Kerala High Court
Krishnan Nair vs Vasudeva Panicker on 20 July, 2004
Equivalent citations: 2004(3)KLT124
Author: Pius C. Kuriakose
Bench: Pius C. Kuriakose
JUDGMENT Pius C. Kuriakose, J.
1. The defendants 2 to 5 and one of the legal representatives of the deceased first defendant in a suit for partition are the appellants. The first respondent filed the suit alleging that the plaint B schedule properties originally belonged to one Paru Amma, the mother of defendants 1 to 4 and one Sinnammu Amma, the mother of defendants 5 to 10; Paru Amma and Sinnammu Amma obtained these properties along with certain other properties by virtue of a Will executed by one Velayudhan Nair, their uncle; the Will dated 30.11.1930 is a registered Will; upon the demise of the testator the Will came into effect and the properties were being possessed and enjoyed by Paru Amma, Sinnammu Amma and their children. Thereafter Sinnammu Amma's share in the properties were assigned to one Kunhilekshmi Amma as per assignment deed No. 2918 of 1944 of the S. R. O., Feroke; who assigned the properties to Paru Amma, i.e. Sinnammu Amma's sister under assignment deed No. 4581 of 1944 of the S. R. O., Feroke. It was further averred in the plaint that Paru Amma, the mother of defendants 1 to 4 died in the year 1968. As per the assignment deed No. 2918 of 1944 Sinnammu Amma had assigned her right only in Kunhilekshmi Amma's favour. But the right of the defendants 5 to 10, the children of Sinnammu Amma was not sold to anybody. The right of the second defendant, a son of Paru Amma in the property was assigned to the plaintiff as per the assignment deed registered on 16.3.1967 and the right of the 7th defendant, a son of Sinnammu Amma was assigned to the plaintiff as per another document dated 23.4.1986. Consequently the B Schedule properties are now possessed and owned jointly by the plaintiff, defendants 1,3 to 6 and 8 to 10 as co-owners. Now the plaintiff is a co-owner. Since the plaintiff is residing far away from the properties, he is not getting any share of profits. Hence the suit for partition of B schedule property and for allotment of 9 out of 42 shares to the plaintiff with mesne profits.
2. A joint written statement was filed by the defendants 1 to 4 refuting most of the averments in the plaint. The suit is not maintainable. It was contended inter alia that the property originally belonged to Velayudhan Nair, their uncle. 11 items of properties were bequeathed by Velayudhan Nair as per registered Will dated 30.11.1930. It was further contended that item Nos. 1 to 9 mentioned in the Will were bequeathed by Velayudhan Nair in the names of his nieces and nephews, i.e. Paru Amma (the mother of the defendants), Krishnan Nair, Velayudhan Nair and the children of Paru Amma and Sinnammu Amma, both existing and to be born. It was contended that item Nos. 10 and 11 in the Will were bequeathed for the enjoyment with the right of alienation to Paru Amma and Sinnammu Amma only. The other 9 items bequeathed under the Will jointly to the nieces and nephews of the testator were partitioned as per a registered partition deed. It was further contended that as the properties, i.e. item Nos. 10 and 11 in the Will were being enjoyed and possessed by Paru Amma and Sinnammu Amma alone; Sinnammu Amma's half right over the properties were assigned to Kunhilekshmi Amma as per assignment deed No. 2918 of 1944; thereafter Kunhilekshmi Amma assigned the property in favour of Paru Amma in the year 1944 and from that year till Paru Amma died in the year 1967 Paru Amma enjoyed the property openly and without any hindrance from any quarter. Upon these defendants and thereafter Paru Amma's husband Imbichunni Kurup. Imbichunni Kurup died on 4.9.1986 and his interest in the property developed upon defendants 1 to 4. Thus the defendants alone are the co-owners and they are enjoying the properties. The defendants 5 to 10 were having no right over the properties and the contention that the properties were being possessed by all the defendants is incorrect. It is not correct to say that Sinnammu Amma has assigned only her share right in the property to Kunhilekshmi Amma. Neither the children of Paru Amma nor the children of Sinnammu Amma have obtained any right over the properties mentioned as item Nos. 10 and 11 in the Will. Even if any document is executed in favour of the plaintiff regarding any property said to be the properties of the 2nd and 7th defendants vide document Nos. 1967 and 1986, the plaintiff will not acquire any rights since the defendants 2 and 7 have no right to execute any document in favour of the plaintiff. The document in favour of the plaintiff are sham documents; the plaintiff has not obtained any right over the properties; if at all properties mentioned as item Nos. 10 and 11 in the Will; even if anybody else was having right over that properties, such rights have been lost by ouster and adverse possession as the properties were possessed by Paru Amma over the property.
3. The defendants 5, 6, 8, 9 and 10 filed separate written statements admitting the plaint claims and confessing for a decree for partition. They remitted requisite court fee separate allotment of shares.
4. On the above pleadings the learned Munsiff formulated as many as 11 issues including issue No. 5, whether the joint possession alleged is true? And issue No. 7, whether the predecessors of the plaintiff had any right or possession? The trial court recorded the evidence which consisted of oral testimonies of P.Ws. 1 and 2, D. W. 1 and the documentary evidence of Exts. A1 to A5 and Exts. B1 to B9. The trial court answered the issues in favour of the plaintiff and accordingly a preliminary decree was passed for partition of the suit properties.
5. Impugning the preliminary decree the defendants 1 to 4 preferred an appeal and the lower appellate court upon consideration of the arguments noticed that only the following points arose for consideration:
Whether the children of late Paru Amma and Sinnammu Amma will get any share in item Nos. 10 and 11 in the Will executed by late Velayudhan Nair and thereby the defendants will get any right over the plaint schedule properties?
Whether any property is available for partition? The learned Subordinate Judge on a through and anxious analysis of the Will marked as Ext. B1 and applying the principles laid down by the Supreme Court in Bajrang Bahadur v. Bakhtraj Kuer regarding the construction to be placed on the recitals contained in the Will and also on the observations of the Supreme Court in Ram Kishore Lal v. Kamala Narayanan regarding interpretation of documents generally concluded that it could be discerned on a reading of Ext. B1 Will that the testator intended that the children of Sinnammu Amma and Paru Amma shall also be benefited by the bequest made in favour of his nieces. Accordingly, it was held that the defendants, children of Paru Amma and Sinnammu Amma are entitled to get their share in plaint B Schedule properties which were item Nos. 10 and 11 in the Will. The learned Subordinate Judge decided other questions regarding the identity of the property and the question of adverse possession and limitation raised in the appeal also against the appellants and accordingly dismissed the appeal confirming the judgment and decree of the trial court.
6. Heard Sri. Tom K. Thomas representing Sri. K. P. Dandapani, learned counsel for the appellants and Sri. T. Krishnanunni, learned counsel for respondents 1 to 3 and 5 to 10.
7. Sri. Tom K. Thomas, learned counsel for the appellants submitted that the trial court as well as the lower appellate court has gone wrong in construing Ext. B1 Will. When Ext. B1 is correctly construed it will be seen, according to the learned counsel, that the testator intended to bequeath only item Nos. 1 to 9 in the Will to the children of Paru Amma and Sinnammu Amma and that item Nos. 10 and 11, i.e. disputed properties were exclusively set apart for Paru Amma and Sinnammu Amma. Inviting my attention to section 111 of the Indian Succession Act, the learned counsel submitted that the recital in the preamble of the Will that the children of Paru Amma and Sinnammu Amma are also the beneficiaries will apply if at all only to those children born before the death of the testator. In view of section 111, the class in whose favour the bequest was made will have to be ascertained at the point of time of death of the testator since there is no provision in Ext. B1 will express or implied indicating a period of distribution later than the death of the testator and there being no deferring of possession beyond the period of the death of the testator. Therefore, according to the learned counsel, the 7th defendant who was born after the death of the testator has not acquired any right over the properties and therefore Ext. A5 executed by him has not conferred any right on the plaintiff. On the same reasoning, the learned counsel submitted that the second defendant, the executant of Ext. A2 assignment deed did not have any right, title or interest over the disputed properties at the time when he executed Ext. A2 in favour of the plaintiff. He could acquire rights only upon the demise of his mother Paru Amma who admittedly died only subsequent to Ext. A2. The learned counsel further submitted that when a Will contains two clauses which are mutually inconsistent with each other then it is the latter clause which prevails and relied on section 88 of the Indian Succession Act in support of the above argument. To fortify the argument in the context of section 88, the learned counsel relied on the decision of the Supreme Court in K. Ambunhi v. H. G. Bhandary . Counsel fortified the argument advanced by him with reference to section 111 of the Indian Succession Act by referring to a Division Bench decision of the Madras High Court in Narayanan v. Commissioner of Income-tax .
8. Sri. T. Krishnanunni, learned counsel for the contesting respondents would read over to me the salient passages in Ext. B1 Will and submitted that whenever it comes to construing a Will the court's endeavour shall be to understood as to what was the real intention of the testator and to give an interpretation which will enable the court to give effect to the said intention. The learned counsel submitted that a careful reading of Ext. B1 Will should convince the court that the testator Velayudhan Nair was every inch of him a Marumakkathayee and that he has bequeathed item Nos. 10 and 11 Schedule to the Will, i. e. The properties in the suit to the thavazhi of his nieces Paru Amma and Sinnammu Amma. Meeting the argument raised by Sri. Tom K. Thomas in the context of section 111 of the Indian Succession Act, the learned counsel submitted that it cannot be said that the bequest of item Nos. 10 and 11 is in favour of a described class since the bequest is obviously in favour of the two nieces and their children who belongs to different classes. Counsel wanted me refer to illustrations of section 111 in this context. Coming to the argument advanced by Sri. Tom K. Tomas regarding section 88 of the Indian Succession Act, learned counsel submitted that the apparent conflict between the opening clause of the Will and latter clauses of the Will should be reconciled by reading all the clauses harmoniously and such a reading will lead to a conclusion that the bequest in favour of Paru Amma and Sinnammu Amma as a bequest to the thavazhi of Paru Amma and Sinnammu Amma. Mr. Krishnanunni referred me to section 110 of the Indian Succession Act and submitted that if the bequest under Ext. B1 Will was in favour of the thavazhi, i.e. in favour not only of Paru Amma and Sinnammu Amma but also to children who may be born to these two ladies subsequently, the legacy will not fail in view of section 110 due to the death of any person. Expounding his argument that nieces and children of nieces do not constitute one class by themselves but constitute different classes, learned counsel relied on a decision of this court in Janaki Amma v. Raveendra Menon wherein a Division Bench of this court has inter alia held that the bequest in favour of daughter and daughter's children will not be bequest in favour of a class of persons for the purpose of section 111 of the India Successions Act. The learned counsel wanted me to consider section 112 of the Indian Succession Act which deals with void bequest and the statutory exception for that section for the purpose of appreciating the argument raised regarding the implications of section 111. Mr. Krishnanunni would refer to the judgment of the Privy Council in Rameshwar Bakhsh v. Balraj Kuar (AIR 1935 P. C. 187) and argued that the rule that the latter clause will prevail in the event of a conflict between former clause and latter clause in a will has application only when the court's finds it impossible to harmonise the two clauses. Learned counsel submitted that the true intention of the testator has to be gathered not by the language used by him or the isolated expressions, but by reading the Will as a whole with all its provisions and ignoring non of them as redundant or contradictory. Mr. Krishnanunni also relied on a decision of this court in Vasudeva Prabhu v. Madhava Prabhu (AIR 1993 Kerala 68) and submitted that the cardinal rule to be observed by the courts while construing a Will is to ascertain the intention of the testator. The court, according to the learned counsel, shall put itself in the arm chair of the testator and then visualise how the mind of the testator visualised the whole problem at the time when he executed the will. Mr. Krishnanunni concluded his submissions by inviting my attention to the fact that his client, the plaintiff was relying on Ext. A2 document executed by non other than the first appellant and having executed Ext. A2 in favour of the plaintiff it was totally unholy on the part of the first respondent to raise contentions presently raised and he is estopped in law from raising the contentions since the plaintiff has acted upon Ext. A2 and the representations made by the first appellant therein. Ext. A5 executed by the 4th respondent in favour of the first respondent-plaintiff, also reiterates, according to the learned counsel that the appellants and the other members of their family certainly understood the bequest of the plaint B schedule properties in favour of Paru Amma and Sinnammu Amma as one in favour of their children present and to born also.
9. Sri. Tom K. Thomas does not agree with the submissions of Mr. Krishnanunni which were raised on the authority of the decision of this court in Janaki Amma's case (supra). The learned counsel submitted that the Supreme Court in Narayanan v. Commissioner of Income-tax a decision referred to by the learned Division Bench in Janaki Amma's case (supra) ruled that section 111 will apply the facts like the present one and according to him even the statutory illustration to section 111 will show that a bequest in favour of daughters and grand children present and future is bequest in favour of a class for the purposes of section 111.
10. Sri. Tom K. Thomas submitted that in the Memorandum of Appeal as many as six questions of law are suggested as substantial questions of law which are actually involved in the appeal. Sri. T. Krishnanunni, learned counsel for the respondents fairly conceded that the following among them, i.e. (a) Whether the courts below are justified in interpreting Ext. B1 Will in such a way so as to confer right to the unborn children of Paru Amma and Sinnammu Amma over items 10 and 11? (b) Whether the children of Paru Amma and Sinnammu Amma born after the death of Velayudhan Nair are entitled derive any benefit under Ext. B1 Will in view of section 111 of the Indian Succession Act? And (c) If there is a conflict between the preamble and the operative portion of a Will, does the recital in the preamble override the recital in the operative portion? are substantial questions of law which do arise for determination. Both sides were permitted to address further arguments on these questions of law. The counsel would reiterate only their respective submissions already made on the above three questions of law.
11. To answer the questions of law it will be necessary to read through Ext.B1 Will. The opening portion of the Will will certainly show that the bequest made thereunder is bequest by the testator Velayudhan Nair in favour of his nieces and nephews, Paru Amma, Krishnan Nair, minor Velayudhan Nair and minor Sinnammu Amma and to the children of Paru Amma already begotten and may beget in future and the children of Sinnammu Amma to. be begotten in future. It is in Clause 2 of the Will that the testator deals specifically with the bequests. Reading of Clause 2 shows that the bequest as regards item Nos. I to 9 properties is a bequest jointly in favour of parties 1 to 4 in the Will and in so far as item Nos. 10 and 11 the disputed properties are concerned the bequest is in favour of parties 1 and 4 absolutely. It is on the basis of the difference in the language employed by the testator regarding the bequest in respect of item Nos. 1 to 9 and that in respect of item Nos. 10 and 11 that it is contended by the appellants that as far as the disputed properties are concerned the bequest is absolutely in favour of Paru Amma and Sinnammu Amma alone and there is no bequest in favour of the children of Paru Amma and Sinnammu Amma. In my view a careful reading of the Will in entirety will reveal that there is no basis for such an interpretation. As already indicated, it is in the opening paragraph of the Will alone and importantly the opening paragraph alone deals with the bequests made under the Will generally that it is mentioned that the bequest is in favour also of the children of Paru Amma, existing and to be born and the children Sinnammu Amma to be born, the legatees are assigned numbers and Paru Amma is legatee number 1, Krishnan Nair, Paru Amma's brother is legatee No. 2, Velayudhan Nair, another brother is legatee No. 3 and Sinnammu Amma along with children already born and to be born to her sister and children to be born to herself is assigned No. 4. When a question is asked as to which is the number assigned by the testator for the children of Paru Amma and Sinnammu Amma, only two answers are possible. No. 4 or that they have not been assigned any separate number at all but are only identified with their mothers Sinnammu Amma and Paru Amma as persons having no separate identity apart from that of their mothers. This is where Sri. Krishnanunni's argument that the bequest under Ext.B1 Will in favour of Paru Amma and Sinnummu Amma is a bequest collectively in favour of the thavazhi consisting of Paru Amma and Sinnummu Amma assumes significance. There are several recitals in Ext.B1 Will which strongly support Mr. Krishnanunni's submission that the testator was a Marumakkathayee to the core. Of the 14 items which forms the subject matter of the Will the testator has bequeathed 9 + 2=11 items to his nieces and nephews while only three items are bequeathed in favour of his own wife and children. The testator's special affection for his nieces who alone will beget children to become members of Marumakkathayam tharavad is discernible in the special bequest of items 10 and 11 as distinguished from the common bequest in respect of items 1 to 9. The residuary legatees under Ext.B1 Will are significantly the nephews and nieces and not his own wife or children. The obligations to perform periodical religious rituals including the annual charity is cast on the nephews and nieces. The duty of conducting the testator's funeral and for bearing the expenses for the obsequies is cast not on the wife and children but on the nephews and nieces. While I construe the terms of Ext.B1 Will assuming the mind set of the testator, a staunch Marumakkathayee of yesteryears, I have no difficulty to conclude that the bequest in respect of item Nos. 10 and 11 is a bequest not in favour of Paru Amma and Sinnammu Amma alone but instead is one in favour of the thavazhi of Paru Amma and Sinnammu Amma in the Marumakkathayam tharavad by name 'Neelattuparammalkandiyil of which the testator was the karanavan.
12. Now I will consider the argument that the opening Clause in the Will which says that the bequest is in favour of Paru Amma and Sinnammu Amma and their present and future children is in conflict with Clause No. 2 which says that the bequest as regards item Nos. 10 and 11 is in favour of Paru Amma and Sinnammu Amma alone and therefore Section 88 of the Indian Succession Act should be applied and the second Clause should be taken as the prevailing Clause. The ratio which emerges from various binding judicial precedents such as Bajrang Bahadur's case (supra), Ramakrishorelal's case (supra), Ramaeshwar Bakhsh's case (supra) and Vasudeva Prabhu's case (supra) is that the cardinal rule to be followed while construing Wills and testaments which are solemn documents the endeavour should be to discern the real intention of the testator by reading of the Clauses in the. instruments together in a harmonious manner as far as possible and a conclusion that there is conflict between Clauses inter se in a Will should be arrived at only when no other conclusions is possible. When Ext.B is read and construed in accordance with the above rule what I find is that there is no conflict between the opening Clause of the Will and the succeeding Clauses and the conflict if at all is only apparent. The bequest in favour of Sinnammu Amma and Paru Amma under Ext.B1 is in fact a bequest in favour of a group consisting of them and their present and prospective children. Ambunhi's case (supra) was decided on an entirely different fact situation. The Will which was the subject matter of that case had an initial Clause which stated that a particular item of property was bequeathed absolutely in favour of Kannan one of the nephews of the testator. The very same Will will contained a latter Clause which was to" the effect that the properties bequeathed in favour of Kannan as per the earlier Clause shall be possessed and enjoyed as a thavazhi. The Supreme Court agreed with the High Court and held that Section 88 of the Indian Succession Act squarely applied and it is the latter Clause which would prevail over the former Clause and held that the bequest is in favour of the thavazhi and not in favour of Kannan individually. Referring to various decisions such as Ramachandra Shenoy v. Mrs. Hilda Brite, , Ramakrishnorelal v. Kamalnarayan, , the Supreme Court incidentally also ruled that the rule of interpretation provided by Section 88 of the Indian Succession Act is a special rule for the interpretation of Wills as distinguished from the ordinary rule of interpretation of other documents such as gift deeds and mortgage deeds which is to the effect that in the event of an inconsistency between the earlier Clause and latter Clause inter se it is the earlier Clause that will prevail over the latter Clause. But in the case of Wills since the purpose of the construction is to gather the mind or intention of the testator which can vacillate even as he writes the Will, what is more important is his intention at the time of actual execution of the Will which comes towards the end of the Will. But in the very same decision the Supreme Court has cautioned after referring to Rameshwar Bakhsh's case (supra) that Section 88 shall be resorted to only when the conflict between the earlier Clause and latter Clauses irreconcilable. I have already found that there is no real conflict between the earlier Clause and latter Clause on Ext.B1 Will. The apparent conflict is reconcilable.
13. Now I have to consider the argument which was advanced on the basis Section 111 of the Indian Succession Act. Section 111 deals with bequest to a described class and certainly says that, when the bequest is in favour of a described class of persons the thing bequeathed can go only to those of that class who are alive at the testator's death. According to Sri. Tom K.Thomas even if it is assumed that the bequest of items 10 and 11 is in favour of Paru Amma and Sinnammu Amma and their children in as much as they together constitute a class, the bequest can go only to those of that class who are alive at the time of the testator's death and cannot go to those who" joined the class after the testator passed away. According to Mr. Krishnanunni the bequest in this case cannot be described as a bequest in favour of a class for the purpose of Section 111. Children and grand children cannot belong to the same class; they can belong to only two different classes if one looks through the perspective of Section 111, according to Mr. Krishnanunni. I have no difficulty to answer this question in favour of the respondents. In Janaki Amma's case (supra) a Division Bench of this Court has in clear terms held that a bequest in favour of children and another bequest in favour of grand children can be bequests in favour of a class for the purpose of Section 111 while a bequest in favour of a child (daughter) and her children will not be bequest in favour of a class for the purpose of Section 111. The Division Bench rightly noticed in that case that the decision of the Supreme Court in Narayanan v. Commr. of Income Tax, , was rendered in a case where the bequest was in favour of the grand children alone who undoubtedly will constitute a class by themselves. It thus follows that children born to Paru Amma and Sinnumma Amma after the demise of Velayudhan Nair also will be entitled to derive the benefit conferred upon their brothers or sisters who were born prior to the demise of Velayudhan Nair under Ext. B1 Will.
14. The result of the above discussion is that all the three substantial questions of law involved in this appeal and on which arguments have been advanced will be answered in favour of the respondents. The interpretation placed on Ext.B1 Will by the Courts below is correct. All the children of Paru Amma and Sinnammu Amma irrespective of their dates of birth will derive benefit under ExtB 1 Will and there is no real conflict between the Clauses inter se in Ext.B1 Will. The appeal fails and the same is dismissed. In the circumstances of the case, the parties will however suffer their respective costs.