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.

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.
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  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
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    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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. Ordered accordingly.
    …..……………………………………..J.
    (MOHAN M. SHANTANAGOUDAR)
    .…………………………………………J.
    (R. SUBHASH REDDY)
    New Delhi;
    March 05, 2020
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