Kerala High Court
Valsalamma vs Krishnankutty on 5 July, 2013
Author: M.L.Joseph Francis
Bench: M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935
AS.No. 27 of 2000 ( )
----------------------
OS 519/1990 of ADDL.SUB COURT, IRINJALAKUDA.
APPELLANTS/PLAINTIFFS :
----------------------
1. VALSALAMMA, D/O.MADACHATTIL KOCHU AMMA AND
W/O.LATE CHAMAPARAMBIL GOPALAN,
ASHTAMICHIRA DESOM, VADAKKUMBAGAM VILLAGE,
MUKUNDAPURAM TALUK, NOW WORKING AT T.S.E.B.,
TAMILNADU AND RESIDING AT UDAMALPETTA, TAMILNADU.
2. CHANDRAN, S/O.LATE GOPALAN AND 1ST PLAINTIFF,
-DO- -DO-
3. SHELVY, S/O.LATE GOPALAN AND 1ST PLAINTIFF,
-DO- -DO-
4. BHARATHAN, S/O.-DO- -DO-
5. MINOR RATHY, D/O.LATE -DO- -DO-
(5TH PLAINTIFF ATTAINED MAJORITY PENDING SUIT)
BY ADVS.SRI.G.UNNIKRISHNAN
SRI.P.V.RAMESH SHANKAR
SRI.G.P.SHINOD
RESPONDENTS/DEFENDANTS :
----------------------------
1. KRISHNANKUTTY, SO/LATE CHAMAPARAMBIL PARUKUTTY,
VADAKKUMBAGAM VILLAGE, MUKUNDAPURAM TALUK,
NOW RESIDING AT T.S.E.B., TAMILNADU.
(DIED - LEGAL REPRESENTATIVES IMPLEADED)
2. DHAMODARAN, S/O.PARUKUTTY AMMA, -DO-
RESIDING IN THE ADDRESS, C.DAMODARAN,
C/O.E.SARASWATHY, IDAMOOLA HOUSE,
P.O.KOODAPUZHA, CHALAKUDY.
3. SUBRAN, S/O.POTTAYATHPARAMBIL INNOTTAN,
VADAKKUMBAGAM VILLAGE, MUKUNDAPURAM TALUK.
4. SATHYABHAMA, W/O.KOTTAKKAL MADHAVA THATTAN,
-DO- -DO-
5. NIRMALA, W/O.KOTTAKKAL HARI, -DO-
6. MADHAVAN, S/O.KOTTAKKAL PLAVADAPARAMBIL GOVINDAN,
VADAKKUMBAGAM VILLAGE, MUKUNDAPURAM TALUK.
ADDL. RESPONDENTS IMPLEADED :
7. INDIRA, W/O.LATE KRISHNANKUTTY,
C/O.VALSALA, ASSESSOR, TNEB, VALPARAI P.O.,
COIMBATORE DISTRICT, TAMILNADU.
8. RAJAN, S/O.LATE KRISHNANKUTTY,
CHAMAPARAMBIL HOUSE, ASHTAMICHIRA P.O.
CHALAKUDI VIA., TRICHUR DISTRICT,
KERALA - 680 731.
9. REMADEVI, D/O.LATE KRISHNANKUTTY,
CHAMAPARAMBIL HOUSE, ASHTAMICHIRA P.O.
CHALAKUDI VIA., TRICHUR DISTRICT,
KERALA - 680 731.
10. REKHA, D/O.KRISHNANKUTTY,
AGED 34 YEARS, CHEMMAPARAMBIL HOUSE,
VADAKKUMBHAGAM VILLAGE, THRISSUR DIST.
11. RANJITH, S/O.KRISHNANKUTTY,
AGED 34 YEARS, CHEMMAPARAMBIL HOUSE,
VADAKKUMBHAGAM VILLAGE, THRISSUR DIST.
12. MEENAKSHIKUTTY, AGED 34 YEARS, W/O.KRISHNANKUTTY,
CHEMMAPARAMBIL HOUSE,
VADAKKUMBHAGAM VILLAGE, THRISSUR DIST.
(THE LEGAL REPRESENTATIVES OF DECEASED R1 ARE
IMPLEADED AS ADDL. RESPONDENTS 7 TO 9 AS PER ORDER
DT. 13.7.2011 IN C.M.P.NO.2721/01)
(THE LEGAL REPRESENTATIVES OF DECEASED R1 ARE
IMPLEADED AS ADDITIONAL RESPONDENTS R10 TO R12 AS
PER ORDER DT. 7.7.2011 UB I.A.NO.1756/2011)
R3,R4 & R6 BY ADV. SRI.K.G.BALASUBRAMANIAN
R1 & R9 BY ADV. SRI.RENJITH THAMPAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25-06-2013, THE COURT ON
05-07-2013 DELIVERED THE FOLLOWING:
M.L. JOSEPH FRANCIS J.,
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
A.S.No.27 of 2000 A
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 5th day of July 2013
JUDGMENT
This appeal is filed by the plaintiffs in O.S. No.519 of 1990 on the file of the Additional Sub Court, Irinjalakuda. Respondents herein were the defendants 1 to 6 in that suit, which was filed by the plaintiffs for partition and separate possession.
2. The case of the plaintiffs is briefly as follows. Plaintiffs are the wife and children of one Gopalan, who died on 10th December 1982. Plaint A schedule properties originally belonged to Gopalan and his mother Ammu Amma alias Parukutty Amma jointly, as per Doc.Nos.543/1119 M.E and A.S.No.27 of 2000 : 2 : 2210/1951. Mother of Gopalan died on 5th May 1987 and her husband Velayudhan Nair died in the year 1979. There were properties in the individual names of Velayudhan, Gopalan and also in their joint names. Velayudhan and Ammu Amma had executed a joint Will on 10.5.1979 in respect of A schedule properties, bequeathing the plaint B schedule properties exclusively to Gopalan, 30 cents of property coming to about 1/3rd of the total extent in favour of another son who is the first defendant in the suit and the remaining 1/3rd measuring 30> cent in favour of yet another son second defendant. Plaint B schedule form part of A schedule and measures an extent of 31< cents. The bequeath in favour of the legatees was in such a way that they would get the property only after the death of both the testator and testatrix. Provisions were also made in respect of other properties. The Will was executed on the firm A.S.No.27 of 2000 : 3 : assumption that the entire A schedule properties belonged to Parukutty Amma exclusively.
3. Even at the time of execution of the Will, the properties were divided into three and plaint B schedule properties proposed to be bequeathed in favour of Gopalan, was given to him and the possession of other properties was handed over to the respective legatees, defendants 1 and 2. After the death of Velayudhan, = rights over the properties in the joint names of Velayudhan and Gopalan and the full rights over one item of property of Velayudhan devolved on Gopalan, as per the provisions in the Will. While so, alleging that Gopalan violated some of the conditions imposed in the Will, Parukutty Amma instituted a suit for recovery of possession of the B schedule property and for partition of the rights of Velayudhan over three items of properties as O.S. No.252 of 1983 before A.S.No.27 of 2000 : 4 : the Sub Court, Irinjalakuda after cancelling the Will. During the pendency of that suit, Parukutty Amma died and defendants 1 and 2 were impleaded as supplemental plaintiffs 2 and 3. After impleading, the plaint was amended for partition of B schedule property and for getting 2/3 shares thereon. Subsequently third plaintiff was transposed as 6th defendant and a decree was passed directing division of all other properties excepting the B schedule. Subsequently, some conflicts arose between the parties. On further enquiries, plaintiff came to know that the parties had proceeded on a wrong assumption that the properties were the exclusive properties of Ammu Amma, whereas the properties in O.S. No.252 of 1983 jointly belonged to Ammu Amma and Gopalan who had equal rights.
4. Plaint allegations were against reality and the recitals in the document. Ammu Amma had no right to transact the half A.S.No.27 of 2000 : 5 : rights of Gopalan over the properties and if at all made are not binding on the right of the plaintiffs. So the directions in the Will with regard to the = rights of Gopalan are null and void. Since Ammu Amma has chosen to cancel the Will on her death, plaintiffs are entitled to get 1/3rd share inclusive of the share of deceased Gopalan devolved on the mother. Thus plaintiffs are entitled to get 30/36 shares over the A schedule property. Plaintiffs are already in possession of the B schedule measuring an extent of 31< cent and in addition to that plaintiffs are entitled to get 45.3/12 cents of land. Defendants 1 and 2 are liable to surrender equal extent of land, which will work out to 22.17/24 cent each. They are also liable to account share of profits from 5.5.1987 on the date of death of mother. It is stated in the plaint that the property will fetch an annual net income of A.S.No.27 of 2000 : 6 : `2,400/- per year. Since defendants 1 and 2 have given possession of some of the properties to defendants 3, 4 and 5 out of the plaint A schedule, they are impleaded as parties in possession. By this suit, plaintiffs pray for partition of the plaint A schedule properties by metes and bounds by retaining the B schedule property in their possession and directing defendants 1 and 2 to surrender equal extent of land in their possession to make up these eligible extent with share of profits.
5. First defendant disputed the source of derivation of title and extent of properties stated in the plaint. It is further contended that the issues involved in the suit have been finally decided in the prior suit O.S. No.252 of 1983 between the parties and hence the suit is barred by the principles of res judicata. There are no bonafides in the allegation that the A.S.No.27 of 2000 : 7 : plaintiffs were not aware of the true nature of rights of Parukutty Amma set up in the earlier suit. In the additional written statement it is also contended that the share claimed as per amended plaint is incorrect.
6. According to defendants 2 and 3, the properties covered by document No.543/1119 were acquired utilising the funds advanced by the father to benefit his wife and children and the properties part-takes the character of Puthravakasam property. Hence the three sons and mother are entitled to < share each over the properties. Mother Ammu Amma was considered as the sole owner of the properties covered by document No.543/1119. Parties never intended to benefit the plaintiff's predecessor Gopalan. Having accepted the Will executed by the mother the present plaintiffs are estopped from setting up a different mode of derivation of title advantageous A.S.No.27 of 2000 : 8 : to them. Such a plea is also barred by acquiescence and waiver. These defendants are not aware of the proceedings in the earlier suit or they have not prosecuted the said suit after the so-called transposition as defendants. Mother was incompetent to cancel the Will after it was acted upon. These defendants are not liable to surrender any excess land to compensate the eligible extent to the plaintiffs. Third defendant is a bonafide purchaser for value of a portion of the property without notice of Gopalan's rights. Third defendant has effected considerable improvements in the property. He has also put up a building expending about `80,000/- in six cents of land and is conducting a workshop in the property to earn livelihood. So, at any rate, the six cents of land in the possession of third defendant is liable to be allotted to his share by way of equity or in the alternative is entitled to get value of improvements. A.S.No.27 of 2000 : 9 : The present suit is instituted to get over the decree refusing partition of A schedule in O.S.No.252 of 1983. A portion of the plaint schedule property is in the possession of one Madhavan and he is a necessary party to the suit. The suit, without including all the tharavad properties, is bad on account of partial partition. Second defendant is not liable for payment of any share of profits.
7. Defendants 4 and 5 contended that they are unnecessary parties to the suit as are not interested in the plaint schedule properties or the controversy involved in the suit.
8. Sixth defendant claimed that he is a bonafide purchaser for value without notice of Gopalan's rights of 16 < cents of land out of the plaint schedule from the second defendant and another 8= cents of land in in Sy.No.129/2. Sixth defendant further contended that he has renovated the house and A.S.No.27 of 2000 : 10 : considerably improved the property. So by equity, he prayed for equitable allotment of the improvements to his share and alternatively claimed for a decree for `60,000/- by way of indemnity on the basis of the provisions in the deed from the second defendant and charged on the property and from the present owner of the property by invoking the provisions of Order VIII A Code of Civil Procedure. Sixth defendant had filed an additional written statement contending that the plaintiffs are not entitled to any share in the property and that the present suit is hit by res judicata.
9. Plaintiffs filed written statement denying the third party claim set up by the sixth defendant and also contended that the transfer is hit by the principles of lispendens. Plaintiffs have also questioned the bonafides of the transfer, right to enforce indemnity and recover the property.
A.S.No.27 of 2000 : 11 :
10. Before the Additional Sub Court, no oral evidence was adduced from both sides. Ext.A1 to 6 and B1 and 2 were marked. The learned sub Judge on considering the pleadings and evidence on record found that the suit is barred by res judicata in view of the judgment and decree in O.S. No.252 of 1983 and the suit was dismissed with costs. Against that judgment and decree, the plaintiffs filed this appeal.
11. During the pendency of this appeal, the first respondent expired and his legal heirs were impleaded as additional respondent nos. 7 to 9.
12. Heard the learned counsel for the appellants and learned counsel for the respondents. At the time of hearing, the learned counsel for the appellants raised the following arguments. The view of the Court below that plaintiffs proceeded on the premise that Ammu Amma had cancelled or A.S.No.27 of 2000 : 12 : revoked the whole Will and on her death the entire rights devolved on plaintiffs and defendants 1 and 2 equally, is wrong. The Court below failed to note that the definite case of the plaintiffs in this suit is that one half of plaint A schedule property belonged exclusively to late Gopalan and therefore Ammu Amma was incompetent to make a Will in respect of that property. The Court below ought to have found that there was no previous suit and decree as regards plaint A schedule property. The view expressed by the Court below in paragraph 12 of the judgment that plaintiffs have not challenged the statement in Ext.A3 plaint that plaint A schedule property was divided into three plots and Gopalan was put in possession of 31< cents of land in the middle portion as per the stipulation in the will executed by Ammu Amma, is erroneous, since the contentions of the defendants (plaintiffs herein) was that the A.S.No.27 of 2000 : 13 : testatrix was incompetent to execute the Will in respect of the = share of Gopalan in the property. The finding that the suit is barred by res judicata under Section 11(4) Code of Civil Procedure is perverse. The view that plaintiffs in Ext.A3 suit had not taken the contention that Ammu Amma had no right to make a Will in respect of plaint A schedule property and therefore plaintiffs are estopped from retaining the benefits under the earlier decree and making a larger claim in this suit is contrary to facts. Evidently the Court below did not read Exts.A1 to A3. The learned counsel for the respondents supported the judgment of the Court below.
13. The plaint A schedule property as described in the plaint schedule is having a total extent of 92 cents out of which 33 cents in Sy.No.129/2, 23 cents in Sy.No.129/3 and 36 cents in Sy.No.129/6. In the plaint, it is stated that the plaint A A.S.No.27 of 2000 : 14 : schedule property belonged to deceased Parukutty Amma and deceased Gopalan and they obtained that property as per Ext.A1 assignment deed No.543/1119 and Ext.A2 release deed No.2210/1951. The first plaintiff is the wife and plaintiff nos.2 to 5 are the children of deceased Gopalan, who died in 1982. Deceased Gopalan, first defendant Krishnankutty and second defendant Damodaran are the children of deceased Parukutty Amma and Velayudhan Nair. Parukutty Amma died on 5.5.1987 and Velayudhan Nair died in July 1979. The plaint B schedule property is having an extent of 31< cents, which is the middle portion of plaint Aschedule property.
14. In the plaint, it is alleged that there were other properties also in the name of Velayudhan Nair and in the name of Gopalan. There were some other properties in the joint name of Velayudhan Nair and Gopalan. During the life time of A.S.No.27 of 2000 : 15 : Parukutty Amma and Velayudhan Nair, they were under mistaken notion that the plaint A schedule property absolutely belonged to Parukutty Amma alone and they jointly executed the registered Will on 10.5.1979 by which the plaint B schedule property was bequeathed in favour of Gopalan and 30 cents was bequeathed in favour of Damodaran and 30> cents to the second defendant. Provisions were also made in the Will regarding other properties belonging to them.
15. In the plaint it is alleged that after the death of Velayudhan Nair in 1979, the properties except the plaint A schedule property were vested with Gopalan. While Parukutty Amma was alive, she filed O.S. No.252 of 1983 before the Sub Court, Irinjalakuda for cancelling the Will in respect of B schedule, which was bequeathed to Gopalan and for partition of other properties covered under that Will. Ext.A3 is the copy of A.S.No.27 of 2000 : 16 : the plaint in O.S. No.252 of 1983 on the file of the Sub Court, Irinjalakuda. The plaint schedule item no.1 property in the suit was 31< cents which is B schedule property in the present suit, which is the middle portion of plaint A schedule property in the present suit. The entire 92 cents in the plaint A schedule property in the present suit was not an item of property shown in that suit which was available for partition. Plaintiffs 1 to 5 herein were the defendants 1 to 5 in O.S. No.252 of 1983.
16. In O.S. No.252 of 1983, it is stated by the plaintiff Parukutty Amma that as the defendants are not looking after her affairs, she is cancelling the Will relating to the plaint item no.1 property in the suit which was bequeathed in favour of Gopalan. During the pendency of that suit, the original plaintiff died and her sons Krishnankutty and Damodaran were impleaded as additional plaintiffs 2 and 3. Subsequently A.S.No.27 of 2000 : 17 : additional third plaintiff was transposed to additional sixth defendant. Ext.A6 is the copy of the judgment in O.S. No.252 of 1983 on the file of the Principal Sub Court, Irinjalakuda dated 8.12.1989. In that judgment, it was found that as per Ext. Nos.B4 and B5 are document Nos.543/1119 and 2210/51 (Ext Nos.A1 and A2 in the present suit) the original plaintiff Parukutty Amma and deceased Gopalan had equal half right over in the property in 92 cents (the plaint A schedule property in the present suit). It was found that the deceased Gopalan had 46 cents in the property of 92 cents. After the death of Gopalan 1/6 share of his mother would devolve upon her heirs. Hence it was found that the legal heirs of deceased Gopalan i.e., defendants 1 to 5 in the suit together are entitled to 381/3 cents in the property of 92 cents. But the Ext.B1 testator disposed of the property of 92 cents in favour of their three sons. A.S.No.27 of 2000 : 18 : Accordingly deceased Gopalan was given the 31< cents from out of 92 cents and it was also found that when the original plaintiff disposed of item no.1 property in favour of deceased Gopalan, the original plaintiff had never obtained any title over item no.1 property and it was found that the revocation made by the original plaintiff in respect of item no.1 property is not at all valid, since the original plaintiff had no right over item no.1 property. In that judgment there is no finding that the entire plaint A schedule property in the present was not available for partition, since the entire 92 cents was not scheduled in the plaint in that suit. Therefore, the finding in Ext.A6 judgment and decree will not operate as res judicata in the present suit for partition of the entire plaint A schedule property.
17. The next question to be considered is as to what is the share to be allotted to the plaintiffs jointly and defendants 1 and A.S.No.27 of 2000 : 19 : 2 separately from plaint A schedule property. From Exts.A1 and A2, it is proved that plaint A schedule property having a total extent of 92 cents jointly belonged to deceased Gopalan and Parukutty Amma. Therefore, deceased Gopalan had half right over 92 cents (46 cents) and Parukutty Amma had right over the remaining 46 cents. Upon the death of Gopalan his 5/6 right over his 46 cents devolved on plaintiff together i.e., 381/3 cents and the remaining 1/6th (72/3 cents) went to Parukutty Amma. At the time of death of Parukutty Amma she had right over 532/3 cents (46 cents + 72/3 cents). Total extent of property obtained by Parukutty Amma after the death of Gopalan was 532/3 cents.
18. Section 72 of the Indian Succession Act makes it clear that like the execution of the Will, the document of revocation to be valid has to be signed by executor in the A.S.No.27 of 2000 : 20 : presence of witnesses attesting the document or otherwise the executor makes the necessary acknowledgment as required in the case of executor of Will. Since Parukutty Amma has not executed any document cancelling the mutual Will, that Will is not revoked by filing a suit for cancellation of portion of that Will. Moreover a joint mutual Will become irrevocable on the death of one of the testators, if the survivor had received benefits under mutual Will. The intention of the testator of the joint Will was to divide the 92 cents of the property into three equal shares among three sons i.e., deceased Gopalan, first defendant Krishnankutty and second defendant Damodaran. But it is proved that deceased Parukutty Amma had right over 532/3 cents only and that portion of property in 92 cents has to be divided equally among the three sons. As per the Will each son was allotted 1/3rd share over 532/3cents. Therefore, after the A.S.No.27 of 2000 : 21 : death of Parukutty Amma, the plaintiffs as the legal heirs of Gopalan will get 178/9 cents and the first defendant obtained 178/9 and the second defendant obtained 178/9 cents. Thus the plaintiffs together are entitled to get 562/9 cents (381/3 + 17 /9 8 cents). Therefore, I find that the plaintiffs together are entitled to get the decree for partition and separate possession of their 5/6 shares in 46 cents belonging to Gopalan as per Exts.A1 and A2. The plaintiffs are together entitled to get 1/3rd share in the 532/3 cents belonged to Parukutty Amma over which Gopalan acquired 1/3rd share. There is no evidence to show that any income is derived from the plaint A schedule property. Moreover, the plaintiffs are also in possession of B schedule property which is a portion of plaint A schedule property. Therefore the plaintiffs are not entitled to get share of profits from the plaint A schedule property. The equities regarding the A.S.No.27 of 2000 : 22 : allotment of shares will be considered at the time of passing of final decree. In that view of the matter, the judgment and decree dismissing O.S. No.519 of 1990 on the file of Additional Sub Court, Irinjalakuda has to be set aside and a preliminary decree for partition has to be passed allowing the partition of the plaint A schedule property.
Accordingly this appeal is allowed. The judgment and decree dismissing O.S.No.519 of 1990 on the file of Additional Sub Court, Irinjalakuda is set aside and the suit is decreed and a preliminary decree for partition is passed in the following terms:
(i) The plaintiffs are allowed to get 5/6 share in the 46 cents belonged to Gopalan in the plaint A schedule property by partition by metes and bounds.
(ii) The plaintiffs together are also allowed to get 1/3 A.S.No.27 of 2000 : 23 : share over 532/3 cents belonged to Parukutty Amma in the plaint A schedule property as the legal heirs of Gopalan by partition by metes and bounds.
(iii) The equities will be considered at the time of passing of final decree.
Parties are directed to suffer their respective costs in this appeal and the parties are at liberty to apply for passing a final decree within six months from this date.
sd/ M. L. JOSEPH FRANCIS, (JUDGE) dl/ Modified preliminary decree is passed as follows by order dated 2.12.2014 in R.P. No.318/2014 filed against the judgment dated 5/7/2013 in A.S. No.27/2000.
"a) Plaint A schedule property will be divided by metes and bounds into 36.
b) The plaintiffs together are entitled to 22 shares and the first and second defendants are entitled to 7 share each.A.S.No.27 of 2000 : 24 :
c) The plaintiff will be put in possession of their separate share.
d) The equities will be worked out in the final decree proceedings. The suit is adjourned sine die."
Sd/-
Registrar (Judicial)