IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 AS.No. 485 of 1998(A) ----------------------------- OS.1027/1993 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): PLAINTIFFS ---------------------------------------- 1. SMT.P.MAYA SIVASANKAR, WIFE OF SIVASANKAR, AND DAUGHTER OF LATE JAYARAJAN MENON, RESIDING AT ''UNNI KRISHNAN'', CHOTTANIKKARA. 2. P.SANTHI S.MENON, WIFE OF SATHYAPAL AND DAUGHTER OF LATE JAYARAJA MENON, RESIDING AT FLAT NO.1, REBELLOR BUILDING, FATORDA, MARGOA, PIN 403 602. BY ADV. SRI.T.K.VENUGOPALAN RESPONDENT(S): DEFENDANT -------------------------------------------- 1. SMT.SATHI, DAUGHTER OF GOPALAKRISHNAN RESIDING AT KUNNAPPILLIL VADAKKE MADOM, KANAYANNUR P.O., CHOTTANIKKARA. 2. MINOR RAJASREE, DAUGHTER OF SMT.SATHI, RESIDING AT KUNNAPPILLIL VADAKKE MADOM, KANAYANNUR P.O., CHOTTANIKKARA. (MINOR SECOND RESPONDENT IS REP.BY HER MOTHER AND GURADIAN WHO IS THE IST RESPONDENT) ADV. SRI.M.RAVIKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON 20/12/2010 DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- A.S.No.485 OF 1998 ------------------------------------------- Dated this the 20th day of December, 2010 JUDGMENT “C.R.” Thottathil B.Radhakrishnan, J. 1.Ambujakshy Amma and Madhava Menon had only one son, Jayaraja Menon @ Rajan Menon. The plaintiffs are his daughters through Sarasija @ Omanakunjamma. The parents of the plaintiffs were granted divorce as per Ext.B6 order dated 18.12.1981 by the competent court on an application under Section 13 B of the Hindu Marriage Act, after fairly long drawn contentious proceedings for divorce even before this Court. Thereafter, Rajan Menon married the first defendant on 16.6.1982 (Ext.B5 is the marriage certificate). He, thereafter, died on 17.1.1983. The second defendant was born to the first defendant and Rajan Menon. There is no dispute on this. AS.485/98 2 2.In 1993, that is, more than 10 years after the demise of Rajan Menon, the plaintiffs sued for partition of what they described as the estate left behind by Rajan Menon. 3.In answer, the defendants contended that Rajan Menon had executed Exts.B3 and B4 in favour of the plaintiffs on 23.4.1981, and it was on that consensus, that the mother of the plaintiffs agreed for the divorce and Exts.B3 and B4 were executed essentially in terms of that family settlement, as a result of which, the plaintiffs had no right to inherit any part of the estate of Rajan Menon. The plea was that the allotments made under Exts.B3 and B4 were in lieu of the share and those documents amount to deprivation of the plaintiffs’ right to any further claim for share in Rajan Menon’s estate. AS.485/98 3 4.The court below accepted the defence version, having regard to the evidence on record. In construing Exts.B3 and B4, it took the view that those transactions resulted out of a family settlement and the plaintiffs, having enjoyed the benefits of Exts.B3 and B4, are not eligible to sue for partition of the left over. The court below has also indicated in the judgment that Exts.B3 and B4 could also be treated as testaments by Rajan Menon, in as much as they contain clear intendments which may amount to bequests and those documents are proved by DW3, one of the attestors. 5.Learned counsel for the appellants seriously challenged the approach adopted by the court below, in particular, the view that Exts.B3 and B4 contain elements of testament and that they would stand amounting to deprivation of the plaintiffs the right to further share. AS.485/98 4 6.Per contra, the learned counsel appearing for the contesting defendants argued that the totality of the evidence on record, including the contents of Exts.B10 and B11, the Wills executed by Ambujakshy Amma, the late mother of Rajan Menon, as also the conduct of the second plaintiff in having executed Ext.B2 kychit in token of having received her share in terms of the grandmother’s Ext.B11Will, is clinching to the effect that the suit claim, more than 10 years after the demise of Rajan Menon, is liable to be dismissed. He accordingly argued that there is no ground to interfere with the impugned dismissal of the suit by the court below. 7.The sequence of events, apart from that noted above, would show that Rajan Menon had married the mother of the plaintiffs on 22.10.1957; three children were born to them, of which, the only son Unni died on 14.3.1977 and AS.485/98 5 the couple had been living separate since 1975. The application filed by Rajan Menon, for divorce, under Section 13 of the Hindu Marriage Act was dismissed. An appeal carried to this Court was ultimately dismissed as not pressed. It appears that it was thereafter that Exts.B3 and B4 were executed on 23.4.1981. On 15.6.1981, i.e., just nearly one and half months after the execution of Exts.B3 and B4, Rajan Menon and the plaintiffs’ mother filed an application under Section 13 B of the Hindu Marriage Act, which, after the statutory gestation period of six months, was taken up and ordered after examining Rajan Menon. That was as per Ext.B6 order dated 18.12.1981. The plaintiffs themselves plead that yet another document as document No.30/1981 was also executed by Rajan Menon and the mother of the plaintiffs in relation to the severance of the matrimonial tie of the parents of the plaintiffs. Just six months thereafter, Rajan AS.485/98 6 Menon married the first defendant. He pre-deceased his mother on 17.1.1983. 8. Rajan Menon’s mother Ambujakshmy Amma executed Ext.B10 Will in 1985. She cancelled it and made a different Will, Ext.B11, on 12.9.1988. In terms of that, the first defendant, the widow of Rajan Menon, had to obtain receipt of having put the second plaintiff in possession of a parcel of land. The second plaintiff executed such receipt (kychit – Ext.B2) on 1.11.1989. 9.Ext.B11 Will is not under challenge. Equally is Ext.B10, Ambujakshmy Amma’s earlier Will, which was cancelled as per Ext.B11. In the absence of any specific denial of Exts.B10 and B11 and the contents thereof, the decision of the Apex Court in Balathandayutham and Another v. Ezhilarasan [(2010) 5 SCC 770] and of this Court in AS.485/98 7 Thayyullathil Kunhikannan and Others v. Thayyullathil Kalliani and Others [AIR 1990 Ker 226] stand to advice that in the absence of specific denial of the Wills, it is not further necessary to probe for evidence in proof of execution of those Wills in terms of the provisions of the Evidence Act. 10.On to Ext.B11 Will; the testator is none other than the widowed mother of late Rajan Menon. He was her only child. She is a witness to the life story of Rajan Menon; his married life with Sarasija; their children, the plaintiffs; the divorce between Rajan Menon and Sarasija; Rajan Menon’s marriage to the first defendant and his demise around six months thereafter, as also the fact that Rajan Menon has left behind the second defendant, a minor, aged nine when the suit was filed after about ten years of the demise of Rajan Menon. It is the clear recital in AS.485/98 8 Ext.B11 Will that in the context of and in connection with the divorce, Rajan Menon had, during his life time, of his own free will, parted with exclusive rights as regards properties which absolutely belonged to him. It is stated in Ext.B11 that R ............... ¿ßÏÞæa ¦ÆcÍÞøc ØøØß¼ÏíAá¢ æÉpA{ÞÏ ÎÞÏ, ÖÞLß ®KßÕVAáÎÞÏß ÕßÕÞÙçÎÞºÈÞÕÖcÞVj¢ 4 1/2 ÈÞÜø ¯AV ÄàùáÈWµßÏÄá µÝßºîí ................Q. This statement of the mother of Rajan Menon carries considerable weight in the light of the fact that it comes from a person who can be imputed with direct knowledge of the whole transactions in the family, including those in connection with the settlements between the parties at the time of the divorce between Rajan Menon and Sarasija. We also find fair amount of support for such evidence being looked into in matters intricately connected with families because one AS.485/98 9 would be eligible to speak of the ancestors, as also the immediate events in the lives of one’s own progenies. It is part of common course of human conduct to have knowledge and direct information about such matters. The contents of Ext.B11 in this regard cannot be brushed aside, having regard to presumptions that may be drawn in the light of section 114 of the Evidence Act. Ambujakshmy Amma, an elderly widow, also with the misfortune of having lost her only child, had not much with her, for solace unto her end. She had absolutely no reason to make any statement contrary to the interests of the plaintiffs who are none other than the elder among her grandchildren, born to her only child, who predeceased her. Therefore, the contents of her Will, going by common course of human conduct, has necessarily to be treated as containing truthful statements, particularly, in relation to the life and AS.485/98 10 dealings of her late son Rajan Menon. Such a presumption is permissible within the format of Section 114 of the Evidence Act and there is no reason why a presumption to that effect shall not be drawn on the facts and circumstances of this case. This is particularly because at the ripe age at which Ambujakshmy Amma was, when she made the Will, she deserves to be taken as having spoken in her bequest, the truth and nothing but truth. This is an inescapable inference to be drawn on the basis of the materials on record. That grandmother had no axe to grind amongst her grandchildren, born to her only predeceased son. Therefore, the recitals in her testament can be presumed to contain a truthful version of the affairs of her son and his broken family. Human mind and the conduct motivated by it are matters that would weigh with the courts as matters attendant the common course of human conduct, decipherable for the application of the AS.485/98 11 permissive presumption available under Section 114 of the Evidence Act. Common course of human conduct prompts that it may be inferred on the basis of the conduct and statements of Ambujakshmy Amma as discernible from her Will, that her version in that document as regards the affairs of the family could be relied upon. This is all the more so because her conduct of making those statements is at a point of time when she would never have dreamt of having such conduct and statements subjecting to judicial scrutiny, at least as regards the life of progenies in her line. 11.Not only that, Ex.B2 evidences that the second plaintiff had acted on the contents of Ext.B11 and issued kychit (receipt) of her having obtained the share which the grandmother had wanted the first defendant to part in her favour. AS.485/98 12 12.As already noted, Exts.B3 and B4 were executed, essentially contemporaneous with the settlement of disputes between Rajan Menon and the mother of the plaintiffs. The application filed, on consent, to snap their matrimonial tie followed the execution of Exts.B3 and B4. Making those settlements in favour of his daughters (plaintiffs), Rajan Menon stated in both those documents that what was being given thereunder is by way of the share that each of them may get out of his assets, apart from being in consideration of love and security for life. He had also stated that as a consequence of those settlements, the plaintiffs will not have any further right to his estate. In settling the properties covered therein, the documents say “.............®æa ØbJáµ{ßÜáU ¥ÕµÞÖÎÞÏá¢ ..............çÎÜÞW ®æa ØbJáA{ßW ÈßÈAá ÏÞæÄÞøá ¥ÕµÞÖ B{áÎáIÞÏßøßAáKÄæÜïKá¢ AS.485/98 13 ÈßÖíºÏßºíºá¢ ................ .” The plaintiffs have no case that they did not accept those settlements. They have enjoyed the benefit of those settlements. The properties covered by those documents were essentially settled as a consequence of the family arrangement arrived at between the parties in anticipation of the consent application for divorce between the parents of the plaintiffs. Unencumbered properties of Rajan Menon were given thereunder, to the plaintiffs. 13.In the aforesaid context and in the backdrop of the evidence, we do not find any legal infirmity in the appreciation of evidence or the refusal of the decree by the trial court, in particular, by placing reliance on the decision of this Court in Damodaran Kavirajan and Others v. T.D.Rajappan [AIR 1992 Ker 397], treating the whole arrangement as a family settlement and holding AS.485/98 14 that the plaintiffs who have obtained the benefit of such transaction cannot claim further partition. 14.There is yet another aspect of the matter. The assets originally belonged to Madhava Menon, the father of Rajan Menon, he having obtained it in a family partition. This means that it was liable to be treated as self acquisitions in the hands of Madhava Menon and when he died, it would go to his widow and son, meaning thereby that Rajan Menon would get only one half of those assets. Therefore, it is out of that one half which was around 4.8 acres that Rajan Menon gave 3.75 acres under Exts.B3 and B4 to the plaintiffs. Under Ext.A11, the grandmother Ambujakshmy Amma gave another one acre, receipt of which is acknowledged under Ext.B2. The total extent comes to 4.75 acres. This means that Rajan Menon had parted almost the whole of his half share that he would AS.485/98 15 have got, independent of what his mother gave to the plaintiffs from out of the estate that she inherited from her late husband Madhava Menon. We looked into this aspect only to assure for ourselves that there is no inkling of inequitable distribution of assets of Rajan Menon, for the plaintiffs who were 34 and 29 years of age at the time of suit, to complain of, as against the first defendant, Rajan Menon’s then 38 year old widow and the then 9 year old minor daughter. Remember, the suit from which this appeal arises was nearly ten years post-demise Rajan Menon. We find that there is no injustice in the impugned judgment and decree, either in appreciation of evidence, application of law or assimilation of facts, to treat them as wrong, warranting interference under Section 96 of the Code of Civil Procedure. AS.485/98 16 For the aforesaid reasons, the appeal fails. The same is accordingly dismissed leaving the parties to bear their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.