The main legal point established in the judgment is the interpretation of the will of Shri Ram Lal Khemka, which created an absolute interest in the property in favor of Godavari Devi, and the validity of the gift made by Godavari Devi to the Society.

S. RAVINDRA BHAT, J.

1. This appeal is directed against the judgment of the learned Single Judge in Suit No. 446 of 1967, dated 10.12.1981, i.e. by which the learned Single Judge had granted a preliminary decree of partition.

2. At the outset, it is essential to trace the relationships between the various parties involved. The core issue in the judgment of the Single Judge turned upon the reading of the will of one Seth Ram Lal Khemka. Seth Ram Lal Khemka had a sister, Smt. Godavari Devi. The appellant, Shri Radhey Shyam Bagla (first defendant in Suit No. 446 of 1967, since deceased and hereafter called Radhey Shyam), was the adopted son of Godavari Devi. The respondent/plaintiff, Smt Ratni Devi Kahnani (since deceased and hereafter called Ratni), was the daughter of Godavari Devi, the latter was married to one Shri Hoti Lal Bagla.

3. Shri Ram Lal Khemka owned House No. 743, Municipal Ward No. 1, Chhota Bazaar, Kashmere Gate, Delhi. The house had an inner portion and an outer portion. By a will dated 17th December, 1958, Shri Khemka acknowledged that Smt. Godavari Devi and her children were in occupation of the ground floor and mezzanine floor of the outer portion, and accordingly bequeathed it to them in equal portions. Shri Khemka died on 24th December, 1958, and the will was proved in Probate Case No. 5 of 1959, decided on March 20, 1959. The will inter alia, stated that:

“The above said legatees of this house will not rent it out to any outsider, neither they will mortgage or sell the same during their lives time. If at any time it becomes necessary for any of the legatees to let out any portion in his share, it shall be incumbent on him or her to consult the other legatees and to give first right of refusal to the other legatees.”

4. Through a registered gift deed (dated 19th October, 1963), Godavari Devi gifted her 1/3 portion in the house to the Krishan Jas Rai Education Society (second defendant in Suit No. 446 of 1967 and hereafter called the Society). Following this, in 1964, Radhey Shyam filed a suit against Godavari Devi and Ratni and others, for a decree of permanent injunction, restraining the Society from occupying the premises i.e. House No. 743, and from running a school there. He contended that under Ram Lal Khemka’s will (i.e. the portion excerpted above), Godavari Devi had only limited rights, and was not competent to gift away a part of the property. By an order dated December 10, 1964, the learned Subordinate Judge, First Class, dismissed the suit as not maintainable. Radhey Shyam filed an appeal, which was eventually transferred to this Court as Suit No. 32 of 1969.

5. Meanwhile, on November 25, 1960, Godavari Devi made a will bequeathing her immoveable and movable properties to Ratni (the plaintiff), which was registered the next day. She died on December 28, 1966, and her will was proved in probate Case No. 4 of 1967. Following this, on January 9, 1967, Radhey Shyam filed another suit against Ratni, claiming a decree for permanent injunction restraining her from alienating, gifting, mortgaging or otherwise dealing with the property, and from disposing/depriving him of his possession and enjoyment of the property, on the ground that under the terms of the will of Shri Khemka, the rights of the legatees were restricted. This suit was registered as Suit No. 31 of 1969, before this Court.

6. It was after the above event that on 15th July, 1967, Suit No. 446 of 1967, was filed by Ratni Devi claiming partition against Radhey Shyam and the Society, claiming delivery of possession of her exclusive 1/3rd share in the property. This suit was resisted by Radhey Shyam, who argued that the suit was not maintainable since all the joint family properties had not been included, the suit was, therefore, for a partial partition. In any event, on merits, the will of Shri Ram Lal Khemka did not allow the Legatees to sell, mortgage, lease or otherwise bequeath the property.

7. By an order of this court, dated Mar