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2010 DIGILAW 767 (KER)

K. Chandran v. K. Haridas

2010-10-07

P.BHAVADASAN, THOTTATHIL B.RADHAKRISHNAN

body2010
Judgment :- Thottathil B. Radhakrishnan, J. 1. This appeal arises from a suit for partition. 2. Keloth Kunhikannan and the 12th defendant had four sons and two daughters, namely, the plaintiff, defendants 1 to 4 and the 9th defendant. Defendants 5 to 8 are the children of the fourth defendant. Defendants 10 and 11 are the children of the 9th defendant. 3. Kunhikannan executed Ext.A1 registered Will on 07.06.1950. On 30.08.1973, the plaintiff executed Ext.A2 release deed, in the name of his mother, the 12th defendant, stating that it is in favour of the members of the thavazhi. Thereafter, defendants, 1, 2, 3, 4, 9 and 12 entered into Ext.B3 on 29.09.1978, by which, they agreed to partition the properties dealt with in Exts.A1 and A2. 4. Thereafter, the suit from which this appeal arises was filed in 1994; the plaintiff claiming partition of the properties dealt with in Ext.A1 as if it was an allotment inuring only to him, his mother the 12th defendant and his siblings – defendants 1, 2, 3, 4 and 9. 5. Defendants 9, 10 and 11 resisted contending that the bequest made by Kunhikannan as per Ext.A1 was in favour of the thavazhi headed by the 12th defendant and therefore, it inured to the benefit of all members who were born in that thavazhi in terms of the Marumakkathayam Law on or before 01.12.1976, the date of coming into force of the Kerala Joint Hindu Family system (Abolition) Act, 1975. 6. Defendants 1 to 3 and 12 contested the aforesaid stand of defendants 9 to 11 and also challenged the right of the plaintiff to claim partition on the face of Ext.A2 release deed executed by him. 7. The trial court held that the plea of the plaintiff and defendants 1 to 3 and 12 that the allotment under Ext.A1 was made exclusively to the 12th defendant and her children, does not stand. It was found that the said allotment was in favour of the thavazhi, of which, the 12th defendant was the manager and therefore, the children born to the family members of that thavazhi, namely defendant, 5 to 8, who are the children of the fourth defendant, and defendants 10 and 11 who are the children of the 9th defendant, are also entitled to partition. It was held that Ext.B3 agreement for partition is not binding. It was held that Ext.B3 agreement for partition is not binding. A preliminary decree for partition was accordingly passed, granting the plaintiff and the 12th defendant one upon 13 shares each. 8. The appeal in hand is filed by the widow of Kunhikannan, namely the 12th defendant and her three sons, defendants 1, 2 and 3. They challenge the findings of the court below that the allotment through Ext.A1 inured to the benefit of the thavazhi and the grand children in the female line were also entitled to their share. The interpretation given to Ext.A2 is also under challenge. 9. By the time this appeal is taken up for final hearing, the plaintiff has filed, what he calls a statement, to the effect that he would stand by the allotment made under Ext.B3, provided the item allotted thereunder to the mother, the 12th defendant (who is now no more) is allotted to the plaintiff. The first defendant, who, it is stated, has in his favour a bequest from the 12th defendant, has also taken the stand before us that he is prepared to abide by and accept the suggestion of the plaintiff. If this happens, the consequence would be that defendants 5 to 8, who are the children of the fourth defendant and defendants 10 and 11 who are the children of the 9th defendant, will lose their shares in terms of the preliminary decree and the allotment will be confined to defendants 1 to 4 and 9 and the plaintiff taking the share of the 12th defendant in terms of Ext.B3. The aforesaid proposed settlement is hence opposed by defendants 9 to 11. They stand to assert that this being an appeal arising from a suit for partition and they having claimed share in accordance with the law and having succeeded in the court of first instance, they are entitled to hold the status of a plaintiff and sustain the decree by opposing this appeal. 10. In the light of the above, the following questions arise for determination in this appeal: i. Is the bequest made as per Ext.A1, one in favour of a thavazhi which is a family unit, in terms of Marumakkathayam Law? If that were so, is not the decree of the trial Court sustainable? 10. In the light of the above, the following questions arise for determination in this appeal: i. Is the bequest made as per Ext.A1, one in favour of a thavazhi which is a family unit, in terms of Marumakkathayam Law? If that were so, is not the decree of the trial Court sustainable? ii) If the allotment under Ext.A1 is not in favour of a thavazhi, but only personal and confined to be exclusively in favour of the 12th defendant and her children, who may be born to Kunhikannan through her, is not the decree liable to be set aside to the extent of allotment made in favour of Kunhikannan’s grand children? iii) What is the effect of Ext.A2 on the plaintiff’s right to sue? iv) In the event of it being found that Ext.A2 binds the plaintiff and that he does not have a subsisting right to sue, can the suit be dismissed on the face of the opposition of defendants 9 to 11 to this appeal, who support the impugned decree? 11. The parties were admittedly governed by the Marumakkathayam law before the severance of status by statutory intervention of the Joint Hindu Family system (Abolition) Act which came into effect on 01.12.1976. There is nothing on record to show that there was any severance of status of the thavazhi headed by the 12th defendant at any point of time earlier. Therefore, the cohesiveness of that thavazhi stands as not disputed. Then, the only issue is whether the bequest made by Kunhikannan as per Ext.A1 Will was in favour of that thavazhi or that which inures personally to the 12th defendant and the children born to her and the testator, to the exclusion of others who may be born thereafter as grand children and further down the line to be the members of that thavazhi. 12. It terms of S.48 of the Madras Marumakkathayam Act, which governed the parties at the relevant time, the presumption is necessarily that the bequest or gift is in favour of the joint family, ie., the thavazhi, unless of course, its terms which are to the contrary, are clear and without any contradiction. The burden is on the one who asserts to the contrary, to prove that the bequest or gift is otherwise than in favour of the thavazhi. 13. The burden is on the one who asserts to the contrary, to prove that the bequest or gift is otherwise than in favour of the thavazhi. 13. Kunhikannan stated in Ext.A1 will as follows: Malayalam (emphasis supplied) In its gist, the afore-quoted portion of Ext.A1 Will means that “after my life time, my wife Paru @ Lakshmi and the children now I have through her – namely, Sreedharan, Chandran, Haridasan, Premalatha, Rathnavalli and the children that I may have in future through my wife Paru @ Lakshmi will take the properties as owners and my wife, the first named among you, paru @ Lakshmi will deal with and take usufructs therefrom during her life time and would also provide for my issuless sister Narayani, who is also residing with you and will utilize it for the day-to-day expenditure of my children who are parties 2 to 6 and the children who may be born hereafter to me and Paru @ Lakshmi and the remaining income will be used to augment the joint assets.” 8. The use of the phrase “santhathi santhanangal” was much debated upon during the course of the arguments. The learned senior counsel for appellants argued that the decision of the Division Bench of this Court in Nangeli Amma v. Krishnan Nambissan (1958 KLT 516) is rendered on near similar set of facts categorically laying down that the intention of such a testament or gift is that the allotment is being made to the allottees as tenants in common and not as a thavazhi. Per contra, the learned counsel for defendants 9 to 11 referred to Sivasankaran v. Lakshmi (1966 KLT 327) wherein a particular document was construed as constituting an allotment in favour of a thavazhi. He also referred to “Narayani Amma v. Parameswaran Pillasi (1963 KLT 630) and Kumaran Raman v. Sankara Panicker (22 TLJ 585) rendered stating that the expression “santhathi” which corresponds to the word “santhanam” means not children or issues only but imports succession or heirship. 9. We referred to Sreekandeswaram’s classical work “Sabdatharavali”. It records the concept of “santhathi” and “santhanam” as referable to “vamsham”, thereby indicating that the concept does not get confined to one, who could be called as son or daughter, i.e., the immediate progeny, but goes down in a line of descendance. 9. We referred to Sreekandeswaram’s classical work “Sabdatharavali”. It records the concept of “santhathi” and “santhanam” as referable to “vamsham”, thereby indicating that the concept does not get confined to one, who could be called as son or daughter, i.e., the immediate progeny, but goes down in a line of descendance. Nangeli Amma was rendered, making reference to Karthiyani Amma v. Kesava Pillai (1957 KLT 355), which supports the view that a gift by a male to his Marumakkathayee wife and children inures to the benefit of that thavazhi as a whole and not merely to the benefit of that thavazhi as a whole and not merely to the benefit of the persons named in the instrument. It was also laid down that this is in the nature of a presumption, which could, by the use of apt words, be rebutted. Karthiyani Amma dealt with a case which arose before the statutory provisions came into being but, with S.48 of the Madras Marumakkathayam Act in place, there is no further room for doubt in that regard also. Though the relevant provisions of the document dealt with in Sivasankaran, cited on behalf of defendants 9 to 11, are not quoted in that judgment, it is easily discernible from paragraph 2 thereof that what fell for consideration was the case of a bequest made in the name of the testator’s wife and five children then alive, with the stipulation that the property should be enjoyed by the thavazhi constituted by the said children, children to be born thereafter and the children and grand children (santhathi santhanangal) in the female line as puthravakasam thavazhi property in equal right without partition. 10. In Uma Devi Nambiar v. T.C. Sidhan [(2004) 2 SCC 321], analyzing various decisions, including Ram Gopal v. Nand Lal [AIR 1951 SC 139], Gnambal Ammal v. T. Raju Ayyar [AIR 1951 SC 103], Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer [AIR 1953 SC 7], Pearey Lal Rameshwar Das [AIR 1963 SC 1703], Ramachandra Shenoy v. Hilda Brite [AIR 1964 SC 1323] and Navneet Lal v. Gokul [(1976) 1 SCC 630: AIR 1976 SC 794]., the Apex Court recorded that the following principles are well established. “(1). “(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. (2) In construing the language of the Will the court is entitled to put itself into the testator’s armchair 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. (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. (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 expressions 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. (5) 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 intention contained in the Will.” 11. 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 intention contained in the Will.” 11. In interpreting a document, it has to be read as a whole and understood in the light of the recitals therein. In the event of any ambiguity in the document when so read, the endeavour shall be to reconcile between the different terms of the document and the attempt should be to give effect to the document as it stands. In discerning the provisions of a document, the context in which it is made may also be relevant. The question of treating any particular clause or term of a document as repugnant would be resorted to only as the last among the courses to be adopted in interpretation of documents. 12. Examining Ext.A1 in the light of the aforesaid principles, we find that the intention of Kunhikannan was that his personal assets dealt with under that bequest should inure to the widow and children in that thavazhi and he never intended to deprive his grand children and descendants further down, of the right to enjoy the bequest. The provision in Ext.A1 quoted above is not one that confers rights, per capita exclusively on the persons named therein or to the children who may be born thereafter to the testator Kunhikannan through the 12th defendant. This is fortified by one more cardinal aspect that discloses the mind of the testaor Kunhikannan. The Will, in particular, the portion quoted above, would show that even the direction to his wife Paru @ Lakshmi was to provide for the day-to-day expenditures of the issueless sister and the children of the testator and utilize the remainder for augmenting the joint assets. Kunhikanna, therefore, had necessarily intended the continued cohesiveness and jointness of the family for the purpose of enjoying the fruits of the bequest made by him as per Ext.A1. This is, in our view, a clinching piece of material, disclosing the mind of testator Kunhikannan as regards Ext.A1 Will. 13. Kunhikanna, therefore, had necessarily intended the continued cohesiveness and jointness of the family for the purpose of enjoying the fruits of the bequest made by him as per Ext.A1. This is, in our view, a clinching piece of material, disclosing the mind of testator Kunhikannan as regards Ext.A1 Will. 13. Unlike in Nangeli (supra), where there was a clear statement that the allotment was one in equal rights, Ext.A1 does not contain any such indication or that the allotment is not intended to inure to the benefit of the thavazhi that already existed. In that view of the matter, we are satisfied that beyond the realm of presumption available under S.48 of the Madras Marumakkathayam Act, the testator’s intention as discernible from Ext.A1 is nothing but that the bequest made was in favour of the thavazhi of which the 12th defendant was the manager. With that, we would consider whether there is any ground to dislodge the presumption available under S.48 of the Madras Marumakkathayam Act at least, by any conduct of parties as discernible from the manner in which they dealt with the bequest under Ex.A1. Ext.A2 is executed by the plaintiff in favour of the 12th defendant. She and her other sons – D1, D2 and D3 are the appellants. They stand by Ext.A2. The contents of Ext.A2 show beyond any shadow of doubt that the parties dealt with the properties covered by Ext.A1 as thavazhi properties. Therefore, there is no contrary intention, coming out by mode of transaction made by the parties with reference to Ext.A1, with the plaintiff and defendants 1, 2, 3 and 12 on the party array. Therefore, the conduct of those parties in the manner in which they dealt with the bequest under Ext.A1 in Ext.A2 is a fact that corroborates in concluding that Ext.A1 contains a bequest in favour of the joint family, the thavazhi, headed by the 12th defendant. 14. Now, we would consider the question as to what was the right to sue of the plaintiff, following Ext.A2. By the said document, he relinquished his rights in the property covered by Ext.A1. That relinquishment is not in favour of any stranger to the thavazhi or to an individual member of the thavazhi. It is a relinquishment in the name of the 12th defendant on behalf of the thavazhi and for the enjoyment of the thavazhi. By the said document, he relinquished his rights in the property covered by Ext.A1. That relinquishment is not in favour of any stranger to the thavazhi or to an individual member of the thavazhi. It is a relinquishment in the name of the 12th defendant on behalf of the thavazhi and for the enjoyment of the thavazhi. We would recall that even in Ext.A1 Will, the testator had imposed a condition that the properties will not be encumbered, without the parties acting jointly, to encumber. Whatever rights the plaintiff had, including his claim for partition, stood lost in terms of Ext.A2, in favour of the thavazhi. Therefore, in our view, after the execution of Ext.A2, the plaintiff had no right to sue for any share in the property covered by Ext.A1. Therefore if we were to take this as merely a suit by the plaintiff, it ought to have been dismissed by the trial court. 15. But, in hand is a suit for partition. Defendants 9 to 11, who stand by the preliminary decree are entitled to seek its sustenance, since they are allotted shares in terms thereof. Defendants 4 to 8 are also allotted shares. Therefore, we have necessarily to proceed to consider the question of allotment of shares. 16. the plaintiff not being entitled to any share in the light of Ext.A2, the suit property has to be divided into 12 shares by taking in to be belonging to the thavazhi headed by the 12th defendant and by recognizing that the plaintiff had relinquished his right to share in that property. We have, therefore, to necessarily mould the decree in exercise of the authority under Order XLI Rule 33 of the CPC to do complete justice to the parties. 17. In the result, this appeal is allowed partly, modifying the impugned preliminary decree and directing partition of the suit properties into 12 equal shares by metes and bounds and allotting one such share to each among the defendants. The share of the 12th defendant, who is now no more, is to be allotted in terms of succession to her estate, testamentary or non-testamentary, as may be, to be decided during the final decree proceedings. Subject to the above modifications, the directions in the impugned preliminary decree will stand. The share of the 12th defendant, who is now no more, is to be allotted in terms of succession to her estate, testamentary or non-testamentary, as may be, to be decided during the final decree proceedings. Subject to the above modifications, the directions in the impugned preliminary decree will stand. Any direction for allotment of share or mesne profits to the plaintiff as contained in the impugned preliminary decree is set aside. Appeal so decreed. No costs.