BADAR DURREZ AHMED, J.

( 1 ) BY an order dated 18. 01. 2005, this court had recorded that the entire case of the parties is based upon the will dated 13. 11. 1984 executed by Late Shri Murari Lal gupta. It is further recorded in the said order that as the will has been admitted by all the parties, it should be considered whether any triable issues arise in this suit or the suit can be taken up for disposal straightway on the basis of the admitted will. The counsel for the parties have been heard on this aspect of the matter and it transpires that the learned counsel appearing for the defendant No. 3 has a different perspective and interpretation of the said will of Late Shri Murari Lal Gupta. The other parties are agreed upon their interpretation which is different from the meaning that is sought to be imputed by the defendant No. 3. Accordingly, the only issue that arises for consideration is what would be the shares of the parties in terms of the admitted will of Late Shri Murari Lal Gupta executed on 13. 11. 1984? This issue is entirely of interpretation and, therefore, has been taken up for determination straightaway.

( 2 ) TO appreciate the rival contentions of the parties, it would be necessary to describe the relationship between the parties. Late Murari lal Gupta and Late Girdhari Lal Gupta were brothers, Late Girdhari Lal Gupta being the younger of the two. The present plaintiffs are the legal heirs of the deceased son (Ram kishan Gupta) of Late Murari Lal Gupta. The defendant Nos. 1 (a) and 1 (b) are the legal heirs of Radha Kishan Gupta who was another son of Late Murari Lal Gupta. The Defendant nos. 2 and 3 are the other sons of Late Murari lal Gupta. The defendant Nos. 4 to 7 (a to f) are the legal heirs of Late Girdhari Lal Gupta who was the younger brother of Late Murari lal Gupta. In effect, there are two branches in this litigation. One of Late Murari Lal Gupta and the other of his brother, Late Girdhari Lal gupta. The property concerned in the suit is only one and that is C-11, Green Park extension, New Delhi. The question as to how much share each of the parties has in this property is the question that needs to be decided. According to all the parties, barring the defendant No. 3, the entire suit property has to be divided half and half between the branch of Late Murari Lal Gupta and the branch of Late Girdhari Lal Gupta. The defendant No. 3, however, has a different perspective which is that the Second Floor (Barsati Floor) of the property in question goes entirely to the branch of Late Murari Lal gutpa. Initially, the suit as filed by the plaintiff espoused the same view point. Subsequently, however, during the pendency of the proceedings, the plaintiffs have come around to agreeing that the Second Floor (Barsati Floor) is also to be divided between the two branches equally.

( 3 ) FOR a proper appreciation of these submissions, paragraphs 3, 5 and 8 of the will of late Murari Lal Gupta need to be examined. They read as under:-"3. That at present I am absolute legal owner of immovable property consisting of a residential house No. C-11, Green park Ext. New Delhi. 16 which was got constructed by me on a plot of land purchased by me out of my own income and sources. I further declare that half of the cost of the plot in this land was paid to me by my deceased younger brother Sh. Girdhari Lal Gupta. The construction of the building on the ground floor and the 1st floor and the barsati thereon. was got done by me out of my own income and sources. However, the half of the cost of construction was paid to me by my deceased younger brother. As a family settlement it has been "agreed that the ownership of the ground floor of this house shall vest in my four sons and they shall have its complete possession for their use and similarly the ownership of the 1st floor of this building shall vest in the members of the family of my deceased younger brother Mr Girdhari lal Gupta. This arrangement has been agreed to by bot

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