Stanely John v. Cleetus John and Maxie John

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 RSA.No. 589 of 2009() --------------------AS.274/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.70/2005 of SUB COURT,KOCHI .................... APPELLANT/APPELLANT/PLAINTIFF (S): -------------------- STANELY JOHN,S/O. P.C. JOHN, RESIDING AT C.C. NO.1/1244, CHIRATTAPALAM,KOCHI-682 001. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.PAUL KURIAKOSE RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. CLEETUS JOHN, S/O. P.C. JOHN, RESIDING AT C.C. NO.1/1113, KUNNUMPURAM, KOCHI -01. 2. MAXIE JOHN, S/O. P.C. JOHN, RESIDING AT 1/1114, KUNNUMPURAM, KOCHI-01. ADV. SRI.JOSE J.MATHAIKAL FOR R1 SRI.SAJAN MANNALI FOR R2 SRI.M.P.JAYAKUMAR FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.No.589 of 2009 -------------------------------------Dated this the 30[th] day of January, 2010.** ## **JUDGMENT** The properties which are the subject matter of this litigation originally belonged to the late P.C.John who, towards the end of his terrestrial life with the desire that his wife and children should live in peace and harmony executed Ext.A1, registered Will dated 30.5.1970 and soon thereafter on 26.5.1971 left his terrestrial abode bringing the Will into effect. The legatees obtained probate for the Will from the District Court as per order dated 12.8.1991. Though, wife of the testator was appointed as executor as per the Will, there was some dispute between the legatees regarding that which resulted in a Writ Petition in this Court (O.P.No.2765 of 1993) ultimately leading to Ext.B6, compromise dated 01.12.1994. Wife of the testator is also no more. In the year, 2005 much against desire of the testator expressed in his last Will and testament this litigation started. One of his sons filed O.S.No.70 of 2005 in the court of learned Sub Judge, Kochi against his brothers seeking partition of properties referred to therein. He claimed half share in item No.1 of the plaint schedule along with respondent No.1 and 1/3[rd] share in the remaining items along with respondent Nos.1 and 2. According to the appellant as per the bequest under Ext.A1, item No.1 of the plaint schedule (five cents) was allotted to himself and respondent No.1 jointly, they are in joint possession and that has to be put an end to. As per Ext.A1, shoprooms bearing door Nos.1/706 to 1/712 (both inclusive) and **RSA No.589/2009** 2 an unnumbered shoproom were allotted to respondent No.1 and shoprooms bearing door Nos.1/718 to 1/722 (both inclusive) were allotted to respondent No.2. Shoprooms bearing door Nos.1/714 to 1/717 (both inclusive) together with the site on which those rooms are situated are allotted to the appellant. Appellant claimed that while the said shoprooms together with the site was allotted to him, the bequest in favour of respondent Nos.1 and 2 excluding the site on which rooms allotted to respondent Nos.1 and 2 are situate and hence the site on which the rooms bequeathed to the respondents are situate is partiable among appellant and respondent Nos.1 and 2. The said site is described as item Nos.2 to 4 in the plaint schedule. Appellant claimed 1/3[rd] share in the said items. Item No.5 in the plaint schedule is terrace portion of the building which according to the appellant has not been the subject matter of any disposition as per Ext.A1. Item No.6 of the plaint schedule is the staircase leading to the open terrace (item No.5) which also, appellant claims is not the subject matter of disposition as per Ext.A1. Appellant claimed 1/3[rd] share in item Nos.5 and 6 along with the respondents. Respondents claimed, so far as item No.1 is concerned that in December, 2002 there was an oral partition between respondent No.1 and the appellant, each taking half of item No.1 (2 ½ cents each) adjoining the rooms allotted to them and accordingly, a boundary wall also was constructed separating the 2 ½ cents allotted to each of them and since then the respective portions are in the possession of respondent No.1 and **RSA No.589/2009** 3 the appellant. So far as item Nos.2 to 4 are concerned, their case is that though not stated in Ext.A1 in express terms, the site formed part of the rooms and hence formed part of the bequest in their favour. So far as item No.5, the open terrace over entire building is concerned it is contended by respondent Nos.1 and 2 that since what was bequeathed to the appellant is only the ground floor rooms and he cannot lay hands on the terrace portion above the first floor rooms which are allotted to respondent Nos.1 and 2. The staircase (item No.6) leads to the terrace over the first floor of the building which is the absolute property of respondent Nos.1 and 2 as per Ext.A1. That formed part of the bequest to them. Courts below accepted contention of respondent Nos.1 and 2 and non-suited appellant. Hence the Second Appeal urging by way of substantial questions of law whether construction placed by the courts below on the various dispositions under Ext.A1 is legal and correct and whether courts below were justified in construing Ext.A1 in the way claimed by respondent Nos.1 and 2. It is contended by learned counsel for appellant that the court is excepted to be in the armchair of the testator and interpret Ext.A1 in the way the testator intended. It is also the contention of learned counsel that going by Ext.A1 the inescapable conclusion is that when room Nos.1/706 to 1/712, the unnumbered room and room Nos.1/718 to 1/722 were bequeathed to respondent Nos.1 and 2, it did not cover the site on which those rooms are situated as is evident from the fact that when room Nos.1/714 to 1/717 were **RSA No.589/2009** 4 bequeathed to the appellant and house No.1/723 was allotted to respondent No.2 it is specifically stated in Ext.A1 that the site on which the said rooms are situate is also bequeathed to the appellant and respondent No.2, respectively. Learned counsel contends that site of room Nos.1/714 to 1/717 and 1/718 to 1/722 have not been disposed as per Ext.A1 and hence is available for partition. So far as the open terrace and staircase (item Nos.5 and 6) are concerned, it is contended by learned counsel that the said portions are not the subject matter of the bequest as per Ext.A1 and hence is the joint property. On the issue regarding partibility of item No.1 is concerned, it is contended by the learned counsel that there is no reliable evidence of the alleged oral partition. Learned counsel for respondent No.1 has countered the above arguments. He has taken me through the judgments under challenge to show that courts below have considered the entire matter in the correct perspective bearing in mind the intention of the testator, has reached the correct conclusion and no substantial question of law is involved. 2. So far as plaint schedule item No.1 is concerned, it is not disputed that the five (5) cents referred to therein was bequeathed to the appellant and respondent No.1 jointly. Respondent No.1 has set up a plea of oral partition in December, 2002 and separate possession of the respective portions by himself and appellant since then. Appellant when examined as PW1 denied that. Respondent No.1 when examined as DW1 asserted that Ext.C2 is the report **RSA No.589/2009** 5 prepared by DW2, advocate commissioner. Advocate commissioner has reported that there is compound wall on the south, east and west of item No.1. On northern side it is the wall of room No.1/109 (which is allotted to respondent No.1 as per Ext.A1). Commissioner has also reported about a wall in between the two plots (2 ½ cents each). Evidence of DW1 (respondent No.1) is that the southern plot (2 ½ cents) was allotted to the appellant while the northern 2 ½ cents adjoining room No.1/109 was allotted to him in the oral partition. Courts below observed that going by the evidence and Ext.C2 compound walls and the partition wall in the five (5) cents (item No.1) were not new, there is no such case for the appellant and the walls appeared to be pretty wall which corroborated the version of DW1 about the oral partition. Trial court took that view and found in favour of respondent No.1 which the first appellate court has concurred with. That is a finding of fact based on evidence and which does not involve any substantial question of law requiring interference by this Court in Second Appeal. 3. Now I shall refer to the contention regarding item Nos.2 to 4. Indisputably, item Nos.2 to 4 referred to in the plaint schedule is the site of shoprooms allotted to respondent Nos.1 and 2 and referred supra. Contention is that while room Nos.1/714 to 1/717 were allotted to the appellant, testator specifically mentioned that the site is also bequeathed but when it came to the rooms allotted to respondent Nos.1 and 2 there is no such mention about the site **RSA No.589/2009** 6 (item Nos.2 to 4) which meant that the site was not bequeathed in favour of respondent Nos.1 and 2. I am unable to accept that contention. What is required to be decided is the intention of testator as revealed from the disposition in Ext.A1. Any extraneous aid is required only when the disposition made under Ext.A1 is ambiguous. Learned counsel for appellant has taken me through Ext.A1. It is seen from Ext.A1 that in respect of site of the rooms allotted to respondent Nos.1 and 2 testator has not made any other disposition nor is it stated that it is kept in common. Moreover, there was no possibility of the testator intending to make any other arrangement as regards site of the rooms allotted to respondent Nos.1 and 2 for, that would not have been in consonance with object of bequest that legatees should live in peace and harmony. Normally, the expression “building” should take with it the site also unless excluded specifically as held in **Kalpakam Amma v. Muthurama** **Iyer (1994 (2) KLT 424)** . I do not find anything in Ext.A1 specifically excluding the site of rooms allotted to respondent Nos.1 and 2 from the bequest. Mere fact that when room Nos.1/714 to 1/717 were bequeathed to the appellant it referred to the site also did not mean that testator did not intend to allot site of the rooms bequeathed in favour of respondent Nos.1 and 2 to them. Such an interpretation would only go against the intention of the testator, true **RSA No.589/2009** 7 meaning of the dispositions made as per Ext.A1 and meaning of the expression 'building'. Therefore, that contention of the appellant has to fail as rightly found by the courts below. 4. So far as item No.5, open terrace is concerned, it is admitted by the appellant that rooms bequeathed to him are situated on the ground floor of the building while the first floor rooms are allotted to respondent Nos.1 and 2. Terrace indisputably is over the first floor. Unless specifically excluded, that terrace must go with the rooms on the first floor as being part of it. Concededly, appellant has no right or interest over the first floor rooms. In such a situation, in the absence of any specific direction in that regard in Ext.A1 I am unable to uphold contention of appellant that terrace of the first floor rooms has been kept in common without disposition as per Ext.A1 and hence is available for partition. 5. What remained is the staircase (item No.6) leading to item No.5, the open terrace of the first floor rooms. As regards item No.5, I stated that it formed part of rooms bequeathed to respondent Nos.1 and 2 on the first floor. The staircase is meant for access to the terrace portion over the first floor rooms and that staircase cannot have an independent existence apart from the first floor rooms and the terrace over it. Hence the claim of the appellant over item No.6 also has to fail. On going through Ext.A1, judgments under challenge and **RSA No.589/2009** 8 hearing learned counsel for the appellant and respondent No.1, I am satisfied that no substantial question of law as urged in the Second Appeal do arise for a decision. Resultantly, Second Appeal is dismissed in limine. **THOMAS P.JOSEPH, Judge.** ## **cks** The figures and word “1/714 to 1/717” occurring in the 4[th] line of page 4 of the judgment dated 30/01/2010 in R.S.A.589/2009 are substituted by the words “1/706 to 1/712, the unnumbered room” as per order dated 14/06/2010 in I.A.No.639/2010. Sd/- Registrar (Judicial)