IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 AS.No. 504 OF 1999(A) OS.1/1997 OF SUB COURT, VADAKARA APPELLANT/9TH RESPONDENT: NARIKALATHIL LEKSHMI, WIDOW OF BALARAMAN, AGED 58. AMBALAKAYYIL HOUSE, PUTHUPPANAM, AMSOM, DO. DESOM, VADAKARA TALUK. (DIED) ADDITIONAL APPELLANTS: 2. LAKSHMANAN, NARIKALATHIL HOUSE, PALAYAD NADA, IRINGAL VIA, VADAKARA. 3. CHANDRAN, DO.DO. 4. SAJITHKUMAR, DO.DO. 5. VENU, DO. DO.DO 6. BABITHA, DO.DO. 7. JEEJU, DO.DO. 8. SAROJINI, DEVAKI BHAVAN, PALAYAD NADA, IRINGAL VIA. VADAKARA. 9. SAVITHRI, KIZHAKANCHALIL, PALAYAD NADA, IRINGAL VIA, VADAKARA. 10. NIGEESHKUMAR, DEVAKI BHAVAN, PALAYAD NADA, VADAKARA. 11. N. SHYLAJA, C/O. M. RAMACHANDRAN, 37/52, PALLIYATE HOUSE, P.O. KARUVASSERY, CALICUT - 673 010. 12. RESHMA RAMESH, DEVAKI HAVAN, PALAYAD NADA, VADAKARA. 13. N. CHANDRI, KAVITHA, DEVI BHAVAN, CENTRL OIL MILL, CANNANAORE. 14. PUSHPA, 19/861-A, POTTENGADI, CHOLAPURAM, CALICUT-2. A.S. 504/1999 2 15. JINEESHA, VASUDEVA NILAYAM, P.O. KUTHIRAVATTOM, CALICUT-16. 16. PRASANNA, W/O. LATE SRI. LEKSHMANAN, AGED 58, NARIKKALATHIL HOUSE, P.O. PALAYAD NADA, IRINGAL VIA, VADAKARA. 17. BAIJU, S/O. LATE SRI. LEKSHMANAN, AGED 34, DO.DO. 18. SHYJU, S/O. LATE SRI. LEKSHMANAN, AGED 32, DO.DO. 19. LATHISHA, AGED 30, DO.DO. (SOLE APPELLANT DIED. ADDITIONAL APPELLANTS 2 TO 15 ARE IMPLEADED AND RECORD RESPONDENTS 4 TO 9, 20 AND 2 AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER IN I.A. 2231/2004 DATED 3.8.2005.) (THE ADDITIONAL SECOND APPELLANT DIED AND ADDITIONAL APPELLANTS 16 TO 19 ARE IMPLEADED AS PER THE ORDER IN I.A. 3753/2004 DATED 7.12.2004.) (R19 HAS BEEN DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 23.9.2002 IN CMP 4589/2002) BY ADVS M/S. . SRI.G.S.REGHUNATH STEPHEN JOY IDICULLA. SRI.BASANT BALAJI RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 8, 10 TO 31) 1. PALAKEEL SUNEETHI, D/O. JANAKI, JANAKI VILLA, PUTHUPPANAM AMSOM, DO. DESOM, P.O. PUTHUPPANAM, VADAKARA TALUK. 2. PALAKEEL KAMALA, D/O. MATHU, UNIKATTIL HOUSE, PUTHIYARA JAIL ROAD, KOZHIKODE. 3. PALAKEEL JANAKI, W/O. KRISHNAN, PUTHUPPANAM AMSOM, DO. DESOM, VADAKARA TALUK. 4. PALAKEEL SAJEENDRAN, ADVOCATE, DO.DO. 5. SISTER PRASANNA, DO.DO. 6. SISTER VASANTHA, DO.DO. A.S. 504/1999 3 7. SISTER VANAJA, DO.DO. 8. SISTER MALATHI, DO.DO. 9. SISTER JAYASREE, DO.DOL. 10. V.R. DHARMADHATHAN VYDYAR, V.S. VYDYASALA, J.T. ROAD, VADAKARA. 11. CHANDRAMATHI, CHANDRAMATHI FURNITURE, 30/250, J.T. ROAD, VADAKARA. 12. K.K. MOOSA HAJI, ALFA STORES, 30/251, J.T. ROAD, VADAKARA. 13. KUMARAN, S/O. KANNAN, AGED 68 YEARS, 30/252, KUMAR WATCH WORKS, J.T. ROAD, VADAKARA. 14. KOROTH KRISHNAN, S/O. KURIAN, AGED 50 YEARS, TRADER, 30/253, J.T. ROAD, VADAKARA. 15. V.T. RAGHAVAN, S/O. KELAPPAN, AGED 60, 30/254, V.T.K. JEWELLERY, J.T. ROAD, VADAKARA. 16. P.V. KUTTAPPU, S/O. KANNAN, AGED 60, 30/254, DO.DO. (DIED) 17. P.K. KUNJIRAMAN, S/O. KANNAN, AGED 60, 30/258, GOLD SMITH, J.T. ROAD, VADAKARA. 18. VINOD KUMAR, S/O. KUMARAN, AGED 25, 30/259, RADIO REPAIR WORKS, DO.DO. 19. DAMODARAN, S/O. KELAPPAN, AGED 30, 30/260, DO. DO. (DELETED). 20. VIPIN, AGED 20, 30/261, LEKSHMI BANKERS, J.T. ROAD, VADAKARA. 21. M.M. CHANDRAN, AGED 60, 30/583, BUS OWNERS ASSOCIATION OFFICE, J.T. ROAD, VADAKARA. 22. K.P. BALAN, S/O. BAPPU, AGED 45, 30/584, TRADER, J.T. ROAD, VADAKARA. 23. KELOTH RAGHAVAN, S/O. KRISHNAN, HOUSE NO. 30/582. 24. CHERIYA ALIAS DEVU, D/O. KANNAN, AGED 70, A.S. 504/1999 4 PALLIKOYILOTH, P.O. BEACH, VADAKARA, VADAKARA AMSOM, DESOM. 25. RAJAN, S/O. LATE SRI. P.V. KUTTAPPU, DO.DO. 26. P.K. RAJEEVAN, DO.DO. 27. P.K. RADHA, NAMBYATHAM KABDIYIL, MANTHARATHOOR AMSOM, MUDAPPILAVIL DESOM, P.O. MANTHARATHOOR VIA. PUTHUPPANAM. 28. P.K. SUJATHA, CHAMAPURAMBATH HOUSE, P.O. EYYAMKODE, VIA NADAPURAM. 29. P.K. SHEELA, MEETHALA ELANGOTH HOUSE, P.O. KANNUKKARA, VIA MADAPPALLI COLLEGE. 30. P.K. SAVITHA, MEETHALE PARAMBATH HOUSE, P.O. PANOLOR, VIA. MOKERI. 31. P.K. AJITHA, SANTHA NILAYAM P.O. ANIYARAM, VI. CHOCKLY. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR R3 TO R9 BY ADV. SRI.K.P.BALASUBRAMANYAN R4 BY ADV. SRI. V. RAJAGOPAL. R23 BY ADV. PARTHASARATHY. R20 BY ADVS. M/S. S.V. BALAKRISHNA IYER, P.B. KRISHNAN. SRI.SHIRAZ ABDULLA THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 10.1.2008, THE COURT ON 28/03/2008, DELIVERED THE FOLLOWING: A.S. 504/1999 5 ORDER ON CMP NO. 4082/1999 // DISMISSED // ORDER ON I.A. 3695/2005 // ALLOWED // ORDER ON I.A. 3696/2005 //ALLOWED // 28.3.2008. SD/-, P.R. RAMAN, JUDGE. SD/-, V.K. MOHANAN, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = A.S. NO. 504 OF 1999 = = = = = = = = = = = = = = DATED THIS, THE 28TH DAY OF MARCH, 2008. J U D G M E N T Raman, J. The only dispute in this appeal is in respect of the construction of a registered Will Ext.A1 executed by one Bappu on 19th February, 1950, who died in 1955 - nearly five years after the execution of the Will. Bappu had two daughters - Janaki and Mathu and two sons - Krishnan and Balaraman. The plaintiff, in the suit is the daughter of Janaki. The first defendant is the daughter of Mathu. Second defendant is the wife of Krishnan and Defendants 3 to 8 are his children. The 9th defendant is the widow of Balaraman who filed this appeal. Defendants 10 to 23 are the tenants occupying the building situated in the suit property, which are items 4 and 5. Plaintiff contended that as per the Will, items 15 to 24 and 29 in the margin of the Will were bequeathed to Balaraman with certain conditions which inter alia stipulates that the legatee should enjoy the property, that he shall not encumber or alienate them and any such alienation would be void, that on the death of Balaraman, the properties are to be enjoyed by his brother and if Balaraman dies issueless item 24 with A.S. 504/1999 :2: the house therein will devolve on Krishnan. According to the plaintiff, the remaining properties as per the Will will devolve on Krishnan, the plaintiff and first defendant. Balaraman died on 5.2.1988 without any issues. Hence Balaraman had only limited interest bequeathed to him. According to the plaintiff, the properties vested on the plaintiff, first defendant and the heirs of Krishnan who are defendants 2 to 8 since Krishnan died on 21.4. 1981. The plaint schedule properties are Items 17,19,20, 21 and 22 in the Will. Item 16 was sold during the life time of Balaraman and there was no challenge since according to the plaintiff, the said property was sold with the concurrence of the first defendant, plaintiff and Krishnan. Items 2 to 24 devolve on defendants 2 to 8 and Items 15,16,18,24 and 29 in the Will are in the possession of tenants and they obtained fixity of tenure and hence these properties are not included in the suit. Item No. 17 is not correctly described in the Will. The correct description is in plaint item 1. On the death of Balaraman, the 9th defendant who is in possession of the properties have no right or interest. The building in the plaint schedule are commercial buildings occupied by tenants. 2. The 9th defendant, in her written statement, contended that the testator had not fixed any time for the contingent event to happen, but Balaraman died without any issue, that he died after the death of the testator surviving him and so the whole of the property bequeathed in A.S. 504/1999 :3: favour of Balaraman vested on him absolutely and the other conditions bequeathing the properties to Krishnan and others are invalid, that even if the plaintiff had any right, the same is lost by adverse possession and limitation, that long after the death of the testator, while Balaraman was holding the properties, he sold one item of property as per Ext. B1 claiming himself to be absolutely entitled thereto, that the first defendant and the plaintiff also executed documents admitting the right of Balaraman. 3. During the pendency of the appeal, the appellant/9th defendant died and additional appellants are impleaded who are the legatees under the Will executed by the 9th defendant. That Will was also marked as Ext.A1 in the incidental proceedings in I.A. 2231/2004 and found to be genuine. I.A. 2231/2004 is an impleading petition filed by the additional appellants 2 to 15 for getting themselves impleaded and also to record Respondents 4 to 9, 2 and 20 as the legal representatives of the original appellant on the strength of a Will executed by her, which is dated 31.8.1998. Since there was dispute regarding the Will so executed by the appellant/9th defendant, the matter was remitted to the court below for entering a finding regarding its genuineness. Accordingly, the court below by its order dated 9th June, 2005, found that there is no glaring circumstances to disbelieve the testimony of PWs 1 to 3 and all the formalities under Section 63 of the Succession Act and Sections 58 to 61 of A.S. 504/1999 :4: the Registration Act have been complied with. Accordingly, it was held that the Will is genuine and it was executed by the appellant/9th defendant with her sound state of mind. This finding has been accepted by the parties, as no arguments were raised disputing the correctness of the said finding. 4. As we have already indicated, the whole question depends on the interpretation and construction of the Will executed by the testator Bappu which is marked as Ext.A1 in the suit. The validity of the execution of Ext. A1 Will by Bappu, the genealogy of the parties and the date of death of some of the parties as referred to above were found to be beyond dispute as neither side adduced any evidence disputing the same. The prayer in the suit is for recovery of plaint schedule properties from the 9th defendant on the strength of title of the plaintiff and defendants 1 to 8 and to pass a preliminary decree for partition of the plaint schedule properties into three equal shares and allotment of one such share to the plaintiff and to direct the 9th defendant to pay the share of profits due to the plaintiff from 5.2.1988 till the date of suit and also future profits from the date of suit till delivery of possession of the properties alloted to her share as determined by the court. She also sought for a direction to the 9th defendant to pay her costs in the suit. The right, if any, of the plaintiff to recover the plaint schedule property from the 9th defendant on the strength of her title and that of A.S. 504/1999 :5: defendants 1 to 9 therefore depends on the effect of the stipulation contained in Ext.A1 Will. 5. Issue Nos. 1 and 2 framed by the court below are as follows: 1. Whether the plaintiff has any title to enforce partition? 2. Whether the right of the plaintiff, if any, is barred by adverse possession and limitation? 6. Now let us refer to the documentary evidence let in by the parties. Ext.B1 is a sale deed dated 23.12.1977 executed by Balaraman. Ext. B2 is another document executed by Balaraman in favour of one Palakkul Remesh Babu. Item 29 in the Will is in the name of Balaraman, purchased by the testator as is referred to in the Will. Balaraman traces his title to the deed of purchase standing in his name. Ext. B3 dated 11.6.1984 is the document executed by the first defendant which is item No.2 forming part of the Will. The executant described himself as an absolute owner as per the Will. Ext. B4 is the rent deed executed by Balan in favour of Lakshmi. Ext. B5 dated 16.8.1994 is the copy of kachit executed by one Vipin Kumar in favour of Lakshmi. Ext. B6 is the copy of the jenmam assignment deed executed by Kamala in favour of Lakshmi. Ext.B7 dated 10.8.1988 is the copy of the kachit executed by Chandran in favour of Narikalathil Lakshmi. Ext. B8 dated 23.6.1993 is the assignment deed executed by Lakshmi in favour of Narayanan. Ext. B9 is the certified copy of the assignment deed executed by Suneethi and Prasanna in favour A.S. 504/1999 :6: of Remesh Babu. The plaintiff produced Ext.A1 which is the registration copy of the Will dated 27.2.1950 executed by Manaprath Bappu. The court below, on an interpretation of Ext.A1 Will and placing reliance on some of the decisions on the point, found that on a reading of Ext.A1 Will, as a whole, it can be noted that the testator Bappu wanted to provide that in case Balaraman died issueless, the properties bequeathed in his favour should devolve on Krishnan, the plaintiff and the first defendant and evidently, the intention is to deprive the widow of any right to claim the property. It was held that on a true construction of the Will, the contention of the 9th defendant to the effect that Ext.A1 Will is hit by Section 124 of the Indian Succession Act and hence the gift over to plaintiff, Krishnan and the first defendant has failed for the reason that Balaraman survived the testator, is not acceptable and held that the plaintiff and defendants 1 to 8 are entitled to get a decree for partition. The plea of adverse possession and limitation was also found against. Accordingly, a preliminary decree for possession and mesne profits for three years prior to the date of suit and future mesne profits from the date of suit till date of delivery of possession was passed against the 9th defendant, the quantum of which has to be decided in the final decree stage. A preliminary decree for partition directing the plaint schedule property to be divided into three equal shares and allotment of one such share to the A.S. 504/1999 :7: plaintiff, one share to the first defendant and one share to Defendants 1 to 8 together with cost was passed and ordered to be paid from out of the estate. The sharers who had paid court fee were declared to be entitled to apply for final decree. 7. According to the learned counsel Mr. G.S. Raghunath, appearing on behalf of the appellant and Mr. Krishnan, appearing on behalf of the supporting defendants, as per Section 124 of the Indian Succession Act, the legacy to others in case of Balaraman dying without children cannot take effect since it is specified upon an uncertain event and that no time limit is mentioned for its occurrence. According to them, the latter part of the Will bequeathing the properties in favour of the children also will not take effect. According to them, the bequest in favour of the legatees become absolute on the death of Balaraman and cannot be postponed in perpetuity awaiting for any of the contingencies to happen as stipulated in the Will. It is contended that after the death of the testator, the legatees become absolutely entitled to the property bequeathed in their favour and the latter part as to what would happened in case the legatee died with or without children, are invalid in law. So the whole argument stems from an assumption that there is already an absolute legacy in favour of Balaraman which itself is a mooted question to be decided in this case. 8. Before we may refer to the case law on the subject, it will be A.S. 504/1999 :8: useful to refer to Section 124 of the Indian Succession Act which provides that where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable. As per Illustration No.(ii) thereunder a legacy is bequeathed to A and in case of his death without children, to B. If A survives the testator or dies in his life-time leaving a child, the legacy to B does not take effect. It is therefore contended that Balaraman having survived the testator, the latter part contained in the Will as to what will happen in case Balaraman dies issueless cannot take effect. It is also contended that Section 10 of the Transfer of Property Act is in principle similar to the provisions contained in the Indian Succession Act which provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. As per Section 11 of the Transfer of Property Act, where on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and A.S. 504/1999 :9: dispose of such interest as if there were no such direction. 9. It is contended that Section 131 of the Indian Succession Act though provides that bequest may be made to any person with the condition super added that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person, however is subject to the rules contained in Sections 120 to 130 vide subsection (2) thereof. Therefore, it is contended that Section 131 is only an enabling provision; so however, subjected to the rule stipulated in the other provisions contained in Sections 120 to 130. Thus Section 131 is to be read subject to the provisions contained in Section 124 and once it is found that the latter part of the Will, for the reasons stated, is hit by Section 124, that part of the Will has to be held as invalid. 10. We may also refer to Section 138 of the Indian Succession Act which provides that where a fund is bequeathed absolutely to or for the benefit of any person, but the will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the will had contained no such direction. 11. The question therefore is, whether as per the Will there is an absolute bequest in favour of Balaraman and the latter part contained in the Will is a gift over after the death of the testator as contended by the A.S. 504/1999 :10: appellant or not. Both sides placed reliance on various authorities. 11(A). Now we shall refer to the various authorities cited before us, which have bearing in the matter of construction of a will. In Sasiman v. Shib Narain (AIR 1922 Privy Council 63), a Four Bench decision of the Privy Council, Sir Joghn Edge, speaking for the court held as follows: "It is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in another case. The term "malik", when used in a will or other documents as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning. " 12. In Gauri Shanker Sah v. Ramchander Sah (AIR 1970 PATNA 144) the question as to whether the interest created as per the Will was absolute or limited one, came up for consideration and it was held as follows: "The recitals in a Will in each case has to be considered in order to determine as to whether the interest created in favour of one person or the other was absolute one a or limited one. The will has to be read as a whole, meaning thereby that the true intention of the testator has to be A.S. 504/1999 :11: gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. Effect should be given to every disposition contained in the will as far as it is legally possible unless the law prevents effect being given to it. But if there were two repugnant provisions conferring successive interests, a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given to every testamentary intention contained in the will. Reference was also made to the decision of the apex court in Bajrang Bahadur Singh v. Bakhtral Kuer (AIR 1953 SC 7), Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703) and Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC 1323). With reference to the provisions contained in Sections 131 and 124 of the Indian Succession Act, 1925, in paragraphs 14 and 22 it was held as follows: Turning once again to the facts of the present case, it appears undoubtedly by the will in question that a bequest was made in favour of Bhagwan Lall, but a condition was super added that if he as well as his male issue would die without leaving behind any legitimate male issue, then the agnates of the testator would get the properties as absolute owners. An estate was no doubt conferred on Bhagwan Lal but it was subjected by the said condition. The event of his death or that of his son, if any, was undoubtedly specified, but the happenings thereof were uncertain. On the happening of the said event or A.S. 504/1999 :12: events, the properties bequeathed were to go to the agnates. These aspects of the will in question attract the provisions of Section 131(1) of the Indian Succession Act and, according to sub-section (2) of that section the ulterior bequest (in this case, to the agnates) would be subject to the rules contained in Section 124. The latter section definitely provides that the legacy cannot take effect unless the specified uncertain event would happen before the period when the fund bequeathed became payable or distributable. Applying that section to the facts of the present case, the position is that unless Bhagwan Lal died during the lifetime of Janki Kuer (which was the specified uncertain event), the legacy in favour of the defendants (agnates) cannot take effect. The bequest to the agnates was a contingent one, and there is no escape from the conclusion that the provisions of Section 124 are fully attracted in respect of the present will (Ext.9)." In para 22 it was held thus: "On a careful consideration of the points urged by the learned counsel for the parties I am of the view that there is no escape from the conclusion that the terms of the will in question do attract the provisions of Sections 124 and 131 of the Succession Act and Bhagwan Lal, not having died during the lifetime of Janki Kuer, the ultimate bequest in favour of the agnates (defendants) cannot take effect. The position thus is that Bhagwan Lal got an absolute interest by the said will and after the death of Bhagwan and his wife, the plaintiffs (who are the heirs of Bhagwan) are entitled to the properties mentioned in the will. ..............." 13. It may be noticed that the Will which was the subject matter of A.S. 504/1999 :13: interpretation in that case provided that the testator would remain the absolute owner of the property till his death, but after his death, his wife Janki Kuer would remain in possession of those properties;