The court held that the deceased's wife had only a life interest in the property per the will, not an absolute estate, thus affirming the son's entitlement following her death.

JUDGMENT

1. The present suit has been instituted seeking partition of the property bearing No. 8, Northwest Avenue Road, Punjabi Bagh Extn., New Delhi-110026, measuring about 300 sq. yds (hereinafter referred as the 'Suit Property').

2. The case set up by the plaintiffs in the plaint:

i) The suit property was originally purchased by Sh. Mamchand Deswal, who constructed a house thereupon. He executed a registered will dated 24th February, 1993. He passed away on 18th October, 1993, leaving behind a widow, Smt. Nanki Devi and three children, being Shakuntala, Krishna Prakash and Rajender Singh Deswal. Before his death, Sh. Mamchand Deswal constructed a house on the plot of land, which is the suit property in the present suit.

ii) The plaintiff no.1 is a daughter, who is permanently settled in Gurgaon, Haryana after her marriage in 1975; the plaintiff no.2 is also a daughter, who is permanently settled in USA after her marriage in 1981 and; the defendant is also permanently settled in Mumbai, Maharashtra since 1968.

iii) On the death of Sh. Mamchand Deswal, Smt. Nanki Devi became the sole and absolute owner of the suit property on the basis of a Will dated 24th February, 1993, executed by Late Sh. Mamchand Deswal.

iv) Smt. Nanki Devi expired on 20th August, 2014 leaving behind a Will dated 26th August, 2013, wherein she bequeathed the suit property in favour of all the three children i.e. the two plaintiffs and the defendant in equal shares.

v) The suit property was in the possession of Smt Nanki Devi till her death. The first floor of the suit property was being let out by her from time to time to different tenants.

3. Based on the aforesaid pleadings, a decree of partition is sought in respect of the suit property to the extent of 1/3rd share each in favour of the two plaintiffs and the defendant.

4. Suit was contested by the defendant by filing a written statement, in which it was pleaded that:

i) The defendant is in sole possession of the suit property. The defendant has always been paying the annual house tax of the suit property and the renovation of the suit property has also been carried out by the defendant out of his own funds from time to time.

ii) The suit property was in the name of the father of the parties and no mutation has been carried out by the mother in her name after the death of the father.

iii) The mother had only the life/limited interest in the suit property as per aforesaid Will executed by the father of the parties. Hence, in terms of the Will dated 26th August, 2013, executed by the mother of the parties, the plaintiffs are not entitled to any share in the suit property, as the mother had no right to bequeath the suit property.

5. Counsel appearing on behalf of the plaintiffs has made the following submissions:

i) Clause 4 of the will dated 24th February, 1993 specifically provides that after the death of the father of the parties, all his movable and immovable properties will be inherited by his wife and will be the `absolute' and `exclusive' properties of Smt. Nanki Devi. The use of the words `absolute' and `exclusive' clearly shows the intent of the testator to absolutely vest the suit property in favour of his wife.

ii) Upon the death of the father of the parties, the mother of the parties became the sole and absolute owner of the entire estate