RAGHUNATH PRASAD AGARWAL Vs. HARISH AGARWAL

JUDGEMENT

(1.) SUDHIR Narain, J. The petitioner seeks grant of probate letters of ad ministration to him with the copy of the Will dated 31. 1. 1990 annexed with it to the extent of 1 /3rd share in the property of the testator Sri Raghunath Prasad Agarwal.

(2.) THE facts in brief are that Raghunath Prasad Agarwal executed his last Will on 31. 1. 1990 whereby he be queathed his property C-15 Surya Nagar, Ghaziabad to his wife and three sons. He expired on 25. 9. 1995. THE petitioner filed this petition on 1st February, 1997 claim ing l/3rd share in the property. THE notices were issued to his widow, two sons and two daughters. THE petition has been opposed by his widow Smt. Sushila Agarwal and two sons namely Sri Satish Kumar Agarwal and Rajesh Agarwal. THEy have admitted the execution of the Will but their objec tion is that the property was given ex clusively to the widow of the testator and only after her death the property in ques tion was to be devolved on three sons in equal shares. On the contentions raised by the parties following issues were framed:- "1. WHETHER the Testator had by his Will dated 31. 1. 1990 given absolute life interest to his wife Smt. Sushila Agarwal for enjoyment of the tenancy rights over the constructions only as alleged in paragraph No. 7 of the plaint? 2. WHETHER Smt. Sushila Agarwal has absolute ownership rights on the property No. C-15, Surya Nagar, Ghaziabad to the exclusion of her 3 sons who had no such right during her lifetime?

(3.) AS to what Relief, if any, is the petitioner entitled. 3. Issue Nos. 1, 2 and 4: These issues are related with each other and, therefore, are being decided together. The execution of the Will is not denied. The respondents have also admitted the execution of the Will by Raghunath Prasad Agarwal. The Will has also been proved by Niranjan Lal, the attesting witness who has filed affidavit stating therein that the Will was executed in his presence. It was read over to the testator and he signed the Will in his presence. The only question is whether the executant had given his wife life estate or absolute ownership in the property in question. In this context the relevant part of the Will is produced below:- "i, Raghunath Prasad Agarwal son of Late L. Surya Bhan aged 60 yrs. resident of C-15 Surya Nagar, Ghaziahad (U. P.) do hereby make and declare this as my last Will and Testament without any pressure of influence and with my free mind whereby, I bequeath and give to my wife Smt. Sushila Agarwal my property built on plot No. C-15 Surya Nagar, Ghaziabad (U. P.) alongwith the leasehold rights on the land Smt. Sushila Agarwal shall be the absolve owner of the said property after my death. And I hereby declare that I the sole owner of the above said property and it is free from all encumbrances, claims, charges, liens, demands mortgages and I have constructed this property from my own funds except the portion wherein my eldest son Shri Satish Kumar Agarwal lives in. This portion has been constructed by him by his own earned funds. I hereby further declare that the said property will be enjoyed by my wife solely and absolutely in whatever manner she desires. No further construction shall be done by any of my heirs during her life time. My three sons (1) Shri Satish Kumar Agarwal (2) Shri Harish Kumar Agarwal and (3) Shri Rajesh Kumar Agarwal shall not have any right in the said property except the portion which has been constructed by my eldest son Shri Satish Kumar Agarwal as stated above and he will continue to have his rights to live therein. After my death however, there will be equitable distribution of the said property amongst my above mentioned three sons. However, my eldest son Shri Satish Kumar Agarwal will have first option to retain the por tion constructed by himself through his own funds adjustable against his share of my said property. " (emphasis supplied) 4. From the reading of the aforesaid Will it is clear that the testator has given absolute rights of enjoyment of the property to his wife and only after her death the property was to be distributed amongst his three sons. There is however, some ambiguity in this deed. It provides "i bequeath and give my wife Smt. Sushila Agarwal my property built on plot No. C-15. Surya Nagar, Ghaziabad along with lease hold right on the land. Smt. Sushila Agarwal shall be the absolute owner of the said property after her death. " At another place it reads "i hereby further declare that the said property will be enjoyed by my wife solely and absolutely in whatever manner she desires. No further construction shall be done by any of my heirs during her lifetime. " At third relevant place he states that "after my death, however, there may be equitable distribution of the said property amongst my above mentioned three sons. " If the property had been given absolutely to his wife there was no oc casion for the testator to indicate his inten tion that his property shall be taken by his sons after his death. The Will has to be construed as a whole. The property can be taken by his sons only when it is held that his wife was to enjoy the property during her life-time. The first clause of the Will read with the other two clauses shows that the intention of the testator was that his wife was to enjoy the property absolutely during her life-time and only after her death the property in question was to be taken by his three sons. He had not given any share to his daughters and the reason for exclusion of his daughters are enumerated in the Will. It is not necessary to examine this aspect as the daughters have not filed any objection claiming their right in the property in question. 5. The second issue is regarding the right of the wife of the testator in the property. She has been given absolute right to enjoy the property but the enjoy ment does not confer any power to alienate the property to any person. In case such right is given the sons would be deprived of their right over the property in question after her death. The fact that the sons of the testator are to get the property under the Will after death of his wife implies that Smt. Sushila Agarwala was not given any right to alienate the property. The third issue is that word "my" used in the Will should be read as "her" wherein the testator has indicated that "after my death, however, there will be equitable distribu tion of the said property amongst my above mentioned three sons," The testator was conferring the power of absolute enjoy ment of the property in favour of his wife and at the same time could not have stated that the same property was to be dis tributed equally? amongst his three sons after his death. The word "my" should be read as "her" in the context of the entire contents of the Will. The three sons of the testator were to get the equal rights over the property in question after death of wife of the testator. Issue Nos. 1 and 4 are decided in affirmative. Issue No. 2 is decided in affirmative but with the clarification that Smt. Sushila Agarwal has only a life interest in the property.