IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 RSA.No. 5 of 2004() ------------------- AS.288/2003 of I ADDL.DISTRICT COURT, THRISSUR OS.947/1999 of PRL.SUB COURT,THRISSUR .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- P.J.ITTOOP S/O. LATE UTHUPPU, PULIKKOTTIL HOUSE, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT, NOW RESIDING AT 301, JAGRUTHI APARTMENTS, SAINATH ROAD, MALAD (WEST), MUMBAI, MAHARASHTRA STATE. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SRI.PRAMODH.R SMT.USHA NARAYANAN RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- VARGHESE S/O. LATE UTHUPPU, PULIKKOTTIL HOUSE, VADAKKE ANGADI, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. (DIED). * 2. SHAJU VARGHESE P, S/O. LATE VARGHESE, SHA MEDICALS, P.O, PANNITHADAM CENTER, PIN 680 604, VIA MARATHAMCODE THRISSUR DISTRICT. * 3. SANIL VARGHESE, S/O. LATE VARGHESE, AREA SALES MANAGER, NEO – TERIC INFORMATIQUE PVT LIMITED, CHITHARA T.C.4/1437(6), YUVATHARA GARDENS, KAVI ROAD, KOWDIAR P.O. THIRUVANANTHAPURAM-3. *4. SHIJA KOSHI, D/O. LATE VARGHESE, C/O. V.SCARIA AND SONS, PULAMAN, P.O. KOTTARAKKARA, PIN – 691 506. *5. SHALI ROBBIN, D/O. LATE VARGHESE, W/O. ROBBIN ABRAHAM, KURISHINGAL, 204/205, “EROS” HIRANAMDANI ESTATE, PALTIPADA, GODBUNDER, THANI(WEST), P.O., THANI, PIN -400 067. * LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT IMPLEADED AS RESPONDENTS 2 TO 5 AS PER THE ORDER DATED 3.6.2011 IN I.A.399 OF 2005. ADV. SRI.SANTHEEP ANKARATH FOR R2 TO 4 SRI.R.SUDHIR FOR R2 TO R4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.5 OF 2004 --------------------------------------------- Dated 16th November, 2011 JUDGMENT Defendant in O.S.947/1999 on the file of Principal Sub Court, Thrissur is the appellant. Plaintiff is the first respondent. On his death his legal heirs were impleaded as additional respondent. Suit was filed for partition and separation of the share due to the respondent. Plaint schedule properties are two cents in survey No.1282/2, 3/8 cents in 1280/5 and 6/58 cents in survey No.1280/5 of Kunnamkulam village. Plaint schedule properties admittedly originally belonged to late Uthuppu. Appellant and the plaintiff are his children. Late Kunji Thanda is the wife of Uthuppu and mother of the appellant and the respondent. Uthuppu executed Ext.A1/B6 registered Will on 18/8/1975, whereunder A schedule property was bequeathed in favour of his wife Kunji Thanda B schedule property to the RSA 5/2004 2 plaintiff and C schedule property to the appellant. Kunji Thanda executed Ext.B5 Will, whereunder A schedule property of Ext.A1 Will was bequeathed in favour of the appellant, providing that he has to pay Rs.30,000/- to the respondent and Rs.3,000/- each to the two sisters. Plaintiff would contend that plaint schedule properties being the properties bequeathed under Ext.A1 to Kunji Thanda providing that on her death the property shall devolve on the appellant and the plaintiff equally. Plaintiff claimed partition and separation of his one half share. It was contended that on the death of mother Kunji Thanda, as it was available with the mother on the date of her death, both the plaintiff and appellant are entitled to the equal share. 2. Appellant resisted the suit contending that under Ext.A1 Will Kunji Thanda obtained absolute right over A schedule property, with power of alienation which necessarily includes power to alienate by executing testament and therefore, Kunji Thanda is competent to execute a Will and transfer the property. It was contended that Ext.B5 registered Will was executed by Kunji Thanda on 16/2/1978 and on the death of Kunji Thanda A schedule property of Ext.A1, vests with and is in RSA 5/2004 3 the possession of the appellant and therefore, plaintiff is not entitled to claim a share. 3. Learned Munsiff on the evidence, finding that under Ext.B5 Will Kunji Thanda bequeathed the plaint schedule property in favour of the appellant and under Ext.A1, Kunji Thanda obtained absolute title over the property with power of alienation and it includes the right to execute a Will, held that the plaint schedule properties are not available for partition in view of Ext.B5 Will. Respondent challenged it before District Court in A.S.288/2003. Learned District Judge on appreciation found that the intention of the testator was that Kunji Thanda, his wife, is to be maintained by their sons, appellant and the plaintiff and if Kunji Thanda is not satisfied with the same, she was given the option to alienate A schedule property, if necessary, and it was specifically provided that if that property is left with Kunji Thanda, on the date of her death, it should go equally to both the sons and therefore, Kunji Thanda did not obtain absolute right to execute a Will, making provision for transfer of the property and held that the plaint schedule property was available with Kunji Thanda on the date of death RSA 5/2004 4 and as provided under Ext.A1, both the appellant and the respondent are entitled to equal share. A preliminary decree for partition was therefore, passed directing division of the plaint schedule properties into two equal shares and allotment of one such share to the plaintiff. It is challenged in the second appeal. 4. Appeal was admitted formulating the following substantial questions of law. 1) Is the interpretation given to Ext.A1 will (Ext.B6 being the same) by the lower appellate court correct ? 2) Does not right to alienate include the right to alienate by bequest ? 3)Can a person to whom an absolute right in certain property is given be restricted from alienating it either by express direction or by condition, and whether a restriction forbidding a particular mode of alienation is valid ? 5. Learned counsel appearing for the appellant and respondent were heard. Learned counsel appearing for appellant submitted that Ext.A1 establishes that A schedule property therein was exclusively bequeathed in favour of Kunhithanda, the wife of the testator stating that she has the power for alienation and in such circumstances, the right obtained under Ext.A1 by RSA 5/2004 5 Kunhithanda is the absolute right. It was argued that when Ext.A1 enables Kunhithanda to alienate the property, the alienation includes an alienation by a testamentary disposition. It was argued that as rightly found by the trial court, relying on the decision of the Apex Court in Gopala Menon V. Sivaraman Nair (AIR 1979 SC 1345) and also settled by this court in Raghavan V. Bhargavan (1978 KLT 165), the right granted under Ext.A1 is an absolute right and hence Kunhithanda is competent to execute Ext.B5 will and thereby bequeath the property obtained under Ext.A1 in favour of the appellant and hence plaintiff is not entitled to seek partition of the property. Learned counsel argued that Ext.B5 will was executed at Kunnamkulam and as Kunhithanda was later residing with the appellant at Mumbai, it was the plaintiff himself who sent Ext.B5 will to the appellant along with Ext.B1 letter and therefore it establishes that plaintiff was aware of the contents of Ext.B5 will and that the plaint schedule property was bequeathed in favour of the appellant and hence the plaint schedule property is not available for partition. Learned counsel also relied on the decision of the Apex Court in Vasudevan Nedungadi V. Santha Kovilamma (2002(2) KLT 63) as RSA 5/2004 6 well as in Siddamurthy Jayarami Reddy (D) by LRs V. Godi Jaya Rami Reddy (2011 SAR Civil 367). 6. Learned counsel appearing for the respondent pointed out that when Ext.A1 is the will executed by Uthuppu, his intention is to be looked into and as rightly found by the first appellate court, Ext.A1 establishes that Uthuppu wanted his wife Kunhithanda to be maintained by the two sons and if she is not satisfied with the maintenance, she was granted the right to alienate the property shown in A schedule and that too, only if it is necessary, making it absolutely clear that after the death of Kunhithanda, if the property is available, it should go to both appellant and plaintiff equally. Learned counsel argued that by executing Ext.B5, Kunhithanda has interfered with the intention of Uthuppu viz, to make available the plaint schedule properties on the death of Kunhithanda to the appellant and plaintiff equally and as Ext.B5 will could come into effect only after the death of Kunhithanda, as provision in Ext.A1 and the plaint schedule property if available with Kunhithanda it can only be disposed as provided under Ext.A1 and not under Ext.B5 and the first appellate court rightly found that plaint schedule property is RSA 5/2004 7 available for partition. 7. Ext.A1 establishes that the plaint schedule properties were bequeathed to Kunhithanda, providing that if she is not satisfied with the maintenance by the two sons, appellant and plaintiff, she is entitled to alienate the properties. It also provides that if those properties are available with her at the time of death of Kunhithanda, it should go to the appellant and plaintiff equally. If under Ext.A1, Kunhithanda obtained an absolute right without any restriction, it cannot be disputed that she is entitled to dispose the property by a testamentary instrument. But if the right given to Kunhithanda is restricted, the question is whether the clause is a repugnant clause or defeasance clause. If it is a repugnant clause, question is whether it will be operative and Kunhithanda could ignore the clause and dispose the property as she wished. On the other hand, if it is a defeasance clause, as far as possible, all the provisions under the will has to be given effect to. With this aspect in mind, the recitals in Ext.A1 is to be appreciated. 8. The relevant recitals in Ext.A1 reads:- RSA 5/2004 8 9. What is provided is that after the death of the testator, his wife Kunhithanda is to be maintained by the sons appellant and the plaintiff. If it is not liked by Kunhithanda, she could maintain herself from the income of the properties provided in A schedule and if necessary, she was also given the right to alienate the properties. If on the death of Kunhithanda, any of the properties shown in the A schedule was available with her, it RSA 5/2004 9 should go to the two sons, appellant and plaintiff equally. It is thus clear that the intention of the testator was that A schedule therein is to be enjoyed by his wife Kunhithanda and she is to be maintained by the two sons. If Kunhithanda does not like it, she was given the power to maintain herself from the income of the properties shown in A schedule and if necessary, she was also given the right to dispose the properties. But Ext.A1 specifically provides that if on the date of death of Kunhithanda, any of the A schedule properties are left with her, it should go equally to the plaintiff and the appellant. 10. If Ext.A1 was a gift deed and a restrictive clause is provided in Ext.A1, after transferring an absolute right on her, the clause being repugnant, she would be entitled to ignore the same and is entitled to deal with the property as she wishes. But it cannot be equated to the case of a will. As far as will is concerned, it is the latter clause which is to be given effect to and each clause in the will, as far as possible, is to be given effect to. Court has to sit in the arm chair of the testator and decide what was the intention of the testator at the time of executing the will and as far as possible, give effect to each and every clause RSA 5/2004 10 provided in the will. If so appreciated, it is clear that the testator wanted the wife to be maintained by the sons. To safeguard the interest of the wife, it was also provided that if she is not satisfied with the said arrangement, she is at liberty to be maintained herself with the income of the properties shown in A schedule. It was also provided that if necessary, she is competent to dispose the property also. That disposal is for the purpose of maintenance as is clear from the earlier clause. It also provides that if any of the properties was retained by Kunhithanda at the time of her death and it is thus available with her, that property should go equally to the two sons. In the light of these recitals, as rightly found by first appellate court, it is absolutely clear that the intention of the testator is that if any property is left with Kunhithanda at the time of her death, it should go to the two sons equally. It means the testator does not intend the wife to provide any dispossession by a testamentary instrument. If that be so, though Kunhithanda was given right to dispose the properties shown in A schedule of Ext.A1, was she given that right only for her maintenance and she was not given the liberty to execute a testamentary instrument disposing the said RSA 5/2004 11 property. As rightly found by the first appellate court therefore under Ext.B5, Kunhithanda is not competent to bequeath the property by testamentary disposition and appellant is not entitled to claim any right under Ext.B5. Instead, as the will would take effect only after the death of the testator and the plaint schedule properties were available with Kunhithanda on the date of her death, the properties are to be disposed not as provided under Ext.B5 but as provided under Ext.A1. If that be so, as rightly found by the first appellate court, appellant and plaintiff are entitled to equal shares in the plaint schedule properties. 11. Learned Munsiff has relied on the decision of Apex Court in Gopala Menon's case (supra). As is clear from the decision, the question considered was the effect of Ext.B4 will marked therein executed by Sreedevi Amma. The right claimed by Sreedevi Amma was the right obtained under Ext.B8 will executed by Ravunni Nair in respect of thavazhi properties. Their Lordships held that right of Sreedevi Amma to dispose of the property depends upon the nature of the estate conferred upon her under the will of her husband viz, Ext.B8. If she obtained under her husband's will, a limited estate in his property, she will have no RSA 5/2004 12 right to dispose of that property. On the other hand, if under her husband's will, she got an absolute estate, she will be entitled to dispose of that property. The question considered was not identical to the dispute involved in this case. Therefore based on that finding, the question cannot be resolved. The said decision was considered by a learned Single Judge of this court in Padmavathi Amma V. Padmanabhan Nair (1990(1)KLT 472) and it was held that on the facts in Gopala Menon's case (supra), Honourable Supreme Court has held that wife gets no limited estate, but an absolute estate in the property with the right to dipsose of that property by her own will. 12. Another learned Single Judge of this court in Raghavan's case considered the effect of the right of alienation provided in a will. Relying on Stroud in his Judicial Dictionary of Words and Phrases quoting terms de la Ley “ alienation is as much to say, as to make a thing another mans; or to alter or put the possession of lands or other things, from one man to another”, it was held that if that is so, a gift is an alienation”. His Lordships quoted Javer V. Hadibhai (17 Bombay LR 11.1) where it was held that word alienation as used in Section 3 of Bhagdari Act, which was RSA 5/2004 13 held to include a transfer by testamentary device. It was therefore held that gift of a property is alienation of the property. If there is a valid gift, there is a transfer of right in presente, which will not be the case with a will which would come into effect only on a future date, after the death of the testator. 13. As there is a transfer in presente in a gift, as distinct from the will, the principles applied in respect of a gift cannot be applied to the case of a will. As stated earlier, Ext.A1 makes it clear that the intention of the testator was that if any of the properties bequeathed in favour of the wife is available with her on the date of the death of his wife, it shall devolve on the sons equally. The Honourable Supreme Court considering the effect of a defeasance clause in a will held in Siddamurthy's case (supra) as follows. “26. It is well settled that the court must put itself as far as possible in the position of a person making a will in order to collect the testator's intention from his expressions; because upon that consideration must from which depend the effect to be given to the testator's intention, when ascertained. The will must be read and construed as a holder to gather the intention of the testator and the endeavour of the court must be to give effect to each and every disposition. In ordinary RSA 5/2004 14 circumstances, ordinary words must bear their ordinary construction and every disposition of the testator contained in will should be given effect to as far as possible consistent with the testator's desire”. 14. The difference between repugnant provision and a defeasance provision explained by Rameswar Kuer in Mt.Rameshwar Kuer and another V. Shiolal Upadhaya and others ( AIR 1935 Patna 401), was quoted with approval as follows. “ The distinction between a repugnant provision and a defeasance provision is sometimes subtile, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derrogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative”. 15. It is thus clear that the provision in Ext.A1 that Kunhithanda though granted power for alienation, was not granted the power to alienate the properties by testamentary RSA 5/2004 15 disposition, by making specific provision that any property which is available with Kunhithanda at the time of her death should go equally to the two sons. It establish that it is a defeasance clause, which shall be given effect to as far as possible. If so, as rightly found by the first appellate court, though Kunhithanda was given a right of alienation, she was not given a right of alienation by testamentary disposition and therefore plaint schedule properties are available for partition on the date of her death among the plaintiff and appellant who are the two sons as specifically provided under Ext.A1. Hence the preliminary decree granted is perfectly correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk