This court dismissed the regular first appeal filed by the second defendant against a preliminary decree in a succession suit involving a diary entry regarding a sum of Rs.50,000/-.
The appeal filed by the second defendant is dismissed; no costs awarded.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 6th DAY OF JULY 2022 / 15TH ASHADHA, 1944
RFA NO. 374 OF 2019 (H)
AGAINST THE JUDGMENT & DECREE DATED 17.07.2018 IN OS 21/2012 OF
ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/2nd DEFENDANT:
NIRMALA RAJAN, AGED 50 YEARS, W/o RAJAN AND D/o LATE VELAYUDHAN, VETTIKKAD VEEDU, PANDAMKODE, VAZHUKKODU, ANCHUMOORTHY MANGALAM, ALATHUR TALUK, PALAKKAD DISTRICT.
BY ADV RAJESH SIVARAMANKUTTY
RESPONDENTS/PLAINTIFF/1st DEFENDANT:
1 MOHANASUNDARAM, AGED 60 YEARS, S/o LATE VELAYUDHAN, CARPENTER, KALAMKULAM VETTIKKAD VEEDU, VADAKKENCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT - 678001.
2 CHENTHAMARAKSHAN, AGED 52 YEARS, S/o LATE VELAYUDHAN, VETTIKKAD VEEDU, RAKKANDI, PANNIYANKARA, ALATHUR TALUK, PALAKKAD DISTRICT - 678001.
R1BY ADVS. SRI.S.S.SRINATH SMT.ASWANY UJWAL SMT.MILI GRACE KURIAN R2 BY ADVS. SRI.K.V.ANTONY SMT.K.VIJINA
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA No.374 of 2019
2
JUDGMENT
The second defendant came up in appeal against the
preliminary decree passed with respect to the property left out by the mother. A counter claim was also raised in the suit based on a diary kept by the mother wherein she has expressed her desire to pay an amount of Rs.50,000/- to the second defendant. It is submitted by the second defendant that such a desire was entertained by the mother on the ground that she had given certain amount to the mother during her lifetime which was used for developing her property by planting rubber trees and also for renovating the building. It is submitted by the learned counsel for the first respondent that no such case was advanced by the plaintiff either in the plaint or at the time of giving oral evidence. Further, the mere desire entertained by the mother unless constitutes a Will or a testament cannot be
RFA No.374 of 2019
3
acted upon. Admittedly it would not come under the purview of a settlement or gift. As such, the appeal fails and is
dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
2 issues framed by the court
Whether a desire expressed by a mother in a diary to pay an amount can be acted upon as a gift or settlement.
Whether the second defendant's appeal against the preliminary decree succeeds on the counter claim.
NIRMALA RAJAN
MOHANASUNDARAM
CHENTHAMARAKSHAN
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
