Dismissed

Janaki Menon v. Dineshkumar

Kerala HC24 Jul 2018FAO (RO)/272/2016

Case brief

AI extract

What is this about?

In a dispute over succession involving a partition deed and subsequent Wills between siblings, the High Court of Kerala dismissed an appeal against a remand order. The Court held that the trial court must determine the genuineness of two conflicting Wills before deciding the suits for injunction and eviction.

What did the court decide?

The appeal was dismissed and the case was remanded back to the lower court for determination of the genuineness of the Wills.

Janaki Menon Vs Dineshkumar — Succession and Inheritance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE A.HARIPRASAD

¶4

TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940

¶5

FAO (RO).No. 272 of 2016

¶6

AGAINST THE JUDGMENT DATED 29-08-2016 IN AS 96/2015 of IVth ADDL.DISTRICT COURT, THRISSUR.

¶7

AGAINST THE JUDGMENT DATED 24-02-2015 IN OS 502/2013 of II ADDL.SUB COURT,THRISSUR.

¶8

APPELLANT/RESPONDENT NO 1/PLAINTIFF IN O.S :

¶9

JANAKI MENON, AGED 62, W/O KESAVANKUTTY MENON, D/O LATE CHANDRAVALLY AMMA, PARAKKOT (H), ANGADI DESOM, THRISSUR VILLAGE - TALUK, NOW RESIDING AT CHANKARAMPONNATH, THIRUVAMBADY P.O, THRISSUR.

¶10

BY ADV.SRI.P.V.MOHANAN.

¶11

RESPONDENTS/APPELLANT/DEFENDANT NO 1 AND 2 IN O.S.:

¶12

1. DINESHKUMAR,AGED 56, S/O LATE CHANDRAVALLY AMMA, PARAKKOT (H), ANGADI DESOM, THRISSUR VILLAGE- TALUK.

¶13

2. RAMKUMAR, AGED 59, D/O LATE CHANDRAVALLY AMMA, PARAKKOT (H), ANGADI DESOM, THRISSUR VILLAGE, TALUK, NOW RESIDING AT 30/A, SOORYA NANJAPPA ROAD, SANTHI NAGAR, BANGLORE, KARNATAKA STATE.

¶14

R1 BY ADVS. SRI.SANTHOSH P.PODUVAL

¶15

SMT.R.RAJITHA SMT.VINAYA V.NAIR SRI.VYSAKH VIJAYAN.

¶16

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 24-07-2018, ALONG WITH F.A.O(RO) NO.275 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

A.HARIPRASAD, J.

¶18

F.A.O (R.O) Nos.272 & 275 of 2016

¶19

Dated this the 24th day of July, 2018

¶20

C 0 M M O N J U D G M E N T

¶21

These appeals arise out of two cross suits filed by siblings

¶22

against one another.

¶23

Appellant in these cases is the plaintiff in O.S No.502 of 2013

¶24

and the first defendant in O.S No.1956 of 2012 on the Court of IInd

¶25

Additional Sub Judge, Thrissur. Contesting respondent is the plaintiff in O.S

¶26

No.1956 of 2012 and the first defendant in the other suit.

¶27

Admitted facts are as follows :

¶28

Plaint schedule property was involved in Ext.B1 partition deed of the

¶29

year 1995 and it was set apart as item No.1 therein, in favour of the

¶30

F.A.O (RO)Nos.272 & 275 of 2016 2

¶31

appellant's mother Chandravalli Amma and the appellant together. The

¶32

contesting respondent (plaintiff in O.S No.1956 of 2012) was also a party

¶33

to Ext.B1 partition deed, being the son of Chandravalli Amma. He did not

¶34

want any immovable property, instead he received Rs.25,000/- in lieu of his share. This document is not disputed by any of the parties. It is seen from Ext.B1 that there is a clause whereby the share interest of Chandravalli Amma in the properties set apart to herself and her daughter

¶35

and the appellant, would devolve on the appellant on her death.

¶36

It is the contention of the appellant that the contesting

¶37

respondent did not raise any dispute regarding the appellant's right over

¶38

the plaint schedule properties. The appellant in her suit claimed for a permanent prohibitory injunction against the contesting respondent from

¶39

causing any waste and damage to the plaint A and B schedule properties or

¶40

removing plaint B schedule movable property from the building in the

¶41

F.A.O (RO)Nos.272 & 275 of 2016 3

¶42

plaint A schedule property.

¶43

It is the contention of the contesting respondent that he is

¶44

residing in a house in the property. It is also claimed by the contesting respondent that his mother Chandravalli Amma executed Ext.A1 Will in his favour in the year 2010 out of free consent and free will. According to

¶45

him, the same is her last Will. Chandravalli Amma died on 23-10-2012. Whereas the above contention has been denied by the appellant saying that subsequent to Ext.A1, Chandravalli Amma had executed Ext.B2 Will on 01-12-2011, revoking Ext.A1 Will. Therefore, the appellant would

¶46

contend that she is the legatee in respect of the properties belonged to deceased Chandravalli Amma. Prayer in the respondents' suit is for preventing the appellant from forcefully evicting him from the building.

¶47

Both these matters were tried together by the court below and

¶48

O.S No.1956 of 2012 was dismissed with costs and O.S No.502 of 2013

¶49

F.A.O (RO)Nos.272 & 275 of 2016 4

¶50

was partly allowed.

¶51

Against the judgment and decree, two appeals were preferred

¶52

before the Court of District Judge, Thrissur as A.S No.96 and 97 of 2015.

¶53

Learned Additional District Judge raised relevant points for determination.

¶54

After considering the rival contentions, the learned District Judge

¶55

remanded the matter to the trial court for fresh determination. That

¶56

judgment and decree are challenged in these appeals.

¶57

It is found by the learned District Judge in paragraph 12 as

¶58

follows :

¶59

“12. Point No.5 :- In view of my finding in the above points, I find that the appeals are to be allowed by way of remand. The cases are remanded back to the court below for disposal afresh. The court below will give opportunity to both sides to adduce further evidence if any on the aspect of

¶60

F.A.O (RO)Nos.272 & 275 of 2016 5

¶61

proof of Ext.A1 and Ext.B2 Wills and the court below will decide as to the genuineness of Ext.A1 and B1 Wills and will dispose of the suits accordingly after arriving at a finding as stated above. The counsel for the 1st respondent requested for a direction to expedite trial. I find that the court below can be directed to dispose of both the suits within a period of 6 months from the date of receipt of copy of the judgment of this court.

¶62

In the result, both the above appeals are allowed by way of remand. The cases are remanded to the court below for fresh consideration and for entering a finding regarding the genuineness of Ext.A1 and Ext.B2 Wills. The court below will dispose of both the suits within a period of 6 (six) months from the date of receipt of copy of the judgment of this court.”

¶63

Learned counsel for the appellant strongly contended that the

¶64

F.A.O (RO)Nos.272 & 275 of 2016 6

¶65

remand order is legally unjustifiable. Per contra, learned counsel for the contesting respondent would contend that neither Ext.A1 Will nor Ext.B2

¶66

Will was proved before the trial court and no finding was entered by the

¶67

court below regarding which Will is genuine and binding on the parties. Instead, the court below had riveted its attention to Section 19 of the Transfer of Property Act, to find out whether any vested interest has been created by virtue of Ext.B1 document. The lower appellate judge found that

¶68

there is no clear finding as to the genuineness of Ext.A1 or Ext.B2.

¶69

The legal issue emerging for determination is simple. As

¶70

mentioned earlier, there is a clause in Ext.B1 partition deed, admittedly

¶71

executed between the parties, that on the death of Chandravalli Amma, her

¶72

share interest in the property jointly set apart to herself and her daughter,

¶73

the appellant, would devolve on the appellant. It is also seen from the

¶74

document that the contesting respondent has not claimed any property. If

¶75

F.A.O (RO)Nos.272 & 275 of 2016 7

¶76

the dispositive clause in Ext.B1, which amounts to a Will, had not taken

¶77

effect, certainly Chandravalli Amma's share interest will devolve on all

¶78

children. In order to change the course of succession, it is contended by the

¶79

appellant as well as by the contesting respondent, apart from the testamentary clause in Ext.B1, deceased Chandravalli Amma had executed

¶80

two Wills, subsequent to Ext.B1. The first Will is in favour of the contesting respondent. It appears that there were serious disputes regarding this Will, including a police complaint. However, fact remains that subsequently Chandravally Amma executed Ext.B2 Will in favour of the appellant. Even

¶81

though, the suits filed by the parties were suits for injunction simplicitor,

¶82

the contesting respondent set up a right to reside in the house by virtue of

¶83

Ext.A1 Will. In order to determine that right, certainly Ext.A1 Will has to be

¶84

proved by the contesting respondent. On the other hand, dispositive clause

¶85

in Ext.B1 partition deed may not be relevant in this context, because

¶86

F.A.O (RO)Nos.272 & 275 of 2016 8

¶87

admittedly, Chandravally Amma had executed two Wills subsequent to Ext.B1. Ext.B1 can be looked into only for the purpose of understanding the

¶88

derivation of title to the property. The core question to be decided is whether Ext.A1 or Ext.B2 is the last Will genuinely executed by deceased Chandravally Amma. Unless that question is decided, both suits cannot be properly decided. To this extent, the remand order should be justified.

¶89

Learned counsel for the appellant contended that the

¶90

observation by the lower appellate court that Ext.B1 does not create any

¶91

vested interest and that question cannot be re-agitated before the trial court cannot be faulted. If Ext.A1 or Ext.B2 is found to be genuine, certainly

¶92

the vesting in Ext.B1 will be subject to the subsequent Will. To this extent,

¶93

the observation can be clarified.

¶94

The trial court shall consider the legal issues from these angles

¶95

and decide the case as expeditiously as possible.

¶96

F.A.O (RO)Nos.272 & 275 of 2016 9

¶97

In the result, the appeal is dismissed, finding that there is no legal

¶98

error in remanding the case to the trial court for determination of the genuineness of Ext.A1 and Ext.B2 in the light of evidence and with reference to the legal principles.

¶99

Parties shall appear before the trial court on 20-08-2018.

¶100

All pending interlocutory applications will stand dismissed.

¶101

A. HARIPRASAD, JUDGE.

¶102

amk

Janaki Menon v. Dineshkumar

Case brief

What is this about?

What did the court decide?

Janaki Menon v. Dineshkumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Chekkunni Vs K.T.Moosakutty and Another

C.V Vijayan Vs Siby G. John

Rappayi Vs Eeva Johny

K.T.Mary Vs Vayalali Pavithran

Puthen Peedikakkal Rabia Umma Vs the District Collector, Malappuram

Kunjikka Devaki Vs Veluthakunju Sarojini