Kerala High Court
Dr.M.S.Hema vs M.S.Anand on 30 January, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 30TH DAY OF JANUARY 2014/10TH MAGHA, 1935
RSA.No. 18 of 2014 ()
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AS.NO. 218/2011 OF ADDL.DISTRICT COURT-II, MAVELIKKARA
OS.NO.48/2010 OF MUNSIFF COURT, MAVELIKKARA
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APPELLANT/APPELLANT/PLAINTIFF:-
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DR.M.S.HEMA,
D/O.LATE SAHASRANAMA IYER,AGED 62 YEARS,
RESIDING AT "SREEVATSAM",
TC.28/1299(SRA - 147), KAILAS NAGAR,
THAKARAPARAMBU ROAD, SREEKANTESWARAM,
TRIVANDRUM - 695 023.
BY ADVS.SRI.ESM.KABEER
SRI.V.SUBRAMANIAN
RESPONDENTS/DEFENDANTS (D1, 3 TO 10):-
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1. M.S.ANAND,
S/O.LATE SAHASRANAMA IYER, AGED 60 YEARS,VALIA MADOM,
KOTTARKAVU, KOTTAKKAKAM, MAVELIKARA.PIN-690 121
2. M.S.RAVI, AGED 32 YEARS,
103, PERUMAL SANNIDHI STREET, GOPALASAMUDRAM,
AMBASAMUDRAM TALUK, TIRUNNEL VELI DT., TAMIL NADU,
PIN - 627 451.
3. M.S.SAHASRANAMAN,AGED 27 YEARS,
103, PERUMAL SANNIDHI STREET, GOPALA-SAMUDRAM,
AMBASAMUDRAM TALUK, TIRUNNELVELI DT., TAMIL NADU,
PIN - 627 451.
4. CHITRA LEKHA, AGED 30 YEARS,
W/O.OMANAKUTTAN, LEKHA NIVAS, MAVELIKARA - 690 101.
5. D.SAVITHA,AGED 30 YEARS,W/O.G.SASIKUMAR,
PADMAVILASM, MAVELIKARA - 690 101.
6. MRS.REENA VARGHESE JOHN,AGED 52 YEARS,
W/O.VARGHESE JOHN, KOCHIKKAL VEETTIL,
MAVELIKARA - 690 101.
sts 2/-
-2-
RSA.NO.18/2014
7. OMANAKUTTAN,AGED 40 YEARS,
S/O.NARAYANAN, LEKHA NIVAS, MAVELIKARA - 690 101.
8. G.SASIKUMAR,AGED 63 YEARS,
S/O.GOVINDAN NAIR, PADMAVILASM, MAVELIKARA - 690 101.
9. VARGHESE JOHN,AGED 54 YEARS,
S/O.JOHN, KOCHIKKAL VEETTIL,
MAVELIKARA - 690 101.
(D2 DIED IN 6TH DAY OF OCTOBER 2012).
R1 BY ADV. SRI.K.S.HARIHARAPUTHRAN,(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 30-01-2014,ALONG WITH R.S.A.NO.97 OF 2014, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
sts
P.BHAVADASAN, J.
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R.S.A. Nos. 18 & 97 of 2014
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Dated this the 30th day of January, 2014
J U D G M E N T
Four suits were jointly tried and disposed of by a common judgment namely O.S. Nos. 48/2010, 120/2010, 32/2009 and 95/2009. After trial, the decree was passed on the following terms:
"78. For the reasons above stated, O.S. 32/2009 is decreed as follows:
1. "ANMLO" line in Ext.C1(a) plan is fixed as the western boundary of the plaint A scheduled property.
2. The plaintiff is granted permission to construct physical boundary at the boundary fixed by this court through the process of this court.
3. The defendant is prohibited by a decree of permanent prohibitory injunction from committing waste in the plaint A scheduled property and from obstructing the plaintiff from enjoying plaint A scheduled property and from obstructing the plaintiff from constructing boundary on the western boundary of the plaint A scheduled property as fixed by this court.
R.S.A. Nos. 18 & 97 of 2014 -2-
4. Ext.C1(a) plan shall form part of decree.
5. The parties shall suffer their respective costs."
The matter was carried in appeal and the appeals were dismissed and so also the counter claims.
2. Shorn off unnecessary details, property admittedly belonged to the Joint Hindu Mithakshara Family of which the father of the plaintiff and defendant was a coparcener and he is said to have executed a Will in favour of the plaintiff in O.S.No.120/2010 and a gift deed in favour of the defendant in the said suit. The issue that raised before the court below was that their father was incompetent to execute a Will as he was a coparcenery member and since there was no partition, he had no definite share and he could not Will away any extent of property as was done by him. The gift was assailed on the same ground.
3. These were the core issues that were agitated before the court below and the fate of the suits depended R.S.A. Nos. 18 & 97 of 2014 -3- upon the determination of two issues; whether the Will is genuine or whether the testator could have executed the Will? Both the courts below found that the testator was competent to execute the Will and also found the Will to be genuine. It is interesting to note that both the courts below found that the gift in favour of the defendant in O.S.No.120/2010 may not be legal. But, since the plaintiff in the suit did not assail that gift deed, it was left untouched. It is interesting to note that while the father transferred the property by way of a Will in favour of the son, he had gifted property in favour of the daughter.
4. The learned counsel appearing for the appellant in both these appeals re-iterated the same contentions as raised by the courts below. According to him, being a coparcenery property, the father could not have executed a will in respect of his share.
5. Though the contention may look attractive, it has to fail for more than one reason. Admittedly, the father died R.S.A. Nos. 18 & 97 of 2014 -4- in the year 2001. Two statute which are relevant on the Hindu Succession Act, 1956 and the Joint Hindu Family (Abolition) Act, 1976 which applies to Kerala only. The Hindu Succession Act provides as per Section 30 that any Hindu may dispose of by Will or disposition of any property which is capable of being so disposed of in accordance with the provisions of the Indian Succession Act. Probably, it could be said that if the joint family was in existence, no definite extent could have been specified in the Will but he should have certainly executed a Will in respect of share he would get as per the provision of the Hindu Succession Act and as per Section 6, at the time of death of the person concerned, his properties devolve as per the provision of the Hindu Succession Act. That means that on the death of the coparcener, as far as his share in the property is concerned, the Hindu Succession Act is applicable and it is that share of the property which is covered by Section 30 to be made a subject matter of the Will. Admittedly, the testator died R.S.A. Nos. 18 & 97 of 2014 -5- after 1956.
6. Apart from the above fact, the Joint Hindu Family (Abolition) Act, 1976 put an end to the joint property in Kerala from the date on which the Act came into force. Thereafter, the joint tenancy stands converted into tenancy in common. If that be so, the testator had definite share in his credit as on the date of commencement of the said Act. Viewed from that angle also, the Will could not be assailed.
7. Both the courts below, on an appreciation of the evidence, have come to the conclusion that the Will has been duly proved and no objection can be taken to the said finding.
The result is that these appeals are without any merits and are liable to be dismissed. I do so.
Sd/-
P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge