Whether testator after bequeathing his property absolutely to his wife prescribe how property is to be inherited after death of his wife?

  I am of the view that under the aforesaid Will, the predecessor in title of the parties had bequeathed the property to his wife. Such bequeath to the wife cannot be said to be a limited one. The use by the testator of the words "wholly and solely" negate, the bequeath to the wife being of a life interest or life estate only. The words used in the Will "my wife Sushila Chojar, would have the liberty to realize rents and collect gains from all sources concerned and utilize them according to her own wishes" cannot be read as limiting the right of the wife only to collecting the rents and not having the power to sell the property. The bequeath to the son and daughters is only "after death of my wife Sushila Chojar". It becomes further clear from Clause-4 that the bequeath to the son and daughters immediately on the demise of the testator was to be only in the event of the wife predeceasing the testator and not otherwise. Had the bequeath been intended to be to the son and daughters with the wife having only a life interest, Clause-4 would not have been inserted, as in that case the son and daughters would have a residuary interest in the property immediately on the demise of the testator. {Para 36}

37. The Supreme Court in Mauleshwar Mani Vs. Jagdish Prasad MANU/SC/0044/2002 : (2002) 2 SCC 468 on the basis of the words "Pane ki Musthak" and "Ba Akhtiar Intakal" used in a Will made in Hindi language held the bequeath to be of an unlimited and an absolute estate and not a limited one. The Division Bench of this Court in Judge Pal Khera Vs. Chand Rani Khera MANU/DE/1766/2012 also held the use of the words "absolutely" and "exclusively" in the Will to be indicative of bequeath of an absolute and unlimited estate and not a limited one.

38. The question which however arises is whether the predecessor in title of the parties having bequeathed the property wholly and solely to his wife could have provided for the manner in which the property was to be dealt with after the death of his wife. In my opinion, he could not have done so. A testator, once has bequeathed the property wholly and solely to his wife and the wife is alive on the date of the demise of the testator, the property becomes of the wife and any provision in the Will, of the manner in which the property is to be inherited after the demise of the wife, is of no avail. This is the reason that once the property has on the demise of the testator vested in the wife of the testator, the same in the absence of a Will of the wife of the testator, has to be dealt with in accordance with law of succession application to such wife. Reliance if any required in this regard, can be placed on Sadaram Suryanarayana Vs. Kalla Surya Kantham MANU/SC/0886/2010 : (2010) 13 SCC 147.

39. It is the admitted position that the mother of the parties died intestate. In accordance with the law of succession applicable to her, on her demise, the property would be inherited equally by her children i.e. by the plaintiff and the defendants No. 1&3.

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

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