NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 113  OF 2002

Dilip D. Chowdhari & Anr.               ………….. Appellants

Versus

Maharashtra Executor & Trustee & Ors.   ………..Respondents

J U D G M E N T

H.L. Dattu, J.

      This appeal is directed against the judgment and  

order passed by the High Court of Bombay in Appeal No. 326  

of 2000, arising out of orders passed in Originating Summons  

No. 871 of 1999 dated 30.4.2001 in Suit No. 3659 of 1999.  

2)              The facts of the case in brief are as  

follows:

The  suit  property  is  a  residential  building  known  as  

‘Vandan’ having a ground and three floors situated at Ranade  

Road, near Shivaji Park, Dadar, Mumbai (hereinafter referred  

to as the `suit building’).  

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3)            The deceased, Shri Dattatraya Raghunath  

Chowdhari, the testator was the owner of the suit  

property having purchased the same under a registered  

sale deed from one Shri Kihimkar out of his personal  

earnings. At that point of time, it had only a ground  

and two floors.  The building also had two garages on  

the ground floor. The possession of the vacant second  

floor was given to the purchaser. The testator Shri  

Dattatraya constructed a third floor as a single unit  

with one common entrance, hall, toilet block, two bed  

rooms  and  a  separate  master  bed  room  with  toilet  

block attached to it. The testator had four sons-

Suryakant,  Ashok,  Dilip  (appellant)  and  Bapu.  In  

addition  to  that  the  testator  had  one  married  

daughter. Ashok got married in 1968. The appellant  

got married on 29.1.1974.  Bapu was a problem child  

and remained a bachelor. On the ground floor there  

are two tenants. On the first floor there are two  

tenants.  On  the  second  floor  there  are  two  

independent flats given out to Suryakant and his wife  

and Ashok and his wife respectively. The third floor  

was occupied by the deceased testator along with his  

wife Smt. Mainabai and the appellant. Bapu, who was  

the problem child was also given a separate room.  

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4)            Due to service exigencies, the appellant  

was required to shift to RBI official quarters at  

Byculla  with  his  family.  Meanwhile  a  second  son,  

Kaustubh  was  born  to  the  appellant  on  23.11.1981.  

After three months, the appellant’s family came back  

and stayed at the suit property on the third floor.  

The testator executed his last Will, by which right  

of  residence  was  given  to  his  wife  and  right  of  

occupation was given to his four sons. Suryakant and  

Ashok  were  given  an  independent  flat  each  in  the  

second floor. One room in the third floor was given  

to Bapu. The rest of the third floor was kept for  

occupation  of  the  testator,  his  wife  and  the  

appellant.  

5)          The Will was duly probated by the executors  

namely,  Maharashtra  Executors  and  Trustees  Company  

Limited, a company formed under the Companies Act,  

1956,  having  its  registered  office  at  Lok  Mangal,  

1501, Shivaji Nagar, Pune having its branch office at  

Bombay, (respondent no.1). According to the contents  

of the Will, the wife of the testator will have the  

right of residence in the house till her life time.  

In addition to that she will be entitled to 30% of  

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the income of the movable property of the testator.  

The remaining 70% income of the movable property of  

the  appellant  will  be  divided  and  paid  by  the  

executors  to  his  four  sons  and  one  daughter.  The  

share of Bapu would go to the trust created for his  

benefit. The ultimate and equal beneficiaries of the  

suit  property  are  the  four  grand  children  of  the  

testator,  namely,  Rajesh,  Arjun,  Vikram  and  Ojas.  

They will be entitled to this right only when Ojas  

attains 21 years of age. During that period, they  

will  be  entitled  to  only  the  income  of  the  suit  

property.  The  property  will  overall  be  under  the  

control of the trust company.

6)            Shri Dattatraya Raghunath Chowdhari - the  

testator  died  on  23.02.1982.  On  30.06.1997,  Ojas,  

Appellant’s son, who was born on 30.06.1976, attained  

21  years  of  age  and,  accordingly,  the  trusteeship  

came to an end. As there was a dispute between the  

respondents  and  the  appellants  regarding  the  

occupation of the suit building, the executors of the  

Will filed Originating Summons No. 871 of 1999 under  

Rule 238 of the High Court (Original Side) Rules. The  

appellant was arrayed as defendant no.5 in the said  

Originating Summons.  The widow of the testator was  

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arrayed as defendant no.1, whereas Suryakant, Bapu  

and Ashok were arrayed as defendants nos. 2, 3 and 4  

respectively.  The  grandchildren  of  the  testator,  

namely, Rajesh, Arjun, Vikram and Ojas were arrayed  

as defendants nos. 6, 7, 8 and 9 respectively. The  

daughter  of  the  deceased,  Kumudini  was  arrayed  as  

defendant no. 10. The executors sought interpretation  

of certain covenants of the aforesaid Will and the  

determination of certain questions that had arisen in  

the  administration  of  the  Will.  The  

executors/plaintiff stated that till 1998, there were  

no differences and disputes between the defendants in  

respect of the use and enjoyment of the property as  

administered by the plaintiff from time to time. The  

plaintiff further contended that defendant no.5 who  

had sometime in the year 1976, had left the suit  

building and gone to stay in the RBI staff quarters  

and  upon  returning  insisted  upon  occupying  and  

staying in the entire 3rd floor except for one room  

allotted to defendant no.3, wherein disputes arose  

between the widow of the testator and the two sons as  

to  who  should  be  in  the  exclusive  and/or  joint  

possession  and  enjoyment  of  different  portions  

comprised in the 3rd floor. Disputes according to the  

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plaintiff also arose on the attainment of 21 years of  

age by Ojas, whereby the grand children would now  

become entitled to partition and division of the suit  

building. The plaintiff also contended that certain  

correspondence had ensued between defendants nos. 1,  

3 and 5 on the one hand and the plaintiff on the  

other as the defendants nos. 1, 3 and 5 have been  

interpreting  the  clauses  in  the  said  Will  in  the  

manner  suited  to  each  one  of  them.  The  plaintiff  

essentially contended that disputes as between the  

legatees have also arisen pertaining to the scope and  

interpretation of the clauses of the said Will such  

as  the  sharing  of  the  income  of  and  from  the  

movables, the rights of the ultimate beneficiaries  

regarding the partition of the property by metes and  

bounds and the transfer and conveyance of the said  

property or in terms of partition by metes and bounds  

to be followed by such transfer and conveyance, the  

period for which the defendants nos. 2 to 5 would be  

entitled to occupy the tenements on the 2nd and 3rd  

floors  and  the  ultimate  beneficial  vesting  of  the  

movables.  Several  questions  were  framed  for  

determination by the High Court.  But for disposal of  

the appeal, it is sufficient to notice only question  

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No. ( C ) in the Originating Summons. It is as under  

:  

“(a)      Whether it would be correct to state that the  

defendants nos. 1, 3 and 5 are entitled to use, occupation  

and  residence  of  the  3rd floor  of  the  building  ‘Vandan’  

described in Exhibit ‘C’ hereto in the following manner:

(i)    Defendant no.3 - Right hand side front room.

(ii)  Defendant no.5 - Right hand side last room with a  

right to joint use of   bath and toilet.

(iii)  Defendant no.1 - The whole of the remaining area with  

a right  to exclusive use of other bath and toilet.

(b)      If answer to query no. C(1) is in the negative,  

what is the manner in which the defendants 1, 3 and 5 are  

entitled to the exclusive/joint use of the areas comprised  

in the 3rd floor of the building ‘Vandan’;

(c)    Whether the right of residence as conferred by the  

Will on the defendants nos. 1 to 5 in respect of the 2nd and  

3rd floors  of  the  building  ‘Vandan’  is  inheritable  co-

terminus with the death of the defendant no.1 or on the  

attainment of 21 years of age by defendant no.9;

(d)      Whether on Mr. Ojas, i.e., the defendant no.9  

attaining 21 years of age shall in any manner affect the  

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right  of residence  conferred upon  the defendant  no.1 and  

defendants nos. 2 to 5.

7)           The High Court by its judgment and order  

dated 07.12.1999, has answered the questions raised  

in the suit. The Single Judge of the High Court of  

Judicature at Bombay concluded as regards question  

‘A’ that on the grand son Ojas, completing 21 years,  

no separate transfer of property would be necessary  

in favour of all the four grand children and as per  

the Will of the Testator, the property should vest  

with them.  As regards question ‘B’ part (a) and (b)  

it was stated that the question would not arise as  

the answer to question ‘A’ was in affirmative and,  

therefore, the occupancy rights of defendants Nos. 1  

to 5 will remain intact till their death. The Single  

Judge  further  stated  the  answers  to  part  (a)  of  

question ‘C’ in the affirmative and stated that part  

(b) and (c) were invalid in the light of answer to  

question ‘A’. The answer to ‘D’ was that the share  

out  of  70%  immovable  property  of  any  of  the  

defendants Nos. 2 to 5 and 10 in case of their death  

will pass on to the heirs under the Hindu Succession  

Act.  The  answer  to  question  ‘E’  was  given  in  

negative.   

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8)            The appellant is mainly aggrieved by  

answer in the judgment to the question `C’ part (a)  

(ii) whereby the appellant’s right to use and occupy  

the third floor of the suit building in terms of the  

Will of the testator was restricted to only one right  

hand side last room with a right to jointly use with  

the  wife  of  the  testator,  Ms.  Meenabai  Dattatraya  

Chowdhari, the bath and toilet. Being aggrieved by  

the aforesaid order of the learned Single Judge, the  

appellant preferred  Appeal No. 326 of 2000 before  

the  Division  Bench  of  the  High  Court  of  the  

Judicature at Bombay. The Division Bench dismissed  

the appeal.    

9)         Being aggrieved by the judgment of the  

Division Bench of High Court dated 30.04.2001, the  

appellant has come before this Court seeking special  

leave to appeal.

10)           We have heard the learned counsel for the  

parties and we have also perused the Will executed by  

the testator and the sketch of the premises which is  

in dispute.  

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11)            The testator – Shri Dattatraya executed  

his last Will, by which right of residence was given  

to his wife and right of occupation was given to his  

four  sons  by  giving  one  independent  flat  each  on  

second floor to Shri Suryakant and one flat to Shri  

Ashok.  The rest of the third floor except one room  

which was given to Bapu, was kept for occupation for  

himself, his wife and the appellant and his family.  

The  Will  specifically  provides  that  the  ultimate  

beneficiaries  of  the  entire  building  are  the  four  

Grand sons, namely, Rajesh, Arun, Vikram and Ojas.  

Since the right of occupation was given to all the  

four sons, during their life time the Grand sons are  

not entitled to the joint or separate possession and  

only after the death of all the four sons, the Grand  

sons will be entitled to joint/separate possession of  

the suit property.  

12)            After the death of the testator, there was  

dispute between the appellant and other respondents  

regarding occupation of the third floor of the Suit  

building.  It  is  this  dispute  which  required  the  

executors of the Will to file Originating Summons No.  

871 of 1999 before the Bombay High Court, inter alia,  

seeking interpretation of certain covenants of the  

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Will and also determination of certain questions that  

had arisen therein in the administration of the Will.  

In the High Court, both the learned single Judge and  

the  Division  Bench  by  adopting  a  highly  

hypertechnical  approach,  have  given  a  very  narrow  

interpretation of the contents of the Will and have  

restricted the appellant’s right to use and occupy  

the third floor of the Suit building to only one  

right hand side last room with a right to jointly use  

the bathroom and the toilet with the widow of the  

testator.   After  carefully  perusing  the  sketch  

produced by the appellant before this Court, which is  

not disputed by the other side  and also keeping in  

view the bare necessity of middle class family, we  

are unable to subscribe to the view expressed by the  

learned Judges of the Bombay High Court.  In order to  

do  complete  justice  to  the  parties,  who  are  none  

other  than  the  testators  own  sons,  while  setting  

aside  the  impugned  judgment,  we  hold  the  first  

appellant has the right of occupation of the third  

floor of the Suit building along with wife of the  

testator.   

13)           With the above observation and direction,  

the  appeal  is  allowed.   In  the  facts  and  

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circumstances of the case, parties are directed to  

bear their own costs.

…………………………………J.  [ P. SATHASIVAM ]

…………………………………J.  [ H.L. DATTU ]

New Delhi, April 29, 2010

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