[Cites 21, Cited by 0]
Kerala High Court
Sivadas K.R vs Ramavilasom N.S.Karayogam No.690 on 19 December, 2025
R.S.A. No.4 of 2015 1 2025:KER:97437
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 19TH DAY OF DECEMBER 2025 / 28TH AGRAHAYANA, 1947
RSA NO. 4 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 17.10.2014 IN AS NO.200
OF 2011 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT)-II, KOTTAYAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 26.8.2011 IN OS NO.119
OF 2002 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANTS/APPELLANTS/ADDITIONAL PLAITNIFFS 3 TO 5 :
1 SIVADAS K.R., AGED 55,
S/O KALYANIAMMA, KANAKKALAYIL HOUSE,
NEDUMANNIL P.O, NEDUMKUNNAM
2 GOPINATHDAS K.R
AGED 48 YEARS
S/O KALYANIAMMA, KANAKKALAYIL HOUSE,
NEDUMANNIL P.O, NEDUMKUNNAM
3 K.G. SANTHAMMA
AGED 53 YEARS
KANJIRATHUMKAL HOUSE, VAZHOOR P.O,
KODUNGOOR, KOTTAYAM
BY ADVS.
SRI.M.NARENDRA KUMAR
SRI.BINDU P.NAIR
RESPONDENTS/RESPONDENTS/DEFENDANTS :
1 RAMAVILASOM N.S.S. KARAYOGAM NO.690
REPRESENTED BY ITS SECRETARY,
VAZHOOR P.O, KOTTAYAM (IST DEFENDANT)
PIN-686504
2 SIVADAS, AGED 62 YEARS
SECRETARY, RAMAVILASOM,
N.S.S. KARAYOGAM NO 690,
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VAZHOOR P.O, KOTTAYAM,
RESIDING AT REVATHY, KODUNGOOR P.O,
KOTTAYAM, PIN-686504
3 UNNIKRISHNAN NAIR, AGED 74 YEARS,
PRESIDENT, RAMAVILASOM, N.S.S KARAOGAM NO 690,
VAZHOOR P.O, KOTTAYAM, RESIDING SANTHI BHAVAN,
VAZHOOR P.O, KOTTAYAM, (3RD DEFENDANT)
PIN-686504
4 LAKSHMIKUTTYAMMA (DIED,LRS IMPLEADED)
AGED 61 YEARS
W/O SIVARAMA PILLAI, RESIDING AT KANJIRATHUMKAL HOUSE,
VAZHOOR P.O, KODUNGAOOR,
KOTTAYAM (4TH DEFENDANT)
PIN-686504
5 JANAKIAMMA
AGED 72 YEARS
W/O PADMANABHA PILLAI,
RESIDING AT KANJIRATHUMKAL HOUSE, VAZHOOR P.O,
KODUNGOOR, KOTTAYAM (5TH DEFENDANT)
PIN- 686504
6 RATNAMMA
AGED 50, KANAKKALAYIL HOUSE,
NEDUMANNI P.O, NEDUMKUNNAM,
(ADDL 6TH DEFENDANT), PIN- 686542
7 LAKSMIKKUTTIYAMMA PONNAMMA
AGED 59 , CHENNAMKULAM HOUSE,
VAZHOOR, KODUNGOOR P.O, KOTTAYAM
(ADDL 7TH DEFENDANT), PIN-686504
8 GOPI PILLAI, AGED 57
KANJIRATHUMKAL HOUSE VAZHOOR P.O,
KODUNGOOR, KOTTAYAM (ADDL 9TH DEFENDANT)
PIN-686504
9 KAMAL GOPI, AGED 25
S/O GOPI PILLAI, KANJIRATHUMKAL HOUSE,
VAZHOOR, KODUNGOOR P.O, KOTTAYAM
(ADDL 10TH DEFENDANT), PIN-686504
10 KAPIL GOPI, AGED 20
S/O GOPI PILLAI, KANJIRATHUMKAL HOUSE,
VAZHOOR, KODUNGOOR P.O, KOTTAYAM
(ADDL 11TH DEFENDANT), PIN-686504
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ADDL. R11 MAYA DEVI. K.S
AGED 49 YEARS,W/O. SREEKUMAR,
VELLAPPUAYIL HOUSE, MARIYATHURUTHU.
P.O.,KOTTAYAM-686 017.
ADDL. R12 MANOJ. K.S.
AGED 47 YEARS,S/O. SIVARAMA PILLAI
KANJIRATHUMKAL HOUSE,VAZHOOR. P.O.,
KODUNGOOR,KOTTAYAM-686 504
ADDL.R13 MINI K.S
AGED 45 YEARS,D/O. SIVARAMA PILLAI,
NEDUVELY HOUSE,NEDUMKUNNAM. P.O.,
NEDUMKUNNAM, KOTTAYAM DISTRICT.
(THE LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT
ARE IMPLEADED AS ADDL RESPONDENTS 11 TO 13 AS PER ORDER
DATED 09.01.2025 IN IA 1/2024. )
R1 AND R2 BY ADV SRI.RAJEEV V.KURUP
R3 BY ADV SRI.RAJEEV V.KURUP ( BY ORDER)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
11.12.2025, THE COURT ON 19.12.2025 DELIVERED THE FOLLOWING:
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EASWARAN S., J.
----------------------------
R.S.A. No.4 of 2015
-------------------------------------
Dated this the 19th day of December, 2025
JUDGMENT
The plaintiffs 3 to 5 in O.S. No.119 of 2002, a suit for partition
and injunction on the files of the Principal Sub Court, Kottayam, have
preferred the present appeal, challenging the dismissal of the suit by
the trial court, as confirmed by the Additional District Court-II
(Special), Kottayam, in A.S. No.200 of 2011.
2. The brief facts necessary for the disposal of this appeal are as
follows:
The plaint schedule property belonged to one Bhaskaran Pillai,
who died unmarried. Bhaskaran Pillai derived the right title and
interest over the plaint schedule property by a partition deed
No.3397/83 of SRO, Kanjirappally. Bhaskaran Pillai died on
10.9.2001. On 19.6.1999, Bhaskaran Pillai executed a Will in favour
of the 1st defendant, Karayogam, and deposited the same with the
District Registrar and on 10.10.2001, the Will was registered as
document No.142/2001. The plaintiffs questioned the disposition in
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favour of the 1st defendant by raising a contention that going by the
customary Hindu Law, late Bhaskaran Pillai could not have created a
memorial in his own name. It is further pointed out that the Will
cannot take effect because there is a direction in the Will to pay tax
in the name of Bhaskaran Pillai Memorial, and further, the land in
question cannot be alienated. Therefore, the plaintiffs contended that
the Will is void on account of the following reasons:
1. Not executed in favour of a living person or a juristic
person.
2. The object and subject of the Will, as enumerated
therein, are uncertain.
3. Recitals in the Will do not indicate as to how the first
defendant should carry out the directions.
4. There is no indication as to how the 1st defendant
should construct the building and whether it has any
authority over the same.
5. The Will does not contain any stipulations as to how
the 1st defendant should use the income for running the
institution.
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6. The Will also does not indicate as to how the surplus
income should be put to use by the 1st defendant.
7. The intention of the testator to construct a memorial in
the name of Bhaskaran Pillai is against the object and
interest of the 1st defendant, Karayogam.
8. The Will does not contain any directions as to the
persons who are entitled to the benefit of the trust and
hence is uncertain.
9. There is nothing in the Will to indicate that the
property is vested with the 1st defendant.
Therefore, it was contended that, ignoring the Will, the plaintiffs are
entitled to partition.
3. Incidentally, the execution of the Will was also disputed
inasmuch as it was the case of the plaintiffs that the Will was executed
by the deceased Bhaskaran Pillai without a proper mental state.
Defendants 1 to 3 filed a joint written statement contending that at
the time of execution of the partition deed, Bhaskaran Pillai was
working at Rajasthan, and during 1994, he returned to his native
place and started residing at the plaint schedule item No.2. While
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Bhaskaran Pillai was working at Jaipur, he permitted his brother
Sivarama Pillai to look after the property. After returning from
Jaipur, he requested the 4th defendant to vacate the building. O.S.
No.170 of 1995 was filed by Bhaskaran Pillai, and the same was
decreed allowing him to recover the possession of the property from
the 4th defendant. The plaintiffs and the 5th defendant, being sisters,
had no attachment to Bhaskaran Pillai and only wanted to use the
property under his name, and there were several litigations between
them, which is precisely the reason why Bhaskaran Pillai executed
the Will in the name of Karayogam. The genuineness of the Will was
considered in the subsequent litigation between the parties, and thus,
the plaintiffs have been precluded from questioning the veracity of
the Will. On behalf of the plaintiffs Exts.A1 to A3 documents were
produced, and PW1 was examined. On behalf of the defendants,
Exts.B1 to B11 documents were produced, and DW1 to DW4 were
examined. Exts.X1 and X1(a) are the records from the District
Registrar's Office, Kottayam. The trial court, on appreciation of the
oral and documentary evidence, came to the conclusion that the Will
was validly executed following the requirements of law under Section
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63(c) of the Indian Succession Act, 1925. The attestation of the Will
was found to be proper in terms of Section 68 of the Indian Evidence
Act, 1872. Consequently, the suit was dismissed. Aggrieved, the
plaintiffs preferred A.S. No.200 of 2011, which was also dismissed by
the first appellate court on 17.10.2014 and hence the present appeal.
4. On 7.1.2015, this Court, while admitting the appeal, framed
the following substantial questions of law for consideration.
i. Whether Ext.A1 deed is a properly constituted will?
ii. In the absence of any specific provision in Ext.A1, can the
property be tied up in favour of Bhaskara Pillai Memorial
violating the rule against perpetuity in Section 14 of the
Transfer of Property Act?
iii. Whether Ext.A1 will is void on the ground of uncertainty?
iv. Whether Ext.A1 will is properly proved in accordance with
the relevant provisions of law?
5. Heard Sri. M. Narendrakumar, the learned counsel
appearing for the appellants and Sri. Rajeev V. Kurup, the learned
counsel appearing for respondents 1 to 3.
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6. Sri. M. Narendrakumar, the learned counsel appearing for
the appellants, raised the following submissions:
6.1. Ext.A1 Will is void for multiple reasons. As per the
customary Hindu Law, the living person cannot create a memorial in
his own name and require such persons to maintain the memorial.
In that view of the matter, the Will is void. In support of his
contention, the learned counsel relied on the following decisions of
the Supreme Court :
1. Saraswathi Ammal v. Rajagopal Ammal [AIR 1953
SC 491]
2. P.T. Ram Chandra Shukla v. Shree Mahadeoji
Mahabirji and Hazrat Ali Kanpur [1969 (3) SCC 700]
3. Nagu Reddiar and Others v. Banu Reddiar and
Others [1978 (2) SCC 591]
4. Malayammal v. A. Malayalam Pillai & Others
[1991 Supp (2) SCC 579]
5. Shiromani Gurdwara Prabandhak Committee,
Amritsar v. Som Nath Dass and Others [2000 (4)
SCC 146]
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6. Rangarao Bhagwan Marathe vs. Gopal Pundlik
Marathe [1957 SCC OnLine Bombay 276]
7. Illachi Devi (D) by LRs. And Ors. Vs. Jain
Society, Protection of Orphans India and Others
[2003 (8) SCC 413]
8. M. Kesava Gounder and others v. D.C. Rajan
and others [AIR 1976 Madras 102]
6.2. He further submitted that the testamentary disposition,
which offends Section 14 of the Transfer of Property Act, 1882,
cannot operate and thus the legal heirs are entitled to maintain the
suit for partition.
6.3. The plaintiffs, being class II legal heirs, are certainly
entitled to inherit the property in terms of Section 8 of the Hindu
Succession Act, 1956.
6.4. The requirement to maintain a memorial would certainly
offend the customary law.
6.5. The 1st defendant, Karayogam, neither alienates the
property nor pay tax in the name of Bhaskaran Pillai Memorial,
which is impermissible under law.
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6.6. In terms of Section 263 of the Indian Succession Act, 1925,
a probate of a Will cannot be obtained except in the case of a person
of unsound mind or if it is a company under the Companies Act. This
clearly indicates a bar under law to have a Will executed in favour of
the 1st defendant, who is not a juristic person and therefore the Will
cannot have any effect.
7. Per contra, Sri. Rajeev V. Kurup, the learned counsel
appearing for respondents 1 to 3, countered the submissions of the
learned counsel for the appellants and raised the following
submissions.
7.1. In terms of Section 5 of the Transfer of Property Act, 1882
a transfer can be made in the name of a living person, which includes
an unincorporated association as well, and, therefore, one cannot
have any doubt that the Will is one of the modes of transfer.
7.2. The objectionable clause in the Will as regards restraint or
alienation in favour of defendants 1 to 3 can be ignored by them in
terms of Section 10 of the Transfer of Property Act.
7.3. The rule against perpetuity, as embodied under Section 14
of the Transfer of Property Act,1882, is an exceptional rule and
R.S.A. No.4 of 2015 12 2025:KER:97437
subject to Section 18 of the Transfer of Property Act, 1882, and
therefore, once Section 18 operates, the provisions of Section 14 do
not have any effect.
7.4. In terms of Ext.B9 byelaw, one of the objects of the 1st
respondent Karayogam, is to undertake such activities which are
useful for the general public. Therefore, any testamentary
dispositions in furtherance of the object of the byelaw can always be
sustained.
7.5. Even if it is construed that the Will creates a memorial in
the name of late Bhaskaran Pillai, even then, the testamentary
dispositions could be sustained by construing the same as the
creation of a testamentary trust, which is permissible under law. As
far as the 1st defendant, Karayogam, is concerned, it only manages the
property, and therefore it is nothing but an administration of a trust.
7.6. Late Bhaskaran Pillai had clearly expressed his intention
to bequeath the property in favour of the Karayogam. While
construing a Will, it is the duty of the court to adopt an interpretation
which will aid the furtherance of the intention of the testator and not
to destroy the last testamentary disposition. In support of his
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contentions, the learned counsel relied on the decision of the
Supreme Court in Gopala Menon vs. Sivaraman Nair and
Others [1981 (3) SCC 586], K.Naina Mohamed (Dead)
Through LRs. vs. A.M. Vasudevan Chettiar (Dead) Through
LRs. And Others [2010 (7) SCC 603] and also the decision of the
Supreme Court in State of Rajasthan vs. Ajith Singh and
Others [2025 SCC Online SC 1992].
8. I have considered the rival submissions raised across the
Bar, perused the judgments rendered by the courts below and also
the records of the case.
9. The primary objection raised by the learned counsel for the
appellant is that a Will which creates a memorial in favour of the
testator cannot be sustained. In support of his contention, the
learned counsel relied on the decision of the Supreme Court in
Saraswathi Ammal & Another v. Rajagopal Ammal [(1953) 2
SCC 390].
10. It is true that in the aforesaid decision, the Supreme Court
has said that what conduces to religious merit in the Hindu Law is
primarily a matter of shastraic injunction. The heads of religious
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purposes determined by belief in acquisition of religious merit
cannot be allowed to be widely enlarged consistently with public
policy and needs of modern society". In that case, it was held that the
building of a samadhi or a tomb over the remains of a person and the
making of provision for the purpose of gurupooja and other
ceremonies in connection with the same cannot be recognised as
charitable or religious purpose according to Hindu law.
11. In P.T.Ram Chandra Shukla v. Shree Mahadeoji
Mahabirji and Hazrat Ali Kanpur [1969 (3) SCC 700], the
Supreme Court was called upon to decide whether a dedication of
property for a religious or charitable purpose can be made orally.
While holding that the dedication for the promotion of a particular
game or sport is not a charitable trust under the Hindu Law, the
Supreme Court held that the trust created for the maintenance and
upkeep of a wrestling ground is not a valid charitable trust.
12. In Nagu Reddiar and Others v. Banu Reddiar and
Others [1978 (2) SCC 591], the Supreme Court reiterated that the
samadhi was a tomb of ancestors of the settlors of the trust and as
such the settlement in favour of the tomb is not valid in law.
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13. In Malayammal and Others v. A. Malayalam Pillai
and Others [1991 Supp (2) SCC 579], it was held that a Hindu
testator creating an endowment of the property for construction of
his tomb or samadhi cannot be held to be recognised charitable or
religious purposes among Hindus.
14. In M. Kesava Gounder and others v. D.C. Rajan and
others [AIR 1976 Madras 102], the Division Bench of the Madras
High Court was called upon to consider more or less a similar issue.
It was held that when a Will is created for the erection of a statue for
the father, it cannot be accepted as a pious or charitable duty on the
part of the son in accordance with the Hindu notions. Accordingly,
the dispositions in the Will were held to be not a religious endowment
or a private Hindu religious endowment, and therefore, the grant to
that extent was held to be void.
15. However, in Shiromani Gurdwara Prabandhak
Committee, Amritsar v. Som Nath Dass and Others [2000 (4)
SCC 146], the concept of juristic person came up for consideration
before the Supreme Court wherein it was held that the Guru Granth
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Sahib is a juristic person and therefore the endowment created over
the same was found to be valid.
16. On a cumulative consideration of these decisions, one would
be inclined to think that, in the present case, a creation of a memorial
in the name of late Bhaskaran Pillai is void under the Hindu Law.
But then, on a close reading of Ext.A1 Will, it is clear that there is no
clause in Ext.A1 which requires the 1st defendant to create a memorial
for the purpose of worship of the testator. On the contrary, what
Ext.A1 Will proposes is to dedicate the land and building therein in
favour of the 1st defendant. Of course, the 1st defendant is required to
name the building or any other building constructed upon the
property as Bhaskaran Memorial. The general presumption which
this Court gathered from a reading of Ext.A1 is that an absolute right
is given to the 1st defendant to utilise the property, subject to the
condition that if a building is constructed, it should be named as
Bhaskaran Memorial. Merely because the 1st defendant is obliged to
name the building to be constructed in the property as Bhaskaran
Memorial, that by itself will not denude the efficacy of Ext.A1 Will.
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17. There is yet another reason why this Court should uphold
the Will. What is projected before this Court is that the Will is bad
because it offends the rule of perpetuity under Section 14 of the
Transfer of Property Act. But then, one cannot remain oblivious of
the fact that a Will operates as a transfer in terms of Section 5 of the
Transfer of Property Act, 1882. Section 5 of the Transfer of Property
Act reads as under:
5. "Transfer of property" defined.--In the following
sections "transfer of property" means an act by which a
living person conveys property, in present or in future, to
one or more other living persons, or to himself, [or to
himself] and one or more other living persons; and "to
transfer property" is to perform such act.
[In this section, "living person" includes a company or
association or body of individuals, whether incorporated
or not, but nothing herein contained shall affect any law
for the time being in force relating to transfer of property
to or by companies, associations or bodies of individuals.]
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18. Thus, when a transfer is in favour of a living person which
also includes an unincorporated association, certainly, the
disposition in favour of the 1st defendant must be necessarily upheld.
19. That apart, when we read Section 18 of the Transfer of
Property Act, it creates an exception to the Rule of Perpetuity, which
reads as under:
18. Transfer in perpetuity for benefit of public.--The
restrictions in sections 14, 16 and 17 shall not apply in
the case of a transfer of property for the benefit of the
public in the advancement of religion, knowledge,
commerce, health, safety, or any other object
beneficial to mankind.
20. Still further, when we read the objects of Ext.B9 byelaw, it
is clear that the 1st defendant is given certain powers to do any such
act for the benefit of the general public. Therefore, the 1st defendant
is given absolute powers to do such an act in the property, which
would be in furtherance of the objectives of the Karayogam. That be
so, one cannot comprehend why the plaintiffs contend that Ext.A1
Will is void and cannot operate against them.
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21. In this context, this Court finds that even if, it is assumed
that there is an absolute restrain on the 1st defendant regarding the
manner in which the Will should operate and therefore such restrain
would operate against the rule of perpetuity under Section 14 of the
Transfer of Property Act, it must be remembered that any such
absolute restrain which creates an embargo to the propounder to
enjoy the benefits of a bequest will be void in terms of Sections 10
and 11 of the Transfer of Property Act. The argument of the learned
counsel for the appellants that the rule on restrain under Sections 10
and 11 of the Transfer of Property Act cannot be made applicable to
the Will because it is the last testamentary disposition of the testator
does not hold good because any absolute restrain on the propounder
of the Will must be construed as void and the grant would still hold
good. This view is supported by the decision of the Supreme Court in
Gopala Menon vs. Sivaraman Nair and Others [1981 (3) SCC
586].
22. In the light of the above, this Court is inclined to conclude
that the findings rendered by the courts below concurrently against
the appellants do not call for any interference. As regards the
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execution of Ext.A1 Will, it must be remembered that both the courts
have concurrently found, on appreciation of evidence, that the sale
was validly executed. It stands proved in accordance with law.
Moreover, in Ext.B3 judgment, execution of Exts.B7 and B7(a) Will
was found to be valid. Ext.B7, in turn, refers to the execution of
Ext.A1 Will. That apart, when the 1st defendant has independently
proved the execution of Ext.A1 Will, this Court is of the considered
view that the findings rendered by the courts below on facts do not
require any interference in the exercise of the powers under Section
100 of the Code of Civil Procedure.
23. Resultantly, the substantial questions of law are answered
as follows:
a. Ext.A1 Will is a properly constituted Will.
b. Ext.A1 Will does not violate the rule against perpetuity
under Section 14 of the Transfer of Property Act because
of the operation of Section 18.
c. Ext.A1 is not void on the ground of uncertainty, and in
fact, no uncertainty exists in favour of Ext.A1.
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d. In the facts and circumstances, and also on the basis
of the evidence adduced by the 1st defendant, it is held
that Ext.A1 Will is proved in accordance with the
relevant provisions of the Act.
Consequently, affirming the judgments rendered by the courts
below, this Court finds that the appeal lacks merit and accordingly
the same is dismissed.
Sd/-
EASWARAN S.
JUDGE
NS
