Decided on January 03,2007

Jagdip Mehta Respondents


Pradeep Nandrajog, J. - (1.) THE present suit has brought into focus an interesting legal issue pertaining to immovable property. Property law has an unenviable reputation for its complexity. And I must confess that this reputation is thoroughly deserved. Of all the laws, I find myself most ignorant regarding law relating to property. The problem is not with property, but with conveyancing, since the latter is concerned with how rights in property are created and transferred.
(2.) THE largest estate in land is absolute ownership. But in today's world, due to down planning and building laws, since most of the urban land is held on certain conditions, the ancient maxim: cujus est solum, ejus est usque est ad coelum et ad inferos, meaning that the owner of the soil is presumed to own everything 'up to the sky and down to the center of the earth' but become redundant, probably to be kept in the legal archives. Kuldeep Mehta and Jagdeep Mehta are brothers. Like all brothers do, they are fighting over the estate left behind by Late Krishan Lal Mehta, their father who died on 21.12.1982.
(3.) THE dispute relates to a will, Ex. PW -1/1, executed by him on 18.2.80. The will reads as under: - My family consists of my wife Mrs. Savitri Mehta and two major sons Shri Kuldip Mehta and Shri Jagdip Mehta. The former is currently resident in Bombay and the latter by virtu of being an Executive in a Shipping Company is afloat on board the ship he is operating. He comes to stay with my wife and me during his leave. His wife and child likewise stay with my wife and I when they are not with Shri Jagdip Mehta. The house in which I live - M -140, Greater Kailash -I, is self acquired property. It is a two storied structure with an annex consisting of a garage and a servant quarter. After my demise the ownership of the house would vest in my sons Shri Kuldip Mehta and Sh. Jagdip Mehta as indicated below: - (a) The first floor of the house will vest in my elder son Shri Kuldip Mehta. (b) The ground floor will vest in my younger son Shri Jagdip Mehta. (c) The Ggarage will vest in Shri Jagdip Mehta. (d) The servant quarter will vest in Shri Kuldip Mehta. Shri Jagdip mehta being an Executive Officer in a Shipping Company is some times in Delhi. While he will be the owner of the ground floor flat, my wife Smt. Savitri Mehta if she survives me would be entitled to reside in the ground floor flat whether or not Shri Jagdip Mehta is in Delhi. If Shri Jagdip Mehta or his family are in Delhi he and or his family will be entitled to reside in the ground floor flat along with the mother Smt. Savitri Mehta. Shri Kuldip Mehta would inherit the first floor flat. However, the rental income if any, actually received would be handed over by my wife Smt. Savitri Mehta during her life time. Such amount as may be necessary to meet taxes and maintenance obligations would be paid out of the rent so received. My wife will have no right to transfer or alienate or dispose of any interest in the property in which she has been given a life interest, without the consent in writing of my two sons. On the other hand neither of my sons will have the right to transfer or alienate or dispose of any interest in the said property during the life time of my wife Smt. Savitri Mehta. If my sons or either of them predeceases me then his interest will stand bequeathed to his widow and children/child. Besides this, any other property movable or immovable which I may be possessed of at the time of my demise, I bequeath to my wife Smt. Savitri Mehta. This is my last will and Testament. I hereby revoke any other will or Testament which may have been executed earlier. Sd/ -Krishan Lal MehtaR/o, M -140, Greater Kailash -I,New Delhi - 110048. on the 18th day of Feb. 1980;

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