Allowed

Sara v. Thressiamma Lonappan, (Died)

Kerala HC22 Jul 2019RSA/178/2004

Case brief

AI extract

What is this about?

This appeal challenged a decree partitioning ancestral property based on the interpretation of the deceased father's will. The High Court held that the will granted absolute title to the deceased mother, not a life interest, invalidating the partition suit.

What did the court decide?

The appeal is allowed; the decree and judgment of courts below are set aside and the partition suit is dismissed.

Sara Vs Thressiamma Lonappan, (Died) — Succession and Inheritance | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASHADHA, 1941

¶5

RSA.No.178 of 2004

¶6

AGAINST THE JUDGMENT & DECREE IN AS 146/2000 of DISTRICT COURT & SESSIONS COURT,THRISSUR DATED 23-09-2003

¶7

AGAINST THE JUDGMENT IN OS 2011/1998 of PRINCIPAL MUNSIFF COURT,THRISSUR

¶8

APPELLANT/APPELLANT/5TH DEFENDANT:

¶9

SARA

¶10

D/O.LATE PANANGADAN LONAPPAN AND W/O. THAZHATH JOHN, KANNAMKULANGARA DESOM,, CHIYYARAM VILLAGE, THRISSUR TALUK.

¶11

BY ADV. SRI.N.P.SAMUEL

¶12

RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 4:

¶13

1 THRESSIAMMA LONAPPAN, (DIED;LRS IMPLEADED) W/O. KANJIRATHINGAL LONAPPAN, AND D/O. LATE PANANGADAN LONAPPAN, PARAVATTANI DESOM, OLLURKKARA DESOM, THRISSUR TALUK, THRISSUR DISTRICT.

¶14

2 THANKAMMA CHACKO (DIED) 2471 - 16TH CROSS 4TH MAIN, LAKKASANRA, BANGALORE 560 030. (DIED; LRS IMPLEADED)

¶15

3 ELIAMMA LAZAR, ANCHERY HOUSE P.O.MALAPARAMBU, KOZHIKODE.

¶16

4 MARY CHACKO, MALIYEKKAL HOUSE 35/45, SELVAPURAM ROAD, COIMBATORE 641 001.

¶17

5 VERONI FRANCIS MUTHUPEEDIKA HOUSE ST.THOMAS STREET, KURIACHIRA P.O., THRISSUR 680006.

¶18

6 ADDL. R6 PAUL CHACKO GURUMURTHAPPA ESTATE, J.P. NAGAR, 1ST PHASE, BANGALORE - 560078.

¶19

RSA.178/04

¶20

¶21

7 ADDL R7. DR. LEELA P. NO. 89 COSTA MESA, CLOSE NE CALGARY TIY 6 W9, ALBERTA, CANADA.

¶22

8 ADDL. R8. JOHN CHACKO 104, 12TH MAIN, BTM IST STAGE, BANGALORE.

¶23

9 ADDL. R9. MARY ANTO THALOKKARAN HOUSE, SANKARAYAR ROAD, NEAR CHYTHANYA WEST FORT, THRISSUR - 4.

¶24

10 ADDL. R10. VALSA JOHNSON NEELANKAVIL HOUSE, MOOSPET ROAD, NEAR JUBILEE MISSION HOSPITAL, EAST FORT, THRISSUR - 5.

¶25

(THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 6 TO 10 AS PER ORDER DTD. 20/3/14 IN I.A. 410/06)

¶26

11 ADDL.R11.BABU K.L,. S/O.LATE KANJIRATHINGAL LONAPPAN, KANJIRATHINGAL HOUSE, KANATTUKARA DESOM, THRISSUR DISTRICT.

¶27

12 ADDL.R12.SHALY K.L., D/O.LATE KANJIRATHINGAL LONAPPAN, KANJIRATHINGAL HOUSE, KANATTUKARA DESOM, THRISSUR DISTRICT.

¶28

13 ADDL.R13.SHAJU K.L., S/O.LATE KANJIRATHINGAL LONAPPAN, KANJIRATHINGAL HOUSE, KANATTUKARA DESOM, THRISSUR DISTRICT.

¶29

14 ADDL.R14.SHONNY K.L., S/O.LATE KANJIRATHINGAL LONAPPAN, KANJIRATHINGAL HOUSE, KANATTUKARA DESOM, THRISSUR DISTRICT.

¶30

15 ADDL.R15.SHIBU K.L., S/O.LATE KANJIRATHINGAL LONAPPAN, KANJIRATHINGAL HOUSE, KANATTUKARA DESOM, THRISSUR DISTRICT.

¶31

(THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL.R11 TO 15 AS PER ORDER DATED 17.06.2019 IN IA.3005/2014).

¶32

BY SRI.G.SREEKUMAR (CHELUR)FOR R1 AND ADDL.R9

¶33

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RSA.178/04

JUDGMENT

A suit for partition regarding 3½ cents of property and a building alleged to have been left out by deceased father Lonappan was ended in a decree before the trial court and it was confirmed in appeal, against which the 5^th defendant came up with this appeal.

¶38

2. There is no dispute with respect to the status of the parties to the suit. It is the specific case of the 5^th defendant that the father had settled the property in favour of his wife under Ext.B1 will in the year 1977 (12.5.1977) and after his death, later on in the year 1989, the mother had executed a settlement deed in favour of the 5^th defendant. On the other hand, the plaintiff claims that what is given to the mother under Ext.B1 will is only a life interest and the clauses incorporated in the will would show that after death of the mother the property will go equally to

¶39

RSA.178/04

¶40

¶41

six children excluding one daughter Rosy. Both the courts below interpreted the will in such a way that the mother is having only a life interest over the property and as such a decree for partition was granted by passing a preliminary decree in favour of the plaintiff, one of the daughters. The above said decree and judgment of both the courts below is under challenge by the 5^th defendant.

¶42

3. The dispute is pertaining to the interpretation of Ext.B1 will. As such, the same would constitute a substantial question for the purpose of this appeal. Going by Ext.B1 will, it is clear that the testator had made a declaration at first stating that in the event of survival of his wife after his death, the entire property belonged to him will exclusively go to the wife (the mother of plaintiff and defendants) with an assertion that she alone is entitled to inherit the

¶43

same. It is after that so many other clauses were incorporated in Ext.B1 will stating that if any

¶44

RSA.178/04

¶45

¶46

property found to be left out after the death of the testator and his wife, the same shall go to the six children, excluding Rosy, in equal shares. The further clause would itself show that it is dealing with the property if any left out at the time of death of his wife. The early declaration made in the will (Ext.B1), that in the event of survival of his wife after his death his entire property, right, title and interest over all estates would go to his wife alone, would sufficiently show that what is given under and what is bequeathed under Ext.B1 will is the entire right over the property to his wife and it is an unconditional bequeath. The fact that some other clauses were also incorporated subsequent to the said declaration, that if any property found to be left out after the death of his wife, the same will go to the six children, is really dealing with the property if any left out at the time of death of the mother inclusive of what is given to the mother under that

¶47

RSA.178/04

¶48

¶49

will (Ext.B1). That does not mean that the bequeath to the mother would take away by the subsequent clauses and no such interpretation is possible. The language is plain and clear. There is no ambiguity or anomaly to be addressed and even going by the literal interpretation, it is clear that there is a declaration of bequeath at first with respect to the entire estate held by the father to his wife in absolute, if she survives him. The other clauses would come into operate only after the death of wife and death of testator also and if any property found to be as that of them, it will go equally to the five children. The interpretation given by both the courts below hence cannot be sustained. The expression “ ®æa ÍÞøcÏíAí ÎÞdÄÎÞÏß ²ÄáBáKÄÞÃí ” stands for 'vesting the property in absolute to the testator's wife' and the expression “ ²ÄáBáKá ” really stands for 'vesting'.

¶50

4. The legal position settled by the Apex Court in Gnambal Ammal v. T.Raju Ayyar (AIR 1951 SC

¶51

RSA.178/04

¶52

¶53

103) and by the Madras High Court in Manikam Pillai v. Venkatesa Chetti and Ors. (AIR 1927 Madras 494) has not been properly understood by the court below. When the language employed is free from any ambiguity and anomalies sufficient to show what actually intended by the testator without leaving any lacuna, literal interpretation should be applied. In the instant case, the wording used and the language employed are free from any ambiguity or anomaly and the intention of the testator is clear and evident from the plain language employed. So there cannot be any scope for adverting to the other principle of interpretation.

¶54

5. The settlement deed executed by the mother during her lifetime based on the bequeath under Ext.B1 is hence valid.

¶55

6. As discussed earlier, what is given to his wife by making a declaration that if she survives him, the entire property will go and vest with his wife alone is sufficient to show the bequeath

¶56

RSA.178/04

¶57

¶58

thereunder. No other interpretation is possible. Hence the decree and judgment of both the courts below are liable to be set aside, by allowing this appeal I do so. The appeal is allowed. The decree and judgment of both the courts below are set aside and the suit is dismissed, but without costs.

¶59

Sd/-

¶60

P.SOMARAJAN JUDGE

¶61

okb/sv

¶62

//True copy//

¶63

P.S. to Judge

Sara v. Thressiamma Lonappan, (Died)

Case brief

What is this about?

What did the court decide?

Sara v. Thressiamma Lonappan, (Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Anil Mathew Vs Suresh Mathew

Cicily Lawrence Vs C.J.William & Ors.

Karthyayani Vs Thomas(Died)

Sreenivasan Vs Mami

Rajamma Vs Sivasankaran

Balakrishnan Vs K.K.Sivasankaran