IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CMA.No. 170 of 1997() --------------------- AS.36/1995 of II ADDL. DISTRICT COURT, KOLLAM OS.393/1989 of PRL.M.C., KOLLAM .................... APPELLANT/Defendant No.3:- --------- G. PRINCELAL, (WRONGLY SHOWN AS PRINCILAL IN THE IMPUGNED ORDER) DHANWANDARI MADAM, ASRAMAM, KOLLAM BY ADVS.M/S.P.V.RAMESH SHANKAR G.UNNIKRISHNON & G.P.SHINOD RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 4 TO 8 1. G. Prasanna KumarI, Damu Gardens, Thittamangalathu, Vattiyurkavu, Thiruvanantahpuram from Dhanawaddari Madam Asramathu Cherry, Kollam 2. G.Prabhakumari, Valappattu Government Hospital, Thrissur 3. G. Sindhu Kumari, Vikas, Pattathanam, Kollam 4. N. Suresh, Vikas, Pattathanam, Kollam 5. Subha Lekshmi, Dhanwandari Madam, Asramam, Kollam 6. Simson (Wrongly shown as Simon in the impugned judgments -do-) 7. Gigh, -do- ADV. SRI.P.R.VENKETESH FOR R1 ADV. SRI.S.V.PREMAKUMARAN NAIR & ADV. SRI.V.PADMANABHAN NAIR FOR R3 & 4 SRI.C.UNNIKRISHNAN (KOLLAM) FOR R2 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, ALONG WITH CMA NO. 224 OF 1997 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ............................................ C.M.A.Nos.170 & 224 of 1997 ............................................. Dated this the 17th day of June, 2009 JUDGMENT The common appellant in these appeals filed under Order XLIII Rule 1(u) C.P.C is the 3rd defendant in O.S.No.393 of 1989 on the file of the Munsiff's Court, Kollam. The said suit as originally filed was one for a declaration that Ext.A1 Will dated 14.2.1985 continues to be in force and that the plaintiff has half right over the plaint B and C schedule properties and for setting aside Ext.A2 Will dated 29.1.1988, Ext.A3 sale deed dated 29.1.1988 and Ext.A4 settlement deed dated 26-09-1988 executed by the plaintiff's mother. The suit was subsequently amended as one for partition and separate possession of the plaintiff's one-fifth share over the plaint A schedule Property. THE PLAINTIFF'S CASE 2. The case of the plaintiff can be summarised as follows:- C.M.A.Nos.170 & 224/1997 2 Defendants 1 to 4 are the brothers and sisters of the plaintiff. The plaintiff and defendants 1 to 4 are the children of one Gopalan Vaidyan and his wife Sarasamma. The 5th defendant is the husband of the 4th defendant. The Plaint B and C Schedule buildings are portions of the plaint A Schedule Property. The plaint A Schedule Property was purchased by Gopalan Vaidyan utilising his own funds in the joint names of the said Gopalan Vaidyan and his wife Sarasamma as per Ext.B1 sale deed dated 24.9.1124 ME corresponding to the year 1949. The building therein was also constructed by Gopalan Vaidyan with his own funds. During the life time of Gopalan Vaidyan and Sarasamma they executed the original of Ext.A1 Will deed dated 14.2.1985 bequeathing the plaint A Schedule Property in favour of their children namely the plaintiff and defendants 1 to 4. Sarasamma, the wife was given the right to enjoy the property during her life time. After the death of Gopalan Vaidyan in the year 1986, Sarasamma was in great mental agony. She was also having several ailments due to old age. She was C.M.A.Nos.170 & 224/1997 3 mentally and physically weak and was fully bedridden. She did not have the mental capacity to look after herself. Finally she died on 6.12.1988 while undergoing treatment at the Nairs Hospital. After the death of Sarasamma, the plaintiff was enjoying the terrace portion of 1st floor of the building in the plaint schedule property in accordance with the prescriptions under Ext.A1 Will. Recently the 4th defendant claimed the entire building as his own. On inquiries by the plaintiff it was learnt that certain documents were created cancelling Ext.A1 Will and executing another Will (Ext.A2) purportedly by Sarasamma and Exts.A3 and A4 sale deed and settlement deed also purportedly executed by Sarasamma in favour of defendant 1 to 5. The said documents are invalid and liable to be set aside. Sarasamma did not have the requisite testamentary capacity to execute Exts.A2 to A4. Going by the prescriptions under Ext.A1 Will Sarasamma was incompetent to alter or modify Ext.A1 Will. Sarasamma never desired to cancel the Will of her husband. After the death of Gopalan Vaidyan, Sarasamma was fully bedridden C.M.A.Nos.170 & 224/1997 4 and was incapable of understanding the consequence of her own acts. Defendants 4 and 5 were in a position to dominate the will of Sarasamma as they were standing in a fiduciary relationship and were exploiting their close relationship with Sarasamma. Ext.A2 Will is void ab initio and Exts.A2 and A3 documents in favour of defendants 1 and 4 are also liable to be set aside. The plaintiff is entitled to the declaration prayed for and partition and separate possession of her one-fifth share over the plaint A schedule property. Hence the suit. THE DEFENCE 3. Defendants 1,2 and 6 to 8 were set ex parte. The suit was mainly resisted by the appellant/3rd defendant who contended as follows:- The suit is not maintainable besides being undervalued. The plaint A Schedule Property was purchased by Gopalan Vaidyan and Sarasamma utilising their funds and they were entitled to equal shares over the property. The building in the plaint A schedule property was also constructed with the joint funds of both Gopalan Vaidyan and Sarasamma. Ext.A1 Will is C.M.A.Nos.170 & 224/1997 5 admitted. As per clause 15 of Ext.A1 Will the surviving testator becomes the absolute owner of the share of the deceased testator over the property and such surviving testator is entitled to cancel, alter or revoke the Will either in part or in its entirety. As the surviving testator, Sarasamma had the full freedom to revoke the Will, IN exercise of the power conferred on her, she had executed Ext.A2 Will dated 29.1.1988 after which the plaintiff cannot claim any right under Ext.A1 Will. Sarasamma had the physical as well as mental capacity to execute Ext.A2 Will. The allegations levelled against the execution of Ext.A2 Will are denied. The plaintiff does not have any right over the plaint A schedule Property. The plaintiff was aware of the execution of Exts.A2 to A4 by Sarasamma then and there. The allegation that Sarasamma was bedridden and was unable to understand and take decisions of her own is denied. The plaintiff is not entitled to any of the reliefs prayed for in the suit which is only to be dismissed. 4. Defendants 4 and 5 also filed a joint written C.M.A.Nos.170 & 224/1997 6 statement raising more or less the same contentions which were raised by the 3rd defendant. 5. The 1st defendant died pending suit and defendants 6 to 8 who are his widow and children were impleaded as his legal representatives. THE TRIAL AND TRIAL COURT'S VERDICT 6. The learned Munsiff framed six issues for trial. On the side of the plaintiff she was examined as PW1. Exts A1 to A4 were got marked. On the side of the contesting defendants, the 3rd defendant was examined as DW1 and Ext.B1 sale deed was got marked. 7. The learned Munsiff after trial, as per judgment and decree dated 23.12.94 decreed the suit passing a preliminary decree as prayed for, after setting aside Exts.A2 to A4 documents executed by Sarasamma. APPEALS TO DISTRICT COURT AND THAT COURT'S VERDICT 8. Aggrieved by the preliminary decree passed by the C.M.A.Nos.170 & 224/1997 7 trial court, three sets of appeals were filed before the District Court, Kollam. A.S.No.35 of 1995 was an appeal filed by defendants 6 to 8. A.S.No.36/95 was an appeal filed by the 3rd defendant, who is the appellant herein. A.S.No.243/95 was filed by defendants 4 and 5. The learned District Judge heard all the said appeals together and as per common judgment dated 10.4.1997 allowed the appeals and after setting aside the judgment and decree passed by the trial court, remanded the case to the trial court giving the plaintiff an opportunity to prove Ext.A1 Will executed by Gopalan Vaidyan and Sarasamma but after holding that Ext.A1 is only a joint will and not a mutual will and therefore Sarasamma the surviving testator was incompetent to revoke the Will or to execute Exts.A2 to A4 instruments. It is the said order of remand which is assailed in these appeals filed by the common 3rd defendant. C.M.A.No.170/97 is filed against the judgment in A.S.Nos. 36/95 and C.M.A. No. 224/97 is filed against the decisions in A.S. Nos. 35/1995 and 243/1995. The appellant has paid double court fee in C.M.A.No.224/97, since the C.M.A.Nos.170 & 224/1997 8 judgments in two appeals are assailed in the said C.M. Appeal. 9. I heard the learned counsel for the common appellant as well as the learned counsel for the contesting respondents. ARGUMENTS TO SUSTAIN THE FIRST APPELLATE FINDINGS 10. The learned counsel appearing for the respondent/plaintiff and the 2nd defendant made the following submissions before me in support of the impugned remand order:- As per Ext.B1 sale deed, the plaint A schedule property was the co-ownership property of both Gopalan Vaidhyan and his wife, Sarasamma. If the properties were to vest in Sarasamma, the surviving testator then it is a bequest in her favour so far as the rights of the deceased testator are concerned. In that case, the direction in Ext.A1 that the bequest will take effect only after the life time of both the testators, cannot operate. But for clause 15 in Ext.A1 Will Sarasamma the wife would have been only one of the heirs of her husband along with the plaintiff and defendants 1 to 4. In C.M.A.Nos.170 & 224/1997 9 other words, had it not been for clause 15 of Ext.A1 the surviving testator could not have dealt with the half right of her husband to the exclusion of the other heirs of her husband. She could have dealt with only her 1/6th share. So, with regard to the half right of the husband, clause 15 effects a bequest in favour of the surviving wife. As held in Meenakshi Ammal v. Viswanatha Aiyar - ILR 33 Madras 406 if the surviving testator derives any advantage under a mutual will, then the will becomes irrevocable on the death of one of them. Ext.A1 Will being a joint will it became irrevocable at the hands of the surviving testator consequent on the death of the other testator. In this view of the matter the conclusion reached by the lower appellate court with regard to the tenor and legal effect of Ext.A1 Will does not call for any interference. But the remand for the purpose of proving due execution of Ext.A1 Will was unnecessary as the execution of the same was admitted by all concerned. JUDICIAL RESOLUTION 11. I am afraid that I cannot agree with the above C.M.A.Nos.170 & 224/1997 10 submissions made on behalf of the contesting respondents regarding the legal effect of Ext.A1 Will. THE UNDISPUTED FACTS 12. The following facts are not in dispute:- The plaint A Schedule property is two cents of land with a two storeyed building thereon situated at Chinnakkada junction in the heart of Kollam town. The plaint B and C Schedule Properties are portions of the plaint A Schedule property. The plaint B schedule property is the southern room on the ground floor of the building together with the one cent of land occupied by the said room. The plaint C schedule property is the open terrace above the first floor of the two-storied building in the plaint A schedule property. The two cents of land comprised in plaint A schedule Property together with an old building was purchased by Gopalan Vaidyan and his wife Sarasamma, jointly, utilising their own funds. They had two sons and three daughters. Defendants 1 and 3 are the two sons and the 2nd defendant, plaintiff and the 4th defendant are the three daughters. 1st defendant died C.M.A.Nos.170 & 224/1997 11 pending the suit His widow- 6th defendant and his sons (defendants 7 and 8) were impleaded as his legal representatives. The 5th defendant is the husband of the 4th defendant. As mentioned earlier, the 2 cents of land comprised in plaint A schedule property with an old building thereon was jointly purchased by Gopalan Vaidyan and his wife Sarasamma as per Ext.B1 registered sale deed dated 24.9.1124 ME corresponding to the year 1949. Subsequently, the old building thereon was demolished and the existing two storied building was constructed by Gopalan Vaidyan and Sarasamma utilising their joint funds. Gopalan Vaidyan died on 9-2-1986 and his wife Sarasamma died thereafter on 6.12.1988. During their life time both Gopalan Vaidyan and Sarasamma had jointly executed the original of Ext.A1 Will dated 14.2.1985 bequeathing the plaint A schedule property to their five children namely the plaintiff and defendants 1 to 4. The document recites that the two cents of land together with the two storeyed building thereon jointly belong to the husband and the wife( testators) and the testamentary C.M.A.Nos.170 & 224/1997 12 depositions thereunder are being made by them after revoking two earlier wills executed by them. The document thereafter recites as follows:- '' ഞങളട ക ലശ ഷ ഇതശല വവസകള പക ര നങള നനടക ശണത ണ . ഇതടന ആശ!ക ന നങളല ആരക  അവക മല തതമ കന." '' The above recital means that the legatees namely plaintiff and defendants 1 to 4 are to take the properties after the life time of the testators and subject to the terms and conditions hereinafter incorporated and that none of the legatees is entitled to object to those terms and conditions. The testamentary dispositions are made in those terms and conditions (clauses). The following are the terms and conditions incorporated in Ext.A1:- 1. After the life time of the executants (testators), the five legatees are to jointly effect mutation in the pattayam, pay the taxes and enjoy the properties absolutely. 2. Out of the two rooms in the ground floor of the C.M.A.Nos.170 & 224/1997 13 building the northern room where Karuna Medicals is being run is allotted to the 1 st defendant who will be entitled to hold the same absolutely after the life time of both the executants. 3. The other room ( southern room) on the ground floor where an Ayurvedic Medical Store is run, is jointly allotted to the plaintiff and the 3 rd defendant who will be absolutely entitled to hold the same after the life time of both the executants. 4. The hall on the 1 st floor is allotted to the 4 th defendant who will be entitled to hold the same absolutely after the life time of both the executan ts . 5. The open terrace on the 1 st floor of the building which is presently used for putting up advertisement hoardings etc. shall be allotted jointly to the plaintiff and the 2 nd defendant after the life time of the executants. The plaintiff and the 2 nd defendant shall obtain permission from the Government for putting up building on the open terrace and upon constructing the said building, the plaintiff and 2 nd defendant would become the joint owners of the newly constructed portion after the life time of the executants and thereupon the plaintiff will stand divested of her right C.M.A.Nos.170 & 224/1997 14 over the southern room on the ground floor and the 3 rd defendant would become absolutely entitled to the southern room on the ground floor. 6. Until the above construction is effected on the open terrace, the income from the terrace by way of rentals for putting up hoardings etc. shall be enjoyed exclusively by the 2 nd defendant. 7. Until the above construction is effected on the open terrace, the plaintiff will be absolutely entitled to one-half right over the southern shop room on the ground floor. 8. After the life time of the executants the 1 st defendant shall pay the municipal tax in respect of the northern shop room on the ground floor. Until the 2 nd floor is constructed on the open terrace, the plaintiff and the 3 rd defendant shall pay the municipal tax for the southern shop room on the ground floor. Thereafter, the 3 rd defendant alone shall pay the municipal tax for the southern room and the 4 th defendant shall pay the municipal tax with regard to the hall on the 1 st floor. Until the 2 nd floor is constructed the 2 nd defendant shall pay municipal tax and after the completion of the construction the plaintiff and the 2 nd defendant shall together pay the taxes. C.M.A.Nos.170 & 224/1997 15 9. The 1 st defendant to whom the northern shop room on the ground floor and the 4 th defendant to whom the hall on the 1 st floor of the building are allotted will have the exclusive right to let out the room as well as the hall. 10. The rest of the premises excluding the aforesaid premises can be let out to strangers only with the concurrence of all the allottees namely the plaintiff, 2 nd and 3 rd defendant. The allotment of the premises is only for the purpose of enjoyment and the respective premises allotted shall not be let out for a period exceeding two years. In case the properties are to be alienated, such alienations can be effected only by the legatees jointly and the sale proceeds shall also be divided equally. 11. The staircase situated to the north of the northern shop room on the ground floor shall be used by the plaintiff, the 2 nd defendant and the 4 th defendant without any hindrance or objection from any one of them. 12. The Executants themselves will evict the existing tenants in the building and if after the life time of the executants the respective allottees are to evict the tenants from the respective portions, they may do so. C.M.A.Nos.170 & 224/1997 16 13. Maintenance of the building shall be effected without affecting the rights of the other legatees and at their own expense. 14. Construction of the 2 nd floor shall be effected by the plaintiff and the 2 nd defendant without causing any damage to the existing structure. 15. The land and building will be absolutely possessed and enjoyed by the executants (testators) during their life time and on the death of one of them by the surviving executant. During their life time the executants jointly and on the death of any one of them, the surviving testator shall have the absolute right to execute any document whatsoever and can even create a charge over the properties or cancel this Will or vary its terms. All the terms of this Will shall come into effect only after the life time of the executants. 16. Any movable or immovable property including cash in hand , shares etc. not dealt with under this instrument but found as belonging to the executants shall, after the life time of both the executants, devolve equally on all the five legatees who shall also bear equally the liabilities, tax, arrears etc. C.M.A.Nos.170 & 224/1997 17 As mentioned earlier, Gopalan Vaidyan the 1st testator in Ext.A1 Will died first on 9-2-1986 leaving behind him, his wife, the surviving testator (Sarasamma) and 5 children namely the plaintiff and defendants 1 to 4. Thereafter during the life time of Sarasamma, three documents came to be executed. They are Ext.A2 will dated 29.1.1988 said to have been executed by Sarasamma bequeathing the southern shop room on the ground floor of the building to the 4th defendant, Ext.A3 sale deed dated 29.1.1988 by which Sarasamma purported to transfer the hall on the 1st floor of the building to her son-in-law the 5th defendant who is the husband of the 4th defendant and Ext.A4 settlement deed dated 29.9.1988 as per which Sarasamma purported to settle the northern shop room on the ground floor of the building in favour of her eldest son, the 1st defendant. It was thereafter that the present suit was filed, inter alia, challenging Exts.A2 to A4 on the ground that Sarasamma did not have a sound disposing mind and also on the grounds undue influence and fraud. The trial court came to the conclusion that both Ext.A1 joint C.M.A.Nos.170 & 224/1997 18 Will allegedly executed by the husband and wife and Ext.A2 Will aallegedly executed by Sarasamma have not been proved in accordance with the mandate under Section 68 of the Evidence Act and therefore Exts.A3 and A4 also would not stand. The trial court accordingly passed a preliminary decree for partition on 23-12-1994. The plaintiff was allowed to get partition and separate possession of 1/5th share over the plaint A Schedule property. On appeal preferred by the contesting defendants before the District Court, Kollam, the lower appellate court, as per the impugned common judgment dated 10-4-1997, has come to the conclusion that notwithstanding the fact that the execution of Ext.A1 Will was admitted by all the parties, the plaintiff was obliged to prove the same in view of the mandate under Section 68 of the Evidence Act. The lower appellate Court then construed Ext.A1 Will to hold that it is only a joint Will and not a mutual and therefore, Sarasamma, the surviving testator was not competent to revoke the Will. In that view of the matter, the lower appellate court held that if due execution of Ext.A1 Will C.M.A.Nos.170 & 224/1997 19 was proved, then the will became irrecoverable after the death of Gopalan Vaidyan and, therefore, Exts.A2 to A4 would be of no consequence. Accordingly, with a view to enable the plaintiff to prove Ext.A1 Will, the lower appellate court set aside the judgment and preliminary decree passed by the trial court and remanded the case to the trial court. It is the said remand order which is assailed in these appeals. 13. Since these appeals challenging the remand order passed by the lower appellate Court are, in the nature of second appeals attracting the rigor under Section 100 C.P.C, these appeals would lie only on a substantial question of law. But, when these appeals were filed way back in the year 1997 before the verdict of the Apex Court in Narayanan v. Kumaran (2004 (4) SCC 26). Therefore, both sides were heard on the following substantial questions of law which arise for determination:- 1. Was the lower appellate court, after holding that execution of Ext.A1 Will was to be duly proved and after remanding the case for the said purpose, justified in C.M.A.Nos.170 & 224/1997 20 attempting to construe the terms of Ext.A1 Will? 2. When the execution of Ext.A1 Will is a fact admitted by all the parties, was it necessary for the plaintiff or any of the parties to prove due execution of Ext.A1 Will in the light of the decision in Thayyullathil Kunhi Kannan and others v. Thayyullathil Kalliani and others (AIR 1990 Kerala 226)? 3. When Ext.A1 itself is only a registration copy of the Will the original of which is not produced or is forthcoming, would any useful purpose be served by remanding the case to trial court for the purpose of proving the due execution of the Will? 4. Has not the lower appellate court abdicated its functions as a court of facts in not deciding the appeals on the evidence already on record, but instead, in remanding the case to the trial court? 5. Was the lower appellate court right in its view that consequent on the death of one of the testators in a joint Will, the Will would become irrecoverable qua the surviving testator? 6. Was the lower appellate court right in its construction C.M.A.Nos.170 & 224/1997 21 of the terms of Ext.A1 Will to hold that Clause 15 thereof could not in any manner affect the bequest made thereunder in favour of the plaintiff and defendants 1 to 4 ? 14. All the parties were and continue to be in unison on the question that Ext.A1 Will dated 14-2-1985 was jointly executed by Gopalan Vaidhyan and his wife Sarasamma with regard to the plaint A schedule property jointly acquired by them as