Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 12061207 OF 2015
SIVASANKAR V.K. ..Appellant
Versus
V.K. SIVAN AND OTHERS ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
These appeals are presented by the unsuccessful Defendant
No. 3 against the concurrent findings given by the Court of
Subordinate Judge, Kozikode in O.S. No. 203 of 1996 and the
High Court of Kerala in A.S. No. 1044 of 1998. It is relevant to
note that the other defendants have accepted the judgment of the
Trial Court, which decreed the suit for partition of the suit
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property, granting 1/3 share to the plaintiff, and consequently
did not file any appeal against the judgment. It was only
Signature Not Verified
Defendant No. 3 who questioned the judgment of the Trial Court,
Digitally signed by
VISHAL ANAND
Date: 2018.11.02
14:18:44 IST
Reason:
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and failed in the appeal. A review petition filed by him was also
dismissed.
2. The main issue involved in these appeals is the
interpretation of the terms of a Will (Exhibit B1) executed by the
late Komappan in the year 1940 regarding the bequest of the suit
property, i.e., Item Nos. 1 and 2 of ‘Schedule A’ of the Will. Both
the Trial Court and the High Court have on interpretation of the
Will and considering the other material on record concluded that
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the plaintiff is entitled to 1/3 share in the suit property
according to the terms of the Will.
3. On reading the Will in question, we find that specific
bequests have been made (except ‘Schedule A’) by Komappan in
favour of his sons, Choikutty and Peravakutty and his daughter
Perachikutty, as well as in favour of Komappan (Junior), son of
the late Peravan, the predeceased son of the testator, and in
favour of Smt. Thirumala, wife of Peravan. However, the testator
had not bequeathed the property falling under ‘Schedule A’ in
favour of the aforementioned persons. On the other hand, the
testator intended to keep the said property described in ‘Schedule
A’ in common, reserving with his wife the right to take income
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therefrom and with all the legatees, the right to reside in the
house situated therein. It can be borne out from reading the
entire Will that after their lifetime the surviving male children of
said Choikutty, Peravakutty and Komappan (Junior), were to
manage and administer and get the property. The material
question which the court would have to decide in this matter is,
whether taking into account the document in question and all the
relevant facts into consideration it could be said that the donor
intended to confer the right over the property in favour of the
legal representatives of the aforementioned three persons to the
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extent of 1/3 each. It is needless to observe that it is within the
power of the testator to decide whether he wants the property to
be held by the male members of the three branches, has to be
inferred from the language of the Will and attending
circumstances. In the instance case, it is abundantly clear from
all the attending circumstances, and the reading of the entire will,
that the testator wished that ‘Schedule A’ properties are to be
enjoyed by the male children of the aforementioned three persons
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to the extent of 1/3 each.
4. In this view of the matter, in our considered opinion, the
Trial Court as well as the High Court have rightly come to the
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conclusion that the plaintiff has got 1/3 share in the properties
under ‘Schedule A’ to Exhibit B1 Will. The contention of the
appellant that the male children of Choikutty, Peravakutty and
Komappan (Junior) are entitled to equal shares cannot be
accepted. Hence, the appeals fail and stand dismissed.
........................J.
(N.V. RAMANA)
........................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi,
November 02, 2018
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