A.S.No.778 of 1998

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934** ## **AS.No. 778 of 1998 ( )** **---------------------OS.203/1995 of SUB COURT, MAVELIKKARA ........** **APPELLANT(S):DEFENDANTS: ---------------------------------------------** - ***1. A.KUNJUKOCHU, ANAKKUNNEL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE. ( D I E D).** - ****2. RAVINDRAN, ANAKKUNNEL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE. ( D I E D) - LR'S IMPLEADED:** **3. RAJAN, ANAKKUNNEL HOUSE, CHERAVALLY MURI, KAYAMKULAM VILLAGE.** **4. MOHANDAS, CHEMPISSERIL, THEKKUKOCHU MURI, OACHIRA.** **5. RAJAMMA, KARTHIKA, CHERAVALLY MURI, KAYAMKULAM VILLAGE.** ***IT IS RECORDED THAT THE 1ST APPELLANT DIED AND HIS LEGAL REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS APPELLANTS 2 TO 5 VIDE ORDER DATED 14/11/2002 IN MEMO CF.11246/02.** **BY ADV. SRI.MILLU DANDAPANI BY ADV. SMT. ANNA THOMAS** ## **RESPONDENT(S):PLAINTIFFS:** **---------------------------------------------** **1. JAYASREE P., THOPPIL ANAKKUNNEL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, NOW RESIDING AT DHANASREE, EAST OF TELEPHONE EXCHANGE, CHIRAKKADAVAM, KAYAMKULAM PO, ALAPPUZHA - 690 502.** **..2/-** **Kss** **..2....** ## **AS.NO.778/1998** **2. AVIN VIJAYAN (MINOR) THOPPIL ANAKKUNNEL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, NOW RESIDING AT DHANASREE, EAST OF TELEPHONE EXCHANGE, CHIRAKKADAVAM, KAYAMKULAM PO, ALAPPUZHA - 690 502, REPRESENTED BYY GUARDIAN, THE 1ST RESPONDENT.** **3. THANKAMONY, THOPPIL ANAKKUNNEL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, M/O.JAYASREE P., NOW RESIDING AT DHANASREE, EAST OF TELEPHONE EXCHANGE, CHIRAKKADAVAM, KAYAMKULAM PO, ALAPPUZHA - 690 502.** **4. HARISH, THOPPIL ANAKKUNNEL, CHERAVALLY MURI, KAYAMKULAM VILLAGE, B/O.JAYASREE P.,NOW RESIDING AT DHANASREE, EAST OF TELEPHONE EXCHANGE, CHIRAKKADAVAM, KAYAMKULAM PO, ALAPPUZHA - 690 502.** ****ADDL.RESPONDENTS 5 TO 7 IMPLEADED:** - **R5. VIJAYAMMA, AGED 54, W/O.A.K.RAVEENDRAN, ANAKKUNNEL, CHERAVALLY, KAYAMKULAM PO.** - **R6. SEENA RAVEENDRAN, AGED 32, D/O.A.K.RAVEENDRAN, ANAKKUNNEL, CHERAVALLY, KAYAMKULAM PO.** - **R7. ASWATHY, AGED 28, D/O. A.K.RAVEEDNRAN, ANAKKUNNEL, CHERAVALLY, KAYAMKULAM PO.** - ****ADDL.RESPONDENTS 5 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT NO.2 VIDE ORDER DATED 10/08/2012 IN I.A.NO.2437/2010.** ## **R1 BY ADV. SRI.T.I.ABDUL SALAM** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **AS.NO.778/1998** ## **APPENDIX** ## **APPELLANT'S ANNEXURES:** **ANNEX.A: THE UN-REGISTERED WILL DATED 21/031/995 EXECUTED BY KUNJUKOCHU, REFERRED TO IN THE AFFIDAVIT.** **ANNEX.B: THE SANCTION GIVEN BY THE MUNICIPAL COMMISSIONER, KAYAMKULAM, DATED 29/11/1983 TO CONSTRUCT THE BUILDING IN PLAINT SCHEDULE ITEM NO.1 ALONG WITH THE PLAN, REFERRED TO IN THE AFFIDAVIT.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **P.N.RAVINDRAN, J** **.................................................. A.S No.778 of 1998 .................................................. Dated 1[st] November, 2012** ## **JUDGMENT** The appellants are the defendants in O.S.No.203 of 1995 on the file of the Court of the Subordinate Judge of Mavelikkara. Respondents 1 to 4 are the plaintiffs therein. The suit instituted by respondents 1 to 4 for declaration of the title and possession of plaintiffs 1 and 2 over the plaint schedule properties and for other reliefs was decreed by the court below except in relation to the relief of fixation of boundary and putting up of a boundary wall on all four sides of item No.1 of the plaint schedule properties. After the appeal was filed, first appellant (first defendant in the suit) passed away on 22.10.2002 and thereupon appellants 2 to 5 were recorded as her legal heirs. Later, on 31.7.2009, the second appellant also passed away and thereupon, his legal heirs were impleaded as additional respondents 5 to 7. The brief facts of the case are as follows. 2. Item 1 in the plaint schedule is a parcel of land, 60 cents in extent, situated in survey No.957 of Kayamkulam Village, ## **A.S.No.778 of 1998** -:2:- Karthikappilly Taluk, Alappuzha District. There is a building in existence in the said property and it is described in item No.2 of the plaint schedule. The first plaintiff is the wife of late Vijayan (the son of first defendant) and the second plaintiff is their child. Plaintiffs 2 and 3 are the first plaintiff's mother and brother respectively. Item 1 of the plaint schedule belonged to late Kunchu, husband of the first defendant and father of defendants to 2 to 5 and Vijayan. Late Kunchu and the first defendant had jointly executed Ext.A1 Will on 5.6.1975 in respect of several items of properties. Some of the items belonged exclusively to Kunchu and some belonged exclusively to the first defendant. Item 1 of the plaint schedule which is item No.1 in schedule 4 to Ext.A1 Will, belonged to late Kunchu. It was bequeathed to late Vijayan, husband of the first plaintiff and father of the second plaintiff. It is stated that Kunchu died on 15.1.1982 and on his death, the Will took effect and item No.1 of the plaint schedule and other items of properties bequeathed to Vijayan devolved on him, that Vijayan constructed a building in item 1 of the plaint schedule expending his own funds and after the building was constructed, which is item 2 in the plaint schedule, plaintiffs 1 and 2 started residing therein along with Vijayan. It is stated that ## **A.S.No.778 of 1998** -:3:- Vijayan died on 26.9.1991 and on his death, the plaint schedule property devolved on plaintiffs 1 and 2. The suit was filed contending that defendants 1 to 4 are attempting to trespass into the plaint schedule properties and to forcibly take possession thereof. In the plaint, the plaintiffs prayed for the following reliefs. - _“(a) To find that plaintiffs 1 and 2 have title and possession over plaint items, as per the will dated 5.6.1975 and also as the legal heirs of Vijayan;_ - _(b) To allow the plaintiffs 1 and 2 to have the plaint item 1 measured and permanent boundaries (boundary wall) be put up on all the sides;_ - _(c) To grant an order of injunction restraining the defendants from forcibly taking possession of plaint items during pendency of the suit or from interfering with the residence of plaintiffs in plaint item II”._ 3. The defendants filed a written statement dated 5.8.1996. They admitted the execution of Ext.A1 Will, but contended that the Will was executed with an intention to settle the properties on the surviving executant, after the death of the other executant. It was contended that on the death of Kunchu, the plaint schedule ## **A.S.No.778 of 1998** -:4:- properties devolved on the first defendant as a legatee in terms of the recitals in the Will. Various other related contentions were also raised in the written statement. 4. In the trial court, the first plaintiff was examined as PW-1 and Exts.A1 and A2 were produced and marked on the side of the plaintiffs. On the side of the defendants, the first defendant was examined as DW-1 and Exts.D1 and D2 were produced and marked. On an application filed by the plaintiffs, an Advocate Commissioner was appointed to inspect the plaint schedule properties and to submit a report and he submitted a report which was marked as Ext.C1. The trial court, on an analysis of the evidence, oral and documentary, held that Ext.A1 is a joint Will and it took effect in respect of the properties of Kunchu on his death. The trial court repelled the contention of the defendants that first defendant is a legatee under Ext.A1 Will and held that on the death of Kunchu, the immovable properties described in schedule 4 of Ext.A1 Will devolved on Vijayan and on the death of Vijayan, it devolved on plaintiffs 1 and 2. The trial court accordingly held that plaintiffs 1 and 2 are entitled to have their title declared and for a consequential injunction restraining the defendants from dispossessing them. As regards the relief of ## **A.S.No.778 of 1998** -:5:- fixation of boundary and putting up of boundary walls, the trial court held that on account of the failure of the plaintiffs to produce a resurvey plan, the Advocate Commissioner could not prepare a plan and therefore, the question whether the plaintiffs are entitled to have the boundary fixed and to put up a boundary wall on all four sides of item No.1 of the plaint schedule property, cannot be answered. The suit was accordingly decreed declaring the title of plaintiffs 1 and 2 over the plaint schedule properties and restraining the defendants by a permanent prohibitory injunction from dispossessing them from the plaint schedule properties. The defendants have aggrieved thereby, filed this appeal. 5. I heard Smt.Sumathy Dandapani, learned Senior Advocate, appearing for the appellants and Sri T.I.Abdul Salam, learned counsel appearing for the respondents. The learned senior counsel appearing for the appellants contended with reference to the recitals in Ext.A1 that it is a mutual Will and during the life time of the testators, either of them had the right to dispose of the properties or to alter the terms of the Will and therefore, the court below erred in holding that Ext.A1 is a joint Will and on the death of Kunchu, the Will took effect and the plaint schedule properties devolved on Vijayan in terms thereof. The learned ## **A.S.No.778 of 1998** -:6:- senior counsel contended that the right of the testators to possess, enjoy and to deal with and dispose of the properties bequeathed as per Ext.A1 Will was reserved in them and therefore it cannot be said that on the death of Kunchu, the Will took effect. 6. Per contra, Sri.T.I.Abdul Salam, learned counsel appearing for respondents 1 to 4 contended that under Ext.A1 Will the two testators did not confer upon each other reciprocal benefits by either of them constituting the other as the legatee, that the testators did not fill the roles of both testator and legatee, that the legatees are different from the testators, that specific items of properties were bequeathed to five legatees and therefore, as the legatees are distinct from the testators, it cannot be said that Ext.A1 is a mutual Will. The learned counsel contended that the recital in Ext.A1 Will that during their lifetime the testators are free to deal with and dispose of the properties can only be interpreted to mean that they had the right to deal with and dispose of the properties which belonged to each of them exclusively and cannot be interpreted to mean that each testator had the power of disposition in respect of the properties which belonged to the other and therefore, in the absence of a bequest in favour of the other by either of the testators, it cannot be said ## **A.S.No.778 of 1998** -:7:- that the testators fill the roles of testator and legatee. The learned counsel contended that even without a recital that the testators are free to dispose of their properties, the testators could have disposed of the properties over which each of them had the power of disposition notwithstanding the fact that he has executed a Will and therefore, the mere fact that a recital in that regard exists in the Will is not a reason to hold that the first defendant, one of the testators, had the right to deal with and dispose of the properties of Kunchu, the other testator, during Kunchu's lifetime or thereafter, or vice versa. The learned counsel contended relying on the decision of the Apex Court in _**K.Govindan v. T.T.Lakshmi Amma**_ , AIR 1959 SC 71, the decision of a learned single Judge of this Court in _**Kesavan Anandakumar v. Nangali Amma**_ , 1994 (1) KLT 927 and the decision of a Division Bench of this Court in _**Narayani and another v. Sreedharan**_ , 2011 (4) KLJ 544, that the finding of the court below that Ext.A1 is a mutual Will, does not merit interference. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. Ext.A1 Will ## **A.S.No.778 of 1998** -:8:- recites that some of the items bequeathed thereunder belong exclusively to Kunchu and the other items to his wife, the first defendant. The schedule to the Will contains different items of properties. The plaint scheduled property is item No.1 in schedule 4 appended to Ext.A1 Will, the entirety of which is bequeathed in favour of Vijayan, husband of the first plaintiff and father of the second plaintiff. The fact that item No.1 in schedule 4 to Ext.A1 Will, which is item 1 of the plaint schedule, belonged exclusively to Kunchu, is not in dispute. It is also not in dispute that under Ext.A1 Will specific bequests have been made in respect of different items of properties to the five children of Kunchu and the first defendant. As a matter of fact there are five schedules to the Will and each schedule contains a number of items of properties. The relevant recitals in Ext.A1 Will are as follows:- “ ഞങള�ട� മകള�� പ�ലക�ല�വക�ശ�കള�� ഞങള�ട� വര�ത�ശ�സന�ദ�കളക�ളട�ട� ന�ന �വര�നവര�� ക�ഞ�മകള�� ക�ഷ�ക�ര�മ�യ 33 മ��ത�മ"ന�വയസ�ള രവ%ന'ന 30 മ��ത�വയസ�ള ര�ജന 23 ഇര�പത�മ"ന�വയസ�ള മമ�ഹനദ�സ/ വ�ദ0�ഭ0�സ� 20 ഇര�പത�വയസ�ള വ�ജയന ക�ഞ�ടക�ച� മകള ന3ഹമജ�ല� 28 ഇര�പത�എട�വയസ�ള ര�ജമ ഇവരക/ ഇര�കണടമന �� മമലപറഞ മപര�ക�രതമ�ല സ;ത�സ�ബനമ�യ� ഞങള�ട� പ�ലക�ല� യ�ടത�ര� തരകവ�ദങളക�� ഇ�യ�കര�ടതന�� കര�ത� ഞങള ഈ വ�ലപനത� എഴ�ത�വയ/ക�നത�� ഇത�ടല ## **A.S.No.778 of 1998** ## -:9:- വ�വസയന�സര�ച/ മമലപറഞമപര �ക�ര ഓമര�ര �തര�� ന�ന�ടക�മളണത�മ�ക�ന�. അ��യ�ല വ�വര�ക �നത�ല ഒന��ന�പര സ;ത/ ഒന��മപര�ക�രന രവ%ന'ന�� രണ��ന�പര സ;ത/ രണ��മപര�ക�രന ര�ജന�� മ"ന��ന�പര വസ/ത� മ"ന��മപര�ക�രന മമ�ഹനദ�സ�ന �� ന�ല��ന�പരസ;ത/ ന�ല��മപര�ക�രന വ�ജയന �� അഞ��ന�പര സ;ത/ അഞ��മപര�ക�ര� ര�ജമയ/ക �മ�യ� ഇത�ന�ല ന�രമFശ�ച�മGരത�ര�ക�ന�. ഇതന�സര�ച/ ഇത�ടല പട�കമ�റയ/ക/ ഓമര�ന�പര വസ/ത �വകകള�� അത�ത�മപര�ക�ര�ട� മപര�ല ഞങള�ട� പ�ലക�ല� മപര�ലക"ട�ച�� പടയ� പ���ച�� കകവശ� വച/ അന�ഭവ�ച�� മപര�മGരത�ട�ള പട�കക�ര ആയത � യമJഷ� ഉപമയ�3ട���ത�യ�� കര�ത%രത �� സരവസ;�തനMമ�യ �� ” ന�ന�ടക�മളണത�മ�ക�ന�. ## 8. Ext.A1 will also contains the following recital:- "ഞങള�ല ഓമര�ര �തര�മ�യ�� ജ%വ�തക�ലത/ പട�കവസ/ത�കള ഞങളക/ കകവശ�വച/ അന�ഭവ�ക�നത�ന�� പ �രകള�ല ത�മസ�ക �നത�ന�� കരണകരതവ�സ;�തനM�ങമള���ക"�� ന�ക �നത�ന�� പര�പ"രOസ;�തനM�വ�� അവക�ശവ �� ഞങളക �ളത�� ഞങള�ട�ജ%വ�തമശഷ� ക����ള വസ/ത�വകകള ഇത�ടല വ�വസ��� ന�ങള സരവസ;�തനM�മ�യ� അന �ഭവ�ച�� കര�ത%രത�� പ �ര ഉപമയ�3ട�� �ത�യ�� ന�ന�ടക�മളണത�മ�ക�ന�. ഞങള�ല ഓമര�ര�തര�മ�യ�� ജ%വ�തക�ലത/ ഇത�ല ഏത�ന ��ഭ�3മമ� മ �ഴ�വന�മമ� മഭദട���ത�നത�മന� റF �ടGയ�നത�മന� മവടറ എഴ�ത�വയ/ക�നത�മന� ഞങള�ല ഓമര�ര �തരക�� അവക�ശമ�ണ�യ�ര�ക�നത�� ഞങള�ട� പ�ലക�ല�മ�നത� ## **A.S.No.778 of 1998** ## -:10:- ഈ കരണ� ഊരSത�ല വര�നത�മ�ക�ന�.” 9. It is relying on the recitals in Ext.A1 Will extracted in paragraph 8 above, that the defendants contend that Ext.A1 is a mutual Will. In my opinion the said contention is plainly untenable. The Apex Court has in _**K.Govindan v. T.T.Lakshmi Amma,**_ AIR 1959 SC 71, held that a Will is mutual when two testators confer upon each other reciprocal benefits, by either of them constituting the other as the legatee. In the instant case it is evident from the recitals in Ext.A1 Will that the separate properties of the testators were bequeathed to their five children. There is no specific bequest made by either of the testators in favour of the other in Ext.A1 Will. No life estate is also created by either of the testators in favour of the other. There is also no stipulation to the effect that one of the testators cannot revoke his bequest without the consent of the other. There is also no stipulation to the effect that on the death of one of the testators, the other testator will become the owner of the properties belonging to him or her. The recital which is relied on by the defendants to contend that Ext.A1 is a joint Will is the recital to the effect that during the lifetime of the testators they have the right to enjoy the properties and to deal with and dispose of the ## **A.S.No.778 of 1998** ## -:11:- properties. In my opinion the said recital cannot be interpreted to mean that on the death of one of the testators, the other testator is free to deal with and dispose of the properties belonging to the deceased testator. Therefore, the mere fact that Ext.A1 contained a recital to the effect that the testators will have the right to deal with and dispose of the properties during their lifetime and on their death, the properties if any remaining, will devolve on the legatees named in the Will is not a reason to hold that Ext.A1 is a mutual Will or that the testators fulfill the roles of both the testator and legatee. That apart, there is no stipulation in Ext.A1 to the effect that the first defendant will have the right to deal with and dispose of the properties belonging to Kunchu if he predeceases her. Likewise, there is no recital to the effect that Kunchu will have the right to deal with and dispose of the properties belonging to the first defendant if she predeceases him. From the recitals in Ext.A1 it cannot be said that it is a mutual Will and not a joint Will. The court below was therefore, perfectly right in holding that on the death of Kunchu, the bequest of the immovable properties described in schedule 4 appended to Ext.A1 Will, of which item 1 of the plaint schedule is a part, in favour of Vijayan, the first plaintiff's husband, took effect and the said items ## **A.S.No.778 of 1998** -:12:- of properties devolved on him. As the legal heirs of Vijayan, plaintiffs 1 and 2 are therefore entitled to succeed. I accordingly hold that there is no merit in the instant appeal. The appeal fails and is dismissed. Having regard to the relationship between the parties, I direct that the parties shall bear their respective costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------A.S.No.778 of 1998 ----------------------------** ## **JUDGMENT** **1[st] November, 2012**