Narinder Singh Rao vs. Air Vice Marshal Mahinder Singh Rao & Ors. (2013) 9 SCC 425
Rao
Gajraj Singh and his wife Sumitra Devi were occupiers of the suit
property. The property had been constructed somewhere in 1935 and as per
the municipal record, it belonged to Rao Gajraj Singh. A document was
executed by Rao Gajraj Singh to the effect that upon death of himself or
his wife, the suit property would be inherited by the survivor. The
said writing was attested by Rao Devender Singh, the son of Rao Gajraj
Singh’s real sister.
Rao Gajraj Singh expired on 29th March, 1981
and thereafter Sumitra Devi, who had eight children, started residing
at Ranchi with the Appellant. Somewhere in 1980s, Sumitra Devi had
constructed some shops in the suit premises and the said shops were
given on rent.
On 1st June, 1989, Sumitra Devi executed a Will
whereby she bequeathed the suit property to one of her sons, namely,
Narinder Singh Rao (the present Appellant and original Defendant No. 1)
and she expired on 6th June, 1989.
After the death of Sumitra
Devi, her four children, one of them being the present Respondent No. 1,
filed a suit for declaration claiming their right in the suit property.
Subsequently, the plaint was amended so as to make it a suit for
partition. According to the case of the said children, the Will was not
genuine and therefore, the said Will could not have been acted upon and
as Sumitra Devi was survived by eight children, the suit property would
be inherited by all the children. Thus, each child had a 1/8th share in
the suit property.
Even after the death of Rao Gajraj Singh, the
suit property continued to remain in his name because nobody had got the
property mutated in the names of his heirs/legal representatives after
his death. Upon the death of Rao Gajraj Singh, no mutation entry was
made in the Municipal Corporation records to show as to who had
inherited the property in question and the said property continued to
remain in the name of late Rao Gajraj Singh.
By virtue of the
Will executed by Sumitra Devi, whereby the property had been bequeathed
to the present Appellant, the Appellant claims complete ownership over
the suit property.
The Hon’ble Court observed that so far as
inheritance of the suit property by the present Appellant in pursuance
of the Will dated 1st June, 1989 executed by Sumitra Devi is concerned,
the Will was validly executed by Sumitra Devi, which had been attested
by two witnesses, one being an advocate and another being a medical
practitioner.
The next question which was to be considered by the
High Court was with regard to the ownership right of the suit property.
The property was in the name of Rao Gajraj Singh and no evidence of
whatsoever type was adduced to the effect that the property originally
belonged to Sumitra Devi. Thus, the findings that the suit property
belonged to Rao Gajraj Singh cannot be disturbed. As Rao Gajraj Singh
died intestate and was the owner of the property at the time of his
death, the suit property should have been inherited by his widow, namely
Sumitra Devi and his eight children in equal share, as per the
provisions of the Hindu Succession Act, 1956. In that view of the
matter, the High Court arrived at the conclusion that the suit property
would be inherited by all the nine heirs, i.e., Sumitra Devi and her
eight children and therefore, Sumitra Devi had inherited only 1/9th of
the right and interest in the suit property whereas 1/9th of the right
and interest in the suit property belonged to each child of Rao Gajraj
Singh.
Though the Will executed by Sumitra Devi has been treated
as a validly executed Will, Sumitra Devi, who had only 1/9th of the
right and interest in the suit property, could not have bequeathed more
than her interest in the suit property. If Sumitra Devi was not a
full-fledged owner of the suit property, she could not have bequeathed
the entire suit property to the present Appellant, Narinder Singh Rao,
who has claimed the entire property by virtue of the Will executed by
Sumitra Devi. At the most Sumitra Devi could have bequeathed her
interest in the property which was to the extent of 1/9th share in the
said property. So the High Court rightly came to the conclusion that the
1/9th share in the suit property belonging to Sumitra Devi would be
inherited by the present Appellant – Narinder Singh Rao by virtue of the
Will executed by her. In addition to his own right and interest in the
suit property to the extent of 1/9th share, which the present Appellant
had inherited from his father. Thus the present Appellant would get
1/9th share in the suit property as he also inherited the share of his
mother Sumitra Devi whereas all other children of Rao Gajraj Singh would
get 1/9th share each in the suit property. Thus, the present Appellant
would be having 2/9th share in the suit property
