IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 504 of 1999(A)
1. NARIKALATHIL LEKSHMI
... Petitioner
Vs
1. PALAKEEL SUNEETHI
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.T.P.KELU NAMBIAR (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :28/03/2008
O R D E R
P.R. RAMAN & V. K. MOHANAN, JJ.
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A.S. NO. 504 OF 1999
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DATED THIS, THE 28TH DAY OF MARCH, 2008.
J U D G M E N T
Raman, J.
The only dispute in this appeal is in respect of the construction of a
registered Will Ext.A1 executed by one Bappu on 19th February, 1950,
who died in 1955 – nearly five years after the execution of the Will. Bappu
had two daughters – Janaki and Mathu and two sons – Krishnan and
Balaraman. The plaintiff, in the suit is the daughter of Janaki. The first
defendant is the daughter of Mathu. Second defendant is the wife of
Krishnan and Defendants 3 to 8 are his children. The 9th defendant is the
widow of Balaraman who filed this appeal. Defendants 10 to 23 are the
tenants occupying the building situated in the suit property, which are items
4 and 5. Plaintiff contended that as per the Will, items 15 to 24 and 29 in
the margin of the Will were bequeathed to Balaraman with certain
conditions which inter alia stipulates that the legatee should enjoy the
property, that he shall not encumber or alienate them and any such
alienation would be void, that on the death of Balaraman, the properties are
to be enjoyed by his brother and if Balaraman dies issueless item 24 with
A.S. 504/1999 :2:
the house therein will devolve on Krishnan. According to the plaintiff, the
remaining properties as per the Will will devolve on Krishnan, the plaintiff
and first defendant. Balaraman died on 5.2.1988 without any issues.
Hence Balaraman had only limited interest bequeathed to him. According
to the plaintiff, the properties vested on the plaintiff, first defendant and
the heirs of Krishnan who are defendants 2 to 8 since Krishnan died on
21.4. 1981. The plaint schedule properties are Items 17,19,20, 21 and 22
in the Will. Item 16 was sold during the life time of Balaraman and there
was no challenge since according to the plaintiff, the said property was sold
with the concurrence of the first defendant, plaintiff and Krishnan. Items 2
to 24 devolve on defendants 2 to 8 and Items 15,16,18,24 and 29 in the Will
are in the possession of tenants and they obtained fixity of tenure and hence
these properties are not included in the suit. Item No. 17 is not correctly
described in the Will. The correct description is in plaint item 1. On the
death of Balaraman, the 9th defendant who is in possession of the properties
have no right or interest. The building in the plaint schedule are
commercial buildings occupied by tenants.
2. The 9th defendant, in her written statement, contended that the
testator had not fixed any time for the contingent event to happen, but
Balaraman died without any issue, that he died after the death of the
testator surviving him and so the whole of the property bequeathed in
A.S. 504/1999 :3:
favour of Balaraman vested on him absolutely and the other conditions
bequeathing the properties to Krishnan and others are invalid, that even if
the plaintiff had any right, the same is lost by adverse possession and
limitation, that long after the death of the testator, while Balaraman was
holding the properties, he sold one item of property as per Ext. B1 claiming
himself to be absolutely entitled thereto, that the first defendant and the
plaintiff also executed documents admitting the right of Balaraman.
3. During the pendency of the appeal, the appellant/9th defendant
died and additional appellants are impleaded who are the legatees under
the Will executed by the 9th defendant. That Will was also marked as
Ext.A1 in the incidental proceedings in I.A. 2231/2004 and found to be
genuine. I.A. 2231/2004 is an impleading petition filed by the additional
appellants 2 to 15 for getting themselves impleaded and also to record
Respondents 4 to 9, 2 and 20 as the legal representatives of the original
appellant on the strength of a Will executed by her, which is dated
31.8.1998. Since there was dispute regarding the Will so executed by the
appellant/9th defendant, the matter was remitted to the court below for
entering a finding regarding its genuineness. Accordingly, the court below
by its order dated 9th June, 2005, found that there is no glaring
circumstances to disbelieve the testimony of PWs 1 to 3 and all the
formalities under Section 63 of the Succession Act and Sections 58 to 61 of
A.S. 504/1999 :4:
the Registration Act have been complied with. Accordingly, it was held
that the Will is genuine and it was executed by the appellant/9th defendant
with her sound state of mind. This finding has been accepted by the
parties, as no arguments were raised disputing the correctness of the said
finding.
4. As we have already indicated, the whole question depends on the
interpretation and construction of the Will executed by the testator Bappu
which is marked as Ext.A1 in the suit. The validity of the execution of
Ext. A1 Will by Bappu, the genealogy of the parties and the date of death
of some of the parties as referred to above were found to be beyond dispute
as neither side adduced any evidence disputing the same. The prayer in
the suit is for recovery of plaint schedule properties from the 9th defendant
on the strength of title of the plaintiff and defendants 1 to 8 and to pass a
preliminary decree for partition of the plaint schedule properties into three
equal shares and allotment of one such share to the plaintiff and to direct the
9th defendant to pay the share of profits due to the plaintiff from 5.2.1988
till the date of suit and also future profits from the date of suit till delivery
of possession of the properties alloted to her share as determined by the
court. She also sought for a direction to the 9th defendant to pay her costs
in the suit. The right, if any, of the plaintiff to recover the plaint schedule
property from the 9th defendant on the strength of her title and that of
A.S. 504/1999 :5:
defendants 1 to 9 therefore depends on the effect of the stipulation
contained in Ext.A1 Will.
5. Issue Nos. 1 and 2 framed by the court below are as follows:
1. Whether the plaintiff has any title to enforce partition?
2. Whether the right of the plaintiff, if any, is barred by adverse
possession and limitation?
6. Now let us refer to the documentary evidence let in by the
parties. Ext.B1 is a sale deed dated 23.12.1977 executed by Balaraman.
Ext. B2 is another document executed by Balaraman in favour of one
Palakkul Remesh Babu. Item 29 in the Will is in the name of Balaraman,
purchased by the testator as is referred to in the Will. Balaraman traces his
title to the deed of purchase standing in his name. Ext. B3 dated
11.6.1984 is the document executed by the first defendant which is item
No.2 forming part of the Will. The executant described himself as an
absolute owner as per the Will. Ext. B4 is the rent deed executed by
Balan in favour of Lakshmi. Ext. B5 dated 16.8.1994 is the copy of kachit
executed by one Vipin Kumar in favour of Lakshmi. Ext. B6 is the copy of
the jenmam assignment deed executed by Kamala in favour of Lakshmi.
Ext.B7 dated 10.8.1988 is the copy of the kachit executed by Chandran in
favour of Narikalathil Lakshmi. Ext. B8 dated 23.6.1993 is the assignment
deed executed by Lakshmi in favour of Narayanan. Ext. B9 is the certified
copy of the assignment deed executed by Suneethi and Prasanna in favour
A.S. 504/1999 :6:
of Remesh Babu. The plaintiff produced Ext.A1 which is the registration
copy of the Will dated 27.2.1950 executed by Manaprath Bappu. The
court below, on an interpretation of Ext.A1 Will and placing reliance on
some of the decisions on the point, found that on a reading of Ext.A1
Will, as a whole, it can be noted that the testator Bappu wanted to provide
that in case Balaraman died issueless, the properties bequeathed in his
favour should devolve on Krishnan, the plaintiff and the first defendant and
evidently, the intention is to deprive the widow of any right to claim the
property. It was held that on a true construction of the Will, the
contention of the 9th defendant to the effect that Ext.A1 Will is hit by
Section 124 of the Indian Succession Act and hence the gift over to
plaintiff, Krishnan and the first defendant has failed for the reason that
Balaraman survived the testator, is not acceptable and held that the
plaintiff and defendants 1 to 8 are entitled to get a decree for partition. The
plea of adverse possession and limitation was also found against.
Accordingly, a preliminary decree for possession and mesne profits for
three years prior to the date of suit and future mesne profits from the date of
suit till date of delivery of possession was passed against the 9th defendant,
the quantum of which has to be decided in the final decree stage. A
preliminary decree for partition directing the plaint schedule property to be
divided into three equal shares and allotment of one such share to the
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plaintiff, one share to the first defendant and one share to Defendants 1 to 8
together with cost was passed and ordered to be paid from out of the
estate. The sharers who had paid court fee were declared to be entitled to
apply for final decree.
7. According to the learned counsel Mr. G.S. Raghunath, appearing
on behalf of the appellant and Mr. Krishnan, appearing on behalf of the
supporting defendants, as per Section 124 of the Indian Succession Act, the
legacy to others in case of Balaraman dying without children cannot take
effect since it is specified upon an uncertain event and that no time limit is
mentioned for its occurrence. According to them, the latter part of the Will
bequeathing the properties in favour of the children also will not take
effect. According to them, the bequest in favour of the legatees become
absolute on the death of Balaraman and cannot be postponed in perpetuity
awaiting for any of the contingencies to happen as stipulated in the Will. It
is contended that after the death of the testator, the legatees become
absolutely entitled to the property bequeathed in their favour and the latter
part as to what would happened in case the legatee died with or without
children, are invalid in law. So the whole argument stems from an
assumption that there is already an absolute legacy in favour of Balaraman
which itself is a mooted question to be decided in this case.
8. Before we may refer to the case law on the subject, it will be
A.S. 504/1999 :8:
useful to refer to Section 124 of the Indian Succession Act which provides
that where a legacy is given if a specified uncertain event shall happen and
no time is mentioned in the will for the occurrence of that event, the legacy
cannot take effect, unless such event happens before the period when the
fund bequeathed is payable or distributable. As per Illustration No.(ii)
thereunder a legacy is bequeathed to A and in case of his death without
children, to B. If A survives the testator or dies in his life-time leaving a
child, the legacy to B does not take effect. It is therefore contended that
Balaraman having survived the testator, the latter part contained in the Will
as to what will happen in case Balaraman dies issueless cannot take effect.
It is also contended that Section 10 of the Transfer of Property Act is in
principle similar to the provisions contained in the Indian Succession Act
which provides that where property is transferred subject to a condition or
limitation absolutely restraining the transferee or any person claiming under
him from parting with or disposing of his interest in the property, the
condition or limitation is void, except in the case of a lease where the
condition is for the benefit of the lessor or those claiming under him. As
per Section 11 of the Transfer of Property Act, where on a transfer of
property, an interest therein is created absolutely in favour of any person,
but the terms of the transfer direct that such interest shall be applied or
enjoyed by him in a particular manner, he shall be entitled to receive and
A.S. 504/1999 :9:
dispose of such interest as if there were no such direction.
9. It is contended that Section 131 of the Indian Succession Act
though provides that bequest may be made to any person with the
condition super added that, in case a specified uncertain event shall happen,
the thing bequeathed shall go to another person, or that in case a specified
uncertain event shall not happen, the thing bequeathed shall go over to
another person, however is subject to the rules contained in Sections 120 to
130 vide subsection (2) thereof. Therefore, it is contended that Section 131
is only an enabling provision; so however, subjected to the rule stipulated
in the other provisions contained in Sections 120 to 130. Thus Section 131
is to be read subject to the provisions contained in Section 124 and once it
is found that the latter part of the Will, for the reasons stated, is
hit by Section 124, that part of the Will has to be held as invalid.
10. We may also refer to Section 138 of the Indian Succession Act
which provides that where a fund is bequeathed absolutely to or for the
benefit of any person, but the will contains a direction that it shall be
applied or enjoyed in a particular manner, the legatee shall be entitled to
receive the fund as if the will had contained no such direction.
11. The question therefore is, whether as per the Will there is
an absolute bequest in favour of Balaraman and the latter part contained in
the Will is a gift over after the death of the testator as contended by the
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appellant or not. Both sides placed reliance on various authorities.
11(A). Now we shall refer to the various authorities cited before us,
which have bearing in the matter of construction of a will. In Sasiman v.
Shib Narain (AIR 1922 Privy Council 63), a Four Bench decision of the
Privy Council, Sir Joghn Edge, speaking for the court held as follows:
“It is always dangerous to construe the words
of one will by the construction of more or less
similar words in a different will, which was
adopted by a Court in another case.The term “malik”, when used in a will or
other documents as descriptive of the position
which a devisee or donee is intended to hold, has
been held apt to describe an owner possessed of
full proprietary rights including a full right of
alienation, unless there is something in the context
or in the surrounding circumstances to indicate that
such full proprietary rights were not intended to be
conferred, but the meaning of every word in an
Indian will must always depend upon the setting in
which it is placed, the subject to which it is related,
and the locality of the testator from which it may
receive its true shade of meaning. “12. In Gauri Shanker Sah v. Ramchander Sah (AIR 1970 PATNA
144) the question as to whether the interest created as per the Will was
absolute or limited one, came up for consideration and it was held as
follows: “The recitals in a Will in each case has to be considered in
order to determine as to whether the interest created in favour of one person
or the other was absolute one a or limited one. The will has to be read as a
whole, meaning thereby that the true intention of the testator has to be
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gathered not by attaching importance to isolated expressions but by reading
the will as a whole with all its provisions and ignoring none of them as
redundant or contradictory. Effect should be given to every disposition
contained in the will as far as it is legally possible unless the law prevents
effect being given to it. But if there were two repugnant provisions
conferring successive interests, a Court of construction will proceed to the
farthest extent to avoid repugnancy, so that effect could be given to every
testamentary intention contained in the will. Reference was also made to
the decision of the apex court in Bajrang Bahadur Singh v. Bakhtral
Kuer (AIR 1953 SC 7), Pearey Lal v. Rameshwar Das (AIR 1963 SC
1703) and Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC
1323). With reference to the provisions contained in Sections 131 and 124
of the Indian Succession Act, 1925, in paragraphs 14 and 22 it was held as
follows:
Turning once again to the facts of the
present case, it appears undoubtedly by the will in
question that a bequest was made in favour of
Bhagwan Lall, but a condition was super added
that if he as well as his male issue would die
without leaving behind any legitimate male issue,
then the agnates of the testator would get the
properties as absolute owners. An estate was no
doubt conferred on Bhagwan Lal but it was
subjected by the said condition. The event of his
death or that of his son, if any, was undoubtedly
specified, but the happenings thereof were
uncertain. On the happening of the said event orA.S. 504/1999 :12:
events, the properties bequeathed were to go to the
agnates.These aspects of the will in question attract
the provisions of Section 131(1) of the Indian
Succession Act and, according to sub-section (2)
of that section the ulterior bequest (in this case, to
the agnates) would be subject to the rules
contained in Section 124. The latter section
definitely provides that the legacy cannot take
effect unless the specified uncertain event would
happen before the period when the fund
bequeathed became payable or distributable.
Applying that section to the facts of the present
case, the position is that unless Bhagwan Lal died
during the lifetime of Janki Kuer (which was the
specified uncertain event), the legacy in favour of
the defendants (agnates) cannot take effect. The
bequest to the agnates was a contingent one, and
there is no escape from the conclusion that the
provisions of Section 124 are fully attracted in
respect of the present will (Ext.9).”In para 22 it was held thus:
“On a careful consideration of the points
urged by the learned counsel for the parties I am of
the view that there is no escape from the
conclusion that the terms of the will in question do
attract the provisions of Sections 124 and 131 of
the Succession Act and Bhagwan Lal, not having
died during the lifetime of Janki Kuer, the ultimate
bequest in favour of the agnates (defendants)
cannot take effect. The position thus is that
Bhagwan Lal got an absolute interest by the said
will and after the death of Bhagwan and his wife,
the plaintiffs (who are the heirs of Bhagwan) are
entitled to the properties mentioned in the
will. ……………”13. It may be noticed that the Will which was the subject matter of
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interpretation in that case provided that the testator would remain the
absolute owner of the property till his death, but after his death, his wife
Janki Kuer would remain in possession of those properties; but she would
have no right to transfer them. There was a further provision that after the
death of Janki Kuer, Bhagwan Lal would become the absolute owner in
respect of those properties and after the death of Bhagwan and his wife,
the son of Bhagwan would be the absolute owner of those properties. But if
Bhagwan as well as his male issue would die without leaving behind any
male issue, then the agnates of Bisheshwar Sah would be the absolute
owners of those properties. It was the case of the plaintiff that the last
clause of the will giving the properties to the agnates was repugnant and
void and it would not curtail in any manner the absolute interest given to
Bhagwan Lal in clear and unambiguous terms. The plea of the defendant
was that as per the Will of Bisheshwar Sah, Janki Kuer got a life estate
only and similarly on her death, Bhagwan Lal as well got a life estate and
on his death, Ramrati Kuer also got a similar estate. Bhagwan had left no
male issue and, even if he would have any, he also would have got a limited
interest till his life, but that contingency did not arise at all and as such,
after the death of Bhagwan Lal without a male issue, the defendants
(agnates) were entitled to all the properties as absolute owners thereof. In
order to appreciate the contention so raised by the parties, the court referred
A.S. 504/1999 :14:
to the various terms of the will executed by the testator. The relevant
terms as translated are referred to in para 8 of the judgment. As per clause
(c) and (d) referred to in para 8, after the death of the testator, the wife of
the testator shall remain in possession and occupation of the properties
mentioned therein and appropriation of the produce thereof without the
right of transfer thereof and after her death, Bhagwan Lal shall enter into
possession, occupation and appropriation thereof as son, the legal heir and
an absolute owner. In the remaining clauses also use the term “absolute
owner”. As respect the right of the wife of the testator is concerned there
was a clear stipulation that she will have no right to transfer and the court
observed that there is no controversy that the testator was the absolute
owner till his death and thereafter, Janki Kuer got only a limited interest.
The controversy was as to what will happen when after the death of the
wife of the testator the property is bequeathed in favour of Bhagwan Lal
as the absolute owner. In that context, it was held that the estate shall no
doubt, conferred on Bhagwan Lal which was subjected to certain
conditions, the validity of which were considered and held as invalid. The
Court, in the course of its discussion referred to its earlier decision in
Talkeshwari Devi v. Ram Ran Bikat Prasad Singh (AIR 1966 Patna 40)
and the legal principal stated therein was quoted, which is as follows:
“If the interest created in favour of a person
should take effect on the happening of an eventA.S. 504/1999 :15:
which must happen, it is a vested interest; but if it
is to take effect on the happening of a specified
uncertain event which may or may not happen,
the interest is a contingent one. The death of a
life tenant is an event not contingent but certain,
still it is by no means certain that the subsequent
legatees will survive the life tenant. Hence,
where the legacy is to go subsequently to those
persons who survive the life tenant, the interest
vests in the survivors only after the death of the
life tenant. If thereafter the will contains a
defeasance clause for divesting of the interest of
one of those subsequent legatees on the
happening of any specified uncertain event, the
defeasance clause would be valid on the basis of
the provision contained in sub-section (1) of
Section 131 of the Succession Act. But this
sub-section is subject to the rule contained in
Section 124 (see sub-section (2) of Section 131)
and Section 124 applies when no time is
mentioned for the occurrence of the specified
uncertain event or contingency. The position
with regard to a gift is similar in the Transfer of
Property Act. Section 28 of this Act which
corresponds to section 131 of the Succession Act,
is subject to the rule contained in Section 23
(corresponding to Section 124 of the Succession
Act). The true test, therefore, is whether any time
is mentioned or not for the occurrence of the
specified uncertain event.”14. As per the dictum laid down in the above decision, once an
absolute estate is created in favour of the legatee, the defeasance clause or
divesting of the property thereafter based on an uncertain event in the
absence of any time limit prescribed cannot be effective beyond the death of
the testator and will be hit by Section 124 of the Indian Succession Act.
A.S. 504/1999 :16:
But as we have already indicated, the right in favour of the wife of the
testator was admittedly life estate without right to transfer and the right
created in favour of Bhagwan Lal after the death of the wife of the testator
in unambiguous terms use the expression “absolute owner” which is used in
the case of the other legatees also. In that context, once it absolutely vests
in favour of a legatee, it was held that the subsequent part contained in the
will as noticed was hit by Section 124 of the Indian Succession Act. In
Talkeshwari v. Ram Ran Bikat (AIR 1966 Patna 40) it was held that a
will must be construed as a whole, giving attention to every provision
therein; intention of the person making the grant must be gathered from the
language employed by the granter, the plain and natural meaning is to be
given to the words used; and if there is any doubt, the document is to be
construed as to lean to vesting. It was held that where a legacy was
bequeathed to A for life and after A’s death to B and C in equal shares and
with condition that in case B or C dies issueless survivor would get entire
property absolutely, in the event of death of B issueless after A’s death the
subsequent legacy in favour of C does not take effect. In that case, it was
held that the property was vested in equal shares in B and C after A’s death.
As the will did not mention the time for the occurrence of the subsequent
uncertain event, namely, the death of either B or C without any issue, S.124
applied and the subsequent legacy in favour of C after B’s death issueless
A.S. 504/1999 :17:
and could not take effect. (see para 14 of the judgment).
16. In order to appreciate the facts of that case, the relevant clause
contained in the Will was reproduced in para 1 of the judgment. The
relevant clause reads that after the death of the executor, the share in
Mauzas Khutauli and Kharagu Bigha and ijaredari jagir interest at
Dosannuwa will absolutely belong to Shrimati Jagawar Kuer, his wife who
shall have the full right and power to make transfer etc. and the remaining
property will remain in possession and occupation of Shrimati Jageshwar
Kuer for her life time with limited power and appropriate the income
thereof. The properties, subsequent to the death of the testator, as per the
Will, came in possession in the hands of Jageshwar Kuer and she continued
possession thereof till her death. Thereafter, certain shares of the property
devolved on her heirs while the remaining shares devolved on Talkeshwari
and Sivrani in equal shares. There was a private partition between the two
and the property in the suit set out in the schedule to the plaint was allotted
to Shivrani. Shortly after her death, a dispute arose as the plaintiff claimed
to have become the owner of the property allotted to Shivrani and a
proceeding under Section 145 of the Code of Criminal Procedure, to which
the parties were the plaintiff on the one side and the defendants on the other,
was instituted on 17.12.1953 by the Sub Divisional Magistrate of
Aurangabad. It was the case of the plaintiff that in view of sub-clause 5 of
A.S. 504/1999 :18:
the Will she became entitled to the suit property on the death of Shivrani or
in the alternative, a decree for the value of the said property and for a
declaration that she is entitled to withdraw a sum of Rs. 12,100/- being the
income from the produce of land deposited with the court. The only
question that arose for consideration was the nature of the estate vesting in
the testator’s grand-daughters namely, Talkeshwari and Shivrani, after the
death of Jageshar. It was contended that reading sub-clauses (4) and (5) of
clause 5 of the will together, and on a correct interpretation of the will, it
was a joint life estate created in favour of the two grand daughters and in the
event of the one surviving the other dying issueless, an absolute estate in the
survivor. It was conceded that before examining the matter in the light of
Sections 124 and 131 of the Indian Succession Act, the intention of the
testator had to be gathered from the contents of the Will. It was noticed,
after referring to the relevant provisions of the Will, that in sub-clause 4 of
Clause 5 the testator stated that the remaining share would pass absolutely
in equal shares to his two grand daughters and again in sub-clause 5 of the
said clause that the entire share would go absolutely to the surviving grand
daughter if the other grand daughter died issueless. It was held as follows:
“In the instant case therefore, 10 annas 8
pies share of the property vested in Talkeshwari
and Shivrani, in equal shares after the death of the
life tenant, Jageshar Kuer. Then, the question is
whether the interest which vested in Shivrani
could be divested on account of her death withoutA.S. 504/1999 :19:
any issue. In other words, was the grant of the
absolute estate to Shivrani subject to defeasance
on the happening of the contingency, namely, her
death without issue?17. Here also the wife of the testator had absolute right over certain
properties and in the remaining property, she had only a life estate. After the
death of the wife of the executant, the entire property will be treated as 16
annas property out of which 5 annas 4 pies share constituting proprietary
interest will pass to Shrimati Satrupa Kuer alias Nan, the daughter of the
executant and her heirs as absolute owners and the remaining 10 annas 8
pies share will pass to both the minor grand-daughters Shrimati Talkeshwari
Kuer and Srimati Sheorani Kuer in equal shares as absolute proprietary
interest. The condition thereafter that “if one of the two grand daughters
died issueless, then the other living grand daughter will enter into
possession and occupation of the entire 10Annas as 8 pies and become the
absolute owner thereof” was the subject matter of consideration regarding
its validity or otherwise.
18. The above decision was appealed before the apex court
and the apex court in its decision in Talkeshwari Devi v. Ram Ran Bikat
Prasad Singh (AIR 1972 SC 639) in para 6, while affirming the view of
the Patna High Court, referred to supra, held as follows:
A.S. 504/1999 :20:
“It is undisputed that the duty of the court is
to find out the intention of the testator but that
intention has to be gathered from the language of
the will read as a whole. (emphasis supplied) It is
clear from clause 4 of the will that the testator
wanted to give to his grand-daughters an absolute
right in the properties that were to devolve on
them after the death of his wife, Jageshwar Kuer.The estate bequeathed under clause 4 of the will is
not a conditional estate. Clause 5 of the will
relates to devolution and it does not provide for
any divestment of an estate which had vested. The
estate that vested on Sheorani was an absolute one.The will does not provide for the divestment of
that estate. It is plain from the language of clause
5 of the will that it refers to the devolution, which
means when the properties devolved on the two
sisters on the death of Jageshwar Kuer. We are
unable to accept the contention of Mr. M.C.Chagla, learned counsel for the appellant that there
is any conflict between clause 4 and clause 5 of
the will. Clause 5 in our judgment would have
come into force if the contingency mentioned
therein had happened before the properties
absolutely devolved on the two sisters. Clause 5
cannot be considered as a defeasance clause. If
the testator wanted that the bequest made to any of
his grand-daughters should stand divested on the
happening of any contingency, then he would have
said so in the will, assuming that he could have
made such a provision. But the will nowhere says
that the properties bequeathed to the appellant and
her sister should cease to be their properties on
their dying issueless. Obviously what the testator
intended was that if any of his grand-daughters
dies issueless before the devolution took place
then the entire property should go to the other
grand-daughter. To our mind the intention of the
testator is plain from the language of the will.”A.S. 504/1999 :21:
19. In Navneet Lal v. Gokul (AIR 1976 SC 794) after referring to
the earlier decisions, court summed up the principles emerging therefrom
as follows:
(1) In construing a document whether in
English or in vernacular the fundamental rule is to
ascertain the intention from the words used; the
surrounding circumstances are to be considered;
but that is only for the purpose of finding out the
intended meaning of the words which have
actually been employed.(2) In construing the language of the will
the court is entitled to put itself into the testator’s
armchair and is bound to bear in mind also other
matters than merely the words used. It must
consider the surrounding circumstances, the
position of the testator, his family relationship, the
probability that he would use words in a particular
sense. But all this is solely as an aid to arriving at
a right construction of the will, and to ascertain the
meaning of its language when used by that
particular testator in that document.(3)The true intention of the testator has to be
gathered not by attaching importance to isolated
expressions but by reading the will as a whole with
all its provisions and ignoring none of them as
redundant or contradictory.(4) The court must accept if possible,
such construction as would give to every
expression some effect rather than that which
would render any of the expressions inoperative.The court will look at the circumstances under
which the testator makes his will, such as the state
of his property, of his family and the like. Where
apparently conflicting dispositions can be
reconciled by giving full effect to every word used
in a document, such a construction should be
accepted instead of a construction which would
have the effect of cutting down the clear meaning
of the words used by the testator. Further whereA.S. 504/1999 :22:
one of the two reasonable constructions would lead
to intestacy, that should be discarded in favour of a
construction which does not create any such hiatus.(5). To the extent that it is legally possible
effect should be given to every disposition
contained in the will unless the law prevents effect
being given to it. Of course, if there are two
repugnant provisions conferring successive
interests, if the first interest created is valid the
subsequent interest cannot take effect but a Court
of construction will proceed to the farthest extent
to avoid repugnancy, so that effect could be given
as far as possible to every testamentary intention
contained in the will.”20. In that case, in the will, the word “malik” was used, the
meaning of which was held as qualified by circumstances and other words
in the will. It was held that only life estate passed though the word “malik”
was used in the will. It was stated that the transfer of absolute estate to the
legatee ‘J’ was however inconsistent with some other terms used in the will.
Thus under the will, in the event of J predeceasing the testator, a relative ‘G’
was to be the absolute owner and have the “power of making all sorts of
transfers”. In contrast to this, though J was made malik after the testator’s
death nothing was stated about her “power of making all sorts of transfers”.
The transfer of only the life estate was also consistent with the description
of G, in the will, as testator’s heir (waris) after his death. In the light of
entire tenor of the will and accompanying circumstances it was held that the
intention of the testator would best be achieved by holding that there was a
devise of a life estate to his wife and an absolute estate thereafter to G.
A.S. 504/1999 :23:
21. The expression used in the will can be clarified by either words
or circumstances appearing in the same document. The main argument was
based on the expression “malik” and it was noticed that in the decision in
Krishna Biharilal v. Gulabchand (AIR 1971 SC 1041) the apex court
ruled that the words ‘malik mustakil’ are strong, clear and unambiguous and
if those words are not qualified by other words and circumstances
appearing in the same document, the courts must hold that the estate given
is an absolute one.” After referring to the decision of the Supreme Court in
Krishna Biharilal’s case (supra) and the contents therein, it was held that it
is not required to consider the words ‘malik mustakil’ in this case; but it is
clear that even those words can be qualified by other words and
circumstances appearing in the same document. Therefore, it is abundantly
clear that the intention of the testator will have to be gathered from all the
relevant and material contents in the entire will made in the situation in
which the testator was placed in life in the background of his property, his
inclinations, wishes, desires and attitudes as can be clearly and
unambiguously found either from the recitals from the instrument or from
absolutely undoubted contemporaneous legally admissible evidence.
Reading the present will as a whole and if every disposition has to be
rationally harmonized, we find that the testator intended a life estate for his
wife so long as she lived.
A.S. 504/1999 :24:
22. Usha Subbarao v. B.E. Vishveswariah (AIR 1996 SC 2260) was
a case where under the will the right to separate enjoyment of the share in
respect of some of the properties bequeathed was available to each of the
sons of the testator on his attaining the age of majority. The right to
separate enjoyment of the bequest relating to share in the residential house
and properties standing in the name of the testator’s wife was available only
after death of testator’s wife. But even during the period the right to
separate enjoyment was not available to the legatees. The income from the
properties was available for the maintenance of the legatees, their
education, their upanayanams etc. It was held that the bequest in favour of
the legatees, therefore, is a vested interest. The testator, after making the
bequest in favour of the legatees has given the direction that a son on
attaining majority could demand partition according to the prevailing Hindu
Law in force at that time to get his portion. This is a case where the testator
has made a distinction between the gift itself and the event denoting the
time of payment, division or transfer, viz. attaining the age of majority. In
the circumstances, it was held that it falls under Illustration (ii) to Section
119 of the Indian Succession Act and is therefore a bequest of vested
interest in respect of these properties.
23. In Balwant Kaur v. Chanan Singh (AIR 2000 SC 1908) it
was held that where the legatee is described as full owner of the
A.S. 504/1999 :25:
bequeathed property in earlier part of the will and later showing him to be
only a limited owner, the later part prevails and the legatee gets only
limited ownership. Referring to Section 88, it was held thus:
“S. 88 provides that where two clauses of
gifts in a will are irreconcilable, so that they cannot
possibly stand together, the last shall prevail. This
is obviously on the principle that the last clause
represents the latest intention of the testator. Thus
where in the earlier part of the will the testator has
stated that his daughter shall be the heir owner and
title-holder of his entire remaining moveable and
immovable property but in the later part of the same
Will he has clearly stated that on the death of the
daughter, the brothers of the testator shall be the
heirs of the property of the two inconsistent clauses
the recitals in the later part of the Will would
operate and make his daughter only a limited estate
holder in the property bequeathed to her.”24. Sadhu Singh v. Gurdwara Sahib Narike ((2006) 8 SCC 75) was a
case where one R held some self-acquired properties. He had no progeny
and only his wife and his two nephews were alive and he wanted to dispose
of the property during his life time. He was the absolute owner of the
property and wanted to provide management of the properties in such a
manner that after his death his wife so long as she remains alive will be the
absolute owner and party in possession of all the properties and after her
death rights over the properties would be inherited by his two nephews.
During her lifetime, his wife, however, would not be entitled either to
transfer the properties by way of any will or to mortgage or sell them to
A.S. 504/1999 :26:
anyone else. After the death of R, his widow purported to gift the property
in favour of a Gurdwara. The appellant being one of the two nephews,
filed a suit challenging the deed of gift and praying for recovery of
possession after death of the testator’s wife. The appellant contended that
as per the will of the testator, his wife took only a life estate and the
properties were to vest in the appellant and his brother. On the terms of the
will, she had no right to gift the property to the Gurdwara and she was
bound by the terms of the bequest. The trial court dismissed the suit; but
the appellate court reversed the same. But in the second appeal, the High
Court reversed the decision of the lower appellate court and dismissed the
suit. Allowing the appeal, the apex court held that while first making an
attempt to reconcile all the clauses of the will and give effect to all of them,
it is found that the apparent absolute estate given to his wife by the testator
is sought to be cut down by the stipulations that the property must go to his
nephews after the death of the wife, that the wife cannot testamentarily
dispose of the property in favour of anyone else and the further interdict in
the note that the wife during her lifetime would not be entitled to mortgage
or sell the properties. Thus on reconciling the various clauses in the will
and the destination for the properties that the testator had in mind, it is clear
that the apparent absolute estate in favour of I has to be cut down to a life
estate so as to accommodate the estate conferred on the nephews.
A.S. 504/1999 :27:
25. What the court has to attempt is a harmonious construction so as
to give effect to all the terms of the will if it is in any manner possible.
While attempting such a construction, the rules are settled. Unlike in the
case of a transfer in praesenti wherein the first clause of the conveyance
would prevail over anything that may be found to be repugnant to it later, in
the case of a will, every effort must be made to harmonise the various
clauses and if that is not possible, it will be the last clause that will prevail
over the former and giving way to the intention expressed therein.”
26. In Ramachandra Shenoy v. Mrs. Hilda Brite (AIR 1964 SC
1323) the apex court held as follows:
“It is one of the cardinal principles of
construction of wills that to the extent that it is
legally possible effect should be given to every
disposition contained in the will unless the law
prevents effect being given to it. Of course, if there
are two repugnant provisions conferring successive
interests, if the first interest created is valid the
subsequent interest cannot take effect but a court of
construction will proceed to the farthest extent to
avoid repugnancy, so that effect could be given as
far as possible to every testamentary intention
contained in the will. It is for this reason that
where there is a bequest to A even though it be in
terms apparently absolute followed by a gift of the
same to B absolutely “on” or “after” or “at” A’s
death, A is prima facie held to take a life interest
and B an interest in remainder, the apparently
absolute interest of A being cut down to
accommodate the interest created in favour of B.”A.S. 504/1999 :28:
In that case, the testatrix was an Indian Christian lady of Roman Catholic
faith. She was a widow and possessed with considerable properties. The
will whose construction falls for determination was executed on 25th July,
1907 and related to the properties still remaining with her after some
settlements. Clause 3(c) of the will whose interpretation was the subject
of debate was referred to in para 3 as per which all kinds of moveable
properties inclusive of the amounts that shall be got from others and the
cash, shall after her be enjoyed by her eldest daughter and after her lifetime
by her male children as permanent and absolute right.
27. The question arose was as to whether under Clause 3(c) the
interest which the eldest daughter Severina took under the bequest was
absolute or whether she had merely a life interest with the absolute
remainder vesting in her male issues. The answer turned on the
construction of Cl.3(c) and whether the words “shall enjoy permanently
and with absolute right ” apply to the interest of Severina or are they
confined to designate exclusively the interest of her male children who are
to take after her life-time. It was held that the dominant intention of the
testatrix was to confer a permanent and absolute remainder on the male
issue of her daughter after the lifetime of the first donee and the words used
are apt and capable of supporting such a construction. Though there was an
argument that Severina was also to enjoy the property in like manner
A.S. 504/1999 :29:
because of the use of the words “too” or “also” occurring towards the end of
the clause as pointing to the “enjoyment” of Severina being also
“permanent” with absolute right, the court did not accept the said
contention and it was held that in the case of bequest to Severina she shall
after the death of the testator enjoy alone are the relevant words.
28. In Prasanth v. Kalliani (2007(2) KLT 992) a learned Judge of
this Court held that in the case of wills when there is any inconsistency
between earlier or subsequent part or specific clauses interse contained
therein the subsequent part, clause or portion prevails over the earlier part
because testator is competent to change his mind and create another bequest
in the place of bequest already made. In Narayanan Anandan v. Rakesh
(1994 (1) KLT 475) this Court held that where a testator bequeaths a
property to another without mentioning what interest he intends to confer
on the legatee the latter gets absolute interests of the former. But when the
testator has manifested in the will to give the legatee only a limited interest
in the property, he cannot claim any right more than what the testator had
intended. In a case where the legatee was given only a restricted interest,
S.95 makes the position clear that he will not get the whole interests of the
testator. The presumption always is that where a testator bequeaths a
property to another without mentioning what interest he intends to confer
on the legatee the latter gets absolute interests of the former. Once absolute
A.S. 504/1999 :30:
interest is created under a will and then it contains clauses restraining
alienation or enjoyment such clauses will be invalid and only because of
such restrictive clauses the bequest does not become bad. Though such
repugnant conditions in a will have to be ignored a condition subsequent or
a condition precedent added to a bequest cannot be ignored.
29. In Choyi v. Peravankutty (1995(2) KLT 678) a learned Judge
of this court held as follows:
“The court will proceed to the farthest extent to
avoid repugnancy in a Will, so that effect could be
given as far as possible to every testamentary
intention contained in the Will and it is for this
reason that where there is a bequest even though it
be in terms apparently absolute followed by a gift
of the same absolutely to another on or after the
death of the first, the first is prima facie held to take
a life interest and the second an interest in
remainder, thus the apparent absolute interest of
the first being cut down to accommodate the
interest created in favour of the second. It is clear
from the terms of the Will that what Raru intended
was to confer an interest on the defendant with the
intention to benefit the children of the defendant
absolutely and in the absence of the children, the
defendant should hold the property during his life
time followed by his widow who also was entitled
to hold the properties during her life time with a
subsequent bequest in favour of the plaintiffs
herein. In other words, the testator wanted to
provide that in case the defendant died without
issues, the properties should go to his other children
rather than to the wife of the defendant or her
relatives. Gathering the intention thus expressed
and reading the Will as a whole, I have no
hesitation in coming to the conclusion that the
apparent absolute estate in favour of the firstA.S. 504/1999 :31:
defendant must be cut down to a limited interest to
accommodate the interest created in favour of the
plaintiffs in view of the fact that the defendant died
without issues. In construing a Will the attempt
must be to reconcile the various dispositions and
not to search for repugnancies.”30. Based on the foregoing discussion, we may summarise the
principles as follows:1. If the interest created in favour of a person should
take effect on the happening of an event which must happen, it
is a vested interest; but if it is to take effect on the happening
of a specified uncertain event which may or may not happen,
the interest is a contingent one. The death of a life tenant is an
event not contingent but certain still it is by no means certain
that the subsequent legatees will survive the life tenant. Hence
where the legacy is to go subsequently to those persons who
survive the life tenant, the interest vests in the survivors only
after the death of the life tenant. If thereafter the will contains
a defeasance clause for divesting of the interest of one of those
subsequent legatees on the happening of any specified
uncertain event, the defeasance clause would be valid on the
basis of the provision contained in sub-section (1) of Section
131 of the Succession Act. But this sub-section is subject to
the rule contained in Section 124 and Section 124 applies when
no time is mentioned for the occurrence of the specified
uncertain event or contingency.
2. Thus, once an absolute estate is created in favour
of the legatee the defeasance clause or divesting of the
property thereafter based on an uncertain event in the absence
of any time limit prescribed cannot be effective beyond the
A.S. 504/1999 :32:
death of the testator and will be hit by Section 124 of the
Indian Succession Act.
3. It is the duty of the court to find out the intention of
the testator but that intention has to be gathered from the
language of the will read as a whole. In construing the
language of the Will the court is entitled to put itself into the
testator’s armchair and is bound to bear in mind also other
matters than merely the words used. It must consider the
surrounding circumstances, the position of the testator, his
family relationship, the probability that he would use words in
a particular sense. But all this is solely as an aid to arrive at a
right construction of the will and to ascertain the meaning of its
language when used by that particular testator in that
document.
4. One of the cardinal principles of construction of wills
is that to the extent that it is legally possible effect should be
given to every disposition contained in the will unless the law
prevents effect being given to it. If there are two repugnant
provisions conferring successive interests, if the first interest
created is valid the subsequent interest cannot take effect but a
court of construction will proceed to the farthest extent to
avoid repugnancy, so that effect could be given as far as
possible to every testamentary intention contained in the will.
It is for this reason that where there is a bequest to A even
though it be in terms apparently absolute followed by a gift of
the same to B absolutely “on” or “after” or “at” A’s death, A is
prima facie held to take a life interest and B an interest in
remainder, the apparently absolute interest of A being cut
A.S. 504/1999 :33:
down to accommodate the interest created in favour of B.”
5. The meaning of every word in an Indian will must
always depend upon the setting in which it is placed, the
subject to which it is related and the locality of the testator
from which it may receive its true shade of meaning. The will
has to be read as a whole, meaning thereby that the true
intention of the testator has to be gathered not by attaching
importance to isolated expressions but by reading the will as a
whole with all its provisions and ignoring none of them as
redundant or contradictory.
31. Bearing in mind the above principles, we shall now consider
the relevant clause contained in Ext.A1 having a bearing on the issue under
consideration. In the Will Ext.A1, items 15 to 24 and 29 along with the
movables existing in the house in item No.25 in the margin of the Will were
bequeathed to the share of Bappu’s son Balaraman subject to the conditions
mentioned therein. Ext. A1 dated 27.2.1950 is a registered Will. As per
para 2 of the said Will, the property described in its margin as item No.1,
over which the testator had kanam, kuzhikanam and possessary right were
bequeathed in favour of Suneethi, who is one of the grand-daughters of the
testator and daughter of Janaki, who pre-deceased the testator. Item Nos. 2
and 3 were similarly bequeathed in favour of Kamala, who is another grand
daughter of the testator and daughter of deceased daughter Mathu. The
right over items 5, 10, 25 , 28 and 4, 6, 7, 8, 12 were similarly bequeathed
A.S. 504/1999 :34:
to Krishnan, and items 17,21, 22, 24, 29, 15, 16, 18,19, 23, 24 and the
movables in Item No. 24 were bequeathed in favour of Balaraman, the other
son of the testator. The right over item 14 was bequeathed in favour of
Sreedharan, son of Janaki, the pre-deceased. The right over item 26 was
bequeathed in favour of Valsan, son of Mathu, the pre-deceased daughter
of the testator, to be enjoyed separately in ownership. The expression used
at the end of the paragraph reads thus:
"" 1-
2-0 3-0
5,10 25,28
4,6,7,8,12,27
17, 21, 22, 24, 29
15, 16, 18, 19,
23,
A.S. 504/1999 :35:
20-
24-
14-
26- 0
''
31. We have given emphasis to the last line in para 2 for the reason
that the appellant had got a case that the words expressed as above is an
indication of vesting of an absolute right in favour of the legatees which
contention we will consider later. In para 3 of the Will it states that the
entire property in the margin of the Will are properties acquired by the
testator with his own funds, items 1 to 26 were acquired by him in his
name, items 27 and 28 were acquired by him in the name of Krishnan
referred to above, and item 29 was acquired by him in the name of
Balaraman. Paragraph 4 states that the properties shown in the margin of
the Will and item No. 24 and the movables in the house in item No.4 and
whatever remaining properties belonging to the testator or in his name will
A.S. 504/1999 :36:
devolve on Krishnan and Balaraman on his death. Para 5 provides that all
the properties in the margin of the Will will continue to be enjoyed by the
testator during his life time in his ownership and after his death the
properties allotted to each persons has to be enjoyed by them after paying
rent, revenue etc. and they are entitled to take profits from their respective
properties; but they shall not create any encumbrance thereon or alienate
the properties and if they do so, such act will be invalid. The said para
reads as follows:
‘
A.S. 504/1999 :37:
. . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .
.. . . . . . ‘”
32. It is further recited that the properties given to Krishnan,
Suneethi and Kamala, as per the Will will devolve upon their children
after their death and in case Balaraman dies issueless, item No. 24 house
property and the movables thereon allotted to Balaraman will devolve on
Krishnan separately and the remaining properties allotted to Balaraman will
devolve on Krishnan, Suneethi and Kamala and in case Krishnan is not
alive, then to his children and in case Suneethi and Kamala are not alive to
their female children.
33. The learned counsel Mr. Krishnan also emphasized that the
earlier part of the Will contains the expression “Udamavakasam”
(ownership) and it further provides that after the death of the testator each
of the legatees has to enjoy the properties allotted to them separately, as an
expression absolutely bequeathing the properties in favour of the legatees.
It is the very same word “Udama” (Owner) is used throughout even with
reference to the right of last of such person mentioned in the Will in whose
A.S. 504/1999 :38:
favour the right is vested in case of death of the original legatees. Thus
according to him, the word has to be understood giving the same meaning
through out. Further, the final destination itself is not clear as per the Will
at the time of death of testator and as to who will be the ultimate
beneficiary is also uncertain on the date of death of the testator. In other
words, it would bring a situation as though the intention of the testator is to
keep the property in limbo without destination and ultimately to vest the
same on unknown grandchildren to be born or not to be born. Such a
situation can not be assumed and once the testator dies, as per the
stipulations contained in the Will, on true interpretation, there can not be
any doubt that the right vests absolutely in favour of the legatees and
Balaraman gets the property absolutely and not to be divested thereafter on
the basis of the uncertain events made mention of in the latter part of the
Will. But according to us, the contentions as raised are not supported by
the clauses contained in the Will.
34. On a reading of the Will as a whole, the intention of the testator
was not to confer any absolute title or interest in favour of Balaraman or any
of the testator’s children. The words used in the Will cannot be considered
in isolation. If the testator had intended to convey absolute right to
Balaraman, then there arise no occasion to add clause 5 in the will, which
in clear and unambiguous terms, convey that the ultimate beneficiaries are
A.S. 504/1999 :39:
the grand children of the testator. The stipulation in Clause 5 that the
properties are to remain with the testator till his death and thereafter those
entitled to the properties shall manage and get managed the same after
paying tax etc. and carry out repairs etc. in the building and get possession
thereof ; but none of the above said person shall charge any debt on the said
properties, sell transfer or alienate the properties and if anything of the like
is done, it shall be void.
35. Thus, by express words, right of alienation and creation of
encumbrance on the properties is specifically prohibited which is a strong
circumstance that the properties were not intended to be conveyed in
absolute terms to the legatees but only conveys a life estate. The further
clause also makes it clear that children of Krishnan to be entitled to the
properties assigned to him on his death. Likewise children of Balaraman
will be entitled to the properties allotted to him. The daughters of Suneethi
is entitled to the properties allotted to her on her death and daughters of
Kamala will be entitled to the properties allotted to her on her death. It is
then said that if Balaraman dies without children, properties allotted to him
– Sl. No. 24 property and the usufructus and improvements therein and
movables to vest in Krishnan and the remaining to vest in Krishnan,
Suneethi and Kamala and if Krishnan is not alive to his children and if
Suneethi and Kamala are not alive, to their daughters. Thus, the testator did
A.S. 504/1999 :40:
not intend the properties to go outside the tarwad and the testator really
wanted as a grandfather that ultimate beneficiary shall be his grandchildren.
Therefore, by interpreting certain expressions in isolation without
considering the will as a whole, will defeat the very intention of the testator.
This is not a case where the properties are bequeathed absolutely and
thereafter divested. So the provisions contained in Section 124 of the
Indian Succession Act or other provisions relied on by the appellant has no
application. Those provisions would apply only when there is absolute
vesting and divesting by other clauses. We have given our anxious
consideration to the Will as a whole and what we could gather therefrom is
that, the testator did not intend to convey any absolute right over the
properties in question in favour of Balaraman; but has only a life interest
and since the contingency of his death without issues having arisen the
properties will vest in favour of Krishnan as regards item 24 and the
remaining on Krishnan, Suneethi and Kamala as provided in the Will. The
right to alienate the property is a valuable right and a sure test to see
whether the intention of the testator was to confer absolute right to the
legatee. Here by a specific clause such a right of alienation is in
unambiguous term prohibited thereby the intention is made clear and
Balaraman had no absolute right over the properties.
A.S. 504/1999 :41:
36. Nextly it is contended that the suit is barred by adverse
possession and limitation. Admittedly, the plaintiff’s cause arises only after
the death of Balaraman and admittedly Balaraman was put in possession
even as per the Will and the suit filed well within twelve years after the
cause arose. As rightly held by the court below, hence this issue is also
decided against the appellant.
In the result, we find no merit in this appeal and accordingly, it is
dismissed. No costs.
P.R. RAMAN,
(JUDGE)
V.K. MOHANAN,
(JUDGE)
knc/-