Karnataka High Court
N Vasudevan vs N Rajeswari on 29 August, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. No.1244/2010
C/w
R.F.A. No.1245/2010 and R.F.A. No.1246/2010
R.F.A. No.1244/2010
Between :
N. Vasudevan, M.A. Sociology, LL.B.
S/o C.M. Nithyanandam
Aged about 70 years
62, Ramakrishna Mutt Road
Ulsoor, Bangalore-560 008 ... Appellant
(By Sri N Vasudevan (party-in-person))
And :
1. N. Rajeswari
W/o C.M. Nithyanandam
Aged about 83 years
Old No.22, Bowring Hospital Road,
Bangalore - 560 001
2. V.Ravi
S/o Vijayaraghavan
Aged about 45 years
Old No.22, Bowring Hospital Road,
Bangalore - 560 001
3. Krishna,
Old No.22, Bowring Hospital Road,
Bangalore - 560 001
2
4. Nagaraj
Old No.22, Bowring Hospital Road,
Bangalore - 560 001
... Respondents
(By Sri H.R. Ananthakrishna Murthy, Adv. for C/R-2)
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated 17.04.2010, passed in
OS.No.10427/1992, on the file of the XXVIII Addl. City Civil
Judge, Mayo Hall, Bangalore, dismissing the suit for
declaration and permanent injunction.
R.F.A. No.1245/2010
Between :
N. Vasudevan, M.A. Sociology, LL.B.
S/o C.M. Nithyanandam
Aged about 70 years
62, Ramakrishna Mutt Road
Ulsoor, Bangalore-560 008 ... Appellant
(By Sri N Vasudevan (party-in-person))
And :
1. N.Muthukrishnan
Aged about 69 years
S/o C.M. Nithyanandam
2. N. Vijayaraghavan
Aged about 66 years
S/o C.M. Nithyanandam
3. N. Rajeswari
W/o C.M. Nithyanandam
Aged about 83 years
4. T. Padmini
D/o C.M. Nithyanandam
Aged about 62 years
3
5. V.Ravi
S/o Vijayaraghavan
Aged about 45 years
Respondents No. 1 to 3 represented by their
P.A. Holder V. Ravi, 21 Hospital Road
Bangalore - 560 001
6. N. Loganathan
Aged about 60 years
S/o C.M. Nithyanandam
C/o Advocate Sundaramurthy
Infantry Road
Bangalore - 560 001
7. Abdul Rashid M
Major, S/o Shaik Mohiddin
299, Thimmaiah Road
Bangalore - 560 051 .. Respondents
(By Sri H.R. Ananthakrishna Murthy, Adv. for C/R-5
Sri P Venkataramana, Adv. for R7)
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated 17.04.2010, passed in
OS.No.10315/1993 on the file of the XXVIII Addl. City Civil
Judge, Mayo Hall, Bangalore, decreeing the suit for partition
and separate possession and the appellant herein, prays to
set-aside the above judgment & decree in O.S.10315/1993
with costs.
R.F.A. No.1246/2010
Between :
N. Vasudevan, M.A. Sociology, LL.B.
S/o C.M. Nithyanandam
Aged about 70 years
62, Ramakrishna Mutt Road
Ulsoor, Bangalore-560 008 ... Appellant
(By Sri N Vasudevan (party-in-person))
4
And :
1. N. Rajeswari
W/o C.M. Nithyanandam
Aged about 83 years
Old No.22, Bowring Hospital Road,
Bangalore - 560 001
2. P.N.Balasundaram
Died by LRs Yashoda wife,
Yathiraj son
Triveni daughter, all majors
3. Dhanakoti,
Aged about 75 years
4. Nanjunda
S/o Narasappa
Aged about 78 years
5. Ranganathan,
S/o Varadaraj,
Aged about 73 years
Respondents No. 2 to 5 at No. 44,
Ramakrishna Mutt Road,
Ulsoor, Bangalore - 560 008
... Respondents
(By Sri H.R. Ananthakrishna Murthy, Adv. for R-1)
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated 17.04.2010, passed in
OS.No.10939/1993, on the file of the XXVIII Addl. City Civil
Judge, Mayo Hall, Bangalore, partly decreeing the suit for
permanent injunction and dismissing the suit against the
declaration prayed by the plaintiff-3 therein and dismissing
the suit against the permanent injunction regarding
restraining the defendants from alienating suit properties,
etc.
These appeals having been reserved for judgment,
coming on for pronouncement this day, the Court
pronounced the following :
5
JUDGMENT
The appellant in RFA No.1244/2010 is the plaintiff in O.S.No.10427/1992. He is also the first defendant in O.S.No.10315/1993 and accordingly he is again the appellant in RFA No.1245/2010. The Court below had clubbed both the said suits and by a common judgment and separate decree dated 17.04.2010 has dismissed the suit in O.S.No.10427/1992 and decreed the suit in O.S.No.10315/1993. The appellant therefore claiming to be aggrieved by the same is before this Court in these appeals. Since these appeals arise out of the common judgment, they are taken up together, considered and disposed of by this common judgment. The suit in O.S. No.10939/1993 is also filed by Sri N.Vasudevan and since the issue arising therein is similar to the issue arising in O.S.No.10427/1992 except that the schedule property is different, the appeal arising therefrom in RFA No.1246/2010 is also taken up for consideration 6 along the aforesaid appeals and disposed in this common judgment.
2. For the purpose of convenience and clarity, the names and relationship of the parties needs to be noticed at the outset so that they could be referred by their names as they are ranked differently in the different suits and the appeals arising therefrom. The appellant in all the appeals is Sri N. Vasudevan. His mother is Smt. Rajeswariammal @ Rajeshwari N. Her father i.e., the maternal grandfather of Sri N. Vasudevan is late A.Krishnarathna Mudaliar. Sriyuths N. Muthukrishnan, N. Loganathan, N. Vijayaraghavan and Smt. T. Padmini are the brothers and sister of Sri N. Vasudevan, being the children of late C.M. Nityanandan and Smt. Rajeswariammal. Sri V. Ravi is the nephew of Sri N. Vasudevan, being the son of his brother Sri N.Vijayaraghavan.
3. The property bearing No.22A (New Nos.17 to
21), Bowring Hospital Road, Bangalore, is the schedule property in O.S.No.10427/1992 filed by 7 Sri N.Vasudevan. The said property is also the Schedule 'A' property in O.S.No.10315/1993, but limiting to its 1/3rd extent. The said property in its entirety belonged to late C.M. Nityanandan and his brothers Sri Balakrishnan and Sri Thirunayanam who partitioned it at 1/3rd share each. The 2/3rd share which fell to the two brothers share was purchased by late A.Krishnarathna Mudaliar while the remaining one- third continued with late C.M.Nityanandan. Hence, the entire property remained with the family of the parties herein. In addition to the said 2/3rd share in the property bearing No.22A, Hospital Road, Bangalore, the said late Krishnarathna Mudaliar owned several other items of property.
4. The suit in O.S.No.10939/1993 was filed by Sri N. Vasudevan seeking for declaration that the WILL does not confer the right of alienation to his mother Smt. Rajeshwariammal and to declare the sale deed in favour of defendants No. 2 to 5 are not binding on the plaintiff and that they have no right to close the 8 passages between property Nos.42 and 44, Ramakrishna Mutt Road. Among the said properties, the property No.44 Ramakrishna Mutt Road is in 'A' Schedule-1 to the WILL, while property No.42 (New No.62), Ramakrishna Mutt Road, is in the 'B' Schedule- 1 to the WILL. Since the issue relates to the right under the WILL, the appeal in RFA No.1246/2010 arising from the said suit is also taken up for consideration together.
5. The facts that would be relevant for all the appeals is that Late Krishnarathna Mudaliar during his lifetime executed a WILL dated 01.01.1945 and he later died on 20.04.1945. The father, C.M. Nityanandan died on 13.09.1961. Hence, the nature of right to enjoy the said properties which forms the subject matter of the WILL is the dispute between the parties. However, the fact of the WILL dated 01.01.1945 being executed by late Krishnarathna Mudaliar, the validity and bequest made in favour of Smt. Rajeswariammal under the WILL is not in dispute. But the nature of the bequest and the 9 extent to which Smt. Rajeswariammal could have exercised right over the properties and the intention of the Testator are the seriously disputed questions.
6. The case of Sri N. Vasudevan as plaintiff in O.S.No.10427/1992 and O.S. No.10939/1993 as also his defence in O.S.No.10315/1993 as defendant is that the intention of the Testator is very clear that Smt. Rajeswariammal is given life interest in all the properties indicated in the WILL dated 01.01.1945. She could only enjoy the properties during her life time but she was not entitled to part with the property. Hence, it is his case that she could not have dealt with the property as if she was the absolute owner. Sri N. Vasudevan has made detailed reference to the effort put in by him for the benefit of the family, yet differences had arisen from 17.07.1967 when his mother was acting in a manner which was detrimental to the interest of the family. The beedi business was taken away from him on 28.07.1968 and the properties which were the subject matter of the WILL were settled in 10 favour of the other children in 1982 and insofar as the suit schedule property, the grievance is about the gift deed dated 27.06.1988 executed in favour of Sri V. Ravi, his nephew. The manner he had knowledge of the same in view of a paper notification dated 17.06.1990 is referred. The grievance is that Sri N. Vasudevan alone has been excluded from succeeding to the properties which was acquired by his grandfather though it was never the intention of his grandfather. He has therefore sought for a declaration that the WILL dated 01.01.1945 did not confer on Smt. Rajeswariammal any right of alienation by way of sale, mortgage, lease and gift to anyone and also for injunction.
7. In response to the suit summons, Smt. Rajeswariammal has appeared and filed detailed written statement. The allegations made against her are denied. The sum and substance of the defence however is that the manner in which her father acquired the property, executed the WILL dated 01.01.1945 and that he died on 20.04.1945 are not disputed. The contention 11 insofar as the suit schedule property is that even though the right of alienation to third parties is not given under the WILL in respect 'B' Schedule-1 properties, she was entitled to divide and distribute the WILL subject 'B' Schedule-1 properties to any of her children and grandchildren as per her choice. The settlement made as well as the Gift Deed dated 27.06.1988 is as per what is permissible under the WILL and as such Sri.N.Vasudevan cannot have any grievance whatsoever. It is contended that Sri V. Ravi is thereafter exercising ownership right over the property and as such, no grievance can be made with regard to the same.
8. The rival contentions in the partition suit is also to the same effect but the partition sought therein is in respect of the 1/3rd portion of the said property No.22A, Hospital Road, Bangalore, and the other properties shown in 'B' schedule being the properties which were owned by late C.M. Nityanandan i.e., the father of Sri N. Vasudevan. In respect of the properties 12 which belonged to late C.M. Nityanandan, it is contended that the share to which Sri N. Loganathan, one of the sons was entitled to, he has executed a release deed in favour of Smt. Rajeswariammal. Hence, the shares were sought accordingly.
9. The Court below had framed issues separately in the three suits which read as hereunder: O.S.No.10427/1992
1. Does the plaintiff prove under Will dated 1.1.1945 left by his maternal grand father that defendant No.1 his mother was not given power to alienate by sale, mortgage, lease or gift in respect of suit schedule property in favour of defendant No.2?
2. Does the plaintiff prove the gift dated 28.7.68 by defendant No.1 to defendant No.2 is illegal as it contravened the direction in the Will dated 1.1.45?
3. Does defendant No.1 prove her absolute right to alienate under the Will?13
4. What is the correct valuation of the suit property and what is the correct court fee payable?
5. Whether the plaintiff prove his right for a declaration and a permanent injunction?
6. To what reliefs the parties are entitled? O.S.No.10315/1993
1. Whether the plaintiffs prove that Krishnarathnam, maternal grand father of plaintiffs 1, 2 and 4 purchased 2/3rd share of property in Old No.22/A, New No.17 to 22, Bowring Hospital road, ie. the A schedule property?
2. Whether the plaintiffs prove that Krishnarathnam executed a Will dated.1.1.1945 while in sound disposing state of mind and body confirming rights on plaintiff No.3?
3. Whether the plaintiffs prove that on
10.4.92 N.Loganathan and others have executed a deed of relinquishment in respect of their 1/18th share in A schedule property in 14 favour of plaintiff No.3 Rajeshwari as contended in para 6 of the plaint?
4. Whether the 3rd plaintiff has gifted certain portion in A schedule to plaintiff No.5 and thus each of the plaintiff are entitled to 1/3rd share each in A schedule property?
5. Whether the plaintiffs prove that the plaintiffs and defendant No.1 are entitled to their share as narrated in para 11 of the plaint in the suit property?
6. Whether the plaintiffs are entitled to the relief sought for?
7. What order or decree?
Addl. Issues
1. Whether defendant No.1 proves that the sale deed executed by the plaintiff No.3, his mother and others is null and void and not binding on him?
2. Whether the defendant No.1 proves that by virtue of construction of house on Wilson garden site No.1 for plaintiff No.4, 15 as per plaintiff No.3's understanding, plaintiff No.4 has no share in the suit properties ? " O.S.No.10939/1993
1) Whether the plaintiff proves under the will dated 1.1.1945 the first defendant does not get any right of alienation by way of sale, mortgage, lease, etc. in respect of the suit properties?
2) Whether the plaintiff further proves that the alleged sales made in favour of
defendants 2 to 5 are not binding on him?
3) Whether the plaintiff further proves that the defendants 1 and 2 have closed the passage between No.42 and No.44, Ramakrishna Mutt Road? 4) Whether the plaintiff further proves that
the defendants are attempting to waste or encumber the suit properties?
5) Whether the plaintiff proves the alleged interference by the defendants with his possession and enjoyment of the suit property? If so, does he entitled to the relief of permanent injunction?16
6) Whether the plaintiff proves that the first defendant be directed to pay the taxes for the period from 1986-1994 as prayed?
7) Whether the suit filed by the plaintiffs is not maintainable in law?
8) Whether the suit property is properly valued and the court fee paid is sufficient?
9) Whether the plaintiff is entitled to the reliefs sought for?
10) What order or decree?
10. In order to discharge the burden cast on the parties, Sri N. Vasudevan examined himself as P.W.1 in O.S.No.10427/1992 and O.S.No.10939/1993 and as D.W.2 in O.S.No.10315/1993 and relied upon documents at Exhs.D1 to D356. Sri V. Ravi examined himself as P.W.1 in O.S.No.10315/1993 and treated the same as defence in O.S.No.10427/1992 and relied upon the documents at Exhs.P1 to P24. Sri M. Abdul Rasheed was examined as D.W.1 in O.S.No.10315/1993. No defence evidence was recorded in O.S.No.10939/1993.17
11. Heard Sri N. Vasudevan, who appeared as party-in-person and Sri H.R. Ananthakrishnamurthy, learned counsel for the other family members of Sri N. Vasudevan, and the other defendants who have opposed his case as contesting parties.
12. Though they have been heard elaborately, it is not in dispute that the entire basis of the case would be the construction and the understanding of the contents of the WILL dated 01.01.1945 from the view point of the Testator. Sri.N.Vasudevan and the learned counsel for the contesting parties have also indicated that though evidence has been tendered before the Court below, since the execution of the WILL is admitted by all the parties, the construction of the WILL in itself will decide the right of the parties. The Tamil version of the WILL is marked as Ex.P6 and its English translation is marked as Ex.P6(a). There is no dispute between the parties that the English version is the true and correct translation of the Tamil version and both the parties have relied on the same translated version before me to 18 refer to the Clauses contained therein. Since Ex.P6(a) i.e., WILL dated 01.01.1945 is the sheet anchor of the case, I deem it appropriate to extract it hereinbelow for easy reference and better understanding of the relevant clause in the background of entire purport of the WILL having to be taken into consideration.
13. The WILL dated 01.01.945 (Exhs.6 and 6(a) reads as hereunder:
"I, A. KRISHNARATHNA MUDALIAR, son of ARANI GOVINDARAJI MUDALIAR, residing at No.42, Ramakrishna Mutt Road, Ulsoor, Bangalore Cantonment, out of my own free WILL, with sound state of mind and knowledge, make this WILL and TESTAMENT, this Monday, the 1st day of January, 1945.
a. Out of my hard labour (KASHTARGIDHAMAI) I have earned the immovable and the movable properties, mentioned hereunder, and, only I rule (ANDU) and enjoy (ANUBHAVITHU) them, with full freedom.19
b. Therefore, except myself, none else has any right, in the immovable and the movable properties mentioned hereunder.
c. Since I have no male issue, I distributed the immovable, the movable properties and the Beedi Business, with the Trade Mark and Good Will in C.S. Manicka Mudaliar and sons, in the following manner, I write this WILL AND VOLITION, and shall come into effect after my demise.
d. PARTICULARS OF MY OWN IMMOVABLE PROPERTIES TO BE DISTRIBUTED:-
1. Ulsoor, Ramakrishna Mutt Road, No.9, house and back yard,
2. - do- Road, No.40, house and back yard,
3. - do- Road, No.41, house and back yard,
4. - do- Road, No.42, house and back yard,
5. Ulsoor, Ramakrishna Mutt Road Cross, Dhoby Ghat Road, No.44 houses, garges vacant lands, well, coconut trees, and other things in the compound.
6. Two thirds of bungalow, No.22A, Hospital Road, Bangalore, Cantonment, with back yard, bread bakery, upstair, vacant land and other things.20
7. Usufructury Mortgage Deed of house with well, garage, with well, platform vacant land, and other things, in Municipal Door No.4-5, L.No.4th Street, Meenakashi Koli Street Cross, Bangalore Cantonment.
8. Eight plots purchased in auction, bearing Nos.
1, 71, 78, 91, 163, 167, 168, 169 at Wilsongarden Extension, Bangalore City.
9. Mortgage Deed, relating to house, bearing Municipal No. 9/263, Hosur Namal Street, Hosur Taluk, Salem District.
e. PARTICULARS OF MY OWN MOVABLE
PROPERTIES TO BE DISTRIBUTED:-
xxxxxxxxxxxx
xxxxxxxxxxxx
f. PARTICULARS OF MY OWN BEEDI BUSINESS
TO BE DISTRIBUTED:-
g. On the 3rd day of October, 1932, for cash consideration, I purchased C.S. Manicka Mudaliar and Sons, Beedi Business (Registered on the 18th October, 1932; Registered No.29, IV, 36, paged 67 to 69) with trade mark, Good Will, and other things, and from that date, only I have been running the said Business and 21 only I RULE AND ENJOY the Beedi Business, with full FREEDOM.
h. I HAVE WRITTEN, THE IMMOVABLE, THE MOVABLE PROPERTIES AND THE BEEDI BUSINESS, MENTIONED ABOVE, IN THREE SCHEDULES, A, B, C AND THE RESPECTIVE NAMES, THE MODE AND MANNER OF RULING AND ENJOYMENT OF RESPECTIVE SCHEDULES BY THE PERSONS CONCERNED.
i. "A" SCHEDULE 1: PARTICULARS OF IMMOVABLE PROPERTIES:-
Ulsoor, Ramakrishna Mutt Road, Cross, Dhoby Ghat Road, No.44, Houses, Garages, vacant lands, well, coconut trees, other things in the compound.
j. "A" SCHEDULE 2: PARTICULARS OF
MOVABLE PROPERTIES:-
One pair of ruby earrings, one gold chain formed by three chains, one original pearl ear lobe, one pair of solid gold golusu for hand, one pair of solid gold wristlets, two pairs of gold bangles.22
k. THAYARAMMAL, younger sister of my deceased first wife Kamalammal, also wife of my deceased younger brother A. Natesa Mudaliar, is only entitled to enjoy as she pleases the balance amount, after paying the Municipal Taxes, meeting the costs of repairs, and other things, from out of the rents and usufructs from the coconut trees from the above mentioned "A Schedule Immovable properties"; except this, for any reason, she has no any right to gift away or transfer to any one of the above mentioned properties.
l. But, the aforesaid Thayarammal, has the full right to gift away, rule and enjoy the movable properties, mentioned above in A Schedule 2.
m. After the demise of the aforesaid Thayarammal, Sow Rajeswariammal alias Kuttiammal, daughter of my deceased second wife, has the full right to gift away, rule and enjoy the immovable properties, mentioned in "A Schedule 1"
and the movable properties, if any left by the aforesaid Thayarammal, mentioned in "A Schedule 2".
23
n. "B" SCHEDULE 1: PARTICULARS OF IMMOVABLE PROPERTIES:-
Ulsoor, Ramakrishna Mutt Road, 9, house and back yard,
-do- Road, 40, house and back yard,
-do- Road, 41, house and back yard,
-do- Road, 42, house and back yard, Two thirds of Bungalow, No.22A, Hospital Road, Bangalore Cantonment, with back yard, bread bakery, upstair, vacant land and other things.
Usufructury mortgage deed of house with well, garage with well, platform, vacant land, and other things, Municipal door No.4-5, L. No.4th Street, Meenakshi Koil Street Cross, Bangalore Cantonment.
Eight plots, purchased in auction, bearing Nos.1, 71, 78, 91, 163, 167, 168, 169 at Wilson Garden Extension, Bangalore City. Mortgage Deed, relating to house, bearing Municipal No.9/263, Hosur Namal Street, Hosur Taluk, Salem District.
24O. "B" SCHEDULE 2: PARTICULARS OF MOVABLE PROPERTIES:-
Five pairs of gold bangles, one gold chain formed by three chains, one pair of thin gold golusu, one gold hair tail and pendent (kucchi kuppi), gold dollar, one single gold chain, two pairs of small sized gold bangles, one curved gold gajjai, one belt, one pair diamond earring, one pair of single diamond nose screw, one pendant with three stones diamond, four rings studded with stone, one pair of imitation white stone ear lobe, one white green red stoned hair screw (ucchi bhillai), one white stoned hair screw (thirugu bhillai), two pairs of silver vessel curri cups, one pair of big silver tumblers, one silver oil cup, one set of silver Pooja articles, one big black wood almirah with mirror, one small black wood almirah with mirror, one black wood cot, one black wood almirah, one gramaphone, one pair of black wood chair, one leg harmonium, two harmoniums.
p. 11 the movable properties, mentioned in "B Schedule 2" here given to Sow Rajeswariammal alias Kuttiammal, daughter of my second wife, at the time of her marriage, as stridhana.
25q. Again she brought back, all the above mentioned movables, to my house, when she came over to my house, along with her husband.
r. From that time, she has been staying in my house, with her husband, till today.
s. Therefore, Rajeswariammal alias Kuttiammal, daughter of my deceased second wife, has the full right to gift away, rule and enjoy the above mentioned movable properties, and also the remaining movable properties found in the house no.42, Ramakrishna Mutt Road, Ulsoor, where I live, excepting movable properties given to Thayarammal, as mentioned in A Schedule 2.
t. Rajeshwariammal alias Kuttiammal, has only right to expend, as she pleases the balance amount after paying the Municipal taxes, meeting the costs of repairs and other things, form out of the rents, from the immovable properties mentioned above, in B Schedule 1; she has no right to gift away or transfer to any one, in any manner, the above mentioned immovable properties.
26u. But, when she feels, whensoever she pleases, she has the right to divide, the above mentioned immovable properties to her male/female issues, or her children's male/female issues; and they have the full right to gift away, rule and enjoy the same.
v. In case, by the Will of God, the aforesaid Rajeswariammal alias Kuttiammal dies without dividing and handing over the above mentioned immovable and movable properties to her issues or to the issues of her issues or without writing a will, her male and female issues only shall be entitled for equal shares, in the above mentioned immovable properties and the movable properties form out of the B Schedule left by her and they have the full right, to gift away, rule and enjoy the same; none else has any right in or over the same.
w. "C" SCHEDULE: On the 3rd day of October, 1932 for cash consideration, I purchased C.S. Manicka Mudaliar and Sons Beedi Business, Registered on the 18th October, 1932, Registered No.29, IV, 36 pages 67 to 69, with 27 Trade Mark, Good Will and other things from that date, only I have been running the said Business, and only I rule and enjoy the Beedi Business, with full freedom.
x. Therefore, this Beedi Business, as above mentioned, in "C Schedule" Beedi Business, Rajeswariammal, alias Kuttiammal daughter of my deceased second wife, shall take over this Beedi Business, with its name, C.S. Manicka Mudaliar and Sons, Good Will Trade Mark and other things, and run the Business; she has the only right, to expend, as she pleases the incomes from it; she has no right to gift away or transfer to any one, in any manner, the above mentioned Business.
y. But, when she feels, whensoever she pleases, she has the right to hand over the above Beedi Business, mentioned in "C Schedule", Good Will, Trade Mark, and other things to any one of her sons; and he has the full right to gift away rule and enjoy the same.
z. In case, by the Will of God, the aforesaid Rajeswariammal alias Kuttiammal dies without handing over the Beedi Business to any one of her sons, or, without writing a Will, only her male issues, shall be entitled for the 28 above mentioned Beedi Business, to be partitioned among themselves, in equal shares, and they have the full right, to gift away, rule and enjoy the same; none else has any right in or over the same.
As my finger in the right hand is shaking due to nervous debility (Writer's Cramp) instead of signing this WILL, I am affixing my Left Thumb Impression, in the presence of witnesses. In this manner I have made this WILL and TESTAMENT, out of my own free WILL with a sound state of mind and knowledge, in the presence of witnesses, is true. L.T.M. of A.Krishnaratna Mudaliar, Identified by V.Kuppuswami.
Hand written by:- V.Kuppuswamy WITNESSES:-
1. V.R.Ponnaswamy Moodaliyar, Retired Superintendent, Camp Office, Mysore State, Bangalore.
2. K.Rajoo Mudaliar, Instructor, School of Engineering, Bangalore.
3. V.P.Gopal Mudaliar, Instructor, School of Engineering, Bangalore.
Sd/-
Z.A.Sheriff, Sub-Registrar "
(emphasis to the relevant Clauses is supplied) 29
14. Before embarking upon the exercise of construction of the WILL which is the subject matter in this proceedings, it is necessary to notice the rival contention put forth for providing guidance to this Court in the matter of Rules of construction of the WILL. Sri N. Vasudevan has referred to the commentary on Law of WILLS by Sri T.P. Gopalakrishnan with specific reference to the 'Arm-chair doctrine', the substance of which is that the interpreter is entitled to sit in the Testator's arm-chair and consider the circumstances in which the Testator made the WILL. The surrounding circumstance though can be considered, the correct course is to first construe the WILL itself. If the meaning is clear, then surrounding circumstances cannot be looked into for throwing a doubt. The peculiar conditions prevailing in India, such as peculiar customs and practices are relevant in construing the WILL. It is in that regard, Sri N. Vasudevan has referred to in detail with regard to the overall personality of his grandfather and the love 30 and affection he had for him as he was the only child at that point and his intention could never have been to exclude him. He has also placed reliance on the decision of the Hon'ble Supreme Court in the case of Kaivelikkal Ambunhi (dead) by LRs. and others -Vs- H.Ganesh Bhandary (AIR 1995 SC 2491) wherein it is held as follows:
"3. The Rules of interpretation of the "Will" are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of "Will", the testator can always change his mind and create another interest in place of the bequest already made 31 in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails."
15. On the other hand Sri H.R.Ananthakrishna Murthy, learned counsel for the contesting parties has also referred to the commentary on Law of WILLS and has referred to Chapter 27 wherein it is stated that the duty of the Court is only to ascertain the intentions of the Testator. The guide to interpret the WILL is the WILL itself and his intentions have to be gathered from the language of the WILL. The rules of construction provide uniform methods without which Courts may be arbitrary in the decision. The learned counsel has relied on the decision of the Hon'ble Supreme Court in the case of Gnanmbal Ammal -vs- T. Raju Ayyar (AIR (38) 1951 SC 103) wherein it is held that the cardinal maxim to be observed by Courts in construing a WILL is to endeavour to ascertain the intentions of the Testator. That intention has to be gathered primarily from the language of the document as a whole without indulging in any conjecture or speculation. It also says surrounding circumstance should be kept in view. The 32 decision in the case of N. Kasturi -vs- D. Ponnammal and others (AIR 1961 SC 1302) is also relied upon, wherein it is held that a Court cannot embark on the task of construing a WILL with a preconceived notion that intestacy must be avoided. The intention of the Testator and the effect of dispositions contained in the WILL must be decided by construing the WILL as a whole and giving plain grammatical meaning to the relevant clauses in the WILL by considering together.
16. Sri.N.Vasudevan has relied on Ex.D. series which is voluminous, to indicate the manner in which family relations were existing; the sacrifice made by him for the family; the manner in which his brothers betrayed him and the attitude of his mother, to contend that his mother has caused injustice to him, despite she not having absolute right over the property. Notwithstanding the same, the rules for construction has been noticed above and as such, it is unnecessary to refer to the other documents in detail unless it becomes necessary at a later stage. Keeping this aspect 33 in view, the WILL itself has to be noticed and only if the intention cannot be gathered from the same, the surrounding circumstances would arise. In that regard, Late A.Krishnarathna Mudaliar in his WILL has at the outset stated that he is distributing the immovable, movable assets and Beedi Business since he has no male issues. All his properties have been listed in the WILL. Since in the instant suits, the concern is only with regard to the immovable properties, the manner in which it has been dealt with by the Testator is to be noticed. One of the properties i.e., No.44, Ramakrishna Mutt Road, Ulsoor with houses, Garages etc. has been shown as 'A' Schedule-1 property and all other immovable properties have been shown as 'B' Schedule -1 properties. The Testator has expressed different intentions with regard to the said 'A' and 'B' Schedule -1 properties.
17. Late Thayarammal is the younger sister of the Testator's first wife and she was also the wife of the Testator's younger brother who was deceased. The 'A' 34 Schedule -1 property was bequeathed to the said Thayarammal to enjoy the same during her life time. She was not given any right to gift away or transfer the same to anyone. After the demise of Thayarammal, the said 'A' Schedule-1 property was to devolve upon Smt.Rajeswariammal i.e., the mother of Sri.N.Vasudevan. Clause 'm' in the translated version at Ex P-6 (a) indicates that she would have full right to gift away, rule and enjoy the property.
18. The provision made with regard to the immovable properties in 'B' Schedule -1 is contained in clause 't', 'u' and 'v' of the translated version. Vide clause 't', Smt.Rajeswariammal has the right to expend the amount earned from the properties therein which was left over after paying Municipal taxes; meeting the costs of repairs and such other expenses. But, she has been refrained from gifting away or transferring 'B' Schedule-1 properties to any one in any manner. Vide clause 'u' an exception has been made by permitting her to divide the said 'B' Schedule - 1 immovable 35 properties to her male/female issues or her children's male/female issues when she pleases and thereafter they would have the full right to enjoy or gift away the same. Vide clause 'v', provision has been made for dividing it equally among the male and female issues of Smt.Rajeswariammal if she does not divide and hand over in the manner indicated in clause 'u' during her lifetime. The relevant clauses noticed above are highlighted in extracted portion of the WILL. Hence, the true purport of the WILL has to be deduced from what is contained therein, which is noticed above.
19. Firstly, insofar as 'A' Schedule-1 immovable property, there can be no doubt whatsoever that the Testator has granted life interest to Late Thayarammal and after her death, it has vested absolutely in Smt. Rajeswariammal and the Testator has expressly indicated that she would have the right to rule, enjoy and gift away the property. Therefore, insofar as 'A' Schedule -1 property, there is no ambiguity whatsoever as it does not need any interpretation nor is there any 36 need to gather the intention when it is unambiguous in the contents itself. No other extrinsic material, even the statement said to have been made before the Wealth Tax authorities (Exhs.D-139 to D-143) could take away the intention of the Testator which is manifest on the face of the WILL.
20. That takes me to consider the contents of clauses 't', 'u' and 'v' which relates to 'B' Schedule-1 immovable properties. The said clauses should be considered conjunctively so as to deduce the true purport of the intention of the Testator and one cannot be divorced from the other. Here again, it is to be stated that the reference made by the learned counsel to the cross- examination of Sri.N.Vasudevan at page Nos. 137 and 138 of the L.C.R. to state that he has admitted the right of his mother cannot be taken out of context when it has been his case throughout about she having no right. Though the decision in the case of Narayan Bhagawantrao Gosavi Balajiwale -vs- Gopal Vinayak Gosavi (AIR 1960 SC 100) is relied regarding admission, the same cannot be held against the 37 contents of a document, more particularly the WILL which is a solemn document. An admission cannot take away the intention of the Testator. Even otherwise, the admission is only to the effect that it is true that she had the right to divide the properties and allot any of the properties of her choice. Hence, the document itself would be the guide as emphasised in the decisions referred to above.
21. At the outset, when different provision is made for 'A' Schedule-1 property and 'B' Schedule-1 property, it would be clear that the same right and independence given to Smt.Rajeswariammal in respect of 'A' Schedule-1 property is not given in respect of 'B' Schedule-1 property as the bequest made thereto is coupled with restrictions and the primary bequest in both the cases is life interest and the secondary bequest is absolute. Though Smt.Rajeswariammal has been given the right to divide the said immovable properties in 'B' Schedule-1 when she pleases as provided under clause 'u', the extent to which such right and pleasure 38 can be exercised needs to be understood by appropriately construing the WILL by gathering the intention of the Testator.
22. From the guidelines noticed above, it is clear that the first attempt should be by keeping the WILL itself as the guide and it should be construed as a whole by giving plain grammatical meaning to the relevant clauses. Thus, in the instant WILL, it is clear that the Testator Late.Krishnarathna Mudaliar has made two different type of bequests in respect of 'A' Schedule-1, and 'B' Schedule-1. While creating 'A' Schedule-1, he has kept only one item of immovable property under that schedule. However, in 'B' Schedule 1, he has kept all the other remaining items of immovable properties therein which are several items of property. That itself is the first indicator that he was clear that it would have to be divided to several persons. Insofar as 'A' Schedule
- 1 property, the bequest made is life interest to late Thayarammal and thereafter the absolute right to Smt.Rajeswariammal. Similarly in respect of 'B' 39 Schedule - 1 property, where all the other remaining several items of immovable properties have been grouped, firstly the bequest made is life interest to Smt.Rajeswariammal as there is a clear restriction against gifting away or transferring to anyone and by clause 'v' the bequest made after her lifetime is to her male and female issues only in equal shares and they have thereafter been given absolute right. That would be so if she had not divided it during her lifetime as per the liberty given by the Testator as per Clause 'u'. Hence, the overall intention of the Testator is clear that 'A' Schedule-1 property will go absolutely to Smt. Rajeswariammal and 'B' Schedule -1 property should absolutely go to the children or grand children of Smt.Rajeswariammal i.e. grand children or great grand children of the Testator.
23. Hence, keeping this intention of the Testator in the background, the extent of discretion that could have been exercised by Smt.Rajeswariammal while exercising the right under clause 'u' is to be understood 40 by gathering the true intent. Hence, it would be appropriate to extract clause 'u' once again for easy reference;
" (u) But, when she feels, whensoever she pleases, she has the right to divide, the above mentioned immovable properties to her male/female issues, or her children's male/female issues; and they have the full right to gift away, rule and enjoy the same."
(emphasis supplied)
24. The perusal of Clause 'u' would indicate that from the time the WILL comes into effect and before the demise of Smt. Rajeswariammal, it was open for her to divide the property in the manner stated therein. The question therefore is whether such exception indicated by the Testator would entitle Smt. Rajeswariammal to deny the right to enjoy the property belonging to the grandfather to any one or more of her children? While considering this aspect, there can be no doubt that if it was the self acquired property of Smt. Rajeswariammal and if it was she who was bequeathing the properties under a WILL, she certainly would have been entitled to 41 disinherit any one or more of her heirs and in such case, there can be no construction with preconceived notion to avoid intestacy as indicated in the cited decision. But in the instant case, as noticed, the properties belonged to her father who made provisions in respect of the different properties in different manner and the bequest indicated is because the Testator had no male issues. Further as noticed from Clause 'v', the property was to be shared equally by her male and female issues, if she had not divided it during her lifetime. This she could have also carried out by executing a WILL as well.
25. Hence, what is permitted under Clause 'v' is to divide the property among her male/female issues or her children's male/female issues whenever she pleases during her lifetime. The said Clause does not give her the right to deny the property to any one or more male/female issues since what is intended is to is divide which would mean to distribute to all her issues. Further, though the said Clause uses the word 42 'manampol' it does not indicate that she could divide it in the manner to exclude any of the issues by taking a whimsical decision, but the pleasure permitted is only to choose whether she wants to divide it or retain as it is and the discretion to decide which property should go to which of the issues is also available to her which is the intention of the word 'manampol'. Further, while permitting such division firstly to her male/female issues and to her children's male/female issues, the word employed is "or" which would indicate that the effect of the division should be to the benefit of the branch of her male/female issues i.e., to given it to her issues or to their issues, but not to go on making multiple allotments. The intention that it should go to all her issues is also clear from the fact that as already noticed, larger number of items of properties have been placed in 'B' Schedule-1 and the provision relating to division has been made only in respect of 'B' Schedule-1 properties, while on the other hand only one item of property is placed in 'A' Schedule-1 and the same had been granted absolutely to Smt. Rajeswariammal after 43 the lifetime of Thayarammal. That means the Testator was categorical in his intention that one big property was meant absolutely for Smt. Rajeswariammal and all other properties should go more or less in equal proportion to the children, but she had the right to decide which property should go to whom. Furthermore, the duty enjoined upon Smt. Rajeswariammal insofar as 'B' Schedule-1 properties was almost in the nature of an executor to carryout the wishes of the Testator. Hence, at that stage in the year 1945, there was no reason whatsoever for the Testator himself to exclude any of his grandchildren from succeeding to his self acquired properties and as such, what was not the intention of the Testator cannot be put into action by Smt. Rajeswariammal, more particularly excluding only one of her sons with a vengeance.
26. Hence, on construing the WILL in its entirety, it would be clear that insofar as 'A' Schedule-1 property in the WILL, Smt. Rajeswariammal could deal with the same in the manner she likes without any 44 hindrance. However, insofar as 'B' Schedule-1 property, though she had been given the right to divide the same during her lifetime or by executing the WILL, the same could have been done by keeping in view the interest of all her male/female children without excluding any one or more of them. Hence, even if a WILL was contemplated by her as stated in Clause ' v ', it would have been valid only if provision was made to all the children. However, insofar as assigning the properties to each one of them from the different properties indicated in 'B' Schedule-1, she could have chosen to divide in a convenient manner by assigning a particular item of property as desired by her to a particular issue or their issues as she was also given the liberty to write a WILL in that direction, but certainly she could not have excluded any one or more of her issues.
27. Though I have arrived at the above conclusion, the question which arises for consideration is as to whether the relief in the manner as sought in the respective suits could be granted in the suits filed by Sri N. Vasudevan? In that regard, the learned 45 counsel for the contesting parties would contend that the instant suits in O.S.No.10427/1992 and O.S.No.10939/1993 would be barred by Res Judicata. In that regard, it is contended that Sri N. Vasudevan at an earlier instance had filed a suit in O.S.No.10538/1983 raising a similar contention with regard to the right of Smt. Rajeshwariammal under the WILL. The suit was dismissed by the judgment and decree dated 01.08.1987. The said judgment was called in question in RFA No.675/1987 and the appeal was also dismissed on 09.04.1996 which has attained finality. The subject matter in the said suit was the property bearing No.44, Ramakrishna Mutt Road, which is 'A' Schedule-1 property in the WILL. The learned counsel further refers to the judgment dated 27.10.1988 passed in O.S.No.10340/1983, wherein the Plot No.167, 4th Cross, Wilson Garden, which is one among the 'B' Schedule-1 property was the subject matter and the appeal filed in RFA No.430/1989 was dismissed for default on 19.09.1988. Hence, it is contended that the present suits were barred.
46
28. In that regard, the learned counsel for contesting parties has also relied on the decision in the case of Hanumegowda -vs- Sudarshanchar (ILR 1988 Kar 3238) with specific reference to paragraph 21 therein. It is held therein that there cannot be a collateral attack on a finding concluded by an earlier judgement between the same parties unless the earlier judgment was null and void. The decision in the case of Yajaman Gowraiah, by Lrs -vs- N.V.S. Shivaram by Lrs. (ILR 2009 Karn 2105) is relied, wherein it is held that the finding on issue in a previous proceedings would act as Res Judicata and also as an estoppel in a subsequent proceedings. The decision in the case of Swadesi Jagran Manch -vs- State of Orissa & Anr (2011 AIR SCW 5700) with specific reference to paragraph 71 wherein it is held that it is not open for them to re- examine the issue once over again in the facts of that case is relied. It is further stated therein that the order which has attained finality inter se between the parties cannot be raised that too in a collateral proceedings as it will be opposed to the doctrine of estoppel per rem 47 judicatam. Having noticed the said decisions, the observation of the Constitution Bench of Hon'ble Supreme Court in the case of Mysore State Electricity Board -vs- Bangalore Woollen Cotton & Silk Mills Ltd., and others (AIR 1963 SC 1128) that the previous decision of the matter is Res Judicata but not the reasons for the decision has also to be kept in view. Hence the position of law is clear with regard to the principle of Res Judicata.
29. In the instant facts, it needs to be examined to what extent the said principle would apply. The decision in the earlier proceedings in RFA No. 675/1987 filed by Sri. N. Vasudevan is referred. The Judgment dated 09.04.1996 is marked at Ex-D-334. The subject matter in the said proceedings was the property indicated in 'A' Schedule-1 of the WILL. The said property is evidently not the subject matter in O.S. No. 10427/1992 which relates to RFA No. 1244/2010 herein. This Court in the earlier proceeding, in respect of 'A' schedule-1 has held that Smt. Rajeswariammal had absolute right in respect of that property. Though 48 'B' schedule-1 was not the subject matter therein, this Court while constructing the WILL has at several places observed that in respect of 'B' Schedule-1 property, limited interest has been given but the situation for further elaboration did not arise therein as 'B' Schedule-1 was not the subject matter. Hence, to the extent of that item of property being one among the subject matter in O.S. No.10939/1993 (RFA No. 1246/10) is to be noticed. In O.S. No. 10340/1983 the subject matter was no doubt one of the item of property in 'B' Schedule-1 of the WILL and a similar declaration as presently sought in O.S. No. 10427/1992 was sought. Though the suit was ultimately dismissed the conclusion reached therein was that Smt. Rajeswariammal had the right to give it to her own issues through it cannot be given to third persons. The said conclusion was in the background that the challenge therein was with regard to the settlement made by Smt. Rajeswariammal in respect of plot no. 167, IV cross, Wilson Garden, Bangalore in favour of her daughter i.e., the sister of Sri. N. Vasudevan. Since 49 it was permissible to give it to the male/female issues as per the terms of the WILL, the challenge was negatived, but, as noticed, the conclusion was that it can be given to the children and grandchildren. But, at that point, there were other items of 'B' Schedule-1 properties of the WILL still available for distribution and question as to whether anyone of the children could be excluded did not directly arise for consideration and no alternate relief arose for consideration.
30. If the above aspects are kept in view and the reasoning adopted by me herein is seen, I have also arrived at the same conclusion both with regard to the 'A' Schedule-1 and 'B' Schedule-1 properties. However, since the question had to be considered more in detail about the inter se distribution with regard to 'B' Schedule-1 property among the male/female issues and grandchildren, the reasoning in that regard certainly cannot be barred by Res Judicata in the present facts, though in view of the conclusion reached, certain of the reliefs claimed by Sri. N. Vasudevan in the respective 50 suits would certainly be barred, but all the reliefs would not be barred. That aspect would be adverted to hereunder.
31. As noticed, in O.S.No.10427/1992(RFA No. 1244/2010) the subject matter involved is the property which is the property indicated in 'B' Schedule-1 to the WILL dated 01.01.1945. The grievance was with regard to the suit schedule property being gifted by Smt. Rajeswariammal under a gift deed dated 27.06.1988 in favour Sri. V. Ravi, her grandson. The learned Counsel for the contesting parties points out that no declaration has been sought to annul the said gift deed. By relying on the decision in the case of Md. Noorul Hoda -vs- Bibi Raifunnisa & others(1996(7) SCC 767) has further contended that even otherwise relief to set aside was time barred. In so far as the suit in OS. No. 10427/1992, the prayer is to declare that Smt. Rajeswarimmal had no right to execute the gift deed. The donee therein is her grandson. The question that she had the right to divide it to her children and grandchildren was already concluded in 51 O.S. No.10340/1983 and since there were other items of property still left in 'B' Schedule-1 property, the conclusion in the earlier suit was binding to that extent. Further, the gift deed itself was not sought to be declared as null and void by raising question of equitable distribution among the children and grandchildren. Hence, the court below was justified in so far as dismissing the suit in O.S.No.10427/1992 which was filed in the manner as presently done.
32. The suit in O.S. No. 10315/1993 (RFA NO.1245/10) which was connected with the same is a suit for partition wherein the subject matter in suit Schedule 'A' is the remaining 1/3rd share of the same property bearing No. 22A, Bowring Hospital Road, Bangalore. The said extent of the property and the suit 'B' schedule properties admittedly belonged to late C.M. Nityanandan, who died intestate leaving behind the said properties and the legal heirs including Sri. N. Vasudevan who are parties to the suit. The quantum of the shares assigned has not been disputed. 52 Hence, Sri. N. Vasudevan would also be entitled an equal share similar to that has been assigned to the other children of late C.M. Nityanandan who were the plaintiffs in the said suit and as such Sri. N.Vasudevan cannot have any grievance to that extent.
33. In O.S. No. 10939/1993 (RFA No. 1246/2010) the subject matter i.e., the suit schedule depicts two items of property. The property bearing No. 42, New No.62, Ramakrishna Mutt Road, Ulsoor, Bangalore is the one which is in 'B' Schedule-1 to the WILL dated 01.01.1945. The other property depicted therein is No.44, Ramakrishna Mutt Road Cross, (New Nos. 9, 10,11), Ulsoor, Bangalore which is 'A' Schedule- 1 to the WILL. The relief prayed in the suit is that, apart from a declaration regarding the right of Smt. Rajeswariammal against selling the properties, the right of passage between the two properties are also claimed and injunction against blocking the passage is also sought. Insofar as the declaration sought that Smt. Rajeswariammal has no absolute right it respect of the 53 property No. 44, Ramakrishna Mutt Road, which is 'A' Schedule-1 property in the WILL dated 01.01.1945, Sri. N. Vasudevan would not be entitled to any relief. Firstly in these appeals while construing the WILL, I have arrived at the conclusion that she had absolute right in respect of 'A' Schedule-1 property. Even otherwise, this question had already been considered, decided and the relief was denied in O.S.No. 10538/83 which was affirmed in RFA No.675/1987. Hence, the relief in any case would be barred by Res Judicata.
34. The question however is with regard to the property bearing No. 42, New No.62 Ramakrishna Mutt Road, which is the other item in the said suit O.S. No. 10939/1993 and that being in 'B' Schedule-1 to the WILL. As repeatedly noticed above, both in the earlier litigation and also in this case the conclusion is uniform that the properties in that ' B' Schedule-1 could be given by Smt. Rajeswariammal to her children and grandchildren. Presently, I have also arrived at the conclusion that the intention of the Testator was not to 54 exclude any one of the children and it is to be divided to all. If that be the position, the said property No.42, New No.62, Ramkrishna Mutt Road, being one among the item of property which was remaining out of the 'B' Schedule-1 should have been rightfully given to Sri. N. Vasudevan. No doubt, at the stage when the suit was disposed of on 17.04.2010, Smt. Rajeswariammal was living and possibility was still that it may be given to Sri. N. Vasudevan. However, during the pendency of this appeal, she is stated to have died on 13.05.2011 and a memo was filed before this Court and the learned Counsel for the contesting respondents has brought on record a WILL dated 20.08.09 said to have been executed by Smt. Rajeswariammal (i.e., Rajeswari. N.). In the said WILL, apart from bequeathing the property to which she succeeded from her husband by showing it in Schedule-B in the WILL to her son Dr.N.Muthukrishnan, what is indicated in Schedule - A to the WILL of Smt. Rajeswariammal is the remaining 'B' Schedule-1 property of the WILL dated 01.01.1945. A 55 further perusal of the relevant portion of the WILL dated 20.08.2009 would read as hereunder;
"3. My father is Sri. A.Krishnarathna Mudaliyar. Smt. Rukkammal is my mother. Both of them are dead. I am the only daughter. My father while he was hale and healthy and in a sound disposing state of mind, has executed a will on 01.01.1945, in respect of the property of the will, I have settled certain properties to my sons and a daughter and also I have gifted certain properties to my grand children, the properties settled to my sons and daughter through a settlement dead in the year 1982 as mentioned herein:-
i) Sri. Muthukrishnan:- 3 sites No. 176, 168 and 169, situated at Wilson garden and house No.64, in Ulsoor.
ii) Sri. N. Vijayaraghavan :- Site No. 163, 5th Cross, Wilson Garden and House No.9, at Ulsoor.
iii) Sri. Loganathan:- Site situated at 7th cross, Wilson Garden and House No.63, at Ulsoor.
iv) Smt. T. Padmini:- Site No.1 at Wilson garden and constructed a house.56
The properties gifted to my grand children:-
i) Sri Ravi:- Gifted a property measuring 106 feet 50 feet, out of 2/3 (Two Third) situated at old No.22/A, New No.17/22, Hospital Road, Bangalore, owned by my deceased father Sri. Krishnarathan Mudaliar.
ii) Smt. Vijayalkshmi:- Site No.78, at Wilson garden.
The remaining properties have been mentioned herein as 'A' Schedule."
35. The above extracted portion of the WILL dated 20.08.2009 would indicate that out of the 'B' Schedule-1 properties of the WILL dated 01.01.1945 all the other children have been given atleast one item of the property, though some have been given more. But what cannot be ignored is that only Sri. N. Vasudevan has not been given any property and even out of the remaining properties, it has now been bequeathed to Dr. Muthukrishnan though he has been given three sites earlier. The lion's share goes to him though he is unmarried and is residing in U.K. which could never have been envisaged by the Testator. Since, three of the 57 other children have been given one item of A. Krishnarathna Mudaliar's(Grandfather) property, Sri. N.Vasudevan should certainly be entitled to atleast one item of the property. Since the cause title discloses that Sri. N. Vasudevan is residing in the second item in Schedule-A to the WILL dated 20.08.2009 ie., House No. 42, Ramakrishna Mutt Road, Bangalore it is not only equitable but is rightful to hold that he is entitle to that property by holding that the WILL dated 20.08.2009 would not bind Sri. N. Vasudevan in respect of that property.
36. This Court is also conscious of the position that in a normal circumstance, the party claiming right should seek to avoid the document in an appropriate proceedings. But in the instant factual matrix, Sri. N. Vasudevan was agitating with regard to his right and it is now held that none of the children could have been excluded. In such situation when the WILL dated 20.08.2009 has come into existence with regard to the very subject matter of the suit during the pendency of 58 the suit, no better right could be derived by the beneficiary when there is a final decision in the main matter. Further, keeping in perspective the multiple litigation undertaken and to avoid one more round of litigation, the right to the said property should be declared since the suit in O.S.10939/93 related to a declaration he had sought though in the negative context. Insofar as the other properties mentioned in the WILL dated 20.08.2009 it is open to any of the parties who may claim any other right if it is open to them in law.
37. One other aspect which also needs to be noticed is that, as observed earlier, in O.S. No.10939/93 Sri. N. Vasudevan had also sought for certain right against blocking the passage between the two item of properties which are indicated in the schedule therein. Since this court has now arrived at the conclusion that Sri. N. Vasudevan is entitled to ownership of the property bearing No.42, New No.62, Ramakrishna Mutt Road, Ulsoor, Bangalore and in that view, if any right of passage or such other easementary 59 right is effected, the said right was required to be decided in the said suit keeping in view the prayer for injunction. However, I do not find it expedient to remand the matter, instead liberty is reserved to Sri. N. Vasudevan to seek such relief in a properly constituted suit if the need arises in that regard. The earlier judgment which is impugned herein, shall however not act as a bar in that direction since the suit was decided earlier in an altogether different premise and judgment has now stood modified.
38. In all the three appeals, Misc. Civil Nos. 10995/2011 in RFA 1244/2010, 10996/2011 in RFA 1245/2010 and 10994/2011 in RFA 1246/2010 are filed to take note of the legal representatives of the deceased first respondent - Smt. Rajeswari who are already on record. Dr. N. Muthukrishnan has objected to the application contending that in view of the WILL dated 20.08.2009 he is sole legal representative to represent the estate of this deceased. The nature of the WILL has been discussed above. In any event, 60 Dr. N. Muthukrishnan is also one among the natural heirs and all of them are already on record. Hence the applications are allowed. The children of Rajeswari N. who are already on record are treated as the legal representatives of the deceased late Rajeswari, leaving open the validity of the WILL in other respects except for the right declared herein.
39. In the result, the following:
ORDER
i) The appeal in RFA No.1244/2010 is dismissed.
ii) The appeal in RFA No.1245/2010 is disposed of affirming the judgment and decree dated 17.04.2010 passed in O.S.No.10315/1993 and holding that Sri N.Vasudevan is also entitled to a similar and equal share as that of the other sons of late Sri C.M.Nityanandan.61
iii) The appeal in RFA No.1246/2010 is allowed in part.
iv) The judgment and decree dated 17.04.2010 passed in O.S.No.10939/1993 is set aside in part insofar as dismissing the suit in respect of the property bearing No.42, New No.62, Ramakrishna Mutt Road, Ulsoor, Bangalore.
v) It is hereby declared that Sri N.Vasudevan is entitled to the said property bearing No.42, New No.62, Ramakrishna Mutt Road, Bangalore, which is 'B' Schedule-1 property in the WILL dated 01.01.1945 of A.Krishnarathna Mudaliar and is accordingly declared to be the absolute owner and shall not be bound by the WILL dated 20.08.2009 to that extent.
vi) All other liberties are reserved as indicated in the body of the judgment.62
vii) Keeping in view the relationship of the parties, they shall bear their own costs.
viii) Draw up the decree accordingly.
Sd/-
JUDGE Akc/Ams