Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : August 05, 2015
+ RFA (OS) 75/2015
RADHA KRISHAN VERMA & ANR. .....Appellants
Represented by: Ms.Santwana, Advocate for
Dr.L.S.Chaudhary, Advocate
versus
RAKESH KUMAR VERMA & ANR. .....Respondents
Represented by: None
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
CM No.13986/2015
Allowed subject to just exceptions.
CM No.13985/2015 & CM No.13988/2015
For the reasons stated in the two applications delay in filing and re-
filing the appeal is condoned.
RFA (OS) No.75/2015
1. As per practice directions issued by this Court suit record is
available. The same has been perused by us. We find no merit in the
appeal.
2. Four siblings, three brothers and a sister named Rakesh Kumar,
Anil Kumar, Sunil Kumar and Ms.Veena Verma filed a suit seeking
partition of property bearing No.C-35, Rajouri Garden, New Delhi. As
RFA (OS) No.75/2015 Page 1 of 5
pleaded by them they and defendant No.1, Radha Krishan Verma i.e. the
th
first appellant, had 1/5 share each in the suit property. Appellant No.2
Kapil Verma was impleaded as defendant No.5, apart from three other
persons as defendants No.2 to 4, and against him the plea was that being
the son of defendant No.1 he used to threaten the plaintiffs. The basis of
th
the five siblings having 1/5 share each in the suit property was a will
stated to have been executed on August 21, 1993 by Late Raghunath
Prasad Verma, the father of the parties, who died on January 25, 2000 as
per which the five siblings and their mother Sarbati Devi were the
beneficiaries. As per the plaintiffs, Sarbati Devi died intestate on January
16, 2006.
3. Served with summons in the suit, the defendant No.1 and
defendant No.5 (father and son) i.e. the appellants did not deny the will
propounded by the plaintiffs as having been executed by their father on
August 21, 1993.
4. On September 11, 2014, a consent order was passed passing a
preliminary decree declaring share of the four plaintiffs and defendant
th
No.1 to be 1/5 each. The order records a consent. It records that after
th
Meena dies her 1/5 share shall be inherited equally by her four brothers.
That apart, in view of the written statement filed, the preliminary decree
as passed on September 11, 2014 was the only legal course available for
the learned Single Judge.
5. The appellants filed an appeal against the consent decree which
was registered as RFA (OS) No.155/2014, which they withdrew on
December 03, 2014 saying that they wanted to file a review application
before the learned Single Judge.
6. RP No.21/2015 was filed thereafter in which the appellants
admitted the father having executed the will on August 21, 1993, but
RFA (OS) No.75/2015 Page 2 of 5
claimed that as per the will the suit property could not be partitioned and
could not be sold. They also pleaded that plaintiff No.4 i.e. the sister
sibling had only a life interest in the property.
7. Vide impugned order dated February 20, 2015, the learned Single
Judge noted that while passing the preliminary decree, which was on
consent, it was duly recorded that let the share of the parties be declared
th
to be 1/5 with the condition that on the demise of the sister her share
would be inherited by her brothers i.e. plaintiffs No.1 to 3 and defendant
No.1. The review application was accordingly dismissed.
8. We have perused the will dated August 21, 1993 executed by Late
Raghunath Prasad Verma. He has duly recorded in the will the assets
owned by him, one of which is the suit property i.e. House No.C-35,
Rajouri Garden. The will shows that he has consciously bequeathed the
house to his four sons, one unmarried daughters and the wife while
consciously excluding his two married daughters. He has noted that the
unmarried daughter Meena is physically handicapped. In the will he has
made an unequivocal bequest in favour of his four sons, one unmarried
daughter and the wife. After making the unequivocal bequest he has tried
to cut down the same by recording that neither beneficiary shall have a
right to sell the house, but restricted to the lifetime of Sarbati Devi and
Meena. It is followed up by it being recorded in the will that after
Meena’s death her share in the house would be divided equally amongst
his four sons.
9. Now, law is clear. Once an unequivocal bequest is made, any
cutting down of the interest is void. Section 138 of the Indian Succession
Act, 1925 reads that where a fund is bequeathed absolutely to or for the
benefit of any person, but the will contains a direction that it shall be
applied or enjoyed in a particular manner, the legatee receives the fund
RFA (OS) No.75/2015 Page 3 of 5
sans the directions.
10. Be that as it may, if at all any grievance could be made to the
preliminary decree, it could be by Meena who could argue that her
counsel did not give her proper legal advice. But Meena accepts the
th
preliminary decree which records that her 1/5 share would be treated as
life interest and on her death would be inherited by her four brothers.
11. As regards the appellant, only appellant No.1 could have a say in
the matter and not his son, the appellant No.2.
12. The argument of learned counsel for the appellant that the house
cannot be sold has no legal foundation because as per law the bequest by
the father has to be treated as absolute and the wish of the father that
during the lifetime of his wife and his unmarried daughter Meena the
house could not be sold is of no help to the appellant No.1, for the reason
if at all, only Meena could have said that during her lifetime the house
could not sold if she accepted the will to mean that it gave her a right of
residence therein. As regards the appellant No.1 his interest as per the
th th th
will can at best be 1/5 in his own right and 1/4 of 1/5 to be inherited
on the death of Meena.
13. The consent given by the parties which has resulted in the
preliminary decree is in harmony with aforesaid understanding of the will
by the parties and the appellants cannot resile from the consent given.
14. We need to highlight that the appellants have a stake in continuing
with the litigation because a perusal of the plaint would show that they
are the ones who are occupying an area more than their entitlement and
have even encroached upon common areas.
15. There is no merit in the appeal which is dismissed. And since the
appeal is dismissed in limine without notice to the respondents, we do not
impose any costs.
RFA (OS) No.75/2015 Page 4 of 5
CM No.13987/2015
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
AUGUST 05, 2015
mamta
RFA (OS) No.75/2015 Page 5 of 5