IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RFA.No. 191 of 2011() --------------------- I.A.765/08 IN OS.213/2006 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT:1ST RESPONDENT/PLAINTIFF ----------------------------- N.RUGMANI, W/O LATE NARAYANA MENON, RESIDING AT MANALMANTHA, PUTHUR AMSOM, PALAKKAD TALUK, PALAKKAD-678011. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENT(S):PETITIONERS 1 TO 3& RESPTS.2,3/DEFENDANTS 1 TO 5 --------------- 1. C.RAJALAKSHMI, D/O V.CHANDRASEKHARAN NAIR, ARBIND NIVAS, MANALMANTHA, AMBIKAPURAM POST, PALAKKAD-678011. 2. ANEESH NARAYANAN, S/O RAJALAKSHMI, ARBIND NIVAS, MANALMANTHA, AMBIKAPURAM POST, PALAKKAD-678011. 3. INDIRA, D/O RAJALAKSHMI, ARBIND NIVAS, MANALMANTHA, AMBIKAPURAM POST, PALAKKAD-678011. 4. SOWMINI P.N., D/O LATE NARAYANA MENON, MANALMANTHA ROAD, AMBIKAPURAM POST, PALAKKAD- 678011. RFA.191/11 2 5. SAVITHRI P.N., D/O LATE NARAYANA MENON, 11/1, KERTI APARTMENT, PHASE II, MAYUR VIHAR, DELHI- 110092. R1 BY ADV. SRI.T.C.SURESH MENON THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- R.F.A.No.191 OF 2011 ------------------------------------ Dated this the 7th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.Notice to respondents 4 and 5 dispensed with. Adv.Sri.V.S.Appu takes notice for the first respondent who has lodged a coveat. Respondent 2 and 3 are the children of the first respondent, one of whom was a minor at the time of the suit. We preserve their right to seek re-hearing of the matter, if they are aggrieved by the modifications being made hereunder to the final decree. 2.The plaintiff is the appellant. She is the widow of Narayana Menon. They had a son Aravindaksha Menon and two daughters, defendants 4 and 5. Under his Will, Narayana Menon gave the suit properties to his son Aravindaksha Menon and reserved to his widow, the plaintiff, the right to take income, including from the buildings therein. RFA.191/11 2 3.Quite contrary to what the elderly Narayana Menon had foreseen, Aravindaksha Menon predeceased his mother, the plaintiff. Thus the plaintiff became eligible to 1/4th share in the estate of Aravindaksha Menon along with his widow and two children. 4.Certain bickerings ultimately led to the appellant filing a suit for partition denouncing the effect of the Will and stating that its terms had worked themselves out. She claimed 1/4th share in the estate of Aravindaksha Menon. The right claimed in favour of defendants 4 and 5, the sisters of Aravindaksha Menon, was negatived by the trial court and a preliminary decree for partition was passed upholding the suggestion of both sides as to the identity of a pathway and also excluding any effect of the Will of Narayana Menon, which the plaintiff, by pleadings, had denounced. RFA.191/11 3 5.Though the appellant had filed the suit, she did not choose to apply for final decree. Defendants 1 to 3, the widow and children of Aravindaksha Menon, applied for passing the final decree. A Commissioner was deputed and report with plan was filed. No objections were filed. The court below accepted the report of the Commissioner, including as to the valuation of the buildings, and passed final decree accordingly. 6.Before us, learned counsel for the appellant very persuasively argued that the spirit of the Will of Narayana Menon has been wholly ignored by the court below in the final decree proceedings and the elderly appellant did not have appropriate opportunity to place her objections to the final decree proceedings or the commissioner report. She is about 81 years of age now. We are, however, not impressed to accept the submissions on the basis of the Will which the appellant herself had denounced, as having worked itself RFA.191/11 4 out, thereby paving way to the foundation of the suit, in the manner in which she laid it before the court below. 7.However, we are inclined to think that going by the Will of late Narayana Menon, the widow would have continued to collect the income including rent and what she gets on account of her right to partition of the estate of her late son Aravindaksha Menon is only a share in the right that he got under the Will which, during the currency of the life time of the appellant, would not include the right to take income, including the rent. Taking the totality of the facts and circumstances of the case into consideration, we are of the view that the appellant/plaintiff who has been given Rs.97,000/- towards equilisation of shares on account of the allotment of the buildings to defendants 1 to 3 is eligible for some amount more, having regard to the requirement for her continued sustenance and support in her old age and also the relevant factors emanating out of the contents of the commissioner report, which, she says, she did not have RFA.191/11 5 appropriate opportunity to object to. Therefore, avoiding an order of remand to enable the appellant to file objections and have a re-consideration of the correctness or otherwise of the commissioner's report, we are of the view that ends of justice would be satisfied if the amount due to the appellant plaintiff under the final decree towards equilisation be enhanced from Rs.97,000/- to Rs.1,25,000/-. The impugned final decree will stand modified accordingly. 8.Before parting, we may indicate that what would ultimately link the grandmother to the grand children is nothing but love, the sublimity of which is all encompassing and beyond comparison with any heritable wealth. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.13/6.