Kerala High Court
K.P. Nalini Aged 64 Years vs Radha Balakrishnan on 30 September, 2015
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939
R.F.A.No. 60 of 2016 (F)
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AGAINST THE JUDGMENT IN O.S.101/2013 OF SUB COURT, CHAVAKKAD DATED
30-09-2015
APPELLANTS/PLAINTIFFS:
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1. K.P. NALINI AGED 64 YEARS
W/O.LATE PADMANABHAN, KRISHNAGIRI APARTMENTS
PERINGAVU, THRISSUR.
2. K.P.GIRIJA AGED 42 YEARS
D/O.LATE PADMANABHAN, KRISHNAGIRI APARTMENTS
PERINGAVU, THRISSUR.
3. K.P.KRISHNAPRIYA AGED 37 YEARS
D/O.LATE PADMANABHAN, KRISHNAGIRI APARTMENTS
PERINGAVU, THRISSUR.
BY ADVS.SRI.T.KRISHNANUNNI(SR.)
SRI.V.T.RAGHUNATH
SMT.C.V.RAJALAKSHMI
RESPONDENTS/DEFENDANTS:
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1. RADHA BALAKRISHNAN, AGED 58 YEARS,
W/O.BALAKRISHNAN, VRINDHAVAN, ATHANI P.O.
NEAR K.B.HOSPITAL, ALUVA-683 585.
2. GEETHA RAMACHANDRAN, AGED 57 YEARS
W/O.LATE RAMACHANDRAN, VATTEKKAT HOUSE, RAM NIVAS
WEST NADA, GURUVAYUR-680 101.
3. RAM KISHORE 38 YEARS
S/O.LATE RAMACHANDRAN, AVANTHI, RAM NAGAR SECOND STREE,
POONKUNNAM, THRISSUR-680 001.
4. RANJITH CHANDRAN P., AGED 36 YEARS,
S/O.LATE RAMACHANDRAN, HARINANDANAM, PUNNATHUR GARDENS,
GURUVAYUR, THRISSUR-680 101.
RFA60/2016
- 2 -
5. MANOJ KUMAR, AGED 35 YEARS
S/O.LATE RAMACHANDRAN, CLASSIC-2 JAYARAJ,
SUMITH JAYARAJ VALLEY, PADAMUGHAL, KOCHI-682 021.
R1-R5 BY ADV. SRI.R.D.SHENOY (SR.)
R1-R5 BY ADV. SRI.PHILIP T.VARGHESE
R1 BY ADV. SMT.ACHU SUBHA ABRAHAM
R1 BY ADV. SMT.ANN MALU ALBI
R1 BY ADV. SMT.CHITHRA CHANDRASEKHARAN
R1 BY ADV. SMT.K.R.MONISHA
R1 BY ADV. SMT.K.M.SUNU
R1 BY ADV. SRI.THOMAS T.VARGHESE
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2017, THE COURT ON 29.06.2017 DELIVERED THE FOLLOWING:
"CR"
V.CHITAMBARESH & SATHISH NINAN, JJ.
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R.F.A.No. 60 of 2016
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Dated this the 29th day of June, 2017
JUDGMENT
Chitambaresh, J.
1.'Guruvayurappan' - the presiding deity of Guruvayur Temple
- is worshiped as Shri Krishna in his child form and 'Udayasthamana Puja' ('puja' for short) is an offering from dawn to dusk performed by devotees. It was the wish of Raman Nambiar (the testator for short) that puja be performed even after his death on his birthday which falls on the Malayalam month of Makaram every year. The testator provided in his Will (marked Ext.A1) that a very small portion of the income from the property devised be utilised for the puja by the legatee and her children.
2.The stipulations in Ext.A1 Will are the following: RFA60/2016 -: 2 :-
i. The property shall vest absolutely in the daughter of the testator Janaki and her children.
ii.Janaki shall effect repairs to the buildings, collect rent from the tenants and also pay taxes.
iii.Janaki or the then karnavar shall continue to perform puja on the birthday of the testator.
iv.The expenses for the puja shall be met from out of the net income collected from the property.
v. One half of the income remaining shall be kept as reserve for the maintenance of the buildings.
vi.The other half of the income remaining can be appropriated by the managers of the property.
vii.The expenses for the puja if not done by the karnavar shall be a charge on the property.RFA60/2016 -: 3 :-
It is for the surplus income from the property after allocation to puja and maintenance has the suit been filed essentially for partition by the three grand children of the testator who was a successful fleet owner.
3.The plaintiffs and defendants 2 to 5 are the children born to Janaki Amma in her first husband and the first defendant is her daughter born in her second husband and the plaint schedule property is that taken in Ext.A1 Will. It appears that a portion of the property was the subject matter of land acquisition which gave rise to L.A.R.No.66/2006 for apportionment of the compensation. L.A.A.No.267/2014 filed therefrom is disposed of today by a separate judgment and it is conceded that the execution of Ext.A1 Will has been accepted by the parties therein. Only the construction of RFA60/2016 -: 4 :- Ext.A1 Will arises for consideration in this Regular First Appeal filed by the plaintiffs against the decree of the court below dismissing the suit. The court below has held that the testator has created a religious endowment by Ext.A1 Will and that the plaintiffs and defendants who are therefore trustees can only file a suit for settlement of scheme.
4.We heard Mr. T.Krishnanunni, Senior Advocate on behalf of the appellants and Mr. R.D.Shenoy, Senior Advocate on behalf of the respondents in this appeal.
5.Two essential tests to determine as to whether an endowment has been created or not are the following:
i. There must be an absolute dedication of property for religious or charitable purpose.RFA60/2016 -: 5 :-
ii.The donor should divest himself of all beneficial interest in the property comprised.
The following excerpt from M.R.Goda Rao Sahib v. State of Madras (AIR 1966 SC 653) is apposite:
".........The settlor must divest himself of the property endowed. To create an endowment, he must give it and if he has given it, he of course has not retained it; he has then divested himself of it". (emphasis supplied)
6.The dedication in the instant case is not in favour of the deity or the devaswom even though a charge is created on the property and that too when a default is committed in performing the puja annually. There is very much a retention RFA60/2016 -: 6 :- of the property in as much as there is an absolute vesting in favour of the legatee who are the daughter and her children albeit born and yet to be born. The beneficial interest in the property is manifest in Ext.A1 Will by providing for the periodical maintenance of the buildings from the income derived therefrom. We have absolutely no hesitation to hold that Ext.A1 Will does not create a charitable endowment and is only a bequest pure and simple of course with obligations attached thereto on the legatee.
7.Ext.A1 Will is neither a contingent nor a conditional bequest since the vesting of the property thereunder takes place whether or not the puja is performed and is not dependent on the happening of an event. How far the charge created in favour of the devaswom for realisation of the expenses for the puja on default committed by the legatee acts as an RFA60/2016 -: 7 :- impediment is a different question. There is no dearth of devotees to perform the puja at Guruvayur Temple and it is reported that one has to wait for more than 30 years for his turn to come even if the booking is done. The first plaintiff (who was the material witness) was fair enough to depose that it was the wish of the testator to continue the puja in order to ensure that his soul rests in peace. The daughter of one of the attesting witnesses was also examined as P.W.2 solely to identify the signature in proof of due execution of Ext.A1 Will and nothing more.
8.There is a faint plea at the appellate stage that the stipulation in Ext.A1 Will to perform puja is repugnant to the interest devised and therefore hit by Section 138 of the Indian Succession Act, 1925. Such a contention does not lie in the mouth of the plaintiffs in the light of the express RFA60/2016 -: 8 :- stand taken by the first plaintiff as P.W.1 that they do not challenge any of the conditions in Ext.A1 Will. Even the mesne profits was claimed in the plaint reckoning the expenses for the puja and the obligation for its performance is more moral than legal. We also notice that the expenses for the puja to be performed annually is minuscule when compared to the income generated and does not affect the alienability or partibility of the property. The contention based on Section 138 of the Indian Succession Act, 1925 even if the same applies to immovable property does not have any impact in the circumstances.
9.The oral testimony in the case explicitly reveals that the plaintiffs only seek a proper accounting of the income and get their due share of it after defraying the expenses for the puja and the maintenance. The testator has clearly stated in RFA60/2016 -: 9 :- Ext.A1 Will that the puja has to be performed by the karnavar (used in singular sense) meaning thereby that the seniormost member is the person. The testator has also stated in Ext.A1 Will that the managementkars (used in plural sense) have the right to appropriate the surplus income from the property. The term managementkars or managers can only be the co-owners of the property especially after the advent of the Kerala Joint Hindu Family System (Abolition) Act, 1975. Each of the co-owners are entitled to manage the property who are none else than the plaintiffs and the defendants being the legal heirs of the legatee applying their personal law.
10.It is trite law that every endeavor should be made to give effect to the wishes of the testator and full effect be given to every word found in Ext.A1 Will in its construction to RFA60/2016 -: 10 :- comprehend its purport and import. The following excerpt from Navneet Lal v. Gokul [(1976) 1 SCC 630] on the interpretation of a Will is profitable:
"(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(4) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a RFA60/2016 -: 11 :- construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus". (emphasis supplied)
11.We accordingly set aside the impugned judgment and decree of the court below and pass a preliminary decree for partition of the plaint schedule property in the following terms:
i. The income remaining after defraying the expenses for the performance of the puja and allocating for the maintenance of the buildings as per Ext.A1 Will is found to be partible.RFA60/2016 -: 12 :-
ii.The plaintiffs together are entitled to one-third share, the first defendant is entitled to one-third share and defendants 2 to 5 are entitled to the remaining one-
third share over the surplus income.
iii.The entitlement of the parties to participate in the puja being performed by the first defendant as karnavar is to be worked out in the proceedings for the passing of the final decree.
iv.The plaintiffs are entitled to future mesne profits from the date of suit and its quantum shall be determined in the final decree proceedings on proper accounting by the first defendant.
v. Any one of the parties are entitled to apply for the RFA60/2016 -: 13 :- passing of the final decree and the costs of the suit shall come out of the estate.
The Regular First Appeal is allowed in part. No costs.
Sd/-
V.CHITAMBARESH, JUDGE Sd/-
SATHISH NINAN, JUDGE Sha/270617
-true copy-
PS to Judge