REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1186  2009 (Arising out of SLP (C) No. 5272/2008)

Bhagwan Krishan Gupta …Appellant

Versus

Prabha Gupta & Ors. …Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Interpretation  of  a  Will  executed  by  one  Shri  Murari  Lal  Gupta,

predecessor-in-interest  of  the parties  herein falls  for consideration in this

appeal which arises out of a judgment and order dated 20th December, 2007

passed  by  a  Division  Bench  of  the  Delhi  High  Court  in  F.A.O.  (OS)

No.268/2006.

3. Murari Lal Gupta and Girdhari Lal Gupta were brothers.  A property

bearing No.C-11, Green Park Extension, New Delhi stood in the name of

Murari Lal Gupta (the testator).  A double storeyed building and a barsati

were constructed thereon.  The said property was the subject matter of the

Will.    

Appellant herein is one of the heirs and legal representatives of the

testator.  He filed a suit for partition in the original side of the Delhi High

Court.   The  said  suit  was,  in  view  of  the  issues  involved,  namely,

interpretation of the will, taken up for hearing on the basis of pleadings of

the parties.  A preliminary decree was passed, directing :

“(i) The plaintiffs together will  get 1/4th of the half share of the branch of Late Murari Lal Gupta;

(ii) The defendants Nos. 1 (a) and 1(b) shall together get 1/4th out of the half share of Late Murari Lal Gupta;

(iii) The defendants 2 & 3 shall each get 1/4th of the half share of Late Murari Lal Gupta;

(iv) The defendant Nos. 5 and 6 will each get 1/3rd of the half share of Late Girdhari Lal Gupta; and

(v) The defendant  Nos. 7 (a to f) together  get  1/3rd of  the half share of Late Girdhari Lal Gupta.”

4. The aforementioned order was passed on the following premise:

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“Considering the contents of paragraph 3 as also the contents of paragraph 5, I am of the opinion that the tenor of the will suggests that the property should  be  divided  equitably.   The  testator  has attempted  to  divide  it  equitably and to  put  such division  beyond  the  pale  of  controversy. However, for some odd reason, the division of the Second Floor  (Barsati  Floor)  has  not  been made out  in  clear  terms  and  this  has  resulted  in  the present dispute.”

5. An intra court appeal was preferred thereagainst.  It was dismissed in

limine.  However, a special leave petition was filed before this Court which

was  marked  as  Special  Leave  Petition  (C)   No.12350  of  2006.   Upon

hearing the parties, the appeal was allowed and the matter was remitted by

this Court by an order dated 27.04.2007, directing :  

“The  Division  Bench  of  the  High  Court,  in  our opinion has not dealt with the matter fully and in particular the construction of the Will executed by Shri  Murari  Lal  Gupta  which  in  our  opinion, deserved serious consideration.  We, therefore, set aside the impugned Judgment and remit the matter back  to  the  High  Court.   We would  request  the Division Bench of the High Court to consider the desirability  of  disposing  the  appeal,  keeping  in view the nature of the dispute between the parties, as expeditiously as possible and preferably within a  period  of  three  months  from  the  date  of communication of this order.”

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6. By reason of the impugned Judgment, the High Court has dismissed

the said appeal.   

7. Mr. Chinnasamy, learned senior counsel appearing on behalf of the

appellant, would submit :

(i) Both the learned Single Judge as also the Division Bench of the High

Court committed a serious error in passing the impugned judgment in

so far as they failed to notice the distinction between a ‘declaration’

and ‘bequest’ parts in the Will in mind.  Whereas paragraph 3  of the

Will contains a declaration on the part of the testator in regard to the

right of the parties, the actual ‘bequeath’ of the house has been made

in terms of para 4 thereof.

(ii) The  property  in  question  being  the  self-acquired  property  of  the

testator, the concept of family arrangement was not applicable.      

(iii) Right,  title  and  interest  in  the  property  as  well  as  the  possession

thereof having remained in the testator  throughout  and the  bequest

having  been  made  only  in  respect  of  the  first  floor  of  the  said

property,  the  learned  Single  Judge  as  also  the  Division  Bench

committed  a  serious  error  in  constructing  the  said  will  by  putting

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itself in the purported ‘arm chair’ of the testator, as the said doctrine

was not applicable in this case.   

8. Mr. Dalip Kumar Malhotra, learned Counsel appearing on behalf of

respondent No. 6 supported the contention of the learned counsel.

9. Mr.  K.S. Rana,  learned counsel  appearing  on  behalf  of  respondent

Nos.  4  and  5,   Mr.  S.N.  Bhatt,  learned  counsel  appearing  on  behalf  of

respondent Nos. 7 to 14 and Dr. Kailash Chand, learned counsel appearing

on behalf of respondent Nos. 1 to 3, on the other hand, would contend :

(1) Both the brothers  having contributed equally for acquisition  of the

land as also for the construction of the house thereupon were entitled

to equal share thereof.   

(2) In a case of this nature the High Court having put fair interpretation

of  the  will,  no  interference  therewith  by  this  court  is  warranted

particularly in view of the stand taken by both the brothers before the

Revenue Officer as also the affidavits affirmed by them.   

(3) ‘Family  settlement’  by  reason  of  the  said  will  having  not  been

questioned, appellant is estopped and precluded from raising the said

contention before this court for the first time.

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10. From the materials on record, it appears that the property belonged to

two brothers.  The land might have been acquired in the name of the testator

but  from the  declaration  made  in  the  will  as  also  the  other  documents

brought  on  record  by  the  parties,  it  is  evident  that  both  the  brothers

contributed equally thereto.   

11. Before, however, we consider the questions relating to interpretation

of the said will, we may notice the relevant part thereof.  

“That  at  present  I  am  absolute  legal  owner  of immovable  property  consisting  of  a  residential house C-11, Green Park Ext. New Delhi.16 which was  got  constructed  by  me  on  a  plot  of  land purchased  by  me  out  of  my  own  income  and sources.

I further declare that half of the cost of the plot in this land was paid to me by my deceased younger brother Sh. Girdhari Lal Gupta.  The construction of the building on the ground floor and the 1st floor and the barasati thereon was got done by me out of my own income and sources.

However, the half of the cost of construction was paid to me by my deceased younger brother.  As a family  settlement  it  has  been  agreed  that  the ownership of the ground floor of this house shall vest  in  my  four  sons  and  they  shall  have  its complete possession for their use and similarly the ownership  of  the  1st floor  of  this  building  shall vest in the members of the family of my deceased younger brother Mr. Girdhari Lal Gupta.

This arrangement has been agreed to by both the families and shall not be changed by any one of us

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except  when  necessary  by  mutual  consent  in writing by all concerned.

As regards share of my four sons in my aforesaid house I declare that they shall have equal shares of ownership  of  this  property  and  therefore  all  the four sons shall have equal rights for its use and its possession for all times.

I have also cash deposited in my saving A/c in the State Bank of India, Green Park, New Delhi and I declare  that  all  my four  sons  share  the  amount equally.”

12. A will is required to be construed like any other instrument.  Where

however, a doubt arises in regard to the intention of the testator, recourse to

the arm chair rule is invoked.  It is neither in doubt nor in dispute that for

the said purpose the conduct of the testator in regard to dealing with the

property in  question  would be admissible.   The fact  that  the property in

question stood in the name of the testator is not in dispute.  It, however,

stands  accepted  that  both  the  brothers  contributed  equally  not  only  for

acquisition of the said property but also raising constructions thereupon.   

13. To the Revenue Authority for the purpose of mutation in respect of

the premises in question, the testator issued a letter which reads as under :

“I,  Murari  Lal  Gupta  S/o   Late  Sri  Ganga  Ram hereby informed that I and late Girdhari Lal Gupta are real brothers from late Shri Ganga Ram, House No.  C-11,  Green  Park  Extension,  New  Delhi- 110016  is  owned  jointly  by  myself  and  my

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aforesaid brother Late Sri Girdhari Lal Gupta.  My share in the aforesaid house is one half i.e. ground floor and the other one half share i.e. Ist floor and Barsati  Floor  belongs  to  my  brother  late  Sh. Girdhari Lal Gupta.  The completion plan of the house  showing  the  details  is  enclosed  herewith. The share belonging to me has been shown in red whereas  the  share  belonging  to  my brother  Late Shri Girdhari Lal Gupta has been shown in green.

        It is requested that the division of property be  made  in  my  name  &  in  the  name  of  my brother’s  wife  Smt.  Subz  Kali  since  my brother has expired.  The house tax bill of the property be sent separately in future.”

14. An  application  for  mutation  was  also  filed.   The  said

application was affirmed by an affidavit of the testator which reads

as:

“I, Murari Lal Gupta son of late Shri Ganga Ram, aged  about  66  years,  r/o  C-11,  Green  park Extension, New Delhi, do hereby solemnly declare and affirm as under:

1.  That  I  and  Shri  Girdhari  Lal  Gupta  are  real brothers from the late Shri Ganga Ram.

2.  That House No. C-11, Green Park Extension, New Delhi, is owned jointly by myself and my aforesaid brother, Shri Girdhari Lal Gupta.

3.  That my share in the aforesaid house is one half and the other one half share belongs to my said brother, Shri Girdhari Lal Gupta.”

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To the same effect is the affidavit of the other brother namely Shri

Girdhari Lal Gupta:

15. It  is,  therefore,  evident  that  a  declaration  had  been  made  by  the

testator himself that for all intent and purport, Girdhari Lal Gupta had half

share  in  the  property  and  he  was  entitled  thereto.   As  a  declaration  in

derogation of his title has been made in the said Will by the testator, the

same would be a relevant factor for the purpose of construction of the Will.

A declaration was specifically made in the will in regard to contribution by

both the brothers in equal proportion not only in respect of Ground Floor

and the First floor but also barsati thereof.   

17. Although  when  a  property  is  a  self-acquired  one,  the  doctrine  of

family settlement stricto sensu may not be applicable but in a case of this

nature  where  both  the  brothers  declare  each  other  to  be  owners  of  the

property having equal share therein, an arrangement between them by way

of a family settlement is permissible in law.  Such a family settlement was

not only in relation to the title of the property but also in relation to the use

and possession thereof.   By reason of  the said ‘Will’,  therefore,  whereas

ownership of the ground floor vested in the four sons of the testator, the

ownership of the first floor vested in the members of the family of Girdhari

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Lal Gupta.  Barsati portion of the said house does not figure in the vesting

part of the said will.   

Paragraph 5 of the said will refers to the use and possession so far as

the share of the sons of the testator is concerned meaning thereby the same

would confine to the ground floor portion only.   

18. We may place on record that the learned senior counsel appearing on

behalf of the appellant very fairly stated that so far as the title of the sons of

Girdhari Lal Gupta in the first floor of the building is concerned, the same is

not disputed.  A family settlement, therefore, in our opinion, in a situation of

this nature was permissible.  The Will should be given a broad construction

keeping in view the special equity principle.   

In  Hari  Shankar Singhania  and Others v.  Gaur Hari Singhania  and

Others [2006 (4) SCC 658], this court has stated :

“Another  fact  that  assumes  importance  at  this stage  is  that  a  family  settlement  is  treated differently  from  any  other  formal  commercial settlement as such settlement in the eye of the law ensures  peace  and  goodwill  among  the  family members.  Such family settlements generally meet with approval of the courts.  Such settlements are governed by a special  equity principle where the terms are fair  and bona fide,  taking into account the well-being of a family.”

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19. When  there  is  a  family  settlement,  evidently,  technicalities  in  the

matter of construction should not be insisted upon.    

The effect  of  a family settlement  fell  for  consideration in  Ramdev

Food Products (P) Ltd. v. Arvindbhai Rambhai Patel and Others [2006 (8)

SCC 726], wherein it was categorically held :

“The MoU, for the purpose of these appeals, may be  treated  to  be  a  family  settlement.   It  is, however,  well  known  that  the  intention  of  the parties to an instrument must be gathered from the terms  thereof  examined  in  the  light  of  the surrounding  circumstances  (See  Sohan  Lal Naraindar v. Laxmidas Rahgunath).

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We  may  proceed  on  the  basis  that  the  MoU answers the principles of family settlement having regard to the fact that the same was actuated by a desire to resolve the disputes and the courts would not  easily  disturb  them  as  has  been  held  in  s. Shanmugam Pillai v.  K. Shanmugam Pillai,  Kale v.  Dy.  Director  of  Consolidation and  Hari Shankar Singhania v. Gaur Hari Singhania.”

Thus, if family settlement in relation to the property in question was

possible, in our opinion, the doctrine of ‘arm chair’ rule of construction was

applicable.

In Anil Kak v. Kumari Sharada Raje & Ors. [(2008) 7 SCC 695], this

Court held :

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37. The  testator’s  intention  is  collected  from  a consideration of the whole will and not from a part of  it.  If  two  parts  of  the  same  will  are  wholly irreconcilable, the court of law would not be in a position to come to a finding that the will dated 4- 11-1992 could  be  given  effect  to  irrespective  of the appendices. In construing a will, no doubt all possible  contingencies  are  required  to  be  taken into  consideration.  Even  if  a  part  is  invalid,  the entire document need not be invalidated, only if it forms a severable part. (See Bajrang Factory Ltd. v. University of Calcutta.)

In  Narendra Gopal Vidyarthi v.  Rajat Vidyarthi [2008 (16) SCALE

122], this Court held :

“29. The very fact that the testator categorically stated that the extent of title in the property will depend upon the amount of additional contribution required  to  be  made from the fund  of  Vidyarthi and Sons  itself  is  an indication  to  show that  his wish was that title should vest in the beneficiaries to the extent of the property which represented the amount of Rs.30,000/- out of the total amount of consideration required to acquire the same.  There cannot be any doubt whatsoever that his intention also was that the entire cash may not be paid to Chandramukhi  as  she  was  of  gullible  character. She could be made to part therewith by any other person  by  sweet  words.   A  precaution  was, therefore, required to be taken.  The amount was required  to  be spent  wisely.  The amount  which was required for their maintenance and education of appellant whether derived from the interest or from the rental only was to be handed over.  It is only for the aforementioned limited purpose,  the trust  was  created.   The  sole  beneficiary  of  the trust, in our opinion, was merely the appellant and

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his mother.  It may be true that the property was purchased in the name of the testator himself.  The High Court commented that the same could have been  done  in  the  name of  the  appellant  and his mother or at least the purchase could have been a joint one.  But the Will is required to be construed on  the  basis  of  the  terms  used  therein  and  not otherwise.”

Principles  of  construction  of  a  Will,  inter  alia,  are  laid  down  in

Sections 74 and 82 of the Indian Succession Act.  It is well settled that the

Will should be read as a whole and the surrounding circumstances may be

given effect to for the purpose of ascertaining the intention of the testator

from the words used and the surrounding circumstances wherefor the Court

will put itself in the armchair of the testator.  We, therefore, do not find any

legal infirmity in the impugned judgment.

20. For  the  reasons  aforementioned,  there  is  no  merit  in  the  case.

Accordingly, the appeal is dismissed with costs.  Counsel’s fee assessed at

Rs.25,000/- (Rupees twenty five thousand only).

…………………….J.      [S.B. SINHA]

…………………..…J.                    [V.S. SIRPURKAR]

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New Delhi; February 25, 2009

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