Shri Anil Bhasin vs Shri Vijay Kumar Bhasin and Others

S. Ravindra Bhat, J.—This judgment will dispose of the issues framed on 27.2.2008 so far as they concern the properties mentioned in the Will of the testatrix - Late Smt. Raj Rani Bhasin.

The facts necessary for deciding this case are that Shri Rajender Kumar Bhasin, the father of the plaintiff and the defendants, executed a registered Will dated 25.1.1980. In its terms, all his movable and immovable properties were bequeathed to his wife - Smt. Raj Rani Bhasin. Shri Rajinder Kumar Bhasin died on 18.9.1982. In terms of his Will, his wife - Smt. Raj Rani Bhasin became the absolute owner of all the movable and immovable properties. She expired on 3.10.1998.

The plaintiff claims a preliminary decree for partition of various properties mentioned in paragraph 4 of the plaint. These concern four items of immovable properties and other movable properties/assets. It is further averred that despite various attempts by the plaintiff with the defendants, the latter failed to partition or render an account or give his due share. The plaint averments further advert to a Will dated 9.8.1989 propounded by defendants No. 4 and 5, the daughters of late Smt. Raj Rani Bhasin. The plaintiff disputed the veracity and genuineness of the Will and further alleged that it was executed under misrepresentation.

The defendants filed their written statements. Defendants No. 4 and 5 have filed a common written statement disputing that the Will propounded was not genuine. They also denied that the plaintiff was in joint possession or in constructive possession of the property. They generally denied other allegations.

The defendant No. 3, in his written statement, has denied that the property situated at Ashoka Estate, 24, Barakhamba Road, New Delhi - 110001 and the property bearing No. 2-R, 2 Floor, D.C.M. Building, 16, Barakhamba Road, New Delhi - 110001 are liable to be partitioned. According to him, the said properties were acquired by him with his funds.

The suit though instituted in 2000, continued for several years. During its pendency, defendant No. 2 filed an application under Order XXVI Rule 9, i.e. IA No. 4961/2004, for appointment of a Local Commissioner. This application was allowed on 28.10.2005. The Local Commissioner appointed by the Court filed his report, about having visited Oriental Bank of Commerce, Old Rajinder Nagar Branch and opening of certain lockers. He reported among other articles, a brown envelope containing the Will of Late Shri Rajender Kumar Bhasin and containing another Will dated 3.5.1995 of Smt. Raj Rani Bhasin was found. The same were taken into custody. After considering the arguments on behalf of the parties, this Court referred the disputes for a possible mediated settlement. A number of hearings took place where the plaintiff and the defendants participated in the proceedings.

Eventually on 28.1.2008, this Court recorded that the parties agreed to settle their disputes with reference to entitlements outlined in the Will of Smt. Raj Rani Bhasin. The matter was subsequently adjourned to 14.2.2008. On the latter date, the Court noted that all parties were present with their counsel. The statement of counsel that the validity or genuineness of the Will of their mother, i.e. late Smt. Raj Rani Bhasin dated 3.5.1995 was not disputed. The Court, therefore, felt that there was possibility of decreeing a suit in part, as far as it concerned the items of properties mentioned in the said Will. On 27.2.2008, this Court heard counsel and while reserving the order recorded as follows:

Learned Counsel submitted that two disputes, vis-a-vis construction and interpretation of the Will as regards the distribution of the property mentioned in the said Will, have to be resolved by the Court. The said issues, according to the submissions of the counsel for the parties, are framed as follows:

What is the entitlement of the parties to the immovable properties in the Will?

The entitlement of grand children under the Will to the shares/securities, of whom they were the nominees along with testatrix Raj Rani ?

Relief.

Counsel submit that the suit may be decreed partly in terms of the items mentioned in the said will, on the basis of the decision of this Court, on the above issues.

The arguments accordingly were heard on behalf of the parties. Before dealing with the issues, it would be necessary to extract the relevant part of the Will. The testatrix in the recital stated that the previous will dated 9.8.1989 stood superseded. She referred to the present parties as her family members and described the properties, both immovable assets and movable properties. While describing the movable properties, she gave particulars in relation to the nominee and the relationship of the said nominee with herself.

Immoveable assets:

1) House No. 11/5, Old Rajinder Nagar, New Delhi, comprising of ground floor, first floor and second floor (Barsati and temporary structure of two rooms set). Acquired through estate and will of my late husband, Shri Rajinder Kumar Bhasin duly registered with Sub-Registrar on 25-1-80 vide No. entered as No. 196, Vol. 152 from pages 100 to 101.

2) Office Flat in Gopal Dass Bhawan, comprising of 350 sq.ft. super area vide No. 9, 6th Floor, Barakhamba Road, New Delhi built area which is at present on rent on monthly basis through a common lease deed dated 11th October, 1994. The flat was purchased through Agreement to Sell on 28.10.1992 from Gopal Dass

Estate and Housing Pvt. Ltd., a company having its registered office at 28, Barakhamba Road, New Delhi 110 001 (builders)

The testatrix expressed the desire that after her death, house No. 11/5, Old Rajinder Nagar, should be reconstructed by all her sons and divided in the form of flats. The said intention is manifested from the following conditions:

It is my wish that after my death House No. 11/5, Old rajinder Nagar, New Delhi will be reconstructed by all my sons and after the re-construction, the property will be divided in the form of flats amongst my sons in the following manner:

a) Ground floor should go to my other son Mr. Anil Kumar Bhasin

b) First floor should go to my other son Mr. Vinod Kumar Bhasin

c) Second floor should go to my son Mr. Shyam Sunder Bhasin

d) Top floor with all roof rights to Mr. Vijay Kumar Bhasin.

If at all they construct the basement that will be property of all the four sons in equal shares.

The testatrix further went on to describe in some detail how reconstruction would be made and from what sources of income, assets etc. She further stated as follows:

However, the unit, details as referred to above, whether in the form of Master-gain, FDRs or shares etc, nominated in the names of my grand children shall remain in their names and the receipts of the same on maturity will be put or renewed whatsoever is possible at that time in the accounts of my grand children only under the guardianship of their parents either mother or father and nobody shall have any right, lien or interest over the same to use the said assets in the name of grand children for any other purpose. It is also my and my husband''s wish that out of the above said FDRs, units, jewellery, Rs. One lac shall be given to the Management of Khukhran Bhawan being constructed in Haridwar. This amount of Rs. One lac shall be given in the joint name of my husband & Brother in law with Rajinder Kumar Bhasin & Shri Ram Prakash Bhasin respectively, donated by Mrs. Raj Rani Bhasin.

Arguments were addressed on the first issue, i.e. entitlement of the parties to immovable properties in the Will. The parties stated that it is not possible to reconstruct upon the house and, therefore, the second part of the bequest, retaining the status quo in regard to occupation of the property and, on the one hand, the parties residing there and the devolution of interest concerning the Fixed Deposits and other movable assets to the second defendant has to operate. It was contended on behalf of the second defendant that this arrangement would necessarily mean that he is entitled to all the Fixed Deposit amounts, indicated in the will and in addition, would be entitled to the market value of an amount equivalent to one-fourth share in the immovable property.

Mr. Virender Sood, learned Counsel contended that the second defendant has a share in the said immovable property. Though it is not possible, at the moment, to reconstruct upon the same, the rights of the said second defendant have been preserved. Therefore, as and when the other brothers decide to reconstruct the property, the second defendant would necessarily get his share. Since this would lead to uncertainty, the only possible solution and reasonable construction of the Will would be to hold that the second defendant is entitled to equivalent in monetary terms, of one-fourth of the said property in addition to the value of the FDRs etc.

Counsel on behalf of the other parties, i.e. the plaintiff and the defendants other than the second defendant denied the submissions. It was urged on their behalf that the bequest was a clear one. The first option given to the legatees, i.e. sons, was to reconstruct the property. Even the manner for doing so is indicated. In the event of the first option becoming unfeasible and the sons not being agreeable to reconstruct upon the property, the occupiers/resident in the property were to get it absolutely. In lieu of his share, defendant No. 2 was entitled to the cash and fixed deposits lying in different bank accounts. The second defendant again now contends that he is entitled to a one-fourth share in the property and also the cash and securities; that was not the intention of the testatrix. If the parties had agreed to reconstruct upon the property within reasonable time after death of the testatrix and if such option were feasible in the first instance, the second defendant could certainly have claimed a share. However, he cannot get a share in the property on a later date and also enjoy the cash and security.

From the above narration, it is evident that two rival interpretations to the Will are given by the parties. On the one hand, the second defendant Vinod Kumar Bhasin, who is residing elsewhere, claims one-fourth share in the property whenever it is constructed, as well as the proceeds of the Fixed Deposit Receipts, National Savings Certificates etc. which belonged to the testatrix. This interpretation is disputed by other parties, all of whom contend that the title to the Old Rajinder Nagar property belongs to the plaintiff and the other defendants who are in occupation of it, and that the second defendant cannot get a one-fourth share in the absence of re-construction; he is entitled only to the monies in the Fixed Deposits, Saving Accounts, National Saving Certificates etc.

Section 82 of the Indian Succession Act states that the meaning of any clause in a Will has to be collected from the entire instrument and all parts of it are to be construed with reference to each other. In the decision reported as Navneet Lal alias Rangi Vs. Gokul and Others, the Court held inter alia that in construing the language of a Will, it is entitled to put itself into the testator''s armchair and is bound to bear in mind also other matters than merely the words used. The Court has, therefore, to consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense and so on. But all this, however, is solely as an aid to arriving at a right construction of the will. The Court also held that the true intention of the testator is to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. The Court clarified, however, that every disposition contained in the Will, to the extent, it is capable of given effect to, should be given effect to unless the law prevents such a course. This ruling has been subsequently followed in the other judgments (See Gopala Menon Vs. Sivaraman Nair and Others, Bajrang Factory Ltd. and Another Vs. University of Calcutta and Others,

On an application of the principle underlying Section 82 and the judgments of the Supreme Court, this Court has to give effect to the true intention of the Will, by transposing itself, if necessary, to the arm chair of the testatrix. The first part of the disposition bequeathing the immovable property, brings out the intention that in case the legatees to the property reconstructed it, all the sons of the testatrix were to get an equal share. The testatrix was, however, conscious of the probability of such a conditional bequest not materializing. She, therefore, provided an alternative that in case reconstruction were not possible, the occupants of the house would become the legatees, acquiring title to it and that the second defendant, i.e. Vinod Kumar Bhasin in such case would get the entire proceeds for Fixed Deposit Receipt, National Saving Certificates etc.

This intention appears to be categorical as it has been placed at the latter part of the Will. The testatrix also provided this as an alternative disposition in the event of lack of agreement between the existing occupiers of the house to construct it. Taken together the first part of the dispossession has to be read as conditional but limited in point of time. If the Court were to construe the first option in the abstract and without fixing any point in time, the bequest and the condition of reconstruction would be indefinite. A reasonable construction, therefore, would be that reconstruction as an option had to be either within reasonable period of death of the testatrix or reasonable period when the parties were to settle the issue of reconstruction. In this case, the first, i.e. reasonable period from the death could not have been applicable as the parties were fighting each other in multifarious litigations. Therefore, the second event, i.e. reasonable period from the date of settlement about the issue of reconstruction would apply.

Now there is no dispute that the present occupants of the property, i.e. the plaintiff and defendants No. 1 and 3 are not agreed to its reconstruction. It is not the defendant No. 2''s case either that they should be compelled to adopt that course. Therefore, in the absence of consensus as to the reconstruction of the structure, the second option becomes operative. In this Court, the Will clearly states as follows:

It is also possible that after my death all my sons do not agree to construct the house, then they will stay as they are staying in the same house and my other son, Vinod Kumar Bhasin, who is staying separately will get all proceeds on encashment of FDRs, NSCs etc. rather the whole of this amount on account of FDRs, NSCs and balance jewellery after distributing to my daughters will be the property of my son Vinod Kumar Bhasin so that justice is also done to him.

Regarding my Flat No. 9, 6th floor, Gopal Dass Bhawan, Bara Khamba Road, New Delhi which is at present on rent, it is my wish that the rent of this flat should go to my two daughters in equal shares namely Mr. Kiran Suri and Mrs. Sangita Sawhney. It is also my wish that after my death the ownership rights of the flat without any reservation shall be transferred in the names of these two daughters only as referred in this para and none else out of my sons or my grand children shall have any claim over the same.

The intention is crystal clear; Vinod Kumar Bhasin, the second defendant who is undeniably staying separately has to get all proceeds from the FDRs, NSCs etc. The intention to exclude him from the enjoyment of the immovable property in the absence of reconstruction is clear from the words "so that justice is also done to him". If the intention were that Vinod Kumar Bhasin would get the proceeds of FDR, NSCs as also his share in the property on a later date, the testatrix need not have used such expressions at all.

In view of the above discussion, this Court is of the opinion that upon a true construction of the Will since the parties have not agreed to reconstruct upon the property being 11/5, Old Rajinder Nagar, New Delhi, Vinod Kumar Bhasin, the second defendant, would be entitled to all the proceeds of the FDRs, NSCs and as far as enjoyment and the interest in the said immovable property concerned, it would devolve upon the plaintiff and defendants No. 1 and 3. The said issue is answered accordingly.

The second issue is regarding the entitlement of grand children, in terms of the Will to the shares/securities of which they are nominees. Here the question requiring decision is confined to the disposition as regards the Master Gain Units (UTI) 92 and 6 Years National Savings Certificates. The testatrix owned securities in the form of Master Gain Units, Shares, Life Insurance policies and Master Equity Plan, second year''s National Saving Certificates and the post office account, National Saving Certificates etc. In one part of disposition, the testatrix had indicated that the Units whether in the form of Master Gain, shares etc. are nominated in favour of the grand children:

...shall remain in their names and the receipts of the same on maturity will be put or renewed whatsoever is possible at that time in the accounts of grand children of Lt.Mrs. Raj Rani only under the guardianship of their parents either mother or father and nobody shall have any right, lien or interest over the same to use the said assets in the name of grand children for any other purpose.

It is contended that this disposition has to be respected and that Vinod Kumar Bhasin who is otherwise entitled to cash, FDRs and other amounts, cannot claim such specified securities.

It was contended on behalf of Vinod Kumar Bhasin, the second defendant, that the succeeding part of disposition naming him as heir, in FDRs, NSCs supersede the intention to bequeath anything in favour of the grand children and that all shares National Saving Certificates, securities, Fixed Deposit Receipts etc. would vest with him.

While dealing with the first issue, the Court had observed that it has to, wherever necessary, transpose itself in the arm chair of the testator to discern the true intention of the bequest. As early as, in 1963, in Pearey Lal Vs. Rameshwar Das, , the Supreme Court held that where there is some conflict in the will, the Court should reconcile it to give full effect to every word used in the document and an interpretation furthering such a result should be preferred to one which would have the effect of cutting down the clear meaning of the words used. It was also held that if one of the two reasonable constructions would lead to intestacy, that should be discarded favouring a construction which does not bring out any such hiatus. Similarly in Ramachandra Shenoy and Another Vs. Mrs. Hilda Brite and Others, , it was held that if there are two repugnant provisions conferring successive interests, the first interest creating interest being valid and the subsequent cannot take effect, the Court construing the Will should proceed to the farthest extent to avoid repugnancy so that effect is given to every testamentary intention as far as possible. This judgment and rule of construction was followed later in Kaivelikkal Ambunhi (dead) by LRs. and others Vs. H. Ganesh Bhandary, and also in Bajrang Factory Ltd.''s case (supra).

The seeming conflict in this case is whether all Fixed Deposit Receipts and amounts lying in various securities such as National Saving Certificates, Fixed Deposit Receipts, Units, Shares etc. would accrue to the second defendant. In the first part of the concerned disposition, the testatrix made a specific reference to Master Gain Units, of which nominees were, at the time the Will was made, her grand children. These have been described in the very first part of the movable property section. The latter section of the Will, dealing with the alternative bequest in favour of the Vinod Kumar Bhasin, (which was the subject matter of issue No. 1) states that he would get all proceeds on encashment of FDRs, NSCs etc. and all amounts in such accounts and items of jewelry after distributing them to the daughters would be his property. The question is whether the earlier intention to give the named securities to the grand children is superseded and whatever was in their name when the Will was made, would become the property of the said Vinod Kumar Bhasin.

If one applies the two cardinal canons of construction, referred to above, the Court is under a duty to attempt a reconcile, the seeming incongruent and conflicting provisions of a Will; it is also under a duty to avoid intestacy and adopt a construction that would not render one part of the Will meaningless. If these are to be kept in mind, the interpretation suggested by the second defendant, would undoubtedly lead to supersession of the first part which specifically deals with bequests in favour of the grand children.

Now, there is no dispute that all grand children were nominees of Master Gain Units (UTI) 92 Series. As many as eleven grand children have been named as existing nominees. The total number of Units shown is about 26,000. These grand children were nominees of 13,500 Units. The disposition favouring Vinod Kumar Bhasin specifically refers to "FDRs, NSCs etc." It also bequeaths to him the residue of interest after the named items are taken by the daughters. Although the reference of jewelry, to an extent widens the scope of dispossession in favour of Vinod Kumar Bhasin, an application of the two principles of construing a Will referred to earlier would result in giving effect to the specific disposition in favour of the grand children so far as it concerns Master Gain Units (UTI) 92 only. In other words, the "specific" reference to Master Gain Units (UTI) 92 in respect of the grand children nominees and the specific reference to FDRs, NSCs etc. reveals the intention of the testatrix that these specified items of movable property have to go to the respective persons named as their legatees. Thus, according to this Court, Vinod Kumar Bhasin, the second defendant would be entitled to all FDRs, NSCs, shares and other securities except the Master Gain Units(UTI) 92 in respect of which the eleven grand children were named as specific nominees. The legatees for those Units would be the grand children. The residue or balance quantity of Master Gain Units (UTI) 92 would have to devolve upon Vinod Kumar Bhasin.

It is, therefore, held that the second defendant is entitled to FDRs, NSCs, shares and all other securities except the Master Gain Units (UTI) 92 series units, standing in the name of grand children as nominees, whose particulars are disclosed in the Will. This issue is answered accordingly.

In view of the above findings and in view of the concession recorded by the parties accepting the admitting Will dated 3.5.1995, the properties have to be shared according to the Will, in the following manner:

a-1) The ownership right of flat No. 9, 6th Floor, G opal Dass Bhawan, Barakhamba Road, New Delhi shall be transferred in the names of Defendants No. 4 and 5 (daughter of late Smt. Raj Rani Bhasin) in equal shares and they would also be taken by Defendants No. 4 & 5. No other son or grand child of late Smt. Raj Rani Bhasin shall have any claim over the said flat;

a-2) One Lachhi Har weighing 53.320 gms shall fall in the share of Mrs. Sangita Sawhney (Defendant No. 5) who would be the exclusive owners thereof;

a-3) Two Karas weighing 33.500 gms shall fall in the share of Smt. Kiran Suri (Defendant No. 4) who would be the exclusive owner thereof;

b-1) Shri Shyam Sunder Bhasin (Defendnat No. 3) shall have the exclusive right to ground floor of house No. 11/5 Old Rajinder Nagar, New Delhi, where he is staying since before the death of late Smt. Raj Rani Bhasin and no other child or grand a child of late Smt. Raj Rani Bhasin shall have any claim over and in respect of the same;

b-2) Shri Anil Kumar Bhasin ( Plaintiff) shall have exclusive right to first floor of house No. 11/5 Old Rajinder Nagar, New Delhi, where he is staying since before the death of late Smt. Raj Rani Bhasin and no other child or grand child of late Smt. Raj Rani Bhasin shall have any claim over and in respect of the same;

b-3) The Legal heirs of Defendant No. 1 (Shri Vijay Kumar Bhasin), who are Mrs. Shashi Bhasin (widow of late Defendant No. 1), Shri Anshuman Bhasin and Shri Arjun Bhasin (sons of late Defendant No. 1), shall have exclusive right to the entire second floor of house No. 11/5 Old Rajinder Nagar, New Delhi, where they were staying since before the death of late Smt. Raj Rani Bhasin and no other child or grand child of late Smt. Raj Rani Bhasin shall have any claim over and in respect of the same;

c) All FDRs, Saving Accounts in Banks, NSCs, Master Units, LIC Policies, UTI Master equity plans certificates and other shares, debentures and securities and any increment in the above in the form of interest, dividend bonus, rights etc. The whole of jewelry, after what has been bequeathed and given to Defendants Nos. 4 & 5, as mentioned in paragraphs (a-2) and a-3) above and all other moveables of Smt. Raj Rani Bhasin including moveable properties lying in Trunks, Almirah etc. in the family House at 11/5 Old Rajinder Nagar and the items mentioned in the Inventory prepared by Local Commissioner in this suit; shall become the absolute and exclusive properties of Vinod Kumar Bhasin (Defendant No. 2) subject to the condition (d) concerning bequest to the grandchildren, of the 13,500 Master Gain - 92 Units. A sum of Rs. 85,000/- of late Smt. Raj Rani Bhasin lying with Shri Vinod Kumar Bhasin and some jewelry of late Smt. Raj Rani Bhasin lying with Shri Vinod Kumar Bhasin shall also become the exclusive property of Shri Vinod Kumar Bhasin (Defendant No. 2). The Court also directs the Financial Institutions and Banks to pay interest and any increment thereon to the financial instruments mentioned above.

(d) the right and beneficiary interest in the Master Gain Units (UTI) 92 concerning a total 13500 Units, of which the eleven nominees standing in the Will of Late Smt. Raj Rani Bhasin shall respectively devolving upon them to the extent indicated in the Will. The residue of interest in such Master Gain Units (UTI) 92 shall be the property of second defendant, Vinod Kumar Bhasin.

It is open to the parties to effectuate the terms of the above directions. The suit is partly decreed in the above terms. IAs 4689/2000, 8243/2007, 2883/2004, 5828/2000; and 1958/2008 stand disposed in the above terms.

CS(OS) 1007/2000

The suit has been partly decreed by a separate judgment today placed on the file.

List on 16th July, 2008 for further proceedings concerning other items of properties mentioned in the suit.