RFA (OS) 5/1982. Case: Radhey Shyam Bagla Vs Ratni Devi Kahnani. High Court of Delhi (India)
| Case Number | RFA (OS) 5/1982 |
| Counsel | For Appellant: Suryakant Singla, Advocate and For Respondents: Rajeev Sharma and Harmeet Singh, Advocates |
| Judges | S. Ravindra Bhat and Najmi Waziri, JJ. |
| Issue | Hindu Succession Act, 1956 - Section 8 |
| Judgement Date | December 12, 2014 |
| Court | High Court of Delhi (India) |
Judgment:
S. Ravindra Bhat, J.
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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.
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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. 446/1967, 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.
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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. 5/1959, 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."
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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. 446/1967 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.
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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. 4/1967. 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. 31/1969, before this Court.
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It was after the above event that on 15th July, 1967, Suit No. 446/1967, 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.
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By an order of this court, dated March 22, 1967, the three suits were consolidated. To recapitulate:
(1) In Suit No. 446/1967, the plaintiff, Ratni Devi, claimed partition and delivery of her exclusive share of the suit property. The Society was a non-contesting defendant, and Radhey Shyam contested the litigation, resisting the partition.
(2) In Suit No. 32/1969, Radhey Shyam, the plaintiff, sought permanent injunction against the Society from occupying the premises.
(3) In Suit No. 31/1969 Radhey Shyam claimed a decree of permanent injunction against Ratni, to restrain 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. 31/1969, before this Court.
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The learned Single Judge, who decided Suit No. 446/1967 as well as the other two suits, framed thirteen issues, and decided the case in favour of Ratni Devi. Radhey Shyam's contention that the partition suit was not maintainable because it was in the nature of a partial partition was rejected. The learned Single Judge held that
"[An examination of] Godavari Devi's Will reveals that she bequeathed her entire property, movable and immovable, to her daughter Smt. Ratni Devi. No share in the property of Smt. Godavari Devi, therefore, devolved on Radhey Shyam Bagla and consequently the other property left behind by Smt. Godavari Devi, movable or immovable, could not be considered as joint property of plaintiff and defendant No.1."
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The learned Single Judge also held that the gift was valid.
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On the issue of the interpretation of the Will of Shri Khemka, the learned Single Judge held that it created an absolute interest in the property, in favour of Godavari Devi:
there is nothing in the circumstances or in the context to indicate that it was the testator's intention to limit the estate of Smt. Godavari Devi or her children, i.e. Ratni Devi and Radhey Shyam to a life estate.
Consequently,
"the restrictions placed on their rights to sell, mortgage or lease were repugnant to such absolute estate and cannot cut down the estate and they must be held to be invalid."
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On the basis of the above findings, it was held that Godavari Devi validly gifted her one-third share to the Society, and that Ratni Devi (the plaintiff), Radhey Shyam (first defendant) and the Society (second defendant) had a one-third share each in the property of the suit. Smt. Ratni Devi was also found competent to alienate her share in the property in dispute, and was granted a preliminary decree for partition.
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The findings of the learned Single Judge were assailed by the appellant, Radhey Shyam Bagla in RFA (OS) No.5/1982. The appeal was primarily based on two grounds: first, that the will of Shri Ram Lal Khemka, whereby only a limited estate was intended to be conferred upon Godavari Devi and, consequently, upon Radhey Shyam...
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