ARUMUGAM(died) vs JANARDHANAN

S.A.No.1223 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.10.2026
PRONOUNCED ON : 13 .11.2026
CORAM :
THE HONOURABLE MR. JUSTICE B.KARTHIKEYAN
Second Appeal No.1223 of 2011
1. Arumugam (died)
2. Banumathi,
W/o Arumugam,
81, Thaiyappa Mudali Street,
Seven wells, Chennai – 600 001.
3. A.Yuvaraj,
S/o Arumugam
resides at Sunshine Apartment,
Shanmugapuram, Surapet Village,
Ambattur, Chennai.
..Appellants
Vs
Janardhanam
..Respondent
Prayer : This Second Appeal filed under Section 100 of C.P.C., against the
decree and judgment passed by the First Appellate Court, the learned Additional
District Judge, (Fast Track Court No.II) Poonamallee, in A.S.No.95 of 2008
dated 25.01.2010, confirming the Decree the Judgement of the trial Court,
Learned Subordinate Court, Poonamallee in O.S.No.299 of 2002 dated
28.02.2008.
For Appellants : M/s.N.S.Rachel Catherine
for Mr.N.J.Sagayaraj
For Respondent : M/s.Bagavathy Vennimalai
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S.A.No.1223 of 2011
JUDGMENT
This Second Appeal has been filed challenging the judgment and decree
passed by the First Appellate Court, namely, the learned Additional District
Judge, Fast Track Court No. II, Poonamallee, in A.S. No. 95 of 2008, dated
25.01.2010, confirming the judgment and decree passed by the learned
Subordinate Judge, Poonamallee, in O.S. No. 299 of 2002, dated 28.02.2008.
2. The suit was instituted by the respondent herein against the appellants
and one Gajendran, who is the father of the respondent, before the learned
Subordinate Judge, Poonamallee, seeking the following reliefs:
a) permitting the petitioner / plaintiff to sue as Indigent persons.
b) declare that the sale deed dated 17.02.1999 executed by the first
respondent – defendant in favour of the third defendant / respondent
convey the suit property (site) as absolute owner (registered as document
No.179/99) on the file of Sub Registrar Poonamallee) is not binding on the
petitioner / plaintiff.
c) declare that the petitioner / plaintiff is the reminder estate holder
of the suit property;
d) for possession of the suit property after the life time of the first
respondent defendant;
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S.A.No.1223 of 2011
(i) Permanent injunction restraining the defendants from
demolishing from on the street property.
e) directing the respondent / defendants 1 to 3 to pay the
Government Court fee payable on the plaint.
f) directing the defendants and defendants to pay the petitioner /
plaintiff of the costs of the suit.
3. The case of the plaintiff is that Govindarajalu Naicker was the absolute
owner of various properties and that he had executed a Will dated 20.04.1992,
bequeathing the properties in favour of his three sons and three daughters.
Under the said Will, one of the properties, described as the ‘C’ Schedule
property, which is the suit schedule property, was bequeathed by creating a life
interest in favour of the first defendant, namely, Gajendran (who is not a party
to the present appeal), with the remainder interest being bequeathed in favour of
the plaintiff. The Will came into effect upon the death of Govindarajalu
Naicker. While so, the first defendant is stated to have alienated a portion of the
suit property in favour of the second and third defendants, namely, the
appellants herein, claiming absolute ownership over the same, under a sale deed
dated 17.02.1999. Challenging the said sale deed and for other reliefs, the
plaintiff instituted the suit.
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S.A.No.1223 of 2011
4. The first defendant remained ex parte in the suit. The appellants
herein, who were arrayed as defendants 2 and 3 before the Trial Court, filed a
written statement. They did not dispute the execution of the Will by
Govindarajan Naicker. However, their specific contention was that the bequest
made in favour of Gajendran, the first defendant, was absolute in nature and that
the plaintiff has no right whatsoever over the suit property.
5. Based on the above pleadings, the Trial Court framed the following
issues:
(i) Whether the suit is maintainable?
(ii) Whether the contention of the plaintiff that he is entitled to the
remainder interest in respect of the suit schedule property is
sustainable?
(iii) Whether the plaintiff is entitled to the relief of declaration and
recovery of possession in respect of the suit schedule property?
(iv) Whether the plaintiff is entitled to the other reliefs sought for in
the plaint?
(v) What other reliefs, if any, is the plaintiff entitled to?
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S.A.No.1223 of 2011
6. In support of the plaintiff's case, the plaintiff examined himself as
P.W.1 and his sister and mother as P.Ws.2 and 3, respectively. Exhibits A1 to
A6 were marked on his behalf. They are the copy of the Will dated 20.04.1992,
the legal notice dated 25.03.1999 issued by the plaintiff to the defendants, the
returned postal cover relating to the first defendant, the acknowledgment card
relating to the second defendant, the sale deed dated 17.02.1999 and the legal
notice dated 23.12.1999 issued by the plaintiff to the defendants.
7. On behalf of defendants 2 and 3, the second defendant examined
himself as D.W.1 and marked Exhibits B1 to B5, which included the sale deed
dated 17.02.1999 and the revenue records relating to the suit property.
8. Upon considering the oral and documentary evidence available on
record, the Trial Court found that the intention of the testator, as gathered from
the recitals in the Will, was to confer only a life interest upon Gajendran in
respect of the ‘C’ Schedule property and to vest the remainder interest in favour
of the plaintiff. The Trial Court particularly took note of the recital referring to
the ‘C’ Schedule property as being intended for Gajendran and his children, as
well as the subsequent recital, which, after describing the property with its
boundaries, specifically stated that the said house should devolve upon
Janardhanam, son of Gajendran, after the lifetime of Gajendran and after he
performs the marriage of his sister. On an overall reading of the recitals in the
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S.A.No.1223 of 2011
Will, the Trial Court concluded that the testator had intended to confer only a
life estate upon Gajendran, with the remainder interest vesting in favour of the
plaintiff. The contentions of the appellants that the plaintiff had no cause of
action to institute the suit, that he had not performed the marriage of his sister
and that the plaintiff was a bona fide purchaser were rejected by the Trial Court
after considering the evidence available on record.
9. Aggrieved by the judgment and decree of the Trial Court, defendants 2
and 3 preferred an appeal before the learned Additional District Judge, Fast
Track Court, Poonamallee, in A.S. No. 95 of 2008. The first defendant was not
impleaded as a party to the appeal, as he had remained ex parte in the suit.
10. The First Appellate Court, upon independently considering the
materials on record, concurred with the findings of the Trial Court and
dismissed the appeal. Aggrieved by the concurrent findings of the Courts below,
the appellants have preferred the present Second Appeal, challenging the
judgments and decrees of the Courts below on various grounds.
10.1 The principal contention of the appellants is that the Courts below
had misconstrued the principles governing the interpretation of Wills and had
erroneously applied the relevant principles of law while rejecting their claim.
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S.A.No.1223 of 2011
10.2 It is further contended that the Courts below failed to properly
appreciate the alleged repugnancy between the first recital relating to the
bequest contained on page 3 of the Will, marked as Ex.A1, and the subsequent
recitals appearing towards the end of the same page and in the C Schedule.
10.3 The appellants would also contend that the Courts below failed to
consider the plaintiff's entitlement to institute the suit, particularly when he had
not performed the marriage of his sister.
10.4 It is further contended that the testator had not expressly prohibited
the first defendant from alienating the suit property. According to the
appellants, the Courts below failed to apply the principle governing the
interpretation of repugnant clauses in a Will, namely, that where an earlier
disposition confers an absolute estate, a subsequent disposition seeking to
restrict such estate must yield to the earlier disposition.
10.5 The appellants would therefore contend that the finding of the Trial
Court that the first defendant had been conferred only a life interest and not an
absolute interest was the result of a misinterpretation of the testamentary
document and non-application of the settled principles of law.
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S.A.No.1223 of 2011
11. The learned counsel appearing for the appellants, by way of written
submissions and during her oral submissions, would reiterate the contentions
raised in the Memorandum of grounds of appeal besides contending that the
entire controversy revolves around the proper interpretation of the Will,
particularly the first and second bequests. Under the first bequest, the testator
had conferred an absolute interest upon his son, namely, the first defendant.
However, under the subsequent bequest, a purported remainder interest was
created in favour of the plaintiff, who is the grandson of the testator, subject to
certain conditions, including the performance of the marriage of the plaintiff's
sister. She would also contend that the first and second bequests must be read
harmoniously and that the intention of the testator must be gathered from the
Will as a whole. According to her, the subsequent recitals cannot be interpreted
in a manner that defeats or takes away the absolute interest already vested in the
first legatee. The appellants would therefore submit that the alleged remainder
interest claimed by the plaintiff is legally unsustainable.
12. In support of the above contentions, the learned counsel would rely
upon the decision of the Hon'ble Supreme Court in Sadaram Suryanarayana
and Another v. Kalla Surya Kantham and Another , reported in (2010) 13 SCC
147.
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S.A.No.1223 of 2011
13. Per contra, the learned counsel appearing for the respondent had filed
synopsis of arguments and would submit that the short point involved in the
present Second Appeal is the interpretation of the registered Will dated
20.04.1992 executed by the paternal grandfather of the respondent, namely,
Govindarajulu Naicker. According to her the principal contention of the
appellants that there is an alleged repugnancy in the Will, since the name of the
first defendant is mentioned in the earlier portion of the clause relating to the
‘C’ Schedule property is misconceived and that the Will has to be read as a
whole, and the intention of the testator must be gathered from the entire
document and not from an isolated sentence or expression, by noting the
consistent scheme adopted by the testator throughout the Will to bequeath the
properties to his grandchildren while reserving a life interest in favour of his
children and that the ‘C’ Schedule property is also governed by the same
scheme. Therefore, it is her contention that mere mention of the first defendant
in the earlier portion of the relevant clause cannot confer an absolute estate
upon him, particularly when the concluding portion of the very same clause
specifically bequeaths the property in favour of the respondent.
14. In this regard, reliance has been placed upon the judgment of the
Hon'ble Supreme Court in Ramachandra Shenoy v. Mrs. Hilda Brite, AIR
1964 SC 1323 , wherein it was held that every disposition contained in a Will
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S.A.No.1223 of 2011
must be given effect to, as far as legally possible besides on the decision of this
Court in Vijayanthimala v. Srinivasa Rao, 2011 (6) CTC 172 , to contend that
even where an earlier portion of a Will appears to confer an absolute right upon
the testator's children, the same can be construed as conferring only a life
interest when the intention gathered from the Will as a whole is to confer the
vested remainder upon the grandchildren. The learned counsel for the
respondent would further contend that Sadaram Suryanarayana v. Kalla Surya
Kantham, (2010) 13 SCC 147 , is distinguishable as in that case, the testatrix
had expressly conferred an absolute estate together with the power of alienation,
whereas in the present case, no such absolute right or unrestricted power of
alienation was conferred upon the first defendant.
15. This apart, the respondent would contend that the appellants are now
seeking to reopen the very same factual findings of the trial court and first
appellate Court under the guise of an alleged substantial question of law besides
that a Second Appeal cannot be converted into a third round of factual
adjudication. Relying upon the decision of Supreme Court in Chandrabhan v.
Saraswati, (2022) 20 SCC 199 , indicating the circumstances in which
concurrent findings may warrant interference in a Second Appeal, the
respondent would contend that in the present case, the appellants have not
demonstrated any perversity, non-consideration of material evidence or
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S.A.No.1223 of 2011
erroneous application of law warranting interference with the concurrent
findings of the Courts below.
16. Heard the learned counsel appearing on either side and perused the
materials available on record.
17. The Second appeal has been admitted on 22.12.2011 reckoning the
following questions of law as substantial questions of law:
(i) Whether there is complete repugnancy between the first recital or
bequest (in common) in page No. 3 of the Will (Ex.A1) compared to the last
lines and again the schedule C is again repugnant to the lines in the last two
lines of the page 3?
(ii) Whether the Courts below have applied their mind wrongly in
interpretation of the Will particularly in respect of the said repugnancy in the
Will Ex.A1?
(iii) Whether the Courts below are wrong in holding that sale deed
executed by the first defendant in favour of the second defendant is not binding
on the plaintiff, though it is the transaction made in favour of the second
defendant who is a bonafide purchaser?
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S.A.No.1223 of 2011
18. The learned counsel for the appellants would contend now that the
following substantial question of law also arises for consideration in the present
Second Appeal:
"Whether, after having conferred an absolute interest in favour of his son,
namely, the first legatee, under the first bequest in the Will, the testator could,
by a subsequent bequest in the same Will, create a remainder interest in favour
of his grandson, and whether such subsequent bequest would be valid in law?"
19. The primary objection raised by the respondent is regarding the
maintainability of the second appeal contending that interpretation of a
document is a mere question of fact and is not a question of law. An inference
of fact drawn from the recitals or contents of a document is certainly a question
of fact. However, the same cannot be said about the legal effect of the terms of
a document. For instance, as in the present case, whether the recitals in
question have to be construed as an absolute bequest in favour of the first
defendant or as bequeathing only a limited estate can only be ascertained by
applying rules of interpretation and therefore, the same cannot be said to be a
mere question of fact. In other words, where the construction of a document
involves the application of any principle of law, the issue would also constitute
a question of law. Therefore, where a document is misconstrued or an incorrect
legal principle is applied while construing the document, the same would give
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S.A.No.1223 of 2011
rise to a question of law. Needless to point out that, for exercising its
jurisdiction under Section 100 CPC, the High Court must be satisfied that the
case involves not merely a question of law but a substantial question of law.
A question of law would be substantial only when its answer materially affects
the rights of the parties to the suit and is material to the decision of the case,
involving a debatable legal issue that is not covered by any specific statutory
provision or settled legal principle emerging from binding precedents. Reliance
in this regard is placed on the decision of the Hon'ble Supreme Court in
Boodireddy Chandraiah and Others v. Arigela Laxmi and Another , reported
in 2007 (1) SCALE 188, which was subsequently reiterated and approved by
the Hon'ble Supreme Court in Narendra Gopal Vidyarthi v. Rajat Vidyarthi,
reported in 2008 SCC OnLine SC 1790.
20. In the said decisions, the Supreme Court has also pointed out that,
though the general rule is that the High Court would not interfere with
concurrent findings of fact recorded by the Courts below, the said rule is not
absolute. Interference may be warranted in the following circumstances:
(i) Where the Courts below have ignored material evidence or
arrived at findings based on no evidence;
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S.A.No.1223 of 2011
(ii) Where the Courts below have drawn erroneous inferences from
proved facts by incorrectly applying the law; or
(iii) Where the Courts below have wrongly cast the burden of
proof.
21. In the present case, the appellants have raised the first question as to
whether there is complete repugnancy between the first recital relating to the
bequest contained on page 3 of the Will, marked as Ex.A1, and the subsequent
recitals appearing towards the end of the same page, as well as the recital
relating to the ‘C’ Schedule property. The other two questions as well as the
third one raised during the arguments by the appellants hinge upon the answer
to the first question.
22. A mere reading and understanding of the plain language of the
recitals contained in the Will has not, by itself, led the Trial Court and the First
Appellate Court to arrive at their respective conclusions. On the contrary, while
noticing that the language of the earlier recital differs from the subsequent
recitals, the Courts below have proceeded to apply the legal principles which, in
their opinion was governing the construction of testamentary documents and
have ultimately concluded that the intention of the testator was to confer only a
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S.A.No.1223 of 2011
life estate upon the first defendant, with the remainder interest vesting in favour
of the plaintiff.
23. Therefore, the first question raised by the appellants herein certainly
gives rise to a question of law. There can be no doubt that the answer to the said
question would materially affect the result of the suit and, consequently, it
constitutes a substantial question of law. Therefore, the objection raised by the
respondent on this ground cannot be sustained.
24. In order to appreciate the rival contentions, it would be appropriate to
reproduce the relevant recitals in the Will, Ex.A1, which have given rise to the
present litigation. Since the dispute relates only to the bequest concerning the
‘C’ Schedule property, the relevant recitals alone are extracted below.
The relevant recital appearing on page 3 of the certified copy of the Will,
Ex.A1, reads as follows:
“ fpnH tpthpf;fg;gl;l bc&l;a{ypy; fz;l brhj;Jf;fid A B C
D E
vd;wyf;fk[pl;L xt;bthUyf;fj;jpYs;s brhj;Jf;fis vd; $Pt
jpirf;Fg; gpwF mtuth;fs; ifg;gw;wp g[j;jpu bgsj;jpu
ghuk;ghpakha; fpua thrfg;go tpj;njhj;jp jhdhjp tpdpkpa
tpf;fpuaEfSf;Fwpj;jha; mila ntz;oaJ”/
Similarly, in the same Will, while referring to the C Schedule property,
the testator has specified as follows:
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S.A.No.1223 of 2011
"C bc&l;a{y; brhj;ij fn$e;jpud; Fkhhu;fs;
milantz;oaJ. "
Further, on page 6 of the same Will, after describing the property with its
boundaries, the testator has specified as follows:
“
,e;j tPl;il fn$e;jpuDf;F gpwF mtDila kfd; $dhh;jdk;
vd;gth; jd; rnfhjhpf;F fypahzk; bra;J bfhLj;j gpwF
mDgtpj;Jf;F bfhs;s ntz;oaJ/ ”
25. It is in this context that the learned counsel appearing for the
appellants would rely upon the decision in Sadaram Suryanarayana and
Another v. Kalla Surya Kantham and another , referred to supra, to contend
that once a testator has conferred an absolute right and interest in his property
upon a devisee by the recital cited first above, it is not open to him to bequeath
the very same property in favour of another set of persons under the same Will,
thereby creating successive legatees.
26. On the other hand, a close reading of the decisions relied upon by the
learned counsel for the appellants would make it clear that the principle laid
down therein applies to cases where the testator has conferred an absolute right
and interest in the property upon the first devisee. It is in such circumstances,
the testator cannot subsequently make a further disposition of the very same
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S.A.No.1223 of 2011
property in favour of another set of persons so as to create successive interests.
Therefore, the question that arises for consideration in the case on hand is
whether the first recital in the present Will actually confers an absolute estate
upon the first defendant.
27. In this regard, as rightly pointed out by the learned counsel appearing
for the respondent, the Supreme Court, as early as in Ramachandra Shenoy
and Another v. Mrs. Hilda Brite and Others , reported in AIR 1964 SC 1323 ,
has held that, while it is true that where two repugnant provisions confer
successive interests and the first interest created is valid, the subsequent interest
may not take effect. A Court construing a Will must, as far as possible, adopt an
interpretation that avoids repugnancy and give effect to every testamentary
intention contained therein. In other words, while construing a Will containing
apparently inconsistent or repugnant provisions, the Court must endeavour to
give effect to all the bequests made therein, to the extent legally possible, and
interpret the document accordingly.
28. In this regard, the Supreme Court has also observed that where there
is a bequest to A, even though it is expressed in apparently absolute terms,
followed by a gift of the same property to ‘B’ absolutely, “on” or “after” or “at”
A’s death. A is prima facie be held to take a life interest and B an interest in
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S.A.No.1223 of 2011
remainder, the apparently absolute interest of A being cut down to
accommodate the interest created in favour of B.
29. In the light of the above principles, in the case on hand, if the first
defendant is held to have been bequeathed the suit schedule property absolutely,
the subsequent bequest in favour of the plaintiff would necessarily be defeated.
However, for such a conclusion to be reached, it must first be established that
the intention of the testator under the first bequest was to confer an absolute
estate upon the first defendant. For this purpose, the entire Will must be
examined.
30. In the present case, a perusal of Ex.A1 does not disclose any clear or
unambiguous recital indicating that an absolute estate was intended to be
conferred upon the first defendant. There is no express recital conferring an
unrestricted power of alienation upon him or otherwise indicating that the
testator intended him to enjoy the property as its absolute owner. On the
contrary, as pointed out earlier, the recital appearing on page 3 of the Will refers
to the ‘C’ Schedule property as being intended for Gajendran and his children
“C
bc&l;a{y; brhj;ij fn$e;jpud; Fkhhu;fs; milantz;oaJ.”/
Moreover, while describing the ‘C’ Schedule property with boundaries in the
schedule portion, a specific direction has been made to the effect that the house
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S.A.No.1223 of 2011
shall devolve upon the plaintiff, Janardhanan, son of Gajendran, the lifetime of
Gajendran and after he conducts the marriage of his sister.
31. These recitals, when read together and considered in the light of the
overall scheme of the Will, wherein, in respect of other properties, life interest
has been bequeathed in favour of his children and thereafter the reminder to
their children, clearly indicate that the intention of the testator is not to confer
an absolute estate upon the first defendant.
32. Therefore, this Court is of the considered view that the first defendant
was conferred only a life interest in the suit schedule property, while the
remainder interest was intended to vest in favour of the plaintiff. Therefore, the
first substantial question of law is answered against the appellants.
Consequently, the question of law required in paras 17 and 18 above are also
answered against the appellants and the Second Appeal fails and is liable to be
dismissed.
33. In the result, the Second Appeal is dismissed, confirming the
judgments and decrees passed by the Trial Court and the First Appellate Court.
No costs.
13-11-2026
Index: Yes/No
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S.A.No.1223 of 2011
Speaking/Non-speaking order
Neutral Citation: Yes/No
av
To
1. The learned Additional District Judge (Fast Track Court No.II),
Poonamallee.
2. The learned Subordinate Judge, Poonamallee.
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S.A.No.1223 of 2011
B.KARTHIKEYAN, J.
av
Pre-delivery Judgment made in
S.A.No.1223 of 2011
13-11-2026
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