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1990 DIGILAW 41 (KER)

Koman Nambiar v. Lakshmikutty Appissi

1990-01-25

VARGHESE KALLIATH

body1990
Judgment :- 1. This is an appeal by the first plaintiff in a suit for partition. In the plaint, there are five schedules. Schedule A gives the genealogy relevant for the purpose of the suit. Schedules B and Care immovable properties to be partitioned. Schedules D and E are some debts to be realised which are liable to be partitioned. Schedule F deals with movable properties. In schedule A genealogy these relevant facts are given. 2. Originally the properties now sought to be partitioned belonged to Govinda Kurup and Ithooli Appissi. Ithooli Appissi is the wife of Govinda Kurup. By Ext.B7 dated 7-8-1937, the properties of Govinda Kurup and Ithooli Appissi were partitioned. Govinda Kurup took A schedule property in Ext.B7 and Ithooli Appissi took B schedule property. The properties taken by Ithooli Appissi and some other items Ithooli Appissi got from her tarwad partition are the properties mentioned in B schedule of the plaint. C schedule property in the plaint is the A schedule Govinda Kurup got under Ext.B7. 3. Govinda Kurup and Ithooli Appissi had four children, Kunhukutty Appissi, Kunhikutty Appissi, Lakshmikutty Appissi and Kali alias Kuttimalu Appissi. Kunhukutty Appissi is the first defendant and Lakshmikutty Appissi is the second defendant. Kunhikutty Appissi had four children. Plaintiffs land 2, Koman Nambiar and Balakrishnan Nambiar are the two sons of Kunhikutty Appissi. It is stated that one son Ramankutty Nambiar died and the other son Govindankutty Nambiar is defendant No.13. Kunhukutty Appissi and Lakshmikutty Appissi had no children. Kali alias Kuttimalu Appissi had two daughters, Karthiyani and Devaki. Karthiyani is the third defendant and Devaki is the fourth defendant. Karthiyani had three children, defendants 5,6 and 7. Devaki's children are defendant No.8, 9,10,11 and 12. 16th defendant is the husband of Devaki. 4. Govinda Kurup died on 31-1-1969 and Ithooli Appissi died in 1966. Kunhikutty Appissi and Kali alias Kuttimalu Appissi died in the year 1946. Immediately after the partition between Govinda Kurup and his wife under Ext.B7 on the same day there was another partition in regard to the properties obtained by Ithooli Appissi under the partition between herself and her husband. This partition is evidenced by Ext.B1. By this partition, Kunhikutty Appissi was separated as one tavazhi and Ithooli Appissi and her remaining three children and the children of Kali alias Kuttimalu Appissi from another tavazhi. This partition is evidenced by Ext.B1. By this partition, Kunhikutty Appissi was separated as one tavazhi and Ithooli Appissi and her remaining three children and the children of Kali alias Kuttimalu Appissi from another tavazhi. In Ext.B1, it is stated that Ithooli Appissi took two shares out of the seven shares, because at the time of Ext.B1, there were seven members in the family including one in the womb of Kali alias Kuttimalu Appissi. Plaintiffs claim share in the property of Ithooli Appissi and the properties left by Govinda Kurup. The case of the defendants is that the plaintiffs cannot have any right in the properties left by Ithooli Appissi and Govinda Kurup because the plaintiffs' mother got herself separated into a different tavazhi and by that separation, herself or her children have lost all claims in regard to the property of Ithooli Appissi. In regard to the properties left by Govinda Kurup, the defendants contended that Govinda Kurup has left a Will, Ext.B5 (Copy of the Will) in the year 1937 by which the entire properties of Govinda Kurup were bequeathed to his three daughters, Kunhukutty Appissi, Lakshmikutty Appissi and Kali alias Kuttimalu Appissi and his wife, Ithooli Appissi. When the Will took effect on the death of Govinda Kurup, the only legatees under the Will were the two daughters; Kunhukutty Appissi and Lakshmikutty Appissi. If the Will is true and genuine, plaintiffs cannot claim any title to the properties of Govinda Kurup and as such those properties are not partible. 5. In regard to the share of property of Ithooli Appissi, on her death the plaintiffs have got a right to claim share in that property. Even it is admitted that by Ext.B7 partition the properties were partitioned on the basis that the properties belonged to the tarwad family wherein Ithooli Appissi was the Karanavathy, the plaintiffs would contend that the property obtained by Ithooli Appissi is her personal property and so in determining share, it has to be determined on the basis of the number of members when Ithooli Appissi acquired the property and not on the basis of the number of members on the death of Ithooli Appissi. This question has to be resolved on the basis of the nature of the property that has been left by Ithooli. Appissi. If it is personal property, the claim of the plaintiffs is valid. This question has to be resolved on the basis of the nature of the property that has been left by Ithooli. Appissi. If it is personal property, the claim of the plaintiffs is valid. If it is tavazhi property, plaintiffs can claim only a share depending upon the number of persons at the time when the properties have to be partitioned. 6. Ext.B1 is dated 7-8-1937. In Ext.Bl, it is very clearly stated that the properties which are the subject matter of the partition, include tarwad properties also. The properties obtained by Ithooli Appissi under Ext.B7 and the properties she obtained under an old partition of her tarwad properties are blended with and Ext.B1 was executed. It is clearly stated in Ext.B1 that the partition is effected by allotting shares to one tavazhi headed by Ithooli Appissi and the other tavazhi headed by her daughter Kunhukutty Appissi. The circumstances would show that the properties have been divided under Ext.B1 on the basis that at least from the date of Ext.B1 the properties are treated as one belonging to the tarwad and so the contention that the properties dealt with under Ext.B1 are personal properties of Ithooli Appissi is unsustainable. If the properties are tavazhi properties, I have to determine the share of Ithooli Appissi on the basis of the number of members of the family when she died in the year 1966. Under Ext.B2, she got two shares. At the time of death in 1966, there were 13 members in the family. So the share of Ithooli Appissi is 2/14. Plaintiffs have got 1/4 share of Ithooli Appissi. It means that out of the 56 shares, plaintiffs will get two shares. The court below has found so. I do not see any error in this finding. T. The court below has given a preliminary decree of partition dividing plaint B schedule items 1 to 6, 8, 10,11 and 15 to 17 into 56 equal shares and for allotment of 2 such shares to the plaintiffs. Obviously there were 24 items in plaint B schedule. Items 1 to 18 are items Ithooli Appissi obtained under Ext.B1 partition and her tarwad properties she obtained under an earlier partition. Items 19 to 24 are items acquired after the partition, Ext.B1. Anyhow, as regards items 19 to 24, no argument was advanced before me. Obviously there were 24 items in plaint B schedule. Items 1 to 18 are items Ithooli Appissi obtained under Ext.B1 partition and her tarwad properties she obtained under an earlier partition. Items 19 to 24 are items acquired after the partition, Ext.B1. Anyhow, as regards items 19 to 24, no argument was advanced before me. In regard to items 7, 9,12,13,14 and 18, the court below found that they are not available for partition. The matter has been considered in great depth in Para.14 of the judgment. In regard to items 7, 9,13,14 and 18 there is clear evidence to show that these properties are not available for partition as such, because the plaintiffs and defendants have got only the right to get compensation for the same, since these items are now outstanding with the tenants. In regard to items 12 also, position is the same, since this item is also outstanding with a tenant. But it has to be remembered that these items are properties belonged to Ithooli Appissi and so were liable to be partitioned. Now as such the plaintiffs can claim only a share in life compensation payable by the tenants in regard to these items. The decree does not give such a right. I make it clear that the plaintiffs are entitled to two shares out of the 56 shares in the compensation payable in regard to these items. The decree has to be modified to this effect. 8. Now I shall consider the question regarding the properties scheduled in the plaint as C schedule. These properties belonged to Govinda Kurup. Defendants' case is that the plaintiffs cannot make any claim over these properties because Govinda Kurup had left a Will bequeathing these properties to his three children and his wife. The wife and one daughter Kali alias Kuttimalu Appissi pre-deceased Govinda Kurup and so the legatees under the Will are the two daughters, defendants 1 and 2. The Will is dated 17-11-1937. The original of the Will has not been produced in this case. Of course, this is a registered Will. In the plaint itself, there is mention about the Will. The Will is dated 17-11-1937. The original of the Will has not been produced in this case. Of course, this is a registered Will. In the plaint itself, there is mention about the Will. In Para.3 of the plaint, it is stated that Govinda Kurup had written several Wills and that he has revoked those Wills and at the time of death, there was no Will left by Govinda Kurup and so he died intestate and that the plaintiffs have got 1/4th share in the properties left by Govinda Kurup. 9. As I said earlier, the question that has to be decided in regard to the properties of Govinda Kurup is as to the existence of the Will. Though the original was not produced, a photostat copy of the original Will has been produced along with a registration copy of the Will. Registration copy of the Will is Ext.BS. The case of the plaintiffs is that the Will has been destroyed by tearing it off by Govinda Kurup himself in 1968, one year prior to the death of Govinda Kurup. In short, the case of the plaintiffs is that the Will has been revoked by the destruction of the Will by tearing it off. It is not disputed that Govinda Kurup had executed a Will and that Will has been registered and the copy of the Will is Ext. B5. Further as per Ext.BS, the properties have been bequeathed to the three daughters and his wife. So the question that has to be considered is whether there was revocation of the Will. A Will can be proved, if the original Will is not available with the help of a copy of the Will, if the same is registered. In this case, a registration copy of the Will has been produced and the same has been proved. The burden to prove the revocation of the Will in the circumstances is on those persons, who are claiming that the Will has been revoked. So the plaintiffs have to prove in this case the revocation of the Will. 10. The lower court has considered the evidence given by DW.1 and 2 and PW 1 in regard to the above matter and came to the conclusion that there is no sufficient evidence to come to the conclusion that the Will, Ext.B5 has been revoked. 11. So the plaintiffs have to prove in this case the revocation of the Will. 10. The lower court has considered the evidence given by DW.1 and 2 and PW 1 in regard to the above matter and came to the conclusion that there is no sufficient evidence to come to the conclusion that the Will, Ext.B5 has been revoked. 11. Counsel for the respondents referred me to the decision of the Supreme Court reported in (1979)1 Supreme Court cases 61 = A.I.R. 1979 S.C.145 (Durga Prashad v. Debi Chargan and others). The Supreme Court was considering the presumption attached to the non-production of the original Will and its effect. The Supreme Court has said that the question as to whether or not a presumption should be drawn in such cases as a rule of law is extremely doubtful. Further the Supreme Court said that even if such presumption can be drawn the said presumption is rebuttable and may be rebutted either by direct or circumstantial evidence. The Privy Council had occasion to consider this aspect of the matter. The Privy Council said in Welch v. Phillips (1836) 1 Moore PCC 299) thus: "Now the rule of the law of evidence on this subject, as established by a cause of decisions in the Ecclesiastical Court, is this: "that if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense". Commenting on this principle, the Supreme Court has said thus: "The serious question for us to determine is whether the ratio of this case can be applied to Indian conditions with full force. This matter was clearly considered by the Privy Council in the case from India In Padman v. Hanwanta (AIR 1915 PC 111) where the Privy Council sounded a note of caution in applying the aforesaid presumption to this country having regard to the nature and habits of the people of our country. This matter was clearly considered by the Privy Council in the case from India In Padman v. Hanwanta (AIR 1915 PC 111) where the Privy Council sounded a note of caution in applying the aforesaid presumption to this country having regard to the nature and habits of the people of our country. While approving the observations of the Chief Court their Lordships in the aforesaid case observed as follows: We think that the more reasonable presumption in this case is that the will was mislaid and lost, or else was stolen by one of the defendants after the death of Daula. Their Lordships think that it was perfectly within the competency of the learned judges to come to that finding. Much stress has been laid on the view expressed by Baron Parte, in Welch v. Phillips (1836) 1 Moore PCC 299) that when a will is .traced to the possession of the deceased and is not forthcoming at his death, the presumption is that he has destroyed it. In view of the habits and conditions of the people of India this rule of law, if it can be so called, must be applied with considerable caution. In the present case the deceased was a very old man and, towards the end of his life, almost imbecile. There is nothing definite to show that he had any motive to destroy the will or was mentally competent to do so. On the other hand, the circumstances favour the view the Chief Court has taken that the will was either mislaid or stolen". 12. In this case, the definite case pleaded by the defendants is that the Will has been stolen by the first plaintiff at a time when there was a modification in regard to the partition effected among the defendants. Further the rule laid down by the Supreme Court in this matter in the above decision is to the effect that "where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people. That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial. For instance, where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted". Even according to the plaintiffs, the revocation was in the year 1968. So it has to be noted that the Will, which was written as early as in 1937 bequeathing the properties to the three daughters and the wife and excluding one daughter, who got herself separated in 1937, continued in force till 1968. Further it has to be noted that the daughter, who has been excluded is not entirely deprived of anything, but there is a direction in the Will to pay an amount of Rs.50/- (of course it was in 1937) to that daughter. No circumstance has been brought out in this case to indicate that the testator had occasion to change his intention in 1968. It has to be noted that in 1946 the excluded daughter died and naturally, the testator will have more affection and consideration over the other daughters than to the children of the deceased daughter, who according to the defendants, were not on good terms with the father. Further there is evidence in this case to show that there was a criminal complaint filed against the testator's wife, by plaintiffs' mother. 13. The court below has considered all the aspects of the matter relating to the question of revocation of the Will and came to the conclusion that there is no sufficient proof regarding the revocation of the Will. The question whether the Will has been revoked or not is essentially a question of fact. In appeal, of course, this Court has got the power to reappreciate the evidence and can reverse the findings of the court below. The question whether the Will has been revoked or not is essentially a question of fact. In appeal, of course, this Court has got the power to reappreciate the evidence and can reverse the findings of the court below. But it has to be remembered that usually, an appellate court will not interfere with the finding of fact where it is not satisfied that it is wrong even where it is satisfied that it is not quite right. To me it appears that the finding of the court below is quite right. So I need not rely on the above said principle. This principle is very plainly stated by Lord Justice Godard in Stepney B. C. v. Jotte (1949) 1 All E.R. 256, thus:-- "It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers where it is satisfied that the judgment below is wrong not merely because it is not satisfied that the judgment is right. Thus usually an appellate court will not interfere with a finding of fact where it is not satisfied that it is wrong even where it is satisfied that it is not quite right". This Court in several decisions has cited the above decision and followed the same. I had also occasion to follow the dictum laid down in the above decision in several decisions. 14. In these circumstances, I do not think that there is any justification for me to interfere with the finding of the court below in regard to the question of revocation of the Will. If the Will has not been revoked, plaintiffs cannot claim any right in the properties left by Govinda Kurup. 15. In the result, the judgment and decree of the court below have to be confirmed with the slight modifications, I have indicated in the judgment, viz., as regards the compensation payable in respect of items 7, 9,12,13,14 and 18, plaintiffs will get 2 shares out of the 56 shares. I do so. Appeal is disposed of as above. There is no order as to costs. 16. Some of the defendants have filed cross objection stating that the plaintiffs cannot get 2 shares out of the 56 shares. According to the defendants, plaintiffs are entitled to get only one share out of the 56 shares. I do so. Appeal is disposed of as above. There is no order as to costs. 16. Some of the defendants have filed cross objection stating that the plaintiffs cannot get 2 shares out of the 56 shares. According to the defendants, plaintiffs are entitled to get only one share out of the 56 shares. I do not think that there is any substance in the cross objection. It is clear that by Ext.B1 Ithooli Appissi got 2 shares and if she had 2 shares, naturally in dividing her property, 2 shares have to be allotted and in that case what the lower court has done is correct. There is no merit in the cross objection. It is dismissed. Dismissed.