* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 25th April, 2020
9th May, 2019

+ CS(OS) 78/2016 IAs No.2362/2016 (u/O XXXIX R-12 CPC),
12095/2016 (u/O XXXIX R-2A CPC), 7917/2017 (of D-2 u/S 151
CPC), 15767/2018 (u/O VI R-17 CPC) 15768/2018 (u/O VII R-
14 CPC)

VICKRAM BAHL ANR ….. Plaintiffs
Through: Mr. Ravi Gupta, Sr. Adv. with
Jeevesh Nagrath, Mr. Sachin Jain,
Ms. Diya Kapur, Advs. with P-1 in
person.

Versus

SIDDHARTHA BAHL ANR ….. Defendants
Through: Mr. Anil Sharma and Mr. Sanjay
Agnihotri, Advs.
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

On 20th February, 2019, the following order was passed:

“1. The two plaintiffs have instituted this suit for permanent
injunction restraining the two defendants from dis-possessing
the two plaintiffs from the first floor and second floor along
with garage on the ground floor of property no.D-859, New
Friends Colony, New Delhi and from selling, alienating or
creating third party rights in the said property and for
mandatory injunction directing the defendants to hand
over/return back goods belonging to plaintiff no.1 taken by the
defendants from the Shop No.C-15, Hotel Crown Plaza Surya,
New Friends Colony.

2. The suit was entertained and summons/notice thereof
ordered to be issued and by an ex parte ad interim order dated

CS(OS) 78/2016 Page 1 of 37
19th February, 2016 the defendants restrained from dis-
possessing the plaintiffs and/or from interfering with the use by
the plaintiffs of the property and from selling the property. The
said ex parte order has continued till now and the application
for interim relief is also for consideration.

3. Though pleadings have been completed in the suit but IA
Nos.15767/2018 and 15768/2018 of the plaintiffs for
amendment of the plaint and for filing additional documents are
pending consideration and are for hearing today.

4. On enquiry, the counsel for the plaintiffs states (i) that
the plaintiff no.1 and the defendant no.1 are the sons of late
Wing Commander N.N.Bahl and defendant no.2 – Sundri N.
Bahl, and the plaintiff no.2 is the daughter of the plaintiff no.1;
and, (ii) that the Wing Commander N.N.Bahl and Sundri N.
Bahl were owners of the property No.D-859, New Friends
Colony, New Delhi and executed a Will dated 31st March, 2006
whereunder they bequeathed their respective share to the other,
(and) after the demise of both of them, to the two plaintiffs and
the defendant no.1.

5. The counsel for the plaintiffs contends that the cause of
action for this suit was, the claim of the defendant no.2 of
having become the sole owner of the property on the demise of
Wing Commander N.N.Bahl and being entitled to deal with the
property. It is further stated that after the institution of the
present suit, the defendant no.2 has also instituted a suit for
recovery of possession of the portions of the property in
possession of the two plaintiffs and which suit is pending before
the Court of Additional District Judge, Delhi.

6. I have enquired from the counsel for the plaintiffs that
since the defendant no.2 – Sundri N.Bahl is still alive, what is
the cause of action to the plaintiff, inasmuch as it is the settled
position in law that a will becomes operative only on the demise
of the testator/testatrix and prior thereto, notwithstanding the
Will, the beneficiaries thereunder have no right, title or interest
in the property. It is enquired, whether not since under the Will
of Wing Commander N.N.Bahl and defendant no.2 Sundri N.
Bahl, the share of the dying spouse was bequeathed absolutely

CS(OS) 78/2016 Page 2 of 37
to the surviving spouse and whether not the surviving spouse
i.e. defendant no.2 Sundri N. Bahl, as of today, is the sole
owner of the property.

7. The counsel for the plaintiff has first contended that the
defendants cannot dis-possess the plaintiffs forcibly.

8. As far as that apprehension is concerned, the defendant
no.2, by instituting the suit for recovery of possession, has
already indicated that she does not in fact intend to recourse to
unlawful and illegal means. The position can be further
clarified by either recording the statement of the counsel for the
defendants or by directing that the plaintiffs shall not be dis-
possessed save by due process of law.

9. The counsel for the plaintiffs has next contended that the
plaintiffs now want to amend the plaint to also include relief of
declaration that the defendant no.2 cannot execute a Will
contrary to the Will dated 31st March, 2006.

10. Though the counsel for the plaintiffs keeps on calling the
document dated 31st March, 2006 to be a ‘mutual Will’, but no
such nomenclature is found on the document and it is not
deemed appropriate to use the said nomenclature which may
have some legal connotations.

11. Counsel for the plaintiffs argues that merits of
amendments are not gone into at the stage of consideration of
application for amendment.

12. Undoubtedly so. However, if the cause of action itself for
the relief sought to be added by way of amendment has not
accrued, and the amendment is being sought without
considering that, this Court (can) certainly prevent its process
and time being wasted.

13. Attention of the counsels for the plaintiffs is also drawn
to Section 14 of the Hindu Succession Act, 1956 and it has been
enquired whether not thereunder also, besides under the
language of the Will dated 31st March, 2006, the share of Wing
Commander N.N.Bahl in the aforesaid property vests absolutely
in the defendant no.2 Sundri N.Bahl.

CS(OS) 78/2016 Page 3 of 37

14. I may also record that though the counsel for the
plaintiffs keeps on referring to the interest bequeathed to the
defendant no.2 Sundri N. Bahl as ‘life interest’ but the said
nomenclature also does not find mention in the Will and on the
contrary what has been recorded in the Will is that the right of
the dying spouse “shall rest with the survivor and no one else
shall have the right or interest in the share of the deceased
share”.

15. The counsel for the plaintiffs has drawn attention to
Navneet Lal alias Rangi vs. Gokul Ors., (1976) 1 SCC 630
but which is not a case of a mutual Will as the counsel for the
plaintiffs desires to call the Will dated 31st March, 2006 and
thus will have no application.

16. The counsel for the plaintiffs has next referred to
Dilharshankar C. Bhachech vs. Controller of Estate Duty,
Ahmedabad, (1986) 1 SCC 701 but in which case the surviving
spouse was the husband and the need to consider the
application of section 14 supra did not arise.

17. The counsel for the plaintiffs has next referred to Arun
Kumar and Anr. vs. Shriniwas Ors., (2003) 6 SCC 1998 but
in that case also the surviving spouse was the husband and
again the question of consideration of the application of Section
14 (supra) did not arise.

18. The counsel for the plaintiffs has lastly referred to
Raghbir Singh Ors. Vs. Budh Singh (1977) 13 DLT 196 but
the said judgment does not notice Section 14 (supra).

19. I am further of the prima facie opinion that as long as the
right of the plaintiffs against forcible dis-possession is
protected, the cause of action, if any to the plaintiffs for
challenging the alienation, if any, of the property by way of Will
or otherwise by the defendant no.2 Sundri N.Bahl will arise
only on demise of Sundri N. Bahl and not during her lifetime.
Attention of the counsels for the parties is drawn to Mahima
Vs. DDA 2014 SCC OnLine Del 3661, Jupudy Pardha Sarathy
Vs. Pentapati Rama Krishna (2016) 2 SCC 56, K.S.

Palanisami Vs. Hindu Community in General and Citizens of

CS(OS) 78/2016 Page 4 of 37
Gobichettipalayam (2017) 13 SCC 15 and Ranvir Dewan Vs.
Rashmi Khanna (2018) 12 SCC 1.

21. The counsel for the plaintiffs seeks adjournment to argue
further on the applications which were for hearing today.

22. It is deemed appropriate to grant adjournment.

23. List on 3rd April, 2019.”

2. The senior counsel appearing for the plaintiffs was further heard on
3rd April, 2019 and 9th May, 2019 and the counsel for the defendants has
also been heard.

3. It is deemed appropriate to set out hereinbelow in entirety the
document dated 31st March, 2006 admitted by all concerned to be the Will
of Wing Commander N.N. Bahl and the defendant No.2 Sundri N. Bahl:

“OUR WILL

1. I, We (1) Wing Commander N.N. Bahl (Retd.) aged over
73 years son of (Late) Shri Kundan Lal Bahl (2) Mrs.
Sundri N. Bahl aged over 67 years wife of Wing
Commander N.N. Bahl (Retd.) both residents of House
No.D-859, New Friends Colony, New Delhi-110065 and
at present in sound disposition of mind and body and in
enjoyment of proper sense without any threat or
persuation of any one but of our own accord and free will
declare this to be our last Will. All earlier Wills to be
treated as cancelled. This Will is being re-written on the
dictate of our conscience.

2. We are the joint owners of our House No.D-859, New
Friends Colony, New Delhi-110065 and it is our self
acquired house property.

3. We declare that when any one of us i.e. Wg. Cdr. N.N.

Bahl (Retd.) or Mrs. Sundri N. Bahl expires the rights
and interest of deceased in the said house property D-

CS(OS) 78/2016 Page 5 of 37

859, New Friends Colony, New Delhi-110065 shall rest
with the survivor no one else shall have the right or
interest in the share of the deceased share. However,
after the death of both of us the said above house
property No. D-859, New Friends Colony, New Delhi
shall be owned by our two sons Mr. Vickram Bahl and
Mr. Siddhartha Bahl and our grand daughter Miss
Saachi Bahl (age 131/2 years) daughter of our son Mr.
Vickram Bahl and these three will be absolute owners of
their respective shares as detailed here-in-below and they
shall have the right to own and use their respective
portions in the said property no. D-859, New Friends
Colony, New delhi-110065.

4. (a) Mr. Vickram Bahl shall be owner of the entire First
Floor of the main house building and adjoining
servant quarter on top of the garage office.

(b) Mr. Siddhartha Bahl will be the owner of the entire
Ground Floor of the main house building including
the garage office on the ground floor. The front
lawn and the set-back also belongs to him.

(c) Miss Saachi Bahl will be the owner of the entire
Second Floor of the main building, half built and
half un-built, and the servant quarter on the Second
Floor.

(d) The driveway, the inner staircase, the rear
staircase with bathroom under it and the terrace
(roof rights) of the entire building will be the joint
property of all three parties. Also the land
underneath the building (492 Square Yards) will be
common property of the three share holders. Note,
it will be prudent and advisable for all three
owners of the house No. D-859, New Friends
Colony, New Delhi, to have mutual consent for
hiring out or selling of their respective share, if
ever required.

CS(OS) 78/2016 Page 6 of 37

(e) Shop No. C-15, in Hotel Crowne Plaza Surya will
go to Mr. Siddhartha Bahl.

(f) Shop No. C-16, in Hotel Crowne Plaza Surya will
go to Mr. Vickram Bahl.

(g) The Office Flat No.407, at Nehru Place will go to
Mr. Vickram Bahl.

5. The Office Flat No.409 at 56, Nehru Place, will not go to
any one of the three share holders, it will be left to the
survivor i.e. Wg. Cdr. N.N. Bahl or Mrs. Sundri N. Bahl
to decide about it.

6. We direct that after our death our two sons Mr. Vickram
Bahl and Mr. Siddhartha Bahl and our grand daughter
Miss Saachi Bahl will be the joint executors of our this
Will. We expect that all concerned will respect our
sentiments expressed in our this Will.

IN WITNESS WHEREOF WE HAVE HEREUNTO SET
AND SUBSCRIBE OUR HAND AND SIGNATURE ON THIS
31ST DAY OF MARCH 2006 IN THE PRESENCE OF THE
FOLLOWING WITNESSES AND ALL OF US BEING
PRESENT AT THE SAME TIME AND PLACE.

WITNESSES : TESTATORS
1. Sd. 1. Sd.
2. Sd. 2. Sd.”

4. It is the case of the plaintiffs in the plaint, (i) that the aforesaid
document is in the nature of “mutual Will”; (ii) that the original Will must
be in possession of the defendants which the defendants are not disclosing to
the plaintiffs; (iii) that it appears to the plaintiffs that Wing Commander
N.N. Bahl and defendant No.2 Sundri N. Bahl made three copies of the
original Will and they have together made some changes in their
CS(OS) 78/2016 Page 7 of 37
handwriting; (iv) out of the three copies of the Will, two copies have been
earmarked in the name of the plaintiff no.1 and plaintiff No.2 respectively;

(v) that during the lifetime of Wing Commander N.N. Bahl, he disclosed to
the plaintiffs and defendant No.1 about the execution of the Will and that the
same had been kept in envelopes; and, (vi) that after two months of the
death of Wing Commander N.N. Bahl, the defendant No.2 Sundri N. Bahl
gave two copies of the Will earmarked in the name of the plaintiff No.1 and
plaintiff No.2 respectively to the plaintiffs.

5. The two defendants Siddhartha Bahl and Sundri N. Bahl have
contested the suit by filing a joint written statement pleading, (i) that the
defendant No.2 was the co-owner of property No.D-859, New Friends
Colony, New Delhi and on demise of her husband Wing Commander N.N.
Bahl on 3rd September, 2015 has become the sole and absolute owner of the
property; (ii) that Wing Commander N.N. Bahl and the defendant No.2,
during the lifetime of Wing Commander N.N. Bahl, executed a registered
Will dated 31st March, 2006; by virtue of the said Will, both Wing
Commander N.N. Bahl and his wife Sundri N. Bahl intended to give the
surviving spouse, rights, title and interest in the said property absolutely and
exclusively to the exclusion of all others; by the said Will, which is admitted
by all parties, the bequeathal of the property was absolute and unequivocal;
liberty was given to the defendant No.2 to enjoy the property in any manner
she liked, which shows that she was to become the absolute owner of the
property; no restrictions were put, which further shows that the property was
bequeathed absolutely by Wing Commander N.N. Bahl to his wife
defendant No.2 and the defendant No.2 became the absolute owner; (iii) that
the defendant No.2 also became the absolute owner of the estate in terms of
CS(OS) 78/2016 Page 8 of 37
Section 14 of the Hindu Succession Act; (iv) that it is the right of the
defendant No.2 to exercise her rights in respect of the property and it is the
defendant No.2 who can create a Will in respect of the property; (v) that the
property cannot be snatched from defendant No.2 on the basis of the Will
dated 31st March, 2006; (vi) that the original of the said Will is not with the
defendants as the same was taken by the plaintiff No.1 after the demise of
Wing Commander N.N. Bahl and the copy of the Will dated 31st March,
2006 which the plaintiffs have filed along with the plaint, are denied; (vii)
that there is no cause of action in favour of the plaintiffs and against the
defendants; (viii) that the suit for permanent injunction is barred by Section
41(i) of the Specific Relief Act, 1963; (ix) that the defendant No.2 and her
husband Wing Commander N.N. Bahl, since the construction of the property
in the year 1979, were living in the property and enjoying the same as their
residence along with their children; (x) that on the marriage of the plaintiff
No.1, he was allowed to stay on the first floor till found alternate
accommodation; (xi) that after the death of Wing Commander N.N. Bahl,
the plaintiff No.1, taking advantage of the emotional state of the defendant
No.2, got letters/documents executed, obtained signatures on blank papers,
allegedly to be submitted with Air Force for pension and withdrew amounts
on the pretext of making payment to authorities and also grabbed possession
of the first and second floors and garage in the property; (xii) that the suit
for permanent injunction is also barred by Section 41(h) of the Specific
Relief Act; since the plaintiffs are claiming rights under the Will dated 31 st
March, 2006, the remedy for obtaining probate thereof is available to the
plaintiffs; (xiii) that the property bearing Shop No.C-15, Hotel Crowne
Plaza Surya is exclusively owned and in possession of defendants No.12

CS(OS) 78/2016 Page 9 of 37
and the plaintiffs have no right therein; (xiv) that the property bearing Shop
No.C-15, Hotel Crowne Plaza Surya is jointly owned by plaintiff No.1 and
defendant No.2; (xv) that the younger son of the defendant No.2 i.e. the
defendant No.1, has been living in another premises; (xvi) that the market
rent of the first and second floors and garage occupied by the plaintiffs is
approximately Rs.1,50,000/- per month; (xvii) that the entire property was in
possession and occupation of defendant No.2 and her husband Wing
Commander N.N. Bahl and the use and occupation of the first and second
floors and garage of the said property by the plaintiffs is unauthorised;
(xviii) that the defendant No.2, on account of the harassment meted out by
the plaintiffs, has on 13th January, 2016 disowned the plaintiff No.1; (xix)
that the defendant No.1 has always been in good relations with his parents
and is in constructive possession of the entire property; (xx) that the plaintiff
No.1 owns Bungalow No.C-64, Friends Colony (East), New Delhi as well as
factory at A-13, Noida, U.P. but still refuses to vacate the subject house; the
said two properties were purchased from joint family incomes and
substantial amount was paid by defendant No.2 and her husband Wing
Commander N.N. Bahl, though in the name of plaintiff No.1, to make him
independent; (xxi) that the Will dated 31st March 2006 was in the knowledge
of the plaintiff No.1; (xxii) that there are no other Wills apart from the one
that was registered on 31st March, 2006; (xxiii) that the plaintiffs having
admitted the defendant No.2 as the absolute owner of the property, have no
cause of action in their favour; (xxiv) that it is the right of the defendant
No.2 to exercise rights in respect of the property and sale and create a Will
in respect of the property; (xxv) that under the Will dated 31st March, 2006,
the defendant No.2 is the absolute owner and the plaintiffs have no right in

CS(OS) 78/2016 Page 10 of 37
the property; and, (xxvi) that the plaintiffs are misinterpreting the Will dated
31st March, 2006; the said Will is very clear; the defendant No.2 thereunder
has become the owner of the property absolutely and exclusively; there was
no express or implied agreement, as suggested by the plaintiffs.

6. We are at this stage only concerned with the entitlement, if any of the
plaintiffs to the property in the lifetime of defendant No.2 Sundri N. Bahl.
If the plaintiffs are found to have none, the suit has to be dismissed. Even
otherwise, the handwritten changes even if any in the Will or the other
factual controversies raised are not germane to the matter for adjudication
i.e. (i) the entitlement of the plaintiffs to continue in possession of the
property; and, (ii) the entitlement of the plaintiffs to restrain the defendants
from selling alienating or creating third party rights in the property. The said
rights depend upon the interpretation in accordance with law of the Will
dated 31st March, 2006, the contents whereof as reproduced above and valid
execution, whereof are not in dispute. If the plaintiffs have no rights to the
property in presenti or during the lifetime of defendant No.2, the suit has to
be dismissed at the threshold and does not require any trial. On the contrary,
if the plaintiffs indeed have such rights, then also for the purposes of
granting the reliefs against dispossession and alienation, again no trial is
required.

7. The senior counsel for the plaintiffs has also drawn attention to:

(a) Letter dated 23rd December, 2015 purported to have been
written by defendant No.2 Sundri N. Bahl to the plaintiff No.1 as
under:

CS(OS) 78/2016 Page 11 of 37

“Dear Vickram,
I will not ever talk or think of demolishing, sale or
rebuilding any part of our house. We will live in our
home in peace and harmony as we have been in the past.
We will honour each other sentiments and the sentiments
that Papa and I have agreed upon.
Let us have love and faith and confidence in each other.

Sd.

Sundri Bahl
23.12.2015″

(b) Letter dated 24th December, 2015 purported to have been
written by defendant No.2 Sundri N. Bahl to the plaintiff No.2 Saachi
Bahl as under:

“Dearest Saachi,
I assure and promise you that you will always have the
entire second floor of the house D-859, NFC with one
third right in the ownership of the land and other one
third being with your father and the last one third being
with your uncle Siddhartha Bahl.
I assure you that NOBODY has the right to take away or
dispossess you of this right which is a gift and blessings
of your grand parents.

Sd.

Sundri Bahl
23.12.2015″

(c) Letter dated 25th December, 2015 purported to have been
written by defendant No.2 Sundri N. Bahl to the Commissioner of
Police as under:

CS(OS) 78/2016 Page 12 of 37

“25th December, 2015
To
The Commissioner of Police,
New Delhi
Copy to SHO, NFC.

I Sundri Bahl, would like to report that my son
Siddhartha Bahl, resident of 104-B, Maharani Bagh has
threatened to shoot and kill my other son and his family –
Vickram Bahl, his wife and children if I do not give a
portion of my property D-859, New Friends Colony
(Garage Office and front lawn) to him which my late
husband I had agreed to give the Garage Office to
Vickram Bahl for his exclusive use and the front lawn for
common use by all three 1/3rd partners mentioned in the
Will agreement namely Vickram Bahl, Siddharth Bahl
and Saachi Bahl.

I fear that he may carry out his threat and
therefore appropriate action must be taken urgently to
protect me and my son and his family from Siddharth
Bahl.

Thanking you,
Sd/-

Sundri N. Bahl.”

(d) Transcript of the conversation recorded on 26th December, 2015
between plaintiff No.1 and defendant No.2 Sundri N. Bahl inter alia
as under:

“VB: I’ve understood, okay okay…Get the provisions
that are signed in my name in the corrected copy of the
will. He wants them removed that the office and the front
yard should go to him.

CS(OS) 78/2016 Page 13 of 37

VB: And yesterday what happened, what provoked him to
say that he will shoot me? And this and that.

SNB: No no no…this he has been telling me…from the
beginning…

VB: No, I want to know only this that yesterday he
said…what did he say exactly you tell me…How did it
come about?

SNB: He asked me, because, the previous day, that is, day
before yesterday…I told him that I’ll go home and I will
convince them to…try and convince them to get this, and
I’m sure its not a very big thing…so they’ll agree to it. I
came back, and I asked you. You said, not an inch I will
spare.

VB: No. One second. You came back. You asked me and I
said, not an inch extra would I take from him or give
from him what is written in the will. Okay. Now listen to
me…and you told me, okay if it’s just that, I will take it as
a given to you. You told me that also. Am I right?”

8. Though the aforesaid, save for the writing and signature thereon to be
of defendant No.2, are also controverted but again what is to be seen at this
stage is, whether any of the aforesaid create any legal right in the plaintiffs
to the property or any part thereof, inasmuch as if they do not, even if are
proved to be correct, would be of no avail.

9. The senior counsel for the plaintiffs, in addition to the judgments
earlier cited by the counsel for the plaintiffs, has also drawn attention to
Krishna Kumar Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300,
Meera Dewan Vs. Shakuntala Dewan AIR 2002 Del 321, Shiva Nath
Prasad Vs. State of W.B. (2006) 2 SCC 757, Kuppuswami Raja Vs.

CS(OS) 78/2016 Page 14 of 37
Perumal Raja AIR 1964 Mad 291 and Ranvir Dewan Vs. Rashmi Khanna
(2018) 12 SCC 1.

10. The counsel for the defendants contended (a) that Wing Commander
N.N. Bahl has bequeathed his 1/2 undivided share in the house to the
defendant No.2, absolutely and without any restrictions and the defendant
No.1 is entitled to deal with the property in her absolute discretion; (b) that
the defendant No.2 has also become the absolute owner by virtue of Section
14(1) of the Hindu Succession Act; reliance was placed on Jupudy Pardha
Sarathy Vs. Pentapati Rama Krishna (2016) 2 SCC 56 and on Dilip D.
Chowdhari Vs. Maharashtra Executor Trustees (2010) 6 SCC 633; (c)
that the plaintiffs, under the Will dated 31st March, 2006 admitted by them
also, have no rights or share in the property at present; the plaintiffs are
however claiming rights in the property to the exclusion of the defendant
No.2 and in contravention of the Will dated 31st March, 2006 admitted by
them; (d) that the remedy if any of the plaintiffs is only after the demise of
defendant No.2; (e) attention is invited to paragraph 7 of the plaint; and, (f)
that the plaintiffs got the defendant No.2 to sign the letters filed by them,
taking advantage of the old age of the defendant No.2.

11. I have considered the contentions and also gone through the records.

12. I first proceed to discuss the literal interpretation of the document
dated 31st March, 2006 admitted by all concerned to be the validly executed
last Will of Wing Commander N.N. Bahl and defendant No.2. Thereunder,
Wing Commander N.N. Bahl and defendant No.2 Sundri N. Bahl, being
husband and wife, and of which Wing Commander N.N. Bahl is no more,
bringing into effect the Will insofar as he is concerned, and defendant No.2

CS(OS) 78/2016 Page 15 of 37
Sundri N. Bahl is alive, not bringing into operation the Will insofar as she is
concerned, have expressed (i) that when either of them expires, his/her
interest in house No.D-859, New Friends Colony, New Delhi “shall rest
with the survivor no one else shall have the right or interest in the share of
the deceased share”; (ii) that only after death of both of them, the house
shall be owned by the two plaintiffs and the defendant No.1, as delineated
therein; and, (iii) that there is no clause in the Will placing any restriction on
the right of the surviving spouse to deal with the share of the spouse in the
house inherited under the Will, in any manner deemed fit by the surviving
spouse; however, in the same Will, with respect to Flat No.409, at 56, Nehru
Place it is provided that it will not go to any of the three shareholders and it
will be upto the survivor i.e. Wing Commander N.N. Bahl or Sundri N. Bahl
to decide about it.

13. The question for consideration is, whether owing to Wing
Commander N.N. Bahl and defendant No.2 Sundri N. Bahl having executed
a single document as Will of both of them and therein, with respect to house
No.D-859, New Friends Colony, New Delhi in which both of them had
equal undivided share, having bequeathed their respective undivided share
to the survivor, without any restriction and having provided that after the
demise of both of them different portions of the house shall stand
bequeathed to the two plaintiffs and the defendant No.1, any restrictions are
to be read in the right of the surviving spouse to deal with the share of the
non-surviving spouse inherited under the Will.

14. Krishna Kumar Birla supra cited by the senior counsel for the
plaintiffs is the most widely published case of recent years and which made

CS(OS) 78/2016 Page 16 of 37
“mutual Will” a household nomenclature. However therein the Court was
concerned with the aspect of mutual Wills only to the extent, whether the
same creates caveatable interest in favour of the named executor, in probate
proceeding. The husband and wife therein had on the same day executed
separate Wills, with respect to their separate assets as well as with respect to
assets jointly held by them, and on identical terms, appointing each other
and certain others as executors of their respective Wills. Under the said
Wills, each had bequeathed their properties to the other and thereafter to
charitable trusts. It was held that (a) a Will, by its very nature is revocable;
it is the last desire of the testator; till his last breath, he will have a final say;
the latter Will revoking the earlier Will, will be probated; (b) despite the
existence of a mutual Will, the representative under the latter Will will take
the property; he however takes the property subject to the terms of the
mutual Will; (c) whether there exists any agreement enforceable either in
equity or by way of a suit for specific performance, will have to be
considered only in the event the probate is granted and not prior thereto; (d)
even when there is such an agreement and one party has died after departing
from it or revoking or altering the Will, the survivor having notice of the
breach, cannot claim to have the latter Will set aside since the notice gives
him the chance of altering the Will as regards his own property; the death of
the deceased party is sufficient notice for this purpose; (e) if however the
deceased has stood by the agreement and not revoked or altered his Will, the
survivor is bound by it and although probate will be granted of a latter Will
made by the survivor in breach of the agreement, since a Court of probate is
only concerned with the last Will, the personal representative of the survivor
nevertheless holds the estate in trust, to give effect to the provisions of the

CS(OS) 78/2016 Page 17 of 37
joint Will or mutual Wills; (f) mutual Wills may be contained in a joint Will
or in separate documents; (g) if the survivor, whether or not, after taking an
actual benefit under the arrangement, alters his Will, his personal
representative takes the property which is subject to the agreement, upon
trust to perform the contract; (h) a joint mutual Will, becomes irrevocable on
the death of one of the testators, if the survivor has received benefits under
the mutual Will and there need not be a specific contract prohibiting
revocation when the arrangement takes the form of two simultaneous Wills
but one single document; and, (i) if one single document is executed by both
the brothers using the expressions “our property”, “our present wishes”, “our
Will” and such similar expressions, it is strong cogent evidence of the
intention that there is no power to revoke except by mutual consent.

15. Meera Dewan supra was a suit filed by a daughter against her mother,
for declaration that the daughter had become the owner of the first floor of
the property by virtue of the mutual and companion Wills of the father of the
plaintiff and that the defendant mother was not entitled to sell, transfer or
alienate the property under the said Will. The father of the plaintiff, and the
defendant mother in that suit, were the joint owners of the property
comprising of ground and first floor, subject matter thereof, in equal share;
the father of the plaintiff as well as the defendant mother executed separate
Wills on the same day; in the Will of the father of the plaintiff, he
bequeathed his 50% interest in the suit property to the brother of the
plaintiff, subject to the right of residence in the ground floor of the said
property in favour of the defendant mother and the right to add by
construction, a second floor, to go to the sister of the plaintiff; the defendant
mother, in her Will, bequeathed the first floor to the plaintiff, subject to a
CS(OS) 78/2016 Page 18 of 37
right of residence in the first floor, to the father of the plaintiff. Deciding
the application for interim relief, it was held, that (i) if the two Wills
executed by the executants are mutual, before the death of one of them, the
agreement remains a contractual one, in consideration of mutual promises
and can be revoked by mutual agreement or even by unilateral breach giving
rise to, at the most, an action for damages; (ii) however after the death of
any one of the executants, both the Wills become operative and the other is
not entitled to revoke the Will thereafter; and, (iii) as per the dicta of the
Supreme Court in Dilharshanker C. Bhachech Vs. Controller of Estate
Duty, Ahmedabad (1986) 1 SCC 701, an agreement may appear from the
Will or may be proved outside the Will–for this purpose pre-dominant
intention of the executants at the time of execution is to be seen; finding,
that the executants of the two Wills were husband and wife and were joint
owners of the property in equal share and had one son and two daughters, it
was held that intention and agreement between the parents as to how the
respective shares in the property should be given to the three children, was
decipherable and while bequeathing the property in the aforesaid manner,
both had given the right of residence in the property to the surviving spouse.

16. Shiva Nath Prasad supra arose out of the same disputes as were
subject matter of Krishna Kumar Birla supra and out of complaint filed of
offences under Sections 120-B, 406, 417 and 420 IPC and in which
summons were issued and which order of summoning was upheld by the
High Court. While dismissing the appeal and finding it to be undisputed
that the Wills subject matter thereof were mutual Wills, it was held, (a) that
“mutual Wills and secret trust” are doctrines evolved in equity, to overcome
the problems of revocability of Wills and to prevent frauds; (b) that the
CS(OS) 78/2016 Page 19 of 37
doctrine of mutual Wills is to the effect that where two individuals agree as
to the disposal of their assets and execute mutual Wills in pursuance of the
agreement, on the death of the first testator, the property of the survivor
testator, the subject matter of the agreement, is held on an implied trust for
the beneficiary named in the Wills; (c) that the second testator may alter
his/her Will because a Will is inherently revocable, but if he/she does so,
his/her representative will take the assets subject to the trust; (d) that the
rationale for imposing a “constructive trust” in such circumstances is that
equity will not allow second testator to commit a fraud by going back on her
agreement with the first testator; (e) that since the assets received by the
second testator on the death of the first testator were bequeathed to the
second testator on the basis of the agreement not to revoke the Will of the
first testator, it would be a fraud for the second testator to take the benefit,
while failing to observe the agreement and equity intervenes to prevent this
fraud; (f) that in such cases, the instrument itself is the evidence of the
agreement and he that dies first, does by his act carry the agreement on his
part into execution; (g) that if second testator then refuses, he/she is guilty of
fraud, and can never unbind himself/herself and becomes a trustee; and, (h)
that such a contract to make corresponding Wills in many cases gets
established by the instrument itself as the evidence of the agreement.

17. Kuppuswami Raja supra also holds (i) that a joint and mutual Will
becomes irrevocable on the death of one of the testators, if the survivor had
received benefits under the mutual Will and there need not be a specific
contract prohibiting revocation when the arrangement takes the form of not
two simultaneous mutual Wills but one single document; (ii) that if one
single document is executed by two brothers using the expressions ‘our
CS(OS) 78/2016 Page 20 of 37
property’, ‘our present wishes’, ‘our Will’ and such similar expressions, it is
strong cogent evidence of the intention that there is no power to revoke,
except by mutual consent; (iii) that a Will is mutual when the two testators
confer upon each other reciprocal benefits as by either of them constituting
the other his legatee, that is to say, when the executants fill the roles of both
testator and legatee towards each other; but where the legatees are distinct
from the testators, there can be no position of a mutual Will; and, (iv) that in
the case of mutual Will, he that dies first carries out his/her part of the
contract into execution and the Court will not permit the other to break the
contract.

18. It thus follows that the principle of, a mutual Will coming into effect
and binding also the testator who may still be alive, on the death of one of
the two testators, is well enshrined in the Indian Law.

19. Mention in addition may also be made of K.S. Palanisami Vs. Indu
Community In General (2017) 13 SCC 15, also a case of joint and mutual
Will by husband and wife. Though it was held that the survivor could sell
the properties but on interpretation of the Will subject matter thereof to the
effect, that only the remainder of the estate was ultimately bequeathed to
charity.

20. The questions for consideration which thus arise are, (I) whether the
undisputed document dated 31st March, 2006, reproduced hereinabove and
subject matter of the present case, qualifies as a mutual Will and if so, the
effect thereof; and, (II) even if the aforesaid question is answered in favour
of the plaintiffs, the effect, if any of Section 14(1) of the Hindu Succession
Act thereon.

CS(OS) 78/2016 Page 21 of 37

21. I will first proceed to consider in the light of authoritative
pronouncements aforesaid, whether the document dated 31st March, 2006
supra, admittedly the validly executed last Will of Wing Commander N.N.
Bahl and the defendant No.2 herein, qualifies as a mutual Will. The said
Will insofar as house No.D-859, New Friends Colony, New Delhi, subject
matter of this suit is concerned, (i) provides that Wing Commander N.N.
Bahl and defendant No.2 were the joint owners thereof (in the absence of
any clarification that the shares therein of Wing Commander N.N. Bahl and
defendant No.2 were otherwise, in equal share); and contains their joint
declaration (ii) that when either of them expires, his/her 1/2 undivided share
therein “shall rest” with the survivor and no one else shall have the right or
interest in the share of the deceased spouse; (iii) that after the death of both
of them, (a) plaintiff No.1 Vickram Bahl shall be the absolute owner of the
entire first floor of the main house and adjoining servant quarter on the top
of the garage office; (b) defendant No.1 Siddhartha Bahl will be the absolute
owner of the entire ground floor of the main house including the garage
office on the ground floor, the front lawn and the setback; (c) plaintiff No.2
Saachi Bahl will be the owner of the entire second floor of the main house
and 1/2 built and 1/2 unbuilt servant quarter on the second floor; and, (d) the
two plaintiffs and the defendant No.1 will be the joint owners of drive way,
inner staircase, rear staircase with bathroom under it, roof rights and the land
underneath. The factum, of the subject house being the joint property of
Wing Commander N.N. Bahl and defendant No.2, in which each had 1/2
undivided share with each being the owner of each and every portion thereof
and neither being capable of willing away any particular portion thereof and
being capable of only bequeathing his/her undivided share therein, and the

CS(OS) 78/2016 Page 22 of 37
language used in the document dated 31st March, 2006 of, Wing
Commander N.N. Bahl and defendant No.2 jointly making a declaration
therein with respect to the subject house, in my opinion, leaves no matter of
doubt as to the agreement arrived at between Wing Commander N.N. Bahl
and defendant No.2, as to how the said house should be owned, after the
demise of both of them. As aforesaid, neither of them were capable of
bequeathing any specific portion of the property to any of their progeny, as
has been done under the document dated 31st March, 2006. By the said
document, they devised and bequeathed their respective 1/2 undivided share
to the surviving spouse, making the surviving spouse the sole owner of the
property and capable of bequeathing different portions thereof, as has been
done under the document dated 31st March, 2006. The document dated 31st
March, 2006 re ipsa loquitor contains the agreement and no outside
evidence is required. The defendants, in their joint written statement have
not taken any plea of the agreement being otherwise than as evident from
the language of the document dated 31st March, 2006 itself. Moreover, the
document being a Will, interpretation whereof is governed by the provisions
of the Indian Succession Act, 1925 (as recently held by me in judgment
dated 23rd April, 2020 in CS(OS) No.191/2016 titled Kamal Parti Vs. Smt.
Raj Kumar Parti) and there being no ambiguity or uncertainty of the
agreement between Wing Commander N.N. Bahl and defendant No.2, the
question of permitting any oral evidence also, does not arise, in view of
Sections 91 92 of the Indian Evidence Act, 1872. Once such an
agreement is found and the Will is found to be with respect to joint property
and the Will of Wing Commander N.N. Bahl and defendant No.2 is
contained in the same document, the same qualifies as a mutual Will.

CS(OS) 78/2016 Page 23 of 37

22. Once the defendant No.2 Sundri N. Bahl is found to have become,
instead of owner of 50% undivided share in the subject house, 100% owner
of the said house under the mutual Will of herself and her husband,
whereunder they have, after their demise, bequeathed separate portions of
the property to the two plaintiffs and the defendant No.1, the defendant No.2
Sundri N. Bahl, after the demise of her husband Wing Commander N.N.
Bahl, is not entitled to renege from her agreement with her husband Wing
Commander N.N. Bahl and is bound by the same. But for the said
agreement, Wing Commander N.N. Bahl would not have bequeathed his
50% undivided share in the property to the defendant No.2 Sundri N. Bahl.
The defendant No.2 Sundri N. Bahl accepted the said Will and after taking
advantage thereunder cannot deal with the property, contravening her
agreement with her deceased husband Wing Commander N.N. Bahl.

23. Though I was in the hearing on 20th February, 2019 swayed by the
50% undivided share of Wing Commander N.N. Bahl having been
bequeathed to defendant No.2 Sundri N. Bahl absolutely and without any
restriction, but find that the document dated 31st March, 2006, while
bequeathing the 50% share of the pre-deceasing spouse in favour of the
surviving spouse uses the word “rest” as distinct from the words “shall be
owned”, “will be absolute owners of their respective shares as detailed
hereinbelow” and “they shall have the right to own and use their respective
portions” used, while making the bequeath, after the demise of both, in
favour of the two plaintiffs and the defendant No.1. From such difference in
the language used, it is evident that the bequeath of the share of the pre-
deceasing spouse in favour of the surviving spouse was transitory i.e. till the
absolute bequeath in favour of the two plaintiffs and the defendant No.1,
CS(OS) 78/2016 Page 24 of 37
after the demise of both spouses. The language of the document thus is
ingrained with limitation in the rights of the surviving spouse.

24. Another doubt which plagued the undersigned during the hearing on
20th February, 2019, was with respect to the cause of action i.e. whether the
plaintiffs, during the lifetime of defendant No.2 could claim any right or
cause of action whereof had accrued to them. The said doubt is also found
to be unfounded in the light of the judgments cited by the senior counsel for
the plaintiffs. As per the said judgments, on the demise of Wing Commander
N.N. Bahl, the subject house is held by the defendant No.2 Sundri N. Bahl
in trust for the plaintiffs and/or the defendant No.1 and the plaintiffs, as the
beneficiaries of the said trust, would have a cause of action. Moreover, from
the tenor of the judgments, it is evident that the rights in favour of the
ultimate beneficiary under the mutual Will are crystalized on the demise of
either of the executants and during the lifetime of the other executant of the
mutual Will. Meera Dewan supra was also filed during the lifetime of the
surviving spouse. Reference may also be made to Jagan Singh Vs.
Dhanwanti (2012) 2 SCC 628 which was also a suit for injunction during
the lifetime of the surviving spouse who along with the other, who had since
died, had made a mutual Will. Resultantly it follows that the defendant
No.2 during her lifetime cannot sell, alienate, transfer or otherwise deal with
the property, so as to deprive the plaintiffs of what has been devised in their
favour under the mutual Will of their parents and the plaintiffs have a cause
of action in presenti to restrain the defendant No.2 from doing so. Though
the defendant No.2, as per judgments aforesaid would be entitled to make a
Will in contravention of the mutual Will but whosoever receives the

CS(OS) 78/2016 Page 25 of 37
property under the said Will of defendant No.2 would also be bound to the
plaintiffs in terms of the mutual Will.

25. The plaintiffs however besides seeking to so restrain the defendant
No.2, are also seeking to restrain the defendants from dispossessing the
plaintiffs from the portion of the property in their occupation. The question
is, whether the plaintiffs, during the lifetime of defendant No.2, are entitled
to continue in possession/occupation against the wish of defendant No.2.
The ownership of the portion of the property bequeathed under the mutual
Will in favour of the plaintiffs comes into effect only on the demise of
defendant No.2. On first blush, it appears that the defendant No.2, in
presenti being the owner of the property, is entitled to dispossessed the
plaintiffs. However, on further consideration and finding it to be the
admitted position that the plaintiffs, since the lifetime of Wing Commander
N.N. Bahl have been residing on the upper floors of the property and not
finding any provision in the mutual Will with respect to dispossession of the
plaintiffs therefrom and in the light of use in the mutual Will of the words
“shall rest”, I am of the view that the resting of the property in the defendant
No.2, after the demise of Wing Commander N.N. Bahl, even though to the
exclusion of his other heirs, is without any right to so dispossessed the
plaintiffs from what has ultimately been bequeathed to them. Though the
plaintiffs during the lifetime of defendant No.2 have no ownership or other
rights even in the portion ultimately bequeathed to them, so as to entitle
them to deal therewith but in the absence of any right found in favour of
defendant No.2 to so dispossess the plaintiffs, the plaintiffs are entitled to
permanent injunction against dispossession also, including through legal
process. Though the counsel for the defendants cited Dilip D. Chowdhari
CS(OS) 78/2016 Page 26 of 37
supra in this context and contended that therein specifically right to continue
in occupation had been conferred and which is not so in this case but I am
unable to agree. In the present case, owing to the peculiarities pointed out,
the plaintiffs even in the absence of any specific clause in the mutual Will
permitting them to continue in occupation, are found to be entitled to
continue in occupation.

26. I thus answer the first of the two questions framed in paragraph 20
hereinabove arising for adjudication in the present case, in favour of the
plaintiffs and against the defendants.

27. That brings me the second of the two questions aforesaid i.e. of
interplay of Section 14 of the Hindu Succession Act in the case of a mutual
Will. I have wondered whether, if Section 14(1) were to be applicable, the
restricted estate bequeathed by Wing Commander N.N. Bahl in favour of his
wife defendant No.2, enlarges into an absolute estate, defeating the mutual
Will.

28. Section 14 of the Hindu Succession Act is as under:

“14. Property of a female Hindu to be her absolute
property- (1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of
this Act, shall be held by her as full owner thereof and not
as a limited owner.

Explanation:-In this sub-section, “property” includes both
movable and immovable property acquired by a female
Hindu by inheritance or devise, or at a partition, or in lieu
of maintenance or arrears of maintenance, or by gift from
any person, whether a relative or not, before, at or after
her marriage, or by her own skill or exertion, or by
purchase or by prescription, or in any other manner

CS(OS) 78/2016 Page 27 of 37
whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this
Act.

(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any
other instrument or under a decree or order of a civil
court or under an award where the terms of the gift, will
or other instrument or the decree, order or award
prescribe a restricted estate in such property.”

29. Mulla’s treaties on Hindu Law, 23rd (2018) Edition sums up the
position with respect to Section 14, as (a) a most expansive interpretation to
the general rule enacted in sub-section (1) has been given; (b) sub-section
(2) must be read only as a proviso or exception to sub-section (1) and its
operation must be confined to cases where property is acquired for the first
time as a grant, without any pre-existing right, under a Will, the terms of
which prescribe a restricted estate in the property; (c) where the property is
acquired by a female Hindu in lieu of maintenance, it is in lieu of a pre-
existing right and such an acquisition would not be within the scope and
ambit of sub-section (2), even if the Will prescribes a restricted estate in the
property; (d) it depends on the facts of each case, whether the same is
covered by the first or the second sub-section; and, (e) sub-section (2) can
come into operation only if acquisition of the property is made without there
being a pre-existing right to the female Hindu who is in possession of the
property.

30. Thus, for the defendant No.2 Sundri N. Bahl to claim that
notwithstanding the restricted estate bequeathed to her under the Will of her
husband, she is the absolute owner of the property, it was incumbent on the
CS(OS) 78/2016 Page 28 of 37
defendant no.2 Sundri N. Bahl to plead that the subject property was
bequeathed to her in lieu of a pre-existing right. Without the defendant no.1
pleading so, she cannot claim absolute right to the property under Section
14(1).

31. However, neither does the undisputed document dated 31st March,
2006, being the joint and mutual Will of Wing Commander N.N. Bahl and
defendant No.2, provides that Wing Commander N.N. Bahl was
bequeathing his 50% undivided share in the subject house in favour of his
wife defendant No.2 Sundri N. Bahl for her maintenance nor has the
defendant No.2 pleaded so. Only a lip service has been paid to Section 14
of the Hindu Succession Act. Rather, from a bare reading of the mutual
Will of the defendant No.2 and her husband Wing Commander N.N. Bahl, it
is evident that the defendant No.2 Sundri N. Bahl was/is possessed of other
properties also. In the written statement also, the defendant No.2 Sundri N.
Bahl is disclosed to be the owner of Shops No.C-15 and C-16, Hotel Crown
Plaza Surya as well as of Office Flats in Nehru Place. For the defendant
No.2 Sundri N. Bahl to make out a case of pre-existing right of maintenance
against her husband Wing Commander N.N. Bahl, it was incumbent upon
her to plead so and to disclose all her assets and which has not been done.
Adverse inference against the defendants has to be drawn therefrom.

32. A pre-existing right is not a question of law alone but is a question of
fact. For the defendant No.2 to, notwithstanding having been bequeathed
the restricted estate (as is evident from use of the words “shall rest”, as
aforesaid), become an absolute owner under Section 14(1) of the Hindu
Succession Act, it was incumbent on defendant No.2 to plead that she was

CS(OS) 78/2016 Page 29 of 37
dependent on her husband Wing Commander N.N. Bahl for maintenance
and had no source of income or maintenance. Supreme Court, recently in
Ajit Kaur Alias Surjit Kaur Vs. Darshan Singh (2019) 13 SCC 70, finding
the widow in that case, to be though in possession but without any ‘pre-
existing right’ to the property, reiterated that she could not claim full
ownership under Section 14(1) of the Hindu Succession Act. I may in this
context notice that in the present case, the two plaintiffs admittedly during
the lifetime of Wing Commander N.N. Bahl also were in occupation of the
upper floors of the property and the ground floor was in occupation of Wing
Commander N.N. Bahl and the defendant No.2 and from a reading of the
mutual Will, there is no intention of the plaintiffs, after the demise of either
of the spouses, being removed from the upper floors, where they have been
residing or for making the same available for renting, to provide
maintenance to the surviving spouse, is not evident. Therefrom also, the
question of restricted bequest of Wing Commander N.N. Bahl of his 50%
undivided share in the house to the defendant No.2 to provide maintenance
for her is not borne out.

33. Even otherwise, I have in Mahima supra noticed the dichotomy of
views in dicta of the benches of equal strength in Sadhu Singh Vs.
Gurdwara Sahib Narike (2006) 8 SCC 75 on the one hand and
Jagannathan Pillai Vs. Kunjithapadam Pillai (1987) 2 SCC 572 and
Gulwant Kaur Vs. Mohinder Singh (1987) 3 SCC 674 on the other hand
and opted to follow Sadhu Singh supra, holding that:

A. Sadhu Singh, after analysing and interpreting the language of
Section 14(1) as well as the changes in Hindu Law upon the coming

CS(OS) 78/2016 Page 30 of 37
into force of the Hindu Adoptions and Maintenance Act, 1956 holds
Section 14(1) to be applicable only where the Hindu female is in
possession of the property on the date of commencement of the Hindu
Succession Act and not where the Hindu female comes into
possession of the property after the commencement of the said Act.
Per contra, Jagannathan Pillai on which the subsequent judgments in
Gulwant Kaur, Nazar Singh Vs. Jagjit Kaur (1996) 1 SCC 35 and
Santhosh Vs. Saraswathibai (2008) 1 SCC 465 taking a different
view are based, was a case where the widow though acquired a
limited estate from her husband was not in possession on the date of
coming into force of the Hindu Succession Act and repossessed the
property thereafter. It was in this context that the Supreme Court held
Section 14(1) to be applicable holding that the word “possessed” has
to be given a wide meaning. This peculiar fact of the widow in
Jagannathan Pillai having acquired the property prior to the
commencement of the Hindu Succession Act was not noticed in the
subsequent judgments supra holding that possession of the property
under Section 14(1) could be before or after the commencement of the
Act. In none of the said judgments the provisions of the Hindu
Adoptions and Maintenance Act and the changes brought about
thereby in the right of Hindu female to maintenance were also
noticed.

B. Section 14(1) carves out a difference between possession of the
property and acquisition of the property. Only the word “acquired” is
qualified with the words “whether before or after the commencement
of this Act”. Had the intention of the legislature been that a property
CS(OS) 78/2016 Page 31 of 37
acquired by a female Hindu, whether before or after the
commencement of the Act, shall be held by her as full owner and not
as a limited owner, there was no need to carve out a distinction
between possession and acquisition of the property. From such
distinction made out and from the intentional omission to qualify the
word “possessed” with the words “whether before or after the
commencement of this Act” the legislative intent of, for applicability
of Section 14(1), possession on the date of commencement of the Act
being essential is quite explicit.

C. All statutes particularly those governing and regulating human
relations are dynamic in nature and their interpretation, inspite of
societal changes, cannot remain static. Law cannot be a fossil. The
Supreme Court in Union of India v. Raghubir Singh (1989) 2 SCC
754 emphasized the need for adapting the law to new urges in society
and quoted with approval the Holmesian aphorism that the “life of the
law has not been logic, it has been experience”. It was further held
that in a developing society such as India, law does not assume its
true function when it follows a groove chased amidst a context which
has long since crumbled. Similarly in State of Punjab v. Devans
Modern Breweries Ltd. (2004) 11 SCC 26 it was held that a decision
although neither reversed nor overruled may cease to be law owing to
changed conditions and changed law, as reflected by the principle
“cessante ratione legis cessat ipsa lex”. In Bhuwalka Steel Industries
Ltd. v. Bombay Iron and Steel Labour Board (2010) 2 SCC 273 it
was reiterated that the trend of judicial opinion is that stare decisis is
not a dogmatic rule allergic to logic and reason; it is a flexible
CS(OS) 78/2016 Page 32 of 37
principle of law operating in the province of precedents providing
room to collaborate with the demands of changing times dictated by
social needs, State policy and judicial conscience. V. Tulasamma is a
judgment of a different era, the guiding principle whereof was the
Shastric Hindu Law and to convert, the limited ownership rights of
women who till then were clearly discriminated against insofar as
ownership of property was concerned, to absolute right. However
with the changing times and changing relationships particularly
between husband and wife it is felt that to adopt the interpretation of
Section 14(1) as in V. Tulasamma would be to the detriment of
wives. If such an interpretation were to be followed in today’s times,
husbands having differences with their wives would hesitate from
providing a separate residence for the wife for the fear of losing all
rights thereto and the said residence after the lifetime of the wife
going into the hands of her heirs. Similarly husbands owning property
would fear bequeathing a life estate therein to their wives.

D. The additional reasoning given in Nazar Singh of acquisition of
the property under a compromise being different from acquisition of
property under a Will owing to the Will being not mentioned in
Section 14(1), as aforesaid does not appear to be correct.

E. The plaintiffs in the Memorandum of Family Settlement expressly
agreed that the plaintiffs no.23 shall cease to have any right of
residence in the flat after their marriage and will not claim any
interest, right or title whatsoever in the flat and that the plaintiff no.1
shall also cease to have any right of residence in the flat if she

CS(OS) 78/2016 Page 33 of 37
remarries or resides at another place and that the right of residence of
the plaintiff no.1 in the said flat was for her life time only. The
plaintiffs further agreed that they shall not claim any right in future
over any property of the defendant no.2. The plaintiffs further agreed
that after the marriage of the plaintiffs no.23 it will be the defendant
no.2 who would be entitled to the rent of the third floor of the flat.
The plaintiffs presented the said Memorandum of Family Settlement
before the Court and before the Court also undertook to abide by the
terms conditions of the Settlement and not to file any claim,
petition, complaint or other proceeding against the defendant in any
Court of law. I have wondered whether not the very institution of the
present suit is in violation of the undertaking given by the plaintiffs to
the Court at the time of culmination of the earlier litigation and
whether the plaintiffs are entitled to do so. Though undoubtedly in
some of the judgments cited by the senior counsel for the plaintiffs
also the decrees had been passed in terms of the agreements entered
into (in Santhosh supra it was held that consent decrees must be
construed having regard to the well settled legal position) but at the
same time the Courts have held that such Family Settlements are to be
honoured, upheld and enforced. It is not as if in the earlier litigation
between the plaintiffs and the defendant no.2 any right of
maintenance or residence of the plaintiffs against the defendant no.2
had been established. The matter was still at large. It is well-nigh
possible that ultimately the plaintiffs may not have succeeded in any
claim for maintenance against the defendant no.2. It would be against
equity, in my opinion, to in such circumstances permit the plaintiffs to

CS(OS) 78/2016 Page 34 of 37
act in contravention of the Family Settlement and the undertaking
given by them to the Court in the earlier proceedings.

34. I have in Kamal Parti supra, after considering the judgments
subsequent to Mahima supra also including Jupudy Pardha Sarathy supra
referred to by the counsel for the defendants also, not found any reason to
take a different view than that taken in Mahima supra.

35. Ranvir Dewan supra referred to by me in the order dated 20th
February, 2019 holds (a) that Section 14(2) of the Act is confined to cases
where property is acquired by a female Hindu for the first time as a grant,
without any pre-existing right, under a gift, Will, instrument, decree, order
or award, the terms of which prescribe a restricted estate in the property; (b)
that where however property is acquired by a Hindu female at a partition or
in lieu of right of maintenance, it is in virtue of a pre-existing right and such
an acquisition would not be within the scope and ambit of Section 14(2) of
the Act, even if the instrument, decree, order or award allotting the property
prescribes a restricted estate; (c) that the husband in that case was the
absolute owner of the property and was free to bequeath his property to
anyone and had so bequeathed the property to his son and daughter; (d) that
at the same time he gave only life interest to his wife to live in the house
which belonged to his son and daughter; (e) that such disposition the testator
could make by virtue of Section 14(2) read with Section 30 of the Act; and,

(f) that such life interest was in the nature of “restricted estate” under
Section 14(2) of the Act which remained restricted till her death.

CS(OS) 78/2016 Page 35 of 37

36. The second question framed in paragraph 20 above qua Section 14 of
the Hindu Succession also is thus decided in favour of the plaintiffs and
against the defendants.

37. The plaintiffs, as aforesaid, are found entitled also to the relief of
restraining the defendants from dispossessing the plaintiffs from the first and
second floors of house No.D-859, New Friends Colony, New Delhi, which
under the mutual Will, had been bequeathed to the plaintiffs; however the
plaintiffs are not found entitled to continue in possession of the garage on
the ground floor, which under the mutual Will also, has not been bequeathed
to the plaintiffs. The plaintiffs, as aforesaid, are also found entitled to the
relief of permanent injunction restraining the defendants from dealing with
the property in contravention of the mutual Will aforesaid. However, as far
as the third relief claimed by the plaintiffs of return of goods is concerned,
the pleadings of the plaintiffs in that respect are found to be vague and no
case for return of the goods is made out. For the plaintiffs to be entitled to
mandatory injunction directing the defendants to return any goods, it was
incumbent upon the plaintiffs to plead that the compensation in money
would be inadequate. Else, specific performance in the form of mandatory
injunction with respect to movable assets cannot be granted in law. The
plaintiffs have not claimed the relief of recovery of value of the goods.

38. Resultantly, a decree is passed, in favour of the plaintiffs and jointly
and severally against the two defendants,

(i) of permeant injunction restraining the defendants from
dispossessing the plaintiffs, including through the process of law,
from the first and second floors of house No.D-859, New Friends

CS(OS) 78/2016 Page 36 of 37
Colony, New Delhi; however the plaintiffs are not found entitled to
any right with respect to the garage on the ground floor of the said
house; considering that the relief of injunction as well as the basis on
which the relief of injunction is granted to the plaintiffs, being
premised on equitable doctrine as aforesaid, it is further ordered that
the grant of relief of permanent injunction against dispossession from
the first and second floors of house No.D-859, New Friends Colony,
New Delhi is subject to the plaintiffs, within sixty days hereof
delivering peaceful vacant physical possession of the garage on the
ground floor to the defendant No.2; and,

(ii) of permanent injunction restraining the defendants from
transferring, selling or creating any third party right, title or interest in
house No.D-859, New Friends Colony, New Delhi.

The parties are however left to bear their own costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

APRIL 25, 2020
MAY 09, 2019
‘bs’

CS(OS) 78/2016 Page 37 of 37