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CASE NO.: Appeal (civil)  1520-1522 of 2004

PETITIONER: GURSWAROOP JOSHI                                                   

RESPONDENT: BEENA SHARMA & ORS.                                       

DATE OF JUDGMENT: 25/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

A Will was executed on 3.1.1980 by one Harbans Lal Joshi.  He  passed away on 5.3.1981 leaving behind the following heirs and legal  representatives:

I.      Smt. Pushpawati Joshi, widow. II.     Late Shri Basant Kumar Joshi (deceased son of  Shri H.L. Joshi) through:

(1)     Smt. Chandrakala Joshi widow of Shri  Basant Kumar Joshi. (2)     Gunjan Joshi d/o Shri Basant Kumar Joshi. (3)     Siddarth Joshi s/o Shri Basant Kumar Joshi.

III.    Dr. Sahib Swarup Joshi s/o Shri H.L. Joshi.

IV.     Shri Gurswarup Joshi s/o Shri H.L. Joshi.

V.      Shri Prem Swarup Joshi s/o Shri H.L. Joshi.

VI.     Smt. Beena Sharma d/o Shri H.L. Joshi.

VII.     Smt. Shanti Devi d/o Shri H.L. Joshi

In 1984, the 1st respondent herein filed an application purported to be  under Section 276 of the Indian Succession Act, 1925 (’the Act’, for short)  for grant of probate in respect of the said Will.  Objections were filed  thereagainst.  By an order dated 28.2.1996, the learned Additional District  Judge, Delhi held that the said Will executed by the afore-mentioned  Harbans Lal Joshi, was valid in law and had been executed by him in sound  disposing mind.  The prayer for grant of probate as made by the 1st  respondent was, therefore, allowed.  The widow of Shri Harbans Lal Joshi,  Smt. Pushpawati Joshi, respondent No.2 \026 Smt. Chandra Kala Joshi, widow  of deceased B.K. Joshi s/o Harbans Lal Joshi and respondent No.7\026Dr.  Sahib Swarup Joshi preferred an appeal against the said judgment and order  dated 28.2.1996 before the Delhi High Court.  It was registered as  F.A.O.No.248 of 1996.  Smt. Pushpawati, the widow of Late Harbans Lal  Joshi died on 12.1.1999.  The appellant herein filed an application for her  transposition and/or substitution as an appellant in place of Late Pushpawati.   The said application has been rejected by the Registrar of the Delhi High  Court.  One of the appellants in the said appeal, namely, Dr. Sahib Swarup  Joshi moved an application for withdrawal from the said appeal and his  name was deleted from the array of the appellants and was transposed to the  category of a respondent.  

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It is not in dispute that certain stipulations made in the said Will are  vague.  The parties found it difficult to work out the said Will.   

A learned Single Judge of the Delhi High Court noticed the said fact  in an order dated 6.2.2003.   

It is also not in dispute that various Interlocutory Applications were  moved before the learned Judge hearing the matter.

By the afore-mentioned order dated 6.2.2003, the learned Judge  opined:

"Since there is an unusual clause in the Will  couched in a slightly vague words, arguments on the  point that what shall be the effect of such a clause in a  Will, which cannot be implemented on account of  unwillingness of a person in a reasonable time, who has  just accepted an onerous will to raise the construction.  It  may be part and parcel of the Will.

Appellant No.4 Sahib Swaroop Joshi shall remain  present in person for it appears that he is responsible for  causing the problem by not constructing his portion.   This court may be inclined to stuck off his defence in  case he fails to appear to answer specific question about  the date when he intends to construct his portion.  If he is  not ready to construct, then the counsel for all parties  shall take this aspect into consideration while making  written submissions."

Interim orders were also passed on 13.3.2003 and 20.3.2003.  In the  latter order it was directed:

"The  appellant and other respondents being bound  by the terms of the will are restrained from raising any  objection to the sanctioning of the plan by respondent  No.5 which will be submitted by the respondent No.5 in  terms of the order dated 13th March, 2003 and in terms of  the will of the deceased Shri Harbans Lal Joshi.  The  other parties to the will excepting Shri Gurswaroop Joshi,  respondent No.2, can also apply to get the plan  sanctioned for raising construction, in respect of their  portion.  Shri Gurswaroop Joshi failed to pay the amount  in terms of the will and not willing to pay now at the  market rate to compensate his brothers etc.  As such he  cannot be permitted as consequences of non-payment  have come into effect.  However, the MCD is supposed  to sanction plan in accordance with rules."

The contention of Ms. Sandhya Goswami, learned counsel appearing  on behalf of the appellant is that by reason of interim orders, vested right of  a party cannot be taken away.  It was urged that having regard to the order  dated 6.2.2003, as it was clearly opined that the terms of the Will was vague  and this was void on the ground of uncertainty, the same could not have  been directed to be enforced by reason of interim orders, particularly, when  the appeal as against the order granting probate in respect of the Will is still  pending.

The learned counsel appearing on behalf of respondent Nos.2, 3, 5 and  6 supported the contention of the appellant.   

Mr. L.D. Adhlakha, the learned counsel appearing on behalf of the 1st

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respondent, on the other hand, would submit that the appellant herein having  accepted the genuineness of the Will in the Court of the Additional District  Judge, now cannot turn round and question the validity thereof.  It was urged  that the appellant was neither an appellant, nor any order had been passed  against him and, thus, this appeal should be dismissed.   

It is not in dispute that the legality or otherwise of the judgment of  learned Additional District Judge, directing grant of probate in respect of the  Will dated 3.1.1980 executed by Late Shri Harbans Lal Joshi, is in question.   The said appeal has been entertained by the High Court.  It is, therefore,  required to be disposed of on merit

The contents of the said Will are alleged to be vague.  Whether the  terms stipulated therein are capable of being implemented, would be a  matter of construction of the Will at the hands of the High Court.  The High  Court, therefore, was first required to determine the validity or otherwise of  the said Will.  Sections 81 and 89 of the Indian Succession Act read thus:

"81.    Extrinsic evidence inadmissible in case of  patent ambiguity or deficiency.-Where there is an  ambiguity or deficiency on the face of a will, no extrinsic  evidence as to the intentions of the testator shall be  admitted.

xxx                     xxx                     xxx              

89.     Will or bequest void for uncertainty.-  A  will or bequest not expressive of any definite intention is  void for uncertainty."     

  Thus, if the contents of the Will are found to be vague despite the  genuineness thereof, the grant of probate in favour of the 1st respondent may,   ultimately, be declined.  It is in that view of the matter, the High Court must  be held to be not justified in passing interim orders in mandatory form in  terms of which not only the appeal preferred by the respondent Nos.2, 3, 5  and 6 herein would become infructuous, the parties would also be forced to  give effect to the provisions of the said Will, although, they may have  reservations in relation thereto.  Grant of mandatory injunction on the afore- mentioned premise, in our opinion, therefore, suffers from manifest error.   [See Union of India & Ors. vs. Modiluft Ltd. (2003) 6 SCC 65, Para 11  and Srikrishna & Ors. vs. Aniruddha Singh & Ors. (2005) 12 SCC 389.]  

In any event, the order of the learned Additional District Judge would  merge in the order of the Appellate court which may ultimately be passed  and thus, it is necessary that before the stipulations made in the said Will are  directed to be given effect to, the contentions raised by the appellant, as also  the respondent Nos.2, 3, 5 and 6 should receive proper consideration by the  High Court.

In Chandi Prasad & Ors. vs. Jagdish Prasad & Ors. (2004) 8 SCC  724, this Court held that when an Appellate court exercises its power and  passes a judgment, the same would replace the judgment of the lower court  and only its judgment would be treated as final.

For the foregoing reasons, the impugned orders cannot be sustained,  which are, accordingly, set aside.  However, having regard to the peculiar  facts and circumstances of this case, we would request the High Court to  consider the desirability of disposing of the appeal as expeditiously as  possible and preferably within a period of two months from the date of  communication of this order.  The High Court, indisputably while disposing  of the appeal, would take into account the effect of various interim orders  passed at different stages.   

The appeals are allowed with the afore-mentioned observations and

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directions.   

No costs.