Makhanlal and others vs Lala Lakshmi Chand and another

Nigam, J.C.

Sm. Ram Devi and five others filed Suit No. 62 of 1945 against Gauri Shankar and two others claiming a declaration that the open roof over the second floor and the ''dum-duma'' in the house in suit were joint property of the parties. They also sought a mandatory, injunction for the demolition of the bath-room, room over the ''dum-duma'' and the bath-room, the stair-case leading from the open roof over the second storey to the room over the ''dum-duma'' and bath-room and the wall blocking the plaintiffs'' passage to the roof of the neighboring house. An injunction restraining the defendants from making constructions on the open roof and also restraining them from using the open roof of the second storey was also claimed.

A short pedigree would be helpful:

On 3-8-1931, Bhajanlal executed a ''will'' and deposited it with the Registrar of Assurances. The case primarily depends on the interpretation of one of the clauses of the ''will''. The relevant passage reads:

The plaintiffs claimed that the open roofs were the joint property of the three sons and, as such, Gauri Shankar and his sons alone were not entitled to make any constructions on the joint portions. The defendants contested the claim and urged that the ''will'' had given them the entire third storey and, as such, they were the sole owners of the portion of the house.

The learned Subordinate Judge dismissed the suit with costs. Against that judgment and decree, the plaintiffs appealed. The appeal was dismissed by the District Judge on 21-9-1951 and Makhan Lal and four others (plaintiff No. 1 Sm. Ram Devi having died during the pendency of the first appeal) have come up in second appeal. During the pendency of the appeal to this Court, respondent No. 3 has died and has been succeeded by her sons respondents Nos. 1 and 2. In the appeal, I have heard the learned counsel for the appellants.

The only properties in suit are the open roofs along with the new constructions made thereon including a bath-room and the ''dum-duma'' i.e., the constructions covering the stair-case leading to the portions allotted to Gauri Shanker. The learned counsel for the appellants urges that while Gauri Shanker was given all the built up portions in the third storey, he was not allotted the open roofs. The learned counsel refers me to a subsequent passage in the same paragraph relating to another building. There when detailing Hiralal''s portion, a roof is specifically mentioned.

The contention of the learned counsel la that had it been the intention of Bhajanlal to give the open roofs also to Gauri Shanker, it would have been specifically mentioned. The learned counsel has also urged that even question of convenience requires that the plaintiffs'' interpretation be accepted. He has pointed out that the plaintiffs have not been allotted any open roof and if they are deprived of this roof, they will have no open space at their disposal. I am afraid questions of convenience cannot be taken into consideration when interpreting a document I have to find out what was the intention of Rai Sahib Bhajan Lal & not what would be conducive to the health of the parties. On a consideration of the terms of the ''will'', it appears to me that it was intended to give the whole of the third storey to Gauri Shankar. I agree that 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 in this particular case, Rai Sahib Bhajanlal thought it advisable to divide the house between his sons and in allotting shares gave different floors to different persons and not portions on the ground floor with all constructions on the top of it. On a consideration of the term, I incline to the interpretation put by the two courts below.

No other point has been pressed before me.

I am, therefore, of opinion that there is no force in this second appeal. I dismiss it with costs.