Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 30TH DAY OF JUNE 2022 / 9TH ASHADHA, 1944 AGAINST THE JUDGMENT AND DECREE DATED 31/03/2014 IN OS 63/2012 OF SUB COURT, VADAKARA APPELLANTS/PLAINTIFFS IN OS 63/2012 - SUB COURT, VATAKARA: 1 BALAN, S/O DEVAKI, AGED 68 YEARS, AGRICULTURIST, RESIDING AT KALATHINTHAZHE KUNIYIL, URALUNGAL AMSOM DESOM, POST MADAPPALLY COLLEGE, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2 GIREESH BABU, S/O.SARADA, AGED 51 YEARS AGRICULTURIST, RESIDING AT PRANAVAM, ERAMALA AMSOM DESOM, POST ORKKATTERI, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT/DEFENDANT IN OS 63/2012 - SUB COURT, VATAKARA: ASHOKAN, S/O.KORUMBI, AGED 57 YEARS PENSIONER, RESIDING AT CHENAMKULANGARA, CHORODE AMSOM ERAPURAM DESOM, POST CHORODE, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The question came up for consideration in this appeal is whether Ext.B2 Will is a mutual Will or a joint Will and whether the trial court is justified in finding that it is a joint Will and the dismissal of the suit for partition on that ground.
2. It is a suit for partition by the first and
second plaintiffs, who are the two legatees under Ext.B2 Will. The defendant in the suit is the other legatee under the Will and they were given the properties in equal shares. It is a Will executed by
two persons, brother by name Kunhiraman and sister Janu with respect to their respective properties. In paragraph 3 of the Will there is a clause to the effect that: "i nj n a"# $ %&' ( ") n* + n ,-. / 0 /' 1 2 23 4"567 8$ $9 . nj; <$ =>? + a"? @7 "
3. It is submitted by the learned counsel for the
appellants that the interpretation given by the trial court to the abovesaid deposition/clause incorporated in Ext.B1 Will is incorrect as the trial court has used the word “he/she” so as to interpret the said
clause. Further, it was submitted that it is a mutual Will. As such, the subsequent deposition under Ext.B3 settlement deed by the sister Janu
exclusively to the defendant has no effect over the
property given under the testament by her brother Kunhiraman and it will operate only with respect to her property covered by the abovesaid Will. On the other hand, it is submitted by the learned counsel for the respondent that the trial court found that the Will, Ext.B2, is a joint Will in as much as there are several clauses in the said Will to show the intention of the testators, the brother and sister. It is now well settled that the normal precedents of construction with respect to other document cannot be
applied as such in a testament and it has to be interpreted with respect to what was actually intended by the parties and it is not permissible to add or substitute anything in order to remove any repugnance, unless there are compelling reasons to do so. The Will has to be construed as such without any ambiguity or scope of any divergent hypothesis. The legal position was very much settled by the Apex Court as early as in the year 1964 in Ramachandran Shenoy and Another v. Mrs.Hilda Brite and Others (1964 KHC 561) =(AIR 1964 SC 1323).
4. This court had the occasion to consider the difference between a joint Will and mutual Will followed by the decisions rendered by the Apex Court in Shiva Nath Prasad v. State of W.B and others (2006 KHC 145), in Princelal C. v. G. Prasanna Kumari and Others (2009 KHC 636) and laid down the ingredients which would differentiate a joint Will from that of a mutual Will. When the deposition under the Will is with a clause that it would come
into effect only after the death of both the testators, with a clause authorizing the survivor to hold the property with the right of alienation and transfer or create encumbrance it would fall under the category of joint Will, wherein on the death of one of the parties, the Will would not operate with respect to the property of deceased. But, it will continue in the hands of the surviving testator with the right of alienation, encumbrance etc.. The clause incorporated in paragraph 3 of the Will has to be interpreted so as to give full effect to the clause
in reference to the intention of the testators. Paragraph 3 of the Will as extracted above cannot be read or interpreted in piecemeal. On the other hand, it is a single sentence specifying that in the event of death of the first party, the property will vest with the second party or in the event of death of second party, it will vest with the first party with
the right of alienation and possession with all liberties and the deposition under the Will would come into play only on the death of both the parties. It cannot be separated into two sentences so as to have an extraneous interpretation that the Will is
totally silent regarding the deposition of property on the death of first party. Such an interpretation is highly extraneous and totally destructive and cannot be accepted even for a moment especially when the language employed and its literary meaning is clear free from any kind of ambiguity or repugnancy. In paragraph 6 also, there is another clause that the Will would come into effect only after the death of both the testator, that would also make the document within the scope of a joint Will. As such, the suit
for partition will not stand. The decree and judgment
of the trial court deserves no interference. The appeal hence fails, dismissed. No costs. Sd/- P.SOMARAJAN JUDGE msp