Back
DELHI HIGH COURT
G.P.Mittal, J.
Kamla Nijhawan —Plaintiff
versus
Sushil Kumar Nijhawan and Ors. —Defendants
I.A. No.2166 of 2014
Decided on 3.9.2014
For the Plaintiff:Mr.Ved Prakash Sharma with Ms.Amrit Kaur Oberoi and Ms.Shubhani Jain, Advocates
For the Defendants:Mr.Manish Vashisht and Mr.Dhruv Rohtagi, Advocates
IMPORTANT POINT
Whenever contradictions in Will, all clauses of Will have to be read together to give harmonious construction.
Headnote:Civil Procedure Code, 1908 — Order XII, Rule 6 read with Section 151 — Indian Succession Act, 1925 — Section 124 — Possession, Declaration, Permanent & Mandatory Injunction, Mesne Profits & Damages — Suit for — Relying on principles of Navneet Lal allowed appeal holding that testament could not be construed to bequeath property absolutely in favour of husband — Placing such construction would not only amount to rewriting several clauses in Will — But would also constitute violence to language and defeat very intention of testator. [Paras 30 & 31]
(ii) Civil Procedure Code, 1908 — Order XII, Rule 6 read with Section 151 — Indian Succession Act, 1925 — Section 124 — Possession, Declaration, Permanent & Mandatory Injunction, Mesne Profits & Damages — Suit for — HELD — Not permissible for parties to give own interpretation to Will — It is for Court to decipher real intention of testator. [Para 35]
Result: List for evidence
G.P.Mittal, J.—This is an application under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking a decree in favour of the Plaintiff and against the Defendants on admission.
2. A suit for possession, declaration, permanent and mandatory injunction, mesne profits and damages has been filed by the Plaintiff against the Defendants. Plaintiff Smt. Kamla Nijhawan is the grandmother of Defendant No. 1 and mother of Defendant No. 2. Defendants No. 3 and 4 are the Government bodies and lessors of property No. 13/27, West Patel Nagar, New Delhi-110008.
3. The sum and substance of the averments made in the plaint is that Late Shri Balwant Rai Nijhawan, the deceased husband of the Plaintiff had executed a Will dated 22.8.1995 whereby he bequeathed various properties owned by him at the time of his death including ground floor of property No. 13/27, West Patel Nagar, New Delhi upon the Plaintiff. The Plaintiff’s grievance is that Defendant No. 2 has fraudulently got the ground floor of the suit property mutated in his name on the basis of the earlier said Will, whereas the Plaintiff was to be the owner of the entire estate of the deceased Balwant Rai Nijhawan including the ground floor of the property. The Plaintiff, therefore, sought a decree requiring Defendants No. 1 and 2 to handover the vacant and peaceful possession of the ground floor of property No. 13/27, West Patel Nagar, New Delhi and declaration that the mutation procured by Defendant No. 2 in his favour is null and void.
4. The Plaintiff also sought a restraint order against Defendants No. 1 and 2 from creating any third party interest and the mesne profits till the vacant and peaceful possession of the ground floor is handed over to the Plaintiff.
5. Defendants No. 1 and 2 have contested the suit by way of filing written statement and they have denied the averments made in the plaint. Defendants No. 1 and 2, however, did not dispute the Will dated 22.8.1995 purported to have been executed by the deceased Balwant Rai Nijhawan.
6. In reply to the present application, the Defendants have not disputed the execution of the Will dated 22.8.1995. The Defendants have admitted that the Will dated 22.8.1995 is the last Will of Late Shri Balwant Rai Nijhawan. The Defendants have, however, taken up a plea that the ground floor of property No. 13/27, West Patel Nagar, New Delhi was bequeathed in favour of Defendant No. 2 and thereafter, the Plaintiff was granted a life estate thereby postponing the bequeath in favour of Defendant No. 2 till the Plaintiff was alive. It is thus, stated that the Plaintiff is not entitled to any decree on admission.
7. In the rejoinder to the reply, the Plaintiff has reiterated that she got the property absolutely on the death of her husband and Defendants’ plea that the Plaintiff was given only life estate is misconceived.
8. For appreciating the application under Order XII, Rule 6 CPC, it will be apposite to extract relevant paragraphs of the Will propounded by the Plaintiff and not disputed by Defendants no. 1 and 2, hereunder:
“Will
I, B.R. Nijhawan (Balwant Rai Nijhawan) son of Late Shri Dina Nath Ninjawan, Advocate, presently resident of 33 Ormely Road, S.W. 12 London, do hereby make this Will of mine at London, this the 22nd of August, 1995.
xxx xxx xxx
I am the owner and in possession of all my properties mentioned in schedule ‘A’ attached and all these properties are my separate, self acquired and exclusive properties excepting one property bearing No. 13/27, West Patel Nagar the ground floor which it has been given to me by my father Late Shri Dina Nath Nijhawan through Will that he made. All these properties are capable of being disposed of in accordance with the law to which the properties are subject.
I have got two sons, namely, Vinod Kumar Nijhawan (V.K. Nijhawan) and Anil Kumar Nijhawan (A.K. Nijhawan), besides my wife, Mrs. Kamla Nijhawan.
After fully considering the pros and cons of the whole matt
