S. Krishnankutty Nair v. Seethalekshmi Amma and Daisy Yesudasan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946** ## **RSA NO. 1016 OF 2005** **AGAINST THE JUDGMENT DATED 09.12.2004 IN AS NO.113 OF 1999 OF SUB COURT, NEYYATTINKARA ARISING OUT OF THE JUDGMENT DATED 29.07.1999 IN OS.563 OF 1997 OF I ADDITIONAL MUNSIFF COURT,NEYYATTINKARA** ## **APPELLANT/APPELLANT/PLAINTIFF:** **S.KRISHNANKUTTY NAIR RESIDING AT THUNDUVADAKKETHIL VEEDU, T.C.40/1061, NEAR MUKKOLAKKAL TEMPLE, SREEVARAHAM, MANACAUD P.O, THIRUVANANTHAPURAM.** **BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS 1 & 3:** **1 SEETHALEKSHMI AMMA, D/O. NARAYANI AMMA RESIDING AT PLANGALA PUTHEN VEEDU, PULIMUTTOM, NEYYATTINKARA.** **2 DAISY YESUDASAN W/O. LATE YESUDASAN RESIDING AT GRACE VILLA, PULIMUTTOM, NEYYATTINKARA** **BY ADV SRI.G.S.REGHUNATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 9.4.2024, THE COURT ON 12.04.2024 DELIVERED THE FOLLOWING:** _**RSA.1016/2005**_ 2 ## J U D G M E N T Dated this the 12[th] day of April, 2024 This is a Second appeal filed by the appellant in AS No.113 of 1999 on the file of Sub Court, Neyyattinkara, who is the plaintiff in OS.No.563/1997 on the file of Munsiff Court, Neyyattinkara, against the dismissal of his suit by the trial court as well as the First Appellate Court. 2. The appellant is the nephew of late Bhaskaran Nair. First respondent is the widow of Bhaskaran Nair, who died issueless on 4.9.1992. Bhaskaran Nair had executed two registered wills. As per first will No.3 **/** 1991 **,** he had bequeathed five items of properties in favour of the appellant and one Maniyan. As per the second will No.17/1991, he had cancelled item No.2 property from the first will. Thereafter, on 23.9.1991, Bhaskaran Nair alienated two cents of property from item No.1. After the death of the testator, the 1[st] respondent alienated the plaint A schedule property in favour of the 2[nd] respondent as per Sale Deed No.235/1997 (Exhibit A2-marked as _**RSA.1016/2005**_ 3 per order in IA.No.1/2005 dated 9.4.2024). As per Exhibit A1 will, the appellant claims absolute right over plaint schedule item No.A to D properties subject to life interest of 1[st] respondent. The authority of the 1[st] respondent to execute Exhibit A2 Sale Deed is the subject matter in dispute involved in this case. 3. According to the appellant, as per the terms of Exhibit A1 will, the 1[st] respondent has only life interest in the schedule properties and therefore, according to him, Exhibit A2 Sale Deed executed by the 1[st] respondent in favour of the 2[nd] respondent is null and void. However, the trial court as well as the First Appellate Court found that after the death of the testator, the entire property devolved upon the 1[st] respondent and that the property remaining after the death of the 1[st] respondent alone will devolve upon the legatees and accordingly dismissed the suit. Aggrieved by the above finding of the trial court as well as the First Appellate Court, the Second Appeal was preferred raising various contentions. 4. At the time of admission, after hearing both sides, a substantial question of law was formulated, which reads as follows: _**RSA.1016/2005**_ 4 _“Have not the courts below erred in dismissing the suit considering and interpreting Ext.A1 will relying on an isolated sentence only, without gathering the intention of the testator as to whether his intention was to bequeath the properties to the legatees providing only life interest for his wife in relation to the immovable properties scheduled?”_ 5. Heard both sides on the substantial question of law, in detail. 6. The entire dispute between the parties revolve around interpretation of a particular clause in Exhibit A1 will. The trial court as well as the First Appellate Court concurrently found that the meaning of the above clause is to the effect that after the death of the testator, entire properties devolve upon the wife namely the 1[st] defendant and only the residue, if any, will devolve upon the appellant. The wordings in Exhibit A1 also is to the effect that after the death of the testator, his wife could possess and enjoy the said properties with absolute right and freedom and that only after her death, the properties will devolve upon the legatees. 7. The law is well settled that while construing the provisions _**RSA.1016/2005**_ 5 of a will, the true intention of the testator is to be gathered by reading the will as a whole. In the decision in **Navneet Lal alias Rangi v. Gokul and Others [(1976) 1 SCC 630]** the principles to be followed while construing a will, are enumerated in paragraph 8 as follows: _“8. From the earlier decisions of this Court the following principles, inter alia, are well established:-_ _(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal and Others [1950 SCR 766 at p.772: AIR 1951 SC 139 at page 141])_ _(2) In construing the language of the Will the court is entitled to put itself into the testator's armchair (Venkata Narasimha v. Parthasarathy [1913 (41) Ind App 51 at p.73 (PC)]) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....But all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document. Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others [1950 SCR 949 AT P.955: AIR 1951 SC 103 AT PP 105-6]_ _**RSA.1016/2005**_ 6 _(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [1953 SCR 232 AT P.240 -(AIR 1953 SC 7 AT P 9])_ _(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. Paerey Lal v. Rameshwar Das[1963 Supp (2) SCR834 at pp.839-842: AIR 1963 SC 1703 at pp.1705-1706]_ _(5) 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 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_ _**RSA.1016/2005**_ 7 _intention contained in the Will. (Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other[1964 (2) SCR 722 at p735: AIR 1964 SC 1323 at pp.1328-1329])._ The same view was held by the Hon'ble Supreme Court in **Navneet Lal (supra)** , relied upon by the first appellate Court and **Ganesh Bhandary V. Ambunhi [1989 (2) KLT 882]** relied upon by the trial court. 8. In this context, it is to be noted that the 1[st] respondent is the widow of the testator, while the legatees are his relatives namely two nephews. Even as per Exhibit A1, the 1[st] respondent is suffering from various age old ailments. In the year 1991, at first the testator executed will No.3/1991, bequeathing five items of properties in favour of the appellant. Thereafter, he had executed Exhibit A1 will, in which one item of property was omitted from the earlier will. Thereafter, the testator, during his life time alienated two cents of property from item No.1, in Exhibit A1. It was thereafter, the 1[st] respondent assigned the remaining property available in 'A' schedule to the second respondent, after the death of the testator. _**RSA.1016/2005**_ 8 9. On a perusal of Exhibit A1 in full and the particular clause relating to conferring right over the schedule properties in favour of the 1[st] respondent, it is evident that the testator wanted to confer absolute and unfettered right and title including possession over the entire scheduled properties on the 1[st] respondent and wanted to bequeath only the residue after the death of the 1[st] respondent on the legatees. 10. In the above circumstances, it can be seen that the trial court as well as the 1[st] appellate courts have correctly interpreted and understood the intention of the testator as revealed from Exhibit A1 and as such the substantial question of law formulated is found against the appellant. Therefore, I find no merits in the Second Appeal and as such it is liable to be dismissed. In the result, Second Appeal is dismissed with costs. Sd/- C. PRATHEEP KUMAR, JUDGE sou. _**RSA.1016/2005**_ 9 ## APPENDIX ## APPELLANT'S EXHIBITS EXHIBIT A2 - COPY OF SALE DEED NO.235/1997