RSA No.796 of 2019

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** ## **RSA.No.796 OF 2019** **AGAINST THE DECREE AND JUDGMENT DATED 31.10.2018 IN AS NO.91/2013 OF SUB COURT, TIRUR WHICH ARISES FROM THE DECREE AND JUDGMENT DATED 19.08.2013 IN OS NO.123/2011 OF MUNSIFF-MAGISTRATE'S COURT, PONNANI** ## **-----** ## **APPELLANTS/APPELLANTS 1 AND 3/PLAINTIFFS 1 AND 3:** |**1**|**SMITHA K.S.,**| |---|---| ||**AGED 39 YEARS,**| ||**W/O.LATE MANIKANDAN, VARIVALAPPIL HOUSE, PIDAVANNUR**| ||**P.O., NANNAMMUKKU AMSOM, PONNANI TALUK, MALAPPURAM,**| ||**PIN-679577.**| |**2**|**ATHUL JYOTHI,**| ||**AGED 24,S/O.SMITHA K.S.,**| ||**W/O.LATE MANIKANDAN, VARIVALAPPIL HOUSE, PIDAVANNUR**| ||**P.O.,**| ||**NANNAMMUKKU AMSOM, PONNANI TALUK, MALAPPURAM,**| ||**PIN-679 577.**| **BY ADVS. SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH** ## **RESPONDENTS/RESPONDENTS AND 2ND APPELLANT/DEFENDANTS AND 2ND PLAINTIFF:** |**1**|**DEVAKI,**| |---|---| ||**AGED 79, W/O.CHOZHI @ VASU,**| ||**VARIVALAPPIL HOUSE, PIDAVANNUR P.O.,**| ||**NANNAMMUKKU AMSOM, PONNANI TALUK, MALAPPURAM,**| ||**PIN-679 577.**| |**2**|**RADHA,**| ||**AGED 53,D/O.CHOZHI @ VASU,**| ||**VARIVALAPPIL HOUSE, PIDAVANNUR P.O.,**| ||**NANNAMMUKKU AMSOM, PONNANI TALUK, MALAPPURAM,**| ||**PIN-679 577.**| **RSA.No.796 OF 2019 -2-** **3 ASWIN ANAND, AGED 25,S/O.SMITHA K.S., W/O.LATE MANIKANDAN, VARIVALAPPIL HOUSE, PIDAVANNUR P.O., NANNAMMUKKU AMSOM, PONNANI TALUK, MALAPPURAM, PIN-679 577.** **R1-2 BY ADV. SRI.K.K.MOHAMED RAVUF R1-2 BY ADV. SRI.P.CHANDRASEKHAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2020, THE COURT ON 11.02.2020 DELIVERED THE FOLLOWING:** **“C.R.”** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = RSA No.796 of 2019** **= = = = = = = = = = = = = = = = = = Dated this the 11[th] day of February, 2020** ## **JUDGMENT** Whether the right vested with the first defendant under Ext.A5 Will is a life interest or absolute right, is the short question for determination in the appeal. The suit is one for a declaration that, the defendants have no right to create documents in respect of the plaint schedule properties in denial of the rights of the plaintiffs, and for prohibitory injunction against alienation. The suit was dismissed by the trial court. The decree was confirmed in appeal. Challenging the decree, the plaintiffs are in second appeal. 2. The first defendant is the wife of late Chozhy @ Vasu who was the original owner of the plaint schedule properties. They had two sons - Gangadharan and Manikantan, and a daughter who is the second defendant in the suit. Manikantan is no more. The plaintiffs are the wife and children of RSA No.796 of 2019 :- 2 :- Manikantan. The rights of Gangadharan is not in issue in the suit and he is not a party. 3. Schedule-I to the plaint consists of two items; item No.1 having an extent of 15 cents and item No.2 having an extent of 48 cents. Schedule-II is 33 cents. 4. The properties described in Schedule-I were gifted to Manikantan, the predecessor-in-interest of the plaintiffs, by Chozhy @ Vasu as per Ext.A3 Settlement Deed. Plaintiffs 2 and 3 claim right over the property described in Schedule-II to the plaint as per Ext.A5 Will executed jointly by Chozhy @ Vasu and his wife the first defendant. According to the plaintiffs, though under Ext.A5 Will the first defendant has only a life interest, under the instigation of the second defendant, the first defendant is making preparations to execute conveyances in respect of the plaint schedule properties. It is accordingly that the suit is filed. 5. As regards the properties included in schedule-I to the plaint, on the death of RSA No.796 of 2019 :- 3 :- Manikantan, the properties devolved on his legal heirs viz. the plaintiffs and the first defendant who is the mother of Manikantan. That the first defendant is a co-owner of the properties in Schedule-I cannot be disputed. She has every right to deal with her share over the properties in Schedule Item No.I. There is hardly any challenge regarding the same. 6. The dispute involved is essentially regarding the property included in Schedule-II to the plaint, as to, whether under Ext.A5 Will the first defendant gets absolute right or only a life interest over the same. The courts below held that, under Ext.A5 Will, the first defendant got absolute right, and accordingly dismissed the suit. 7. Heard learned Senior Counsel Sri.T.Krishnanunni on behalf of the appellantsplaintiffs and Sri.K.K.Mohammed Ravuf learned counsel for the respondents-defendants, on the following substantial question of law:- _“When under Ext.A5 Will, a bequest is made to the_ _first defendant with a gift over to plaintiffs 2 and 3, is_ RSA No.796 of 2019 :- 4 :- _not the apparent absolute interest given to the first_ _defendant to be read down as a life interest?”_ 8. Ext.A5 Will is executed jointly by the husband and wife viz. Chozhy @ Vasu and the first defendant. Ext.A5 deals with two items of properties; one is an immovable property having an extent of 38 cents belonging to Chozhy @ Vasu and the other item is bank deposits belonging to the first defendant. The introductory part of Ext.A5 Will traces the exclusive title of Chozhy @ Vasu over the 38 cents. It further recites that out of the larger extent, after conveyance, 38 cents of property is retained for the testators to reside, enjoy the usufructs during their life and with the right of alienation. It is further recited that, on the death of the testators, the property is to devolve as per the directions in the Will. 9. In the operative part of Ext.A5 Will where the dispositions are made, 5 cents out of the 38 cents is bequeathed to their son Gangadharan absolutely, to vest on the death of both the RSA No.796 of 2019 :- 5 :- testators. The remaining 33 cents is bequeathed to plaintiffs 2 and 3, the children of Manikantan absolutely, to vest on the death of both the testators. With respect to the bank deposits the same is bequeathed to all the children of the testators, and plaintiffs 2 and 3, to vest on the death of both the testators. 10. Chozhy @ Vasu who is the owner of the 38 cents being no more, would any right vest with the first defendant, and if so, what is the extent of the right, whether it is absolute or only a life interest? 11. Regarding the immovable property, Sri.Chozhy @ Vasu was the absolute owner and with respect to the bank deposits it is the first defendant. When they jointly expressed that it is only on the demise of both the testators that the legatees will get the properties, necessarily there is a bequest interse, the first defendant insofar as the immovable property is concerned, and Chozhy @ Vasu with respect to the bank deposits. Therefore, it can only be held that, under Ext.A5 RSA No.796 of 2019 :- 6 :- Will, both Chozhy @ Vasu and the first defendant were constituted as legatees with respect to the property of each other. Such a construction of Ext.A5 is accepted by both the parties. However, the dispute is, whether the interest created is only a life interest or is it an absolute right. 12. Two statutory provisions significant for the construction of the terms of Ext.A5 Will, in the context of the facts at hand are, Sections 86 and 95 of the Indian Succession Act, 1925. For the sake of convenience they are extracted hereunder:- ## S.86: Interpretation of words repeated in different parts of will. _If the same words occur in different parts of the same will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears._ ## S.95: Bequest without words of limitation. _Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him._ ## 13. As regards the three dispositions (re:5 RSA No.796 of 2019 :- 7 :- cents, 33 cents and bank deposits) made in Ext.A5 Will, the recitals are verbatim and it reads thus, “...ഞങ്ങൾ രണണ്ടാളുടടേയയും മരണടശേഷയും മണ്ടാതയും...”. Section 86 of the Indian Succession Act provides that, when the same words appear at various parts of a Will, it has to be understood in the same sense throughout the document. Therefore, if the said recital is construed as vesting an absolute interest interse over their respective properties, then the same meaning has to be attributed to all the three dispositions made under Ext.A5 Will. Going by Section 95 of the Indian Succession Act, the legatee is entitled to the whole interest which the testator had, unless, the recitals in the Will signify that only a lesser interest is intended under that bequest. Here, the further recital with respect to the bank deposits of the first defendant assumes significance. There it is stated, “ഞങ്ങൾ രണണ്ടാളുടടേയയും മരണടശേഷയും മണ്ടാതയും ടമൽ പറഞ്ഞ നനിടക്ഷേപയും ബണ്ടാങനിൽ ച ” . Therefore, evidently Chozhy അവടശേഷനി നിരനിക്കുന്ന പക്ഷേയും RSA No.796 of 2019 :- 8 :- @ Vasu, as a legatee, has the authority to use/appropriate the amounts in deposit, which amounts to grant of an absolute interest over the deposits. Such a clause is conspicuously absent in the dispositions with respect to the immovable property. If the words, “ഞങ്ങൾ രണണ്ടാളുടടേയയും മരണടശേഷയും മണ്ടാതയും” were used to denote creation of absolute interest, then there was no necessity for the further recital, “ടമൽ പറഞ്ഞ നനിടക്ഷേപയും ബണ്ടാങനിൽ അവടശേഷനിചനിരനിക്കുന്ന പക്ഷേയും” when it came to the bank deposits alone. Therefore, it can only be construed that, the words “ഞങ്ങൾ രണണ്ടാളുടടേയയും മരണടശേഷയും മണ്ടാതയും” is used to indicate only a life interest. Resultantly, it is to be held that, in respect of the bank deposits, absolute right was conferred on Chozi @ Vasu, and with respect to the immovable property, the first defendant was given only a life interest. 14. That apart, law is well settled that the terms of a Will must be construed in such a manner RSA No.796 of 2019 :- 9 :- as to avoid any disposition becoming otiose or to avoid failure of any disposition. The retaining of interest for the other testator, followed by an absolute disposition in favour of Gangadharan and plaintiffs 1 and 2 has to be read to understand that, the interest of the surviving testator is cut down to a life interest. If the other interpretation is accepted, then the latter part of the disposition fails. Such dispositions, with a gift over to another after an initial disposition, have been well accepted to be indicating the grant of a life interest to the first legatee followed by an absolute bequest to the latter. 15. In Ramachandra Shenoy and another v. Mrs.Hilda Brite and others [1964 SC 1323] the Apex Court observed thus:- “..... Of course, if there are two repugnant provisions conferring successive interests, 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 RSA No.796 of 2019 :- 10 :- contained in the will. It is 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. .....” ## 16. In Cloyi v. Peravankutty [1995 (2) KLT 678] this Court held thus:- “The court will proceed to the farthest extent to avoid repugnancy in a Will, so that effect could be given as far as possible to every testamentary intention contained in the Will and it is for this reason that where there is a bequest even though it be in terms apparently absolute followed by a gift of the same absolutely to another or, or after the death of the first, the first is prima facie held to take a life interest and the second an interest in remainder, thus the apparent absolute interest of the first being cut down to accommodate the interest created in favour of the second. .....” ## 17. In Saraswathi Ammal alias C. Kamala Bai v. RSA No.796 of 2019 :- 11 :- Arjuna Pai Sreenivasa Pai and others [1970 KLJ 439] this Court held that, while interpreting a Will, the court must try to give effect to all the provisions unless two provisions are so repugnant that, they cannot exist together. This Court referred to the observations of the Supreme Court holding 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. ## 18. Kerr in his book on Wills, Probate and Administration says : “If the first disposition is absolute and then a latter disposition appears to cut down the absolute character of that gift both provisions are read and applied together.” Ramamurthi on Law of Wills has commented:- One circumstance that generally cuts down an absolute estate to a life interest is the presence of a gift over in unmistakable terms, which is not a mere gift by way of defeasance.” RSA No.796 of 2019 :- 12 :- 19. In Sivaraman Nair v. Gopala Menon and others [AIR 1969 Ker. 246] , this Court has observed thus:- “The duty of the Court in interpreting a will is to find out the intention of the testator from the language used therein by making an attempt to reconcile all the provisions of the will. A gift over is regarded as a circumstance indicative of the intention of the testator to cut down the absolute estate created in favour of a beneficiary.” 20. Therefore, in the case at hand, the first disposition is to be read down as a mere life interest followed by an absolute bequest. Ext.A5 Will if understood in this manner, it will reconcile all of the provisions of the Will and in my view, give effect to the intention of the testator. As regards the statements in the preface of Ext.A5 Will, it only traces title to Chozy @ Vasu and states that it is being enjoyed absolutely by the husband and wife with right of alienation. The right of alienation could only be with the husband alone, he being the title holder. It cannot RSA No.796 of 2019 :- 13 :- be read to understand that the wife also has a right of alienation or that such a right is being given under Ext.A5 Will when there is no such disposition therein to the said effect. Here it would be apposite to refer to Odgers' on Construction of Deeds and Statutes , 5[th] edition wherein it is stated, “The property named in the premises (parcels) passes by the deed, the habendum limits the estate therein. So it is the true function of the premises (apart from recitals) to ascertain the property and the parties affected, but not to determine the actual estate limited to the grantee. Normally it is in accordance with the words of limitation used in the habendum that the interest of the grantee is determined.” Therefore, generally, the nature of the estate/ interest created is to be determined by the recitals in the operative part and not in the preface. 21. The learned counsel for the respondent would argue that, Ext.A3 settlement deed by Chozhy RSA No.796 of 2019 :- 14 :- @ Vasu in favour of Manikantan indicates that there has been a 'family settlement' whereunder, the first defendant was vested with right over the 38 cents of the property which is dealt with under the Will. According to the learned counsel the same is evident from the preface to Ext.A5 Will when read along with Ext.A3. Here I must notice that, such a case of family settlement was never pleaded or urged. Such a contention essentially having its roots on facts, it is not open for the respondent to raise such a plea for the first time in the second appeal. Even otherwise I find it difficult to make out a case of family settlement on a reading of the preface to Ext.A5 along with Ext.A3 document. Be that as it may, since the same does not arise for determination, the same is being left there. 22. On the construction of the recitals in Ext.A5 Will, as I have adopted, the first defendant gets only a life interest over the property. Though she can enjoy the property during her life, she cannot alienate the same against the interests of RSA No.796 of 2019 :- 15 :- plaintiffs 2 and 3. I am unable to concur with the view taken by the courts below. In the result, this appeal is allowed. The decree and judgment of the courts below are set aside and the suit is decreed as follows: It is hereby declared that the first defendant has only a life interest over plaint schedule item-II property. The defendants are restrained by a decree of permanent prohibitory injunction, from executing any conveyance with respect to plaint schedule item No.II property, and from executing any conveyance except in respect of the share of the first defendant over plaint schedule item No.I property. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge