Kuldip Mehta vs Jagdip Mehta

Pradeep Nandrajog, J.—The present suit has brought into focus an interesting legal issue pertaining to immovable property. Property law has an unenviable reputation for its complexity. And I must confess that this reputation is thoroughly deserved. Of all the laws, I find myself most ignorant regarding law relating to property. The problem is not with property, but with conveyancing, since the latter is concerned with how rights in property are created and transferred.

The largest estate in land is absolute ownership. But in today''s world, due to down planning and building laws, since most of the urban land is held on certain conditions, the ancient maxim: cujus est solum, ejus est usque est ad coelum et ad inferos, meaning that the owner of the soil is presumed to own everything ''up to the sky and down to the center of the earth'' but become redundant, probably to be kept in the legal archives.

Kuldeep Mehta and Jagdeep Mehta are brothers. Like all brothers do, they are fighting over the estate left behind by Late Krishan Lal Mehta, their father who died on 21.12.1982.

The dispute relates to a will, Ex. PW-1/1, executed by him on 18.2.80. The will reads as under:-

My family consists of my wife Mrs. Savitri Mehta and two major sons Shri Kuldip Mehta and Shri Jagdip Mehta. The former is currently resident in Bombay and the latter by virtu of being an Executive in a Shipping Company is afloat on board the ship he is operating. He comes to stay with my wife and me during his leave. His wife and child likewise stay with my wife and I when they are not with Shri Jagdip Mehta.

The house in which I live - M-140, Greater Kailash-I, is self acquired property. It is a two storied structure with an annex consisting of a garage and a servant quarter.

After my demise the ownership of the house would vest in my sons Shri Kuldip Mehta and Sh. Jagdip Mehta as indicated below:-

(a) The first floor of the house will vest in my elder son Shri Kuldip Mehta.

(b) The ground floor will vest in my younger son Shri Jagdip Mehta.

(c) The Ggarage will vest in Shri Jagdip Mehta.

(d) The servant quarter will vest in Shri Kuldip Mehta. Shri Jagdip mehta being an Executive Officer in a Shipping Company is some times in Delhi. While he will be the owner of the ground floor flat, my wife Smt. Savitri Mehta if she survives me would be entitled to reside in the ground floor flat whether or not Shri Jagdip Mehta is in Delhi. If Shri Jagdip Mehta or his family are in Delhi he and or his family will be entitled to reside in the ground floor flat along with the mother Smt. Savitri Mehta.

Shri Kuldip Mehta would inherit the first floor flat. However, the rental income if any, actually received would be handed over by my wife Smt. Savitri Mehta during her life time. Such amount as may be necessary to meet taxes and maintenance obligations would be paid out of the rent so received.

My wife will have no right to transfer or alienate or dispose of any interest in the property in which she has been given a life interest, without the consent in writing of my two sons. On the other hand neither of my sons will have the right to transfer or alienate or dispose of any interest in the said property during the life time of my wife Smt. Savitri Mehta.

If my sons or either of them predeceases me then his interest will stand bequeathed to his widow and children/child.

Besides this, any other property movable or immovable which I may be possessed of at the time of my demise, I bequeath to my wife Smt. Savitri Mehta.

This is my last will and Testament. I hereby revoke any other will or Testament which may have been executed earlier.

Sd/-

Krishan Lal Mehta

R/o, M-140, Greater Kailash-I,

New Delhi - 110048.

on the 18th day of Feb. 1980

Notwithstanding that the will in question is not in dispute and what is required to be adjudicated upon is the interpretation of the will, parties led evidence by examining witnesses. However, at the hearing held on 5.12.2006, learned counsel for the parties conceded that the oral evidence which was led be ignored. Indeed, the written submissions filed by the parties, no reference whatsoever has been made to the evidence led by the parties.

On 16.7.1998, following 3 issues were framed:-

Whether the plaintiff in pursuance to the Will dated 18th February, 1980 relating to property No. M-140, Greater Kailash-1, New Delhi owns the first floor and the above, belongs to him and that he is entitled to raise his construction thereon?

In the alternative, if the plaintiff is not entitled, as claimed under Issue No. 1, whether the plaintiff is entitled to get partitioned the entire property?

To what relief the plaintiff is entitled ?

Whereas Kuldip Mehta claims that the father has made a horizontal division of the property evidenced by the fact that the first floor of the main house and the servant quarter above the garage has been bequeathed to Kuldip Mehta and the ground floor of the main building as also the garage has been bequeathed to Jagdip Mehta and hence pleads that everything above the first floor belongs to him and everything beneath the ground floor belongs to Jagdip Mehta, Jagdip Mehta states that the father has made no mention of the terrace forming the roof of the first floor and hence the 2 brothers inherit the roof above the first floor in equal share due to intestacy qua the roof.

Though, defendant pleaded and attempted to prove that some construction existed on the terrace above the roof of the first floor, probably intending to prove that said construction being not a specific subject matter of the will, the same had to be inherited by the 2 brothers and therefore the open portion adjoining the said constructed portion would likewise be inherited by the 2 brothers in equal shares. But, as noted above, this line of reasoning was not projected during arguments. Even otherwise, from the evidence on record, I do not find that the defendant has successfully established any construction above the first floor, save and except the mumty where the staircase ends and access is made to the terrace above.

Let me begin by noting the well recognized principles relating to interpretation of a will. The first and the foremost rule to be kept in mind is that where a testator has made a bequest under a will, a presumption arises against intestacy and an attempt has to be made to interpret the will to rule out intestacy. See (i) Venkata Narasimha v. Parthasarathy, 49 Indian Appeals 51; (ii) Gnanambal Ammal Vs. T. Raju Ayyar and Others, ; (iii) Pearey Lal Vs. Rameshwar Das, (vi) Neettiyath Kalathil Parukutty Amma and Others Vs. Puthiyedath Parukutty Amma and Others, and (v) N. Kasturi Vs. D. Ponnammal and Others, .

The corollary of the aforesaid rule is that where the will shows an intention to dispose of all the properties of the testator, but as regards the interest created, the will admits of 2 constructions, according to one of which the will operates as a complete disposition of the whole, but according to the other the will leaves a gap in the interests created, the Courts should view the former sense as the sense intended by the testator.

The second rule to be followed is that words in a will have to be understood as on the date of writing the will. Theobald on Wills (15th Edition, at page 201) has observed as under:-

If the meaning of a word or phrase has changed with the passage of time, it is the ordinary meaning current when the will was made which is relevant. A testator''s use of a word "must be referable to the ordinary uses of the English language at the time when he is making his will."

The third rule to be followed is the Arm Chair principle. This means, as explained in the decision reported as Navneet Lal alias Rangi Vs. Gokul and Others, that although a will speaks from the date of death of the testator, in construing the will, the court should determine the facts and circumstances respecting the testator''s property and her family and things as at the date of the will in order to put itself in the chair or the testator so that effect to the words used in the will and meaning to be assigned to them could be ascertained without taking into note the evidence or circumstances which came into existence after the will was written.

Lastly, it would be permissible to supply words to give effect to the intention of the testator. Though, this should be resorted to as a rule of last instance. As observed in Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia and Others, the Court would be justified in exercising its curial draftsmanship for the testator and supply the specific words missing from the will. Jarman on Wills (8th Edition at page 592) has observed:-

Where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context.

The will in question, is fairly comprehensively written, but the problem has arisen due to change in the town planning law in the city of Delhi. The extent of construction on a plot i.e. FAR is regulated by the Master Plan for Delhi notified under the Delhi Development Act, 1957. The said FAR has increased over the years. When the will was executed by late Krishan Lal Mehta on 18.2.1980 probably only a room could be constructed above the first floor. The permissible coverage got increased to 25% of the ground floor coverage and thereafter to 50% of the ground floor coverage. Today it extends to 100% ground floor coverage. Similarly, in respect of the basement the covered area has varied from 25% of the ground floor coverage and upwards. Today it stands at 100% of the ground floor coverage.

In THE LAW OF REAL PROPERTY (6th Edition) by Megarry and Wade as edited by Charles Harpum, in para 3.049, the learned author has observed that the last century has seen much legislation, imposing on landowners, restrictions and liabilities in public interest, subjecting them to interference by public authorities. The learned author has observed that these statutes are of great importance, but they do not, generally speaking affect the principles of the law of real property. They restrict the liberties of landowners and so may affect, amongst other things, the price at which they can sell their land and the terms of sale. But the substance of the various possible transactions in land is not thereby altered: sales, settlements, leases, mortgages, and so on, continue as before.

Concept of avulsion or diluvion are not unknown to law. In the revenue laws their application is found in abundance. As observed by the learned author Charles Harpum, in para 3.045, the owner of every land is also entitled to land added by gradual accretion, as where his territory is extended by deposits caused by currents in the sea or in a lake or by the action or winds, or even by human action, provided that it is not the deliberate action of the claimant himself. Conversely the owner may lose part of his land from erosion, sometimes called avulsion or diluvion, brought about by similar causes. Where the land affected is subject to a lease, the tenant obtains the benefit of the accretion and the terms of the lease apply to it. But a conveyance or lease of land may be so worded as to exclude accretions or movements of boundaries altogether.

Change of FAR due to a town planning legislation would be akin to accretion or avulsion occasioned due to deposit or erosion. Existing rights to construct upon a plot of land conceived as a single entity plot by a town planning legislation get varied due to change in the town planning laws and the benefit of additional FAR goes to the owner of the land. But what happens where different interests are created in the land?

It is settled law that ownership is a bundle of rights and denotes the relation between a person and an object forming the subject matter of his ownership. It consists of a complex mass of rights, all of which are rights in rem, being good against all the world. Conventionally, 5 incidents of ownership are recognized. The first is the owner''s right to possess the thing which he owns. The second is the owner''s right to use and enjoy the thing owned. The third is the owner''s right to consume, destroy or alienate the thing owned. Fourthly the duration for which the thing owned may be owned. Lastly and fifthly, the residual character of the thing owned.

Law recognizes fragmentation of ownership. Possession may be owned by one, the corpus by the other. Various rights of ownership can be distributed amongst different persons. Charles Harpum, the learned editor of the 6th Edition of THE LAW OF REAL PROPERTY, in para 3.046 has observed:-

An owner can, if he wishes, divide his land horizontally or in any other way. He can dispose of minerals under the surface, or the top floor of a building, so as to make them separate properties.

The will in question has divided the interests in the property owned by Krishan Lal Mehta by bequeathing the ground floor to the defendant and the first floor to the plaintiff. A horizontal division has been made evidenced by the fact that all constructions touching the ground have been bequeathed to the defendant and all constructions above the roof of the ground floor constructions have been bequeathed to the plaintiff. May be, Krishan Lal Mehta did not have in mind the change in FAR but can it be said that he has created an inteastacy qua the additional constructions as and when the FAR changed ?

In my opinion the answer has to be NO. Consequences of law follow. This is settled law.

The testator has clearly used the expression: After my demise he ownership of my house would vest in my sons Shri Kuldip Mehta and Shri Jagdip Mehta. Thereafter, the manner in which the ownership would vest has been stated. The intention is clear, full ownership would be inherited by the two sons in the manner provided in the will. I cannot read intestacy in the will.

Learned counsel for the defendant relied upon a decision of S.K. Kaul, J. reported as Mrs. Madhu Kohli and Another Vs. Mr. Suresh Khattar and Another, The said decision is clearly distinguishable inasmuch as, learned single Judge noted that the said will referred to the built up areas on different floors which were bequeathed to the daughter, son and grandson by the testator. The will did not result in a horizontal division of the property. The learned judge has noted that right to additional constructions on the unbuilt portion of the first floor used as a terrace when will was executed was bequeathed under the will Under said circumstances, it was opined that it could not be held that the terrace above the existing construction on the first floor and the terrace above which would come into existence when further constructions were made as per right conferred upon the beneficiary under the will, would belong to the owner of the different portions of the first floor.

A will cannot be construed as a precedent for another will. Seldom would 2 wills have identical words. Thus, it would not be safe to rely upon a decision interpreting a particular will as a precedent to interpret another will save and except to cull out a legal principle relating to the interpretation of a will. As observed in Ramachandra Shenoy and Another Vs. Mrs. Hilda Brite and Others, while dealing with the issue of construction of a will, authorities and precedents are no help as each will has to be construed on its own terms and in the setting in which the clauses occur.

In my decision dated 5.10.2006 disposing of CS (OS) No. 192/2006 Brig, Deepak Mayne & Ors. V. Col. Vinod Kumar Mayne & Ors. a will where different portions of the property were bequeathed and no horizontal division was discernible and in light of a term in the will that in case of sale each of the 6 beneficiaries would get one-sixth sale price, I had held that the unutilized FAR had to be shared by all 6 beneficiaries. I have referred to the said decision only to highlight that each will has to be considered on its own clauses and setting.

Though not being treated as a precedent as it is a decision by the Court of a Judicial Commissioner, I adopt the reasoning of Nigam J.C. reported as Makhanlal and others Vs. Lala Lakshmi Chand and another wherein following was observed:-

Questions of convenience cannot be taken into consideration when interpreting a document. In the case of a will disposing different portions of a house what is to be found out is the intention of the executant of the will and not what would be conducive to the health of the parties. Ordinarily, the roof goes along with the room, being treated as a part of it and in view of the general law that any person owning a piece of ground owns all the space over it. But where the executant of the will thought it advisable to divide the house between his sons and in allotting shares gave different floor to different persons and not portions on the ground floor with all constructions on the top of it, open roofs were not held as joint property.

I accordingly decide issue No. 1 by holding that pursuant to the will dated 18.2.1980, Ex. PW-1/1, the first floor of property No. M-140, Greater Kailash, Part-I, New Delhi belongs to the plaintiff and that the right to raise a construction above the first floor vests in the plaintiff and he has every right to construct above the first floor. Similarly, the defendant would have a right to construct a basement beneath the existing ground floor.

In view of the decision on issue No. 1, issue No. 2 has become redundant.

On the final relief, I hold that in view of the decision on issue No. 1, plaintiff would have a right to construct the second floor above the existing first floor and the defendant would have no right to interfere in the said construction. Ownership of the said second floor would belong to the plaintiff. Similarly, defendant would have a right to construct a basement, ownership whereof shall belong to him. No cost.