Joshi Vs. Beena Sharma & Ors  Insc 232 (25 April 2006)
Sinha & P.P. Naolekar S.B. Sinha, J :
was executed on 3.1.1980 by one Harbans Lal Joshi. He passed away on 5.3.1981
leaving behind the following heirs and legal representatives:
Late Shri Basant
Kumar Joshi (deceased son of Shri H.L. Joshi) through:
Joshi widow of Shri Basant Kumar Joshi.
Gunjan Joshi d/o
Shri Basant Kumar Joshi.
s/o Shri Basant Kumar Joshi.
Dr. Sahib Swarup
Joshi s/o Shri H.L. Joshi.
Joshi s/o Shri H.L. Joshi.
Shri Prem Swarup
Joshi s/o Shri H.L. Joshi.
Sharma d/o Shri H.L. Joshi.
Smt. Shanti Devi
d/o Shri H.L. Joshi
1984, the 1st respondent herein filed an application purported to be under
Section 276 of the Indian Succession Act, 1925 ('the Act', for short) for grant
of probate in respect of the said Will. Objections were filed thereagainst. By
an order dated 28.2.1996, the learned Additional District Judge, Delhi held
that the said Will executed by the afore-mentioned Harbans Lal Joshi, was valid
in law and had been executed by him in sound disposing mind. The prayer for
grant of probate as made by the 1st respondent was, therefore, allowed. The
widow of Shri Harbans Lal Joshi, Smt. Pushpawati Joshi, respondent No.2 Smt.
Chandra Kala Joshi, widow of deceased B.K. Joshi s/o Harbans Lal Joshi and
respondent No.7Dr. Sahib Swarup Joshi preferred an appeal against the said
judgment and order dated 28.2.1996 before the Delhi High Court. It was
registered as F.A.O.No.248 of 1996. Smt. Pushpawati, the widow of Late Harbans Lal
Joshi died on 12.1.1999. The appellant herein filed an application for her
transposition and/or substitution as an appellant in place of Late Pushpawati.
said application has been rejected by the Registrar of the Delhi High Court.
One of the appellants in the said appeal, namely, Dr. Sahib Swarup Joshi moved
an application for withdrawal from the said appeal and his name was deleted from
the array of the appellants and was transposed to the category of a respondent.
not in dispute that certain stipulations made in the said Will are vague. The
parties found it difficult to work out the said Will.
learned Single Judge of the Delhi High Court noticed the said fact in an order
also not in dispute that various Interlocutory Applications were moved before
the learned Judge hearing the matter.
afore-mentioned order dated 6.2.2003, the learned Judge opined:
there is an unusual clause in the Will couched in a slightly vague words,
arguments on the point that what shall be the effect of such a clause in a
Will, which cannot be implemented on account of unwillingness of a person in a
reasonable time, who has just accepted an onerous will to raise the
construction. It may be part and parcel of the Will.
No.4 Sahib Swaroop Joshi shall remain present in person for it appears that he
is responsible for causing the problem by not constructing his portion.
court may be inclined to stuck off his defence in case he fails to appear to
answer specific question about the date when he intends to construct his
portion. If he is not ready to construct, then the counsel for all parties
shall take this aspect into consideration while making written
submissions." Interim orders were also passed on 13.3.2003 and 20.3.2003.
In the latter order it was directed:
appellant and other respondents being bound by the terms of the will are
restrained from raising any objection to the sanctioning of the plan by
respondent No.5 which will be submitted by the respondent No.5 in terms of the
order dated 13th March,
2003 and in terms of
the will of the deceased Shri Harbans Lal Joshi. The other parties to the will excepting
Shri Gurswaroop Joshi, respondent No.2, can also apply to get the plan
sanctioned for raising construction, in respect of their portion. Shri Gurswaroop
Joshi failed to pay the amount in terms of the will and not willing to pay now
at the market rate to compensate his brothers etc. As such he cannot be
permitted as consequences of non-payment have come into effect. However, the
MCD is supposed to sanction plan in accordance with rules." The contention
of Ms. Sandhya Goswami, learned counsel appearing on behalf of the appellant is
that by reason of interim orders, vested right of a party cannot be taken away.
It was urged that having regard to the order dated 6.2.2003, as it was clearly
opined that the terms of the Will was vague and this was void on the ground of
uncertainty, the same could not have been directed to be enforced by reason of
interim orders, particularly, when the appeal as against the order granting
probate in respect of the Will is still pending.
learned counsel appearing on behalf of respondent Nos.2, 3, 5 and 6 supported
the contention of the appellant.
L.D. Adhlakha, the learned counsel appearing on behalf of the 1st respondent,
on the other hand, would submit that the appellant herein having accepted the
genuineness of the Will in the Court of the Additional District Judge, now
cannot turn round and question the validity thereof. It was urged that the
appellant was neither an appellant, nor any order had been passed against him
and, thus, this appeal should be dismissed.
not in dispute that the legality or otherwise of the judgment of learned
Additional District Judge, directing grant of probate in respect of the Will
dated 3.1.1980 executed by Late Shri Harbans Lal Joshi, is in question.
said appeal has been entertained by the High Court. It is, therefore, required
to be disposed of on merit The contents of the said Will are alleged to be
vague. Whether the terms stipulated therein are capable of being implemented,
would be a matter of construction of the Will at the hands of the High Court.
The High Court, therefore, was first required to determine the validity or
otherwise of the said Will. Sections 81 and 89 of the Indian Succession Act
Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.-
there is an ambiguity or deficiency on the face of a will, no extrinsic
evidence as to the intentions of the testator shall be admitted. xxx xxx xxx
Will or bequest void for uncertainty.-
or bequest not expressive of any definite intention is void for
uncertainty." Thus, if the contents of the Will are found to be vague
despite the genuineness thereof, the grant of probate in favour of the 1st
respondent may, ultimately, be declined. It is in that view of the matter, the
High Court must be held to be not justified in passing interim orders in
mandatory form in terms of which not only the appeal preferred by the
respondent Nos.2, 3, 5 and 6 herein would become infructuous, the parties would
also be forced to give effect to the provisions of the said Will, although,
they may have reservations in relation thereto. Grant of mandatory injunction
on the afore- mentioned premise, in our opinion, therefore, suffers from
[See Union of India & Ors. vs. Modiluft Ltd. (2003) 6 SCC
65, Para 11 and Srikrishna & Ors. vs. Aniruddha
Singh & Ors. (2005) 12 SCC 389.] In any event, the order of the learned
Additional District Judge would merge in the order of the Appellate court which
may ultimately be passed and thus, it is necessary that before the stipulations
made in the said Will are directed to be given effect to, the contentions
raised by the appellant, as also the respondent Nos.2, 3, 5 and 6 should
receive proper consideration by the High Court.
Prasad & Ors. vs. Jagdish Prasad & Ors. (2004) 8 SCC 724, this Court
held that when an Appellate court exercises its power and passes a judgment,
the same would replace the judgment of the lower court and only its judgment
would be treated as final.
the foregoing reasons, the impugned orders cannot be sustained, which are,
accordingly, set aside. However, having regard to the peculiar facts and
circumstances of this case, we would request the High Court to consider the
desirability of disposing of the appeal as expeditiously as possible and
preferably within a period of two months from the date of communication of this
order. The High Court, indisputably while disposing of the appeal, would take
into account the effect of various interim orders passed at different stages.
appeals are allowed with the afore-mentioned observations and directions.