VALMIKI J.MEHTA,J. - (1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff against the Judgment of the First Appellate Court dated 13.10.2015 which reversed the Judgment of the Trial Court dated 27.3.2015 whereby the trial court had decreed the suit of the appellant/plaintiff for permanent and mandatory injunctions and mesne profits with respect to the suit property no.C -169, Pandav Nagar, Delhi -92. The effect of the judgment of the first appellate court is that the suit of the appellant/plaintiff has been dismissed both for mandatory and permanent injunctions as also for mesne profits. I may note that appellant/plaintiff by claiming mandatory injunction, was effectively claiming possession of the suit property.
(2.) The sole issue to be decided in the present case is interpretation of the admitted Will dated 5.5.1992 left behind by late Sh. Sant Ram Sachdev who is the father -in -law of the appellant/plaintiff i.e the father of Sh. Raj Kumar, the husband of the appellant/plaintiff. Two issues arise as regards the interpretation of this Will. The first issue is as to whether the appellant/plaintiff became an absolute owner of the suit property or only received a life interest under the Will whereby there remained a right of remainder interest in the respondent no.1/defendant no.1 and his brother Sh. Krishan Kumar as per the Will dated 5.5.1992 of late Sh. Sant Ram Sachdev. The second issue is that even if the Will dated 5.5.1992 does not give a remainder interest to the respondent no.1/defendant no.1 and his brother Sh. Krishan Kumar, even then can it be said that the appellant/plaintiff is not entitled to the reliefs effectively of possession and mesne profits qua the suit property inasmuch as appellant/plaintiff was only one of the absolute co -owner, with her husband and the father of the respondent no.1/defendant no.1 and Sh. Krishan Kumar, being the other absolute co -owner, who has died intestate, and hence the respondent no.1 as the son inherited his share in the suit property out of the share of his father/Sh. Raj Kumar. The first appellate court has dismissed the suit by observing that interpretation of the Will even if the same shows that the appellant/plaintiff did not receive only life interest but was the absolute co -owner of the suit property, she was only one co -owner with the other co -owner being her husband Sh. Raj Kumar, and since her husband Sh. Raj Kumar (and the father of the respondent no.1) has died intestate, the respondent no.1/defendant no.1 would become one of the co -owners of the suit property by inheriting 1/3rd share out of the half share of his father Sh. Raj Kumar in the suit property, and that therefore he could not be evicted from the same. The relevant paras of the judgment of the first appellate court are paras 37 to 42 and these paras read as under: - "37. Looking the facts of the case from the other angle as well, assuming that the intention of the testator is to make the respondent Smt. Suman Lata and her husband Lt. Sh. Raj Kumar absolute owner of the suit property by the testator as per his Will dated 05.05.1992, still the respondent cannot be termed as the absolute owner of the suit property as per the Will dt. 05.05.1992, the relevant portion of Will Ex.PW1/A is as under: "I, the testator am the absolute owner uptill as I am alive, and after my death the said testimony my son and daughter -in -law (Sh. Raj Kumar S/o Sh. Sant Ram Sachdev and Smt. Suman Lata w/o Sh. Raj Kumar) shall before the absolute owner of the abovesaid property, who will be free to use, enjoy, sell, mortgage gift or transfer the same to any other person as they like without any interference or disturbance from other legal heirs, and he will also become the holder of my bank account or other movable and immovable property which have not been mentioned in this deed and after the death of the said testimonies Sh. Raj Kumar and Smt. Suman Lata W/o Sh. Raj Kumar Sachdev, the abovesaid property no. C -169, my bank account or other movable and immovable properties shall be automatically transferred in the name of my grandsons 'Kishan Kumar and Amit Kumar' sons of Sh. Raj Kumar Sachdeva, who will become the sole and absolute owner of the abovesaid property and holder of bank accounts, who will be free to enjoy, hold, sell, mortgage, gift or transfer the same to any other person they like without any interference or disturbance from other legal heirs such as sons (except the testimony Raj Kumar and daughter in law Smt. Suman Lata). If anyone raises any objection against the said property, that will be considered as null and void." According to the same after demise of Sh. Sant Ram Sachdev, the property shall devolve upon his son Raj Kumar and daughter -in -law Suman Lata. 38. In the present case, son of testator namely Sh. Raj Kumar Sachdev expired on 24.05.1993 leaving behind the respondent Smt. Suman Lata and two sons namely Amit Kumar (appellant herein) and Sh. Krishan Kumar. If property is bequeathed to two persons, would this mean on the demise of one person the other person shall become the absolute owner of the property. With respect the answer is 'No'. 39. Had the recital of the Will were, in case son of the testator pre deceased his daughter in law Suman Lata, the respondent herein, she shall become absolute owner of the suit property then thing would have been different, but it is not the case here. 40. If a person dies, the right of succession opens and his right shall be devolved upon his legal heirs in accordance with the same. In the present case Sh. Raj Kumar father of appellant and husband of respondent died on 24.05.1993 and the rights of Sh. Raj Kumar in case of his dying intestate would devolve upon his legal heirs by way of succession who here in the present case are appellant no.1, respondent and Sh. Krishan Kumar. Respondent in any circumstances, cannot be said to be the absolute owner of the suit property and if, she is not the absolute owner of the suit property then she has no right to file the suit for possession against the appellants qua the suit property. For the same, respondent has first to get her share determined, which is devolved upon her by way of succession on account of death of her husband and father of the appellant i.e. Sh. Raj Kumar by filing a suit for partition and thereafter, suit for possession could be maintained to that extent of the portion which falls to the respondent and not in any circumstances to the whole of the suit property. 41. It seems that Ld. Trial Court went on the footing that the respondent/plaintiff is the owner of the suit property by virtue of Will dt. 05.05.1992 and that the appellant no.1/defendant have admitted in his cross examination that respondent is the owner of the suit property. At the outset, I may say that the courts ought to have to go by what the law is and not by the submission of the parties and in particular when the appellant has stated a absolute different averment in its pleadings viz. that they are also the co -owner and has equal right in the suit property on the basis of the Will executed by their grandfather Lt. Sh. Sant Ram Sachdev. In such circumstances, the Trial court have to carefully analyze the facts and law and should not base his finding on the one or two statement of the appellant. 42. Before holding respondent as absolute owner of the property on the basis of the Will it is the duty of the court to go through the Will and thereafter, the court should pass any order as it thinks fit. In the opinion of the court, the trial court has misread the recitals of the Will and misinterpreted the evidence on record." (underlining added)
(3.) I completely agree with the aforesaid conclusions of the first appellate court inasmuch as the relevant paras of the Will executed by late Sh. Sant Ram Sachdev clearly show that both the appellant/plaintiff and her husband Sh. Raj Kumar became joint absolute co -owners of the suit property. Of course, in my opinion, even this finding of the first appellate court requires some modification as stated hereinafter though confirming the conclusion of the first appellate court that appellant/plaintiff and her husband Sh. Raj Kumar became the absolute co -owners of the suit property. I do not find any perversity or illegality whatsoever in the aforesaid conclusions of the first appellate court inasmuch as the husband of the appellant/plaintiff and the father of the respondent no.1/defendant no.1 has died intestate and therefore once Sh. Raj Kumar was one co -owner of the suit property, and who has died intestate, respondent no.1/defendant no.1 will hence be one of the co -owners of the suit property inheriting as son 1/3rd out of the half share of his father late Sh. Raj Kumar in the suit property.;