IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 RSA.No. 1111 of 2004() ---------------------- AS.204/1998 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.532/1981 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANTS/2ND APPELLANTS/ADDL.APPELLANTS 3 TO 5 & 7 AND 8/3RD PLAINTIFF ------------------------------------- 1. SANKARA DAS, S/O. RAMAKRISHNAN CHETTIAR, FROM T.C.21/316, NEDUMCAD ROAD, KARAMANA, TRIVANDRUM NOW RESIDING AT NO.2, EAST PATTAMAR STREET, MADURAI-1. 2. P. VICTORIA, RESIDING AT NO.7, RAMAKRISHNAN NAGAR, MUTHILAPATT, PONDICHERRY. 3. ANTONY, RESIDING AT NO.7, RAMAKRISHNAN NAGAR, MUTHIALPATT, PONDICHERRY. 4. K. RAJASREE, RESIDING, AT NO.7, RAMAKRISHNAN NAGAR, MUTHIALPETT, PONDICHERRY. 5. K. RADHIKA, RESIDING AT NO.7, RAMAKRISHNAN NAGAR, MUTHAILPATT, PONDICHERRY. 6. K. RAJESH, RESIDING AT NO.7, RAMAKRISHNAN NAGAR, MUTHAILPATT, PONDICHERRY. BY ADV. SRI.P.S.RAMESH KUMAR SMT.ANNAMMA ABRAHAM SMT.ACHA RANO MATHEWS.T. RESPONDENT(S): RESPONDENTS& ADDL.6TH APPELLANT/DEFENDANTS 2 & 3: --------------------------- 1. YASODHA, RESIDING AT T.C.21/316, NEDUMCAD RAOD, KARAMANA, THIRUVANANTHAPURAM. 2. SASIDHARAN NADAR, RESIDING UPATAIRA OF S.N. INSTITUTE OF COMMERCE, NEDUMCAD, KARAMANA, THIRUVANANTHAPURAM. 3. K. RAMESH, S/O. LATE KAILAS, RESIDING AT NO.7, RAMAKRISHNAN NAGAR, MUTHIALPETT, PONDICHERRY. ADV. SRI.V.SURESH FOR R1 SRI.G.SUDHEER FOR R1 SRI.M.P.KRISHNAN NAIR FOR R2 & THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/2/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JUDGMENT Appellants called. Absent. No representation. Dismissed. Sd/- M.SASIDHARAN NAMBIAR, JUDGE. M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.1111 OF 2004 =========================== Dated this the 5th day of August,2011 JUDGMENT Third plaintiff and the legal heirs of deceased second plaintiff in O.S.532/1981 on the file of I Additional Sub Court, Trivandrum are the appellants. Defendants 2 and 3 and one of the legal heirs of the first defendant are the respondents. Suit was filed for partition contending that item No.1 of the plaint schedule property originally belonged to Allel Kathammal and Ramakrishnan Chettiar was her only son and first defendant is his second wife and second defendant and plaintiffs 2 and 3 are their children and first plaintiff is the son of Ramakrishnan Chettiar in his first wife. It was contended that Allel Kathammal executed Ext.X1 will bequeathing item No.1 of the plaint schedule property in favour of her R.S.A.1111/2004 2 son Ramakrishnan Chettiar and daughter-in-law the first defendant and on the death of Allel Kathammal in 1960, the property devolved on Ramakrishnan Chettiar and the first defendant equally and Ramakrishnan Chettiar had one half right in item No.1 of the plaint schedule property and other one half right belongs to the first defendant. Item No.2 of the plaint schedule property was obtained by Ramakrishnan Chettiar under partition deed 510/1121 M.E and on the death of Ramakrishnan Chettiar, it was contended that, the properties are in the possession of the plaintiffs and the defendants. It is also admitted that defendants 1 and 2 are residing in the building in item No.1 of the plaint schedule property which is the main building. Plaintiffs contended that first plaintiff is residing in building No.TC 21/350 adjacent to the other building and third defendant is now in possession of 2 cents including a kitchen and bathroom as per an alienation made by the second defendant and as per Ext.X2 will, the property on R.S.A.1111/2004 3 the death of Ramakrishnan Chettiar it devolved only on the sons and therefore only plaintiffs 2 and 3 alone are entitled to half share each in item No.1 of the plaint schedule property and item No.2 of the plaint schedule property is also available for partition and plaintiffs 1 to 3 are entitled to get 1/5 share each. Respondents resisted the suit contending that Ramakrishnan Chettiar executed Ext.X1 will whereunder his rights were bequeathed only in favour of the second defendant and plaintiffs are therefore not entitled to any share. It was also contended that the second defendant had sold 2 cents of properties to the third defendant who is in possession of the property. Third defendant contended that he is entitled to the 2 cents and it cannot be divided. 2. Learned Sub Judge on the evidence originally dismissed the suit holding that under Ext.X2 will, on the death of Ramakrishnan Chettiar his rights devolved only on the second defendant and plaintiffs are not entitled to claim any share. R.S.A.1111/2004 4 Plaintiffs challenged the decree and judgment in A.S.170/1985 before District Court, Thiruvananthapuram. Learned District Judge on reappreciation of the evidence found that there are suspicious circumstances surrounding execution of Ext.X2 will and second defendant the legatee under the will did not remove the suspicion. It was further found that an opportunity is to be granted to the second defendant to prove Ext.X2 will, after removing the suspicious circumstances. Learned District Judge also considered the claim of the plaintiffs that under Ext.X1 will the line of succession for item No.1 of the plaint schedule property is only through male children. Learned District Judge answered the question holding that “the provisions will make it appear that the deceased desired a line of succession through the male children to be perpetrated. That will be creating an estate against the provisions of law of inheritance and is bad in law. So the defence contention that as per Ext.X1 will Ramakrishnan R.S.A.1111/2004 5 Chettiar and the first defendant got absolute right in the property and also right of alienation and he bequeathed the property by will has to be accepted.” Learned District Judge set aside the decree and remanded the suit back to the trial court. Learned Sub Judge thereafter found that inspite of the opportunity granted second defendant did not prove Ext.X2 will and therefore held that second defendant alone cannot claim exclusive right in the property. Learned Sub Judge based on the finding of the learned District Judge that the provision in Ext.X1 will providing for inheritance only through the male children held the provision invalid and found that on the death of Ramakrishnan Chettiar his rights would devolve equally on his widow and children and therefore found that both item 1 and 2 of the plaint schedule properties are available for partition and item No.1 of the plaint schedule property is to be divided into ten equal shares and the plaintiffs are entitled to get 1/10 share each. It was found R.S.A.1111/2004 6 that as item No.2 belonged to Ramakrishnan Chettiar alone it is to be divided into 5 equal shares and plaintiffs are entitled to get one share each. It was also provided that at the time of division, 2 cents covered by the sale deed in favour of the third defendant shall be allotted to the share of the second defendant. Plaintiffs challenged the preliminary decree before Additional District Court, Thiruvananthapuram in A.S.204/1998. Learned Additional District Judge in view of the observation of the District Judge in the remand order in A.S.170/1985 found that plaintiffs are not entitled to contend that only the male children alone are entitled to succeed to the estate of Ramakrishnan Chettiar and confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial question of law. “Whether the failure to challenge the order of remand R.S.A.1111/2004 7 would entail forfeiture of the right of the appellant to challenge before this superior Court the observation/finding in the earlier order of remand that the stipulation in the will Ext.X1 that after the legatees, their male children existing or to be born alone shall be entitled to succeed.” 4. Learned counsel appearing for the appellants and the learned counsel appearing for the respondents were heard. 5. Learned counsel relying on the decision of the Apex Court in Krishna Pillai v. Padmanabha Pillai (2004(2) KLT 61) argued that though the observation in the order of remand passed by the learned District Judge in A.S.170/1985 is binding on the trial court as well as the appellate court, it is not binding on this court which is superior to the District Court which passed the order of R.S.A.1111/2004 8 remand and therefore appellants are entitled to challenge the observation in the order of remand that the provision in Ext.X1 will that the property would devolve on the male children of Ramakrishnan Chettiar is invalid. Learned counsel relying on the decisions of this court in P.Krishna Bhatta v. Narayana Bhatta (AIR 1962 Kerala 322) and the decision of the Apex Court in S.Rajagopal Chettiar v. Hamasaveni Ammal (AIR 1992 SC 704) and Balwant Kaur v. Chanan Singh (AIR 2000 SC 1908) argued that the finding of the learned District Judge in A.S.170/1985 is erroneous. It was argued that if a will on the former part provides that the properties should go to the legatees on absolute right and on the latter part provides that the property after the death of the legatees should go to their male children being a will, the last provision would prevail. Therefore though it was provided in Ext.X1 under clause 4 that the property was bequeathed to the son Ramakrishnan Chettiar R.S.A.1111/2004 9 and daughter-in-law the first defendant , when clause 8 provides that on their death the property shall go to their male children alone, that intention of the testator should prevail. It was vehemently argued that the right obtained by Ramakrishnan Chettiar and the first defendant could only be a life interest and not an absolute right and therefore the preliminary decree is to be modified. 6. Learned counsel appearing for the respondents submitted that even in the plaint the appellants have no case that the right obtained by Ramakrishnan Chettiar or the first defendant was only a life interest and instead it was specifically pleaded that they obtained absolute right over the property under Ext.X1 will and therefore it is not open to the appellants now to contend that the right obtained by the first defendant and Ramakrishnan Chettiar was only life interest. Learned counsel also pointed out that if the case of the appellants is true and the property R.S.A.1111/2004 10 could be claimed only by the male children of Ramakrishnan Chettiar in view of clause 8 of Ext.X1 will, a suit for partition of item No.1 of the plaint schedule property will not lie as according to the plaintiffs, defendants cannot be the co- owners. Learned counsel pointed out that it is the specific pleading that defendants are co-owners and the plaintiffs are only claiming joint possession and court fee was also paid only under section 37 (2) of the Kerala Court Fees and Suits Valuation Act, 1959 and in such circumstances, courts below rightly found that on the death of Ramakrishnan Chettiar his rights devolved on his wife and children and therefore there is no reason to interfere with the preliminary decree. 7. Though an order of remand and the findings in the order of remand would be binding on the trial court and the first appellate court which originally passed that order, it will not a bar to the appellants in challenging the correctness of the order of remand before this court, while R.S.A.1111/2004 11 challenging the decree and judgment subsequent to the order of remand. The question has been settled by the Apex Court in Krishna Pillai's case (supra) as follows:- “24. Sub-s.(2) of S.105 of the Civil Procedure Code, 1908 provides that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. The provision is not without exceptions and limitation. First is, when the order of remand is illegal, and more so, if it is without jurisdiction (See Kshitish Chandra Bose v. Commissioner of Ranchi ((1981) 2 SCC 103)). The High Court had in exercise of second appellate jurisdiction R.S.A.1111/2004 12 illegally reversed the concurrent findings of fact and ordered remand. It was held that in an appeal to Supreme Court from the final order of the High Court after remand, challenge even to the first order of the High Court making remand, and, all the proceedings taken thereafter as a result of the illegal order of remand, was available to be laid. When the matter reaches a forum, superior to one which had made the order of remand earlier, it can go into the question of legality or validity of the order of remand. The bar enacted by S.105(2) applies up to the level of that forum which had remanded the matter earlier. (underline supplied).” R.S.A.1111/2004 13 Therefore the finding of the District Judge in A.S.170/1985 that the provision in the will providing a line of succession through the male children is bad in law as it is against the law of inheritance, will not preclude the appellant from challenging it in the second appeal. Hence whether under Ext.X1 will only the sons of Ramakrishnan Chettiar and first defendant could claim the right over item No.1 of the plaint schedule property, which originally belonged to Allel Kathammal, is definitely a question which is to be decided in the appeal. 8. Before considering the question it is necessary to appreciate Ext.X1 will in the proper perspective. Clause 6 of Ext.X1 will specifically provides that during the life time of the testator she will enjoy the property on absolute right and on her death, it shall be enjoyed by her son Ramakrishnan Chettiar and his wife, the first defendant, absolutely with even the right to alienate. Clause 8 provides that subsequent to the R.S.A.1111/2004 14 death of the testator, while properties being enjoyed by Ramakrishnan Chettiar and the first defendant absolutely, on their death, the property shall be enjoyed by the children of Ramakrishnan Chettiar namely plaintiffs 2 and 3 and male children born to them. It is clear that under clause 6, an absolute right, including the right of alienation, was given to the legatees Ramakrishnan Chettiar and his wife, the first defendant. It is thereafter under clause 8, it is provided that on the death of the legatees, it shall be enjoyed by appellants 2 and 3 and any other son to be born to the legatees. 9. A reading of the plaint discloses that there is no case for the appellants that the right created in favour of the legatees Ramakrishnan Chettiar and the first defendant was a life interest and the right of inheritance is only on their male children. The pleading is otherwise. Paragraph 5 of the plaint is to the effect that Allel Kathammal the mother of Ramakrishna Chettiar R.S.A.1111/2004 15 died in 1960 and the property “devolved upon Ramakrishnan Chettiar and the first defendant equally” and one half of the property belongs to Ramakrishnan Chettiar and the other half belongs to the first defendant. In paragraph 7 also it was unambiguously pleaded that the properties were in the possession and enjoyment of Ramakrishnan Chettiar till his death and afterwards the plaintiffs and defendants are in joint possession as co-owners. True, in paragraph 20 it was pleaded that item No.1 devolved upon plaintiffs 2 and 3 only and they are entitled to half share each. As rightly pointed out by the learned counsel appearing for the appellants when Ext.X1 shows that first defendant and her husband Ramakrishnan Chettiar are the legatees and first defendant is entitled to be in possession of the property with absolute right, even the right of alienation, appellants cannot contend that under Ext.X1 will only plaintiffs 2 and 3 obtained right over item No.1 of the plaint schedule property. If R.S.A.1111/2004 16 the case of the plaintiffs is that first defendant was only having a life interest and item No.1 of the plaint schedule property belongs to plaintiffs 2 and 3 subject to the life interest of the first defendant, the case could have been appreciated. But that is not the case pleaded. Moreover, as pointed out by the learned counsel appearing for the respondents, if the case of the appellants pleaded in paragraph 20 of the plaint that on the death of Ramakrishnan Chettiar, as provided under Ext.X1 will the property absolutely belongs to plaintiffs 2 and 3 the male children alone, a suit for partition impleading the defendants would not lie, as according to that case defendants have no manner of right to the property and they cannot be the co-owners as the suit is not for partition between plaintiffs 2 and 3. Instead the pleading is that item No.1 of the plaint schedule property is in the joint possession of defendants and plaintiffs. Suit was filed paying court fee, on the claim of joint possession under sub section (2) R.S.A.1111/2004 17 of Section 37 of Kerala Court Fees and Suits Valuation Act. Therefore it is clear that the appellants had no case that the right obtained by first defendant and Ramakrishnan Chettiar was only life interest. It is more so when the specific case is that the property devolved on them absolutely. With these facts in mind the decisions relied on by the learned counsel appearing for the appellants is to be appreciated. 10.Facts of the case in Krishna Bhatta's case (supra) reveals that court considering a will whereunder clause (6) provided that on the death of the testator, property shall be enjoyed by his wife and son on absolute right and under clause (7) it was provided that after the death of the wife, the son and incase a grandson is born to the second wife of the son, she and her children should enjoy the property from generation to generation. Interpreting the said clause, it was held that “where the intention of the donor or testator is to maintain an absolute estate conferred on the donee R.S.A.1111/2004 18 but he adds some restrictions in derogations of the incidents of such absolute ownership, the clause is a repugnant one and is therefore void. If however, the intention expressed or to be necessarily implied is to extinguish the absolute estate on the happening of a contingency and where the effect of the termination of the said absolute estate would not be the violation of any rule of law, the clause is a defeasance clause and would operate according to its tenor.” Interpreting the relevant clauses in the will it was held “when clause (6) and (7) are read together, clause (6) confer only a life estate and that clause (7) is valid and operative”. It was based on the finding that clause (7) which proves that “After Santamma and Venkataramana, in case his second wife Honnamma, bears a son, she and her son will enjoy the property absolutely” and clause (8) provided that 'only in case Honamma has no sons, Govinda and another, the minor son of Venkataramana Bhatta by his wife will enjoy the property absolutely. The Division Bench held that R.S.A.1111/2004 19 the said clause is only a defeasance clause and would operate. 11.The Honourable Supreme Court in S.Rajagopal Chettiar's case (supra) considered a will which provides that the testator does not have a male progeny and he is having movable and immovable properties mentioned in the will in his possession and enjoyment both ancestral and self acquired and after his life time, his wife Dhanalakshmi Ammal shall enjoy likewise till her life time and after her lifetime as described thereunder, A schedule properties shall be enjoyed absolutely by the daughter and after her it should go to her male children. Their Lordships considered the question whether the right derived by Dhanalakshmi Ammal the widow is an absolute right or a life interest. It was held:- “3. After going through the contents of the will we agree with the view taken by the High Court. We do not agree with the R.S.A.1111/2004 20 contention of the learned counsel for the appellant raised before us that Padmanabha Chettiar, the testator, of the will wanted to give absolute right in the property to his wife Dhanalakshmi Ammal and thereafter absolute right in favour of his daughter Rajalakshmi Ammal. The above intention is negatived by a clear mention in the will that after Rajalakshmi Ammal the property shall ultimately go to her male children. In case the intention of the testator was to give the properties absolutely in favour of Rajalakshmi and not merely life interest then there was no question of mentioning that after her it should go to her male children.” R.S.A.1111/2004 21 The facts in Balwant Kaur's case (supra) shows that the lower appellate court held that the will in question did not create life interest in favour of the first appellant, only because in the earlier part of the will she was described to be the owner of the 1/3 share of the property. It was held that on a conjoint reading of the will, it has to be held that the testator did not confer full ownership of 1/3 interest in the suit land to his daughter appellant No.1 but only conferred a life interest in the property to her. Considering section 88 of the Indian Succession Act, 1925 it was held:- “This is obviously on the principle that the last clause represents the latest intention of the testator. It is true that in the earlier part of the will, the testator has stated that his daughter-Balwant Kaur shall R.S.A.1111/2004 22 be the heir, owner and title holder of his entire remaining movable and immovable property but in the later part of the same will he has clearly stated that on the death of Balwant Kaur, the brothers of the testator shall be the heirs of the property. This clearly shows that the recitals in the later part of the will would operate and make appellant No.1 only a limited estate holder in the property bequeathed to her.” The facts of the present case are different. As stated earlier appellants proceeded in the plaint with the specific case that on the death of Allel Kathammal, as provided under Ext.X1 will the property devolved on Ramakrishnan Chettiar the son R.S.A.1111/2004 23 and first defendant the daughter-in-law on absolute right. It was also pleaded that on the death of Ramakrishnan Chettiar his rights devolved on the legal heirs including plaintiffs and defendants and defendants are co-owners in possession of the property. In the absence of a case that Ramakrishnan Chettiar and first defendant have only life interest and instead the specific case is that under Ext.X1 will Ramakrishnan Chettiar and first defendant obtained absolute right it is not open to the appellants now to contend that first defendant and Ramakrishnan Chettiar derived only life interest under the will. Ext.X1 specifically provide that they were given not only absolute right but even the right to alienate the property. If that be so, appellants are not entitled to contend that the right obtained under Ext.X1 by Ramakrishnan Chettiar was only a life interest or the right available to the first defendant is only a life interest. 12. When the suit is instituted claiming that R.S.A.1111/2004 24 plaintiffs 2 and 3 alone are entitled to right over item No.1 of the plaint schedule property and it is admitted that second defendant is residing in item No.1 of the plaint schedule property, without seeking a decree for recovery of possession from the defendants a suit for partition alone will not lie, especially when plaintiffs have no case that second defendant obtained any right over item No.1 of the plaint schedule property on the death of Ramakrishnan Chettiar. In such circumstances, the preliminary decree passed by the trial court as confirmed by the first appellate court can only be upheld. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006