Punnen Punnen v. Varkey Anna — 1959 DIGILAW 41 (KER)

Judgment :- 1. The short point that arises for consideration in this appeal is as to the nature of the rights conferred in the suit properties on Punnen Punnen, father of the plaintiff, under the will, Ext. C. 2. One Varkey Punnen was the original owner of the suit properties and he had two sons, Punnen Varkey and Punnen Punnen. The sons of Punnen Varkey are defendants 1 to 3. Punnen Punnen had a son, the plaintiff, and daughters who are defendants 16 to 19. Varkey Punnen executed a will, Ext. C on 29-1-1064 in and by which he bequeathed the properties to his sons, Punnen Varkey and Punnen Punnen, and also made other dispositions to his other relations. The 7th defendant is the widow of Punnen Punnen. 3. According to the plaintiff, his father Punnen Punnen was not given any rights in respect of the suit properties by Varkey Punnen, and the bequest under Ext. C was only in favour of the plaintiff. In this view, he challenged the several alienations & transactions entered into by his father Punnen Punnen and later on by his mother and sisters on his behalf. 4. The contesting defendants pleaded that Punnen Punnen, the father of the plaintiff, got absolute rights under the will, Ext. C and that the plaintiff was not entitled to challenge any of those transactions. They also pleaded that the plaintiff was not entitled to challenge the transactions entered into by the mother, 7th defendant in this case, in her own capacity and also as guardian of the plaintiff. They contended that the 7th defendant was entitled to represent the plaintiff in these transactions and that the alienations were supported by consideration and were effected for purposes binding on the plaintiff. 5. Several issues were framed by the learned Second Additional District Judge of Kottayam and the second issue framed in the suit was as follows: "What were the rights of the said Punnen over plaint schedule properties under the will of 1064 executed by his father? Has he absolute rights? 5. Several issues were framed by the learned Second Additional District Judge of Kottayam and the second issue framed in the suit was as follows: "What were the rights of the said Punnen over plaint schedule properties under the will of 1064 executed by his father? Has he absolute rights? Was his position only that of a trustee?" Though the suit was of 1124, when it was actually taken up for trial and when the chief-examination of the plaintiff as Pw.1 was over, the second defendant, one of the sons of Punnen Varkey, filed an application, C. M. P. 2616/55 praying that the issue No. 2 extracted above may be disposed of preliminarily on the ground that if the finding on that issue was against the plaintiff, a trial of the suit on other issues will become unnecessary. 6. The learned additional District Judge accepted this request of the second defendant and heard arguments on the interpretation of Ext. C. After considering the various clauses in the said document, the learned judge came to the conclusion that Punnen Punnen, the father of the plaintiff, got an absolute estate from Varkey Punnen under Ex. C just as his brother, Punnen Varkey got under the same document. In this view, the learned judge held that some of the clauses in the will placing a restriction on the power of alienation of Punnen Punnen were not valid and binding on Punnen Punnen. In consequence, the learned judge also held that the alienations effected by Punnen Punnen, the father of the plaintiff, in respect of certain items of the plaint schedule could not be challenged by the plaintiff, as Punnen Punnen dealt with these properties in his right as full owner, conferred on him under the provisions of Ext. C. It appears to have been also argued before the learned judge that the beneficiary under the will, Ext. C is the plaintiff and that his father, Punnen Punnen, was constituted a trustee under the will. But the learned judge rejected this contention. 7. After holding that Punnen Punnen, the father of the plaintiff, took an absolute estate under the will and that the plaintiff is incompetent to question any of the dealings of his father, the learned judge adverted, to another contention raised before him on behalf of the plaintiff. But the learned judge rejected this contention. 7. After holding that Punnen Punnen, the father of the plaintiff, took an absolute estate under the will and that the plaintiff is incompetent to question any of the dealings of his father, the learned judge adverted, to another contention raised before him on behalf of the plaintiff. The contention appears to have been that in spite of the findings recorded against the plaintiff about the right of his father under the will, still there are certain other alienations entered into by the plaintiff's mother, the 7th defendant, as his guardian after the death of Punnen Punnen. Those transactions are not supported by consideration and, in any event, they are not binding as against the plaintiff. Therefore, it was submitted to the learned District Judge that this aspect will have to be enquired into by that court. But the learned judge took the view that the plaintiff's case has been, in the main, one of an attack on the alienations of the father based upon Ext. C and that there is no attack in the plaint regarding the dealings of his mother. In this view, the learned judge held that it is not necessary to pursue the matter further. Ultimately, the learned judge held that the plaintiff is not entitled to any relief and dismissed the suit. The reasoning of the learned judge regarding the mother's transactions, will be dealt with by us, after disposing of the appeal regarding the construction to be placed on the will, Ext. C. 8. Mr. T.S. Krishnamurthy Iyer, learned counsel for the appellant, contended that Punnen Punnen, the father of the plaintiff, got no rights under the will, Ext. C of Varkey Punnen. The learned counsel also made an alternative contention that the only right, if at all given to Punnen Punnen under the will, was to enjoy the properties given to him, till the birth of a son. As soon as the son namely, the plaintiff was born, Punnen Punnen had no further rights under the will and he had no rights whatsoever to deal with the properties. The learned counsel also attacked the reasoning of the learned judge regarding the challenge made by the plaintiff about the alienations effected by the plaintiff's mother after the death of Punnen Punnen. 9. The learned counsel also attacked the reasoning of the learned judge regarding the challenge made by the plaintiff about the alienations effected by the plaintiff's mother after the death of Punnen Punnen. 9. The learned counsel appearing for the contesting defendants, have supported the reasoning of the learned judge on the construction of the will. 10. Before we proceed to consider the various clauses contained in Ext. C to find out the nature of the estate conferred upon Punnen Punnen, father of the plaintiff, we must state that Mr. T.S. Krishnamurthy Iyer, has not taken the stand before us that a trust has been created in favour of the plaintiff and that the plaintiff's father was constituted a trustee. Though such a contention was raised in the trial court it has not been pursued here before us, and so it is not necessary for us to consider the reasoning of the learned judge on that point. Therefore, the only question that arises before us is about the nature of the estate taken by Punnen Punnen under the will, Ext. C. The principle governing the construction of such documents is fairly clear and in the words of their Lordships of the Supreme Court in Raj Bajrang Bahadur v. Bakhtraj Kuer (AIR 1953 S.C. 7) "In all such cases, 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". See also the judgment of this court, to which one of us (Vaidialingam, J.) was a party reported in Muhammad Beary v. Mahadeva Singh (1957 K. L. T. 990). We are also aware of the further principles, namely, that where the intention of the testator is to grant an absolute estate an attempt to reduce the powers of the owner by imposing restraint on alienation is to be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it will be a material circumstance which will displace the presumption of absolute ownership. 11. Bearing in mind these principles, we will consider the material clauses in the will, Ext. C. 12. 11. Bearing in mind these principles, we will consider the material clauses in the will, Ext. C. 12. After invoking the blessings of God, Varkey Punnen starts by saying that he is executing the will so that his children may enjoy the properties after his death without any dispute as between themselves. There is a recital that the properties are his self-acquired properties. 13. Clause.3 is to the effect that the properties set apart in the A schedule is for his elder son Varkey Punnen and those set apart in the B schedule are for his second son, Punnen Punnen, the father of the plaintiff. 14. In Clause.5, the testator says that among his two sons, the elder son Punnen Varkey has to be given a little more than his younger son, because the former has taken great interest in the family affairs and exerted himself and that he has also got 3 sons. 15. In Clause.6, the testator says that his younger son Punnen Punnen, has not been evincing much interest in the affairs of the family and that the father does not like his conduct and that the properties given to him under Schedule B are considered as sufficient by him. 16. In Clause.7, the testator says that Punnen Punnen, to whom the properties in the B schedule are given, should not deal with them and that he should only take the income and meet the family expenses and improve the properties. 17. In Clause.6, the testator expresses disapproval of the conduct of his second son, Punnen Punnen and with a view to protect the properties, the testator says that Punnen Punnen should not in any way deal with the properties without the permission of a son if one is born and that of the daughter then existing namely, 19th defendant and his brother Punnen Varkey, and he also says that such transactions can be done only for necessity. The only other relevant clause, is Clause.14 to the effect that the parties to whom the properties mentioned in schedules A and B respectively are allotted, are to get transfer of pattom in their names, pay the revenue etc., and enjoy the properties for all times. 18. Mr. T. S. Krishnamurthy Iyer has not been able to show any single clause in the will bequeathing the properties to the plaintiff or to anybody else other than Punnen Punnen. 18. Mr. T. S. Krishnamurthy Iyer has not been able to show any single clause in the will bequeathing the properties to the plaintiff or to anybody else other than Punnen Punnen. The learned counsel relied upon Clause.7 and 8 to show that impliedly, Varkey Punnen intended only to benefit the plaintiff and not his father, Punnen Punnen. The learned counsel also placed very strong reliance on Clause.7 in particular, where the testator has stated that the properties should not be alienated by Punnen Punnen and that he should only enjoy the income from the properties and incur the family expenses. Taken along with this, the learned counsel, equally relied upon Clause.8, where Punnen Punnen has been directed to take the consent of the person mentioned therein for effecting alienations of the property. 19. As stated earlier, we cannot construe each clause by itself. The will must be read as a whole, and the intention of the testator has to be gathered from the entire document read as a whole. So read, the document leaves no doubt in our mind, that Varkey Punnen did intend to convey and actually conveyed an absolute interest in his second son, Punnen Punnen in respect of the properties given to him under schedule of Ext. C. It is not the case of anybody before us that what was given to the other son namely, Punnen Varkey, under the same will and under the same wordings, is anything other than an absolute estate. The testator starts by saying that all his children must get the properties after his death without any friction as between themselves. Therefore, that Punnen Punnen the second son was also intended to be benefited is quite clear from the document. Clause.3 is also clear to the effect that the second defendant Punnen Punnen is given the properties mentioned in Schedule B and this idea is again emphasised in Clause.5 and 6. The only emphasis that is laid in Clause.5 and 6 is to the effect that the father is giving lesser property to Punnen Punnen. Clause.14 puts the position beyond all doubt that the father intended his sons, to whom properties are given under schedules A and B, to take pattoms in their own name and to enjoy the properties for ever. Clause.14 puts the position beyond all doubt that the father intended his sons, to whom properties are given under schedules A and B, to take pattoms in their own name and to enjoy the properties for ever. There is, in our opinion, under Clause.3, a disposition of the properties mentioned in schedule B in favour of Punnen Punnen without any restriction whatsoever. The nature of the estate is again emphasised in Clause.14. Read in this context, Clause.7 and 8, in our opinion, are only a pious expression of the wish of the testator that the properties must be preserved as far as possible. Evidently, the testator must have been under the impression that if those restrictions are placed on the second son, the latter will find it difficult to alienate the properties Even in Clause.3 the desire expressed is that Punnen Punnen should sell the property only with the consent of the people mentioned therein and this clause recognises his power of disposal. We are not able to accept the contention of Mr. T.S. Krishnamurthy Iyer that no interest has been conferred on Punnen Punnen under Ext. C. nor the alternative contention that Punnen Punnen was given only a right to enjoy the properties till the birth of a son namely, the plaintiff. 20. We are of the view that Clause.8 does not in any way limit or curtail the nature of the interest already conferred on Punnen Punnen. Having conferred an absolute estate in the earlier portions of the will, Clause.7, in our view, is repugnant to the previous absolute estate already granted and as such, it is of no significance. Therefore, the reliance placed upon Clause.7 and 8 by Mr. T. S. Krishnamurthy Iyer, cannot avail him especially, in view of the other clauses, which lend us to conclude that an absolute estate was intended and was actually created in favour of Punnen Punnen. 21. To conclude, we agree with the construction placed upon Ext. C by the learned Additional District judge and hold that Punnen Punnen, the father of plaintiff, took an absolute estate in respect of the B schedule properties mentioned in Ext. C. 22. It follows that the suit will have to be dismissed in so far as it relates to the plaintiff seeking relief against the transactions entered into by his father. 23. C. 22. It follows that the suit will have to be dismissed in so far as it relates to the plaintiff seeking relief against the transactions entered into by his father. 23. Defendants 1 to 3, the sons of Punnen Varkey, appear to have raised a contention that the plaintiff is not the son of Punnen Punnen; and based on this contention, issue No.1 has been raised. In view of our agreeing with the findings of the learned judge on the construction of the will, it has been intimated to us on behalf of the second defendant, who has appeared by counsel, that issue No.1 has become unnecessary. Therefore, the suit will stand dismissed as against all parties, except defendants 13 and 15 for reasons to be stated later. The plaintiff will pay the costs in this court of the parties who claimed title by virtue of alienations effected by the father of Punnen Punnen. Advocate's fee will be one set. 24. Mr. T. S. Krishnamurthy Iyer, learned counsel for the plaintiff, then contended that our finding against his client on issue No. 2 will not put an end to this litigation without further going into the question as to whether the transactions entered into by the mother of the plaintiff are valid and binding as against the plaintiff. As stated earlier, the learned judge has discussed this aspect of the question in Para.14 of his judgment and come to the conclusion that the plaintiff's main grievance was only regarding the transactions entered into by the father and that the validity or binding nature of the alienations of the mother do not at all require consideration. This view is attacked by Mr. T. S. Krishnamurthy Iyer. 25. The two transactions coming under this category and now challenged are those covered by documents Ext. III dated 4-5-1111 in favour of the 13th defendant and Ext. AU dated 17-2-117 in favour of the 15th defendant. The item covered by Ext. III is plaint A schedule item and that covered by Ext. AU is plaint B schedule item 1. 26. Mr. T. S. Krishnamurthy Iyer has drawn our attention to Para.11 (g) of the plaint in particular, and has stated that the view of the learned judge is not correct. After a perusal of Para.11 (g) of the plaint, it is clear that the plaintiff has challenged these alienations covered by Exts. AU is plaint B schedule item 1. 26. Mr. T. S. Krishnamurthy Iyer has drawn our attention to Para.11 (g) of the plaint in particular, and has stated that the view of the learned judge is not correct. After a perusal of Para.11 (g) of the plaint, it is clear that the plaintiff has challenged these alienations covered by Exts. III and AU on the ground that the mother has no right in law to represent him as guardian and he has also challenged them on the ground that those transactions are not valid in law and not supported by consideration and as such, not binding on the plaintiff. 27. That such was the case pleaded by the plaintiff has been also understood by the 13th and 15th defendants as will be seen from their allegations in their written statements that the transactions are entered into by the mother of the plaintiff as guardian and they are supported by consideration and that they are binding on the plaintiff. 28. Though Mr. Balagangadharan Nair, learned counsel appearing for the 13th defendant, attempted to support the reasoning of the learned judge that the case of the plaintiff was only that they will give the properties absolutely to him and gave no interest to the father, and that there was no alternative attack on the alienations of the mother as guardian of the plaintiff, we are satisfied that the reasoning of the learned judge on this aspect of the case, cannot be sustained. In our view, the allegations contained in Para.11, (g) of the plaint go to show that the plaintiff has also set out an alternative case regarding the alienations covered by Exts. III and AU and has questioned the act of his mother, the 7th defendant. It follows that the suit will have to proceed for trial regarding the attack made by the plaintiff on Exts. III and AU in which the 15th defendant and 16th defendant respectively are interested. To this extent, the decree of the learned judge dismissing the suit is set aside. 29. It is seen from the written statements of defendants 13 and 16 that they are not challenging the paternity of the plaintiff. They proceed on the basis that the plaintiff is the son of Punnen Punnen and will be his legal representative in law. To this extent, the decree of the learned judge dismissing the suit is set aside. 29. It is seen from the written statements of defendants 13 and 16 that they are not challenging the paternity of the plaintiff. They proceed on the basis that the plaintiff is the son of Punnen Punnen and will be his legal representative in law. The plaintiff is given liberty to amend his plaint within 4 weeks from to-day by making; any further-allegations about the transactions covered by Exts. III and AU. 30. After the plaintiff makes the said amendment, defendants 13 and 15 will have one month's time from the date of amendment of the plaint, to amend their written statements by making say further allegations that they may choose, regarding the transactions in which they are interested Though we are satisfied that there are already enough allegations in the pleadings, still to enable the lower court to have a fuller picture of the nature of conduct as between the parties, we have given this direction for amendment of the pleadings. After the pleadings are amended, the learned judge will frame fresh issues only on points arising regarding the transactions covered by Exts. III and AU and proceed to trial. Costs in this appeal of the plaintiff and defendants 13 and 15 alone will abide and be provided for in the fresh decree to be passed. 31. In the result, the judgment and decree of the learned District Judge, in so far as they relate to the dismissal of the suit regarding the transactions of the father of the plaintiff, are confirmed and the appellant is to pay one set of costs to the parties interested in that dispute in this appeal. The decree and judgment of the learned judge, in so far as it relates to the dismissal of the suit even as against defendants 13 and 15, are set aside and the suit is sent back for trial to the limited extent indicated earlier. Costs of plaintiff and defendants 13 and 15 to abide and be provided for in the fresh trial regarding this point.