Puneet Kumar Anand vs. Pishori Lal (Deceased) Thr Lrs

$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+ RSA 101/2019 & CM APPL. 40584/2019

Between: -

MR. PUNEET KUMAR ANAND
S/O LATE SH. GULSHAN KUMAR ANAND
H.NO. 34-E/3, WEST PATEL NAGAR,
NEW DELHI ....APPELLANT

(Through: Ms. Shoba Ramamoorthy, Ms.Vincy George and Mr. Gokulakrisnan
and Mr. Ajay Subhas, Advs.)

AND

PISHORI LAL (DECEASED)
THROUGH HIS LRS

1. SMT. PRAMILA VAID
D/O LATE PISHORI LAI; W/O VINOD VAID
R/O H.NO 43, 2-C, NEW PALASIA EXTENSION
INDORE, M.P.

2. SMT. SEEMA SETHI
D/O LATE PISHORI LAI; W/O. ASHISH SETHI
R/O H.NO. 159, SECTOR 27-A, CHANDIGARH

3. SHRI TARUN ANAND
S/O LATE PISHORI LAI
R/O SARKHEJ COLONY
AHMEDABAD, GUJARAT ....RESPONDENTS

(Through: Mr. Neeraj Jain, Advocate for R-1 & 3.)

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By:PURUSHAINDRA
KUMAR KAURAV
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By:MAANAS JAJORIA
Signing Date:24.12.2024
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% Reserved on: 06.11.2024
Pronounced on: 24.12.2024
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J U D G M E N T

The present Second Appeal has been filed by the legal heirs of the
original defendant, challenging the judgment and decree
dated 12.12.2018 passed by the learned Additional District Judge in RCA
No. 60769/2016, titled Puneet Kumar Anand v. Pishori Lal [deceased]
through his legal representatives. By the impugned judgment and decree, the
first Appellate Court dismissed the appeal and affirmed the judgment and
decree dated 28.02.2015, passed by the learned Civil Judge in Suit No.
293/12, whereby, the suit for partition instituted by the respondent-plaintiff
was decreed against the appellant-defendant.
2. The facts, as discerned from the record, indicate that the present
dispute arises out of a suit for partition concerning the subject property, a
residential house bearing Door No. 34-E/3, situated in East Patel Nagar,
New Delhi. The property stands on a plot measuring 200 square yards
[equivalent to approximately 1800 square feet or 167 square meters] and
comprises a ground floor, a first floor, and a terrace.
3. The respondent-plaintiff and the appellant-defendant are the sons of
late Mr. Boota Mal Anand and late Mrs. Lakshmi Devi. The respondent-
plaintiff is the elder brother of the appellant-defendant. The familial
relationship and direct lineage between the relevant parties is outlined in the
following genealogy table:-
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4. The dispute essentially centers on the interpretation of a Will executed
by late Mrs. Lakshmi Devi, the mother of the parties. The appellant-
defendant asserts that this Will conferred an absolute and unfettered interest
in the subject property upon their father, late Mr. Boota Mal Anand, thereby
empowering him to execute a subsequent Will, through which he
bequeathed the property exclusively to the appellant-defendant.
5. Conversely, the respondent-plaintiff contends that the Will executed
by their mother only granted their father a life estate, thereby restricting his
authority to alienate, transfer, or further bequeath the property. This
conflicting interpretation of the testamentary disposition forms the crux of
the dispute.
6. The Courts below, upon examining of the testamentary document and
the surrounding circumstances, concluded that the intention of the testatrix,
Late Mrs. Lakshmi Devi, was to confer only a life estate upon the father, late
Mr. Boota Mal Anand, thereby precluding him from alienating or further
bequeathing the property to the exclusion of either son. The Courts found
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that, upon the demise of the father, absolute ownership of the property was
intended to vest equally between the two sons.
7. Consequently, the Trial Court decreed the suit for partition, declaring
that the father lacked the authority to unilaterally alienate or bequeath the
property. This determination of the Trial Court was subsequently affirmed
by the first Appellate Court.
8. The appellant-defendants, however, vehemently contend that the
interpretation adopted by the Courts below is flawed and contrary to the
language of the testament. They assert that Clause 5 of the Will explicitly
conferred an absolute right of ownership upon the father, Late Mr. Boota
Mal Anand, thereby granting him unfettered authority to deal with the
property, including the right to alienate or bequeath it as he deemed fit.
9. It is further argued that once an absolute estate is unequivocally
vested in an individual by way of testamentary disposition, any subsequent
clause in the same instrument seeking to impose restrictions on such
absolute ownership, or to reassign the property to other beneficiaries, would
be legally untenable. According to the appellants, the Will must be read
harmoniously, and the intention to grant full ownership to the father must
prevail over any purported limitations.

Submissions on behalf of the appellant-defendant:-


10. Ms. Shobha Ramamoorthy, learned counsel appearing on behalf of
the appellant-defendant, argues that late Mrs. Lakshmi Devi, the mother of
the parties, executed a registered Will dated 11.12.1968, bequeathing the
properties in favour of her husband, Mr. Boota Mal. Learned counsel
emphasizes that Clause 5 of the Will explicitly states that the sons and
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daughters “will have no rights in the said properties,” thereby granting Mr.
Boota Mal an unequivocal and absolute right over the properties.
11. It is further contended that subsequent to the initial bequest, Mrs.
Lakshmi Devi specifically allocated certain portions of the properties in
favor of her sons, Gulshan Kumar and Pishori Lal, within the same Will.
This, according to the learned counsel, indicates that the Will conferred full
ownership to Mr. Boota Mal, allowing him to exercise his rights, including
further bequeathal or alienation of the property, without restriction.
12. On 13.03.1969, the property situated in Shahadara was acquired by
the Land Acquisition Officer. Subsequently, at the behest of Mrs. Lakshmi
Devi, a reference under Section 18 of the Land Acquisition Act was filed,
culminating in LAC No. 645 of 1969 before the Additional District Judge.
On 01.02.1970, Mrs. Lakshmi Devi passed away, bringing the Will dated
11.12.1968 into effect.
13. Subsequently, in April 1970, Mr. Boota Mal filed a petition before the
aforesaid Reference Court under Order XXII Rules 2 and 3, read with
Section 151 of the Code of Civil Procedure, 1908, seeking substitution of his
name as the sole legal representative and heir of late Mrs. Lakshmi Devi. In
the said reference petition dated 26.02.1970, Mr. Boota Mal explicitly
asserted that he had been designated as the owner of the acquired land under
the registered Will dated 11.12.1968. Accordingly, he requested that the
name of late Mrs. Lakshmi Devi be replaced with his own in the reference
proceedings.
14. In response to the substitution application filed by Mr. Boota Mal, the
Reference Court issued a notice to the other legal heirs of late Mrs. Lakshmi
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Devi. Pursuant to these notices, both sons of late Mrs. Lakshmi Devi
appeared before the Reference Court to participate in the proceedings.
15. As per the order dated 21.04.1971, the Reference Court recorded the
submission made by the learned counsel for Mr. Pishori Lal, stating that
there was no objection to the compensation for the acquired land, previously
payable to late Mrs. Lakshmi Devi, being released to Mr. Boota Mal.
Furthermore, vide order dated 24.08.1971, the Reference Court noted that all
the legal heirs of late Mrs. Lakshmi Devi, including Mr. Boota Mal, but
excluding Mr. Gulshan Kumar, made a statement through their
representative, expressing that the “natural heirs whom I represent have no
objection to the substitution of Boota Mal in place of Shrimati Lakshmi
Devi, deceased.” Consequently, on the same date, relying on the registered
Will of late Mrs. Lakshmi Devi and the no-objection statements from the
legal heirs, the Reference Court directed the substitution of Mr. Boota Mal
in place of late Mrs. Lakshmi Devi.
16. Placing reliance on the judgment dated 04.10.1973 rendered by the
Reference Court, which addressed the question of ownership of the acquired
land, the Court held that Mr. Boota Mal had been substituted as the sole
legal heir of late Mrs. Lakshmi Devi, his wife. This finding was based on the
documentary evidence presented and the absence of any rebuttal or contest
from other legal heirs. According to the learned counsel, the judgment of the
Reference Court affirmed the validity of the substitution order and upheld
the status of Mr. Boota Mal as the rightful claimant to the acquired land.
17. On 28.07.197, Mr. Boota Mal executed a registered will, wherein he
devised the subject property in favor of Mr. Gulshan Kumar [father of the
appellant herein]. In the said will, Mr. Boota Mal explicitly asserted that he
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was the exclusive owner of the subject property by virtue of the Will
executed by his late wife, Mrs. Lakshmi Devi.
18. On 30.05.1979, Mr. Boota Mal passed away. Following his demise,
Pishori Lal [father of the respondents herein] initiated Probate Case No.
33/1979, seeking probate of the Will dated 11.12.1968 executed by Mrs.
Lakshmi Devi. Subsequently, Mr. Gulshan Kumar [father of the appellant
herein] filed Probate Case No. 58/1979, seeking probate of the will dated
28.07.1978 executed by Mr. Boota Mal, claiming that the latter had absolute
ownership over the subject property. Thus, both probate proceedings thus
became central to the dispute over the interpretation of the respective wills
and the rightful ownership of the subject property.
19. On 30.07.1979, the respondent-plaintiff filed Original Suit No.
826/1979, from which the present second appeal arose. In the suit, the
respondent-plaintiff sought partition of the subject property, relying on the
will dated 11.12.1968 executed by late Mrs. Lakshmi Devi. The respondent-
plaintiff contended that late Mr. Boota Mal, their father, was granted only a
life estate in the subject property under the said will and that, upon his
demise, the property was to devolve equally upon the respondent-plaintiff
and the appellant-defendant in accordance with the terms of the Will dated
11.12.1968 executed by late Mrs. Lakshmi Devi.
20. In response, the appellant-defendant filed a written statement on
06.07.1982, asserting that their father, late Mr. Boota Mal, had exercised his
rights as the absolute owner of the subject property. This claim was based on
the will of late Mrs. Lakshmi Devi, dated 11.12.1968, which the appellant-
defendant argued conferred full ownership upon Mr. Boota Mal, enabling
him to act to the exclusion of all other legal heirs. The appellant-defendant
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further emphasized that Mr. Boota Mal had sought substitution in the land
acquisition proceedings on the basis of this Will, which affirmed his
absolute ownership over the properties.
21. Drawing the attention of the Court to the Will of late Mrs. Lakshmi
Devi dated 11.12.1968, learned counsel for the appellant submits that Clause
5 of the Will explicitly mentioned that “That after my death, my husband
Shri Boota Mal will be owner of the properties cited above and my sons and
daughters will have no right in the said properties.” Learned counsel argues
that the Courts below committed an error in interpreting the intention of the
testatrix, late Mrs. Lakshmi Devi, as creating merely a limited interest in
favor of late Mr. Boota Mal. According to learned counsel, Clause 5
unequivocally conferred absolute ownership of the properties upon Mr.
Boota Mal. Consequently, it was not within the legal purview of Mrs.
Lakshmi Devi to impose further restrictions or to bequeath the same
property to another set of beneficiaries under Clause 6 of the Will.
22. To support her submission, learned counsel places reliance on Section
95 of the Indian Succession Act, 1985, which governs limitations on
testamentary dispositions, contending that once an absolute right has been
conferred upon a beneficiary, the testatrix is precluded from imposing
subsequent conditions or reallocations of the same property. Learned
counsel further fortifies her argument by citing various authoritative
1
precedents, including, Madhuri Ghosh v. Debobroto Dutta , Mauleshwar
2
Mani v. Jagdish Prasad , Tiruchendur Sri Subramania Swami Temple v.

1
(2016) 10 SCC 805
2
(2002) 2 SCC 468
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3 4
P. Ramaswamia Pillai , Ramachandra Shenoy v. Hilda Brite . Relying on
the principles enunciated in the said precedents, learned counsel submits that
Clause 6 of the Will, which attempts to further bequeath the property after
conferring absolute ownership on late Mr. Boota Mal, violates Section 95 of
the Indian Succession Act, 1985, and is thus legally untenable.
Consequently, the appellant-defendant asserts that the findings of the Courts
below, interpreting the Will as creating only a limited interest, are patently
erroneous and warrant reversal.
23. Learned counsel further argued that the conduct of the respondent-
plaintiff in permitting late Mr. Boota Mal to assert ownership of the property
during the land acquisition proceedings constitutes a clear case of estoppel.
By acquiescing to such assertions and raising no objections to his
substitution as the sole legal heir of late Mrs. Lakshmi Devi, the respondent-
plaintiffs are now barred from challenging absolute ownership of Mr. Boota
Mal. In support of this contention, learned counsel relied upon the principle
of estoppel enshrined in Section 115 of the Indian Evidence Act, 1872, and
referred to the following decisions rendered in the cases of B.L. Sreedhar v.
5 6
K.M. Munireddy , Sunderabai v. Devaji , RamgowdaAnnagowda Patil v.
7 8
Bhausaheb , S. Shanmugam Pillai v. K. Shanmugam Pillai , Vijayabai v.
9 10
Shriram Tukaram , Hope Plantations Ltd. v. Taluk Land Board and SBI

3
1949 SCC OnLine PC 56
4
1963 SCC OnLine SC 236
5
(2003) 2 SCC 355
6
(1952) 2 SCC 92
7
1927 SCC OnLine PC 64
8
(1973) 2 SCC 312
9
(1999) 1 SCC 693
10
(1999) 5 SCC 590
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11
v. M.J. James . Based on these decisions, learned counsel submits that the
respondent-plaintiff cannot now be permitted to contradict this stance by
asserting that Mr. Boota Mal held only a limited interest in the property.
24. On the aspect of res judicata , learned counsel contended that the
findings of the Reference Court, which held that late Mr. Boota Mal was
entitled to claim compensation for the acquired property to the exclusion of
all other legal heirs of late Mrs. Lakshmi Devi, is binding and operates as
res judicata . This finding, based on the Will executed by late Mrs. Lakshmi
Devi and the admissions of her legal heirs, precludes the respondent-plaintiff
from reopening the issue of ownership of the subject property. To
substantiate this argument, learned counsel placed reliance on Bhanu
12
Kumar Jain v. Archana Kumar and Raj Lakshmi Dasi v. Banamali
13
Sen .
25. On the aspect of incorrect interpretation of the documents, learned
counsel for the appellant contended that the Will dated 11.12.1968 was not
interpreted correctly by the Courts below. She submitted that the
interpretation resorted to is contrary to the decisions of the Supreme Court.
Furthermore, she argued that the Courts below failed to properly apply the
provisions of the Indian Succession Act, 1925, which govern the validity
and scope of testamentary dispositions. Learned counsel further submitted
that while the interpretation of a document is generally not considered a
question of law, the Courts below erred in drawing a distinction between
documents of title and those involving questions of fact, thereby
misconstruing the legal principles applicable in this case. According to her,

11
(2022) 2 SCC 301
12
(2005) 1 SCC 787
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the judgments of the Courts below, as reflected in their records,
demonstrated a failure to follow established legal principles and precedents
laid down by the Supreme Court. This erroneous interpretation, she argued,
warrants interference by this Court.

Submissions on behalf of the respondent-plaintiff:-

26. Vehemently opposing the submissions advanced by learned counsel
for the appellant, Mr. Neeraj Jain, learned counsel for the respondents,
argued that the two Courts below have meticulously examined the Will
dated 11.12.1968 executed by late Mrs. Lakshmi Devi. He asserted that both
Courts rightly concluded that the said Will conferred only a life estate upon
late Mr. Boota Mal Anand, her husband, with the property subsequently
devolving equally upon her two sons, as per her testamentary intention.
27. Learned counsel emphasized that the findings of the Courts below
were based on a detailed appreciation of the Will, in conformity with the
settled principles of law laid down by the Supreme Court and the relevant
provisions of the Indian Succession Act. Accordingly, he contended that the
Will had been duly interpreted in line with binding precedents, and the
appellant-defendant’s challenge lacked any legal basis. In light of the above,
he submitted that the present appeal is devoid of merit and deserved outright
dismissal.
28. Learned counsel further contended that the interpretation of any
document, including a testamentary instrument, does not per se constitute a
question of law unless it can be demonstrated that the material evidence
within such a document was misunderstood or misapplied by the Court of

13
(1952) 2 SCC 219
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fact. He emphasized that in the present case, the Trial Court, as the primary
court of fact, categorically held that the Will dated 11.12.1968 executed by
late Mrs. Lakshmi Devi is valid, legal, and enforceable. Learned counsel
argued that the first Appellate Court, functioning as a Court of both fact and
law, meticulously examined the findings of the Trial Court and affirmed its
judgment dated 28.02.2015. The first Appellate Court, upon thorough
consideration, concluded that the respondent-plaintiffs and the appellants-
defendants were entitled to their respective shares in the suit property in
accordance with the provisions of the Will. It further noted that the property
was already subject to partition, with specific portions delineated in the Will
to devolve upon the parties, thereby justifying the passing of both a
preliminary and final partition decree. Learned counsel asserted that the
appellant-defendants failed to highlight any infirmity in the reasoning or
conclusions of the first Appellate Court that could constitute a substantial
question of law.
29. I have heard the learned counsel for the parties and have perused the
record.
30. The learned Trial Court, upon analyzing the Will dated 11.12.1968 in
its entirety, has categorically held that the intention of late Mrs. Lakshmi
Devi was to create only a life estate in favor of her husband, late Mr. Boota
Mal, with the remainder of the estate to vest absolutely in her two sons,
Gulshan Kumar and Pishori Lal, upon the demise of both testators. The
learned Trial Court emphasized that construing the Will to confer an
absolute estate upon Mr. Boota Mal would not only rewrite the language of
the Will but also defeat the testatrix’s clear intent, as explicitly expressed in
the clauses of the Will. Particularly, the Trial Court relied on Clause 6 of the
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Will, which unequivocally stated that the properties would devolve upon the
two sons as “full-fledged owners” after the demise of both parents. In light
of this interpretation, the learned Trial Court concluded that Mr. Boota Mal
lacked the testamentary capacity to execute the subsequent Will dated
28.07.1978, as his rights under the earlier Will were limited to a life interest.
Consequently, the learned Trial Court held that the suit properties could not
be bequeathed by late Mr. Boota Mal in derogation of the rights explicitly
granted to the sons under the Will of late Mrs. Lakshmi Devi. The relevant
portion of the decision rendered by the learned Trial Court is extracted
hereunder for reference:-
“38. I considered and applied the ratio of the case-laws as cited above
by Ld. Counsel for the LRs of the plaintiff and Ld. Counsel for the
defendant for interpreting the Will executed by Smt. Lakshmi Devi and I
am of the view that the intention of Smt. Lakshmi Devi was to create
only life estate in respect of properties as mentioned in the said Will in
favour of Late Shri Boota Mai, her husband. The ratio of judgment,
namely, Arunkumar and another Vs. Shriniwas and others (Supra) is
squarely applicable to the facts of the present case. Therefore, I am of
the view that the Will executed by Smt. Lakshmi Devi cannot be
construed to the effect that the properties as mentioned in the said Will
were bequeathed in favour of her husband Boota Mai as absolute estate
as such a construction would not only amount to re-writing the several
clauses in the said Will but would also constitute violence to the
language and further defeat the very intention of the testatrix. The only
possible and reasonable construction that could be placed on the Will
executed by Smt. Lakshmi Devi for giving full effect to her intention as
found expressed in all the relevant portion of the said Will would be to
construe the bequest made in favour of her husband as one for life
interest and the remainder bequeathed absolutely in favour of her two
sons after death of her husband. Moreover, in clause 6 of the Will dated
11.12.1968, it has been categorically mentioned hat above cited
persons (who are Pishori Lai and Gulshan Kumar) will become full-
fledged owners of the aforesaid properties after my death as well as
death of my husband. This shows that the intention of the testatrix Smt.
Lakshmi Devi was that the properties in question must go to her sons,
namely Gulshan Kumar and Pishori Lai and they shall be full-fledged
owners of the sam which again shows that her intention was not to
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make Shri Boota Mai, her husband, the absolute owner of the
properties as mentioned in the Will. Therefore, it is held that late Shri
Boota Mal had not become the absolute owner of the suit properties
after demise of Smt. Lakshmi Devi on the basis of the Will dated
11.12.1968 executed by her and had no right or testamentary capacity
to execute the Will dated 28.07.1978 under the Will dated 11.12.1968
executed by her wife Smt. Lakshmi Devi. Thus, additional issues No.l
and 2 are decided accordingly.”

31. The appellant-defendant, who challenged this interpretation, filed the
first appeal against the judgment and decree of the learned Trial Court. The
first Appellate Court, while considering the appeal, conducted a thorough
examination of the Will dated 11.12.1968 executed by late Smt. Lakshmi
Devi and reaffirmed the findings of the Trial Court. It observed that the
testatrix’s intention, as discernible from the entirety of the Will, was to grant
only a life estate to her husband, Shri Boota Mal, and to vest absolute
ownership in her two sons after his demise. The Court emphasized that
specific clauses, particularly clauses 4, 6, and the concluding paragraph,
unequivocally reflected the intention of the testatrix to ensure the eventual
division of the properties between her two sons as absolute owners. The
relevant portion of the decision reads as under:-
"In view of the above, "the moot question before the court for
consideration is regarding the interpretation of the WILL dated
11.12.1968, executed by late Smt Laxmi Devi, to the effect whether by
virtue of said WILL, late Shri Buta Mai acquired the absolute
ownership of the suit property, or he only had the life time estate in the
property". The entire controversy in the case is revolving around the
WILL dated 11.12.1968 of late Smt. Laxmi Devi. The said WILL dated
11.12.1968 is reproduced as under-
"WILL"
1. This WILL is executed on the 11th day of December 1968, at
Delhi by me in favour of Shri Boota Mai Anand s/o Shri Radha
Kishan r/o 34/3, East Patel Nagar, New Delhi, I am in full
senses and without any force from outside, I have executed this
WILL.
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2. That I have five sons namely Shri Jagdish Lai, Pishorilal,
Gulshan Kumar, Ashok Kumar(at present missing) and- Shri
Hari Krishan Lal(deceased)represented by the three sons
namely ShriDarshan Kumar, Harish Chander and Abnash.
3. That I have three daughters who are marriednamely Smt
Krishna Wanti, wife of Shri Ram LalChandok, Smt Shanti Devi
w/o Shri LKundanlal,SmtKailsh Rani w/o Shri Manohar Lal
Sethi. Theyall are well settled and I have spent lot of money
ontheir marriages.
4. That the under noted properties stands in myname and it is
my desire that I execute a WILL inmy life time regarding the
under noted properties, inorder to save my sons and husband
from litigations:-
(i) One house, bearing no. 34-E/3, situated in East
Patel Nagar, New Delhi, which was previously in
the name of my son Shri Pishorilal and
subsequently it was transferred in my name and the
same was registered in the office of the Sub
Registrar, concerned at Sl.no.l561 in additional.
book no. 1, volume no. 328. on pages 52 on this
14th day of Mayl957.
(ii)Plot no. 37 and -38. South Bishan Road, Vishwas
Nagar, Shahdara, Delhi, purchased by me in
auction and regular sale deeds have been issued in
my favour.
5. That I am the exclusive owner of these properties and by
virtue of the WILL, I divide the said properties amongst my
sons. As long as I am alive, no one has any right in the said
properties.
6. That after my death, my husband Shri Boota Mal will be own
of the properties cited above and my sons and daughters will
have no right in the saidproperties.
7. That after my death as well as the death of myhusband, the
properties noted above will go amongstmy sons as under:-
Plot no. 37, Vishwas Nagar, Shahdara, Delhi, will
go half and half in the name of my sons Shri
Gulshan Kumar and Shri Pishorilal. House no. 34-
E/3, situated at East Patel Nagar, New Delhi, will
go to my sons in the following manner:-
Lower portion……………..GulshanKumar.
Upper portion………………Pishorilal
and the Third floor combined inthe name of
Gulshan Kumar andPishorilal.
8. I hereby declare that the above cited persons will become full
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fledged owners of the aforesaid properties after my death as
well as deathofmy husband. My other heirs, grandsons, sons
ShriJagdish lal and Hari Krishan lal and daughters willhave no
concern at all with the said properties.
In witness whereof I have set out mythumb impression on this
WILL on the date and yearcited above.
*
18. It is settled law that no line of any document can be read in
isolation. The judgment cited by both the parties herein also clearly lay
down the law that the document particularly the WILL has to be read in
toto to give effect to the true intention of the testator. Here, the reading
of the entire WILL dated 11.12.1968, of late Smt Laxmi Devi, makes her
intention clear that the testatrix late Laxmi Devi, intended to bequeath
the suit property ultimately in favour of her two sons i.e. parties to the
suit. As per this WILL, late Shri Buta Mai only had life time estate in
the properties mentioned n the said WILL. If, the interpretation of the
WILL, as alleged by the defendant, is accepted, then, there was no
reason for late Smt Laxmi Devi to specifically mention Clause-4,6 and
second last para of the WILL, in which, it is specifically stated that the
properties mentioned in the WILL, would be divided in her two sons i.e.
parties to the suit and after the death of Buta Mai, they would acquire
the share in the said properties, as per the proportion given in the
WILL.
19. This court does not have even iota of doubt that by virtue of WILL
dated 11.12.1968, late Shri Buta Mai acquired only the life time
interest in the properties mentioned in the WILL, therefore, he had no
right or authority to execute the WILL dated 28.07.1978, in respect of
the properties, which were the subject matter of will dated
11.12.1968.”

32. The position adopted by the first Appellate Court, affirming the
judgment and decree of the learned Trial Court, is further reinforced by the
provisions of the Indian Succession Act. Section 96 of the Act, particularly
illustration 7, addresses the concept of a bequest with a limited interest
coupled with an alternative bequest. For reference, the relevant provision is
reproduced below:-
“96. Bequest in alternative.—Where property is bequeathed to a person
with a bequest in the alternative to another person or to a class of
persons, then, if a contrary intention does not appear by the will, the
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legatee first named shall be entitled to the legacy if he is alive at the
time when it takes effect; but if he is then dead, the person or class of
persons named in the second branch of the alternative shall take the
legacy.
Illustrations:
(i) A bequest is made to A or to B. A survives the testator. B takes
nothing.
(ii) A bequest is made to A or to B. A dies after the date of the will, and
before the testator. The legacy goes to B.
(iii) A bequest is made to A or to B. A is dead at the date of the will.
The legacy goes to B.
(iv) Property is bequeathed to A or his heirs. A survives the testator. A
takes the property absolutely.
(v) Property is bequeathed to A or his nearest of kin. A dies in the
lifetime of the testator. Upon the death of the testator, the bequest to A's
nearest of kin takes effect.
(vi) Property is bequeathed to A for life, and after his death to B or his
heirs. A and B survive the testator. B dies in A's lifetime. Upon A's
death the bequest to the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or
his heirs. B dies in the testator's lifetime. A survives the testator.
Upon A's death the bequest to the heirs of B takes effect.”

33. Learned counsel for the appellant-defendant has placed reliance on
the decision of the Supreme Court in Mauleshwar Mani . However, upon a
perusal of the same, it is seen that, the Court, after considering the principles
14
laid down in Radha Sundar Dutta v. Mohd. Jahadur and Rameshwar
15
Bakhsh Singh v. Balraj Kuar , formulated the legal principle that when a
testator grants a restricted or limited interest in the property, they retain the
authority to make a subsequent bequest of the same property, effective upon
the death of the initial beneficiary, within the same will. The relevant
portion of the said decision is reproduced hereunder for reference:-
“10. In Ramkishorelal v. Kamalnarayan [AIR 1963 SC 890 : 1963
Supp (2) SCR 417] it was held that in a disposition of properties, if

14
1959 SCR 1309
15
AIR 1935 PC 187
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there is a clear conflict between what is said in one part of the
document and in another where in an earlier part of the document some
property is given absolutely to one person but later on, other directions
about the same property are given which conflict with and take away
from the absolute title given in the earlier portion, in such a conflict the
earlier disposition of absolute title should prevail and the later
directions of disposition should be disregarded. In Radha Sundar
Dutta v. Mohd. Jahadur Rahim [AIR 1959 SC 24 : 1959 SCR 1309] it
was held where there is conflict between the earlier clause and the later
clauses and it is not possible to give effect to all of them, then the rule
of construction is well established that it is the earlier clause that must
override the later clauses and not vice versa. In Rameshwar Bakhsh
Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ 1133] it was laid
down that where an absolute estate is created by a will in favour of
devisee, the clauses in the will which are repugnant to such absolute
estate cannot cut down the estate; but they must be held to be invalid.
11. From the decisions referred to above, the legal principle that
emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his absolute interest
in the property in favour of his wife, any subsequent bequest which is
repugnant to the first bequeath would be invalid;
and
(2) where a testator has given a restricted or limited right in his
property to his widow, it is open to the testator to bequeath the
property after the death of his wife in the same will. ”

34. On the aspect as advanced by the learned counsel for the appellant-
defendant that the respondent-plaintiff is estopped from claiming any title to
the property by virtue of the admission made in the Reference Court under
the land acquisition proceedings, the first Appellate Court noted that such
admissions, even if made, could not override or negate the title derived from
the Will. The Court held that title to immovable property must be conferred
through a legal document and cannot be extinguished by inconsequential
admissions. The Appellate Court further clarified that the proceedings under
the Land Acquisition Act were confined to determining the compensation
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payable to Shri Boota Mal and did not touch upon the broader ownership
rights under the Will. The relevant portion of the decision reads as under:-
“20. The appellant/defendant has moved an application u/o 41rule 27
CPC, seeking permission to lead evidence regarding the proceedings of
reference u/s 18 of Land Acquisition Act, admittedly filed by late Smt
Laxmi Devi, during her life time. Relying upon thesaid proceedings, the
defendant/appellant has urged that plaintiff/respondent has admitted in
those proceedings that late ShriButa Mai was absolute owner of the
properties mentioned in the WILL dated 11.12.1968. The
defendant/appellant also raised this issue during trial and filed an
application u/o 14 rule 5 CPC, seekingframing of additional issue in
this regard. However, the Ld. Trial court , vide detailed order dated
09.04.2014, dismissed the said application of the defendant/appellant
and also the plea of the defendant/appellant regarding the admission of
the plaintiff/respondent about the ownership of late Shri Buta Mai in
those proceedings by giving the reason that the intention of Lrs of late
Smt Laxmi Devi is not relevant to decide the suit, but the intention of
late Smt Laxmi Devi is relevant to be considered. I concur with this
reasoning given by the Ld. Trial court that for deciding the real
controversy between the parties only the intention of late Smt Laxmi
Devi emerging from her WILL dated 11.12.1968,has to be considered
by the court, but not the intention of her LRs. Alongwith the present
appeal, the defendant/appellant has annexed few orders and
statements, passed/recorded in the Land Acquisition proceedings.
Those orders and statements are part of judicial proceedings therefore,
u/s 114 Evidence Act, I am presuming all those orders and statements
to be correct and under the said presumption I proceed to decide
whether the same benefits thedefendant/appellant in any way. This
court is of the considered view even if, the proceedings of the Land
Acquisition reference, pointed outby the defendant/appellant, are
considered by the court, then also, they are not of any help to the
defendant/appellant, since, in the said proceedings, there is no
admission by the plaintiff/respondent herein that late Shri Buta Mai
was the absolute owner of the properties, but he, through hiss counsel
Shri Rajender Bhasin, only gave the statement dated 21.04.1971, in the
said proceedings that he has no objection, if, the compensation is given
to his father late Shri Buta Ma]. The admission by a person cannot
ipso-facto confer any right, title or interest in the immovable property
on the other person. An admission does not confer the title similarly,
admission of a party would not lead to relinquishment of his right
therein, if he has otherwise, acquired a title in the property. The title
conferred on a person in an immovable property by way of legal
document, cannot be taken away by way of any inconsequential
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admission made by any person. Here, the plaintiff/respondent has
acquired the title in the sit property by way of legal enforceable
document i.e. WILL dated 11.12.1968, of his mother and no
inconsequential admission can take away his title conferred upon him
by way of said legal document. Hence, any admission, at all, of the
plaintiff/respondent in the land acquisition proceedings, cannot confer
any right, title or interest in the immovable property, on Buta Mai.
Otherwise also, the said proceedings under Land Acquisition Act, were
restricted only for payment of compensation to late Shri Buta Mai, in
respect of property at Shahdara and nothing else.”


35. Upon a thorough examination of the findings rendered by the learned
Trial Court and the first Appellate Court, as well as the documents admitted
in evidence, this Court is of the considered opinion that there is no material
perversity or error apparent in the decisions of the Courts below. The
concurrent findings are well reasoned and based on a holistic interpretation
of the Will dated 11.12.1968. The Supreme Court, in Chandrabhan v.
16
Saraswati , has elucidated the scope of a second appeal under Section 100
of the CPC. It held that the test for determining whether a question of law is
“substantial” involves assessing whether the question is of general public
importance or whether it directly and substantially affects the rights of the
parties. Furthermore, if the question has already been conclusively settled by
binding precedent or involves the mere application of well-settled principles,
it cannot be treated as a substantial question of law. Questions that are
palpably absurd or lack any legal merit also do not qualify as substantial
questions of law.

36. To qualify as substantial , a question of law must be one that is open
to genuine debate, unsettled by existing legal principles or binding
precedents, and significantly impacts the determination of the case with
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respect to the rights of the parties. For a question to be deemed as “involved
in the case,” it must have a firm basis in the pleadings and should naturally
arise from the factual findings established by the Courts of fact.
Furthermore, it must be essential to resolve the said question to arrive at a
just and proper decision.The ultimate consideration remains a balance
between ensuring justice at all stages of the legal process and avoiding
unnecessary prolongation of the litigation.The relevant portion of the said
decision reads as under:-
“27. The guidelines to determine what is a substantial question of law
within the meaning of Section 100 CPC has been laid down by this
Court in Sir Chunnilal V. Lal Mehta & Sons v. Century Spinning and
4
Manufacturing Co. Ltd.
28. In Sir Chunilal V. Mehta and Sons (supra), this Court agreed with
and approved a Full Bench judgment of the Madras High Court
5
in Rimmalapudi Subba Rao v. Noony Veeraju which laid down the
principles for deciding when a question of law becomes a substantial
question of law.
6
29. In Hero Vinoth v. Seshammal , this Court followed Sir
Chunilal v. Mehta & Sons (supra) and other judgments and
summarized the tests to find out whether a given set of questions of law
were mere questions of law or substantial questions of law.
30. The relevant paragraphs of the judgment of this Court in Hero
Vinoth (supra) are set out herein below:-
“21. The phrase “substantial question of law”, as occurring in
the amended Section 100 CPC is not defined in the Code. The
word substantial, as qualifying “question of law”, means of
having substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with technical, of no substance or consequence,
or academic merely. However, it is clear that the legislature has
chosen not to qualify the scope of “substantial question of law”
by suffixing the words “of general importance” as has been done
in many other provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The substantial question of
law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general

16
2022 SCC OnLine SC 1273
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importance. In Guran Ditta v. Ram Ditta (1927-28) 55 IA
235 : AIR 1928 PC 172] the phrase “substantial question of law”
as it was employed in the last clause of the then existing Section
100 CPC (since omitted by the Amendment Act, 1973) came up
for consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial
question of law which was involved in the case. In Sir Chunilal
case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the
Constitution Bench expressed agreement with the following view
taken by a Full Bench of the Madras High Court in Rimmalapudi
Subba Rao v. NoonyVeeraju [AIR 1951 Mad 969: (1951) 2 Mad
LJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR
1962 SC 1314], SCR p. 557)
“[W]hen a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court thought it
necessary to deal with that question at some length and discuss
alternative views, then the question would be a substantial
question of law. On the other hand if the question was practically
covered by the decision of the highest court or if the general
principles to be applied in determining the question are well
settled and the only question was of applying those principles to
the particular fact of the case it would not be a substantial
question of law.”
31. The proper test for determining whether a question of law raised in
the case is substantial would be, whether it is of general public
importance or whether it directly and substantially affects the rights of
the parties and if so, whether it is either an open question in the sense
that it is not finally settled by this Court. If the question is settled by the
highest court or the general principles to be applied in determining the
question are well settled and there is a mere question of applying those
principles or the question raised is palpably absurd, the question would
not be a substantial question of law.
32. To be „substantial‟, a question of law must be debatable, not
previously settled by law of the land or a binding precedent, and must
have a material bearing on the decision of the case, if answered either
way, insofar as the rights of the parties before it are concerned. To be a
question of law “involving in the case” there must be first, a foundation
for it laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it must be
necessary to decide that question of law for a just and proper decision
of the case. An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it goes to the
root of the matter. It will, therefore, depend on the facts and
circumstance of each case whether a question of law is a substantial
one and involved in the case or not, the paramount overall
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consideration being the need for striking a judicious balance between
the indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis. (See Santosh
7
Hazari v. Purushottam Tiwari ).
33. The principles relating to Section 100 of the CPC relevant for this
case may be summarised thus:-
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the terms of
a document is a question of law. Construction of a document
involving the application of any principle of law, is also a
question of law. Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of the
case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not
covered by any specific provisions of law or settled legal
principle emerging from binding precedents and involves a
debatable legal issue. A substantial question of law will also
arise in a contrary situation, where the legal position is clear,
either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either
ignoring or acting contrary to such legal principle. In the second
type of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered on a
material question, violates the settled position of law.
(iii) The general rule is that the High Court will not interfere with
findings of facts arrived at by the courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are where
(i) the courts below have ignored material evidence or acted on
no evidence; (ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. When we refer to
“decision based on no evidence”, it not only refers to cases
where there is a total dearth of evidence, but also refers to any
case, where the evidence, taken as a whole, is not reasonably
capable of supporting the finding.”

37. Applying the aforementioned principle, it becomes evident that the
issues raised in the present appeal are predominantly factual or involve the
straightforward application of well-settled legal principles to the facts of the
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case as determined by the Courts below. As such, no substantial question of
law arises for consideration by this Court. Thus, the legal position on the
subject is clear, i.e. a second appeal under Section 100 of the CPC is
maintainable solely on the basis of a substantial question of law and not on
factual issues. However, an exception arises when the High Court
determines that the findings of fact recorded by the courts below are
perverse, in that they are either unsupported by evidence, based on irrelevant
material, or result from erroneous inferences drawn by the application of
incorrect legal principles. Additionally, if there has been a misplacement of
the burden of proof, the appeal may be entertained, and the Court is
permitted to reappreciate the evidence in such circumstances.

38. The Supreme Court in the case of Balasubramanian v. M.
17 18
Arockiasamy , placing reliance on Ramathal v. Maruthathal and Ram
19
Daan v. Urban Improvement Trust held that when both the lower Courts
have arrived at concurrent findings of fact and disbelieved the evidence of
certain witnesses, interference by the High Court in a second appeal is
generally unwarranted. However, the Court clarified that this restraint on
interference is not absolute. Where findings are perverse, lack evidentiary
support, or the appreciation of evidence suffers from material irregularity,
the High Court may justifiably intervene on questions of fact. However, in
the present case, the appellant-defendant has not demonstrated any material
irregularity or perversity in the findings of the Courts below as gleaned from
the arguments and the material shown.


17
(2021) 12 SCC 529
18
(2018) 18 SCC 303
19
(2014) 8 SCC 902
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39. In view of the aforesaid, the Court does not find any substantial
questions of law to have arisen in the instant case. Consequently, the appeal
fails and stands dismissed, along with pending application.


(PURUSHAINDRA KUMAR KAURAV)
JUDGE
DECEMBER 24, 2024/sp


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