IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 RSA.No. 129 of 2009() --------------------- AS.46/1999 of SUB COURT, PAYYANNUR OS.507/1996 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- PUNNUKKAN GOVINDAN,S/O.KUNHAPPA, AGRICULTURIST,RESIDING AT THIMIRI AMSOM AND THADIKKADAVU DESOM, MANIKKAL,TALIPARAMBA TALUK, P.O.THADIKKADAVU. BY ADV. SRI.MATHEW KURIAKOSE SRI.G.GIREESH RESPONDENTS: RESPONDENTS/DEFENDANTS ---------------------------------------------------------------- 1. PUNNUKKAN THAMBAYI, W/O.PUTHIYA VEETTIL KANNAN, AGRICULTURIST,KOOVERI AMSOM AND DESOM, THERANDI, P.O.KOOVERI. KUMARAN DIED 2. KALLYANI, AGRICULTURIST, THIMIRI AMSOM AND THADIKKADAVU DESOM, P.O.ERUVATTY. 3. MADHAVI, AGRICULTURIST,RESIDING AT THIMIRI AMSOM AND THALAVIL DESOM,P.O.ERUVATTY. 4. KERALA KALLIANI,W/O.LATE PUNNUKKAN KUNHIRAMAN, AGRICULTURIST, RESIDING AT THIMIRI AMSOM, THALAVIL DESOM, P.O.ERUVATTY. 5. DAMODHARAN,S/O.LATE PUNNUKKAN KUNHIRAMAN AGRICULTURIST,RESIDING AT THIMIRI AMSOM, THALAVIL DESOM. 6. DEVU, D/O.LATE PUNNUKKAN KUNHIRAMAN, AGRICULTURIST, W/O.PANNERI SUMITHRAN, RESIDING AT PAPPINISSSERI AMSOM AND AROLI DESOM, P.O.AROLI. 7. SAROJINI, D/O.LATE PUNNUKKAN KUNHIRAMAN, W/O.KOMATH ACHUTHAN, AGRICULTURIST,RESIDING AT TALIPARAMBA AMSOM AND KEEZHATTUR DESOM,PALAYATTU. RSA.No. 129 of 2009() 2 8. JANARDHANAN, S/O.LATE PUNNUKKAN KUNHIRAMAN, POSTMAN, ERUVATTY POST OFFICE, THIMIRI AMSOM AND THALAVIL DESOM. 9. PRAKASAN, S/O.LATE PUNNUKKAN KUNHIRAMAN, STENOGRAPHER,REFRIGERATION ACCESSORIES LTD, 60 LONIN SARANI, CULCUTTA-13. 10. PADMANABHAN, S/O.LATE PUNNUKKAN KUNHIRAMAN, THIMIRI AMSOM AND THALAVIL DESOM. 11. NARAYANANI, W/O.PUNNUKKAN KUMARAN, RESIDING AT THIMIR AMSOM AND THALIKKADAVU DESOM. 12. PRASANNA, D/O.PUNNUKKAN KUMARAN, RESIDING AT THIMIR AMSOM AND THALIKKADAVU DESOM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- R.S.A.No.129 of 2009 ------------------------------------- Dated this the 17th day of August, 2009 JUDGMENT The plaintiff in O.S.No.507 of 1996 on the file of the Munsiff's Court, Taliparamba is the appellant. The appeal is directed against the judgment and decree in A.S.No.46 of 1999 on the file of the Sub Court, Payyannur. The trial court dismissed the suit for partition and confirmed in appeal. Hence, the second appeal. 2. The plaintiff claims 43/84 share in the plaint schedule property with future mean profit. The plaintiff claims title on the strength of the will. Ext.A1 is a certified copy of the will. Under Ext.A1 will different items of properties are allotted to different sharers. Item No.31 is one of the items allotted to the plaintiff. In Ext.A1 will one half of the Manikkankariparambu is allotted to the plaintiff. The plaintiff is claiming right and title and the plaintiff claims title over half share of the plaint schedule property on the basis of the allotment in the will. It is an admitted fact that as per the same will the husband of the 5th defendant and the father of the defendants 6 to 11 is entitled to get 2/7th share in the property mentioned in item No.31. The said R.S.A.No.129 of 2009 2 item is item No.4 in the will. Item No.11 in Ext.A1 will is also 1/7th share of the plaint schedule property. Similarly the second defendant is allotted 1/7th share of the plaint schedule property which is shown as item No.16, 3rd defendant 1/7th share shown as item No.22 and 4th defendant 1/7th share as item No.27. The trial court on the basis of the allotment in Ext.A1 take note of the fact that the very same property which is shown as item No.31 was divided by deceased Kunhappa to his different children. The property was allotted by Kunhappa in Ext.A1 to his children, first to the elder and followed by others one by one. It is an admitted case of the parties that the plaintiff is the youngest son of the deceased Kunhappa and deceased Kunjiraman is the eldest son. It is further admitted that being the eldest son, Kunjiraman was allotted a major share of the property described in Ext.A1. The trial court also noted the fact after giving property to the elder children, the remaining property is only 1/7th share in item No.31 and so it can be seen that the intention of the testator deceased Kunhappa was to allot 1/7th share to the plaintiff. 3. If the plaint averment is accepted, 1/7th share alone will remain for partition. It is the plaintiff's version that, reading the recitals of the will there remains only 1/7th share that he is R.S.A.No.129 of 2009 3 entitled to one half of the plaint schedule property plus 1/7th share which remains unallotted. The trial court after considering Ext.A1 will held that, if the intention of the testator is to give one half of the share of the plaint schedule property, it should have been mentioned to whom he allotted remaining 1/7th share. According to the defendant after the death of Kunhappa they have divided the properties orally and now they have separate possession of their respective shares. It is further contended by the defendants that they have obtained purchase certificates in respect of their shares and subsequently the defendants executed documents transferring their right to others. Ext.B1, B3, B5, & B8 are the purchase certificates, B2 series and B6 are tax receipts, etc are produced to show that they are enjoying the properties separately. 4. After appreciating oral and documentary evidence tendered by both sides the trial court held that the respective shareres obtained purchase certificates in respect of their shares, that other properties are also given by deceased Kunhappa to his children and that plaintiff has not filed any suit to get division in those properties. All these circumstances probabilises the case of the defendants to the effect that after R.S.A.No.129 of 2009 4 the death of Kunhappa the plaintiff and defendants divided the properties in terms of Ext.A1, therefore the court found that the plaintiff is not having any partible right as claimed by him and the plaint schedule property is not available for further partition. 5. The plaintiff filed appeal. The learned Judge, Payyannur appreciated the facts, circumstances and evidence and rightly concluded that the case of plaintiff that the plaint schedule property has not been partitioned and is lying in common is liable to be rejected. The appellate court also arrived at the very same conclusions and held that lower appellate court has rightly dismissed the suit holding the plaint schedule property is not partible. I have examined the findings and conclusions arrived at by both courts. The allottment of ½ share in the plaint schedule property to the plaintiff is only a mistake crept in it and infact the testator intented to convey only 1/7th share to the plaintiff. This is the only possible interpretation that can be given to the allottment of share to the plaintiff. The portions of property were allotted to elder children and what remains is only 1/7th share and therefore whatever allotment made can only be confined to 1/7th share alone. In fact the plaint schedule property was partitioned and share allotted to the elder R.S.A.No.129 of 2009 5 son first and then followed by others one by one. 2/7th share is allotted to the husband of the 5th defendant, 1/7th share each to the defendants 1 to 4. What remains is only 1/7th share. Courts below rightly held that recital in Ext.A1 that one half share in plaint schedule property is given to the plaintiff as shown in the item 31 is only a mistake. It is observed by the appellate court rightly that there is cogent and convincing evidence to show that after the death of the Kunhappa the plaint schedule properties partitioned and parties have taken separate possession of their respective shares. I have referred to the documents relied on by the trial court namely Exts.B1, B2, B3, B5, B6, B7, B8, etc. 6. The questions whether the plaintiff is entitled to partition and allotment of ½ share of the plaint schedule property was considered by both courts elaborately and on an interpretation of Ext.A1 and other attended circumstances held that the plaintiff cannot claim partition any more. The findings of the courts below are based on facts, circumstances and probabilities. The learned counsel for the appellant cited [Kaivelikkal Ambunhi (dead) by L.Rs & others Vs. H.Ganesh Bhandary (AIR 1995 SC 2491)] [Thankamma Kunjamma and others Vs. Gopalakrishnan Unnithan & R.S.A.No.129 of 2009 6 others (1992 (1)KLJ 415)], [Prasanth Vs. Kalliani (2007(2) KLT 992)] and canvas the position that if there is any inconsistency between the earlier or subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter part. Based on the said decisions it is contended that as far as interpretation of a Will is concerned, the subsequent part, clause or portion always prevail over the earlier part in the matter of “will” or portion because the testator can always change his mind and create another bequest in the place of the bequest already made in the earlier part or on earlier occasion. It was held in the decision cited supra that the last will of the testator shall prevail. The decisions cited and the principles stated therein are well settled and accepted principles. The said legal principles will apply to each and every case depending on the facts, circumstances and probabilities. If the intention of the testator to cancel the earlier portion and to bequest the property as contented by the plaintiff there is no difficulty in deleting the earlier portion. If there is a change of intention within a minute or so there is no difficulty in allotting the entire property to one sharer. In fact on a reading of Ext.A1 it is very clear that the plaintiff is take advantage of a mistake R.S.A.No.129 of 2009 7 committed while drafting Ext.A1 will. On a reading of Ext.A1 I am unable to notice any change of mind while drafting the will, that in the case of will the testator can always change his mind and create another will in the place of the bequest already made. I do not find the principles stated in the reported decisions cited is applicable to the case on hand. I have no reason to interfere with the judgment and decree passed by the courts below. The appellants failed to make out any ground to invoke this court’s jurisdiction under section 100 C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence, this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.