Karnataka High Court
Srimathi Ramadas vs K V Ramachandra Nambiar on 3 December, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF DECEMBER , 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL NO.1207 OF 2005
BETWEEN
SRIMATHI RAMADAS,
AGED 47 YEARS,
W/O RAMADAS, NO.302,
SHIVA DARSHAN APARTMENT,
NEAR KADRI TEMPLE,
MANGALORE-2,
D.K.DISTRICT.
... APPELLANT
(BY SHRI NAGANAND, SR.COUNSEL APPEARING FOR
SRI.SUNDARASWAMY RAMDAS & ANAND, ADVS.)
AND
1. K.V.RAMACHANDRA NAMBIAR
AGED ABOUT 52 YEARS
S/O KANNAN NAMBIAR,
VIJAYA BANK,
P.O.TRIARPUR, KASARGOD DISTRICT,
KERALA STATE.
2. K.V.VENUGOPAL NAMBIAR
AGED 52 YEARS
ROOM NO.104, ANANDRAJ BUILDING,
OPP: SASIDHAR TALKIES,
KOTESHWAR,
KUNDAPURA TALUK.
2
3. K.PRABHAKAR
AGED 50 YEARS
HOTEL SRINIVAS, V.V.MOHALLA,
K.R.S.ROAD, ONTIKOPPAL,
MYSORE.
4. K.V.RAJALAXMI,
AGED 45 YEARS,
W/O W.KUNHI KRISHNAN NAMBIAR,
MAVILE VALAPPIL, POST: CHERUKUNNU,
KANNANURE DISTRICT,
KERALA STATE.
5. K.V.SUKUMARAN NAMBIAR
AGED 43 YEARS,
C/O C.PADMANABHA NAMBIAR,
N.A.HOUSE, P.O.MAYYIL,
KANNANORE DISTRICT,
KERALA STATE.
NOS.2 TO 5 ARE THE CHILDREN OF
SARASWATHI @ THAMBAI.
... RESPONDENTS
(BY SHRI P.S.RAJAGOPAL FOR SRI K.M.NATARAJ, FOR R1)
THIS RFA FILED U/S 96 OF CPC AGAINST THE JUDGEMENT
AND DECREE DT: 12.04.05 PASSED IN O.S.NO.5/02 ON THE
FILE OF THE CIVIL JUDGE (SR.DN), KUNDAPURA, DISMSSING
THE SUIT FOR PARTITION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
3
JUDGEMENT
The plaintiff is the appellant challenged the judgment and decree passed in O S No.5/2002 passed by the Civil Judge (Sr.Dn.) Kundapura dated 12.4.2005 and further made a prayer to decree the suit. The suit filed by the plaintiff - appellant for partition of `A' Schedule property into six equal shares and to allot one such share and deliver it to her possession is dismissed by the trial court.
2. It is the case of the plaintiff-appellant that `A' schedule property belonged to late K V Kannan Nambiar (K V K Nambiar) who died on 2.7.1981. As per the last and registered will dated 21.12.1976 executed by him when he was in sound disposing state of mind, bequeathed the properties to defendant No.1 and children of K.V.K Nambiar's daughter Smt.Saraswathi @ Thambai who are plaintiff and defendants 2 to 5. The recital in the will executed by K.V.K Nambiar states that the defendant No.1 is bound to enjoy all 4 the properties jointly with the plaintiff and defendants 2 to 5. It is the case of the defendant that his father executed the Will and bequeathed the property to him absolutely. Further he denied that the testator bequeathed the suit property to defendant No.1 and children of Smt.Saraswathi Thambai. It is denied that the plaintiff and the defendants have been in joint possession and enjoyment of the property. He being the absolute owner of the suit schedule property he is legally entitled to transfer and enjoy the same. Further he has taken a contention that the suit has been filed with a delay of 21 years and the same has not been explained to the satisfaction of the court. In order to prove intention of the Will, it is contended, the plaintiff has not examined any persons including the plaintiff herself. Since Smt.Saraswathi Thambai became widow prior to 1976 and she had requested father of the respondent No.1 to reside with him in the house built in the suit property owned by him on a live and license, since they had no residence to live. In view of the said problem of Smt.Saraswathi Thambai, he had expressed in the 5 Will to maintain Smt.Saraswathi Thambai and her children till they attain majority and get a separate residence. Now the children of Smt.Saraswathi Thambai are well placed and settled in life. The plaintiff has been appointed in the National Insurance Company, Mangalore and defendants No.2 & 3 have been residing separately.
3. The plaintiff has examined PW-1 who is her husband and marked Ex.P1 to P10 on her behalf and defendant No.1 examined himself as DW-1 and no documents were produced.
4. The learned Judge framed as many as 8 issues and all the issues have been answered in the negative except issue No.7. The learned counsel for the plaintiff-appellant has taken a ground in this appeal namely, the learned Judge has not appreciated the facts and evidence of the appellant and has misinterpreted the Will and held that the respondent - defendant No.1 has got an absolute right as a legatee, though she has proved the fact that the plaintiff and her children have got a right along with respondent No.1 to reside and 6 enjoy the property as a matter of right. It is contended that when a condition precedent or subsequent is attached to the bequest, bequest rendered impossible or cease to have any effect if the said condition precedent or condition subsequent is not fulfilled. The condition put-forth in the Will is that the respondent No.1 shall be entitled for a right over the suit schedule property only when he resides there along with the appellant and respondents 2 to 5.
5. By considering the evidence and materials on behalf of both the parties, the court below dismissed the suit. Hence this appeal.
6. The points that arise for my consideration are:
(i) Whether the court below has committed an error in dismissing the suit?
(ii) Whether the plaintiff has proved that she has got right by virtue of the Will executed by father of respondent No.1?
(iii) Whether the court below has rightly interpreted the Will in compliance of Hindu Succession Act?7
7. As per case of the plaintiff herself, father of respondent No.1 executed registered will in the year 1976 and he died in the year 1981. Since it is a suit for partition, it should have been filed within the time stipulated. But in the instant case, it has been filed after a delay of 21 years. Issue No.7 framed by the court below has been answered against the plaintiff. The plaintiff was custodian of the Will and the same was marked on her behalf as Ex.P1. Ex.P2 and R3 are the R.T.Cs. which disclose that the respondent No.1 has got entered the properties in his name way back in the year 1984 itself. Since these documents have been marked on behalf of the plaintiff, it has to be presumed that the plaintiff had the knowledge of the property transferred in the name of respondent No.1 and not preferred to challenge the same. The delay has not been explained properly by the plaintiff. Though the defendant did not raise the contention regarding delay, it is the duty on the part of the court to examine the same for the purpose of jurisdiction. In W P No.26643/2010 between D V Lakshmidevi Vs., Smt.Neelamma disposed of on 8 6.10.2010 it is held that even though no plea is raised by way of defence, if suit is instituted, appeal is preferred or an application is made after the prescribed period, it has to be dismissed. Similarly in another judgment reported in (2008) 14 SCC 445 it is held that as limitation goes to root of the matter, if the suit, appeal or application is barred by limitation, the court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide on merits.
8. The second question would be as to whether the court below has interpreted the Will and understood the same properly. In examining the same, the text of the Will as it is translated by the court below is relevant to be examined. The Will has to be understood in splitting it into three parts. The first part reads as follows:
"The testator has stated that he has given in marriage all his daughters in accordance with his status and they are residing with their respective husbands in a decent manner and as such there is no necessity to provide or help them in any manner".9
The second part is, "He has only one son by name K V K Nambiar (defendant No.1) who is employed in Vijaya Bank and after his demise the said K.V.K Nambiar should possess and enjoy all the income thereof and pay Moolgeni rents either out of the income of the said property or out of his own funds to Moolidars (landlords) and he should possess and enjoy absolutely from generation to generation".
The third part of the Will is, "The husband of the second daughter Smt.Saraswathi had died and she herself and her children have been residing with him since his (testator) wife had died and she herself and her children (plaintiff and defendant Nos.2 to 5) are residing with him in the house and looking after his welfare and therefore his son K.V.K Nambiar should reside and live in the said house along with Saraswathi and her children".
9. If these portions of the Will are looked into harmoniously as a whole, it gives an indication as to the intention of testator. In order to understand the Will of this nature, it is better to refer judgment in Sadaram Suryanarayana & Anr. V. Kalla Surya Kantham & Anr (2010 AIR SCW 6721) where the Hon'ble Supreme Court has referred the judgment reported in AIR 1935 PC 187 in which it was held "where an absolute estate is created by a Will in favour of the devisee, the clauses in the Will which are 10 repugnant to such absolute estate cannot cut down in the estate; but they must be held to be invalid." ....where there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must be override the later clauses and not vice versa".
"In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same Will, a testator cannot create successive legatees in his Will......"
10. In the light of the judgment referred supra, when the Will gives a scope for confusion the judgment referred to supra gives the guidelines. In the first part of the Will, the testator says that all his daughters have been given in 11 marriage and they are residing with their husband respectively and there is no necessity to provide or help them in any way. This gives clear intention in execution of the Will. When such being the case, the second part of the Will is very important in which the testator says that the only son defendant No.1 should possess and enjoy absolutely from generation to generation, is nothing but an absolute transfer of rights by way of the Will. Saraswathi Thambai, the widow daughter was permitted to reside with the defendant No.1. In the judgment referred supra, in similar circumstances, has held that where earlier clause of the Will very clearly bequeathed the property in favour of a person and subsequent portion if it is in controversy, need not be understood in a way that testator has bequeathed the property in favour of both. PW-1 has been examined on behalf of the plaintiff. PW-1 is none other than husband of the plaintiff and also her GPA holder. His evidence is of no assistance in deciding the case. PW-1 was not having the first hand information about the Will. He married the plaintiff 12 subsequent to execution of the Will. In his evidence, he has deposed that all 8 daughters of Nambiar were married earlier to 1976 and KVK Nambiar has given sufficient gold ornaments to all his daughters. This goes to show that PW-1, who came into the family subsequent to 1976. In the circumstances, the evidence of PW-1 is not useful to prove the case of the plaintiff.
11. The Supreme Court in (2010) 10 SCC 512 has referred the judgment reported in (1999) 3 SCC 573 to the effect "where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct" and (2008) 8 SCC 536 where it is held, the power of attorney who does not have personal knowledge cannot be examined. Para-18 reads as follows:
"18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:13
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
© The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney- holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney- holder.
14
(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.".
12. In the light of the judgment referred supra, it is held that PW-1 who had no personal knowledge of the case of the plaintiff, his evidence is of no help to the proceedings. In the light of the observation made by the trial Court and also 15 evidence of PW-1, it is to be held that plaintiff has not proved her case by examining any useful witnesses to prove her case.
13. The defendant-respondent has specifically stated in the written statement that the defendants No.4 & 5 who are claiming to be children of plaintiff do not support the case of the plaintiff, instead by filing memo they adopt the statement filed by the defendant in their memo dated 1.6.2002. The defendant No.3 was placed exparte and defendant No.2 expired during pendency of the suit. The plaintiff who claims that defendants 2 to 5 have also got share in the property but they did not support case of the plaintiff. It is seen further that defendant No.2 is an astrologer at Koteshwar and he is residing there separately and defendant No.3 was employed in Vijaya Bank and he is also residing separately. In these circumstances, as it is stated in the Will, the plaintiff the mother was only in permissive possession to stay in the property till her children attain majority. That compassion and duty extended by K.V.K. Nambiar and later on 16 respondent No.1 should not be understood that right was conferred in the will. In these circumstances, I do not find any infirmity in the order passed by the court below.
14. The judgment referred by the plaintiff reported in (2002) 6 SCC 664, 2002 (64) DRJ 293 and (2004) 1 ALD 212 and another judgment reported in 1962 Calcutta 513. I have gone through the said judgments. I find that they are of no assistance to the plaintiff.
15. In view of the above, I pass the following order.
ORDER Appeal I dismissed. The parties are directed to bear their own expenses.
Sd/-
JUDGE AKD