P. M. Nanda Kumar v. P. M. Mudabai and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** ## **RSA.No. 764 of 2003(G)** **AGAINST THE JUDGMENT AND DECREE DATED 09-12-2002 IN AS 40/2000 OF PRINCIPAL SUB COURT,THALASSERY** **AGAINST THE JUDGMENT AND DECREE DATED 28-01-2000 IN OS 206/1996 OF MUNSIFF COURT, THALASSERY** ## **APPELLANT/PLAINTIFF:** **P.M.NANDA KUMAR,S/O.CHANDRASEKHARAN, AGED 29 YEARS, RESIDING AT NO.31, UPSTAIR, BALUMADALI STREET, NORTH T.NAGAR, MADRAS. BY ADVS. SRI.C.KHALID SRI.P.VISWAMBARAN SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID** ## **RESPONDENTS/DEFENDANTS:** - 1 **P.M.MUDABAI, D/O.LATE M.P.CHANDRASEKHARAN, AGED 56 YEARS, MANAGER, DHARMADAM BASIC U.P. SCHOOL, RESIDING AT 'N-SADANAM', DHARMADAM AMSOM DESOM, THALASSERY TALUK(DIED) THE FACT OF DEATH OF THE 1ST RESPONDENT IS RECORDED AS PER THE ORDER DATED 12.4.2012 IN I.A.1076/2012** **(DEATH RECORDED AND LEGAL HEIRS IMPLEADED)** - 2 **P.M.VINAYAKUMAR, S/O.CHANDRASEKHARAN, AGED 53 YEARS, BILL COLLECTOR, THALASSERY PUBLIC SERVICE CO-OP. BANK LTD., M.G.ROAD, RESIDING AT NITHYANANDA SADANAM, DHARMADAM AMSOM, DESOM, THALASSERY TALUK.** - **(LEGAL HEIRS IMPLEADED AS SUPPL. RESPONDENTS 10 TO 13)** - 3 **P.M.INDUMATHI, D/O.LATE M.P.CHANDRASEKHARAN, AGED 49 YEARS, CRAFT TEACHER, DHARMADAM BASIC U.P.SCHOOL, RESIDING AT THARACHAND HOUSE, KIZHUNNA, THOTTADA, KANNUR. P.M.SUBHATHI, D/O.LATE CHANDRASEKHARAN, AGED 45** - 4 **YEARS, TEACHER, -DO-, RESIDING NEAR INDUSTRIAL ESTATE, PALAYAD, THALASSERY.** - 5 **P.M.UPESHKUMAR, S/O.CHANDRASEKHARAN, AGED 36 YEARS, TAILOR, N-SADANAM, DHARMADAM AMSOM, DESOM, THALASSERY.** - 6 **VANNATHAN VEETTIL MORAKKAN SARADA, W/O.CHANDRASESHARAN, DHARMADAM AMSOM, DESOM, THALASSERY.** ## **RSA.No. 764 of 2003 2** ## **LEGAL HEIRS OF DECEASED R1 IMPLEADED** **ADDL.R7 P.M.VIJITHKUMAR, AGED 32 YEARS, S/O.LATE SREEDHARAN, RESIDING AT N-SADANAM, DHARMADOM AMSOM, DESOM, THALASSERY TALUK.** > **ADDL.R8 P.M.JATHIMOL, AGED 30 YEARS, MENTALLY RETARDED REP. BY NEXT FRIEND P.M.VIJITHM KUMAR, RESIDING AT N-SADANAM, DHARMADOM AMSOM, DESOM, THALASSERY TALUK ADDL.R9 P.M.SREESHANTHI, AGED 27 YEARS, D/O.LATE SREEDHARAN, W/O.SANJEEVAN, RESIDING AT KRISHNALAYAM, CHERIKKAL, PINARAYI POST, THALASSERY LEGAL HEIRS OF DECEASED R1 IMPLEADED AS ADDL.R2 TO R9 AS PER ORDER DATED 14.6.12 IN I.A.NO.1077/12 SUPPLEMENTAL RESPONDENTS** 10 **SMT. A SUNDRI, AGED 65 YEARS, W/O.LATE P.M.VINAYAKUMAR, RESIDING AT NITHYANANDA SADAN, SWAMIKUNNU, VATTAKALLUR ROAD, DHARMADA SUNIL KUMAR.A, AGED 37 YEARS, S/O.LATE** 11 **P.M.VINAYAKUMAR RESIDING AT NITHYANANDA SADAN, SWAMIKUNNU, VATTAKALLUR ROAD, DHARMADA** 12 **SAVITHA.A, AGED 35 YEARS, D/O.LATE P.M.VINAYA KUMAR, RESIDING AT SAKETHAM, YOUTH BUS STOP, MUZHAPPILANGAD** 13 **SAJITHA.A, AGED 32 YEARS, D/O.LATE VINAYA KUMAR, RESIDING AT NITHAYANANDA SADAN, SWAMIKUNNU, VATTAKALLUR ROAD, DHARMADA LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 10 TO 13 AS PER ORDER DATED 13.03.2017 IN I.A.NO.562/2015 BY ADVS. SRI.T.V.MAMMOOTTY ADDL.R10 TO R13 SMT.MUDABAIINDUMATHISUBATHI-PARTIES SMT.S.LAKSHMY – R5 TO R6 SRI.M.PROMODH KUMAR – R9 SRI.P.NARAYANAN R3,R4, R9 AND ADDL.R7 TO R9 SRI.R.PARTHASARATHY – R5 TO R6** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No. 764 of 2003 3** ## **JUDGMENT** A suit for partition was decreed by the trial court granting preliminary decree. In appeal it was reversed, against which the original plaintiff came up with this second appeal. 2. The subject matter of the partition is a landed property having an extent of 17.5 cents and a school building situated therein. Plaintiff claims that he is the son of deceased Chandrasekharan and D1 to D5 are the other children and 6[th] defendant is the second wife of deceased Chandrasekharan. Both the plaintiff and defendants 1 to 5 claims their respective right, title and interest over the property based on Ext.B1 Will left out by their father deceased Chandrasekharan. The plaintiff claims that as per the clauses in the Will the plaint schedule property, a landed property of 17.5 cents and the school building ## **RSA.No. 764 of 2003 4** therein would equally goes to the children of deceased Chandrasekharan, as such he is entitled to 1/6[th] share over it. The trial court upheld the contention of the plaintiff and decreed the suit granting preliminary decree, but in appeal reversed and the suit was dismissed. 3. The dispute is centered around Ext.B1 Will and its construction. There is a judicial consonants a suit for partition would not fall under the mischief of Section 61 of the Kerala Education Act 1958 (Kerala). (See _**Maroli Balan v.**_ _**Maroli Dannu & others (1986 KLT 919), Kottayath**_ _**Thekkekovilakath Sree Ranjini Amma Raja v. Padmini**_ _**Kettilamma (2016 (3) KLT 526)**_ and _**Jose v. Antony**_ _**(2001 KHC 572)**_ ). A suit for partition with respect to a property wherein a school is functioning hence, is perfectly maintainable. 4. As discussed earlier, the dispute is centered around the construction of Ext.B1 Will and ## **RSA.No. 764 of 2003 5** the deposition there under in favour of the legatees. Ext.B1 Will is executed in favour of six persons, the children of deceased testator. There are two residuary clauses to the Will that whatever the property left out or found to be belonged to the testator will go to his children, the six persons named in the Will as legatees in equal shares. There is also another residuary clause which says that the property which were found to be belonged to the testator except which are mentioned in the margin will also go to all the children in equal shares. It is based on these two residuary clauses, the plaintiff claims that she is entitled to 1/6[th] share over the property and that the plaint schedule property will go equally to all the children as per the residuary clause Nos.1 and 2. Going by Ext.B1 Will it is clear that 17 ½ cents of landed property and the school by name Dharmadam Upper Primary School including furniture thereon ## **RSA.No. 764 of 2003 6** with the land comprised in Re-Survey No.59/9A of Dharmadam Desom, Kizhakkevalappu Padinjare Amsom incorporated as the only property included in the margin. In other words, in the margin only one property incorporated i.e., the plaint schedule property. Residuary clause clearly excludes the property made mentioned in the margin and deals with the deposition, but devolution of successive interest to the legatees. So in any view of the matter, clause No.2 would not help the case advanced by the plaintiff. 5. The clause one is having a clear exclusion by stating that except those which are referred above, all the assets belonging to the testator would go to all his six children equally and they should take it equally. In other words, residuary clause No.1 also intents an exception excluding what is made mentioned in the main body of the Will. Main body of the Will is having two separate ## **RSA.No. 764 of 2003 7** and independent portions/parts. One is the property scheduled in the margin and other one dealing with the deposition of the property made in the margin. It is stated that the property scheduled in the margin and all structures and the school, its management along with the right of correspondence is owned, possessed and enjoyed by the testator and it will continue as such till his death. It is further recited that after his death the school management, right of correspondence, everything attached to the school and all other things including the furniture kept in the school will be vested with his elder daughter Mudabai. There is a further clause stating that the defendants 3 and 4, who are the other two daughters should assist the elder daughter the first defendant, Mudabai in the management of the school. It is further stated that the elder daughter (first defendant) Mudabai shall give 1/4 of the annual profit from the ## **RSA.No. 764 of 2003 8** school to his son Umeshkumar, who is the 5[th] defendant in the suit. With a further direction that she shall pay an amount of Rs.75/- being the 'purappad' amount (rent) to the Jenmy and she shall conduct all the repair work and maintenance work of the school building and shall conduct the school. As discussed earlier, clauses 1 and 2 really excludes the deposition of property already entered in the margin of the Will. It is true that no where it is stated by the testator that he had given the title or a limited right if any, over the property by way of lease or otherwise to his elder daughter Mudabai. But the description of the property in the margin includes the landed property and the building structures therein, which constitute the first part. The second part deals with its deposition though there is no specific mentioning of limited lease hold right over the property. The expression used in the second part ## **RSA.No. 764 of 2003 9** of the body that the elder daughter Mudabai, first defendant would get everything attached to the school inclusive of its furniture and that she should pay annual rent to the original lessee and that she should conduct every repair work in connection with the school and manage the school would clearly show the intention of the testator in clear terms without leaving any ambiguity. The right given to her to pay the annual rent by her to the original Jenmy over the school property after his death assumes importance that it is not a mere agency or right to pay rent, but to hold the lease hold right over the property after his death. No other contra inference is possible to draw from the wording used in the main body of the Will. The testator permitted the first defendant, eldest daughter to hold the property to manage the school building of the property and to take the yield and profit from the property and to pay annual monthly ## **RSA.No. 764 of 2003 10** rent to the Jenmy and to do whatever required in connection with the school, would show a clear deposition of entire right held by the testator over the property shown in the margin. Since there is a provision for paying rent after his death, it can be safely concluded that what is stated by the testator is only a lease hold right, that is what is actually given under the Will. - Yet another aspect is also available to non suit the plaintiff going by Ext.B1 Will. The Will was executed only with respect to the property wherein the school building is situated having an extent of 17 ½ cents and that property alone was shown in the margin. Regarding the other assets and property owned by the testator is concerned it was included in the residuary clauses stated in the last portion of the Will which are two in number. In short, in the main body of the Will, nothing mentioned with respect to the deposition or bequest ## **RSA.No. 764 of 2003 11** of other property other than the landed property and the building scheduled in the margin. Though the Will is executed in respect of all assets belonging to the testator, as discussed earlier, the bequest regarding all the assets belonging to the testator not incorporated in the main body of the Will but included in the residuary clauses, two in number. Construction of a Will being a question of law, it is within the jurisdiction of this court to construe the same in its correct perspective and in accordance with the mandate under Section 81 to 88 of the Indian Succession Act. Needless to say that Section 81 to 88 stands promoting the bequest under the Will and not to defeat. Since the bequest under Ext.B1 in respect of the plaint schedule property is clear and unambiguous. I am of the view that the first appellate court rightly applied the legal position and dismissed the suit. Nothing else brought to the notice of this court in **RSA.No. 764 of 2003 12** order to have an interference in the matter and hence, appeal fails, dismissed, but without costs. This appeal is dismissed. No costs. **Sd/P.SOMARAJAN, JUDGE** pm **// TRUE COPY // PA TO JUDGE**