IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 SA.No. 189 of 1998-E ------------------------------ [AS.NO.13/1986 OF ADDITIONAL SUB COURT, IRINJALAKUDA, OS.NO.629/1982 OF PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA] .................... NAME AND ADDRESS OF THE APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------------------------------------------------ * VARUNNY, S/O. MANJALI KUNJUVARRED, VADUVATHODE DESOM, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. *(DIED). *ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED: 2. GEORGE, AGED 57 YEARS, S/O. LATE SRI. VARUNNY, MANJALI HOUSE, VADUVATHODE DESOM, VARANDARPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. JOHNSON, AGED 53 YEARS, S/O. LATE SRI. VARUNNY, VADUVATHODE DESOM, VARANDARPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. JOSE, AGED 50 YEARS, S/O. LATE SRI. VARUNNY, VADUVATHODE DESOM, VARANDARPILLY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. *ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DT. 23/12/2010 IN I.A. 2899/10. BY ADVS. SRI. BABU KARUKAPADATH, SRI.M.A. ABDUL HAKHIM, SRI. JYOTHISH J. KALLINGAL. NAME AND ADDRESS OF THE RESPONDENTS/RESPONDENTS/LRS OF ORIGINAL 1ST DEFENDANT: --------------------------------------------------------------------------------------------------------------------- 1. CICILY, W/O. DECEASED MANJALI JOHN, 1ST RESPONDENT, VADUVANTHODE DESOM, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. S.A. NO.189/1998-E: 2. KUNJUVARRED, S/O. LATE JOHN, 1ST RESPONDENT, DO DO. DO. 3. SHYNI, W/O. THRISSOKKARAN VARGHESE, THALOR DESOM, THRIKKUR VILLAGE. 4. BEENA, W/O. A.L. THOMAS, PALLIPURAM, KODANNUR. 5. BETTI, W/O. P.P. THOMAS, PALATHINGAL HOUSE, KATTOOR, POST KARANCHIRA. 6. JOYSI, W/O. SEBASTIAN, VADEKKETHALAKKATILAKARAN, KANDASSANKADAVU.P.O. 7. DALI, W/O. FRANCIS, MOYALAN HOUSE, RAILWAY STATION ROAD, OLLUR.P.O. 8. JOSEPH, S/O. LATE MANJALI JOHN, VADUVANTHODE DESOM, VARANTHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SMT.SHEEJO CHACKO, SRI.STEPHEN JOY IDICULLA. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO.189/1998-E: ORDER ON C.M.P. NO. 561/1998 IN S.A. NO.189/1998-E DISMISSED 20/01/2011. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 189 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2011. JUDGMENT The plaintiff, who lost before the courts below, is the appellant. 2. The parties are siblings. Their father had executed Ext.A1 Will, whereby he bequeathed plaint schedule property, which is item No.5 in A schedule to the Will. Plaintiff laid the suit claiming absolute right over A schedule having 10 cents in extent and alleging that the defendant had no manner of right over the 10 cents except to take water from the well situate in the property. 3. The defendant resisted the suit by pointing out that he has got half share in the property and the plaintiff is not justified in excluding him from enjoyment of the suit property. S.A. 189/1998. 2 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant had examined D.Ws. 1 to 5 and marked Exts.B1 and B3. Exts.C1 and C2 are the commission report and plan. Exts.X1, X1(a) and X2 are third party exhibits. 5. The trial court, after an evaluation of the evidence in the case, came to the conclusion that the claim of the plaintiff that he is entitled to absolute right over 10 cents of property cannot be countenanced and dismissed the suit. The plaintiff took up the matter in appeal as A.S. 13 of 1986. The defendant died during the pendency of the appeal and his legal heirs were brought on the party array as respondents 2 to 9. The lower appellate court on a careful consideration of the evidence in the case concurred with the trial court and confirmed the decree. Hence this Second Appeal. S.A. 189/1998. 3 6. It is seen that during the pendency of this appeal, the appellant passed away and his legal heirs were brought on the party array as additional appellants 2 to 4. 7. Notice is seen to have issued on the following questions of law: “A) Whether the courts below have not committed error in law in the construction of Ext.A1 Will for dismissing the suit. B) Whether the courts below have not misconstrued and misunderstood Ext.A1 and the pleadings and other evidence in the case for dismissing the suit. C) Whether the findings recorded beyond the pleadings and evidence in the case are sustainable in law. D) Whether the interpretation of Ext.A1 Will is correct in law and in accordance with the well established legal principles. E) When distinct and separate properties are bequeathed to different legatees under a Will whether it can be held that the legatees are co-owners in joint possession of those properties. S.A. 189/1998. 4 F) Whether the findings of fact by the courts below are not perverse, illegal and unsustainable on the basis of total misconstruction and misunderstanding of Ext.A1 Will.” 8. The essential dispute in this case centers round the construction of two clauses in the Will said to have been executed by the father of the parties. Both the courts below have extracted the portion in their respective judgments and it is unnecessary to re-quote those portions in this judgment. Both the courts below on a careful consideration and evaluation of the clauses came to the conclusion that the word “സമവത“ mentioned in the respective portions set apart to the parties mean that the vacant land should be taken in equal shares. On going through the relevant recital, there is no reason to take a different view. The plea of the plaintiff that “സമവത“(equal share) is confined to the taking of water from the well cannot be accepted as found by both the courts below. S.A. 189/1998. 5 Moreover, it is pointed out that the plaintiff has been paying tax only for 6 ½ cents, whereas the total extent is 13 cents. It is also seen that in his ceiling return, the extent shown is 8 cents. It was also mentioned in the commission report that the entire property lies as a compact plot without any division. 9. Both the the courts below have noticed that the Will has been carefully drawn and specific rights have been given to the legatees. In relation to the staircase, the plaintiff is given only a right of user. It shows that the testator was very conscious of the dispositions made by him and a reading of the relevant clauses will clearly show that the recital is clear to the effect that the vacant land should be taken equally by the legatees. That alone has been found by the courts below. There is no illegality or irregularity in the finding of the courts below nor could it be said to be perverse or unwarranted. S.A. 189/1998. 6 No question of law, much less any substantial question of law arises for consideration in this second appeal. This second appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.