Set aside exparte decree - the suit claim was for damages. The damages to the property if any, can be ascertained only after the parties adduce the oral and documentary evidence. We have no reason to believe that the appellant would have benefitted by deliberately not contesting the suit as they would in any event be saddled with interest if their conduct was to drag and prolong the suit.

Set aside exparte decree - the suit claim was for damages. The damages to the property if any, can be ascertained only after the parties adduce the oral and documentary evidence. We have no reason to believe that the appellant would have benefitted by deliberately not contesting the suit as they would in any event be saddled with interest if their conduct was to drag and prolong the suit.
whether appellant was served or not and entered appearance in the suit, we are not inclined to go into the merits of the contentions. In our view, an opportunity has to be given to the appellant for contesting the suit. It is because the suit was filed for recovery of damages of Rs.1 crore and respondent No.1 claimed interest @ 24% per annum. By the judgment dated 07.10.2003, the Court has directed the appellant and respondent No.2 to pay a sum of Rs.77,02,500/- and Rs.42,70,772.46, total amount payable under decree is Rs.1,20,03,282.96. The Court also directed the payment of subsequent interest @ 6% per annum on the said amount of Rs.77,02,500/- till date of reliasation. 16. As pointed out earlier, the suit claim was for damages. The damages to the property if any, can be ascertained only after the parties adduce the oral and documentary evidence. We have no reason to believe that the appellant would have benefitted by deliberately not contesting the suit as they would in any event be saddled with interest if their conduct was to drag and prolong the suit. Considering the nature of the claim and other facts and circumstances and in the interest of justice, we are of a view that an opportunity has to be given to the appellant to contest the suit 12 subject to terms. The appellant has also in that regard shown its bona fide by depositing Rs.60,00,000/- in compliance of the order dated 18.02.2019. By the order dated 24.01.2020, we have also directed the appellant to deposit further sum of Rs.35,00,000/- for which the appellant sought for some more time for compliance. Considering the request, two months further time is granted to the appellant for deposit of the said amount.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1890-1891 OF 2020
(Arising out of SLP(C) Nos.5374-5375 of 2019)
AVIATION TRAVELS PVT. LTD. ...Appellant
VERSUS
BHAVESHA SURESH GORADIA
AND OTHERS ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the impugned judgment dated
09.07.2018 passed by the High Court of Judicature at Bombay in
Appeal (Lodging) No.224 of 2018 in Notice of Motion No.580 of
2018 in Suit No.2865 of 1994 in and by which, the High Court
dismissed the Notice of Motion filed by the appellant and declined to
set aside ex-parte judgment and decree dated 07.10.2003 passed
against the appellant in Suit No.2865 of 1994 and the impugned
order dated 26.10.2018 passed in Review Petition (Lodg.) No.20 of
2018 whereby the review petition filed by the appellant was
dismissed.
3. Brief facts which led to the filing of these appeals are as
under:- Respondent No.1 filed a suit being Suit No.2865 of 1994
1
before the High Court of Bombay against the appellant and
respondents No.3 to 24 for permanent injunction and compensation
of Rs.1 crore for trespass, nuisance and damages allegedly made
by appellant-Defendant No.1. It is stated that respondents No.3 to 6
are present trustees of a private trust known as “Parikh Goradia
Trust” and respondents No.7 to 24 are beneficiaries of the said
private trust. The appellant carries on business as travel agent and
also inter alia of running a restaurant called “Woodlands Garden
Cafe” i.e. respondent No.2. It was stated by respondent No.1 that
the trust-Parikh Goradia Trust came into existence under an
Indenture of trust dated 01.04.1976. Clause 3 of the said Indenture
provides that the trust shall come to an end on 30.09.1985 and the
trust fund will be divided amongst beneficiaries of the trust.
However, despite the trust having come to an end on the stipulated
date, the trustees thereof have failed and neglected to distribute the
property and fund of the trust amongst the beneficiaries.
4. By an agreement dated 06.10.1978 executed between the
trust and the petitioner and a letter dated 06.08.1982, the trust
agreed to sell to the appellant a part of the said property for a
consideration of Rs.10,00,000/-. Defendant No.1A-respondent
No.2-M/s. Woodlands Garden Cafe is a partnership firm registered
2
under Indian Partnership Act, 1932 by virtue of a partnership deed
executed on 01.04.1989. The appellant executed a leave and
licence agreement dated 10.04.1989 with respect to the said
premises in favour of respondent No.2-M/s. Woodlands Garden
Cafe for a period of ten years to run the restaurant therein. Since
the year 1989, respondent No.2-M/s.Woodland Garden Cafe is in
occupation and possession of the said premises by doing restaurant
business thereon. Case of the first respondent is that respondent
No.2- M/s.Woodland Garden Cafe was closed down for repairs and
renovations in the year 1992 and in the course of these repairs, the
appellant caused considerable damage to the property and carried
out unauthorized and illegal construction.
5. Respondent No.1 filed Suit No.2865 of 1994 to direct the
appellant (defendant No.1) to pay a sum of rupees one crore to the
trust together with interest @ 24% per annum and for permanent
injunction restraining the appellant from carrying on repairs and
renovations in the premises and also to ensure that no damage or
loss or injury is caused to the said property of the trust either in the
course of the renovation or the repairs carried out by the appellant
and other reliefs. Vide order dated 07.10.2003, the Court noted that
no written statement has been filed and the Court held that the first
3
respondent’s claim in the suit is clearly unchallenged. Vide ex-parte
decree dated 07.10.2003, the High Court decreed the suit and
directed the appellant and respondent No.2 to pay respondent No.1
and the beneficiaries of the said trust a sum of Rs.77,02,500/- with
interest thereon @ 6% per annum from the date of filing the suit till
the date of payment or realization. By the said ex-parte decree
dated 07.10.2003, the Court also granted relief in terms of Clause
(b), (c) and (g) (i.e. permanent injunction, mandatory injunction and
costs of the suit) of the prayer clause against the appellant and
respondent No.2.
6. The matter remained as such for quite some time. The
appellant took Notice of Motion No.580 of 2018 dated 02.02.2018
praying to set aside the ex-parte judgment and decree dated
07.10.2003 and that the appellant be permitted to file written
statement and defend the suit. It was stated that the summons of
the original suit and the proceeding thereof were never served upon
the appellant at its registered address and/or any other address
where the appellant was carrying on its business and also on the
ground that Rule 90 of the Bombay High Court (Original Side) Rules
(for short “Bombay High Court Rules”) has not been followed.
4
7. Vide order dated 19.04.2018, learned Single Judge dismissed
the Notice of Motion No.580 of 2018. The learned Single Judge
noted that the ex-parte decree dated 07.10.2003 shows that an
advocate was engaged on behalf of the appellant and respondent
No.2 and the said advocate has filed vakalatnama and there is no
question of having to thereafter serve a party personally. The High
Court held that along with the affidavit, a Power of Attorney dated
29.04.1993 was said to have been executed by the appellant in
favour of one K. Shrinivas Rao and there is also a rubber
stamp and circular common seal of the appellant in the Power of
Attorney and the Power of Attorney is said to have been notarized in
Mumbai and the seal of the Notary is also visible. Pointing out that
the defendant No.1 through its Power of Attorney had engaged a
lawyer and there was a validly executed vakalatnama by a
constituted attorney K. Shrinivas Rao and also that writ of summons
was in fact served on the appellant and respondent No.2 (original
defendant No.1A) by bailiff attached to the office of Sherrif of
Mumbai, the learned Single Judge dismissed the Notice of Motion
No.580 of 2018.
8. Being aggrieved, appellant preferred Appeal (Lodging) No.224
of 2018 challenging the order declining to set aside the ex-parte
5
decree. The said appeal was dismissed by the Division Bench vide
impugned judgment dated 09.07.2018. The Division Bench of the
High Court opined that the appellant had engaged M/s. Narayanan
& Narayanan, Advocates who placed on record of the suit a
vakalatnama duly signed by the constituted attorney of the
appellant. The Division Bench also noted that the record indicates
that the advocate for the appellant represented the appellant in the
suit on several dates including appearing at interlocutory application
stage and engaging a senior advocate to argue on behalf of the
appellant. The Division Bench held that appellant’s Notice of Motion
as well as the appeal is misconceived. The appellant then filed
Review Petition (Lodg.) No.20 of 2018 along with the Notice of
Motion for condonation of delay of 27 days in filing the review
petition. The said review petition also came to be dismissed vide
impugned order dated 26.10.2018 on the ground that there was no
error apparent on the face of the order or any other ground is made
out to entertain the review petition.
9. We have heard the submissions of Mr. R.F. Totala, learned
counsel for the appellant and Mr. Shree Prakash Sinha, learned
counsel for respondents No.1, 9 and 10 and carefully perused the
contentions and impugned judgment and other materials on record.
6
10. The High Court has noted that on behalf of the appellant,
M/s. Narayanan & Narayanan, Advocates has entered appearance
and filed a vakalatnama duly signed by the constituted attorney of
the appellant. The Power of Attorney dated 29.04.1993 was
executed by the Chairman and Managing Director, Mr. Kudralli
Subanna Nagraj of the appellant company and the same was
executed before the Notary on 29.04.1993 and the signature of the
executant was also identified by the advocate. The High Court
noted that the said Power of Attorney inter alia authorized the
attorney to accept the summons, notice and other processes issued
to the advocate from any Court, Government or authority
concerning the suit premises. The High Court also pointed out that
there are several clauses in the Power of Attorney which authorize
the constituted attorney to do acts in regard to the litigation. The
High Court has referred to the affidavit filed by K. Shrinivas Rao in
reply dated 20.07.1994 to the Notice of Motion No.1847 of 1994 for
interim relief wherein, it was stated that he is a constituted attorney
of the appellant (defendant No.1). K. Shrinivas Rao also stated that
he was Director of appellant company till the year 1989 and at the
time of filing the affidavit in 1994, he was a partner in respondent
No.2-firm.
7
11. Insofar vakalatnama dated 20.07.1994 filed by M/s.
Narayanan & Narayanan, Advocates on behalf of the appellant and
respondent No.2, contention of the appellant is that they never
instructed the said M/s. Narayanan & Narayanan, Advocates to
appear on behalf of the appellant in the original suit. Case of the
appellant is that vakalatnama dated 20.07.1994 was signed by K.
Shrinivas Rao claiming himself to be a constituted attorney of
defendant No.1. The stand of appellant is that defendant No.1 never
authorized the said K. Shrinivas Rao to sign vakalatnama on behalf
of the appellant in the original suit. Insofar as the Power of Attorney
dated 29.04.1993 is concerned, the appellant contends that it was a
general Power of Attorney and the appellant company never passed
any board resolution nor executed any such Power of Attorney
authorizing K. Shrinivas Rao to sign vakalatnama on
behalf of the appellant in the suit; the said K. Shrinivas Rao signed
the vakalatnama for and on behalf of respondent No.2. Stand of the
appellant is that the appellant never authorized K. Shrinivas Rao to
appear on behalf of the appellant in the original suit No.2865 of
1994.
12. The High Court rejected the stand of the appellant and
observed that page 18 of the Power of Attorney is a typed name of
8
the Chairman and Managing Director and there is also a rubber
stamp and circular common seal of the appellant and the Power of
Attorney was executed by the Chairman and Managing Director of
the appellant company Mr. Kudralli Subanna Nagraj. The High Court
has also pointed out that the Power of Attorney dated 29.04.1993
has been notarized in Mumbai on 29.04.1993 and the seal of the
Notary is also seen in the Power of Attorney.
13. On behalf of the appellant, it was contended before the High
Court that even assuming that the vakalatnama was filed on behalf
of the appellant through Power of Attorney, Rule 79 of the Bombay
High Court Rules requires personal service of the writ of summons
on a defendant even if appearance was entered on his behalf by an
advocate. To the said contention, the High Court opined that Rule
79 of the Bombay High Court Rules speaks of a waiver of the
requirement of serving the writ of summons personally, if the
advocate undertakes in writing to accept service of that writ of
summons and to file a vakalatnama. The High Court pointed out
that Rule 79 contemplates a stage before the vakalatnama is in fact
filed and once the vakalatnama is filed, there is no question of
having to serve a party personally thereafter. The High Court
pointed out that in Suit No.2865 of 1994, vakalatnama was filed by
9
the Power of Attorney in the suit itself and there is no question of
having to thereafter serve a party personally. After referring to the
affidavit in reply at pages 62 and 63 of the paper book, the High
Court observed that summons was in fact served on the advocates
for the appellant and respondent No.2 by bailiff attached to the
office of Sherrif of Mumbai and there is an affidavit of service dated
18.08.1999 made by the bailiff’s clerk to that effect. Observing that
the Court has personally checked the original affidavit of the bailiff
and the file and pointing out that there is no affidavit in rejoinder, the
learned Single Judge has dismissed the Notice of Motion No.580 of
2018.
14. According to the appellant, the High Court erred in holding
that the Power of Attorney dated 29.04.1993 is genuine. It was
urged that the alleged Power of Attorney is said to have been
notarized at Mumbai before Advocate Raja who was representing
respondent No.2 in the original suit whereas, the appellant company
is located in Bangalore. Learned counsel for respondent No.1 has
submitted that the appellant herein surrendered and/or sold all its
rights and interest in the property in question to respondent No.2 on
30.04.1993 and the present appeal is a proxy litigation on behalf of
respondent No.2. It is the contention of respondent No.1 that since
10
K. Shrinivas Rao duly constituted the Power of Attorney of the
appellant has filed his reply on 20.07.1994 and the said reply was
filed through M/s. Narayanan & Narayanan, Advocates in which the
appellant through the Power of Attorney has stated that the
premises in question was acquired by the appellant with the
contribution made by respondent No.2- M/s. Woodland Garden
Cafe and therefore, respondent No.2 also should be heard before
any order is passed in the suit. It was submitted that based on the
reply affidavit filed by K. Shrinivas Rao, respondent No.1 filed
application for amendment and the amendment application was
allowed on 26.07.1994 and respondent No.2 was impleaded as
defendant No.1A. It is therefore, submitted that filing of vakalatnama
on behalf of the appellant by its duly constituted Power of Attorney
K. Shrinivas Rao and subsequent impleading of respondent No.2
clearly shows that the appellant and respondent No.2 were duly
served and participated in the proceedings and were aware of the
decree dated 07.10.2003. It was contended that the appellant has
not approached with the correct averments and in view of the
incorrect stand taken by the appellant, the High Court rightly
rejected the Notice of Motion refusing to set aside the ex-parte
decree dated 07.10.2003.
11
15. Though various contentions have been raised as to whether
appellant was served or not and entered appearance in the suit, we
are not inclined to go into the merits of the contentions. In our view,
an opportunity has to be given to the appellant for contesting the
suit. It is because the suit was filed for recovery of damages of Rs.1
crore and respondent No.1 claimed interest @ 24% per annum. By
the judgment dated 07.10.2003, the Court has directed the
appellant and respondent No.2 to pay a sum of Rs.77,02,500/- and
Rs.42,70,772.46, total amount payable under decree is
Rs.1,20,03,282.96. The Court also directed the payment of
subsequent interest @ 6% per annum on the said amount of
Rs.77,02,500/- till date of reliasation.
16. As pointed out earlier, the suit claim was for damages. The
damages to the property if any, can be ascertained only after the
parties adduce the oral and documentary evidence. We have no
reason to believe that the appellant would have benefitted by
deliberately not contesting the suit as they would in any event be
saddled with interest if their conduct was to drag and prolong the
suit. Considering the nature of the claim and other facts and
circumstances and in the interest of justice, we are of a view that an
opportunity has to be given to the appellant to contest the suit
12
subject to terms. The appellant has also in that regard shown its
bona fide by depositing Rs.60,00,000/- in compliance of the order
dated 18.02.2019. By the order dated 24.01.2020, we have also
directed the appellant to deposit further sum of Rs.35,00,000/- for
which the appellant sought for some more time for compliance.
Considering the request, two months further time is granted to the
appellant for deposit of the said amount.
17. Insofar as the amount of Rs.60,00,000/- deposited by the
appellant, by our order dated 24.01.2020, we have permitted
respondent No.1-plaintiff to withdraw the said amount. Since there
are number of other beneficiaries of the trust viz. respondents No.7
to 24, the amount has to be disbursed to the trustees/beneficiaries
as per their entitlement. It is open to respondent No.1 and other
trustees/beneficiaries of the trust to file appropriate application
before the High Court for disbursement of the amount (pending
disposal of the suit) and the High Court shall consider and pass
appropriate order as per the entitlement of the respective parties.
The disbursement of the said amount will be subject to the outcome
of said suit. Permission for withdrawal of the amount of
Rs.60,00,000/- by respondent No.1 and other trustees/beneficiaries
is without prejudice to the contention of both the parties in the suit.
13
18. In the result, the impugned judgment dated 09.07.2018
passed by the High Court of Judicature at Bombay in Appeal
(Lodging) No.224 of 2018 in Notice of Motion No.580 of 2018 in Suit
No.2865 of 1994 and the impugned order dated 26.10.2018 passed
in Review Petition (Lodg.) No.20 of 2018 are set aside and these
appeals are allowed. The Suit No.2865 of 1994 is ordered to be
restored. The appellant and respondent No.2 shall file their written
statement within four weeks from today and learned Single Judge of
the High Court shall afford sufficient opportunity to both the parties
to adduce evidence and dispose the said suit in accordance with
law.
19. Insofar as direction for deposit of Rs.35,00,000/-, two months
further time is granted to the appellant for deposit of the said
amount and on such deposit, the same shall be invested in a
nationalized Bank for a period of six months with a provision of auto
renewal. Deposit of Rs.35,00,000/- would be subject to the outcome
of the suit. No costs.
..…………………….J.
 [R. BANUMATHI]
..…………………….J.
 [A.S. BOPANNA]
New Delhi;
March 02, 2020.
14

Divorce - can not be granted on subsequent events of filing of criminal cases and it's dismissal

 
Divorce - can not be granted on subsequent events of filing of criminal cases and it's dismissal 
It   is   in   that   background,   the   High   Court   had arrived at the conclusion that the criminal case filed by the   wife,   which   was   proceeded   in   C.C.   No.149/2008 alleging that the husband had demanded dowry and in the said proceedings when the allegation is found to be false for want of evidence the same would be an act of inflicting   mental   cruelty   as   contemplated   under Section13(1)(ia) of the Hindu Marriage Act and in that light had allowed the appeal. 
  Apex court held that  However, in the present facts as already indicated, the situation is not so.  Though a criminal   complaint   had   been   lodged   by   the   wife   and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with   regard   to   her   intemperate   behaviour   regarding
which   both   the   courts   below   on   appreciation   of   the evidence had arrived at the conclusion that the same was not proved. 


                  REPORTABLE
             
   IN THE SUPREME COURT OF INDIA
   CIVIL APPELLATE JURISDICTION
   CIVIL APPEAL NOS.  1912­1913   OF 2020
   (Arising out of SLP (CIVIL) Nos.2704­2705 of 2019)
Mangayakarasi                .…Appellant(s)
Versus
M. Yuvaraj           ….  Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
     
         Leave granted.   
2.     The   appellant   is   before   this   Court   assailing   the
judgment dated 20.07.2018 passed by the High Court of
Judicature at Madras in CMSA Nos.23 & 24 of 2016.  The
appellant is the wife of the respondent.  Since the rank of
parties was different in the various proceedings as both
the parties had initiated proceedings against each other,
for   the   sake   of   convenience   and   clarity   the   appellant
herein would be referred to as ‘wife’ and the respondent
herein would be referred to as ‘husband’ wherever the
context so admits. 
Page 1 of 18
3. The husband initiated the petition under Section
13 of the Hindu Marriage Act seeking dissolution of the
marriage.     The   wife   on   the   other   hand   initiated   the
petition   under   Section   9   of   the   Hindu   Marriage   Act
seeking   restitution   of   conjugal   rights.     The   respective
petitions     registered   as   H.M.O.P   No.13/2010   (old
No.532/2007)   and   H.M.O.P   No.27/2008   were   clubbed
and   the   learned   Subordinate   Judge,   Pollachi   by   the
judgment dated 26.11.2010 dismissed the petition filed
by the husband and allowed the petition filed by the wife.
The   husband   claiming   to   be   aggrieved   by   the   said
judgment preferred the appeals in CMA No.90/2011 and
71/2011 before the Additional District & Sessions Judge,
Coimbatore, namely, the First Appellate Court.  The First
Appellate Court having considered the matter, dismissed
the   appeals   filed   by   the   husband.     The   husband,
therefore, filed the Second Appeal under Section 100 of
the   Code   of   Civil   Procedure   before   the   High   Court   of
Judicature at Madras in CMSA Nos.23 & 24 of 2016.  The
High Court has through the impugned judgment dated
Page 2 of 18
20.07.2018 allowed the appeals, set aside the order for
restitution of conjugal rights and dissolved the marriage
between   the   parties   herein.     It   is   in   that   light   the
appellant­wife is before this Court in these appeals.
4. The undisputed position is that the marriage of the
parties was solemnised on 08.04.2005 which in fact was
after the parties had fallen in love with each other.  As
per the averments, the wife is elder to the husband by six
to seven years.  The parties also have a female child born
on 03.01.2007.  During the subsistence of the marriage
certain differences cropped up between the parties.  The
husband   alleged   that   the   wife   was   of   quarrelsome
character and used filthy language in the presence of
relatives and friends and also that she had gone to the
college where the husband was employed and had used
bad language in the presence of the students which had
caused insult to him.  The husband, therefore, claiming
that   he   belongs   to   a   respectable   family   and   cannot
tolerate such behaviour of the wife got issued a legal
notice dated 07.12.2006 which was not responded to by
Page 3 of 18
the wife.   The husband therefore filed a petition under
Section 13 of Hindu Marriage Act in H.M.O.P No.65/2007
seeking dissolution of marriage.  The husband contends
that the wife appeared before the Trial Court and on the
assurances put forth by her of leading a normal married
life the petition was not pressed further.   The husband
alleges that merely about five days thereafter the wife
went to the college and abused him and also left the
marital home on 12.04.2007.  In that background on the
very   allegations   which   had   been   made   in   the   first
instance, the petition seeking dissolution of marriage in
H.M.O.P No.13/2010 (old No.532/2007) was filed.
5. The   wife   who   appeared   and   filed   objection
statement disputed the allegations of the husband.  The
factual aspects with regard to the qualification of the
husband at the time of the marriage and his employment
were also disputed.   It was contended by her that after
marriage they resided together at Sathiyamangalam up to
the   year   2005   and   thereafter   at   Saravanampatti   till
December, 2006.     It was contended that the distance
Page 4 of 18
between the hometown of the parents of the husband and
the said places referred to is more than 120 kms and
travelling   the   said   distance   was   difficult.     Hence   the
allegation  of  insulting  them  is not  true.  Subsequently
when   the   relationship   between   the   husband   and   his
parents   were   cordial   and   were   living   together,   it   is
claimed that the wife had behaved well with the relatives
and the visitors.   Hence the allegation about her rude
behaviour   is   disputed.     In   respect   of   the   legal   notice
issued by the husband on 07.12.2006 it is contended
that during the pregnancy, the husband told her that his
parents are insisting on issuing the legal notice and the
husband did not mean what had been indicated therein.
Within about 25 days thereafter the wife had delivered a
female child and even in respect of the earlier petition in
H.M.O.P   No.65/2007   she   was   made   to   appear   and
submit about her readiness to live with him which she
had done unsuspectingly.  The said case was also stated
to be instigated by his parents.  In that light, the wife had
Page 5 of 18
denied the allegations and sought for dismissal of the
petition.
6. In the petition filed by the wife under Section 9 of
the Hindu Marriage Act seeking for restitution of conjugal
rights   she   had   referred   to   the   manner   in   which   the
marriage has taken place and had indicated that they are
living   separately   without   valid   reasons   and,   therefore,
sought for the relief.  The husband having appeared filed
the objection statement referring to the parties belonging
to different communities as also the age difference.  The
further averments made in the petition were denied. The
husband also referred to the complaint filed by the wife
before   the   Negamam   Police   Station   in   Crime
No.401/2007 in which the husband was arrested by the
police and was in judicial custody for seven days.  In that
light, it was contended that the marriage between the
parties had broken down to a point of no return, hence
sought for dismissal of the petition. 
7. The Trial Court framed the issues based on the
rival contentions. The husband examined himself and the
Page 6 of 18
witnesses as PW1 to PW4 and exhibited the documents
A1   to   A5,   while   the   wife   examined   herself   and   the
witnesses as RW1 to RW3 and exhibited the documents
as   R1   to   R3.     The   Trial   Court   after   referring   to   the
evidence   tendered,   has   dismissed   the   petition.     While
doing so the Trial Court had referred in detail to the
evidence that had been tendered and in that light insofar
as the allegations, the Trial Court was of the opinion that
the husband has not examined any witnesses to prove
that after 15 months of the marriage the quarrel started
between   them   and   that   he   had   to   shift   about   seven
houses due to quarrelling nature of the wife with the
neighbours.     It   was   further   observed   that   from   the
witnesses who have been examined, the evidence do not
relate   to   the   allegation   that   the   wife   had   abused   the
husband in front of the students and the co­workers.  In
that   light,   the   Trial   Court   noticed   that   the   allegation
made by the husband as PW1 and the relatives who were
examined as witnesses (PW2 and PW3) had alleged that
the wife had lived a luxurious life at her parent’s house.
Page 7 of 18
In that light, the Trial Court taking into consideration the
manner in which the marriage between the parties had
taken place and also taking note that a female child was
born from the wedlock on 03.01.2007 had formed the
opinion that the petition seeking divorce had been filed at
the instigation of the parents of the husband and there
was no real cause for granting the divorce.
8. The   First   Appellate   Court   while   considering   the
appeals   filed   by   the   husband   had   taken   note   of   the
evidence   which   had   been   referred   to   before   the   Trial
Court and in that light having reappreciated the matter
had upheld the judgment of the Trial Court.
9. In the Second Appeal filed before the High Court, it
raised   the   following   substantial   questions   of   law   for
consideration:
“1. Whether the courts below are correct
and   justified   in   failure   to   dissolve   the
marriage of the appellant and respondent
on   the   ground   of   mental   cruelty   (when
particularly   the   alleged   complaint   dated
24.11.2007 for dowry harassment lodged
by   the   respondent   against   the   appellant
and her in­laws and the consequent arrest
Page 8 of 18
by   the   police   would   unquestionably
constitutes cruelty as postulated in section
13(1)(ia) of the  Hindu Marriage Act?
2.    Whether the judgments of the courts
below in dismissing the petition for divorce
overlooking   the   subsequent   event
regarding   the   lodging   of   false   criminal
complaint   by   the   respondent­wife   for
dowry   harassment   against   the   appellant
and her in­laws are sustainable in law? 
3. Whether the judgment of the courts
below   are   correct   and   justified   when
particularly   the   criminal   prosecution
initiated in C.C.No.149 of 2008 on the file
of the Judicial Magistrate No.2, Pollachi for
dowry  harassment   is  ended  in  Honorary
acquittal?
4. Whether the judgment of the courts
below are perverse?”
10. It   is   in   that   background,   the   High   Court   had
arrived at the conclusion that the criminal case filed by
the   wife,   which   was   proceeded   in   C.C.   No.149/2008
alleging that the husband had demanded dowry and in
the said proceedings when the allegation is found to be
false for want of evidence the same would be an act of
inflicting   mental   cruelty   as   contemplated   under
Section13(1)(ia) of the Hindu Marriage Act and in that
light had allowed the appeal.
Page 9 of 18
11. Heard Mr. S. Nandakumar, learned counsel for the
appellant­wife, Mr. B. Ragunath, learned counsel for the
respondent­husband and perused the appeals papers.
12. In the light of the contentions put forth by the
learned counsel, a perusal of the papers would disclose
that the petition for dissolution of marriage instituted by
the husband was on the allegation that the behaviour of
the wife was intemperate as she was quarrelsome with
the   neighbours,   friends   and   with   the   visitors.   It   was
alleged   that   she   had   also   gone   over   to   the   place   of
employment of the husband and demeaned him in the
presence   of   the   students   and   other   co­workers.     In
respect of the said allegations, the Trial Court having
taken note of the evidence tendered through PW1 to PW4
had arrived at the conclusion that the said evidence was
insufficient to prove the allegations which were made in
the petition.  A bare perusal of the judgment passed by
the Trial Court would indicate that the evidence available
on   record   has   been   referred   to   extensively   and   a
conclusion has been reached. The First Appellate Court
Page 10 of 18
has also referred to the said evidence, reappreciated the
same   and   has   arrived   at   its   conclusion.     In   such
circumstance,   in   a   proceeding   of   the   present   nature
where the Trial Court has referred to the evidence and
the   First   Appellate   Court   being   the   last   Court   for
reappreciation of the evidence has undertaken the said
exercise and had arrived at a concurrent decision on the
matter, the position of law is well settled that neither the
High Court in the limited scope available to it in a Second
Appeal under Section 100 of the Civil Procedure Code is
entitled to reappreciate the evidence nor this Court in the
instant appeals is required to do so. 
13. It is in that view, we have not once again referred
to the evidence which was tendered before the Trial Court
which   had   accordingly   been   appreciated   by   the   Trial
Court.  In such situation the High Court had the limited
scope for interference based on the substantial question
of law. The substantial questions of law framed by the
High Court has been extracted and noted in the course of
this judgment.   At the outset, the very perusal of the
Page 11 of 18
questions   framed   would   disclose   that   the   questions
raised does not qualify as substantial questions of law
when the manner in which the parties had proceeded
before the Trial Court is noticed. The questions framed in
fact provides scope for re­appreciation of the evidence
and not as substantial questions of law.  As noticed, in
the instant facts the husband filed a petition at the first
instance,   seeking   dissolution   of   marriage   in   H.M.O.P
No.65/2007   and   the   same   was   predicated   on   the
allegation  about   the   wife   using   filthy   language   in   the
presence of the relatives and friends and also using such
language in the presence of the students of the husband.
It is in that light, the husband alleged cruelty and sought
for dissolution of marriage on that ground.  It is no doubt
true that the said petition which was initially filed was
not pressed though the contentions of the parties in that
regard   is   at   variance,     inasmuch   as   the   husband
contends that the petition was not pressed as the wife
had assured of appropriate behaviour henceforth, while
the wife contends that the said proceedings had been
Page 12 of 18
initiated   at   the   instigation   of   his   parents   and   had
accordingly not been pressed thereafter. 
14. Be that as it may, though the subsequent petition
was filed by the husband in H.M.O.P No.13/2010 which
was originally numbered as H.M.O.P No.532/2007, the
same   was   also   filed   on   the   same   set   of   allegations.
Further at that point in time the wife had also filed a
petition under Section 9 of the Hindu Marriage Act.  In
that   background,   though   subsequently   in   the
proceedings before the Trial Court a reference is made to
the criminal proceedings, as on the date when the cause
of action had arisen for the husband who initiated the
proceedings   seeking   dissolution   of   the   marriage,   the
criminal case filed against him was not the basis whereby
a ground was raised of causing mental cruelty by filing
such   criminal   complaint.     If   that   be   the   position,   a
situation   which   was   not   the   basis   for   initiating   the
petition for dissolution of marriage and when that was
also not an issue before the Trial Court so as to tender
evidence and a decision be taken, the High Court was not
Page 13 of 18
justified in raising the same as a substantial question of
law   and   arriving   at  its   conclusion  in   that  regard.    A
perusal of the judgment of the High Court indicates that
there   is   no   reference   whatsoever   with   regard   to   the
evidence based on which the dissolution of marriage had
been sought, which had been declined by the Trial Court
and   the   First   Appellate   Court   and   whether   such
consideration had raised any substantial question of law.
But the entire consideration has been by placing reliance
on   the   judgment   which   was   rendered   in   the   criminal
proceedings   and   had   granted   the   dissolution   of   the
marriage.  The tenor of the substantial questions of law
as framed in the instant case and decision taken on that
basis if approved, it would lead to a situation that in
every case if a criminal case is filed by one of the parties
to the marriage and the acquittal therein would have to
be automatically treated as a ground for granting divorce
which will be against the statutory provision.
15. It cannot be in doubt that in an appropriate case
the unsubstantiated allegation of dowry demand or such
Page 14 of 18
other allegation has been made and the husband and his
family members are exposed to criminal litigation and
ultimately   if   it   is   found   that   such   allegation   is
unwarranted and without basis and if that act of the wife
itself   forms   the   basis   for   the   husband   to   allege   that
mental cruelty has been inflicted on him,   certainly, in
such   circumstance   if   a   petition   for   dissolution   of
marriage is filed on that ground and evidence is tendered
before the original court to allege mental cruelty it could
well   be   appreciated   for   the   purpose   of   dissolving   the
marriage on that ground.  However, in the present facts
as already indicated, the situation is not so.  Though a
criminal   complaint   had   been   lodged   by   the   wife   and
husband has been acquitted in the said proceedings the
basis on which the husband had approached the Trial
Court is not of alleging mental cruelty in that regard but
with   regard   to   her   intemperate   behaviour   regarding
which   both   the   courts   below   on   appreciation   of   the
evidence had arrived at the conclusion that the same was
not proved.  In that background, if the judgment of the
Page 15 of 18
High Court is taken into consideration, we are of the
opinion   that   the   High   Court   was   not   justified   in   its
conclusion.
16. The learned counsel for the respondent however,
contended that ever since the year 2007 the parties have
been   litigating   and   were   living   separately.     In   that
situation it is contended that the marriage is irretrievably
broken down and, therefore, the dissolution as granted
by   the   High   Court   is   to   be   sustained.     The   learned
counsel has relied on the decisions in the case of Naveen
Kohli vs. Neelu Kohli (2006) 4 SCC 558, in the case of
Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007) 2
SCC 220 and in the case of  Samar   Ghosh   vs.   Jaya
Ghosh  (2007) 4 SCC 511 to contend that in cases where
there has been a long period of continuous separation
and   the   marriage   becomes   a   fiction   it   would   be
appropriate to dissolve such marriage.  On the position of
law enunciated it would not be necessary to advert in
detail inasmuch as the decision to dissolve the marriage
Page 16 of 18
apart from the grounds available, will have to be taken on
case to case basis and there cannot be a strait jacket
formula. This Court can in any event exercise the power
under   Article   142   of   the   Constitution   of   India   in
appropriate cases.  However, in the instant facts, having
given   our   thoughtful   consideration   to   that   aspect   we
notice   that   the   parties   hail   from   a   conservative
background   where   divorce   is   considered   a   taboo   and
further they have a female child born on 03.01.2007 who
is presently aged about 13 years.  In a matter where the
differences   between   the   parties   are   not   of   such
magnitude and is in the nature of the usual wear and
tear of marital life,  the future of the child and her marital
prospects   are   also   to   be   kept   in   view,   and   in   such
circumstance the dissolution of marriage merely because
they have been litigating and they have been residing
separately for quite some time would not be justified in
the present facts, more particularly when the restitution
of conjugal rights was also considered simultaneously.  
Page 17 of 18
17. In that view, having arrived at the conclusion that
the   very   nature   of   the   substantial   questions   of   law
framed   by   the   High   Court   is   not   justified   and   the
conclusion reached is also not sustainable, the judgment
of the High Court is liable to be set aside.
18. In   the   result,   the   judgment   dated   20.07.2018
passed in CMSA Nos.23 & 24 of 2016 is set aside.  The
judgment   dated   26.11.2010   passed   in   H.M.O.P
Nos.13/2010 and H.M.O.P No.27/2008 and affirmed in
CMA   No.90/2011   and   CMA   No.71/2011   are   restored.
The Appeals are accordingly allowed with no order as to
costs. 
19.           Pending   applications   if   any,   shall   also   stand
disposed of.
………….…………….J.
(R. BANUMATHI)
          .……………………….J.
                                               (S. ABDUL NAZEER)
………….…………….J.
                                              (A.S. BOPANNA)
New Delhi,
March 03, 2020
Page 18 of 18

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
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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
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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
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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
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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. 
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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.
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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
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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
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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
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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
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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:
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“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
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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
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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.
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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
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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
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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
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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
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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
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