and the court first decided only the following question of law, namely,-
"whether the plaintiff is entitled to a decree as claimed in the suit even if the will is taken to be valid ?"
( 2 ) THE trial Court construed the will to mean that the whole of the property of the testator was first absolutely bequeathed to the widow. After the death of the widow, all the four sons and :wo daughters of the testator were legal heirs of the widow under the Hindu law and hence the plaintiff was entitled to l/6th share in the properly. The bequest of the various items of immovable property by the testator to his three sons, who were defendants 1 to 3 in the suit, did not take effect, according to the learned trial Court, because an absolute estate was created in favour of the widow and nothing was left thereafter for the testator to bequeath to the sons-defendants 1 to 3. A preliminary decree for partition was, therefore, passed. The present appeal is tiled by the three sons of the testator while Budh Singh, the 4th son. is the respondent.
( 3 ) THE will which comes up for construction is as follows :-
"i, Chaudhary Zaharia Mall alias Ziaharia Singh, son of Chaudhary Chunni Singh, resident of House No. 4055. Gali Jain Girls School Pahari Dheeraj, Delhi, do hereby declare as under :-
( 4 ) I am an old man of 90 years. Life is transient. In spite of being old aged I enjoy my right senses and I can distinguish between good and bad. I have got four sons, namely, Raghbir Singh, Budh Singh, Balbir Singh and Kishan Singh and two daughters, namely, Shanti and Manti. All are married and blessed with children. My wife Shrimati Bhaktawari daughter of Shri Nathu Ram is also alive. She is quite obedient and renders every possible help to me. I am quite pleased with her. My sons Raghbir Singh, Balbir Singh and Kishan Singh aforesaid, are also very obedient and serve me. However, my elder son Budh Singh is quite disobedient and I am not satisfied with his character. J am quite displeased with him. Hence r reduce this will into writing as under :-
( 5 ) SO long as I, the testator, am alive I shall continue to be the absolute owner of my entire moveable and immovable property. After my death my wife Shrimati Bakhtawari aforesaid, shall become the absolute owner of my entire moveable and immovable property. She will have the right to transfer the aforesaid property in the manner she likes. No one shall have any objection thereto. My son Budh Singh aforesaid, and his children, my daughters and their children shall have no concern with my movable and immovable property. Besides, none of my heirs or legal representatives etc. shall. have any concern with my property. After the death of my wife Bhakhtawari, my son Raghbir Singh aforesaid, shall become tile absolute owner of the house bearing No. 4055 (new) and 2294 (old) purchased from Ram Saran son of Meeda vide the sale deed registered at serial No. 2878, book No. 1, volume No. 1162 at pages 34 to 37 on the 29th September. 1919. This house is situate in Gali Jain Girls School, Pahari Dhiraj,
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