IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 SA.No. 142 of 1997() ------------------------- A.S. NO.236/1994 OF THE SUB COURT, NEYYATTINKARA O.S. NO.20/1997 OF THE I ADDL. MUNSIFF COURT, NEYYATTINKARA ....... APPELLANT(S):RESPONDENTS 3 TO 11/DEFENDANTS 3 TO 11 (LEGAL REPRESENTATIVES OF DEFENDANT NO.1)APPELLANTS NO.9 IS THE LEGATEE OF DEFENDANT NO.2 WHO DIED ON 27/12/1996 AFTER DISPOSAL OF THE APPEAL BY THE COURT BELOW) ---------------------------------------------------------------------------------- * 1. DAMODARAN PILLAI PARAMESWARAN PILLAI, ARACKKALAMPATTU MEDAYIL VEEDU, MARANALLOOR DESOM, MARANALLOOR PAKUTHY. (DIED LR'S RECORDED). * IT IS RECORDED THAT THE FIRST APPELLANT DIED AND APPELLANTS 2 TO 8 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT AS PER ORDER DATED 02/04/2001 VIDE MEMO CF 1351/2001. 2. DAMODARAN PILLAI VELAYUDHAN NAIR OF -DO- -DO- 3. SUDHAKARAN NAIR OF -DO- -DO- 4. KOMALAVALLY AMMA RADHAKUMARI OF -DO- -DO- 5. D.KARUNAKARAN NAIR OF -DO- -DO- 6. SANTHAKUMARI OF -DO- -DO- 7. D. VIJAYAKUMAR OF -DO- -DO- 8. D. ASOK KUMAR OF -DO- -DO- 9. K.SREEKALA OF -DO- -DO- BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ADVS. SRI.G.UNNIKRISHNAN, SRI.G.P.SHINOD, SRI.P.V.RAMESH SHANKAR RESPONDENT(S):APPELLANTS/PLAINTIFF ------------------------------------------------- MADHAVAN PILLAI CHANDRASEKHARAN NAIR, CHANDRA BHAVAN, NEDUMKADU, KARAMANA, THIRUVANANTHAPURAM. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADV. SRI.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON 06/04/2011 DELIVERED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 142 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2011. JUDGMENT A litigation, which started in the year 1970 goes on and on with no end in sight. This is the second round of litigation before this court. Presently defendants 3 to 11 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for redemption. Madhevan Pillai and Pankajakshi Pillai had nine children. Madhevan Pillai had large extent of properties. He had mortgaged the plaint schedule item to Kesavan Sukumaran and his wife Kunji Lekshmikutty in the year 1954, which is evidenced by Ext.A1 document dated 24.5.1954. Madhevan Pillai had executed Ext.A6 will dated 26.9.1966 bequeathing his properties to the various legatees, details of which will be referred to at a later stage. Madhevan Pillai died on 27.1.1967. His legal heirs, based on the Will, is claimed to S.A.142/997. 2 have entered into a partition deed Ext.A2 dated 7.12.1972 whereby the plaint schedule property was set apart to the share of the plaintiff. The mortgagee's right was assigned to the defendants and they are now in possession of the property. The plaintiff seeks to have the property redeemed. 3. Defendants 1 and 2 filed a joint written statement and resisted the suit. They admitted the mortgage and also that they had got assignment of the mortgage by virtue of a deed of the year 1957. According to them, as per the Will said to have been executed by Madhevan Pillai, the property had devolved on the mother of the plaintiff and neither the plaintiff nor his brothers had any right over the suit property. They disputed Ext.A2 partition deed. According to them, they are entitled to fixity of tenure under the Kerala Land Reforms Act. In fact they would say that the mother of the plaintiff had instituted O.S.203 of 1970 for the very same relief. In the said suit, there was a reference to the Land Tribunal on the basis of S.A.142/997. 3 the claim made by the defendants and the Land Tribunal returned a finding in favour of the defendants holding that they are entitled to fixity of tenure. Thereafter the suit was dismissed. That has become final. The said decision operates as res judica and estoppel. 4. In the separate written statement filed by the third defendant, he too admitted the allegations regarding the mortgage. Rest of the contentions are almost similar to that contained in the written statement of defendants 1 and 2. The 5th, 6th, 9th and 11th defendants filed written statements adopting the contentions of the first and second defendants. 5. A replication was filed by the plaintiff controverting some of the contentions taken in the written statements and also pointing out that defendants 3 and 5 are precluded from taking any contentions against the one taken in by defendants 1 and 2. It was pointed out that the first defendant expired and defendants 3 to 11 were S.A.142/997. 4 impleaded. Since they are the legal representatives of the first defendant, they cannot take any contention against the contentions taken by the first defendant. 6. On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had Exts.B1 and B2 marked and did not adduce any oral evidence. Exts.C1 and C2 are the commission report and mahazar. 7. On an appreciation of the evidence, the trial court found that Pankajakshi Pillai, who is the mother of the plaintiff, by virtue of Ext.A6 Will obtained absolute rights over the property consequent on the death of Madhevan Pillai in 1967. She had instituted O.S. 203 of 1970 evidenced by Exts.B1 and B2, wherein the very same reliefs were sought for by Pankajakshi Pillai. On a reference to the Land Tribunal, the claim of the defendants that they are entitled to fixity of tenure was upheld and the suit was dismissed. That had become final and therefore the trial S.A.142/997. 5 court held that the present suit is barred by res judicata. Since it was found that the suit is barred by res judicata, the other issues were not gone into by the trial court. 8. The plaintiff carried the matter in appeal as A.S.236 of 1994. The lower appellate court found that Pankajakshi Pillai had only a life interest and properties vested with the donees made mention of in the document soon after the death of Madhevan Pillai, among whom the plaintiff also figured. Then finding that as per Ext.A2 partition deed, the plaintiff has been allotted plaint schedule property, the lower appellate court went on to hold that the decision evidenced by Exts.B1 and B2 is not binding on the plaintiff and he is entitled to redeem the mortgage. Accordingly, the suit was decreed. 9. Before going further, one aspect may be noticed. Before this round of litigation, there was an earlier round of litigation wherein the only issue was regarding redemption. The sole issue considered was whether the plaintiff was entitled to redeem the mortgage. It appears S.A.142/997. 6 that in the earlier round of litigation, the Will had not been produced. The trial court dismissed the suit initially and the lower appellate court confirmed the same. The matter was brought up before this court in S.A.865 of 1981. This court by judgment dated 21.8.1987 allowed the appeal and remanded the matter to the trial court since it was found that the decision regarding Will is absolutely necessary for the proper resolution of the issues involved in the suit. Currently defendants 3 to 11 have come up in appeal. 10. Notice is seen issued on the following questions of law: “i) Is not the finding of the court below that Ext.A6 did not confer absolute title on Pankajakshy Pillai as regards the suit property contrary to law? Is not the finding that Ext.B1 decree does not operate as res judicata to this suit contrary to law? ii) Assuming that Pankajakshy Pillai had only a life estate under Ext.A6 over the suit property, does not Ext.B1 decree dismissing the suit filed by S.A.142/997. 7 her to redeem Ext.A1 mortgage constitute res judicata to the suit from which this second appeal arises? iii) Is not the plea of fixity of tenure of defendants concluded in their favour as against the plaintiff as per Ext.B1 decree? iv) Did not the court below act contrary to law in the matter of interpretation of Exts.A6 and A2 documents?” 11. As already stated Madhevan Pillai had executed Ext.A6 Will. The Will contains three schedules, A, B and C. A schedule property was set apart to Pankajakshy Pillai, B schedule to Thankamma, his daughter and C schedule to Ramakrishnan Nair, his eldest son. Going by the terms of the Will, the other children are to divide A schedule property equally among them after the death of Pankajakshy Pillai. Madhevan Pillai died on 27.1.1967. The dispute is essentially regarding the question whether consequent on the death of Madhevan Pillai, Pankajakshy Pillai gets absolute estate in relation to A schedule to Ext.A6 S.A.142/997. 8 or the vested interest vests with the other children made mention of in the Will. It appears that the legatees, who claimed to have obtained A schedule property as per Ext.A6 Will entered into a partition evidenced by Ext.A2 partition deed dated 7.12.1972. In the said partition, as already noticed, the plaint schedule property seems to have been set apart to the plaintiff. That enabled the plaintiff to institute the suit. 12. It may be noticed that the mortgage is not disputed. It has also come out in evidence that Pankajakshy Pillai had instituted the earlier suit, O.S. 203 of 1970 before the very same court seeking redemption of the very same mortgage relating to the plaint schedule property. Ext.B2 judgment shows that the defendants therein had raised a plea of fixity of tenure under the Kerala Land Reforms Act and the same was referred to the Land Tribunal for decision. It is also seen from Ext.B2 that the Land Tribunal held in favour of the defendants and the suit was dismissed. That has become final. S.A.142/997. 9 13. Though the memorandum of Second Appeal contains several contentions and grounds, at the time of argument, learned Senior Counsel Sri. Krishnanunni appearing for the appellants, raised only three points for consideration. They are, i) Going by the terms of Ext.A6 Will, consequent on the death of Madhevan Pillai, Pankajakshy Pillai obtained absolute right over plaint A schedule property. ii) If it is found that she had only a life interest, her suit should be treated as one on behalf of the persons interested in the estate and the decision therein binds the other sharers. iii) At any rate, the decision is binding on the plaintiff in view of Explanation VI to Section 11 since even assuming that Pankajakshy Pillai was only a life interest holder, she falls in the category of persons interested as contemplated under Section 91 of the Transfer of Property Act. S.A.142/997. 10 14. In reply, learned Senior Counsel Sri. S.V. Balakrishna Iyer, appearing for the respondents contended that i) Pankajakshy Pillai had only a life estate over plaint A schedule property. ii) Ext.B2 suit was not a representative suit and therefore the decision is not binding on anyone other than Pankajakshy Pillai. iii) In order to raise the plea of res judicata, the defendants had to produce the pleadings in O.S. 203 of 1970 and that has not been done. Only the judgment has been produced and that is not sufficient. Therefore it is contended that no grounds are made out to interfere with the judgment and decree of the court below. 15. After hearing both sides and on going through the evidence it appears that the principal issue is regarding interpretation of the terms in Ext.A6 Will. If as contended by the learned Senior Counsel for the appellants, it is to be found that going by the terms of Ext.A6 Will, Pankajakshy S.A.142/997. 11 Pillai gets absolute estate over plaint A schedule property consequent on the death of Madhevan Pillai, then, of course Ext.B2 is a bar for the present suit. Even otherwise, it remains to be considered whether even if Pankajakshy Pillai has only a life interest over plaint A schedule property, she being an interested person under Section 91 of the Transfer of Property Act, which is not disputed by the learned counsel for the respondents, if the decision in O.S. 203 of 1970 can bind the plaintiff and preclude him from raising the very same issue. 16. The principles regarding the construction of Wills are well settled. In Halsbury's Laws of England, 4th Edn,. Vol.50 at page 339 paragraph 481 it is observed as follows: “..........In a court of construction the primary evidence of the testator's intentions is the will itself, properly authenticated, and any codicil to it. For the purpose of construing a codicil, the court may look at the original will or any other codicil to it, and, similarly, the court may look at a codicil S.A.142/997. 12 for the purpose of construing the original will. The court may look at a recital of a will contained in a codicil and may construe the will by reference to this recital, unless it is obviously erroneous. In order that the will may be properly expounded, the court adopts the general rule that any evidence of the circumstances is admissible which on its nature and effect simply explains what the testator has written, but in general no evidence may be admitted which in its nature or effect is applicable to the purpose of showing merely what he intended to have written........” In paragraph 512 it is observed as follows: “512. Basic principles of construction. There have been recent changes in the approach to the construction of legal documents. The decisions which introduced this change concerned the construction of commercial agreements but they affect the approach to the construction of legal documents generally. The principles as they apply to wills may be briefly stated as follows: S.A.142/997. 13 (1) interpretation is the ascertainment of the meaning which a document would convey to a reasonable person having all the background knowledge which would reasonably have been available at the time the will was made; (2) the admissible background knowledge includes 'absolutely anything which would have affected the way in which the language of the will would have been understood by a reasonable man', provided that it is relevant; (3) the law excludes from the admissible background declarations of subjective intent; (4) the meaning which a will would convey to a reasonable man is not the same thing as the meaning of its words: the meaning of words is a matter of dictionaries and grammars; the meaning of the will is what having regard to the relevant background the testator would reasonably have been understood to mean; the background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even to conclude that the testator must, for whatever reason, have used the wrong words or syntax; S.A.142/997. 14 (5) the 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents; on the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the testator an intention which he plainly could not have had. Many of the more technical rules formerly applied in the construction of wills may need to be re-examined in the light of the new approach.” 17. In Mantha Ramamurti's Law of Wills, 7th Edn., Vol.1 at page 449 it is observed as follows: “........One of the elementary rules of construction is that the document should be read as a whole. It is not permissible to single out one clause and to hold on the strength of it and without reference to other clauses that the interest conferred upon the legatee is that of an absolute owner, and then reject other clauses S.A.142/997. 15 which materially qualify the earlier clause, on the ground that they are repugnant to the earlier clause. When various clauses are not entirely irreconcilable and in absence of latent inconsistency the intention of the testator can be gathered without much difficulty, the Will has to be enforced.........” 18. In the decision reported in Ramkishorelal v. Kamalnarayanan (AIR 1963 SC 890) it was held as follows: “The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even S.A.142/997. 16 where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyance would use it, it may not be reasonable and proper to give the same strict interpretation of the word when use by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if S.A.142/997. 17 possible; it is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.” 19. In the decision reported in Rameshwar Bakhsh v. Balraj Kaur ( A.I.R. 1935 Privy Council 187) it was held as follows: “In interpreting a will it is the duty of the Court to find out the intention of the testator. That intention is to be gathered from the language used by the testator, because it is the words used in the instrument, by which he has conveyed the expression of his wishes. The meaning to the attached to the words may however be affected by surrounding circumstances and, when this is the case, those circumstances should be taken into consideration. The meaning of any clause in a will is to be collected from the entire instrument; and all the parts of a will are to be construed with reference to each other and so as, if possible to S.A.142/997. 18 form one consistent whole. Where it is not possible to reconcile all the parts, the latter must prevail.” 20. In the decision reported in Sammut v. Manzi ((2009) 2 All.E.R. 234) it was held as follows: “.........The starting point in construction of a will was to look at the natural meaning of the wording to be construed without reference to other decisions or to prima facie principles of construction.” 21. From the above materials, the principles regarding the interpretation of a Will can be gathered. The document has to be read as a whole and as far as possible the intention of the testator is to be given effect to, often this is known as Armchair theory. Even though there may be apparent inconsistent clauses, effort should be to reconcile them and as far as possible to give effect to the various dispositions intended by the testator. If the words of the will are plain and unambiguous, they are to be given effect to no matter what the result would be. If on the other hand S.A.142/997. 19 there are inconsistent provisions, then again the court will try to adopt a harmonious construction so as to avoid any intestacy and if that is not possible, then the various provisions of the Indian Succession Act are resorted to. Bearing these provisions in mind, one may have a look at the relevant clause in Ext.A6 Will. In the opening portion of the document it is stated that the Will is being written in the name of Pankajakshy Pillai. Therein it is stated as follows: Page 4 “........®æa ºøÎçÖ×¢ ®ÈßAáU ÕØíJá Õµµ{áæ¿ ÉßX Äá¿VºîÞÕµÞÖ¢ Èß¹ZAáÄæK ØßißAáæÎKáÕøßµßÜá¢ ÕØíJá Õµµ{áæ¿ ÈßÜÈßWÉßÈá¢ Èß¹{áæ¿ æ®µcÄAá¢ ØbÞÄLcJßÈá¢ ÍÞÕß çdÖÏTßÈá¢ ÏæÄÞøá ÕÞGçÎÞ çµÞGçÎÞ ÄGÞæÄ ÈßÜÈßWAÃæÎKáU ©çgÖçJÞ¿á¢ ÜfcçJÞ¿á¢ µâ¿ß ............. ( ” Page 4 ) “.........® Ìß Øß ®KàÎâKáÉGßµµ{ÞÏß ÕßÍ¼ßºîí ¯ ÉGßµÕØñáÕµµZ ¿ß ÉC¼Þfß_ ¿ß ÎÞÇÕX ÉßU ²Má¢_ 5 ÉßUAá¢ Ìß ÉGßµ ÕØñáÕµµZ Èß¹{ßW ÄCNAá¢ Øß ÉGßµ ÕØñáÕµµZ ¿ß øÞÎµc×íÃXÈÞÏVAáÎÞÏß ÈßÖíºÏ¢ æºÏñßøßAáKÄá¢ ......................... (” Page 5 ) S.A.142/997. 20 “.............§ÕVAí ¿ß ÉC¼ÞfßÉßUÏáæ¿ ¼àÕßÄµÞÜ¢ Õæø ÕØñáÕµµZ æµÞ¿áJßGßÜïÞJÄáÎÞµáKá.å®æa µÞÜÞÈLø¢ ÎáÄW ¯ ÉGßµ ÕØñáÕµµZ ¿ß ÉC¼ÞfßÉßUÏá¢ Ìß ÉGßµ ÕØñáÕµµZ Èß¹{ßW ÄCNÏíAá¢.åØß ÉGßµ ÕµµZ øÞÎµc×íÃX ÈÞÏøá¢ èµÕÖ¢ ®¿áJÈáÍÕßºîí µÃAá¢ É¿ß µø¢ ÄàVJá øØàÄá¢ çÉøßWAâGß çÉÞAáÕøÕá æºÏîßºîí ÉGßµdµÎ¢ ÉGÏ¹{á¢ Éß¿ßºîá¢ ØVÕî ØbÞÄLcÎÞÏá¢ ÖÞÖbÄÎÞÏá¢ ÕÞÝíKáæµÞçUIÄá¢ ¦µáKá.å¯ ÉGßµ ÕØñáÕµµZ ¿ß ÉC¼Þfß ÉßUÏßW ÈßfßÉñÎÞÏßøßAáKÄá¢ ®KÞW ¿ß ÉC¼Þfß ÉßUÏáæ¿ ¼àÕßÄçÖ×¢ ÎáÄW ÎA{ÞÏ çÎWÉù¾ ØøØbÄßÏN_ ¿ß ÎÞÇÕXÉßU ²Má¢_6_ ÖÞøÆÏN, ç·ÞÉßÈÞÅX ÈÞÏV, Ü{ßÄÞ¢Ìßµ çÆÕß, Õß¼ÏºdwX ÈÞÏV, ºdwçÖ¶øX ÈÞÏV ®¢. ®Øí µáÎÞV §ÕV ¯ ÉGßµÕØñá Õµµæ{ ÄáÜcÎÞÏß µâGÞçÏÞ ¥øáµáÄßøßºîáÍÞ·ßçºîÞ èµÕÖæÎ¿áJÈáÍÕßºîí µÃAá¢ É¿ßµø¢ÄàVJí øØàÄá¢ çÉøßWAâGß çÉÞAáÕøÕáæºÏîßºîí dÉçÄcµ¢ dÉçÄcµ¢ ÉGÏB {á¢ Éß¿ßºîá¢ ØVÕîØbÞÄLcÎÞÏá¢ ÖÖbÄÎÞÏá¢ ÕÞÝíKá æµÞçUIÄá¢ ¿ß ¯ ÉGßµ ÕØñáÕµµZ ¿ß ÉC¼ÞfßÉßUÏáæ¿ ¼àÕßÄµÞÜ¢ Õæø ¥ÕVAí ØVÕî ØbÞÄLcÞÕµÞÖJßW æµÞ¿áJßøßAáKÄá¢ ¿ßÏÞ{áæ¿ ¼àÕßÄçÖ×çÎ çÎWÉùE çÉøáµÞVAá ØßißAÞX ¥VÙÄÏáUÄáÎÞµáKá. å ” (pages 6 & 7) S.A.142/997. 21 22. The trial court on a reading of the document as a whole formed the opinion that in respect of A schedule to Ext.A6 Pankajakshy Pillai takes absolute estate. The trial court was of the opinion that having given an absolute estate to Pankajakshy Pillai, the recital that after her death, some of their children will be entitled to the property and can divide it into equal shares or enjoy it jointly cannot cut down the estate that has vested with Pankajakshy Pillai to a life estate. The lower appellate court thought otherwise. 23. Learned Senior Counsel appearing for the appellants contended that the case is not one of inconsistency or conflicting provisions, but it is one of what is known as gift over. Elaborating on the point, learned counsel pointed out that it is well settled that when an absolute estate is given to a person initially and the same corpus is subsequently given as an absolute estate to another person in the Will, the latter clause should fail. Learned counsel pointed out that by the latter clause, the effect of the first clause cannot be violated for the simple S.A.142/997. 22 reason that after giving an absolute bequeath in respect of the estate, nothing remains to be given thereafter. It was also contended that once having given an absolute estate to a person, the testator thereafter cannot determine the line of succession in respect of that properties after the death of the person to whom the properties are absolutely given. In support of his contention, learned counsel relied on the decisions reported in Mauleshwar Mani v. Jagdish Prasad ((2002) 2 SCC 468) and Sadaram Suryanarayana v. Kalla Surya Kantham ( 2010 AIR SCW 6721). According to the learned counsel, the trial court was justified in its conclusion that Pankajakshy Pillai consequent on the death of Madhevan Pillai obtained absolute estate in respect of A