Supreme Court of India
BHAGWAN KR I SHAN GUPTAversusPRABHA GUPTA & ORS.
- Citation
- 2009 INSC 262
- Decided
- 25 February 2009
- Disposal
- Dismissed
Holding
A family settlement between the brothers is permissible and the will must be given a broad construction using the arm‑chair rule, thereby upholding the division of the property as per the will.
Summary
The dispute arose between the heirs of Murari Lal Gupta (the testator) and the family of his brother Girdhari Lal Gupta over a property jointly owned by the brothers. The testator's will declared that the ground floor would vest in his four sons and the first floor in Girdhari's family, with both brothers having contributed equally to the acquisition and construction. The lower court issued a preliminary decree dividing the shares as per the will, which the High Court upheld. On appeal, the Supreme Court examined whether a family settlement could apply to a self‑acquired property and whether the will should be construed using the arm‑chair rule under Sections 74 and 82 of the Indian Succession Act. The Court held that the brothers' mutual declaration of equal ownership constituted a permissible family settlement, that the will must be given a broad construction considering surrounding circumstances, and that the arm‑chair rule was applicable. Consequently, the Supreme Court dismissed the appeal, affirming the division of the property as ordered by the lower courts.
Issues considered
- The proper construction of the will executed by Murari Lal Gupta
- Whether a family settlement is permissible when the property is self‑acquired
- Applicability of the arm‑chair rule of construction to the will
- Interpretation of Sections 74 and 82 of the Indian Succession Act in the present context
- Entitlement of the parties to specific portions of the property
Legislation cited
- Indian Succession Act, 1925s. 74, s. 82
Subjects
Will constructionFamily settlementArm‑chair rulePartition suitSuccession lawProperty divisionSelf‑acquired propertyEquitable distribution
Judgment
(2009] 3 S.C.R. 393
BHAGWAN KR ISHAN GUPTA A
v.
PRABHA GUPTA & ORS.
(Civil Appeal No. 1186 of 2009)
FEBRUARY 25, 2009
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Family dispute:
Partition of property - Family settlement - Permissibility c
- Held: Both.the brothers declare each other to be owners of
the property having equal share therein - Arrangement
between them by way of family settlement is permissible in
law.
Family settlement - Interpretation of - Held: D
Technicalities in interpretation should not be insisted upon -
If family settlement in relation to property was possible,
doctrine of arm chair rule of construction was applicable -
Doctrine of arm chair rule.
E
Succession Act, 1925:
ss. 74 and 82 - Will - Construction of - Held: Will should
be read as a whole and the surrounding circumstances may
be given effect to for the purpose of ascertaining intention of F
testator from words used and the surrounding circumstances
where for the Court will put itself in the armchair of the testator
- Will.
'M', the testator and 'G' were brothers. The property
in question was in the name of 'M'. A double storeyed G
building and a barsati were constructed thereon, which
were subject matter of the Will executed by 'M'. Appellant
is one of the heirs and LRs. of the testator. He filed
partition suit and a preliminary decree was passed on the
393 H
394 SUPREME COURT REPORTS [2009] 3 S.C.R.
A premise that the tenor of the Will suggested that the
property was to be divided equitably between the heirs
of testator and of the other brother. High Court upheld
the order of lower Court. Hence the present appeal.
Dismissing the appeal, the Court
B
HELD: 1. The materials on record show that the
property belonged to two brothers. The land might have
been acquired in the name of the testator but from the
declaration made in the will as also the other documents,
C it is evident that both the brothers contributed equally
thereto. [Para 1O] [399-G-H]
2. A Will is required to be construed like any other
instrument. Where however, a doubt arises in regard to
the intention of the testator, recourse to the arm chair rule •
0
is invoked. For the said purpose, the conduct of the
testator in regard to dealing with the property would be
admissible. The fact that the property in question stood
in the name of the testator is not in dispute. It, however,
. E stands accepted that both the brothers contributed
equally not only for acquisition of the said property but
also raising constructions thereupon. [Para 12] [400-H;
401-A-B]
3. A declaration was made by the testator himself that
F for all intent and purport, 'G' had half share in the property
and he was entitled thereto. As a declaration in derogation
of his title was made in the said Will by the testator, the
same would be relevant for interpretation of the Will. A
declaration was specifically made in the Will in regard to
G contribution by both the brothers in equal proportion not
only in respect of Ground Floor and the First floor but
also barsati thereof. Although when a property is a self-
acquired one, the doctrine of family settlement stricto
sensu may not be applicable but in a case of this nature
where both the brothers declare each other to be owners •
H
BHAGWAN KRISHAN GUPTA v. PRABHA GUPTA & ORS. 395
of the property having equal share therein, an A
arrangement between them by way of a family settlement
is permissible in law. Such a family settlement was not
only in relation to the title of the property but also in
relation to the use and possession thereof. By reason of
the said 'Will', therefore, whereas ownership of the B
ground floor vested in the four sons of the testator, the
ownership of the first floor vested in the members of the
family of 'G'. Barsati portion of the said house did not
figure in the vesting part of the said will. Paragraph 5 of
the said will refers to the use and possession so far as c
the share of the sons of the testator is concerned
meaning thereby the same would confine to the ground
floor' portion only. [Paras 15 and 17] [402-D, E, F, G; 403-
A]
4. The Will should be given a broad construction D
keeping in view the special equity principle. When there
is a family settlement, evidently, technicalities in the
matter of construction should not be insisted upon. If
family settlement in relation to the property in question
was possible, the doctrine of 'arm chair' rule of E
construction was applicable. [Paras 18 and 19] [403-F;
403-C; 404-D]
Hari Shankar Singhania and Others v. Gaur Hari
Singhania and Others (2006) 4 SCC _658; Ramdev Food
Products (P) Ltd. v. Arvindbhai Rambhai Patel and Others F
(2006) 8 SCC 726; Anil Kak v. Kumari Sharada Raje & Ors.
(2008) 7 SCC 695; Narendra Gopal Vidyarthi v. Rajat
Vidyarthi (2008) 16 SCALE 122, referred to.
5. Principles of c.onstruction of a Will, are laid down
in Sections 74 and 82 of the Indian Succession Act. It is G
well settled that the Will should be read as a whole and
the surrounding circumstances may be given effect to for
the purpose of ascertaining the intention of the testator
from the words used and the surrounding circumstances
wherefor the Court will put itself in the armchair of the H
396 SUPREME COURT REPORTS [2009] 3 S.C.R.
A testator. [Para 19] [405-E-F]
Case Law Reference:
(2006) 4 sec 658 referred to Para 18
(2006) 8 sec 726 referred to Para 19
B
(2008) 1 sec 695 referred to Para 19
(2008) 16 SCALE 122 referred to Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
C 1186 of 2009.
From the Judgment & Order dated 20.12.2007 of the
High Court of Delhi at New Delhi in Appeal bearing No.
F.A.O.(OS) 268/2006.
D
M.A. Chinnasamy for the Appellants.
Y.D. Nagar, K.S. Rana, H.K. Chabbra, Dalip Kumar
Malhotra, Rajesh Malhotra, Sachin Jain, Dr. Kailash Chand,
S.N. Bhat, M.L. Mahajan and Gaurav Mahajan for the
E Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
F 2. Interpretation of a Will executed by one Shri Murari Lal
Gupta, predecessor-in-interest of the parties herein falls for
consideration in this appeal which arises out of a judgment
and order dated 20th December, 2007 passed by a Division
Bench of the Delhi High Court in F.A.O. (OS) No.268/2006.
G
3. Murari Lal Gupta and Girdhari Lal Gupta were brothers.
A property bearing No.C-11, Green Park Extension, New Delhi
stood in the name of Murari Lal Gupta (the testator). A double
storeyed building and a barsati were constructed thereon. The
H said property was the subject matter of the Will.
BHAGWAN KRIS HAN GUPTA v. PRABHA GUPTA 397
& ORS. [S.S. SINHA, J.)
Appellant herein is one of the heirs and legal A
representatives of the testator. He filed a suit for partition in
the original side of the Delhi High Court. The said suit was, in
view of the issues involved, namely, interpretation of the will,
taken up for hearing on the basis of pleadings of the parties.
A preliminary decree was passed, directing : B
"(i) The plaintiffs together will get 1/4th of the half share
of the branch of Late Murari Lal Gupta;
(ii) The defendants Nos. 1 (a) and 1(b) shall together
get 1/4th out of the half share of Late Murari Lal C
Gupta;
(iii) The defendants 2 & 3 shall each get 1/4th of the
half share of Late Murari Lal Gupta;
D
(iv) The defendant Nos. 5 and 6 will each get 1/3rd of
the half share of Late Girdhari Lal Gupta; and
(v) The defendant Nos. 7 (a to f) together get 1/3rd of
the half share of Late Girdhari Lal Gupta."
E
4. The aforementioned order was passed on the following
premise:
"Considering the contents of paragraph 3 as also the
contents of paragraph 5, I am of the opinion that the tenor
of the will suggests that the property should be divided F
equitably. The testator has attempted to divide it equitably
and to put such division beyond the pale of controversy.
However, for some odd reason, the division of the Second
Floor (Barsati Floor) has not been made out in clear terms
and this has resulted in the present dispute." G
5. An intra court appeal was preferred thereagainst. It
was dismissed in limine. However, a special leave petition
was filed before this Court which was marked as Special Leave
Petition (C) No.12350 of 2006. Upon hearing the parties, the H
398 SUPREME COURT REPORTS [2009] 3 S.C.R.
A appeal was allowed and the matter was remitted by this Court
by an order dated 27.04.2007, directing :
"The Division Bench of the High Court, in our opinion has
not dealt with the matter fully and in particular the
construction of the Will executed by Shri Murari Lal Gupta
8
which in our opinion, deserved serious consideration. We,
therefore, set aside the impugned Judgment and remit the
matter back to the High Court. We would request the
Division Bench of the High Court to consider the
desirability of disposing the appeal, keeping in view the
c nature of the dispute between the parties, as expeditiously
as possible and preferably within a period of three months
from the date of communication of this order."
6. By reason of the impugned Judgment, the High Court
D has dismissed the said appeal.
7. Mr. Chinnasamy, learned senior counsel appearing on
behalf of the appellant, would submit :
(i) Both the learned Single Judge as also the Division
E Bench of the High Court committed a serious error
in passing the impugned judgment in so far as they
failed to notice the distinction between a
'declaration' and 'bequest' parts in the Will in mind.
Whereas paragraph 3 of the Will contains a
F declaration on the part of the testator in regard to
the right of the parties, the actual 'bequeath' of the
house has been made in terms of para 4 thereof.
(ii) The property in question being the self-acquired
G property of the testator, the concept of family
arrangement was not applicable.
(iii) Right. title and interest in the property as well as the
possession thereof having remained in the testator
throughout and the bequest having been made only
H in respect of the first floor of the said property, the
BHAGWAN KRISHAN GUPTA v. PRABHA GUPTA 399
& ORS. [S.S. SINHA, J.]
learned Single Judge as also the Division Bench A
committed a serious error in constructing the said
will by putting itself in the purported 'arm chair' of
the testator, as the said doctrine was not applicable
in this case.
8. Mr. Dalip Kumar Malhotra, learned Counsel appearing B
on behalf of respondent No. 6 supported the contention of the
learned counsel.
9. Mr. K.S. Rana, learned counsel appearing on behalf of
respondent Nos. 4 and 5, Mr. S.N. Bhatt, learned counsel C
appearing on behalf of respondent Nos. 7 to 14 and Dr. Kailash
Chand, learned counsel appearing on behalf of respondent
Nos. 1 to 3, on the other hand, would contend :
(1) Both the brothers having contributed equally for D
acquisition of the land as also for the construction
of the house thereupon were entitled to equal share
thereof.
(2) In a case of this nature the High Court having put
.. fair interpretation of the will, no interference
therewith by this court is warranted particularly in
view of the stand taken by both the brothers before
E
the Revenue Officer as also the affidavits affirmed
by them.
F
(3) 'Family settlement' by reason of the said will having
not been questioned, appellant is estopped and
precluded from raising the said contention before
this court for the first time.
10. From the materials on record, it appears that the G
property belonged to two brothers. The land might have been
acquired in the name of the testator but from the declaration
made in the will as also the other documents brought on record
by the parties, it is evident that both the brothers contributed
equally thereto. H
400 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 11. Before, however, we consider the questions relating
to interpretation of the said will, we may notice the relevant
part thereof.
"That at present I am absolute legal owner of immovable
property consisting of a residential house C-11, Green
B Park Ext. New Delhi.16 which was got constructed by me
on a plot of land purchased by me out of my own income
and sources.
I further declare that half of the cost of the plot in this land
c was paid to me by my deceased younger brother Sh.
Girdhari Lal Gupta. The construction of the building on the
ground floor and the 1st floor and the barasati thereon was
got done by me out of my own income and sources.
However, the half of the cost of construction was paid to
D
rne by my deceased younger brother. As a family
settlement it has been agreed that the ownership of the
ground floor of this house shall vest in my four sons and
they shall have its complete possession for their use and
similarly the ownership of the 1st floor of this building shall
E vest in the members of the family of my deceased younger
brother Mr. Girdhari Lal Gupta.
...
This arrangement has been agreed to by both the families
and shall not be changed by any one of us except when
F necessary by mutual consent in writing by all concerned.
As regards share of my four sons in my aforesaid house I
declare that they shall have equal shares of ownership of
this property and therefore all the four sons shall have
equal rights for its use and its possession for all times.
G
I have also cash deposited in my saving Ne in the State
Bank of India, Green Park, New Delhi and I declare that
all my four sons share the amount equally."
H 12. A will is required to be construed like any other
BHAGWAN KRISHAN GUPTA v. PRABHA GUPTA 401
& ORS. [S.B. SINHA, J.]
instrument. Where however, a doubt arises in regard to the A
intention of the testator, recourse to the arm chair rule is
invoked. It is neither in doubt nor in dispute that for the said
purpose the conduct of the testator in regard to dealing with
the property in question would be admissible. The fact that the
property in question stood in the name of the testator is not in B
dispute. It, however, stands accepted that both the brothers
contributed equally not only for acquisition of the said property
but also raising constructions thereupon.
13. To the Revenue Authority for the purpose of mutation C
in respect of the premises in question, the testator issued a
letter which reads as under :
"I, Murari Lal Gupta S/o Late Sri Ganga Ram hereby
informed that I and late Girdhari Lal Gupta are real brothers
from late Shri Ganga Ram, House No. C-11, Green Park D
Extension, New Delhi-110016 is owned jointly by myself
and my aforesaid brother Late Sri Girdhari Lal Gupta. My
share in the aforesaid house is one half i.e. ground floor
and the other one half share i.e. Isl floor and Barsati Floor
belongs to my brother late Sh. Girdhari Lal Gupta. The E
completion plan of the house showing the details is
enclosed herewith. The share belonging to me has been
shown in red whereas the share belonging to my brother
Late Shri Girdhari Lal Gupta has been shown in green.
F
It is requested that the division of property be made
in my name & in the name of my brother's wife Smt. Subz
Kali since my brother has expired. The house tax bill of the
property be sent separately in future."
14. An application for mutation was also filed. The said G
application was affirmed by an affidavit of the testator which
reads as:
"I, Murari Lal Gupta son of late Shri Ganga Ram, aged
about 66 years, r/o C-11, Green park Extension, New H
402 SUPREME COURT REPORTS [2009] 3 S.C.R.
A Delhi, do hereby solemnly declare and affirm as under:
1. That I and Shri Girdhari Lal Gupta are real brothers
from the late Shri Ganga Ram.
2. That House No. C-11, Green Park Extension, New
B Delhi, is owned jointly by myself and my aforesaid
brother, Shri Girdhari Lal Gupta.
3. That my share in the aforesaid house is one half and
the other one half share belongs to my said brother,
c Shri Girdhari Lal Gupta."
To the same effect is the affidavit of the other brother
namely Shri Girdhari Lal Gupta:
15. It is, therefore, evident that a declaration had been
D made by the testator himself that for all intent and purport,
Girdhari Lal Gupta had half share in the property and he was
entitled thereto. As a declaration in derogation of his title has
been made in the said Will by the testator, the same would be
a relevant factor for the purpose of construction of the Will. A
E declaration was specifically made in the will in regard to
contribution by both the brothers in equal proportion not only
in respect of Ground Floor and the First floor but also barsati
thereof.
F 17. Although when a property is a self-acquired one, the
doctrine of family settlement stricto sensu may not be applicable
but in a case of this nature where both the brothers declare
each other to be owners of the property having equal share
therein, an arrangement between them by way of a family
settlement is permissible in law. Such a family settlement was
G not only in relation to the title of the property but also in relation
to the use and possession thereof. By reason of the said
'Will', therefore, whereas ownership of the ground floor vested
in the four sons of the testator, the ownership of the first floor
vested in the members of the family of Girdhari Lal Gupta.
H Barsati portion of the said house does not figure in the vesting
-
BHAGWAN KRISHAN GUPTA v. PRABHA GUPTA 403
& ORS. [S.B. SINHA, J.]
part of the said will. A
Paragraph 5 of the said will refers to the use and
possession so far as the share of the sons of the testator is
concerned meaning thereby the same would confine to the
ground floor portion only. B
18. We may place on record that the learned senior
f· counsel appearing on behalf of the appellant very fairly stated
that so far as the title of the sons of Girdhari Lal Gupta in the
first floor of the building is concerned, the same is not disputed.
A family settlement, therefore, in our opinion, in a situation of C
..... this nature was permissible. The Will should be given a broad
construction keeping in view the special equity principle.
In Hari Shankar Singhania and Others v. Gaur Hari
Singhania and Others [2006 (4) SCC 658], this court has o
stated :
"Another fact that assumes importance at this stage is that
a family settlement is treated differently from any other
formal commercial settlement as such settlement in the eye
of the law ensures peace and goodwill among the family E
members. Such family settlements generally meet with
approval of the courts. Such settlements are governed by
a special equity principle where the terms are fair and
bona fide, taking into account the well-being of a family."
' F
19. When there is a family settlement, evidently,
technicalities in the matter of construction should not be insisted
upon.
The effect of a family settlement fell for consideration in G
Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel
and Others [2006 (8) sec 726], wherein it was categorically
held:
"The MoU, for the purpose of these appeals, may be
treated to be a family settlement. It is, however, well known H
-
404 SUPREME COURT REPORTS (2009] 3 S.C.R.
A that the intention of the parties to an instrument must be
gathered from the terms thereof examined in the light of
the surrounding circumstances (See Sohan Lal Naraindar
v. Laxmidas Rahgunath).
xxx xxx xxx
B
We may proceed on the basis that the MoU answers the
principles of family settlement having regard to the fact that
the same was actuated by a desire to resolve the disputes
and the courts would not easily disturb them as has been
c held in s. Shanmugam Pillai v. K. Shanmugam Pillai,
Kale v. Dy. Director of Consolidation and Hari Shankar
Singhania v. Gaur Hari Singhania."
Thus, if family settlement in relation to the property in
question was possible, in our opinion, the doctrine of 'arm .,
D chair' rule of construction was applicable.
In Anil Kak v. Kumari Sharada Raje & Ors. ((2008) 7
SCC 695], this Court held :
37. The testator's intention is collected from a consideration
E 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
F 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. (See Bajrang
Factory Ltd. v. University of Calcutta.)
G In Narendra Gopal Vidyarthi v. Rajat Vidyarthi [2008 (16)
SCALE 122], this Court held :
"29. The very fact that the testator categorically stated that
the extent of title in the property will depend upon the
amount of additional contribution required to be made from
H the fund of Vidyarthi and Sons itself is an indication to show
/
BHAGWAN KRISHAN GUPTA v. PRABHA GUPTA 405
& ORS. [S.B. SINHA, J.]
•,
that his wish was that title should vest in the beneficiaries A
to the extent of the property which represented the amount
of Rs.30,000/- out of the total amount of consideration
required to acquire the same. There cannot be any doubt
whatsoever that his intention also was that the entire cash
may not be paid to Chandramukhi as she was of gullible B
character. She could be made to part therewith by any
•
other person by sweet words. A precaution was, therefore,
required to be taken. The amount was required to be spent
wisely. The amount which was required for their
maintenance and education of appellant whether derived c
from the interest or from the rental only was to be handed
over. It is only for the aforementioned limited purpose, the
trust was created. The sole beneficiary of the trust, in our
opinion, was merely the appellant and his mother. It may
"' be true that the property was purchased in the name of the
D
testator himself. The High Court commented that the same
could have been done in the name of the appellant and
his mother or at least the purchase could have been a joint
one. But the Will is required to be construed on the basis
of the terms used therein and not otherwise."
E
Principles of construction of a Will, inter alia, are laid
down in Sections 74 and 82 of the Indian Succession Act. It
is well settled that the Will should be read as a whole and the
surrounding circumstances may be given effect to for the
purpose of ascertaining the intention of the testator from the F
words used and the surrounding circumstances wherefor the
Court will put itself in the armchair of the testator. We, therefore,
do not find any legal infirmity in the impugned judgment.
20. For the reasons aforementioned, there is no merit in
the case. Accordingly, the appeal is dismissed with costs . G
• Counsel's fee assessed at Rs.25,000/- (Rupees twenty five
thousand only).
_.,
D.G. Appeal dismissed.
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