Interpretation of Will Deed whether the right vested in Nirmala Murthy was absolute in nature.? Apex court held that it was absolute in nature - as the Will not imposed any restictions by saying that after the death of his wife and further main clause prevails over the lame clause.

Interpretation of Will Deed 
whether   the   right  vested   in   Nirmala   Murthy   was   absolute   in nature.? 
Apex court held that it was absolute in nature - as the Will not imposed any restictions by saying that after the death of his wife and further main clause prevails over the lame clause.

While the Appellants argued in favour of an absolute right, Respondent No. 1 submitted that the dominant intention of
the testator was to look after his children and give them a share in   the   property,   thereby   implying   that   the   right   of   Nirmala Murthy was only intended to be limited to a life interest in the property. 
9.    Since the issue essentially turns on the interpretation of the Will, it would be useful to note certain principles that should be borne in mind while undertaking the construction of a will. At
its very core, the exercise involves an endeavour to try and find out   the   intention   of   the   testator.   This   intention   has   to   be gathered primarily from the language of the will, reading the
entire document as a whole, without indulging in any conjecture or speculation as to what the testator would have done had he been   better   informed   or   better   advised.   In   construing   the
language of a will, the Courts may look to the nature and the grammatical   meaning   of   the   words   used,   and   also   consider surrounding circumstances such as the position of the testator,
his family relationship, and other factors that may surface once the Court puts itself in the position of a person making the will [see Shyamal Kanti Guha (dead) through LRs v. Meena Bose,
(2008) 8 SCC 115]. 
10.   Keeping in mind these principles and upon a close reading of the wording of the Will dated 07.06.1995, we find that the   testator   intended   to   give   his   wife,   Nirmala   Murthy
(Respondent             No. 2) absolute rights over the suit property, by making her the sole legal and rightful heir of all his immovable and movable properties.  
 By   according   Nirmala   Murthy   the   right   to   sell,
mortgage, and lease the house or even to bequeath it to anybody
who takes care of her in her last days, it is clear that the testator
intended to create an absolute interest in her favour, and to
preclude his daughter and son (Appellant No. 1 and Respondent
No. 1 respectively) from succeeding to the suit property. This is
further   supported   by   the   clause   stating   that   the   decision   of
Nirmala Murthy in exercise of these rights would be supreme and
the children would have no right to question or put an unjust
claim against the same. 
To this extent, we agree with the finding of the High Court that Nirmala Murthy had an absolute right in the suit property and that the children were disinherited from the bequest.

However, we hasten to add here that such right vested with Nirmala Murthy was intended to be completely unfettered in nature. 
The contention raised by Respondent No. 1 that she only had a life interest in the property as the testator necessarily wanted   a   sale   of   the   property,   cannot   be   accepted.   
This   is because the part of the Will where the testator states that “the house  should  be  sold  and  sale  amount  be  divided  among  my daughter and my  son” is preceded by the expression 
“it is my desire”. Juxtaposed with this, the bequest in favour of Nirmala Murthy is characterized by words such as “my wife shall be sole legal and rightful heir over my immovable and movable property and she will have every right and authority to sell, mortgage and lease…”.   
The   assertive   language   used   in   favour   of   Nirmala Murthy   is   a   clear   indication   of   the   creation   of   an   absolute bequest in her favour, while the use of non­mandatory words
such as ‘desire’ indicate that the testator did not wish to compel his wife to sell the suit property. 
He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose.
 We also note that the High Court erred in observing that in the event that a sale was to be made by Nirmala Murthy, both   the   children   would   be   entitled   to   a   share   in   the   sale
proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his
desire as compulsory dictates on such absolute ownership goes against   the   clear   wording   of   the   Will,   and   would   amount   to rewriting it. Thus, we do not find that there was any bequest
made in favour of the children of the testator under the Will dated 07.06.1995. 
In   this   regard,   reliance   sought   to   be   placed   by Respondent   No.   1   on   the   decision   in  Kaivelikkal   Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule   of   last   intention   is   only   applicable   when   there   is inconsistency in the bequests. We may note the following excerpt
from the decision:
“4. A Will may contain several clauses and the latter
clause may be inconsistent with the earlier clause. In
such a situation,  the last intention of the testator is
given effect to and it is on this basis that the latter
clause is held to prevail over the earlier clause. This is
regulated by the well­known maxim “cum duo inter se
pugnantia reperiuntur in testamento ultimum ratum est”
which   means   that   if   in   a   Will   there   are   two
inconsistent provisions, the latter shall prevail over the
earlier   (See: Hammond,   Re,
Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR
903] ).
…6. It may, however, be pointed out that this rule of
interpretation can be invoked only if different clauses
cannot   be   reconciled.  (See: Rameshwar   Bakhsh
Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ
1133] ).”
(emphasis supplied)
Here, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made
thereafter. 
As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator. 
In any case, even if it is assumed that the latter clause went beyond a mere expression of desire and created a bequest in favour   of   the   children   of   the   testator   (Appellant   No.   1   and Respondent No. 1), the first clause creating an absolute right in favour of Nirmala Murthy shall prevail over such clause. 
In this regard, the following observations of this Court in Mauleshwar
Mani (supra) are relevant:
“11. From the decisions referred to above, the legal
principle that emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his
absolute interest in the property in favour of his
wife, any subsequent bequest which is repugnant
to the first bequeath would be invalid; and
(2) where a testator has given a restricted or limited
right in his property to his widow, it is open to
the testator to bequeath the property after the
death of his wife in the same will.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1798­1799 OF 2014
M.S. BHAVANI AND ANR.      …APPELLANTS
VERSUS
M.S. RAGHU NANDAN               ….RESPONDENTS
J  U D  G  M  E  N T
MOHAN M. SHANTANAGOUDAR, J.
1.          The instant appeals arise out of the common final
judgment and order dated 01.10.2012 passed by the High Court
of Karnataka at Bangalore in R.F.A. No. 1888/2011 and R.F.A.
No. 1889/2011. Vide the impugned judgment, the High Court
partly   allowed   R.F.A.   No.   1888/2011   by   affirming   the   relief
granted by the Trial Court that Respondent No. 1 herein is not
bound by the sale deed executed by his mother in favour of the
Appellants herein. Further, the High Court dismissed R.F.A. No.
1889/2011 vide the impugned judgment. 
1
2.      The factual background to these appeals is as follows:
2.1      The suit property was the self­acquired property of one
M. Srinivasa Murthy (hereinafter ‘testator’) who had purchased it
from the Bangalore Development Authority in 1974.   He had a
daughter namely M.S. Bhavani (Appellant No. 1 herein) and a son
namely M.S. Raghu Nandan (Respondent No. 1 herein). Appellant
No. 1 initially got married in 1983 and a son named Sameera was
born to her. However, her marriage ended in a divorce and she
then married one Suresh Babu (Appellant No. 2 herein) in 1994.
At such time, her son was about 10 years old. 
2.2       In 2002, M. Srinivasa Murthy died, leaving behind his
last   Will   dated   07.06.1995,   written   in   his   own   handwriting
(holograph) and registered before the Sub­Registrar, Rajajinagar,
Bangalore. Under this Will, he had bequeathed the suit property
in favour of his wife, Nirmala Murthy (Respondent No. 2 herein). 
2.3      In exercise of the rights vested in her by the Will dated
07.06.1995, Respondent No. 2 Nirmala Murthy executed a sale
deed   on   25.02.2004   in   favour   of   the   Appellants   herein   (her
daughter and son­in­law) for the sale of the suit property for a
consideration of Rs. 16,42,000/­ (hereinafter  ‘the sale deed’). It
2
has  been stated  that  such amount  was paid in  cash  by the
Appellants at the time of the execution of the sale deed.
2.4          Respondent No. 1 herein filed O.S. No. 6341/2006
against his mother Nirmala Murthy (Respondent No. 2), and his
sister   and   brother­in­law   (the   Appellants   herein),   seeking   a
declaration inter alia that his mother and sister were not entitled
to execute any sale deed in favour of his brother­in­law, as he
had a share in the suit property and the Will dated 07.06.1995
only gave his mother, Nirmala Murthy, a life interest in respect of
such property.
2.5          Later, O.S. No. 1845/2008 came to be filed by the
Appellants against Nirmala Murthy seeking her ejectment from
the suit property on the ground that she was a mere licensee,
who had only been permitted to stay in the property after the sale
in 2004, as the Appellants were residing in Australia. It was
stated that the Appellants did not wish to continue the said
licence in her favour, as she had joined hands with Respondent
No. 1 to file O.S. No. 6341/2006 against them. 
2.6          Vide common judgment dated 09.09.2011, the IIIrd
Additional City Civil Judge, Bangalore City partly decreed the suit
for declaration, O.S. No. 6341/2006, noting that though the Will
3
dated 07.06.1995 vested absolute rights with Nirmala Murthy in
respect of the disposition of the suit property, the sale to the
Appellants was vitiated by fraud inasmuch as Nirmala Murthy
never  intended  to  sell  the  property  to  the  Appellants.  It  was
further   found   that   the   Appellants   had   gotten   the   sale   deed
executed   by  misrepresentation   by   obtaining   Nirmala   Murthy’s
signatures on the pretext that they were required on her visa
applications for travel to Australia. In light of this, it was held
that   the   sale   deed   did   not   bind   Respondent   No.   1,   being   a
fraudulent document against the intention of the testator. Based
on such finding, ejectment suit O.S. No. 1845/2008 was also
dismissed.
2.7      In the appeal before the High Court, vide the impugned
judgment dated 01.10.2012, it was observed that the nature of
the   right   vested   with   Nirmala   Murthy   under   the   Will   dated
07.06.1995 was absolute and she had unfettered powers to sell
the property, as long as her discretion was exercised voluntarily.
However, the High Court also noted that in the event that a sale
was made by Nirmala Murthy, both her children (Appellant No. 1
and Respondent No.1 herein) would be entitled to a share in the
sale proceeds. As regards fraud or coercion in the execution of
4
the sale deed, the High Court modified the findings of the Trial
Court and observed that there was no material on record to show
that Nirmala Murthy had been drugged or threatened at gunpoint
so as to execute the sale deed in question. Notwithstanding this,
the final relief granted by the Trial Court that Respondent No.1
was not bound by the sale deed, was confirmed on the basis that
such   sale   deed   was   against   the   intention   of   the   testator
inasmuch   as   it   should   have   been   executed   in   a   transparent
manner, after obtaining the concurrence of Respondent No. 1.
2.8      It is against this common judgment that the Appellants
have come in appeal before this Court. At this juncture, it may
also be noted that Respondent No. 2 Nirmala Murthy passed
away during the pendency of the proceedings before this Court.
3.          Heard learned Counsel for the parties.
4.      Learned Senior Counsel, Mr. Dhruv Mehta appearing for
the   Appellants,   first   drew   our   attention   to   the   Will   dated
07.06.1995 to argue that Nirmala Murthy became the absolute
heir to the suit property thereunder, and had an unfettered right
to sell the property without informing or consulting any of her
children and to deal with the sale proceeds in a manner of her
choice. Alluding to the use of the word “desire” in respect of the
5
sale proceeds being divided among the children of the testator, he
submitted that there is no bequest in the latter part of the Will in
favour of Respondent No. 1 so as to accord him any rights over
the suit property. In any case, relying upon the decisions in
Mauleshwar   Mani  v.  Jagdish   Prasad,   (2002)   2   SCC   468,
Madhuri  Gosh  v.  Debobroto  Dutta, (2016) 10 SCC 805, and
Siddamurthy   Jayarami   Reddy   (dead)   by   LRs.    v.  Godi
Jayarami   Reddy, (2011) 5 SCC 65, he argued that once an
absolute right was vested with Nirmala Murthy, any subsequent
right in favour of the children in the event of the sale of the
property would be repugnant to such absolute right of ownership
and   thereby   be   invalid.   As   regards   the   sale   deed   dated
25.02.2004, it was argued that the validity of such deed and
payment of valuable consideration thereunder are beyond the
scope of the suit filed by Respondent No. 1 and should have
therefore not been considered by the Trial Court and the High
Court. 
5.      Per contra, learned Counsel Mr. S.N. Bhat appearing for
Respondent   No.   1,   emphasized   on   reading   the   Will   dated
07.06.1995   holistically,   pointing   to   an   underlying   dominant
6
intention of only giving a life interest in the suit property to
Nirmala Murthy, and not to bequeath it absolutely to her. In this
regard, he adverted to clauses allegedly indicating an intention to
settle the properties on the two children and conferring rights on
them in respect thereof, particularly by disposing of the property
and providing them with a share in the sale proceeds. To support
his contention that such latter parts of the Will dated 07.06.1995
granting a share in the property to Respondent No. 1 should be
given effect, he relied on the decisions in Ramachandra Shenoy
v.  Mrs.   Hilda   Brite,  AIR   1964   SC   1323 and  Kaivelikkal
Ambunhi  (dead)  by  LRs.    v.  H.  Ganesh  Bhandary,  (1995) 5
SCC 444, which hold that in the event of a conflict between two
clauses of a Will, the latter one shall prevail. As regards the sale
deed   dated   25.02.2004,   learned   Counsel   alluded   to   the
observations by the Trial Court and the High Court regarding the
suspicious   circumstances   in   which   such   deed   was   executed.
Based   on   this,   he   argued   that   no   title   had   passed   to   the
Appellants by virtue of such deed, especially in the absence of a
sale consideration. 
7
6.        Upon perusing the record and hearing the arguments
advanced,   we   find   that   the   following   points   arise   for   our
consideration:
(a)  Whether   the   testator   of   the   Will   dated   07.06.1995
intended   to   vest   Nirmala   Murthy   with   an   absolute
interest in the suit property?
(b)  If   yes,   whether   the   sale   deed   dated   25.02.2004   was
against   the   Will   dated   07.06.1995,   and   therefore
unenforceable as against Respondent No. 1?
We will be adverting to each of these in turn.
7.      As regards the first point, it would be useful to refer to
the relevant excerpts of the Will dated 07.06.1995, which are as
follows:
“I herein execute this last Will and testament on this
day the date 7th of June of 1995 out of my free will and
in bound (sic) mind and health…
My daughter M.S. Bhavani is a divorcee from her first
husband and has a son by him by name Sameera aged
10 years. She is a Doctor by profession and practicing
privately.
One Gentleman by name Sri Suresh Babu who is an
M.Tch   in   Civil   Engineering   and   by   profession   a
structural   Engineer   and   consultant   and   with   his
progressive and magnanimous outlook came forward
to my daughter in spite of she having a son of 10
years.
I celebrated the marriage of my daughter M.S. Bhavani
with Sri. Suresh Babu on 6th July 1994…
My   daughter   is   staying   with   him   and   her   son
separately in a rented house.
8
It   is   my   moral   duty   to   provide   her   a   share   in   my
immovable   property,   i.e.   House   No.   377,   5th  Main
Road, 3rd Block, 3rd Stage, Basaveshwar Nagar.
After my death, my wife Smt. Nirmala shall be sole
legal and rightful heir over my immovable and movable
property and she will have every right and authority to
sell, mortgage and lease my house or totally bequeath
it to anybody who take care of her in her last days, and
old age also.
The decision of my wife Smt. Nirmala is supreme in
this matter and none of my children, i.e., Bhavani and
Raghunanda have any right to question my wife, put
unjust   claim,   obstruct   or   put   any   obstacle   for   the
manner my deals with my property.
It is my desire that the house should be sold and sale
amount be divided among my daughter and my son as
per the decision of my wife. My wife shall endev (sic) to
sell the house (sic) during her lifetime.
In case my wife is unable to sell the house during her
lifetime, my daughter shall be the seller of the house
and she should (sic) the house mutually with my son
Raghunanda.”
(emphasis supplied)
          A   reading   of   the   above   portion   of   the   Will   dated
07.06.1995, clearly indicates that the testator sought to provide
for the manner in which his wife Nirmala Murthy would have a
right to the suit property and how she would deal with the same.
In addition to this, he also sought to provide for the manner in
which the property may be dealt with by his daughter and son, in
the   event   that   his   wife   did   not   sell   the   property   during   her
9
lifetime. Notably, this second part is not attracted at all in the
present case, as Nirmala Murthy sold the suit property during
her lifetime.
8.          The question that then remains to be answered is
whether   the   right  vested   in   Nirmala   Murthy   was   absolute   in
nature. While the Appellants argued in favour of an absolute
right, Respondent No. 1 submitted that the dominant intention of
the testator was to look after his children and give them a share
in   the   property,   thereby   implying   that   the   right   of   Nirmala
Murthy was only intended to be limited to a life interest in the
property. 
9.    Since the issue essentially turns on the interpretation of
the Will, it would be useful to note certain principles that should
be borne in mind while undertaking the construction of a will. At
its very core, the exercise involves an endeavour to try and find
out   the   intention   of   the   testator.   This   intention   has   to   be
gathered primarily from the language of the will, reading the
entire document as a whole, without indulging in any conjecture
or speculation as to what the testator would have done had he
been   better   informed   or   better   advised.   In   construing   the
language of a will, the Courts may look to the nature and the
1
0
grammatical   meaning   of   the   words   used,   and   also   consider
surrounding circumstances such as the position of the testator,
his family relationship, and other factors that may surface once
the Court puts itself in the position of a person making the will
[see Shyamal Kanti Guha (dead) through LRs v. Meena Bose,
(2008) 8 SCC 115]. 
10.          Keeping in mind these principles and upon a close
reading of the wording of the Will dated 07.06.1995, we find that
the   testator   intended   to   give   his   wife,   Nirmala   Murthy
(Respondent             No. 2) absolute rights over the suit property,
by making her the sole legal and rightful heir of all his immovable
and movable properties.  
10.1  By   according   Nirmala   Murthy   the   right   to   sell,
mortgage, and lease the house or even to bequeath it to anybody
who takes care of her in her last days, it is clear that the testator
intended to create an absolute interest in her favour, and to
preclude his daughter and son (Appellant No. 1 and Respondent
No. 1 respectively) from succeeding to the suit property. This is
further   supported   by   the   clause   stating   that   the   decision   of
Nirmala Murthy in exercise of these rights would be supreme and
the children would have no right to question or put an unjust
1
1
claim against the same. To this extent, we agree with the finding
of the High Court that Nirmala Murthy had an absolute right in
the suit property and that the children were disinherited from the
bequest.
10.2 However, we hasten to add here that such right vested
with Nirmala Murthy was intended to be completely unfettered in
nature. The contention raised by Respondent No. 1 that she only
had a life interest in the property as the testator necessarily
wanted   a   sale   of   the   property,   cannot   be   accepted.   This   is
because the part of the Will where the testator states that “the
house  should  be  sold  and  sale  amount  be  divided  among  my
daughter and my  son” is preceded by the expression “it is my
desire”. Juxtaposed with this, the bequest in favour of Nirmala
Murthy is characterized by words such as “my wife shall be sole
legal and rightful heir over my immovable and movable property
and she will have every right and authority to sell, mortgage and
lease…”.   The   assertive   language   used   in   favour   of   Nirmala
Murthy   is   a   clear   indication   of   the   creation   of   an   absolute
bequest in her favour, while the use of non­mandatory words
such as ‘desire’ indicate that the testator did not wish to compel
1
2
his wife to sell the suit property. He merely desired that his wife
should endeavour to sell the property during her lifetime and
divide the sale proceeds as she chose.
10.3  We also note that the High Court erred in observing
that in the event that a sale was to be made by Nirmala Murthy,
both   the   children   would   be   entitled   to   a   share   in   the   sale
proceeds. As mentioned supra, the testator intended to create an
absolutely unfettered right in favour of his wife by virtue of the
Will. Reading in other clauses that are merely expressive of his
desire as compulsory dictates on such absolute ownership goes
against   the   clear   wording   of   the   Will,   and   would   amount   to
rewriting it. Thus, we do not find that there was any bequest
made in favour of the children of the testator under the Will
dated 07.06.1995. 
10.4 In   this   regard,   reliance   sought   to   be   placed   by
Respondent   No.   1   on   the   decision   in  Kaivelikkal   Ambunhi
(supra), to argue that the subsequent bequest made in the latter
part of the Will had to be given effect, is also misplaced, as the
rule   of   last   intention   is   only   applicable   when   there   is
inconsistency in the bequests. We may note the following excerpt
from the decision:
1
3
“4. A Will may contain several clauses and the latter
clause may be inconsistent with the earlier clause. In
such a situation,  the last intention of the testator is
given effect to and it is on this basis that the latter
clause is held to prevail over the earlier clause. This is
regulated by the well­known maxim “cum duo inter se
pugnantia reperiuntur in testamento ultimum ratum est”
which   means   that   if   in   a   Will   there   are   two
inconsistent provisions, the latter shall prevail over the
earlier   (See: Hammond,   Re,
Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR
903] ).
…6. It may, however, be pointed out that this rule of
interpretation can be invoked only if different clauses
cannot   be   reconciled.  (See: Rameshwar   Bakhsh
Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ
1133] ).”
(emphasis supplied)
Here, there is no inconsistency in the clauses of the
Will inasmuch as the house property was absolutely bequeathed
to Nirmala Murthy and no inconsistent bequest has been made
thereafter. As discussed supra, the part of the Will providing for
the sale of the property during her lifetime and the distribution of
the sale proceeds between the children cannot be treated as a
bequest, as it was a mere desire expressed by the testator. 
10.5 In any case, even if it is assumed that the latter clause
went beyond a mere expression of desire and created a bequest in
favour   of   the   children   of   the   testator   (Appellant   No.   1   and
1
4
Respondent No. 1), the first clause creating an absolute right in
favour of Nirmala Murthy shall prevail over such clause. In this
regard, the following observations of this Court in Mauleshwar
Mani (supra) are relevant:
“11. From the decisions referred to above, the legal
principle that emerges, inter alia, are:
(1) where under a will, a testator has bequeathed his
absolute interest in the property in favour of his
wife, any subsequent bequest which is repugnant
to the first bequeath would be invalid; and
(2) where a testator has given a restricted or limited
right in his property to his widow, it is open to
the testator to bequeath the property after the
death of his wife in the same will.
12. In view of the aforesaid principles that once the
testator has given an absolute right and interest in his
entire   property   to   a   devisee   it   is   not   open   to   the
testator   to   further   bequeath   the   same   property   in
favour of the second set of persons in the same will, a
testator cannot create successive legatees in his will.
The object behind is that once an absolute right is
vested in the first devisee the testator cannot change
the line of succession of the first devisee. Where a
testator having conferred an absolute right on anyone,
the   subsequent   bequest   for   the   same   property   in
favour of other persons would be repugnant to the first
bequest in the will and has to be held invalid. In the
present case the testator Jamuna Prasad under the
will   had   bequest   his   entire   estate,   movable   and
immovable   property   including   the   land   under   selfcultivation, house and groves etc. to his wife Smt Sona
Devi and thereafter by subsequent bequest the testator
gave   the   very   same   properties   to   nine   sons   of   his
1
5
daughters, which was not permissible…” 
   
 (emphasis supplied)
         Notably, these observations were reaffirmed by this
Court in Madhuri Gosh (supra) as well.
10.6 Given that we find that an absolute right was given to
Nirmala   Murthy   over   the   property,   in   view   of   the   aforesaid
decisions,   any   subsequent   bequest   sought   in   favour   of   the
children   of   the   testator   cannot   be   given   effect.   Further,   the
reliance of Respondent No. 1 on the decision in Ramachandra
Shenoy (supra) is misplaced inasmuch as the Clause in the Will
in that case stated thus:
“3.(c) All kinds of movable properties that shall be in
my possession and authority at the time of my death
i.e. all kinds of moveable properties inclusive of the
amounts that shall be not from others and the cash
– all these my eldest daughter Severina Sobina Coelho,
shall after my death, enjoy and after her lifetime, her
male children also shall enjoy permanently and with
absolute interest.”
Clearly, the clauses in the Will in the present case are
significantly different from the aforementioned clause, wherein
the daughter was clearly given a life interest only. This is not the
case with the right of Nirmala Murthy, which has been expressly
stated to be absolute in nature.
1
6
10.7 In view of the foregoing observations, we answer the
first question in the affirmative and hold that the Will dated
07.06.1995 creates  an  absolute,  unfettered  right  in  favour  of
Nirmala Murthy with respect to the suit property.
11.            In light of this finding, we now turn to the  second
point, i.e. whether the sale deed executed by Nirmala Murthy was
against the intention of the testator, and thereby unenforceable
as against Respondent No. 1. In this regard, we note at the very
outset that several observations have been made by the Trial
Court and the High Court with respect to the circumstances in
which the sale deed was executed, which cast an aspersion on its
validity. However, we do not find the need to delve into this
question as the same is beyond the scope of the suit filed by
Respondent No. 1. Moreover, no prayer for setting aside the sale
deed was raised by Nirmala Murthy either. Thus, we shall only
confine ourselves to an examination of the sale deed vis­à­vis the
Will dated 07.06.1995.
12. Notably, the High Court found that the sale deed was
not obtained by fraud or coercion on the part of the Appellants.
However,   it   was   held   that   such   a   deed   was   nevertheless
unenforceable against Respondent No. 1, as it had been executed
1
7
in a clandestine manner without his concurrence or consultation.
The High Court found that a transparent process of sale of the
property by Nirmala Murthy was integral to the intention of the
testator, as he had clearly expressed a desire for his son to get a
share of the sale consideration. Thus, it was held that the sale
deed in question, having been executed without the knowledge of
Respondent No. 1, was against such intention and therefore not
binding on him.   Upon perusing the record and the wording of
the Will, we do not agree with such finding of the High Court.
12.1 As mentioned supra, the right vested under the Will in
favour of Nirmala Murthy was an unfettered and absolute right.
There is nothing in the wording of the Will which indicates that
the testator necessarily required any subsequent sale, mortgage,
or   lease   carried   out   by   Nirmala   Murthy   to   happen   with   the
concurrence or consultation of his children. In fact, when one
looks to the circumstances and the family relationship between
the testator and his son, it becomes clear that their relations
were strained. This is particularly reflected in Ex. P­17, a letter
addressed   by   Nirmala   Murthy   to   her   son,   Respondent   No.   1
herein, where she specifically alludes to the ill treatment meted
out by her son to his sister (Appellant No. 1) and the testator. In
1
8
light of this, we find that a mere “desire” for the sale of the
property and for the children to get a share in the proceeds
therefrom cannot be read as a strict bar on the absolute right
vested with Nirmala Murthy to deal with the property as she
thought fit.
12.2 Thus, while it may have been desirable for Nirmala
Murthy to carry out the sale transaction with the knowledge of
Respondent No. 1, her failure to do so does not strike at the very
root of the sale deed. In our considered opinion, interpreting the
Will dated 07.06.1995 in a manner that places fetters on the
power   of   Nirmala   Murthy   to   sell   the   property   by   mandating
consultation with her children would not be in consonance with
the wording of the Will. Indeed, it effectively amounts to adding
terms to the Will, which is impermissible.
12.3  In view of this, we find that the sale deed in question
was executed in accordance with the Will dated 07.06.1995 and
does not violate its terms. Therefore, Respondent No. 1 is also
bound by the same and the finding of the High Court in this
regard is liable to be set aside. The Appellants have acquired
valid   title   over   the   suit   property   by   virtue   of   the   sale   deed
1
9
executed   by   Nirmala   Murthy   and   are   therefore   entitled   to
possession of the same.
13.          Accordingly, we set aside the judgment of the High
Court and find that Nirmala Murthy had an absolute right in the
suit property by virtue of the Will dated 07.06.1995. We also find
that the sale deed executed by her in favour of the Appellants in
exercise of such rights is in consonance with the intention of the
testator and binds all the parties to these appeals. Accordingly,
O.S. No. 6341/2006 filed by Respondent No. 1 is dismissed and
O.S.   No.   1845/2018   filed   by   the   Appellants   for   ejectment   is
decreed. Consequently, the instant civil appeals are allowed.
14.         It has been brought to our notice that the suit property
was in the possession of Nirmala Murthy during the pendency of
these appeals, in view of the interim order passed by this Court
on 27.01.2014 directing status quo to be maintained with respect
to   the   suit   property.   However,   as   mentioned   supra,   Nirmala
Murtha passed away during the pendency of these appeals. The
suit property has been under lock and key since then, and the
possession   of   such   keys   has   been   with   Respondent   No.   1.
Therefore,   in   light   of   our   findings   above,   and   given   these
circumstances, we direct that the possession of the suit property
2
0
be handed over to the Appellants within a period of 3 months
from the date of this order.
15.     Ordered accordingly.
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
.……………………………...............J.
      (R. SUBHASH REDDY)
New Delhi;
March 05, 2020
2
1

Indira Vikas Patras (‘IVP’, for short) - Once lost or defaced beyond identification can not be replaced

Indira Vikas Patras (‘IVP’, for short) - Once lost or defaced beyond identification can not be replaced

If in case the IVPs are lost/stolen or mutilated or defaced  beyond recognition, the Rules are clear that they shall not be replaced by the Post Office. In the face of such statutory provision, the refusal on the part of the Department to entertain any request for maturity sum was absolutely right and justified. It can never be said that there was deficiency on the part of the Department in rendering any service expected of them. If the Department had refused to encash the Certificates upon presentation or even after encashment had refused to make the payment or had made short payment, there could still be a grievance about deficiency in service but if the Certificates themselves are lost and the identity of the initial holder could never be established through the record, the Department was well within its rights not to accept the prayer for return of the maturity sum.
In Central Government of India and others vs. Krishnaji Parvetesh
Kulkarni5, similar prayer made through a writ petition, was rejected by this
Court with following observations:-
“An IVP is akin to an ordinary currency note. It bears no name
of the holder. Just as a lost currency note cannot be replaced,
similarly the question of replacing a lost IVP does not arise. Rule
7(2) makes the position clear that a certificate lost, stolen,
mutilated, defaced or destroyed beyond recognition will not be
replaced by any post office. Similar is the position as regards the
certificate which is either lost or stolen. Undisputedly there was
no challenge to the legality of the rule 7(2). In the absence of a
challenge to the provision, any direction should not really have
been given. It is fundamental that no direction which is contrary
to law can be given.”


Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1894-1895 OF 2020
(Arising out of SLP (Civil) Nos.16164-16165 of 2019)
THE SUPERINTENDENT OF POST OFFICE,
BOLANGIR DIVISION, BOLANGIR, ODISHA …Appellant
VERSUS
JAMBU KUMAR JAIN …Respondent
WITH
CIVIL APPEAL NOS.1896-1897 OF 2020
(Arising out of SLP (Civil) Nos.16166-16167 of 2019)
THE SUPERINTENDENT OF POST OFFICE,
BOLANGIR DIVISION, BOLANGIR, ODISHA …Appellant
VERSUS
CHHAGAN LAL JAIN …Respondent
J U D G M E N T
UDAY UMESH LALIT, J.
CIVIL APPEAL NOS. 1894-1895 OF 2020
(Arising out of SLP (Civil) Nos.16164-16165 of 2019)
1. Leave granted.
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
2
2. These appeals arise out of the final judgment and order dated
11.09.2018 passed by the National Commission1
in Revision Petition No.2116
of 2018 and order dated 11.10.2018 in Review Application No.355 of 2018
preferred in the aforesaid revision petition.
3. Complaint, being CDC No.43 of 2015 was filed by the respondent
herein before the District Forum2
contending inter alia that 88 Indira Vikas
Patras (‘IVP’, for short) of the denomination of Rs.5000/- each, purchased by
the father of the complainant sometime during the period 1996 to 1998, were
lost in the month of June 2001. A police complaint was lodged on 25.06.2001
alleging theft of those IVPs and thereafter by intimation dated 14.07.2001 a
request was made to the Superintendent of Post Offices, Bolangir to stop
payment of any amount upon maturity of the IVPs without proper verification
of the holder. It was further submitted that despite demands made by the
complainant, the value of the lost IVPs was not being made over by the Post
Office to him and as such, there was deficiency in service on part of the Post
Office. With the aforesaid allegations, the following principal reliefs were
claimed in the complaint:
“(i) The O.P. be directed to pay the maturity value of 88
numbers of IVP of Rs.5,000/- each denomination =
Rs.8,80,000/- and due interest till final payment is
1 National Consumer Disputes Redressal Commission, New Delhi
2 District Consumer Disputes Redressal Forum, Bolangir, Odisha
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
3
made,
(ii) A sum of Rs.1,00,000/- as claimed as compensation
for deficiency in service and loss caused to the
complaint and Rs.10,000/- is claimed towards the cost
of litigation”
4. In its reply, the appellant submitted that in terms of Indira Vikas Patra
Rules, 1986, (‘the Rules’, for short), no formal application was necessary to
purchase the IVPs and in case the IVPs were purchased by cash, the identity
of the purchaser would not be recorded by the Post Office in any document
nor any receipt would be issued at the time of issuance of the IVPs, that all
the IVPs were bearer instruments like currency notes; that there was no proof
or evidence that any consideration was paid by the complainant; and that the
complainant could not be termed as a “consumer” within the meaning of the
Act3
. It was further submitted that the Rules were binding on the Department
and since it had acted purely in terms of the Rules, there was no deficiency on
its part.
5. The aforesaid complaint was allowed by the District forum vide its
order dated 30.03.2016 and it was directed as under:
“We hereby direct the O.P. to release payment of the
maturity value of 88 nos. of IVPs bearing No.63C
113623 to 113666 and 3515 to 3558 and 113667 to
113710 and 3559 to 3602 respectively amounting to
Rs.8,80,000/- (Rupees Eight Lakh Eighty thousand)
only, to the petitioner after furnishment of an
indemnity bond from the petitioner within thirty-five
3The Consumer Protection Act, 1986
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
4
days of this order. Non compliance will attract a
penalty of Rs.20 per day till realization.”
6. The appellant being aggrieved filed Appeal No.356 of 2016 before the
State Commission4
, which was dismissed by the State Commission on the
ground of non-prosecution. The matter was carried further by filing Revision
Petition No.2116 of 2018 before the National Commission.
7. The submissions advanced on behalf of the appellant were recorded as
under:
“The Learned Counsel for the Petitioner contended that since
inception the Respondent is not a Consumer and no deficiency in
service has been committed on the part of the Petitioner and the
Complaint of the Respondent is not maintainable. As per Rule 7(2)
and 10 of the IVP Rules, 1986, the Respondent is not entitled to any
claim and hence his claim has been rejected by the Department.”
However, the view taken by the District Forum was accepted by the
National Commission. It was observed in order dated 11.09.2018:
“The Respondent’s Father had purchased 88 IVPs for a total
amount of Rs.8.8 lakhs. The same were lost and a Police
Complaint was filed. The claim of the Respondent on maturity
was rejected. Several years have elapsed and the amount
deposited still lies with the Postal Department. So far there
appears no other claimant for the amount. It certainly cannot be
the case of the Petitioner to appropriate the entire amount
forever, since the lost documents has not been submitted to them.
It is but fair and reasonable that after proper verification and
taking due precautions like idemnity bond etc., the Department
after securing its interests, should at least pay the maturity value
to the Respondent, after having not succeeded in the several
rounds of litigation. This Commission way back in the year
4 State Consumer Disputes Redressal Commission, Cuttak, Odisha
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
5
2002, in a matter of similar nature has elaborately discussed the
issues and directed the department to release the money, as
sufficient time had elapsed since the date of maturity. Therefore,
it clearly appears that there is no error in the order passed by the
District Forum.”
8. Thereafter, Review Application No.355 of 2018 was preferred by the
appellant. However, said Review Application was also dismissed by the
National Commission vide order dated 11.10.2018.
9. The aforesaid two orders passed by the National Commission are
presently under appeal before us. We have heard Mr. R. Balasubramanian,
learned Senior Advocate for the appellant and Mr. S.B. Upadhyay, learned
Senior Advocate for the respondent. It was submitted by Mr. Upadhyay that
in the present matter, the value in respect of the IVPs in question had not been
claimed by any other person and in any case the respondent was willing to
furnish any indemnity bond that in case any claim were to surface, he would
indemnify the Department.
10. Before we consider the matter, we must set-out the relevant Rules.
The Rules were issued vide Ministry of Finance (DEA) Notification
No.G.S.R. 1183(E) dated 05.11.1986. Rules 5, 6 and 7 of the Rules, as
amended from time to time, are as under:
“5 Procedure for purchase of certificates: (1) A certificate
may be purchased at a Post Office on payment of any one of the
following modes, namely:
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
6
(i) by cash; or
(ii) by locally executed cheque, pay order or demand draft
drawn in favour of the Postmaster; or
(iii) by presenting a duly signed withdrawal form or cheque with
the Pass Book for withdrawal from Post Office Savings Account
standing in the credit of the purchaser at the same Post Office.
2. No formal application is necessary for purchase of a
certificate.
6. Issue of Certificate: (1) On payment being made by cash, a
certificate shall be issued immediately and date of such
certificate shall be the date of payment.
(2) Where payment for purchase of a certificate is made by
locally executed cheque, pay order or demand draft, the
certificate shall not be issued before the proceeds of the cheque,
pay order or demand draft, as the case may be, are realised and
the date of such certificate shall be the date of encashment of the
cheque, pay order or demand draft, as the case may be.
(3) If, for any reason, a certificate cannot be issued immediately,
a provisional receipt shall be given to the purchaser which may
later be exchanged for a certificate and the date of such
certificate shall be as specified in sub-rule (1) or sub-rule (2), as
the case may be.
(4) A certificate issued under this rule is transferable.
7. Replacement of certificate: (1) If a certificate is mutilated or
defaced, the bearer is entitled for replacement form the Post
Office of issue on payment of fee of rupee one.
(2) A certificate lost, stolen, mutilated, defaced or destroyed
beyond recognition, will not be replaced by any Post Office.”
11. In terms of Rule 5 of the Rules, IVPs could be purchased at any Post
Office after payment in cash or by a Cheque/Pay Order or Demand Draft and
no formal application was necessary for such purchase. As against payment
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
7
made in Cash, the IVPs would be delivered immediately while in respect of
payments made either through Cheque or Pay Order or Demand Draft, the
same would be issued only after the encashment of any of those instruments.
In terms of Rule 6(4), IVPs were transferable. According to Rule 7(1), if the
Certificate was mutilated or defaced, the bearer would be entitled to have it
replaced on payment of fee of rupee one but if the certificate was lost or
stolen or mutilated or defaced or destroyed beyond recognition, in terms of
Rule 7(2) it would not be replaced by any Post Office.
12. It is not in dispute that the IVPs in the present matter were purchased
through cash. At no stage, the identity of the purchaser was thus disclosed or
registered with the Department. In a situation, where the IVPs were
purchased either through Cheque of Pay Order or Demand Draft, there would
still be a possibility, through link evidence, to establish the identity of the
purchaser but in case of a purchase through the modality of cash, there would
be nothing on record which could establish the identity of the purchaser.
It may be that there are no claims in respect of the IVPs in question but
that does not mean that any person can claim maturity sum in respect of such
IVPs and offer an indemnity.
13. The matter has to be considered purely from the perspective of the
governing Rules. If in case the IVPs are lost/stolen or mutilated or defaced 
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
8
beyond recognition, the Rules are clear that they shall not be replaced by the
Post Office. In the face of such statutory provision, the refusal on the part of
the Department to entertain any request for maturity sum was absolutely right
and justified. It can never be said that there was deficiency on the part of the
Department in rendering any service expected of them.
If the Department had refused to encash the Certificates upon
presentation or even after encashment had refused to make the payment or
had made short payment, there could still be a grievance about deficiency in
service but if the Certificates themselves are lost and the identity of the initial
holder could never be established through the record, the Department was
well within its rights not to accept the prayer for return of the maturity sum.
14. In Central Government of India and others vs. Krishnaji Parvetesh
Kulkarni5
, similar prayer made through a writ petition, was rejected by this
Court with following observations:-
“An IVP is akin to an ordinary currency note. It bears no name
of the holder. Just as a lost currency note cannot be replaced,
similarly the question of replacing a lost IVP does not arise. Rule
7(2) makes the position clear that a certificate lost, stolen,
mutilated, defaced or destroyed beyond recognition will not be
replaced by any post office. Similar is the position as regards the
certificate which is either lost or stolen. Undisputedly there was
no challenge to the legality of the rule 7(2). In the absence of a
challenge to the provision, any direction should not really have
been given. It is fundamental that no direction which is contrary
to law can be given.”
5
(2006) 4 SCC 275
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
9
15. In our view, the District Forum and the National Commission
completely erred in accepting the claim. We, therefore, allow these appeals,
set-aside the view taken by the National Commission and dismiss the original
complaint. No costs.
CIVIL APPEAL NOs. 1896-1897 OF 2020
(Arising out of SLP (Civil) Nos.16166-16167 of 2019)
16. Leave granted.
17. These appeals arise out of the final judgment and order dated
11.09.2018 passed by the National Commission in Revision Petition No.2117
of 2018 and order dated 11.10.2018 in Review Application No.356 of 2018
preferred in the aforesaid revision petition.
18. In this case, 160 IVPs of the denomination of Rs.5000/- each, were
stated to have been lost and the claimant in this case and the claimant in the
earlier matter are members of the same family. Similar relief was granted by
the District Forum and the National Commission, which orders are presently
under appeal before us.
19. It is somewhat strange that only the IVPs were lost in both the cases
by the family and no other instrument was lost. Be that as it may, for the
reasons recorded in Civil Appeal arising out of SLP (Civil) Nos.16164-16165
Civil Appeal Nos. 1894-1895 of 2020
Arising out of SLP(C) Nos.16164-16165 of 2019
10
of 2019, these appeals also deserve to be allowed.
20. We, therefore, allow these appeals, set-aside the view taken by the
National Commission and dismiss the original complaint. No costs.
…….................................J.
 [UDAY UMESH LALIT]
..…..................................J.
[VINEET SARAN]
NEW DELHI;
 MARCH 02, 2020.

No Consent Decree can be executed partial - without having further supplemental consent

No Consent Decree can  be executed partial - without having further supplemental consent .

There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at ‘Annexure A’ are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent
terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the
settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 945-946 OF 2020
(Arising from SLP(C) Nos. 9971-72/2018)
Pawan Kumar Arya and others …Appellants
Versus
Ravi Kumar Arya and others …Respondents
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned judgment and order
dated 21.12.2017 passed by the High Court of Judicature at Bombay in Appeal
(L) No. 447 of 2017 with Notice of Motion (L) No. 2541 of 2017 in Appeal (L)
No. 447 of 2017, by which the Division Bench of the High Court has dismissed
the said intra court appeal preferred by the appellants herein – original plaintiffs
and has confirmed the judgment and order passed by the learned Single Judge
dated 30.11.2017 dismissing the execution petition, the original plaintiffs –
decree holders have preferred the present appeals.
2. The dispute is between the appellants herein – original plaintiffs
(hereinafter referred to as ‘PA Group’) and respondent nos. 1 to 6 herein –
original defendant nos. 1 to 6 (hereinafter referred to as ‘RA Group’) and also
between original defendant no. 10 – Omkar Realtors and Developers Private
1
Limited (hereinafter referred to as ‘Omkar Builders’). The dispute was with
respect to the asset of Kash Foods Private Limited admeasuring 4134 square
meters plot at Worli, Mumbai.
2.1 That the appellants herein – original plaintiffs filed a Suit (L) No. 194 of
2015 against the respondents herein/original defendants seeking the relief
against the transfer of the property of Kash Foods Private Limited in favour of
respondent no.10 herein – defendant no. 10 - Omkar Developers. As observed
hereinabove, the original plaintiffs Pawan Kumar Arya and others belong to PA
Group and original defendant nos. 1 to 6 belong to RA Group, the brother of
Pawan Kumar Arya. According to the original plaintiffs, original defendant
no.7 – M.P. Recycling Company was jointly held by PA Group and RA Group
with each credit or holding 50% of its shareholding. That M.P. Recycling held
25% of shareholding in Kash Foods. That Kash Foods owned a plot of land at
Worli admeasuring about 4134.27 sq, meters. That 25% of the shareholding in
Kash Foods was purchased by M.P. Recycling and the remaining 75% of the
shareholding in Kash Foods was bought by RA Group in 2011 in their
individual capacities.
2.2 That by conveyance deed dated 22.12.2012, a portion of the assets of
Kash Foods was transferred to original defendant nos. 3 & 4 that are the
members of the RA Group. A development agreement was executed between
Omkar Builders – original defendant no.10, Kash Foods, original defendant no.
8 and defendant nos. 3 and 4, which was subjected to challenge by the plaintiffs
2
in the suit. According to the original plaintiffs, original defendant nos. 1 to 6 in
violation of the Right of First refusal clause in favour of M.P. Recycling to buy
shares of Kash Foods as contained in the Articles of Association of Kash Foods,
surreptitiously and behind the back of the plaintiffs bought 75% outsiders’
shareholding in the names of defendant no.1’s family. According to the
plaintiffs, defendant nos. 1 to 6 entered into a purported Development
Agreement dated 10.04.2013 with Omkar Builders, a third party developer, to
develop the Worli property behind the back of M.P. Recycling and the plaintiffs.
According to the plaintiffs, under the purported Development Agreement with
Omkar Builders, defendant nos. 1 to 6 and Kash Foods received Rs. 25 crores
from Omkar Builders and an additional Rs. 20 crores as security. That as per
the case of the plaintiffs, defendant nos. 1 to 6 and Kash Foods also received
79,000 sq. ft. carpet area, i.e., 15 flats and 72 car parking spaces from Omkar
Builders under the Development Agreement. According to the plaintiffs, 15
agreements for sale were registered and executed in favour of defendant nos. 1
to 6 and Kash Foods.
2.3 According to the plaintiffs, defendant nos. 1 to 6 did not give any
rights/benefits in the said consideration/carpet area received from Omkar
Builders either to the plaintiffs and/or to M.P. Recycling. The aforesaid led to
the filing of the suit by the plaintiffs against original defendant nos. 1 to 6
seeking a 50-50 division of the benefits received by Kash Foods under the
Development Agreement with Omkar Builders. That during the pendency of
3
the suit, the suit came to be settled and the aforesaid suit came to be disposed of
in accordance of the consent terms. As per the consent terms, out of 15
apartments that were to come up on the Worli land, 8 apartments admeasuring
27000 sq. meters in all were to fall to the share of the plaintiffs – PA Group and
7 apartments with a total area of 52000 sq. meters were to go to defendant nos.
1 to 6 – RA Group. According to the plaintiffs, as per the consent terms, the
letter of allotment of their 8 apartments was liable to be executed by defendant
no. 10 – Omkar Builders and the same was liable to be counter-signed by
defendant nos. 1 to 6 – RA Group. According to the plaintiffs, defendant no. 10
– Omkar Builders had in accordance with the consent terms executed the letter
of allotment in ‘Annexure E’ in respect of the 8 apartments, but defendant nos. 1
to 6 refused to abide by the consent terms and counter-sign the letter of
allotment as per ‘Annexure E’.
2.4 Therefore, in view of the refusal on the part of defendant nos. 1 to 6 – RA
Group to abide by the consent terms and counter-sign the letter of allotment as
per ‘Annexure E’, the plaintiffs initiated the proceedings under Order 21 Rule
34 of the Code of Civil Procedure for the execution of the consent decree viz.
for execution of the document at ‘Annexure E’ to decree dated 14.08.2015, by
defendant nos. 1 to 6 – RA Group and defendant no. 10 – Omkar Builders
jointly and/or severally. The execution application came to be rejected by the
learned Single Judge by the judgment and order dated 30.11.2017 by holding
that neither Omkar Builders nor defendant nos. 1 to 6 – RA Group could have
4
been directed at this stage to execute ‘Annexure E’ to the consent terms nor
could the RA Group be restrained from dealing with the properties that form
the subject matter of Kash Foods property. The learned Single Judge also
observed that unless and until the supplementary consent terms are entered into
between the parties, there is no obligation on the part of defendant nos. 1 to 6 to
execute the letter of allotment in the form of ‘Annexure E’.
2.5 Feeling aggrieved by the dismissal of the Chamber Summons/Execution
Petition, the appellants herein preferred appeal before the Division Bench. That
by the impugned judgment and order, the Division Bench of the High Court has
dismissed the said appeal and has confirmed the judgment and order passed by
the learned Single Judge dated 30.11.2017 dismissing the chamber
summons/execution petition. That while dismissing the chamber summons, the
learned Single Judge as well as while dismissing the appeal, the Division Bench
has observed that no direction against the RA Group to execute the letter of
allotment in the form of ‘Annexure E’ can be issued on the basis of clause 28 of
the consent terms relied upon by the plaintiffs as there is nothing in clause 28 of
the consent terms that casts an obligation upon defendant nos. 1 to 6 – RA
Group to execute the letter of allotment in the form of ‘Annexure E’.
2.6 Feeling aggrieved and dissatisfied with the impugned judgment and order
passed by the Division Bench of the High Court dismissing the appeal,
confirming the judgment and order passed by the learned Single Judge
dismissing the chamber summons/execution petition and refusing to issue any
5
direction against defendant nos. 1 to 6 – RA Group to execute the letter of
allotment in the form of ‘Annexure E’ with respect to 8 apartments, the original
plaintiffs have preferred the present appeals.
3. Dr. Abhishek Manu Singhvi and Shri Dhruv Mehta, learned Senior
Advocates have appeared on behalf of the appellants herein – original plaintiffs
and Shri Shyam Divan and Shri Haresh Jagtiani, learned Senior Advocates have
appeared on behalf of the respondents herein – original defendants.
3.1 Dr. Singhvi, learned Senior Advocate appearing on behalf of the
appellants – original plaintiffs has vehemently submitted that in the facts and
circumstances of the case, both, the learned Single Judge as well as the Division
Bench have materially erred in dismissing the notice of motion and not issuing
the directions as prayed against original defendant nos. 1 to 6 and defendant no.
10. It is vehemently submitted that by not issuing the directions as prayed in the
notice of motion, both, the learned Single Judge as well as the Division Bench
have virtually nullified the consent terms and the consent decree.
3.2 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that the absurd consequence of the
impugned order is that though in terms of the consent terms/decree flats were
allotted to both, the appellants and respondent nos. 1 to 6, the appellants have
got nothing under the consent decree till date. It is submitted that on the other
hand respondent nos. 1 to 6 have got not only 7 flats of double the area of the
PA Kash Foods Property, but also Rs. 45 crores and are enjoying the above since
6
about 2015 by mortgaging and dealing with their flats by raising large finances.
It is submitted that as held by this Court in the case of Manish Mohan Sharma
and others v. Ram Bahadur Thakur Ltd. and others (2006) 4 SCC 416
(paragraphs 31 & 32), the effort of the executing court must be to see that the
parties are given the fruits of the decree. It is submitted that it is further
observed in the said decision that the mandate is reinforced when it is a consent
decree and doubly reinforced when the consent decree is a family settlement. It
is submitted that it is further observed in the aforesaid decision that family
settlements are governed by a special equity and are to be enforced if honestly
made. Reliance is also placed upon the decision of this Court in the case of
Kale and others v. Deputy Director of Consolidation and others (1976) 3 SCC
119.
3.3 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that the net result as of today is that
both the consent terms and the consent decree in effect result in a zero-sum
game with no transaction accruing to the benefit of the appellants. It is
submitted that if that was so, there was no purpose to enter into the consent
terms at all.
3.4 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that there is no basis, in any event,
for the Division Bench to ignore the clear recognition of the appellants’
entitlement under the consent terms/consent decree.
7
3.5 Now so far as the observations made by the learned Single Judge on the
necessity to have supplementary consent terms, before the other terms of the
consent decree are acted upon is concerned, it is vehemently submitted that the
same is erroneous. It is submitted that the reliance placed upon clauses 13, 22,
23 and 27 of the consent terms by the learned Single Judge is absolutely
misplaced. It is submitted that there is not a single clause in the entire consent
terms and/or the consent decree which either expressly or impliedly postpones
or in any manner makes the appellants’ entitlement to get ‘Annexure E’ letter
contingent upon respondent nos. 1 to 6’s specious plea of simultaneity with the
supplementary consent terms.
3.6 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that the learned Single Judge ought
not to have read an implied term into the consent decree and/or consent terms
which was never intended by the parties and thereby making the issuance of
‘Annexure E’ letter to the appellants conditional and/or subject to the happening
of an event, i.e., filing of the supplementary consent terms, when no such clause
finds place either in the consent decree or consent terms. It is submitted that it
is a settled law that an implied term can be read into a contract only when it is
so obvious that the parties intended something but inadvertently the same was
left out. In support, reliance is placed upon the decision of this Court in the case
of Satya Jain and others v. Anis Ahmed Rushdie and others (2013) 8 SCC 131
(paragraphs 32 to 35).
8
3.7 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that as such there is no such
contingency supplied anywhere in the consent terms and/or consent decree and
in fact clause 28 of the consent terms read with paragraphs 2, 3 and 6 of the
consent decree is an antithesis of the finding that ‘Annexure E’ is contingent
upon the supplementary consent terms. It is submitted that ‘Annexure E’ shall
not depend upon the supplementary consent terms to be executed/entered into as
observed by the learned Single Judge. It is submitted that clause 28 of the
consent terms read with paragraphs 2, 3 and 6 of the consent decree
unambiguously and unequivocally makes it clear that respondent no. 10 and
respondent nos. 1 to 6 were to provide ‘Annexure E’ letter immediately and not
at the RA Group’s convenience and/or at a later date, as per the whims and
fancies of respondent nos. 1 to 6 or contingent upon the supplementary consent
terms.
3.8 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that none of the clauses in the
consent terms and/or the consent decree provides the supplementary consent
terms contingent upon ‘Annexure E’ letter and/or vice versa. It is submitted that
as held by this Court in the case of Saradamani Kandappan v. S. Rajalakshmi
and others (2011) 12 SCC 18, the order of performance should be expressly
stated or provided, i.e., the agreement should say that only after performance of
obligations of the vendors, the purchaser will have to perform her obligations.
9
3.9 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that even otherwise because of the
total non-cooperation on the part of respondent nos. 1 to 6 and with a malafide
intention respondent nos. 1 to 6 are not co-operating in execution of
supplementary consent terms. It is submitted that out of the four items listed for
valuation at clause D9(d) of the consent terms, item no. (a) is a company in
which both brothers hold 25.5% of the shareholding each and the balance 49%
is held by a third party; item no. (b) and (c) is a company and a property
respectively which are held 50:50 by both brothers; item no. (d) is the PA Kash
Foods Property which was to be valued for the purposes of adjustment. It is
submitted that the valuation was not done despite numerous reminders by the
appellants. It is submitted that several without prejudice emails were addressed
to respondent nos. 1 to 6 calling upon them to execute and agree to the draft of
the supplementary consent terms, which has not been done till date.
3.10 It is further submitted by the learned Senior Advocate appearing on
behalf of the appellants – original plaintiffs that as such the plaintiffs entered
into the consent terms to buy peace and to resolve the overall family dispute
between the parties. It is submitted that as held by this Court in the case of
Hari Shankar Singhania and others v. Gaur Hari Singhania and others (2006) 4
SCC 658 (para 42 and 43), 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 members. It is submitted that it is
10
further observed in the said decision that even technicalities of limitation, etc.
should not be put at risk of the implementation of a settlement drawn by a
family, which is essential for maintaining peace and harmony in a family.
3.11 Making the above submissions and relying upon the aforesaid decisions
of this Court, it is prayed to allow the present appeals.
4. Shri Shyam Divan, learned Senior Advocate appearing on behalf of
respondent nos. 1 to 6 and 8 & 9 has vehemently submitted that as such the
notice of motion/execution proceedings by the appellants herein itself was
premature and was for execution of only part of the consent decree dated
14.08.2015 and therefore the same was not maintainable at all being premature
execution proceedings.
4.1 It is further submitted that the appellants are seeking to execute a
particular clause of consent terms dated 14.08.2015, which under the said
consent terms itself is required to be implemented after the parties thereto
arrived at a supplementary agreement which till date has not been arrived at or
entered into. It is submitted that therefore the learned Single Judge rightly
dismissed the said execution petition. It is submitted that by these proceedings
the appellants are seeking to execute a part of the consent decree without
entering into the supplementary agreement.
4.2 It is further submitted that the orders interpreting the consent decree are
per se reasonable and based on sound reasoning taking into account all relevant
11
facts and material and submissions advanced by both the sides and therefore
does not warrant any interference by this Court.
4.3 It is further submitted that as such the consent terms went well beyond
the dispute raised in Civil Suit No. 191/2015 and seeks to comprehensively
resolve all disputes such as those pertaining to the factories owned by the
parties, namely, AISCO, IMTC, Orbit Arya Commercial Premises and overall
family settlement.
4.4 It is further submitted that parties entered into the consent terms and the
consideration for the RA Group agreeing to allot 8 flats (‘Annexure A’
properties) in favour of the PA Group was that the RA Group would be rid of the
minority status of AISCO – one of the group companies of both the groups
wherein RA Group was in a minority and whose rights were being oppressed in
the said company and the disputes qua all the other group companies would also
achieve quietus. It is submitted that in fact the 8 flats (‘Annexure A’ properties)
were as such belonged to RA Group. It is submitted that by the present
execution proceedings the appellants want to execute that part of the consent
decree which favours them – allotment of 8 flats (‘Annexure A’ properties), but
without in any manner complying with their obligations under the consent
terms/consent decree, i.e., the execution of supplementary consent terms, as
defined in clause 13. It is submitted that the appellants cannot be permitted to
get the consent decree executed in part and which is in their favour and without
in any way complying with their obligations under the consent decree.
12
4.5 It is further submitted that neither under the consent terms nor under the
consent decree, there is an obligation on the part of the RA Group to issue
‘Annexure E’ forthwith upon signing of the consent terms. It is submitted that if
the submission on behalf of the appellants that ‘Annexure E’ is to be executed
forthwith and that vesting/allotment of PA Kash Foods Property immediately
upon signing of the consent terms is accepted, in that case, it would defeat the
plain language of clauses 9, 13, 14, 17 and 18, all of which mandate that matters
relating to PA Kash Foods Property are to be contained in the supplemental
consent terms. It is submitted that the settlement between the parties in all
respects was to be crystallized in the supplemental consent terms. It is
submitted that therefore the present consent terms/consent decree can be
described only as a “framework” in clauses 2, 3 and 30.
4.6 Now so far as reliance placed upon clause 28 of the consent terms by the
appellants is concerned, it is vehemently submitted that clause 28 provides for
no direction to RA Group to sign ‘Annexure E’ on execution of the consent
terms. It is submitted that in the absence of a direction in a clause dealing with
a “direction/request” to Omkar Builders regarding ‘Annexure E’ completely
militates against PA Group’s submission and their interpretation. It is submitted
that if the intention was for ‘Annexure E’ to be issued by the RA Group
“forthwith”, clause 28 would have been the obvious and natural pace to provide
for it. It is submitted that even the Omkar Builders was not a party to the
consent terms/decree and therefore the contents of clause 28 would not bind it.
13
It is submitted that it is only with a view for securing compliance of Omkar
Builders that the High Court passed an order on the same day enabling Omkar
Builders to issue ‘Annexure E’.
4.7 Now so far as the reliance placed upon clause 22 of the consent terms by
the appellants, it is vehemently submitted that as per clause 22 RA Group will
be free to deal with PA Kash Foods Property as their exclusive and absolute
owners thereof with effect from the filing of the consent terms and the PA
Group does not have any claim direct, derivative or otherwise of whatsoever
nature upon the same. It is submitted that therefore there may not be any
restrain against RA Group from dealing with the properties that form the subject
matter of Kash Foods Property.
4.8 It is further submitted that as both the learned Single Judge as well as the
Division Bench have succinctly interpreted the consent terms/consent decree
and upon understanding and comprehending the intention of the parties have
held that RA Group was not obligated to execute ‘Annexure E’ at this stage and
that independently there was no fetter on the RA Group from dealing with its
properties.
4.9 Making the above submissions, it is prayed to dismiss the present
appeals.
5. We have heard the learned Senior Advocates for the respective parties at
length.
14
5.1 At the outset, it is required to be noted that as such the present
proceedings arise out of the execution proceedings initiated by the appellants
herein, who were also parties to the consent terms/consent decree. The consent
decree came to be passed in Suit No. 194/2015 filed by the PA Group. It is also
required to be noted that the dispute in Civil Suit No. 194/2015 filed by the
appellants/PA Group was for seeking 50:50 division of the benefits received by
Kash Foods under the development agreement with Omkar Builders. However,
from the consent terms dated 14.08.2015, it appears that both the parties – PA
Group and RA Group decided to resolve and settle the other disputes also, i.e.,
over and above the dispute in the suit. From the consent terms, it appears that
both the parties unconditionally and unequivocally amicably resolved and                                                                                                                                                                                                                                       
settled the disputes in relation to the subject matter of Arya Iron and Steel
Company Private Limited (“AISCO”); International Minerals Trading Company
Private Limited (“IMTC”); Kash Foods Private Limited’s premises in the
Omkar 1973 Project at Worli (“Kash Foods”), which forms the subject matter of
the present Suit; Orbit Arya Commercial Premises (“Orbit Arya Commercial
Premises”); and Disputes in relation to the larger Arya Group of Companies and
its constituents (collectively “the Dispute”). Further, in the consent terms in
para 2, it has been specifically mentioned that the said consent terms are an
identified and mutually agreed framework for a complete parting of ways
between the parties and is aimed at bringing about an eventual complete quietus
to the disputes. Clause 3 of the consent terms further provides that the parties
15
shall execute a definitive “Family Arrangement and Settlement” and/or writings
as may be required and/or as may be advised for a complete parting of ways,
which shall work on the basis of the said mutually agreed framework (“Family
Arrangement and Settlement”). Other terms and conditions provide for
modalities to be worked out to enter into a further “Family Arrangement and
Settlement”. Clause 13 also provides for execution of supplemental consent
terms. Clause 21 also further provides that until conclusion of the transfer, the
parties shall not affect each other’s rights, in any way in AISCO and/or IMTC.
As per clause 22 of the consent terms, RA Group and/or Kash Foods shall not in
any manner directly and/or indirectly or derivatively be entitled to sell and/or
transfer, and/or dispose of and/or encumber and/or otherwise deal with the PA
Kash Foods Property. It further provides that the modification, if any, of the
Restraint, shall be identified in the supplementary consent terms. Clause 23 of
the consent terms further provides that the RA Group and/or Kash Foods shall
publish a Public Notice within 3 days of filing of the supplemental consent
terms, withdrawing their claims in relation to PA Kash Foods Property (more
particularly described at ‘Annexure C’). Clause 25 also further provides that
similarly the PA Group shall publish a Public Notice within 3 days of filing of
the supplemental consent terms, as more particularly described at ‘Annexure D’.
Clause 28 of the consent terms further provides that Omkar Builders be
directed/requested to issue a separate letter in relation to the PA Group’s
entitlement to the PA Kash Foods Property in Omkar 1973 Project (more
16
particularly ‘Annexure A’) as per draft at ‘Annexure E’. Under the said clause,
Omkar Builders was also further directed to strictly abide by the Restraint in
relation to the PA Kash Foods property. The relevant terms of the settlement are
as under:
“The parties have unconditionally and unequivocally amicably
resolved and settled the disputes in relation to the subject matter
of:
a. Arya Iron and Steel Company Private Limited (“AISCO”);
b. International Minerals Trading Company Private Limited
(“IMTC”)
c. Kash Foods Private Limited’s premises in the Omkar 1973
Project at Worli (“Kash Foods”), which forms the subject matter
of the present Suit;
d. Orbit Arya Commercial Premises (“Orbit Arya Commercial
Premises”); and
e. Disputes in relation to the larger Arya Group of Companies
and its constituents (collectively “the Dispute”)
2. The present Consent Terms is an identified and mutually
agreed framework for a complete parting of ways between the
Parties and is aimed at bringing about an eventual complete
quietus to the Disputes.
3. The Parties shall on or before November 1, 2015 (or such
date as may be mutually extended in writing by the Parties)
execute a definitive Family Arrangement and Settlement and/or
writings (including such documents, writings, undertakings and
agreements) as may be required and/or as may be advised for a
complete parting of ways, which shall work on the basis of the
said mutually agreed framework (“Family Arrangement and
Settlement”).
13. As to the (i) PA Kash Foods Property and (ii) Orbit
Arya Commercial Premises the Parties have agreed that they
would mutually decide the modalities of brief to the Valuers
and the Third Valuer and mode of adjustment/payment on or
before August 29, 2015; and Supplemental Consent Terms
17
recording the same (“Supplemental Consent Terms”) shall be
filed in this Court on August 30, 2015.
14. On arriving at a final valuation for the Orbit Arya
Commercial Premises the PA Group agrees to take over the RA
Group’s 50% share in the Orbit Arya Commercial Shop as per
the modality identified in the Supplementary Consent Terms.
18. The Parties further agree that if there is any dispute or
difference of opinion with respect to modalities for valuation,
method of adjustment/payment, Bidding Process and
subsequent Transfer Process, modalities for consummation of
transaction and/or guidelines for Valuers then the Parties have
agreed that their respective nominated Attorneys will be
authorized to respective Parties to resolve such
dispute/difference of opinion. The Parties undertake not to, at
any stage, raise any objection relating to conflict of Interest
against the said Attorneys for assisting in resolving such
matters.
21. Until conclusion of the transfer the Parties shall not
affect each other’s rights in any way in AISCO and/or IMTC.
22. RA Group and/or Kash Foods shall not in any manner,
directly and/or indirectly or derivatively, be entitled to sell
and/or transfer and/or dispose of and/or encumber and/or
otherwise deal with the PA Kash Foods Property (more
particularly defined in the schedule of Annexure A) (the
“Restraint”). The modification, if any, of the Restraint, shall be
identified in the Supplementary Consent Terms. It is expressly
agreed and understood between the Parties that the RA Group is
free to deal with RA Kash Foods Property (as more particularly
defined in Annexure B) as their exclusive and absolute owners
thereof with effect from the filing of these consent terms and
the PA Group does not have any claim direct, derivative or
otherwise of whatsoever nature upon the same.
23. The RA Group and/or Kash Foods shall publish a
Public Notice within 3 days of filing of the Supplemental
Consent Terms, withdrawing their claims in relation to PA Kash
Foods Property (as more particularly described at Annexure C).
18
24. The PA Group withdraws all allegations against the
Defendants in the captioned Suit and confirms that the PA
Group does not have any further interest in Kash Foods Pvt.
Ltd or any of its properties save and except properties described
in PA Kash Foods Portion, more particularly described at
Annexure A herein.
25. The PA Group shall publish a Public Notice within 3
days of filing of the Supplemental Consent Terms, as more
particularly described at Annexure D.
26. In so far as the eventual and complete parting of ways
between the Parties, the Parties agree that the larger group
matters, which shall be mutually identified in the
Supplementary Consent Terms, shall be finally determined,
decided and settled by 4 Mediators – 2 appointed by PA Group
and 2 appointed by RA Group. The Mediators shall be
appointed on or before August 29, 2015.
27. The Parties hereto agree that for the purpose of giving
effect to and/or implementing these Consent Terms, each party
unconditionally irrevocably undertakes that it shall, from time
to time and at all times at the request of the other party provide
full and complete co-operation and do all such further acts,
matters, debts and/or things that are in any manner required
and/or necessary, and/or may be necessary and/or as may be
and/or are reasonably required by the other Party including
executing Supplementary Consent Terms hereto.
28. Omkar Realtors and Developers Private Limited
(“Omkar” or “Defendant No. 10”) is hereby directed /requested
to issue a separate letter in relation to the PA Group’s
entitlement to the PA Kash Foods Property in Omkar 1973
Project (more particularly annexed at Annexure A hereto) as per
draft at Annexure E hereto. Omkar is hereby further directed to
strictly abide by the Restrain in relation to the PA Kash Foods
Property.
30. The present Consent Terms provide a frame work for
resolution of all matters. The Parties are at liberty to suitably
amend and/or modify the frame work by mutual consent for the
purpose of more effectively dealing with modalities as may be
required from time to time.”
19
From the aforesaid terms of settlement, it can be seen that it was an
overall settlement of all the disputes between the parties in relation to the
subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises
and the disputes in relation to the larger Arya Group of Companies and its
constituents. As observed hereinabove and so stated in clause 2 of the terms of
settlement, the consent terms is an identified and mutually agreed framework
for a complete parting of ways between the Parties and is aimed at bringing
about an eventual complete quietus to the Disputes Considering the aforesaid
terms of the settlement which subsequently became part of the consent decree,
further entering into the family arrangement/supplemental consent terms was
required to be entered into between the parties and the modalities to be worked
out with respect to the valuation, bidding etc. are also mentioned in the consent
terms. At the same time, under the consent terms/consent decree and as agreed
between the parties, 8 flats as mentioned in the list at ‘Annexure A’ to the
consent terms are agreed to be allotted under the re-developed building to the
PA Group and the flats mentioned in the list at ‘Annexure B’ to the consent
terms are agreed to be allotted to RA Group. For the 8 flats allotted to PA
Group, Omkar Builders – original defendant no.10 was required to issue a
separate letter in relation to the PA Group’s entitlement to the PA Kash Foods
Property in Omkar 1973 project as per draft at ‘Annexure E’ to the consent
terms. Allotment of the 8 flats as per list at ‘Annexure A’ to the consent terms in
20
favour of PA Group is not disputed and cannot be disputed. Even in paragraph 3
of the consent decree, the submissions of the learned counsel appearing on
behalf of the respective parties have been recorded and as per the submissions
made by the learned counsel appearing on behalf of both the parties – PA Group
& RA Group, the division in ‘Annexure A and Annexure B’ is final, viz-a-viz
defendant no.10 – Omkar Builders. Para 3 of the consent decree reads as under:
“3. Mr. Samdani, learned Senior Advocate on behalf of
Defendant No. 10, the developer, states that this division of flats
in Annexures “A” and “B” is between the two Arya groups inter
se. For their part, Mr. Dwarkadas, learned Senior Advocate for
the Plaintiffs, and Mr. Jagtiani, learned Senior Advocate for Ravi
Arya Group, agree that the division in Annexures “A” and “B” is
final vis-a’-vis Defendant No. 10. They also agree that
allotments made and possession given in terms of Annexure “A”
and Annexure “B” would constitute a full, sufficient and
complete discharge of the 10th Defendant’s obligations under the
Development Agreement, as also the individual flat agreements
already executed in favour of the parties. In view of these
statements made by Mr. Dwarkadas and Mr. Jagtiani, which are
on instructions, Mr. Samdani states, on instructions, that his
clients, Defendant No. 10, will issue the letter a proforma of
which is at Exhibit “E” to the consent terms.”
It appears that as such original defendant no.10 – Omkar Builders had
already issued the letter in the proforma as per ‘Annexure E’ to the consent
terms in favour of PA Group with respect to 8 flats allotted to PA Group.
Therefore, it appears that so far as original defendant no. 10 is concerned,
original defendant no.10 has already complied with its obligation under the
consent decree. However, RA Group is not counter-signing the said ‘Annexure
21
E’ and therefore there is not complete transfer of 8 flats in favour of PA Group
which as such are allotted to them. Therefore, making a grievance by not
counter-signing the letter of allotment as per ‘Annexure E’, the original
defendant nos. 1 to 6 – RA Group have refused to abide by the consent
terms/consent decree. It is the case on behalf of original defendant nos. 1 to 6 –
RA Group that unless and until there is a total compliance of the consent
terms/consent decree including entering into or execution of the supplemental
consent terms/family arrangement as agreed between the parties as per the
consent terms/consent decree the defendant nos. 1 to 6 – RA Group are justified
in not counter-signing the letter of allotment as per ‘Annexure E’. On the other
hand, it is the case on behalf of the appellants – plaintiffs that further execution
of supplemental consent terms/family arrangement has nothing to do with the
allotment of 8 flats in favour of PA Group.
6. Having heard the learned Senior Advocates for the respective parties and
considering the relevant terms of the settlement, reproduced hereinabove, we
are of the opinion that further execution of supplemental consent terms/family
arrangement is required to be executed between the parties. For whatever
reasons, the further supplemental consent terms have not been entered into
between the parties. Therefore, as such, considering the fact that the parties
entered into the consent terms/settlement for a complete parting of ways
between the parties and so aimed at bringing about an eventual complete quietus
to the disputes between the parties and even parties entered into the consent
22
terms/settlement to resolve and settle the disputes in relation to the subject
matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and
the disputes in relation to the larger Arya Group of Companies and its
constituents, which were beyond the dispute in the civil suit, the entire consent
terms/consent decree is required to be acted upon and/or implemented by both
the parties. There cannot be any execution of partial consent terms/consent
decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats
as per list at ‘Annexure A’ are transferred absolutely and without any condition
in favour of PA Group without there being any further supplemental consent
terms/family arrangement, in that case, the entire object and purpose of entering
into the consent terms/settlement to resolve all the disputes between the parties
will be frustrated. Both the parties to the consent terms/consent decree are
required to fully comply with the terms of settlement/the consent terms and the
consent decree. One party cannot be permitted to say that that portion of the
settlement which is in their favour be executed and/or complied with and not the
other terms of the settlement/consent terms/consent decree. Under the
circumstances, as such, both, the learned Single Judge as well as the Division
Bench are justified in holding that the execution of the further supplemental
consent terms/family arrangement is must and there cannot be any partial
execution of the consent terms/consent decree.
7. Even in the case of Hari Shankar Singhania (supra), the decision which
has been relied upon by the learned senior counsel appearing on behalf of the
23
appellants, this Court has observed 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 members. It is further 
observed that technicalities should not be put at risk of the implementation of a
settlement drawn by a family, which is essential for maintaining peace and
harmony in a family. It is further observed that it is the duty of the court that
such an arrangement and the terms thereof should be given effect to in letter and
spirit.
7.1 In the case of Manish Mohan Sharma (supra), this Court has observed
and held that effort of the executing court must be to see that the parties are
given the fruits of the decree. It is further observed that mandate is reinforced
when it is a consent decree and doubly reinforced when the consent decree is a
family settlement.
8. Now so far as the relied placed upon the decision of this Court in the case
of Saradamani Kandappan (supra), relied upon by the learned Senior Advocate
appearing on behalf of the appellants – plaintiffs, more particularly reliance
placed upon paragraph 54 of the said judgment in support of his submission that
in the consent terms/consent decree, it is expressly stated or provided the order
of performance, namely, that the further supplementary settlement is to be
executed and only after such execution the 8 flats as per list at ‘Annexure A’ to
the consent terms shall be allotted in favour of PA Group is concerned, on
24
considering conjoint reading of the terms of the settlement, the said decision
shall not be applicable to the facts of the case on hand.
8.1 Even on conjoint reading of all the terms of the settlement, more
particularly the clauses referred to hereinabove, it can be said that there is an
implied term that both the parties have intended that on one hand as agreed
between the parties further supplemental consent terms/family arrangement is to
be entered into and on the other hand there shall be transfer/allotment of 8 flats
as per list at ‘Annexure A’ in favour of PA Group. Any other interpretation
would lead to unworking of the consent terms/consent decree. As observed
hereinabove, if the consent decree is partially executed and the other parts of the
consent terms are not implemented and/or acted upon, the object and purpose to
resolve all the disputes amicably between the parties and to put an end to all the
disputes between the parties will be frustrated.
9. However, at the same time, one cannot lose sight of the fact that the 8
flats as per list at ‘Annexure A’ are allotted in favour of PA Group and rest of the
7 flats as per list at ‘Annexure B’ are allotted in favour of RA Group. At
present, the RA Group is in possession of all the 15 flats. The RA Group is also
the beneficiary of Rs.45 crores. Therefore, to strike the balance between the
parties, the RA Group can be directed to counter-sign ‘Annexure E’ letter issued
by Omkar Builders with respect to 8 flats as per list at ‘Annexure A’ which are
allotted in favour of PA Group. However, with a caveat that till the further
supplemental consent terms/family arrangement as agreed between the parties
25
under the consent terms/consent decree is not executed, PA Group may not be
permitted to sell, transfer and/or deal with the said flats till the consent
terms/consent decree is fully acted upon and implemented between the parties.
At the same time, both the parties are required to be directed to fully implement
the consent terms/consent decree and to enter into further supplemental consent
terms/family arrangement, the modalities of which are mentioned in the consent
terms itself, at the earliest and within a reasonable time. Until then, both the
parties to abide as per the Restraint order as per clause 22 of the consent terms,
except the 7 flats as per list at ‘Annexure B’, which are allotted in favour of RA
Group.
10. In view of the above and for the reasons stated above, the impugned
judgment and order passed by the Division Bench of the High Court and that of
the learned Single Judge are hereby modified as under:
i) Both the parties – PA Group & RA Group are directed to fully comply
with the consent terms/consent decree and enter into the further supplemental
consent terms/family arrangement after following the modalities to be worked
out with respect to valuation, bidding etc. as mentioned in the consent terms
itself, within a period of four months from today. Both the parties are directed
to cooperate to fully comply with the consent terms/consent decree and fulfil
their respective part of obligation under the consent terms/consent decree;
ii) that the RA Group shall counter-sign ‘Annexure E’ letter with respect to 8
flats as per list at ‘Annexure A’ to the consent terms for which the original
26
defendant no.10 – Omkar Builders had already issued a letter, within a period of
two weeks. However, it is directed that till the consent terms/consent decree is
fully implemented by both the parties and further supplemental consent
terms/family arrangement, as ordered hereinabove, is entered into/executed, the
PA Group shall not alienate and/or transfer in any manner whatsoever the said 8
flats. At the same time, it will be open for original defendant nos. 1 to 6 – RA
Group to deal with the 7 flats as per list at ‘Annexure B’ which are allotted to
them. At the same time, both the parties to act as per the Restraint order as per
clause 22 of the consent terms. The original injunction granted by the learned
Single Judge which has been continued till date is directed to be continued till
the execution of the further supplemental consent terms/family arrangement
except the 7 flats as per the list at ‘Annexure B’ which are allotted in favour of
RA Group.
11. With the aforesaid observations and directions, both these appeals stand
disposed of. However, in the facts and circumstances of the case, there shall be
no order as to costs.
……………………………….J.
[ASHOK BHUSHAN]
NEW DELHI; ……………………………….J.
MARCH 2, 2020. [M.R. SHAH]
27

Reduce the sentence of imprisionment - when the offence was taken palce due to spur ofmovement and withoutany intention - when the accused is the only bread winner and entire of his family depends on him - court at it's discreation reduce the sentence imposed by lower court.

Reduce the sentence of imprisionment - when the offence was taken palce due to spur ofmovement and withoutany  intention - when the accused is the only bread winner and entire of his family depends on him - court at it's discreation reduce the sentence imposed by lower court.

the appellant-accused came to the deceased and asked to show the bucket of milk. On seeing the less quantity of milk, the appellant-accused is alleged to have beaten the deceased with bamboo stick on the head due to which the deceased fell down on the ground and became unconscious. The appellantaccused with the help of other servants took the deceased to the hospital where the deceased died on 20.10.1994.-
Upon consideration of the evidence, the Trial Court observed
that there was no intention on the part of the appellant to cause
the death of deceased. The Trial Court vide judgment dated
16.09.1996 convicted the appellant-accused under Section 304 PartII and sentenced him to undergo ten years rigorous imprisonment.

In appeal preferred by the appellant before the High Court,
the High Court after considering the facts and circumstances of the
case, reduced the sentence of imprisonment from ten years to five
years.
Apex court - only on the question of sentence. It is also submitted that the appellant-accused has two daughters of
marriageable age viz. 19 and 21 years and there is no male member in the family to take care of the family and also of the daughters. Considering the peculiar facts and circumstances of the case
and also the submissions of learned senior counsel appearing on behalf of the appellant-accused, we reduce the sentence of imprisonment awarded to the appellant from five years to two years.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 378 OF 2020
 (@ SPECIAL LEAVE PETITION (CRL.) NO. 2749 OF 2019)
CHANDRAKUMAR @ KALI ...APPELLANT(S)
 VERSUS
THE STATE OF MADHYA PRADESH ...RESPONDENT(S)
O R D E R
R. BANUMATHI,J.
Leave granted.
2. This appeal has been preferred against the Judgment and order
dated 18.12.2018 passed by the High Court of Madhya Pradesh in CRA
No. 1574 of 1996 in and by which the High Court has reduced the
sentence awarded to the appellant from ten years to five years.
3. On 24.09.1994 at about 05.30 a.m. in a wordy quarrel, when the
deceased Munna was milking the buffalo in Kanhaiya Dairy owned by
the appellant-accused, the appellant-accused came to the deceased
and asked to show the bucket of milk. On seeing the less quantity
of milk, the appellant-accused is alleged to have beaten the
deceased with bamboo stick on the head due to which the deceased
fell down on the ground and became unconscious. The appellantaccused with the help of other servants took the deceased to the
hospital where the deceased died on 20.10.1994. Initially the case
was registered under Section 307 IPC which was subsequently
2
altered to Section 302 IPC.
4. Upon consideration of the evidence, the Trial Court observed
that there was no intention on the part of the appellant to cause
the death of deceased. The Trial Court vide judgment dated
16.09.1996 convicted the appellant-accused under Section 304 PartII and sentenced him to undergo ten years rigorous imprisonment.
5. In appeal preferred by the appellant before the High Court,
the High Court after considering the facts and circumstances of the
case, reduced the sentence of imprisonment from ten years to five
years.
6. Being aggrieved, the appellant-accused has preferred this
appeal.
7. We have heard Mr. Raju Ramachandran, learned senior counsel
appearing on behalf of the appellant as well as Mr. Ravi Prakash
Mehrotra, learned counsel appearing on behalf of the respondentState of Madhya Pradesh.
8. Mr. Raju Ramachandran, learned senior counsel appearing on
behalf of the appellant submitted that though in SLP grounds
various contentions have been raised assailing the conviction but
when we have heard the matter, learned senior counsel mainly
confined his submissions only on the question of sentence. It is
also submitted that the appellant-accused has two daughters of
marriageable age viz. 19 and 21 years and there is no male member
in the family to take care of the family and also of the daughters.
9. Considering the peculiar facts and circumstances of the case
and also the submissions of learned senior counsel appearing on
behalf of the appellant-accused, we reduce the sentence of
3
imprisonment awarded to the appellant from five years to two years.
10. The appeal is partly allowed.
11. Since the above order is passed in the peculiar facts and
circumstances of the case, the same may not be quoted as a
precedent in any other case.
…………………………………………………...J.
[R.BANUMATHI]
NEW DELHI …………………………………………………..J.
3RD MARCH, 2020 [A.S.BOPANNA]