Kerala High Court
S.Krishnankutty Nair vs Seethalekshmi Amma on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
RSA NO. 1016 OF 2005
AGAINST THE JUDGMENT DATED 09.12.2004 IN AS NO.113 OF 1999
OF SUB COURT, NEYYATTINKARA ARISING OUT OF THE JUDGMENT
DATED 29.07.1999 IN OS.563 OF 1997 OF I ADDITIONAL MUNSIFF
COURT,NEYYATTINKARA
APPELLANT/APPELLANT/PLAINTIFF:
S.KRISHNANKUTTY NAIR
RESIDING AT THUNDUVADAKKETHIL VEEDU,
T.C.40/1061, NEAR MUKKOLAKKAL TEMPLE,
SREEVARAHAM, MANACAUD P.O, THIRUVANANTHAPURAM.
BY ADVS.
SRI.L.MOHANAN
SMT.LIGEY ANTONY
RESPONDENTS/RESPONDENTS/DEFENDANTS 1 & 3:
1 SEETHALEKSHMI AMMA,
D/O. NARAYANI AMMA
RESIDING AT PLANGALA PUTHEN VEEDU,
PULIMUTTOM, NEYYATTINKARA.
2 DAISY YESUDASAN W/O. LATE YESUDASAN
RESIDING AT GRACE VILLA, PULIMUTTOM,
NEYYATTINKARA
BY ADV SRI.G.S.REGHUNATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 9.4.2024, THE COURT ON 12.04.2024 DELIVERED THE
FOLLOWING:
RSA.1016/2005
2
JUDGMENT
Dated this the 12th day of April, 2024
This is a Second appeal filed by the appellant in AS No.113 of
1999 on the file of Sub Court, Neyyattinkara, who is the plaintiff in
OS.No.563/1997 on the file of Munsiff Court, Neyyattinkara, against
the dismissal of his suit by the trial court as well as the First
Appellate Court.
2. The appellant is the nephew of late Bhaskaran Nair. First
respondent is the widow of Bhaskaran Nair, who died issueless on
4.9.1992. Bhaskaran Nair had executed two registered wills. As per
first will No.3/1991, he had bequeathed five items of properties in
favour of the appellant and one Maniyan. As per the second will
No.17/1991, he had cancelled item No.2 property from the first will.
Thereafter, on 23.9.1991, Bhaskaran Nair alienated two cents of
property from item No.1. After the death of the testator, the 1 st
respondent alienated the plaint A schedule property in favour of the
2nd respondent as per Sale Deed No.235/1997 (Exhibit A2-marked as
per order in IA.No.1/2005 dated 9.4.2024). As per Exhibit A1 will,
the appellant claims absolute right over plaint schedule item No.A to
D properties subject to life interest of 1 st respondent. The authority
of the 1st respondent to execute Exhibit A2 Sale Deed is the subject
matter in dispute involved in this case.
3. According to the appellant, as per the terms of Exhibit A1
will, the 1st respondent has only life interest in the schedule
properties and therefore, according to him, Exhibit A2 Sale Deed
executed by the 1st respondent in favour of the 2nd respondent is null
and void. However, the trial court as well as the First Appellate
Court found that after the death of the testator, the entire property
devolved upon the 1st respondent and that the property remaining
after the death of the 1st respondent alone will devolve upon the
legatees and accordingly dismissed the suit. Aggrieved by the above
finding of the trial court as well as the First Appellate Court, the
Second Appeal was preferred raising various contentions.
4. At the time of admission, after hearing both sides, a
substantial question of law was formulated, which reads as follows:
"Have not the courts below erred in dismissing the suit
considering and interpreting Ext.A1 will relying on an
isolated sentence only, without gathering the intention of
the testator as to whether his intention was to bequeath the
properties to the legatees providing only life interest for
his wife in relation to the immovable properties
scheduled?"
5. Heard both sides on the substantial question of law, in
detail.
6. The entire dispute between the parties revolve around
interpretation of a particular clause in Exhibit A1 will. The trial
court as well as the First Appellate Court concurrently found that the
meaning of the above clause is to the effect that after the death of the
testator, entire properties devolve upon the wife namely the 1 st
defendant and only the residue, if any, will devolve upon the
appellant. The wordings in Exhibit A1 also is to the effect that after
the death of the testator, his wife could possess and enjoy the said
properties with absolute right and freedom and that only after her
death, the properties will devolve upon the legatees.
7. The law is well settled that while construing the provisions
of a will, the true intention of the testator is to be gathered by
reading the will as a whole. In the decision in Navneet Lal alias
Rangi v. Gokul and Others [(1976) 1 SCC 630] the principles to
be followed while construing a will, are enumerated in paragraph 8
as follows:
"8. From the earlier decisions of this Court the following
principles, inter alia, are well established:-
(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. (Ram Gopal v. Nand
Lal and Others [1950 SCR 766 at p.772: AIR 1951 SC 139 at page
141])
(2) In construing the language of the Will the court is entitled to put
itself into the testator's armchair (Venkata Narasimha v.
Parthasarathy [1913 (41) Ind App 51 at p.73 (PC)]) 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. Venkata Narasimha's case supra and Gnanambal
Ammal v. T. Raju Ayyar and Others [1950 SCR 949 AT P.955: AIR
1951 SC 103 AT PP 105-6]
(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 (Raj Bajrang Bahadur Singh v.
Thakurain Bakhtraj Kuer [1953 SCR 232 AT P.240 -(AIR 1953 SC
7 AT P 9])
(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 expression 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. Paerey Lal v. Rameshwar
Das[1963 Supp (2) SCR834 at pp.839-842: AIR 1963 SC 1703 at
pp.1705-1706]
(5) It is one of the cardinal principles of construction of wills that
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. (Ramachandra Shenoy and Another
v. Mrs. Hilda Brite and Other[1964 (2) SCR 722 at p735: AIR 1964
SC 1323 at pp.1328-1329]).
The same view was held by the Hon'ble Supreme Court in Navneet
Lal (supra), relied upon by the first appellate Court and Ganesh
Bhandary V. Ambunhi [1989 (2) KLT 882] relied upon by the trial
court.
8. In this context, it is to be noted that the 1 st respondent
is the widow of the testator, while the legatees are his relatives
namely two nephews. Even as per Exhibit A1, the 1 st respondent is
suffering from various age old ailments. In the year 1991, at first the
testator executed will No.3/1991, bequeathing five items of
properties in favour of the appellant. Thereafter, he had executed
Exhibit A1 will, in which one item of property was omitted from the
earlier will. Thereafter, the testator, during his life time alienated
two cents of property from item No.1, in Exhibit A1. It was
thereafter, the 1st respondent assigned the remaining property
available in 'A' schedule to the second respondent, after the death of
the testator.
9. On a perusal of Exhibit A1 in full and the particular clause
relating to conferring right over the schedule properties in favour of
the 1st respondent, it is evident that the testator wanted to confer
absolute and unfettered right and title including possession over the
entire scheduled properties on the 1st respondent and wanted to
bequeath only the residue after the death of the 1 st respondent on the
legatees.
10. In the above circumstances, it can be seen that the trial
court as well as the 1st appellate courts have correctly interpreted and
understood the intention of the testator as revealed from Exhibit A1
and as such the substantial question of law formulated is found
against the appellant. Therefore, I find no merits in the Second
Appeal and as such it is liable to be dismissed.
In the result, Second Appeal is dismissed with costs.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
APPENDIX
APPELLANT'S EXHIBITS
EXHIBIT A2 - COPY OF SALE DEED NO.235/1997
