MANU MATHEW & OMANA MATHEW v THANKACHAN THOMAS & MARY JOSEPH

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 13TH DAY OF DECEMBER,2013/22ND AGRAHAYANA 1935 FAO.No. 15 of 2012 () ---------------------- AGAINST THE ORDER/JUDGMENT IN AS 35/2009 of SUB COURT, PALA DATED 2708-2011 AGAINST THE ORDER/JUDGMENT IN OS 179/2006 of MUNSIFF COURT, PALA DATED 30-01-2009 APPELLANT(S)/APPELLANTS/DEFENDANTS NOS.1 &2 --------------------------------------------------------------------- ## 1. MANU MATHEW CHEMPULAYIL HOUSE, LALAM, PALA KOTTAYAM DISTIRCT, PIN-686 575. ## 2. OMANA MATHEW CHEMPULAYIL HOUSE, LALAM, PALA KOTTAYAM DISTRICT, PIN-686 575. BY ADVS.SMT.ELIZABETH MATHAI IDICULLA SRI.RACHEL JOSEPH SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA SMT.R.RAJASREE (CHUTTIMATTATHIL) RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS NO.3 ----------------------------------------------------- 1. THANKACHAN THOMAS CHEMPULAYIL HOUSE, KAROOR P.O., KOTTAYAM DISTRICT PIN-686 574. ## 2. MARY JOSEPH CHEMPULAYIL HOUSE, KAROOR P.O., KOTTAYAM DISTRICT PIN-686 574.(DIED) LRS RECORDED (IT IS RECORDED THAT SECOND RESPONDENT EXPIRERD AND FIRST RESPONDENT IS THE LEGAL HEIR OF THE DECEASED SECOND RESPONDENT VIDE ORDER DATED 24/9/12 IN FAO 15/12) R1 BY ADV. SRI. MATHEW JOHN (K) R1 BY ADV. SRI. DOMSON J.VATTAKUZHY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10- 12-2013, THE COURT ON 13/12/2013 DELIVERED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN,J.** ## **==========================** **F.A.O. No. 15 of 2012 ===========================** **Dated, this the 13th day of December, 2013** ## **JUDGMENT** Appeal is directed against the Order of remand passed by the learned Sub Judge, Pala in A.S.35/2009 arising from the decree passed in O.S.179/2006 by the learned Munsiff, Pala, by which the decree passed in favour of the plaintiff/first respondent was set aside and the case was remanded for fresh disposal with some directions. 2. Suit was one for fixation of boundary and injunction which was decreed by the trial court. That decree was reversed in the appeal preferred by the present appellants/defendants 1 and 2 in the suit by learned Sub Judge directing to fix the boundary of plaint F.A.O.15/2012 2 property,particularly, on one of its sides with that of third defendant and also another, who was not a party to the suit. The trial court was directed to remit the commission report and plan to the same Commissioner and surveyor, if available, for such identification. A further direction was issued to the trial court to provide opportunity to parties to amend the pleadings “for passing an executable decree if any such request was made on remand of the case.” Aggrieved by the order of remand passed by the learned Sub Judge, appellants have preferred the present appeal. 3. I heard the counsel on both sides. The controversy involved in the suit with reference to the pleadings of parties and the reliefs canvassed by plaintiff requires to be taken note of. Admittedly, plaint schedule property belonged to late Joseph, grandfather of first defendant and husband of third defendant. He had executed Ext.B1 will making a bequest of the plaint property in favour of his wife third defendant. After the death of third defendant, in the event of plaint F.A.O.15/2012 3 property not disposed or alienated by her, it would devolve upon first defendant, grandson of testator, was the subsequent clause in the will. Plaintiff claimed title and possession over plaint property under Ext.A1 title deed executed by third defendant, who remained ex parte in the suit. First and second defendants resisted the suit claim setting forth two-fold contentions. Third defendant under Ext.A1 will had only an intermediary right and bequest of plaint property was made by testator in favour of first defendant, his grandson, and as such alienation of plaint property made by third defendant under Ext.A1 deed is void. The next contention was that Ext.A1 is a product of fraud. That deed was created exerting undue influence on third defendant, who at the time of its registration, had lost her cognitive faculties to take independent decision on account of her old age and senile condition. Ext.A1 was not voluntarily executed by third defendant on her free will and it is vitiated by fraud and undue influence exerted on the executor, was the F.A.O.15/2012 4 contention. Challenges raised as aforesaid, both of them, after appreciating the materials tendered in the case, had been found against by the trial court as well as the first appellate court. Over and above the challenges canvassed in the written statement as indicated, before both the courts below another challenge was mooted to resist the suit claim based on Ext.A1 contending that Ext.B1 will contained inconsistent clauses over the bequest made, and a true and correct interpretation of the testament would show that bequest was made in favour of the first defendant, and the third defendant, wife of testator, was given only intermediary rights over the properties bequeathed to have life interest, that alone, over them. That line of attack raised by defendants but not canvassed in their written statement had been gone into by both the courts. After examining the clauses under Ext.B1 will trial court found that challenge meritless, and its finding thereof was affirmed by the appellate court also. However, the appellate court reversed the decree granted in F.A.O.15/2012 5 favour of plaintiff on the premise that proper identification of plaint property fixing its boundary correctly has not been done in the case. 4. In the present appeal challenge against the order of remand is made reiterating the contention of appellants that Ext.B1 will contained inconsistent provisions and a true interpretation of that testament would show that bequest over the property was made in favour of first defendant. When that be so, plaintiff could not derive any title under Ext.A1 sale deed executed by third defendant, is the submission of learned counsel for appellants placing reliance on Section 88 of the Indian Succession Act. In the latter part of Ext.B1 an absolute estate is created in favour of first defendant, grandson of testator, and the bequest made under that clause was inconsistent with the earlier clause in the testament, by which bequest was made in favour of third defendant, the wife of testator. When the testament evinced inconsistent provisions over the bequest made,a true interpretation of the will would show that the F.A.O.15/2012 6 subsequent part, clause or portion would prevail over the earlier part, is the submission of counsel relying on **K.Ambunhi v. H.G.Bhandary (AIR 1995 SC 2491).** The two clauses/parts under the Ext.B1 will relating to the bequest made in favour of the wife, under the first clause, and that of his grandson, first defendant under the second clause, which are stated to be inconsistent are reproduced in his judgment by the learned Munsiff, who, after examining both parts found that there is no inconsistency in the bequests made. Conclusion formed by the learned Munsiff had been approved by the learned Sub Judge also after examining the aforesaid clauses under the will. A copy of Ext.B1 will has been made available for my perusal. I do not find any inconsistency under the two different clauses appearing in two different parts of the testament. In the earlier clause while making a bequest in favour of the third defendant, his wife, the testator has stated that the legatee, his wife, has absolute right to dispose the property bequeathed. In the latter clause under the will F.A.O.15/2012 7 what has been stated is that if properties bequeathed to his wife, after her life if not alienated or disposed by her, would devolve upon his grandson. There is no inconsistency between the two clauses in the will as correctly held by both the courts below. Challenge raised to impeach the order of remand passed by the first appellate court on the aforesaid ground is baseless and the decision cited by learned counsel for appellants has no application to the case. **==> picture [398 x 13] intentionally omitted <==** inconsistency in the clauses under the will, which alone was raised to impeach the decree of trial court, the first appellate court has remanded the case setting aside that decree holding that proper identification of plaint property has not been done. Such a view was taken after examining Ext.C2(a)plan prepared by commissioner with boundary description in Ext.A1 document, and forming an opinion that one of the adjoining property owners beside plaint property, namely, Chinnamma has not been made a party in the suit. F.A.O.15/2012 8 Learned Sub Judge has observed that fixation of the identity of her property is also necessary in the case. Plaintiff has stated in his evidence that the above said Chinnamma has no dispute over the boundaries separating their properties. Order of remand made referring to the boundary description in Ext.A1 deed doubting the veracity of Ext.C2(a) plan, which had been approved by trial court after considering the evidence of advocate commissioner, who was examined as a witness in the case, cannot be approved. Of course if the court finds that Ext.C2(a) plan prepared by the Commissioner is incorrect, it can order for remand of the case to prepare a fresh plan fixing the boundaries of plaint property afresh. But the reasons stated by first appellate court on the face of it, expressed in paragraph 17 of its judgment, cannot be appreciated. So much so, the Order of remand passed on such reasoning is liable to be set aside. But I make it clear it is open to the first appellate court to examine whether Ext.C2(a) plan suffers from any infirmity. F.A.O.15/2012 9 If that is found to be so, it can no doubt remit the case for fixing the boundaries of plaint property afresh through the Advocate Commissioner. Subject to the above observations the order of remand passed by first Appellate Court is set aside and the learned Sub Judge is directed to take back the appeal A.S.No.35/2009 and consider the limited question over the acceptability of Ext.C2 (a) plan and, then, pass appropriate orders for disposal of that appeal. I make it clear that the other challenges raised in the appeal by the appellants to impeach the decree of trial court would not arise for further consideration, and the findings entered thereof shall be conclusive. Appeal is disposed of as indicated above directing the parties to appear through their counsel before the Sub Court, Pala on 20.12.2013. Both parties are directed to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE F.A.O.15/2012 10 tpl/- tpl/- tpl/- S.S.SATHEESACHANDRAN,J. ----------------------- A.S.No.893 of 1996 & CROSS OBJECTION ----------------------- F.A.O.15/2012 11 ## JUDGMENT 3[rd] October,2013