IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.12.2009 CORAM THE HONOURABLE MR. JUSTICE B.RAJENDRAN A.S. No.1171 of 1994 1. Dr.Venugopal Kallat (Died) 2. Rajaram Kallat 3. Dharmaraj Kallat (died) 4. Prema Vidhyadharan 5. Bharathi Dharmaraj Kallat 6. Ayyappa Shankurry Kallat 7. Miss. Manjula Kallat (Minor by guardian 5th appellant Tmt.Bharathi Dharmaraj Kallat) Appellants 5 to 7 are brought on record as LRs of the deceased 3rd appellant and 5th appellant appointed as guardian for 7th appellant as per order of this Court dated 09.08.1995 in C.M.P.No.8409, 8410 of 1995 8. Chitra Venugopal 9. Sankar Kallat 10. Anand Kallat Appellants 8 to 10 have been brought on record as LRs of the Deceased 1st appellant as per Order dated 09.06.2000 in C.M.P.No.5893 of 2000 ... Appellants/ Plaintiff Versus 1. Dr.Jayakumar Kallat (Died) 2. Santhi Latha 3. Dr.Sanjai Kallat 4. Kalpana Kallat 5. Avinash Kallat 6. Sonitha Kallat (RR2 to 6 brought on record as LRs of the deceased sole respondent vide order of court dated 24.01.07 made in C.M.P.No.200 of 2007 ... Respondents/ Defendant Appeal filed under Section 96 of Code of Civil Procedure against the Judgment and Decree dated 28.07.1994 on the file of Subordinate Judge, Udumalpet in O.S.No.258/91. For Appellants : Mr.V.Radhakrishnan, Senior Counsel for Mr.S.Kadarkarai https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.P.R.Krishnan, Senior Counsel for Mr.R.Thirumalai JUDGMENT The unsuccessful plaintiffs are the appellants in this appeal. The plaintiffs have filed the suit against the sole defendant namely Dr.Jayakumar Kallat praying for "partition to divide the suit property into 5 equal shares by metes and bounds with reference to good and bad soil by appointing a commissioner or otherwise allotting one such share to each of the plaintiffs (totalling four shares to the plaintiffs) excluding T.S. No.18/4A3 measuring an extent of 51 cents with the building or in the alternative allotting the said portion to the 4th plaintiff and for costs." The suit was dismissed by the Court below which resulted in the present appeal by the plaintiffs/appellants. 2. For the sake of convenience, the parties shall be referred to as Plaintiffs and defendants as they were arrayed before the Court below. 3. The Plaint averments are as follows:- The Plaintiffs 1 to 3 and the defendant are the sons and daughter of Dr. Sankunni Kallat, who died in the year 1971. The mother of the plaintiffs and defendant died subsequently in the year 1981. The suit property described in Schedule A and B was the self acquired property of Dr. Sankunni Kallat, who executed a registered Will dated 18.07.1969 with respect to 'A' Schedule property consisting of hospital buildings and other buildings. As per the Will, the defendant shall enjoy the said property without power of alienation and the said properties must be used for hospital and clinic purpose. However, the defendant must improve the hospital out of the income derived from 'C' schedule properties besides he must provide necessary family expenses for the plaintiffs 1 and 2 whenever they come toPollachi. As far as the third plaintiff is concerned, the defendant must pay Rs.150/- per month towards his maintenance. In the Will, it was specifically stated that regarding the future mode of devolution, the plaintiffs and defendant shall decide it on their own. In other words, the intention of the testator was to improve the hospital, which is clearly reflected in the Will. The Testator himself was a Doctor by profession and he had earned name and fame by his hard work in the field. The defendant was given the right of management of the properties because he was the only person with medical qualification among his children. 4. According to the plaintiffs, the defendant has not fulfilled his obligations or fulfilled the wishes of the testator. The defendant did not maintain the property properly and he had lead a wayward life diverting the income of the hospital to his own personal comforts. Regarding the future devolution of the property, the plaintiffs and defendant met on 08.04.1987, but no https://hcservices.ecourts.gov.in/hcservices/ amicable solution could be found as the defendant dominated the plaintiffs and he was not amenable to any proposal. It was further contended that as per the wishes of the testator, the defendant did not make any improvement in the hospital. On the other hand, from the income derived out of A schedule property, the defendant purchased a property and put up a nursing home on his own. The property acquired by the defendant out of the income derived from the A Schedule property is described as B Schedule in the plaint. Even though the B Schedule property stands in the name of the defendant, the plaintiffs also have a share in that because B Schedule property was purchased from and out of the income derived from the A Schedule property. 5. The Plaintiffs would further contend that the fourth plaintiff got a property of her own, but the defendant, in order to harass the fourth plaintiff, has issued a noticefor partition with respect to that property for which the fourth plaintiff issued suitable reply stating that she is the owner of that property. The Plaintiffs 1 to 3 also stood by the side of the fourth plaintiff and deprecated the defendant for having issued the notice, but this has infuriated the defendant and had led to further deterioration in the relationship between the parties. Since the defendant had not fulfilled the obligation of the testator by maintaining the A Schedule property in a proper manner and therefore the character of the property become the common property, the plaintiffs have got an equal right in the entire A and B Schedule properties and the plaintiffs are deemed to be in joint possession of the suit properties . The plaintiffs also demanded the defendantto partition the property by metes and bounds, but the same was not acceeded to by him, hence, the suit was filed. 6. The defendant filed written statement contending that the first plaintiff was given extensive education and even sent to United Kingdom for higher studies. He was well employed in Madras and then at Delhi. He is now leading a retired life. He has been given the main house in Palghat Road, Pollachi and also landed properties. He is well placed comfortably and leading a happy and comfortable life. The 2nd plaintiff was also given collegiate education and started his own factory at Madras. He has been provided with cash for starting and conducting his business. He has settled down at Madras. The 3rd plaintiff never left Pollachi. He is leading a easy life. He has been given half share in the main house and 14 acres of fertile agriculture land. He is attending to agriculture. He is paid the amount stipulated in the will. The 4th plaintiff was also given collegiate education and given in marriage in 1964 to an I.A.S. Officer. She has been well provided with copious jewels and household articles, a Car, Building and landed properties to the extent of 28 acres. Dr.Sankunni, the Testator, had also given several cash payments to the other sons from the funds of the defendant. https://hcservices.ecourts.gov.in/hcservices/ 7. According to the defendant, Dr.Sankunni Kallat died on 07.04.1971 and as per the Will dated 18.07.1969, as he has already provided for his wife and children and that the defendant was practising along with him, he has executed the above said Will bequeathing the entire hospital properties and he has been given the right to take the possession of the property and use the same for running the hospital and clinic. As per the pious desire of the testator, he is maintaining the hospital and fulfilling the wishes of the testator. Therefore, the hospital and the other properties cannot be construed as a common properties and they are not liable for partition. The plaintiffs are not entitled to claim themselves as co-owner of the property. The defendant specifically point out the covenants contained in the Will executed by the testator, which is extracted hereunder. "a. The testator Dr.Sankunni did not confer any right in the hospital properties to the plaintiff; b. The hospital properties and the right to run the hospital and clinic were bequeathed to the defendant; c. The will of Dr.Sankunni Kallat does not prohibit or stipulate that the defendant should not have any independent practice or have his income; d. Even regarding the income from the Hospital, there is no condition that the defendant should spend the entire income only for the hospital and for the plaintiffs; e. The will only provides that maintenance and improvement of the Hospital may be carried out from the income; f. The testator also provides that during the period of stay of the plaintiffs at Pollachi, the family expenses are to be met from the income from the Hospital and also pay Rs.150/- to the 3rd plaintiff as he was leading an easy life. The plaintiffs are not given any right to partition." 8. The testator has categorically provided in the Will as to how the property has to be dealt with and utilised after his life time. The plaintiffs have no right to decide the manner in which the property has to be utilised, as alleged in the plaint. The power has been given only to the defendant to take a decision after consulting the other members and take necessary decision thereof. Here again the plaintiffs were given right to be consulted, but the ultimate decision is vested with the defendant. According to the defendant, the 4th defendant put up a construction in a portion of the hospital building. The defendant originally thought that portion of the property where construction was put up was not covered under the Will, later, he came to know that 51 cents of lands in T.S.No. 18/4/A3 is part and parcel of the hospital land covered under the Will dated 18.7.1969. Therefore, the defendant issued a notice dated 25.10.1988 calling upon the fourth plaintiff to remove the unauthorised and illegal construction. The fourth plaintiff is instrumental in projecting this defendant in bad taste and induced the plaintiffs 1 to 3 to https://hcservices.ecourts.gov.in/hcservices/ seek for share in the property which were bequeathed to the defendant. According to the defendant, the plaintiffs have no share in the properties, there is no recital in the will which will entitle the plaintiffs to claim a share in the suit properties. The defendant had not led a wayward life or purchased the B Schedule property out of the income derived from A Schedule property, for his personal gain and comforts. The B Schedule property has been purchased out of his self earnings and income and therefore the plaintiffs are estopped from claiming any share in the 'B' schedule property. 9. The defendant has also filed additional written statement stating that 51 cents, which are part of T.S.18/4.3 with the building cannot be excluded from this suit nor can it be allotted to the 4th plaintiff in equity or otherwise. He would further claim that the partition cannot be claimed now and admitted the he can take possession of the properties and use it as a clinic and that the defendant cannot alineate or encumber the properties. He would also further contend that he is entitled to be in possession and enjoyment of the properties till his life time subject of course to the terms of the Will. As per the terms of the Will none of the plaintiffs have been given any right nor have they been given right of division of properties. He would finally contend that the plaintiffs have no claim for partition and the defendant is entitled to be in possession and enjoyment of the properties covered under the Will till his life time. 10. The plaintiffs have filed reply statement wherein they would state the Will gives only the right of management of the hospital buildings to the defendant. It specifically reads that it must be used for hospital and clinical purposes. But the defendant is keeping a major portion of the building vacant and has left the same in a dilapitated condition. He has not developed the hospital and he has not taken any care to meet the family expenses of the plaintiffs, on the other hand he has diverted the entire income for his personal use and has purchased a new plot and constructed a new hospital. Thus, the defendant had totally ignored or failed to fulfil the pious desire of the testator. The Will gives only a limited right of management to the defendant without power of alienation. The defendant is acting contrary to the wishes of the testator mentioned in the Will. Therefore, even during the life time of the defendant, the suit is maintabinable. The defendant is estopped from questioning the right of the 4th plaintiff in respect of the house in T.S.18/4A3 as the defendant himself was actively involved with the 4th plaintiff in the construction of the house. This fact has been admitted in several letters written by the defendant himself. 11. On the above said pleadings, the parties to the suit let in oral and documentary evidence. On behalf of the Plaintiffs, Exs. A1 to A32 were marked and the second and fourth plaintiffs have been examined as PWs 1 and 2. The defendant examined himself as DW1 and marked Exs. B1 to B7 on his side. The https://hcservices.ecourts.gov.in/hcservices/ Trial Court has framed as many as 8 issues. After appreciating the oral and documentary evidence, the trial Court dismissed the suit, which gave rise to the present appeal suit at the instance of the plaintiffs. 12. Pending appeal, the first plaintiff Dr. Venugopal Kallat died on 06.02.2000. The third plaintiff Dr. Dharmaraj Kallat died on 05.01.1995. The defendant also died on 05.12.2006. Their respective legal heirs were brought on record. 13. The points for consideration in this appeal is i) Whether the Plaintiffs/appellant can claim any right in the suit property? ii) Whether the terms of Ex.B2, Will dated 18.07.1969 has been fulfilled by the defendant? 14. Heard both parties. The learned senior counsel for the appellants pointed out the several clauses contained in the Will, Ex.B2 dated 18.07.1969 and submitted that as per the recitals in the Will, the defendant was looking after the medical professession along with the testator Dr.Sankunni Kallat in order to develop the clinic which Dr.Sankunni Kallat was running by then. Under those circumstances, Ex.B2, Will dated 18.07.1969 was executed by the testator specifically stating that the defendant can maintain the property and out of the income derived from the hospital property, he has to develop the hospital and look after the comforts of other children whenever they visit Pollachi and also make a monthly payment of Rs.150/- to his epileptic son, who has no avocation. He would further contend that this would clearly indicate that the testator only wanted the defendant to enjoy the property till his life time and during the course of his life time, the defendant can run the hospital and maintain it from the income derived from the hospital premises. Further as per the recital in the Will, the defendant was directed to develop the hospital and should also look after the other children whenever they visit Pollachi besides the income should be utilised for the purpose of other children namely, the plaintiffs. In other words, after the life time of the testator, the defendant shall take possession of the properties covered under the Will for hospital and clinic use and he should not alienate or encumber the property and out of the income from the hospital, he should develop the hospital and also look after the comforts of the other children. As far as the decision as to the mode of utilising the property in future, the testator had clearly expressed in the Will that the other children have to be consulted regarding the mode of utilisation of the property. Therefore, a collective reading of Ex.B2 would clearly reveal that the defendant has been given life time interest in the property and he has got no power of alienation. The defendant also, in his written statement or additional written statement had claimed any absolute right over the suit property. 15. According to the learned senior counsel for the appellant,in construing a document whether in English or in https://hcservices.ecourts.gov.in/hcservices/ vernacular language, the fundamental rule is to ascertain the intention from the words used and the surrounding circumstances and in construing the language of the Will, the Court is entitled to sit in the armchair of the Testator. The Court shall also take into consideration the position of the testator, his family relationship, the probability that he would use the words in a particular sense to ascertain the intention of the testator. Further, the true intention of the testator has to be gathered not by attaching importance to isolated expression but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory. 16. According to the learned senior counsel for the plaintiffs, the intention of the testator was that the property should devolve to the entire members of the family and they would decide the future course of devolution of the property after the demise of the defendant. In this case, from the evidence let in on behalf of the plaintiffs, it is clearly established that the defendant has not been carring out the wishes of the testaor, the hospital is not been maintained properly and the income derived from the A schedule property has been utilised and spent for purchase of the 'B' Schedule property by the defendant, therefore, B Schedule property is also liable for partition as it was only purchased from and out of the income derived from the A schedule property. Furthermore, pending disposal of the appeal, the first defendant died and his legal representatives have brought on record. Moreover, there is no records to show that as per the direction of the testator, any consultation was made by the deceased defendant along with the plaintiffs or any nomination has been made. Further, when the property has not been utilised as per the wishes of the testator, it would automatically devolve upon the other family members namely the plaintiffs as legal heirs of Dr.Sankunni Kattla and therefore, definitely the plaintiffs are entitled for a share in the A and B schedule property. Consequently, each of the plaintiffs and the defendant would get 1/5th share in respect of the all the properties concerned. 17. The learned senior counsel also relied upon Section of the 82 of the Indian Succession Act to show that in a Will, the meaning of any clause is to be collected from the entire instrument and all its parts are to be construed with reference to each other. In this connection, he relied upon the decision reported in (Navneet Lal Vs. Gokul and others) 1976(1) SCC 630 wherein, the following principles were laid down by the Honourable Supreme Court:- "1. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal vs. Nand Lal). https://hcservices.ecourts.gov.in/hcservices/ 2. In Construing the language of the Will the Court is entitled to put itself into the Testator's armchair (Venkata Narasimha vs. Parthasarathy) and is bound to bear in mind also other matters that merely the words used. It must consider the surrounding circumstances the position of the Testator, his family relationship, the probability that he would use words in a particular sense....... But, all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular Testator in that document. (Venkata Narasimha's case (supra) and Gnanambal Ammal Vs. T.Raju Ayyar). 3. The true intention of the Testator has to be gathered not by attaching importance to isolated expression but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradicotry. (Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer). 4. The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The Court will look at the circumstances under which the Testator makes his will, such as the state of his proper, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the Testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal Vs. Rameshwar Das). 5. It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferrring successive interests, if the first interest created is valid, the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy Vs. Mrs.Hilda Brite)." 18. Relying on the above decision, the learned senior counsel for the plaintiffs would contend that a collective reading of the principles laid down by the Honourable Supreme Court is applied to the facts of the case, it will clearly show that the defendant, who was given only the right to manage the property is bound to support the other family members out of the income https://hcservices.ecourts.gov.in/hcservices/ derived from the A Schedule property and consequently, he has no absolute right in the suit properties. He would specifically point out that neither in the written statement nor in the evidence, the defendant has not anywhere stated that he claims the suit property as his own. Even in the written statement he claim himself as a common owner, meaning thereby, it is open to the plaintiffs to claim partition after his death. Therefore from the pleadings as well as the evidence, it is clear that the plaintiffs also got a right to get share in the suit property, but the court below has erroneously dismissed the suit. The learned senior counsel for the plaintiffs also relied upon the following decisions reported in (i) (Bajrang Factory Ltd., Vs. University of Calcutta) 2007 (7) SCC 183 (ii) (Shyamlal Kanti Guha Vs. Meena Bose) 2008 (8) SCC 115. Lastly, the learned senior counsel for the plaintiffs argued that if really the father wanted his son Dr.Jayakumar/ defendant to have the property as his absolute property, then, in the Will, he would not have imposed an obligation on the defendant to maintain the other family members, being the plaintiff or restricted his right only to enjoy the property till his life time without power of alienation. He also relied on Section 138 of the Indian Succession Act and contend that the defendant has only life time interest in the suit property and therefore, Section 138 of the Act has no application to this case. 19. On the contrary, the learned senior counsel appearing for the defendant contended that there is no condition imposed in the Will that the properties shall be enjoyed or possessed by the plaintiffs after the life time of the defendant. When there is no specific clause which will entitle the plaintiffs to stake a claim in the suit property, the suit itself is not maintainable. A reading of the recitals in the Will would make