IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 129 of 2009()
1. PUNNUKKAN GOVINDAN,S/O.KUNHAPPA,
... Petitioner
Vs
1. PUNNUKKAN THAMBAYI, W/O.PUTHIYA VEETTIL
... Respondent
2. KALLYANI, AGRICULTURIST, THIMIRI AMSOM
3. MADHAVI, AGRICULTURIST,RESIDING AT
4. KERALA KALLIANI,W/O.LATE PUNNUKKAN
5. DAMODHARAN,S/O.LATE PUNNUKKAN KUNHIRAMAN
6. DEVU, D/O.LATE PUNNUKKAN KUNHIRAMAN,
7. SAROJINI, D/O.LATE PUNNUKKAN KUNHIRAMAN,
8. JANARDHANAN,
9. PRAKASAN, S/O.LATE PUNNUKKAN KUNHIRAMAN,
10. PADMANABHAN, S/O.LATE PUNNUKKAN
11. NARAYANANI, W/O.PUNNUKKAN KUMARAN,
12. PRASANNA, D/O.W/O.PUNNUKKAN KUMARAN,
For Petitioner :SRI.MATHEW KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :17/08/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.129 of 2009
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Dated this the 17th day of August, 2009
JUDGMENT
The plaintiff in O.S.No.507 of 1996 on the file of the
Munsiff’s Court, Taliparamba is the appellant. The appeal is
directed against the judgment and decree in A.S.No.46 of 1999
on the file of the Sub Court, Payyannur. The trial court
dismissed the suit for partition and confirmed in appeal. Hence,
the second appeal.
2. The plaintiff claims 43/84 share in the plaint schedule
property with future mean profit. The plaintiff claims title on the
strength of the will. Ext.A1 is a certified copy of the will. Under
Ext.A1 will different items of properties are allotted to different
sharers. Item No.31 is one of the items allotted to the plaintiff.
In Ext.A1 will one half of the Manikkankariparambu is allotted to
the plaintiff. The plaintiff is claiming right and title and the
plaintiff claims title over half share of the plaint schedule
property on the basis of the allotment in the will. It is an
admitted fact that as per the same will the husband of the 5th
defendant and the father of the defendants 6 to 11 is entitled to
get 2/7th share in the property mentioned in item No.31. The said
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item is item No.4 in the will. Item No.11 in Ext.A1 will is also
1/7th share of the plaint schedule property. Similarly the second
defendant is allotted 1/7th share of the plaint schedule property
which is shown as item No.16, 3rd defendant 1/7th share shown as
item No.22 and 4th defendant 1/7th share as item No.27. The trial
court on the basis of the allotment in Ext.A1 take note of the fact
that the very same property which is shown as item No.31 was
divided by deceased Kunhappa to his different children. The
property was allotted by Kunhappa in Ext.A1 to his children, first
to the elder and followed by others one by one. It is an admitted
case of the parties that the plaintiff is the youngest son of the
deceased Kunhappa and deceased Kunjiraman is the eldest son.
It is further admitted that being the eldest son, Kunjiraman was
allotted a major share of the property described in Ext.A1. The
trial court also noted the fact after giving property to the elder
children, the remaining property is only 1/7th share in item No.31
and so it can be seen that the intention of the testator deceased
Kunhappa was to allot 1/7th share to the plaintiff.
3. If the plaint averment is accepted, 1/7th share alone
will remain for partition. It is the plaintiff’s version that, reading
the recitals of the will there remains only 1/7th share that he is
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entitled to one half of the plaint schedule property plus 1/7th
share which remains unallotted. The trial court after
considering Ext.A1 will held that, if the intention of the testator
is to give one half of the share of the plaint schedule property, it
should have been mentioned to whom he allotted remaining 1/7th
share. According to the defendant after the death of Kunhappa
they have divided the properties orally and now they have
separate possession of their respective shares. It is further
contended by the defendants that they have obtained purchase
certificates in respect of their shares and subsequently the
defendants executed documents transferring their right to
others. Ext.B1, B3, B5, & B8 are the purchase certificates, B2
series and B6 are tax receipts, etc are produced to show that
they are enjoying the properties separately.
4. After appreciating oral and documentary evidence
tendered by both sides the trial court held that the respective
shareres obtained purchase certificates in respect of their
shares, that other properties are also given by deceased
Kunhappa to his children and that plaintiff has not filed any suit
to get division in those properties. All these circumstances
probabilises the case of the defendants to the effect that after
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the death of Kunhappa the plaintiff and defendants divided the
properties in terms of Ext.A1, therefore the court found that the
plaintiff is not having any partible right as claimed by him and
the plaint schedule property is not available for further partition.
5. The plaintiff filed appeal. The learned Judge,
Payyannur appreciated the facts, circumstances and evidence
and rightly concluded that the case of plaintiff that the plaint
schedule property has not been partitioned and is lying in
common is liable to be rejected. The appellate court also arrived
at the very same conclusions and held that lower appellate court
has rightly dismissed the suit holding the plaint schedule
property is not partible. I have examined the findings and
conclusions arrived at by both courts. The allottment of = share
in the plaint schedule property to the plaintiff is only a mistake
crept in it and infact the testator intented to convey only 1/7th
share to the plaintiff. This is the only possible interpretation that
can be given to the allottment of share to the plaintiff. The
portions of property were allotted to elder children and what
remains is only 1/7th share and therefore whatever allotment
made can only be confined to 1/7th share alone. In fact the plaint
schedule property was partitioned and share allotted to the elder
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son first and then followed by others one by one. 2/7th share is
allotted to the husband of the 5th defendant, 1/7th share each to
the defendants 1 to 4. What remains is only 1/7th share. Courts
below rightly held that recital in Ext.A1 that one half share in
plaint schedule property is given to the plaintiff as shown in the
item 31 is only a mistake. It is observed by the appellate court
rightly that there is cogent and convincing evidence to show that
after the death of the Kunhappa the plaint schedule properties
partitioned and parties have taken separate possession of their
respective shares. I have referred to the documents relied on by
the trial court namely Exts.B1, B2, B3, B5, B6, B7, B8, etc.
6. The questions whether the plaintiff is entitled to
partition and allotment of = share of the plaint schedule
property was considered by both courts elaborately and on an
interpretation of Ext.A1 and other attended circumstances held
that the plaintiff cannot claim partition any more. The findings
of the courts below are based on facts, circumstances and
probabilities. The learned counsel for the appellant cited
[Kaivelikkal Ambunhi (dead) by L.Rs & others Vs.
H.Ganesh Bhandary (AIR 1995 SC 2491)] [Thankamma
Kunjamma and others Vs. Gopalakrishnan Unnithan &
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others (1992 (1)KLJ 415)], [Prasanth Vs. Kalliani (2007(2)
KLT 992)] and canvas the position that if there is any
inconsistency between the earlier or subsequent part or specific
clauses inter se contained therein, the earlier part will prevail
over the latter part. Based on the said decisions it is contended
that as far as interpretation of a Will is concerned, the
subsequent part, clause or portion always prevail over the earlier
part in the matter of “will” or portion because the testator can
always change his mind and create another bequest in the place
of the bequest already made in the earlier part or on earlier
occasion. It was held in the decision cited supra that the last will
of the testator shall prevail. The decisions cited and the
principles stated therein are well settled and accepted
principles. The said legal principles will apply to each and every
case depending on the facts, circumstances and probabilities. If
the intention of the testator to cancel the earlier portion and to
bequest the property as contented by the plaintiff there is no
difficulty in deleting the earlier portion. If there is a change of
intention within a minute or so there is no difficulty in allotting
the entire property to one sharer. In fact on a reading of Ext.A1
it is very clear that the plaintiff is take advantage of a mistake
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committed while drafting Ext.A1 will. On a reading of Ext.A1
I am unable to notice any change of mind while drafting the will,
that in the case of will the testator can always change his mind
and create another will in the place of the bequest already made.
I do not find the principles stated in the reported decisions cited
is applicable to the case on hand. I have no reason to interfere
with the judgment and decree passed by the courts below. The
appellants failed to make out any ground to invoke this court’s
jurisdiction under section 100 C.P.C. No question of law much
less any substantial question of law arises for consideration in
this appeal. Hence, this appeal fails and accordingly dismissed
in limine.
HARUN-UL-RASHID, JUDGE
Skj.