SHEBA SUJAN GEORGE and others v ABRAHAM VARGHESE, MOLLY VARGHESE and FAVOURITE CONSTRUCTIONS (P) LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939 RFA.No. 281 of 2015 ------------------------AGAINST THE JUDGMENT AND DECREE IN OS 706/2011 OF II ADDL.SUB COURT,ERNAKULAM DATED 31.10.2014. ## **APPELLANTS/PLAINTIFFS** 1 SHEBA SUJAN GEORGE, HOUSE WIFE, W/O. SUJAN GEORGE ABRAHAM, CHENNATTU HOUSE, POUND ROAD, THYCAUD P.O., THIRUVANANTHAPURAM. 2 SHEEBA ROBIN, HOUSE WIFE, W/O. ROBIN KOSHY MATHEW, MAPPILAVEETTIL, AINI ROAD, NEAR SANKARS HOSPITAL JUNCTION, KOLLAM. 3 SHINA MATHEW, HOUSE WIFE, W/O. MATHEW ANDREWS, 12A, SPS SILICON DRIVE, CEP, P.O. KAKKANAD, KOCHI – 682 037. BY ADV. SRI. G. KEERTHIVAS BY ADV.SRI.P.R.VENKETESH ## **RESPONDENTS/DEFENDANTS:** 1. ABRAHAM VARGHESE, CONTRACTOR, S/O. LATE P.I.VARGHESE, PALAL HOUSE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-13. 2. MOLLY VARGHESE, HOUSE WIFE, P.I.VARGHESE, PALAL HOUSE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-13. 3. M/S. FAVOURITE CONSTRUCTIONS (P) LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT AND HAVING ITS REGISTERED OFFICE AT 'MARTIN DALE', T.C.NO. 7/2270(1), STATUE ROAD, RISHIMANGALAM WARD, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM – 695 001, REPRESENTED BY ITS MANAGING DIRECTOR SRI. MARTIN THOMAS, ALIAS MARTIN THOMAS ESAKKIYEL, S/O. LATE D.E.THOMAS ALIAS THOMAS ESAKKIYEL DEVASAHAYAM, RESIDING AT THE SAID ADDRESS. R1 & R2 BY ADV. SMT.M.A.ZOHRA R3 BY ADV. SRI. BECHU KURIAN THOMAS (SENIOR) THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2018, THE COURT ON 21.03.2018 DELIVERED THE FOLLOWING: R.F.A. NO. 281/2015 ## **APPENDIX** ## **RESPONDENTS' ANNEXURES TO I.A. NO. 1035 OF 2015** ANNEXURE A1 COPY OF THE ASSESSMENT OF SERVICE TAX LIABILITY AS ASSESSED BY THE CHARTERED ACCOUNTANT. ANNEXURE A2 TRUE COPY OF THE ESTIMATE GIVEN FOR CONDUCTING THE SURGERY AS REQUIRED. ANNEXURE A3 TRUE COPY OF THE ROUGH SKETCH OF THE PROPERTY SOUGHT TO BE SOLD IS MARKED AS 1 ACRE. /TRUE COPY/ P.A. TO JUDGE. “CR” ## V. CHITAMBARESH & K.P.JYOTHINDRANATH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## RFA No.281 of 2015 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21[st] day of March, 2018 ## Judgment ## Chitambaresh, J. 1.“ What you leave at your death, let it be without controversy, else the lawyers will be your heirs” - said F.Osborn to his son. 2.The father of the plaintiffs and the first defendant (by name P.I.Varghese) executed Ext.A1 Will dated 3.7.2007 whereunder he bequeathed his property to all his children and provided a life estate to his wife the second defendant. Ext.A1 Will inter alia provided that the plaint schedule property would devolve on the first defendant absolutely with power of disposal and would go to the plaintiffs if the RFA281/2015 -: 2 :- first defendant died without any issues. It is the case of the plaintiffs that the first defendant has divorced his wife and has no children and therefore the property should revert to them absolutely as per Ext.A1 Will. The plaintiffs contend that the first defendant and the second defendant had no authority to execute Ext.A4 sale deed to the third defendant which is to be declared as null and void. It is on this premise have the plaintiffs sought for recovery of possession of the property to their estate and for a decree of permanent prohibitory injunction against further alienation. 3.The defendants contend that the subsequent disposition of the very same property to the plaintiffs under the same Will has to be treated as invalid and the effect is that Ext.A1 Will is valid without the invalid conditions. The defendants assert that they have an unfettered right to sell a portion of the property bequeathed to them by Ext.A4 sale deed which cannot be called in question. They also point out that the RFA281/2015 -: 3 :- second defendant who is the holder of life interest has joined in Ext.A4 sale deed and therefore a valid title has been conveyed to the third defendant. The suit has been dismissed by the impugned judgment and the plaintiffs have filed this appeal reiterating that the court below erred in construing the terms of Ext.A1 Will. - 4.We heard Mr G.Keerthivas, Advocate for the appellants/plaintiffs and Mrs. Zohra, Advocate for the first respondent/first defendant and Mr Bechu Kurian Thomas, Senior Advocate for the third respondent/third defendant in this regular first appeal. 5.A Constitution Bench of the Supreme Court in Ramkishorelal and another v. Kamalnarayan (AIR 1963 SC 890) has observed as follows: - “A familiar instance of this is where in an earlier RFA281/2015 -: 4 :- part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? 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.” (emphasis supplied) The Supreme Court adopted the same view in Sadaram Suryanarayana v. Kalla Surya Kantham [(2010) 13 SCC 147] and in Mauleshwar Mani and others v. Jagdish Prasad and others (AIR 2002 SC 727). It was held in the latter decision as follows: “10. From the decisions referred to above, the legal principle that emerges, inter alia, are: i. where under a Will, a testator has RFA281/2015 -: 5 :- 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 ii. 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.” (emphasis supplied) The above principles have been quoted with approval in Madhuri Ghosh v. Debobroto Dutta [(2016) 10 SCC 805] which shall be called in aid to construe Ext.A1 Will and understand the dispositions therein. 6.A reading of Ext.A1 Will leaves no doubt that there is an absolute bequest of the property in favour of the first defendant who has been given an unfettered right to encumber or alienate the property. The same cannot be said to be a contingent Will wherein the bequest is dependent on RFA281/2015 -: 6 :- the legatee acquiring title to the property only on his having children in the wedlock. The subsequent disposition in Ext.A1 Will altering the bequest in favour of the plaintiffs on the first defendant dying issueless is liable to be ignored as having no validity in the eye of law. It is not as if Ext.A1 Will itself is invalid and the only effect is that the invalid conditions attached thereto do not operate in derogation of the bequest made in the earlier part. Such construction would be in accord with the principle contained in Sections 138 and 139 of the Succession Act, 1925 and Section 11 of the Transfer of Property Act, 1882. - 7.The contention that the bequest to the first defendant is subject to an executory devise in favour of the plaintiffs capable of giving effect to by the first defendant dying issueless is unacceptable. The decision to that effect in S.Narayana Doss v. Arumugathammal and another [AIR 1958 Mad. 431] runs counter to the law laid down by the RFA281/2015 -: 7 :- Supreme Court as afore-stated. We cannot also deem the unsure event of the first defendant dying without any issues as a defeasance clause as found in Vasudevan Nedungadi v. Santha Kovilamma [2002 (2) KLT 63]. The intention of the testator was obviously to maintain an absolute estate in favour of the first defendant with power to encumber or alienate the property and hence not a defeasance clause. The first defendant is only about 40 years of age and time is enough for him to beget children or even adopt one though there is no such necessity for him to obtain the property absolutely under Ext.A1 Will. - 8.The plaintiffs contend that the last of the two inconsistent clauses in Ext.A1 Will should prevail when they cannot possibly stand together basing on Section 88 of the Succession Act, 1925. It is urged that the intention of the testator is manifest in that he did not want the property to go to the wife of the first defendant or her relatives but to RFA281/2015 -: 8 :- his daughters who are the plaintiffs. There is scope for such an argument had there been a simultaneous and irreconcilable bequest in Ext.A1 Will in which case the last clause would prevail. But the last clause in Ext.A1 Will speaks of subsequent divestiture of the property after the bequest in favour of the first defendant and hence liable to be ignored in toto. The decisions in Bajrangi Factory Ltd. v. University of Calcutta [(2007) 7 SCC 183] and Ambunhi v. Ganesh Bhandary [AIR 1995 SC 2491] cited at the Bar by the plaintiffs are totally out of place. 9.It should be stated that the due execution of Ext.A1 Will has not been disputed even by the plaintiffs since they too are legatees thereunder of course in respect of other items of property dealt with therein. The second defendant who is also a beneficiary of Ext.A1 Will to the extent of life interest conferred on her is one of the attesting witnesses examined to prove its due execution. There is neither any oral RFA281/2015 -: 9 :- evidence on the side of the plaintiffs nor any suggestion that the execution of Ext.A1 Will is shrouded with suspicion for it to be dispelled by the propounder. The only effect is that the bequest in Ext.A1 Will so far as it concerns the person attesting it shall be void under Section 67 of the Succession Act, 1925 which is extracted hereunder: “ 67. Effect of gift to attesting witness. - A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them. Explanation.- A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will.” It can at best be said that the second defendant did not RFA281/2015 -: 10 :- derive any life interest in the property by virtue of the bequest in Ext.A1 Will on account of her acting as one of the attesting witnesses. There is however no legal embargo for a beneficiary to act as an attesting witness to a Will and the document is not rendered void [See Lisamma v. Saramma and others (2017 (2) KLT 1084)]. The second defendant is also an executant to Ext.A4 sale deed and whatever rights she had have also been parted with for consideration in favour of the third defendant. It necessarily follows that the plaintiffs have no right either to question Ext.A4 sale deed or to arm them with a decree of prohibitory injunction against further alienation by the defendants. The regular first appeal is dismissed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/K.P.JYOTHINDRANATH, JUDGE Sha/190318