Chandra Mohan and Kundoor K. Rathnamani v. Kavillumparakkal Surendan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935** ## **AS.No. 417 of 1998 ( )** **------------------------------AGAINST THE JUDGMENT IN OS 32/1995 of SUB COURT, QUILANDY.** **.......** ## **APPELLANT(S): 3RD DEFENDANT & 9TH SUPPL.DEFENDANT** **---------------------------------------------------------------------------------------** **1. CHANDRA MOHAN, S/O.GANGADHARAN, AGED 58 YEARS, KACHERI AMSOM, DESOM, KOZHIKODE TALUK.** **2. KUNDOOR K.RATHNAMANI, W/O.CHANDRA MOHAN, VIJAYA MANDIR, KOTTARAM ROAD, EAST NADAKKAVU, KOZHIKODE.** - **BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR** ## **RESPONDENT(S):PLAINTIFF & DEFENDANTS 1,2 & 4-8.** - **--------------------------------------------------------------------------------** **1. KAVILUMPARAKKAL SURENDRAN, S/O.GANGADHARAN, AGED 42 YEARS, KOYILANDY TALUK.** - ***2. VANNANKANDI NANI ALIAS NARAYANI (DIED), W/O.GANGADHARAN, AGED 78 YEARS, RESIDING AT VIJAYA MANDIR, KACHERI AMSOM, DESOM, KOZHIKODE TALUK (STRUCK)** ## ***THE NAME OF THE 2ND RESPONDENT ''VANNANKANDI NANI ALIAS NARAYANI'' STRUCK OFF FROM THE PARTY ARRAY NOF THE APPEAL AT THE RISK OF THE PETITIONER AS PER ORDER DTRD. 1.6.2004 IN IA. 1657/2004.** **3. KAVILUMPARAKKAL SAROJINI, D/O.GANGADHARAN AGED 62 YEARS, RESIDING AT LOTUS LAND, KOTTOOLI AMSOM DESOM, KOZHIKODE.** **tss** ## **A.S. NO.417/1998** **4. KAVILUMPARACKAL RAJALAKSHMI, D/O.GANGADHARAN, AGED 55 YEARS, RESIDING AT PRATHEEKSHA BHAVAN, PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK.** **5. KAVILUMPRAKKAL VIJAYALAKSMI, D/O.GANGADHARAN, AGED 52 YEARS, CHERUVANNOOR AMSOM, DESOM, KOYILANDY TALUK.** **6. KAVILUMPARAKKAL BABY KAMALAM, AGED 49 YEARS, W/O.RAJAGOPALAN, KOYILANDY TALUK.** **7. KAVILUMPARAKKAL BABU RAJENDRAN, S/O.GANGADHARAN, AGED 46 YEARS, RESIDING AT PACHAKKIL HOUSE, PANANGAD AMSOM KOYILANDY TALUK.** **8. KAVILUMPARAKKAL SHAILAJA, W/O.RAJENDRAN, RESIDING AT THACHAMBALATH HOUSE, PANNIYANKARA AMSOM, DESOM, KOZHIKODE.** **R1 BY ADV. SRI.R.PARTHASARATHY R2,5-8 BY ADV. SRI.P.C.SASIDHARAN BY ADV. SRI.O.V.MANIPRASAD R3 BY ADV. SRI.C.JAYACHANDRAN** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24-09-2012, THE COURT ON 24/06/2013 DELIVERED THE FOLLOWING:** **tss** **'C.R'** ## **THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- A.S. No.417 of 1998 ---------------------------------------------Dated this the 24[th] day of June, 2013 ## **JUDGMENT** ## **Ramakrishna Pillai, J.** Defendants 3 and 9 in the original suit are the appellants. The first respondent is the plaintiff in the suit. The second respondent, who is no more, is the first defendant. The third respondent is the second defendant. Respondents 4 to 8 are defendants 4 to 8 in the Original Suit. For convenience of discussion, the parties can be referred to as they are arrayed in the Original Suit. 2. The suit was filed claiming partition and separate possession of 1/9[th] share in the plaint schedule properties, consisting of a house and compound owned by one Gangadharan, the husband of the first defendant. The plaintiff and defendants 2 to 8 are the children of the said Gangadharan and the first defendant. In the year 1941, Gangadharan executed a gift deed in respect of the plaint schedule property in favour of **2** A.S.No.417/1998 the first defendant - his wife as well as defendants two and three - the only born children at that time. The plaintiff alleged in the suit that the said gift enures to the benefit of all the subsequent born children, i.e. defendants 4 to 8 and the plaintiff also. Therefore, he claimed 1/9[th] share in the plaint schedule properties. - _ex_ - 3. The first defendant who is the wife of Gangadharan remained - _parte_ . However, she expired during the pendency of the suit. 4. The second defendant who is one of the donees under the gift deed also remained _ex parte_ . The third defendant who is the first appellant herein resisted the suit and maintained the stand that the donor clearly intended an absolute gift to the donees made mention of in the gift deed and, therefore, the property is not partible, as claimed. 5. Defendants 4,6 and 8 in a joint written statement supported the plaintiff's claim and the seventh defendant also supported the plaintiff through a separate written statement. The ninth defendant (second appellant) who is the wife of the third defendant being an assignee of the share of the third defendant supported the case of the third defendant. 6. At the trial, no oral evidence was adduced by either side. A.S.No.417/1998 **3** Therefore, the evidence consists of Exts.A1 to A11 and B1 to B5 and C1 to C3 only. 7. As the main issue was confined to the interpretation of the Gift Deed which was marked as Ext.A2(B1), the trial court considered the same as issue Nos.1 and 2. The trial court held that the statutory support available to a _marumakkathayee_ under Section 48 of the Madras Marumakkathayam Act, 1932 is available to the plaintiff and based on the _Thavazhi_ as said finding it was held that Ext.A2 gift is to a Natural contemplated in the Madras Marumakkathayam Act, 1932. On this line of reasoning, the trial court held that the plaintiff is also a co-owner and hence entitled to 1/9[th] share in the plaint schedule property. It is this finding which is put to challenge before this Court in this appeal. 8. We have heard the learned Senior Counsel appearing for the _in extenso_ . appellants and the learned counsel for the respondents quite We have also perused the impugned judgment and other lower court records. 9. The execution of Ext.A2 gift deed is admitted. Going by the undisputed pleadings, the parties are _makkathayees_ (See paragraph 3 in **4** A.S.No.417/1998 the plaint). The learned senior counsel appearing for the appellant relied on a recital in Ext.A2 gift deed and argued that it operates to the benefit of defendants 1, 2 and 3 only and they are the sole beneficiaries under Ext.A2. The said recital reads as follows: “.......ÄÞæÝÉGßµÏßW ÕßÕøßAáKÄáÎÞÏ 3_Þ0 ÈdOí ÕÙµZ ®æa ÍÞøcÞÎA{ÞÏ ÈßB{ßW ®ÈßAáU ÕÞÄíØÜc¢ dÉÄßËÜÎÞÏß ÈßB{áæ¿ µÝߺîßÜßÈáçÕIß §ÄßÈÞW ÈßBZAí ÆÞÈ¢ ÄøßµÏᢠ²KÞ¢ ÈdOí ÉùOí ¯VMÞ¿áµç{Þ¿áµâ¿ß µÏíÕÖ¢ ÄøßµÏá¢....” 10. As per the aforesaid recital Ext.A2 is only a gift to the person named therein, so submitted the learned senior counsel for the appellant. 11. The learned counsel appearing for the respondent per contra relied on another recital in the latter part of Ext.A2 gift deed where the donor has expressed a desire that his future born children through the first defendant also may enjoy the property. The relevant portion reads as follows: “....ØVAÞV ÈßµáÄßÏᢠæµÞ¿áJí ®æKKᢠ¼zÎÞÏß ÈßB{ᢠ²KÞ¢ ÈdOíµÞøßÏÞW ®ÈßAí ©IÞÕáK ØLÞÈB{ᢠ¥¿Aß ¥ÈáÍÕߺîí æµÞUáKÄßÈᢠÏçÅ×í¿¢ dµÏÕßdµÏBZ .......” A.S.No.417/1998 **5** 12. The defence of the appellants is that by operation of the first part of the bequest, there is a complete vesting of the property with defendants 1 to 3 and, therefore, the second part, i.e. the wish that future born children may also enjoy does not operate at all. In this context, the learned senior counsel for the appellants invited our attention to the relevant provisions of the Transfer of Property Act and Indian Trust Act and argued that normally a person not in existence can neither be a transferee nor a beneficiary, until he comes into existence. Therefore, according to the learned senior counsel for the appellants, no immediate vesting of property in favour of an unborn person is possible. In this context, it is useful to have a look at Section 5 of Transfer of Property Act which defines transfer of property as follows: _“In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself or one or more other living persons; and “to transfer property” is to perform such act.”_ 13. No doubt, the word used in Section-5 is _“living person”._ That would indicate that transfer of property under the Transfer of property Act **6** A.S.No.417/1998 is a transfer inter vivos, so that, no transfer can be made to an unborn person. 14. Section 9 of the Indian Trust Act, 1882 provides that every person capable of holding property may be a beneficiary which expression again will exclude a person not in existence. What is discernible from the provisions of law referred to above is that no immediate vesting of property in favour of an unborn person is possible. 15. However, if a person so wishes a gift to an unborn person can be made through the medium of trust. It is possible only on the strength of Section 13 of the Transfer of Property Act which reads as follows: _“_ _**Transfer for benefit of unborn person** .-Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property”._ 16. This is the only provision of law that enables a person to transfer a property by gift to an unborn person. Because of the use of the words ' _for the benefit of'_ the aforesaid section contemplates the creation of a trust. **7** A.S.No.417/1998 ## 17. This Court in _**Sankara Pillai** v._ _**Chandran Pillai**_ (1967 KLT 101) observed that there are two possibilities under S.13. Paragraph-9 of the judgment reads as follows: _“......One is to create a trust vesting the property in a living person as trustee and giving the beneficial interest to the unborn person. Again, a definite share in the transferred property, say a half, a third or a fourth, may be given absolutely to the living person and the rest may vest in him as trustee for the unborn person. Even in such a case, regarding the share given to the unborn person, the living person is only a trustee for the unborn person, who has the beneficial interest. The second possibility, which falls more directly under S.13, is the creation of a limited or a smaller prior estate in favour of a living person and the creation of an absolute remainder in favour of the unborn person. In this case also, if a definite share like a half or a third is given to the living person absolutely, he will take that in full right; and regarding the balance a limited estate like a life estate can be carved out in favour of the living person giving the absolute remainder thereof to the unborn person.”_ 18. It was argued by the learned senior counsel for the appellant that if a bequest to an unborn person has to be upheld, the document must fall in either of the two categories above. The material question, therefore, to be decided in this case is whether Ext.A2 is a gift deed to the named donees only or to the unborn persons only or to both combined. A A.S.No.417/1998 **8** clear reading of Ext.A2 would show that there is no mention of any share to the unborn and the share to the named donees. There is no indication as to whether the named donees are merely trustees. On a reading of the gift deed, what can be discerned is that the consideration for the gift deed is love and affection to the named donees alone. Therefore, it was argued that it can be only a gift absolutely to the named donees. 19. The learned counsel for the respondent, _per contra,_ inviting our attention to the decision of the Apex Court in _**F.M. Devaru Ganapathi Bhat** v._ _**Prabhakar Ganapathi Bhat**_ [(2004) 2 SCC 504] would argue that the intention of the executor of a document is to be ascertained after considering all the words in their ordinary natural sense. Therefore, the document is required to be read as a whole to ascertain the intention of the executant; so submitted the learned counsel for the respondent. 20. There cannot be any doubt against the proposition that a document has to be read as a whole and when there is repugnancy or inconsistency between two recitals in a document, a harmonious construction has to be adopted to give effect to the real intention of the executant. Though the learned Senior Counsel appearing for the **9** A.S.No.417/1998 appellants would argue that the only conclusion possible is that Ext.A2 is a gift only to the named donees and bequeath to the unborn person may fail, we cannot agree with that because it is clear from the recital in the latter part of Ext.A2 that it was a pious wish of the executant to give some share in the plaint schedule property to the future born children also. However, such an assignment can only be within the legally permissible limits. 21. While reading both the clauses in Ext.A2 harmoniously, it could be said that the second and third defendants, the then minors who are the named donees, take one third each absolutely because they cannot go on holding the property in trust for the future born children. The first defendant who is the mother has to hold the remaining one third for the benefit of herself and the unborn children. Here, we may face a practical difficulty in assigning shares to all the future born children because, Section 13 of the Transfer of Property Act interdicts the transfer of lesser interest other than full reminder and absolute interest in the property in favour of the unborn person. 22. In this context, the learned Senior Counsel appearing for the A.S.No.417/1998 **10** appellants would give thrust to the proposition that the acceptance of the gift by all the future donees together is not possible. In support of his argument, the learned Senior Counsel placed reliance on the decision of the Apex Court in _**Kosi Mathai** v._ _**Malathi**_ [1965 KLT 639]. Respectfully, we have to say that aforesaid decision has not taken into account the fact that a transfer under Section 13 of the Transfer of Properties Act is effected through a medium of trust. If the aforesaid argument is accepted, the bequest may exhaust with the very next born child. The very next born child is Rajalakshmi, who is the fourth defendant. But that was not the intention of the executor. Therefore, there is absolutely no justification for holding the provision in favour of the unborn person as inoperative and void and it will enure to the benefit of the first defendant alone. Therefore, instead of the provision making a gift in favour of the future born children being ignored as void, full effect has to be given to both the clauses in Ext.A2. This can be done by construing the gift either as a gift to the _Thavazhi_ of the first defendant or as a transfer to the first defendant in trust for herself and children to be born to her and the donor subsequently. **11** A.S.No.417/1998 23. Now, we will examine whether it can be construed as a gift to the _Thavazhi_ of the first defendant. 24. The trial court proceeded on the assumption that the statutory support available to the _marumakkathayees_ under Section 48 of the Madras Marumakkathayam Act, 1932 is available to the plaintiff. The said approach is not correct. As already stated, the plaintiff in paragraph (3) of the plaint has stated that the parties are _Thiyyas_ of Calicut governed by _Makkathayam_ system of inheritance following Hindu Mithakshara Law. This is not disputed by the defendants. Even under the Marumakkathayam Law in order to constitute a _Tharavadu_ or a _Thavazhi_ , the parties should have otherwise formed into a _Thavazhi_ of female descendants and the property should be the _Tharavadu_ property of the mother and other female unborn who obtain the right of inheritance by birth. [See _**Rama Warrier Krishna Warrier and others**_ v _**Madhavi Amma and others,** (_ AIR 1958 Kerala 301)]. In the instant case, no such practice or custom is pleaded and proved by the plaintiff. 25. Therefore, the only legal and realistic approach that can be taken in this case is that the one third share held by the first defendant **12** A.S.No.417/1998 mother in the plaint schedule property under Ext.A2 has to be reckoned as the property held in trust for herself (life estate) and the children to be born to her in future. The future born children are the plaintiff and the defendants 4 to 8. As the first defendant is no more, the plaintiff and defendants 4 to 8 who are born subsequently will take one third share held by the first defendant in trust, absolutely. As they are tenants in common, that one third would be divided equally between the plaintiff and defendants 4 to 8. 26. The result of the above discussion is that defendants 2 and 3 shall take one third share each in the plaint schedule property and the remaining one third share shall be divided equally among plaintiff and defendants 4 to 8. That means, the plaintiff and defendants 4 to 8 shall get one eighteenth share each in the plaint schedule property. We, therefore, hold that the impugned judgment and decree call for an interference. In the result, we allow the appeal. The impugned judgment and decree shall stand modified. In modification of the impugned judgment and decree, we direct that 1/18[th] share in the plaint schedule property shall be allotted to the plaintiff after partitioning the property by metes and **13** A.S.No.417/1998 bounds. Defendants 2 and 3 shall be entitled to get 1/3 share each in the plaint schedule property. As the third defendant had assigned his share to the ninth defendant, she will step into the shoes of the third defendant. The defendants who have not paid court fee shall be at liberty to pay court fee at the final decree stage and to get their respective share allotted to them. Parties shall suffer their costs. **sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** **css/** **true copy** **P.S.TO JUDGE** **14** A.S.No.417/1998 ## **THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = A.S.No.417 of 1998 = = = = = = = = = = = = = = = = = = = Dated this the 24[th] day of July, 2013 (In Chambers) ## **ORDER** ## **Ramakrishna Pillai, J.** Taken up today, _suo motu_ , as certain clerical errors were noticed in our judgment dated 24.6.2013, reported in 2013 (3) KLT 269. 2. The second sentence of paragraph (22), as it stands now, is as under:- “In support of his argument, the learned Senior Counsel placed reliance on the decision of the Apex Court in _**Koshi Mathai**_ v _**Malathi**_ (1965 KLT 639).” 3. The aforesaid decision was rendered by this High Court. We, therefore, order that the last sentence of paragraph (22) shall stand corrected as under:- “In support of his argument, the learned Senior Counsel placed reliance on the decision of this Court in _**Koshi Mathai**_ v _**Malathi**_ (1965 KLT 639).” A.S.No.417/1998 **15** 4. The other mistakes we notice are in paragraphs 19 and 22 of the judgment. There, the word “executor” has to be corrected and read as “executant”. We, therefore, order that the word “executor” shall stand corrected as “executant”. 5. This order shall form part of our judgment dated 24.6.2013. ## **sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE** ## **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ Hand over copy to all sides and inform the reporters also. **16** A.S.No.417/1998 ## **THOTTATHIL B.RADHAKRISHNAN & A.V.RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- A.S.No.417 of 1998 & CRP No.1844 of 1998 ----------------------------------------- Dated this the 7[th] day of September, 2012 **ORDER** ## Thottathil B.Radhakrishnan, J. In this appeal by the third defendant the only issue is as to the manner of construction of Ext.A2. The question is whether the said document creates absolute transfer of property in favour of the wife and the then living children of the maker of the document or at least to the children and the mother taking it also as a trustee on behalf of the children who are yet to be born. The learned counsel says that the learned Senior Advocate engaged in the matter is in the midst of a cataract surgery and needs an adjournment. List on 19.9.2012. **THOTTATHIL B.RADHAKRISHNAN JUDGE** **A.V.RAMAKRISHNA PILLAI JUDGE** A.S.No.417/1998 **17** css/ **THOTTATHIL B.RADHAKRISHNAN, J.** **& A.V.RAMAKRISHNA PILLAI, J. A.S.No.417 of 1998 ORDER 24.6.2013**