1. Heard Sri Ashish Agrawal, learned counsel for the defendant/appellant and Sri Manish Goyal, learned Senior Counsel assisted by Sri Archit Mehrotra, learned counsels for the plaintiff/respondent.
2. This first appeal has been preferred by the defendant/appellant against the judgement and decree dated 21.09.2013 passed by Additional Civil Judge (Senior Division), Court No. 6, Ghaziabad in Original Suit No. 1057 of 2009 (Sri Umesh Kumar Vs. Sri Kamlesh Kumar).
3. The plaintiff's case is that the plaintiff and the defendant are real brothers. Their mother and father were late Smt. Shanti Devi and late Smt. Kanti Swaroop Singhal respectively. The mother of the parties purchased a semi-constructed house no. K.G-26, Kavinagar, Ghaziabad, by means of a registered sale deed dated 02.09.1983 from Sri Jagdish Chandra Mittal. After purchasing the house, she got the ground floor fully constructed having four rooms drawing room, kitchen, toilet etc., and one room, verandah, kitchen, toilet etc., on the upper portion. On 02.06.2020, the Ghaziabad Development Authority executed a freehold deed in favour of the mother of the parties. The mother of the parties, Smt. Shanti Devi, executed a will dated 31.07.2004 and she died subsequently on 25.12.2004. As per the aforesaid will dated 31.07.2004, the entire ground floor of the House No. K.G-26, Kavinagar, Ghaziabad, shall remain in the ownership and possession of Kamlesh Kumar and the entire portion on the first floor shall remain in the ownership and possession of Umesh Kumar. They shall use their share of property as per possession and the remaining property was given to the third brother of the parties, Lokesh Kumar. The plaintiff wants to make constructions on the upper floor. He requires sanctioning of map from Ghaziabad Development Authority. For getting loan from the bank, he needs a document of title regarding his share in the property in dispute. The plaintiff requested the defendant to execute the documents in Nagar Nigam and other offices, as per the will. He kept on avoiding him on some pretext or the other. The plaintiff has retired from his job in June, 2007 and doing temporary job at Noida. He wants to live in the house in his share and wants to get the same constructed further. The cause of action for filing suit arose in the month of May, 2009 when the defendant refused to execute documents in favour of the plaintiff in government offices. Hence, the suit was instituted praying for a decree of declaration that the plaintiff is the owner of the entire upper storey of House No. K.G-26, Kavinagar, Ghaziabad.
4. The defendant filed his written statement stating that in paragraph nos. 8 and 9 thereof that the plaintiff has no right to raise any construction in the suit property. In additional pleas, it was stated that the suit is founded upon an unprobated will. Hence, not maintainable. It was further stated that by virtue of the will, the lower portion of the property in dispute was given to the defendant and upper portion to the plaintiff to use and utilize their respective shares as they liked. Their deceased mother further gave preferential right to the defendant that in the event, the plaintiff intends not to live there, he will dispose of the property in consultation with the defendant. In paragraph no. 16 of the written statement, the defendant claimed that both the parties are in possession over their respective constructed portions of the house and their staircase as well as the roof above the first floor is the joint property of the parties and regarding them, the plaintiff has no right to claim any exclusive right. The entire building is old one and its foundation was laid keeping in mind the construction of two floors only and further construction cannot be supported by the foundation. The last wish of the deceased mother of the parties was that there should be no construction above the first floor of the house as the plaintiff has no exclusive right of the roof of the first floor. The suit is barred by Sections 34 and 38 of the Specific Relief Act. The suit has been filed by the plaintiff only to harass the defendant. Hence, the same deserves to be dismissed with special costs.
5. The plaintiff filed replica to the written statement filed by the defendant stating that as per will, the parties are in possession over the property. The defendant is in possession of ground floor and the plaintiff is in possession of first floor and they are using it accordingly. The pleading in the written statement that the stairs of the house in dispute and the floor above the ground floor is joint property of the parties, is wrong. The defendant has no concern with the floor, stairs and the construction above the first floor, it belongs to the plaintiff only. The defendant has no concern with the roof of the ground floor. The pleading in the written statement that the foundation of the building is weak and in case of any construction made above first floor, there is threat to the house, is incorrect. The foundation of the house is not weak. The plaintiff is getting constructions made on the first floor for which he needs sanction of map from Ghaziabad Development Authority and necessary permission from other departments but defendant is not cooperating. Hence, he is unable to make further construction on the first floor.
6. On the basis of the pleadings, the trial court framed the following issues :-
(i) Whether the plaintiff is the owner in possession of the upper storey of disputed house on the basis of will dated 31.07.2004 ?
(ii) Whether without probate of the will dated 31.07.2004, the suit is not maintainable ?
(iii) Whether the suit is undervalued and the court fees paid is insufficient ?
(iv) Whether the suit is barred by the provisions of Section 34 and 38 of the Specific Relief Act ?
(v) To what relief is the plaintiff entitled to ?
7. The plaintiff produced the original will in evidence and his statement was recorded as P.W.1. His witness, Bijendra Kumar, was also examined as P.W.2 before the trial court.
8. The defendant did not adduce any documentary evidence and only got himself examined as D.W.1.
9. Regarding issue no. (i), the trial court held that as per the will, the parties are to get equal shares. Hence, the plaintiff was given ownership of the entire upper portion of the ground floor and it includes the constructions made above ground floor and roof. The plaintiff has right to use the same as per his convenience and make constructions thereon without causing any loss to the defendant. Issue no. (ii) was decided holding that in the State of U.P., probate of a will is not mandatory. Issue no. (iii) regarding valuation and court fees was decided in favour of the plaintiff. Issue no. (iv) regarding the suit being barred by Section 34 and 38 of the Specific Relief Act was also decided in favour of plaintiff holding that the suit is not barred by the aforesaid sections. Regarding issue no. (v), the trial court recorded the finding that as per the conclusion recorded while deciding issue no. (i), the plaintiff is the owner of full portion above the ground floor and has every right to enjoy the same till any harm is caused to the rights of the defendant and decreed the suit of the plaintiff.
10. Learned counsel for the defendant/appellant has submitted that the trial court has committed patent error of law in decreeing the suit which was instituted for the relief of declaration simplicitor without any relief of injunction and it was not maintainable. The will was silent with respect to the rights of the roof. It remains joint property of the legal heirs of the testator, namely, plaintiff and the defendant and plaintiff cannot claim any exclusive right over the same. In case the plaintiff/respondent raises construction over and above the first floor, it may cause damage to the entire building and thus, no such right has been given to the plaintiff in the will. There is a common water tank on the roof of the first floor which is being used by both the parties. The finding of the court below that the mother of the parties intended to give equal rights to them, is incorrect and not mentioned in the will. Without framing any issue on easementary right and in the absence of any pleading in the plaint, the trial court has granted exclusive right to use staircase to the plaintiff/respondent. The defendant claimed exclusive right over the roof and the finding of the trial court that his right over roof is an easement, is wrong. The finding of the trial court that plaintiff can raise construction over and above the first floor is not in accordance with the material on record. What has not been given in the will cannot be given by the court. The remaining brothers and sisters who were also legal heirs of the testator were not made party to the suit and therefore, it suffers from non-joinder of necessary parties. The terrace rights/roof rights are distinct and substantive rights of the defendant independent of ownership of first floor in the building which cannot be presumed to be in exclusive ownership of the plaintiff/respondent. The suit for a decree of declaration simplicitor filed by plaintiff was not maintainable as per judgement of the Apex Court in the case of Venkataraja Vs. Vidyane Doureradjaperumal, (2014) 14 SCC 502.
11. Learned counsel for the plaintiff/respondent has submitted that the language of the will is quite unambigious and it clearly provides that the ground floor of House No. K.G-26, Kavinagar, shall be owned by testator's younger son, Kamlesh Kumar. He will be free to use the same as he likes. It was even stated that the ownership of upper portion of the same house shall go to my middle son, Umesh Kumar. In case, he does not wants to live therein, he will consult Kamlesh Kumar and do whatever he likes. It has been submitted that no evidence was led by the plaintiff to prove that there was any other interpretation of the will. The will was very clear regarding the shares of the parties. The defendant was rightly held by the trial court to be disentitled to claim his easementary rights on the terrace. He has further submitted that in the suit for declaration simplicitor against a person who denies right to a property to a person legally entitled thereto, the proviso to Section 34 of the Specific Relief Act will not be attracted. In this case the plaintiff did not needed any further relief since he was in possession of property as its owner on the basis of will.
12. After hearing learned counsel for the parties, the following points of determination arise for consideration in this appeal :-
(a) Whether the defendant/appellant has any right over the roof of first floor of the building as per the will dated 31.07.2004 and plaintiff has right to raise constrution over and above the first floor ?
(b) Whether the suit of the plaintiff was barred by Section 34 and 38 of the Specific Relief Act ?
13. For deciding the above point of determination no. (a), the contents of the will in dispute are required to be considered. The paragraph no. 3 of the will is very relevant. It is as follows :-
(3A) The ownership of the lower portion of my House No. K.G-26, Kavinagar, shall go to my younger son, Kamlesh Kumar. He can use it as he likes.
(3B) The ownership of the upper portion of this house of mine shall go to my middle son, Umesh Kumar. If for any reason, he does not lives in the same then after consulting Kamlesh, he can do whatever he likes.
(3C) My third son, Lokesh Kumar does not intends to live here and he wants to live at Noida. He has purchased a land and has started making construction wherein some money of mine was also invested. Therefore, in this house, he will not have ownership. Rs. 2,00,000/- only shall be given to him from my property.
14. In paragraph no. 4 of the will, the testator stated that she has already distributed the jewellery among her daughter-in-laws. One or two jewelleries in her personal use and Rs. 2 lakhs from her remaining money shall be paid to her daughter, Shailja. In paragraph no. 5, she stated that the remaining money shall be divided in 5 parts. One part each shall be given to her three sons and fourth part shall be given to her daughter. The fifth part shall be spent in social and religious work, like service of poor, help of poor students, etc.
15. From a bare perusal of the will, it is clear that the testator clearly divided her money and property among her four children by virtue of the will. No ownership in the house in dispute was given to her third son and daughter and therefore, they were not necessary parties in the suit. The will clearly defined the ownership and share of the parties. There is no dispute between the parties that the will in dispute is not genuine. Therefore, the recital in the will shall be deemed to be admitted to both the parties. The Apex Court in the case of Navneet Lal Versus Gokul, (1976) 1 SCC 630, held in paragraph no. 8 regarding the principle of construction of will which is as follows :-
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. {Ram Gopal v. Nand Lal [1950 SCR 766]} (2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(1913) 41 Ind App 51 at p. 72] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case (supra) and Gnanambal Ammal v. T. Raju Ayyar (1950 SCR 949, 955)] (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (1953 SCR 232, 240] (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Pearey Lal v. Rameshwar Das (1963 Supp. 2 SCR 834, 839, 842].
(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. {Ramachandra Shenoy v. Mrs. Hilda Brite[(1964) 2 SCR 722, 735]} The Apex Court in Bajrang Factory Ltd. & Anr. v. University of Calcutta & ors. [(2007) 7 SCALE 496) held:
"43. With a view to ascertain the intention of the maker of the Will, not only the terms thereof are required to be taken into consideration but all also circumstances attending thereto. The Will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the Will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same."
Therein the word `devise' was read as `desire'. If this Court is to put itself into the testator's armchair to ascertain his intention from the words used in the Will; it must take into consideration the surrounding circumstances, the position of the testator, his family relationships, and attach importance to isolated expressions so as to give effect to all the clauses in the Will rather than making some of it inoperative.
The Apex Court again in Anil Kak v. Kumari Sharda Raje reported in 2008 (6) SCALE 597 held:
"The testator's intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part."
There cannot be any doubt whatsoever that in the event of inconsistency between two parts in the Will, the last shall prevail having regard to Section 88 of the Act, but, once it is possible to give effect to both the clauses which although apparently appears to be irreconcileable, the court should take recourse thereto.
16. From above consideration, it is clear that the intention of the testator has to be gathered from the will. As considered above, the testator during her lifetime had very clear intention to divide her movable and immovable properties between her three sons and daughters and therefore, in the will, she clearly provided for distribution of her properties between them. Apart from the money in cash and the house in dispute, she took care to distribute her ornaments also between her daughters-in-law during her lifetime. Her intention was that after she has gone, her children may enjoy her property peacefully and exclusively without interfering with the rights of each other. In the present suit also, the remaining son and the only daughter of the testator never sought impleadment. The case setup by the plaintiff/respondent that he is exclusive owner of the first floor is fully corroborated from clause (3B) of the will which clearly provides that the ownership of the upper portion of the house shall be of plaintiff, Umesh Kumar. A plain and literal construction of the will, if considered with the overall intention of the testator, clear from the will, leads to irresistible conclusion that the defendant was not given any right over the upper floor and constructions existing thereon have come in ownership of the plaintiff by virtue of the will. There is no legal impediment in giving any other construction to clause (3A) and (3B) of the will of the testator. The will very clearly divides the ownership of the disputed house between two sons of the testator in the hope that they will own and enjoy the property peacefully after the death of their mother. The reading of something more than what is mentioned clearly in the will by the defendant, cannot be justified. The defendant is trying to create his rights on the property which was exclusively given in the ownership of plaintiff by his mother by virtue of the will.
17. Regarding second point of determination :- Before proceeding with this point of determination, this Court finds it convenient to reproduce relevant sections of Specific Relief Act :-
(i) Section 34 of The Specific Relief Act, 1963
(ii) Section 38 of The Specific Relief Act, 1963 Section 34 in The Specific Relief Act, 1963
34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
Section 38 in The Specific Relief Act, 1963
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
18. A perusal of Section 34 of the Specific Relief Act shows that a suit for declaration simplicitor will lie against defendant since he was denying the right of the plaintiff to part of the property bequeathed on him by the will of his mother. He sought declaration from the court by instituting the suit only for the purpose of getting a document certifiying his right to the bequeathed property since the defendant was not cooperating with him in getting the map sanctioned from Ghaziabad Development Authority and in getting permission from other government offices. Since the will was the only document in his possession, the plaintiff was unable to prove his right without a declaration from the court. The will was also not probated. Hence, the suit for declaration simplicitor was maintainable since the plaintiff was not in the need of any other further relief against defendant. He was already in possession and there was no threat from the defendant regarding invasion of his possession. Therefore, the suit was not barred by Section 34 of the Specific Relief Act. Regarding bar of Section 38 of the Specific Relief Act, this Court finds that under Section 38, an injunction restraining the defendant from disturbing possesion may not be granted in favour of plaintiff unless he proves that he was not in actual possession of the suit property on the date of institution of the suit. Permanent injunction can be granted only to a person who is in actual possession of the property on the date of suit. In the present case, there was no issue of perpetual/permanent injunction involved since defendant was not disturbing the possession of the plaintiff. The plaintiff had instituted the suit only to get a declaration that he is rightful owner in possession over the entire upper portion of the House No. K.G-26, Kavinagar, Ghaziabad. There was no threat to his possession and therefore, he was not in need of any permanent injunction against the defendant. From Section 38(3) of the Specific Relief Act, it is clear that a perpetual injunction may be granted to a plaintiff when the defendant invades or threats to invade the plaintiff's right of enjoyment of property; where the invasion is such that compensation in money would not afford adequate relief and where injunction is necessary to prevent multiplicity of judicial proceedings.
19. The judgement of the Apex Court in the case of Venkataraja (supra) cited on behalf of the defendant/appellant is distinguishable on facts as is clear from paragraph nos. 16, 17 and 18 thereof :-
16. The very purpose of the proviso to Section 34 of the Act 1963, is to avoid the multiplicity of the proceedings, and also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in force, the 9th Report of the Law Commission of India, 1958, had suggested certain amendments in the proviso, according to which, the plaintiff could seek declaratory relief without seeking any consequential relief, if he sought permission of the court to make his subsequent claim in another suit/proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the Act 1963.
17. A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that "mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief." In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held:
"......a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree."
18. In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves.
As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs.
20. From the above judgement of the Apex Court, it is clear that in that case, the plaintiff was in possession and not the defendants but in the present case, the plaintiff is in possession of the suit property. Hence, the plaintiff did not required any other relief like possession like in the case cited above except decree of declaration.
21. The fine distinction between Section 34 and Section 38 of the Specific Relief Act is that in Section 34, a mere suit for declaration does not lie when consequently relief like injunction can be claimed and is available but under Section 38, injunction can be granted even if no declaratory relief is expressly prayed for.
22. From the above consideration, it is clear that the suit of the plaintiff was neither barred by Section 34 nor Section 38 of the Specific Relief Act.
23. In view of the answers to the point of determinations framed above, the judgement and decree of the trial court do not suffer from any illegality and are hereby confirmed.
24. This first appeal is, accordingly, dismissed with costs.
Order Date :- 25.08.2021 KS