Kerala High Court

Smt.Vijayalakshmi @ Viji Raman vs Sri.Radhakrishnan Mundyat on 26 September, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

                                             2024:KER:71656

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

         THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                &

          THE HONOURABLE MR. JUSTICE JOHNSON JOHN

THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946

                       RFA NO. 175 OF 2018

    AGAINST THE DECREE AND JUDGMENT DATED 31.10.2017 IN

    OS NO.43 OF 2016 OF PRINCIPAL SUB COURT, ERNAKULAM

APPELLANT/PLAINTIFF:

         SMT.VIJAYALAKSHMI @ VIJI RAMAN
         AGED 65 YEARS, D/O. LATE SRI.RAMAPURATHU KUNJHI
         RAMA PODUVAL,
         RESIDING AT 6 WHITE PILLARS, HOUSTON,
         TEXAS 77024.


         BY ADVS.
         SRI.ANIL S.RAJ
         SMT.ANILA PETER
         SMT.K.N.RAJANI
         SRI.RADHIKA RAJASEKHARAN P.
         SRI.S.SUDHEESH
         SRI.SAJEN THAMPAN




RESPONDENTS/DEFENDANTS:

    1    SRI.RADHAKRISHNAN MUNDYAT (DIED)
         AGED 73 YEARS, SON OF LATE SRI.RAMAPURATHU KUNJHI
         RAMA PODUVAL,RESIDINGAT AT 74-02, 43RD AVE, APT
         7-M,ELMHURST, NEW YORD 11373 USA.
                                                             2024:KER:71656

R.F.A. No.175 of 2018
                                     -: 2 :-



             IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND
             THE APPELLANT AND THE RESPONDENTS 2 AND 3 ARE THE
             LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT VIDE
             ORDER DATED 27/01/2023 IN IA 1/2023.

     2       VIJAYANUNNI
             AGED 70 YEARS, SON OF LATE SRI.RAMAPURATHU KUNJHI
             RAMA PODUVAL,RESIDING AT VIJAYAVILLA NEAR SBT
             BRANCH,POOJAPURA P.O., THIRUVANANTHAPURAM,
             PIN - 695 012.

     3       RAMACHANDRAN
             AGED 67 YEARS, SON OF LATE SRI.RAMAPURATHU KUNJHI
             RAMA PODUVAL,RESIDING AT HOUSE NO. 212, GREENWOOD
             SOCIETY,PHASE 1, SECTOR OMEGA 1, GREATER NOIDA 1,
             PIN - 201308 M.RAMACHANDRAN, FLAT RSD 032, DLF
             RIVER SIDE, JANATHA ROAD, VYTILLA,
             ERNAKULAM - 682019
             THE ADDRESS OF THE THIRD RESPONDENT IS CORRECTED
             BY INCORPORATING THE NEW ADDRESS, VIDE ORDER DATED
             27/01/2023 IN IA 2/2023.


             BY ADVS.
             JAYASREE K.P.
             JOHN JOSEPH(K/000875/2019)



THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
26.09.2024,       THE   COURT   ON     THE     SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                     2024:KER:71656


              SATHISH NINAN & JOHNSON JOHN, JJ.
             = = = = = = = = = = = = = = = = = =
                    R.F.A. No.175 of 2018
             = = = = = = = = = = = = = = = = = =
          Dated this the 26th day of September, 2024

                              JUDGMENT

Sathish Ninan, J.

The preliminary decree in a suit for partition is under

challenge by the plaintiff.

2. The plaint schedule property is 2.605 ares with a

residential building situated therein. It belonged to one

late R.K.R. Pothuval. Shri.Pothuval and his wife are no

more. The plaintiff is their daughter, and defendants 1 to 3

are their sons. The suit is filed seeking partition of the

plaint schedule property and separate possession.

3. According to the plaintiff, the father,

Shri.Pothuval, had executed Ext.A1 Will dated 24.04.1987.

Under Ext.A1, one-half of the plaint schedule property is

bequeathed to the plaintiff and the other half to the wife

of Shri.Pothuval (the mother of the plaintiff and 2024:KER:71656

defendants). As per Ext.A1, on the death of the mother, her

right was to devolve on the plaintiff and defendants in

equal shares. Thus, the plaintiff claimed 5/8 shares over

the plaint schedule property.

4. The 1st defendant alone appeared and contested the

suit. He filed a written statement denying Ext.A1 Will. He

contended that the plaintiff and the defendants are entitled

to 1/4 share each, over the property.

5. The trial court upheld Ext.A1 Will. It was further

held that out of the plaint schedule property, it is only

the building which is the subject matter of Ext.A1 bequest

and not the land. Accordingly, it was declared that the

plaintiff and the defendants are entitled to 1/4 share each

over the land and that the plaintiff is entitled to 5/8

share over the building. Aggrieved by the finding with

regard to the land and the consequential declaration of

shares, the plaintiff has preferred this appeal.

6. We have heard Sri.Anil S. Raj, the learned counsel 2024:KER:71656

for the appellant, and Smt.Jayasree K.P., the learned

counsel on behalf of the 2nd respondent.

7. The 1st respondent-1st defendant died pending the

appeal and respondents 2 and 3 have been recorded as his

legal heirs.

8. The point that arises for determination is;

"Is the finding of the trial court that, the land on which the building is situated is not a subject matter of Ext.A1 bequest, sustainable in law?"

9. The relevant recital in the Will reads thus;

"As per this Will, after my death, the house No.34/1895 ("Vijay") constructed by me on Plot No.100 in Girinagar North Extension will be divided into two equal shares, of which one half will belong to my only daughter, Vijayalakshmi, wife of Dr.E.K. Jayamohan, and the other half should go to my wife Mundayat Chinnammu Ammav, which share on her death will go to our four children, vis:- (1) Radhakrishanan, (2) Vijayanunni, (3) Ramachandran, and (4) Vijayalakshmi, in equal portions. The cost of construction of half of the house on the first floor consisting of two bed-rooms with bath, living, dining, kitchen, store, was spent by my daughter, except two bed-rooms, and bath room, which was constructed by me earlier in 1979 with the ground floor."

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10. According to the plaintiff, in Ext.A1 Will, the

testator has dealt with all his assets, movable and

immovable. The residential building covers almost 90% of the

land. The building takes in the land on which it is

situated. In Ext.A1 Will, the testator, by mentioning about

the building situated in the plot, has intended the plot as

such and not the building alone without the land on which it

is situated.

11. The learned counsel for the appellant would also

point out that the 1st defendant, who alone chose to contest

the suit, had only raised a plea of denial of Ext.A1 Will.

There was no contention that the land was not a subject

matter of the bequest. The Court has erred entering such a

finding even without such plea or an issue. The plaintiff

was taken by surprise and did not have any opportunity to

adduce any evidence regarding the same, it is argued.

12. The learned counsel appearing for the 2 nd

respondent would, on the other hand, contend that Ext.A1 2024:KER:71656

Will makes separate and specific references to the land and

the building. One-half of the building was bequeathed to the

plaintiff for the reason mentioned in Ext.A1 itself, namely,

that the plaintiff had expended the amount for construction

of the half portion of the building. At various portions of

the Will, the land has been separately referred to, which

indicates that the testator was conscious of the separate

subjects available namely, the land and the building. In

spite of the same, he chose to bequeath one-half of the

building alone in favour of the plaintiff. There is no

warrant for interpreting that one-half of the land has also

been bequeathed to the plaintiff, it is argued.

13. A reading of the written statement reveals that

there was no contention that the land is not the subject

matter of the bequest. No issue was raised by the Court

regarding the same. After entering a finding on the

genuineness of Ext.A1 Will, the Court has proceeded to

consider whether Ext.A1 relates to the land also.

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14. Section 75 of the Indian Succession Act, 1925

reads thus;

"S.75. Inquiries to determine questions as to object or subject of Will.- For the purpose of determining questions as to what person or what property is denoted by any words used in a Will, a court shall inquire into every material fact relating to the person who claim to be interested under such Will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used."

In terms of Section, when a question arises as to what

person or property is denoted by the words used in a Will,

the Court is to conduct an enquiry as stated therein. The

learned counsel for the appellant persuaded this Court to

enter a finding on the issue as to whether the land in

question forms the subject matter of Ext.A1 bequest. In the

light of Section 75 of the Indian Succession Act noted

above, it is deemed appropriate that the parties may be

given an opportunity to adduce evidence regarding the 2024:KER:71656

relevant materials as mentioned therein. Hence, we are not

inclined to adopt the course suggested by the learned

counsel.