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.

Read full Judgment here: Click here

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How to appreciate evidence if plaintiff has failed to produce original will?

 Though the plaintiff as aforesaid has failed to give any reason for non-production of the original Will but from a reading of the entirety of the evidence including the lengthy cross-examination by the counsel for the defendants No. 1&3 of the plaintiff and of the replies given by the defendant No. 3 in her cross-examination, it is abundantly proved that the defendant No. 3 had much more access than the plaintiff to the parents. The possibility thus of the defendants No. 1&3 being in possession of the original Will and having suppressed the same cannot be ruled out. The plaintiff had no reason to suppress the same. It is not the case of the defendants that the father had put an endorsement of "cancelled" on the original, for the plaintiff to be interested in suppressing the original. Rather, it is the plea of the defendants No. 1&3 that the original was torn and destroyed and which they have failed to prove.{Para 33}

 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.

Read full Judgment here: Click here

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Whether the court can presume that will was revoked by destruction if original will is not available before the court?

 The fact however remains that the original Will has not come before the Court.{Para 22}

23. The plaintiff has also not led any evidence of the whereabouts of the original Will except for the suggestion in the cross-examination of the defendant No. 3 appearing as DW-1 that the defendant No. 3 had misplaced the original Will.

24. The question which arises is whether from the mere non-availability of the original Will, the revocation by destruction thereof has to be presumed.

25. Section 70 of the Indian Succession Act, 1925 provides that no Will shall be revoked otherwise than (i) by marriage; (ii) or by another Will; (iii) or by some writing declaring an intention to revoke the same and executed in the same manner as a Will; or (iv) by burning or tearing or otherwise destroying the same by the testator with the intention of revoking the same. Therefrom it follows that from a mere non-availability of the original Will, the presumption of revocation by destruction thereof, is not to be drawn. It has to be proved by the person who pleads such revocation by destruction that the Will was destroyed with the intention of revoking the same. To that effect, as aforesaid, no evidence has been led by the defendants No. 1&3.

26. The Supreme Court in Durga Prashad Vs. Debi Charan MANU/SC/0250/1978 : (1979) 1 SCC 61 held that where a Will has been properly executed and registered by the testator and not found at the time of death, the question whether the presumption that the testator had revoked the Will can be drawn or not will depend on the facts and circumstances of each case. It was further held that in our country, most of the people are not highly educated and do not in every case take the care of depositing the Will in the bank or with the Solicitors and as a result of which the possibility of the Will being stolen, lost or surreptitiously removed by interested persons cannot be excluded. It was yet further held that when there is no obvious reason or clear motive for the testator to revoke the Will and yet the Will is not found on the death of the testator, it may well be that the Will was misplaced or lost or was stolen by the interested persons. An interesting discussion in this respect is also to be found in the judgment of the Division Bench of the High Court of Orissa in Brundaban Chandra Vs. Ananta Narayan Singh Deo MANU/OR/0046/1956 : AIR 1956 Orissa 151 and in Salem Town Bazaar Street, Kannika Vs T.K. Sadasivam Chettiar MANU/TN/0322/1980.

27. In the light of the said legal position, the judgment of the Division Bench of this Court in Pt. Devi Charan Vs. Durga Pershad MANU/DE/0042/1967 : AIR 1967 Delhi 128 relied on by the counsel for the defendants no. 1 and 3 and in which case, in the facts and circumstances thereof, a presumption of destruction from non availability of the original was drawn, is of no avail.

 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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Whether partition suit for leasehold property is maintainable?

 The counsel for the respondents/defendants No. 2 & 3 L & DO has reiterated that both the Lajpat Nagar house as well as Khanna Market property are situated on leasehold land, leases of which are in the joint names of appellant/plaintiff and the predecessor of the respondents/defendants No. 1 and cannot be sub-divided. He however agrees that this Court besides in Inderjit Singh supra, has in Chiranji Lal Vs. Bhagwan Das MANU/DE/0663/1991 : AIR 1991 Delhi 325, Mohinder Singh Vs. Kartar Lal MANU/DE/1309/1997 & Ram Lal Sachdeva Vs. Sneh Sinha MANU/DE/0222/2000 : 83 (2000) DLT 141 held that partition of superstructure on the leasehold land is not prohibited by the term of the Lease Deed prohibiting sub-division. {Para 14}

 IN THE HIGH COURT OF DELHI

RFA 595/2004

Decided On: 04.10.2013

Madan Lal Vs. Kuldeep Kumar and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: MANU/DE/4039/2013.

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Whether relinquishment of leasehold interest in partnership firm constitute transfer of tenancy right prohibited under bombay rent Act?

 The legislative prohibition against the transfer of tenant's interest in the premises, operates "notwithstanding anything contained in any law". these words signify the overriding effect of the legislative command that a tenant shall not transfer his interest in the tenancy. After setting out the prohibition, the legislature enumerates two specific modes of the prohibited transfers. They are; subletting and assignments. In order to preclude transfer by a mode not named in the Section, the legislature employed the words "in any other manner".

35. The word "transfer" in the clause "transfer in any other manner" is used in its generic sense to denote the idea of making over property to another person. Rejecting the restricted meaning of "transfer" in the Transfer of Property Act , this court went so far as to hold that devolution of tenant's interest by bequest falls within the prohibition of Section 15(1) Dr. Anant Trimbak Sabnis v. Vasant Pratap Pandit MANU/MH/0173/1980 : AIR1980Bom69 . The broad generic sense, taking in its sweep all species of dealings with tenant's interest resulting in making over of property is consistent with the object of the Section.

36. The legislature has used the word "any" which is word with a wide meaning and is used to exclude all limitations. Clarke - Jerviose v. Scutt - (1920) I Ch. 382. The legislature could not have fore sent the modes that may be employed for the purpose of transferring tenancy. Aware of this, the legislature specified subletting and assignment, the two known modes of transfer; but it took care to use the words signifying exclusion of any other mode, arrangement or process of transfer. The significance of the word "any" is clear if one notices its meaning. It weans "in any degree, to any extent or at all". Therefore, when the legislature used the word "any" with reference to the transfer, it clearly intended to say that no transfer "at all " or "to any extent" or "in any degree" shall be made, New Webster's Dictionary of the English Language. The meaning of the word "other" in the context of transfer is also significant. It is used to denote a form of transfer "different or distinct from the ones mentioned or employed" New Webster's Dictionary of the English Language.

37. Whether a tenant sublets or assigns his interest - the obvious modes named by the statute - or the tenancy is made over to another through the medium of dissolution of a firm or retirement from the partnership, the result is identical; for, the tenant's interest's interest has been parted with. Aware of this possibility, the legislature used these words to mean that the tenant's interest in the premises shall not be made over to another persons by any mode at all.

38. In my opinion, therefore, having regard to the meaning of the words, "in any other manner", the transfer of tenant's interest through the mode of dissolution of partnership or retirement from partnership is a transfer forbidden by Section 15(1) of the Bombay Rent Act .

39. My conclusions on the question of the validity of the transfer of tenancy may be summarised as under.

The Partnership Act conceives the interests of partners in severalty. There is no community or unity of interest between partners. Therefore, they hold immovable property of the firm as tenants-in-common and not as joint tenants. Having regard to the and not as joint tenants. Having regard to the incidents of tenancy-in-common, one partner has no interest in the share in the property of another partner. Where one partner transfers or relinquishment his share in the partnership business to another, the transfer partner has no antecedent title to the share of the transferring partner. Therefore the making over or relinquishment of leasehold interest as a part of the transferor's share in the assets of the firm constitutes transfer of such lease hold interest.

Section 15(1) of the Bombay Rent Act prohibits transfer of tenant's interest in the prohibits not only by subletting or assignment but also "in any other manner". The words "in any other manner" mean a manner other than by subletting and assignment. The effect of giving up of his share in the tenancy by a partner as a part of his share in the partnership is to make over his share in the tenancy. Such making over of tenancy or parting with tenancy constitutes transfer of tenant's interest "in any other manner". Such transfer of tenancy is forbidden by Section 15(1) of the Bombay Rent Act and is, therefore, void. The transferee partner does not, therefore acquire the transferor's interest in the tenancy.

IN THE HIGH COURT OF BOMBAY

Suit No. 756 of 1977

Decided On: 20.06.1989

Nariman Aspandiar Irani Vs. Adi Merwan Irani

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Whether relinquishment deed of leasehold interest in partnership firm is compulsorily registrable?

According to the Plaintiff, the ``gift`` is not valid as it is not made by registered instrument and attested by two witnesses as required by Section 123 of the Transfer of Property Act . The Defendant, on the other hand, asserts that the share in the partnership property even if it includes immovable assets is not immovable property. In view of the Supreme Court's ruling in Addanki Narayanappa v. Bhaskara Krishnappa MANU/SC/0281/1966 : [1966]3SCR400 . Followed in Commr. of Income Tax, West Bengal v. Juggilal Kamlapat MANU/SC/0130/1966 : [1967]63ITR292(SC) . I uphold the submission of Mr. Vyas, learned Counsel for the Defendant, that the interest of partners in a partnership firm, although it owns immovable property including leasehold interest, is movable property and, therefore, a document evidencing relinquishment of interest of one partner is not compulsorily registrable. 

IN THE HIGH COURT OF BOMBAY

Suit No. 756 of 1977

Decided On: 20.06.1989

Nariman Aspandiar Irani Vs. Adi Merwan Irani

Hon'ble Judges/Coram:

G.H. Guttal, J.

Citation: AIR 1989 Bom 362,1990 MHLJ 265

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Whether it is necessary to pay stamp duty on MOU by which leasehold rights are agreed to be transferred?

Hence, as rightly submitted by learned counsel for the Respondents, Maharashtra Stamp Act, 1958, being a fiscal statute, imposing financial liability, like all other such statutes, its provisions are required to be construed strictly. In the absence of any provision like 'Explanation' to Article 25, which makes the party liable to pay stamp-duty on the market-value of the plot, even on the MOU/Agreement of Sale, if the possession is transferred thereunder, there is no such corresponding 'Explanation' to Article 36, which deals with Agreement to Lease. If the intention of the legislature was to make such MOU for Agreement to Lease also, subject to payment of stamp-duty on market-value, if the possession was handed over thereunder, the legislature would have made such provision in the Act, as there was no difficulty to do so. Hence, in the absence of such provision, this court cannot, on the basis of some analogy, make the instrument, which is not covered under Section 3 of the Act, liable for stamp-duty.

In the face of the facts, which were appearing before the Trial Court, as the impounding of the MOU was sought and, that too, on the count that, under the said MOU, the possession was delivered and, therefore, the 'Explanation' to Article 25 was invoked and as that analogy cannot be accepted, considering the provisions of Articles 3 and 36 of the Maharashtra Stamp Act, 1958, in my considered opinion, the impugned order passed by the Trial Court does not call for any interference.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 13502 of 2017

Decided On: 23.01.2018

 Yuvraj Developers and Ors. Vs. Gavtya Dhondu Mhatre and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(3) MHLJ 95

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