Kannoth Kottaran Omana Amma v. Chathoth Balachandran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** **RSA.No.1267 OF 2004** **AGAINST THE JUDGMENT AND DECREE IN AS 113/1996 DATED 06-07-2004 OF DISTRICT COURT & SESSIONS COURT,THALASSERY** **AGAINST THE JUDGMENT AND DECREE IN OS 264/1994 DATED 29-02-1996 OF MUNSIF COURT, KUTHUPARAMBA** ## **APPELLANT/APPELLANT/9TH DEFENDANT:** **KANNOTH KOTTARAN OMANA AMMA D/O. KUNHIKRISHNAN NAMBIAR, RESIDING AT PATTANNUR AMSOM, DESOM, SREEDEVI NILAYAM, P.O. PATTANUR, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.K.MOHANAKANNAN SRI.T.P.SAJID** **- RESPONDENTS/RESPONDENTS 1 & 3 TO 8/PLAINTIFF & DEFENDANTS 2 7 & LRs OF D1:** - **1 CHATHOTH BALACHANDRAN S/O. KUNHIKANNAN NAMBIAR, POLICE SUB INSPECTOR, KOLARI AMSOM, METTADI DESOM, P.O. PORORA, THALASSERY, KANNUR DISTRICT.** - **2 CHATTADI KANNOTH RAVINDRANATHAN (DIED) S/O. KUNHIKANNAN NAMBIAR, WORKING IN C.R.P., RAVIMANDIRAM KOLARI AMSOM, NALANKERI DESOM,, P.O. PORORA, THALASSERY TALUK, KANNUR DISTRICT.** - **3 CHATHADI KANNOTH THANKAMANI D/O. KUNHIKANNAN NAMBIAR, `SREYAS HOUSE', KOLARI AMSOM, NALANKERI DESOM, P.O. PORORA, THALASSERY TALUK, KANNUR DISTRICT.** - **4 CHATHADI KANNOTH PUSHPAVALLY D/O. KUNHIKANNAN NAMBIAR, SOUPARNIKA HOUSE, PAZHASSI AMSOM, MATTANNUR, THALASSERY TALUK, KANNUR DISTRICT.** - **5 CHATHADI KANNOTH VIKRAMAN S/O. KUNHIKANNAN NAMBIAR, AGRICULTURIST, KANNOTH HOUSE, KOLARI AMSOM, METTADI DESOM, P.O. PORORA, THALASSERY TALUK, KANNUR DISTRICT.** RSA.No.1267 OF 2004 2 - **6 CHATHADI KANNOTH VIJAYALAKSHMI D/O. KUNHIKANNAN NAMBIAR, THIRUTHALI HOUSE, PURAMERI AMSOM DESOM, P.O. KADANCHERRY, VADAKARA TALUK, KOZHIKODE DISTRICT.** - **7 CHATHADI KANNOTH BHAVANI D/O. KUNHIKANNAN NAMBIAR, LAKSHMIPURAM HOUSE, MADAPEEDIKA, P.O. TEMPLE GATE, THIRUVANGAD AMSOM AND DESOM, THALASSERY TALUK, KANNUR DISTRICT.** - **8 RAMA RAJAN S/O. MEENAKSHI AMMA, KOLARI AMSOM, METTADI DESOM, PORORA P.O., THALASSERY TALUK, KANNUR DISTRICT.** - **9 PADMAJA @ PADMAJAKSHI** **S/O. MEENAKSHI AMMA, KOLARI AMSOM, METTADI DESOM, PORORA P.O., THALASSERY TALUK, KANNUR DISTRICT.** - **ADDL. T.V.REMANI,** - **R10 AGED 58 YEARS, W/O.LATE RAVINDRAN,RAVIMANDIRAM, COLARI AMSOM, PORORA P.O., THALASSERY, KANNUR DISTRICT.** - **ADDL. T.V.SHEMITHA,** - **R11 AGED 30 YEARS, D/O.LATE RAVINDRAN,RAVIMANDIRAM, COLARI AMSOM, PORORA P.O., THALASSERY, KANNUR DISTRICT.** - **ADDL. T.V.SHERITHA,** - **R12 AGED 28 YEARS, D/O.LATE RAVINDRAN,RAVIMANDIRAM, COLARI AMSOM, PORORA P.O., THALASSERY, KANNUR DISTRICT.** **(ADDITIONAL RESPONDENTS 10 TO 12 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 21.01.2020 IN IA.2046/2008.)** **BY ADV. SRI.M.P.JAYANANDAN FOR R1, R2, R3, R6, R7 BY ADV. SRI.CIBI THOMAS FOR R4, R5, R9 BY ADV. SRI.K.V.PAVITHRAN FOR R1, R2, R3, R6, R7 BY ADV.SRI.P.MARTIN JOSE FOR R3,R4,R6,R7, R10 TO R12 BY ADV.P.PRIJITH FOR R3,R4,R6,R7, R10 TO R12 BY ADV.SRI.THOMAS P.KURUVILA FOR R3,R4,R6,R7, R10 TO R12** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.1267 OF 2004 3 ## **CR** ## **JUDGMENT** The 9[th] defendant who is the appellant herein is the foster daughter of one Narayanan Nambiar and his wife Sreedevi Amma. Narayan Nambiar during his life time had executed Ext.B1 registered Will, by which, the properties were bequeathed to his wife Sreedevi Amma with a further clause that in the event of any property found left out on her demise, the same would go to their foster daughter, the 9[th] defendant. After the death of Sreedevi Amma, her natural legal heirs came up with the suit claiming right over the property by devolution. It was contested by the 9[th] defendant, the foster daughter, claiming exclusive right over the property based on the clause in the Will directing ultimate disposition in her favour. Thus, the construction of Ext.B1 Will and the legal validity of ultimate disposition made therein were came up as substantial question of law. 2. This Court in **Smitha K.S. and another v.** RSA.No.1267 OF 2004 4 **Devaki and another ( 2020 (2) KHC 42)** had the occasion to consider the impact of wording 'after the death of both of us, the property will go to' in a testamentary succession and held that the words indicate only a life interest. It is further held that when an apparently absolute bequest is followed by a gift of the same to another on the demise of the first, then the interest of the first bequest is considered as a life interest only and relied on the legal proposition laid down in **Ramachandra Shenoy and another v. Mrs. Hilda Brite and Others ( AIR 1964 SC 1323=1964 KHC 561=1964 (2)** **SCR 722)** without noticing the legal position settled by the Privy Council and a Constitution Bench of the Apex Court on the matter. 3. In the year 1935, the Privy Council had laid down the legal position in **Rameshwar Bakhsh Singh and others v. Balraj Kaur and others ( AIR 1935 PC** **187)** that where an absolute estate is created by a Will in favour of devisee, the clauses in the Will which are repugnant to such absolute estate cannot RSA.No.1267 OF 2004 5 cut down the estate; but they must be held to be invalid. 4. In **Ramkishorelal and another v. Kamalnarayan** **(1963 Suppl (2) SCR 417 = AIR 1963 SC 890)** , the Constitution Bench of the Apex Court settled the legal position that in a disposition of properties where a conflict arises between what is said in one part of the testament viz-a-viz what is stated in another part of the document especially when in the earlier part the bequest is absolute, but the later part of the documents gives a contrary direction about the very same property, the earlier clauses appearing in the Will cannot be diluted or taken away and shall prevail over directions contained in the later part of the disposition. The relevant portion of the judgment is extracted below for reference: “The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To RSA.No.1267 OF 2004 6 ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. …................................. .... It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible; it is only when this is not possible, e.g. where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.” 5. Subsequently, by referring the above said decisions, the Apex Court in **Mauleshwar Mani and others v. Jagdish Prasad and others ( AIR 2002 SC** RSA.No.1267 OF 2004 7 **727)** had reiterated and summarised the legal position that “ _1)Where under a Will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequeath which is repugnant to the first bequeath would be invalid and 2) Where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same Will.”_ It is further held that _“once the testator has given an absolute right and interest in his entire property to a devisee, it is not open to the testator to further bequeath the same property in favour of second set of persons in the same Will. A testator cannot create successive legatees in his Will. The object behind is that once an absolute right is vested in the first devisee, the testator cannot change the line of succession of first devisee. Where a testator having conferred an absolute right on any one of the subsequent bequeath for the same property in favour of other persons_ RSA.No.1267 OF 2004 8 _would be repugnant to the first bequeath in the Will and has to be held invalid_ ”. 6. Earlier, a three Judge Bench of the Apex Court in **Ramachandra Shenoy and another v. Mrs. Hilda Brite and Others ( AIR 1964 SC 1323 = 1964 KHC** **561 = 1964 (2) SCR 722)** [ the decision which was relied on by this court in **Smitha** 's case (supra)] had interpreted what actually amounts to life interest apart from absolute right and the impact of the wording “ _enjoyed by daughter and after her death by her male children too as permanent and absolute hukdars”_ in a testament and found that it would fall within the illustration (c) of Section 84 of Succession Act, 1865 ( corresponding to Section 97 of Indian Succession Act, 1925) and that what is bequeathed to the daughter is only a life interest. The rationale applied by the Apex Court so as to bring the matter under illustration (c) to Section 84 of Succession Act, 1865 ( corresponding to Section 97 of Indian Succession Act, 1925) should be understood in the context of the case, wherein the RSA.No.1267 OF 2004 9 rule of construction employed so as to remove the repugnancy. The Apex Court had taken into account the words used “she shall after my death enjoy” and rest of the clause deals with his intention to give the property to the male children of his daughter. Except the employment of words 'enjoy' and 'too', no absolute interest is given to the eldest daughter of the testator under the testament involved in that case and found to be a limited right of life interest by accommodating the absolute right given to her male children on her demise. The right of alienation or to transfer the property by the daughter of the testator is conspicuously absent. The rationale applied therein is based on the “rule of construction”. It is worthful to extract the relevant portion of the said judgment herein below : “It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring RSA.No.1267 OF 2004 10 successive interest, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It if for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely “on” or “after” or “at” A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.” 7. What is applied by the three Judge Bench of the Apex Court is the 'rule of construction' in the matter of interpretation of a particular clause incorporated in a testament by applying harmonious construction and gone upto the farthest extent so as to remove repugnancy and to give effect to the intention of testator to the possible extent. But it should be understood that what is applied by the RSA.No.1267 OF 2004 11 Apex Court in that decision is only rule of construction and not formulation of any legal position pertaining to any provision of law. What is applied by the Apex Court in **Ramachandra Shenoy** 's case (supra) hence cannot be taken as a legal position settled on the issue, but only the application of principle governing interpretation and rule of construction to have a harmonious interpretation, by removing the repugnancy. When rule of construction and principle governing interpretation applied, it should be understood in the context of factual issues involved in the case and it cannot be taken as a legal proposition laid down on any relevant provision of law. It is neither permissible nor advisable to mix up or inter-change a legal proposition or a provision of law with rule of construction of a document. It is always permissible when there are two repugnant provisions to proceed to the furthest extent to avoid repugnancy. But that does not mean that when an absolute interest created to a legatee with RSA.No.1267 OF 2004 12 ultimate disposition on the death of the devisee, the absolute interest created would stand scaled down to a life interest invariably in all cases. Needless to say that the above said decision was rendered without noticing the decision rendered by the Constitution Bench in **Ramkishorelal** 's case (supra). 8. Subsequently a Division Bench of this Court in **Sarawathi Ammal alias C.Kamala Bai v. Arjuna Pai Sreenivasa Pai and others ( 1970 KHC 327)** by referring the three Judge Bench decision of the Apex Court in **Ramachandra Shenoy** 's case (supra) had laid down the legal position that “ _In the teeth of this observation, even if the disposition was absolute both in favour of Padmavathi Ammal, and after her death, in favour of Sreenivasa Pai, the earlier absolute disposition is only apparently absolute and_ _the same has to be cut down so as to accommodate the_ _subsequent absolute disposition in favour of_ _Sreenivassa Pai. If that is how the document is to be interpreted, then the necessity to hold the_ RSA.No.1267 OF 2004 13 _subsequent disposition repugnant to the earlier disposition is also avoided_ .” The said legal position was formulated without noticing the earlier legal position settled by the Constitution Bench in **Kishorelal** 's case (supra). In fact, in **Ramachandra** **Shenoy** 's case (supra), no such proposition was laid down. What is observed in that decision is a clear application of rule of interpretation so as to have a harmonious construction of what actually amounts to 'enjoy' and the user of word 'too' which refers both the legatee at its first instance and the ultimate legatee incorporated in the testament which was found to be a life interest in favour of the legatee at its first instance and thereby accommodated the ultimate disposition in reference to the intention of testator. The observation made by the three Judge Bench of the Apex Court hence should be understood in the context of the factual scenario involved in the case and not as a proposition of law, especially when it was rendered without noticing the decision of Constitution Bench RSA.No.1267 OF 2004 14 of the Apex Court on the issue earlier in **Kishorelal** 's case ( supra). Hence the legal position settled in **Sarawathi Ammal alias C.Kamala Bai v. Arjuna Pai Sreenivasa Pai and others ( 1970 KHC 327)** by a Division Bench of this Court cannot be held good law. It is against the legal proposition laid down by the Constitution Bench of the Apex Court in **Kishorelal** 's case (supra). 9. Very recently, in yet another case, the Apex Court in **Sadaram Suryanarayana v. Kalla Surya Kantham ( AIR 2011 SC 294: (2010) 13 SCC 147)** by referring to Section 82 of Indian Succession Act, 1925, had reiterated the legal position that an absolute bequest was made in favour of daughters of testatrix in first part of the Will and use of expression _'after the demise of my daughters, the remaining property shall devolve upon their female children in subsequent part of Will would be not_ _'stricto sensu'_ , _but amounts to bequest contrary to_ _one made earlier in favour of daughters and that the corollary would be that upon their demise, the_ RSA.No.1267 OF 2004 15 _estate owned by them would devolve by ordinary law of succession on their heirs and not in terms of Will executed by the testatrix._ The relevant portion of the judgment is extracted below for reference: “ _Where the intention of the testatrix to make an absolute bequest in favour of her daughters in earlier part of Will was unequivocal, use of expression “after demise of my daughters the retained and remaining properties shall devolve on their female children only”, in subsequent part of Will would not stricto sensu amount to a bequest contrary to the one made earlier in favour of the daughters of the testatrix. The expression does not detract from the absolute nature of the bequest in favour of the daughters. All that the testarix intended to achieve by the latter part was the devolution upon their female offsprings all such property as remained available in the hands of the legatees at the time of their demise. There would obviously be_ RSA.No.1267 OF 2004 16 _no devolution of any such property upon the female offspring in terms of the said clause if the legatees decided to sell or gift the property bequeathed to them as indeed they had every right to do under the terms of the bequest. Seen thus, there was no real conflict between the absolute bequest which the first part of the Will made and the second part which dealt with the devolution of what and if at all anything that remains in the hands of the legatees. The two parts operate in different spheres, namely, one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the other regulating, devolution of what may escape such sale, gift or transfer by them. The latter part was redundant by reason of the fact that the same was repugnant to the clear intention of the testatrix in making an absolute bequest in favour of her daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to_ RSA.No.1267 OF 2004 17 _the lot of the next generation females or otherwise. The stipulation made in the latter part did not in the least affect the legatees being the absolute owners of the property bequeathed to them. Corollary would be that upon their demise estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the testatrix.”_ 10. In another case, this Court in **Cloyi v.** **Peravankutty ( 1995 KHC 370)** by referring **Ramachandra Shenoy** 's case (supra) had laid down the legal proposition that “ _when an apparently absolute_ _bequest is followed by a gift of the same to another on the demise of the first, then the interest of the first bequest is considered as a life interest only”_ without noticing the earlier decision of the Constitution Bench of the Apex Court in **Kishorelal** 's case (supra),hence cannot be held good law. The very same legal proposition was followed by yet another Bench of this Court in **Smitha K.S. and** RSA.No.1267 OF 2004 18 **another v. Devaki and another ( 2020 (2) KHC 42)** , hence cannot be held good law. 11. It is however that an attempt should always be made to read two parts of a document harmoniously if possible and when it is found that the title was given in absolute clear terms to a devisee, the later provision dealing with the line of succession on the demise of the first devisee would be repugnant to the earlier disposition and the same cannot be scaled down to a life interest. 12. A clause in a testament enabling one of the legatees to enjoy the property during his/her life time should be understood apart from an absolute right created with the right of alienation and transfer of interest given to a legatee. In the absence of a right of alienation or transfer of interest given to a legatee, the benefit given either by way of life interest or by giving an authority to encumber the property except the right of alienation or transfer of ownership, should always be construed as a limited right or interest RSA.No.1267 OF 2004 19 in which a clause enabling an ultimate disposition of the property to some other legatee would stand valid. In the case wherein right of alienation or transfer of interest created in favour of one of the legatees, a further clause that the property would go to some other person on the death of the devisee would stand repugnant to the earlier disposition and as such would be invalid. The principle behind it was also discussed by the Apex Court in **Mauleshwar** **Mani** 's case (supra) that the law does not permit to create successive legatees under a Will. It is open to the testator to make a bequeath of his choice to any person he likes. But there cannot be a repugnant clause dealing with the line of succession of that person on his demise. 13. When there is a repugnant clause permitting an ultimate disposition on the demise of legatee in whose favour the disposition was given in absolute, the ultimate disposition would fail and there cannot be any application of Sections 85, 86 or 87 of the Indian Succession Act or the application of RSA.No.1267 OF 2004 20 harmonious interpretation to effectuate the ultimate disposition. There cannot be any scaling down of earlier absolute disposition so as to accommodate an ultimate disposition on the death of the legatee in whose favour the earlier absolute disposition was given under the testament. In the instant case, what is given to the wife of testator, is a right to enjoy and right to alienate the property during her life time and if any found to be left out on her death, it would devolve upon the 9[th] defendant, the foster child brought up by them. Since absolute right of transfer was given to the wife of testator, the further clause that whatever the property left out by the devisee on her demise would go to the 9[th] defendant is repugnant to the earlier disposition and as such not valid. No other substantial question of law brought to the notice of this court. The appeal fails, dismissed. No costs. ## **Sd/-** sv ## **P.SOMARAJAN JUDGE** RSA.No.1267 OF 2004 21