IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 188 of 2000(E) --------------------------- AS.95/1992 of ADDL. SUB COURT, IRINJALAKUDA OS.535/1988 of PRL. MUNSIFF COURT IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/DEFENDANTS --------------------------------------------------- 1. THANKAM, D/O. KOLAKATTIL RAMAN, RESIDING AT VALLACHIRA AMSOM, DESOM & VILLAGE, THRISSUR TALUK. 2. GOPI, S/O. DO. IN DO. DO. * 3. BHARATHAN, S/O.DO. IN DO. DO. (DIED. LR'S RECORDED) 4. RAGHAVAN, S/O.DO. IN DO. DO. 5. JAYALAKSHMI. D/O. DO. IN DO. DO. 6. SUBRAMANIAN, S/O.PATTALI KARAPPAN, RESIDING AT MOORKANAD DESOM, PORATHISSERY VILLAGE, MUKUNDAPURAM TALUK. 7. MALLIKA, D/O. VALIYAVEETTIL NARAYANAN, RESIDIDNG AT ARATTUPUZHA VILLAGE AND DESOM, THRISSUR TALUK. * APPELLANTS 1, 2 AND 4 TO 7 IN THE SECOND APPEAL ARE RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 3RD APPELLANTS (DIED ON 09/01/2010) AS PER ORDER DATED 19/01/2011 IN MEMO BEARING CF. NO.457/2011. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADV. SRI.P.B.KRISHNAN svs .................2/-... ...2... S.A. NO.188/2000 RESPONDENT(S): RESPONDENTS/APPELLANT/PLAINTIFFS --------------------------------------------------------------------- ** 1. MADHAVAN, S/O.PUTHUKATTIL RAMAN, RESIDING AT PULLUR VILAGE AND DESOM, MUKUNDAPURAM TALUK. (DIED. LR'S IMPLEADED) 2. KALI, W/O. MADHAVAN, IN DO. DO. ** ADDL. R3 TO R6 IMPLEADED 3. P.M.VALSAN, S/O. MADHAVAN, AGED 57 YEARS, RESIDING AT PUTHUKATTIL HOUSE, THURAVAN KADU, P.O.PULLUR, THRISSUR - 680 683. 4. P.M. CHANDRAN, S/O. DO. AGED 55 YEARS -DO -DO- 5. P.M. SURESH, S/O. DO. AGED 50 YEARS, RESIDING IN -DO- -DO- 6. SAVITHRI, D/O. -DO- AGED 45 YEARS, RESIDING IN -DO- -DO- ** RESPONDENT NO.2 IN R.S.A.IS RECORDED AND ADDL. R3 TO R6 AS ONE OF THE LR'S OF R1 ARE IMPLEADED LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 04/03/2011 IN I.A. NO.212/2011. R1 & R2 BY ADVS. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY R3 TO6 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ------------------------------------- SA No.188 of 2000-E ------------------------------------- Dated this the 8th day of June 2011 Judgment Disappointed defendants are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shorn off unnecessary details, the plaintiffs are the parents of one Radhamani, who turned to be a legatee under Ext.A2 Will dated 18.10.1978, said to have been executed by Kunjukutty. Kunjukutty was the mother of Raman and the first defendant is his wife. It is averred in the plaint that Kunjukutty died in 1978 and Radhamani later. As per Ext.A2 Will, the property vested with Radhamani. Raman had a life estate. He died in 1984. Thereafter, the property devolved on the plaintiffs as his legal heirs. The defendants trespassed into the suit property and reduced the same into their possession. It was on this allegation that the suit was laid. SA 188/00 2 3. The defendants resisted the suit on several grounds. They contended that Radhamani died prior to the death of Kunjukutty and therefore, the legacy fails. They then contended that Radhamani was married to Raman on 29.10.1978 and if that be so, going by Section 15 of the Hindu Succession Act, the husband of Radhamani, namely, Raman becomes the legal heir consequent on the death of Radhamani and the property, after the death of Raman, devolves on the defendants. On the basis of these contentions, they prayed for dismissal of the suit, which was one for recovery of possession on the strength of title. 4. On the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had DWs 1 and 2 examined and Exts.B1 to B2 (c) marked. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that Section SA 188/00 3 105 of the Indian Succession Act has no application. It was contended that Radhamani had died prior to the death of Kunjukutty. As regards the marriage between Radhamani and Raman, it was found that the marriage was void under Section 11 of the Hindu Marriage Act since at the time of the alleged marriage between Raman and Radhamani, the marriage between Raman and the first defendant subsisted. It was therefore, found that Raman could not be treated as the husband of Radhamani and so, Section 15 (1)(a) of the Hindu Succession Act had no application and the proper provision to be applied is Section 15(1)(c). On the basis of these findings, the trial court decreed the suit. 6. The defendants carried the matter in appeal as AS No.95/92 before the Sub Court, Irinjalakuda. The lower appellate court, after evaluation of the materials before it, confirmed the judgment and decree of the trial court. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : SA 188/00 4 1.Whether on a true consideration of Ext.A2 Will, was Radhamani's estate is intended to be benefited in the event of herself dying before Raman ? 2.Is the bequest under Ext.A2 Will vested in Radhamani as contended by the plaintiffs ? 3.Whether the decision of the lower appellate court sustainable in law ? 8. The learned counsel for the appellants contended that a reading of Ext.A2 clearly shows that the property had not vested with Radhamani and in fact, the beneficiary was late Raman. It is also contended that there was a marriage between Raman and Radhamani and the courts below are not justified in holding otherwise. Referring to Ext.A2, it was contended that the document recites that Radhamani gets absolute right only on the death of Raman also and if that be so, Raman is the only beneficiary. 9. Per contra, the learned counsel for the respondents pointed out that there is nothing to indicate SA 188/00 5 that Raman was the legatee. He had only a life estate. Though there is a recital that if any alienation is to be done, Raman had to join the document, that does not make Raman, the sole legatee under the Will. There is no reason to interfere with the judgment and decree of the lower appellate court and the appeal is only to be dismissed. 10. The learned counsel for the respondents seems to be right in his submissions. Section 105 of the Indian Succession Act can have no application so long as it is not proved that Radhamani died prior to the death of Kunjukutty. There is absolute want of evidence in this regard. It may not be out of place here to refer to Sections 104 and 119 of the Indian Succession Act, which read as follows : “Section 104. Time of vesting legacy in general terms – If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator and if he dies SA 188/00 6 without having it, it shall pass to his representatives. Section 119 : Date of vesting of legacy when payment or possession postponed – Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death and shall pass to the legatee's representatives if he dies before that time and without having received the legacy and in such cases, the legacy is from the testator's death said to be vested in interest.” One will have to construe the terms of the Will with reference to the above quoted provisions. A reading of Ext.A2 shows that soon after the death of Kunjukutty, the property is to vest with Radhamani with life estate of Raman. Of course, it is true that there is a recital in the SA 188/00 7 document that Raman will have to join the document for any alienation of the property. But, as both the courts have rightly found that a reading of the document as a whole would leave one in no doubt that the beneficiary was Radhamani and Raman has only life estate. Even assuming that the legatee is given vested interest, in general terms, Section 104 applies and the legacy in favour of Radhamani takes effect on the death of the testator. So also, going by Section 119, even assuming that Radhamani was not entitled to immediate possession of property, unless it is shown that a contrary intention appears by the Will, the legacy cannot be defeated. 11. As long as it is not shown that there is a valid marriage between Raman and Radhamani, the claim based on Section 15 of the Hindu Marriage Act also cannot succeed. Both the courts below were fully justified in not accepting the contentions put forward by the defendants. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any SA 188/00 8 merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 188/00 9