IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 189 of 1998()
1. VARUNNY
... Petitioner
Vs
1. CICILY
... Respondent
For Petitioner :SRI.M.A.ABDUL HAKHIM
For Respondent :SMT.SHEEJO CHACKO
The Hon'ble MR. Justice P.BHAVADASAN
Dated :20/01/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 189 of 1998
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Dated this the 20th day of January, 2011.
JUDGMENT
The plaintiff, who lost before the courts below,
is the appellant.
2. The parties are siblings. Their father had
executed Ext.A1 Will, whereby he bequeathed plaint
schedule property, which is item No.5 in A schedule to
the Will. Plaintiff laid the suit claiming absolute right
over A schedule having 10 cents in extent and alleging
that the defendant had no manner of right over the 10
cents except to take water from the well situate in the
property.
3. The defendant resisted the suit by pointing
out that he has got half share in the property and the
plaintiff is not justified in excluding him from enjoyment
of the suit property.
S.A. 189/1998. 2
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws.1 and 2 and documents marked as Exts.A1 to A3 from
the side of the plaintiff. The defendant had examined D.Ws.
1 to 5 and marked Exts.B1 and B3. Exts.C1 and C2 are the
commission report and plan. Exts.X1, X1(a) and X2 are third
party exhibits.
5. The trial court, after an evaluation of the
evidence in the case, came to the conclusion that the claim
of the plaintiff that he is entitled to absolute right over 10
cents of property cannot be countenanced and dismissed
the suit. The plaintiff took up the matter in appeal as A.S. 13
of 1986. The defendant died during the pendency of the
appeal and his legal heirs were brought on the party array
as respondents 2 to 9. The lower appellate court on a
careful consideration of the evidence in the case concurred
with the trial court and confirmed the decree. Hence this
Second Appeal.
S.A. 189/1998. 3
6. It is seen that during the pendency of this
appeal, the appellant passed away and his legal heirs were
brought on the party array as additional appellants 2 to 4.
7. Notice is seen to have issued on the following
questions of law:
“A) Whether the courts below have not
committed error in law in the construction of
Ext.A1 Will for dismissing the suit.
B) Whether the courts below have not
misconstrued and misunderstood Ext.A1 and the
pleadings and other evidence in the case for
dismissing the suit.
C) Whether the findings recorded beyond the
pleadings and evidence in the case are
sustainable in law.
D) Whether the interpretation of Ext.A1 Will
is correct in law and in accordance with the well
established legal principles.
E) When distinct and separate properties are
bequeathed to different legatees under a Will
whether it can be held that the legatees are
co-owners in joint possession of those properties.
S.A. 189/1998. 4
F) Whether the findings of fact by the courts
below are not perverse, illegal and unsustainable
on the basis of total misconstruction and
misunderstanding of Ext.A1 Will.”
8. The essential dispute in this case centers
round the construction of two clauses in the Will said to have
been executed by the father of the parties. Both the courts
below have extracted the portion in their respective
judgments and it is unnecessary to re-quote those portions
in this judgment. Both the courts below on a careful
consideration and evaluation of the clauses came to the
conclusion that the word ” ” mentioned in the
respective portions set apart to the parties mean that the
vacant land should be taken in equal shares. On going
through the relevant recital, there is no reason to take a
different view. The plea of the plaintiff that ” “(equal
share) is confined to the taking of water from the well
cannot be accepted as found by both the courts below.
S.A. 189/1998. 5
Moreover, it is pointed out that the plaintiff has been paying
tax only for 6 = cents, whereas the total extent is 13 cents.
It is also seen that in his ceiling return, the extent shown is
8 cents. It was also mentioned in the commission report
that the entire property lies as a compact plot without any
division.
9. Both the the courts below have noticed that the
Will has been carefully drawn and specific rights have been
given to the legatees. In relation to the staircase, the
plaintiff is given only a right of user. It shows that the
testator was very conscious of the dispositions made by him
and a reading of the relevant clauses will clearly show that
the recital is clear to the effect that the vacant land should
be taken equally by the legatees. That alone has been
found by the courts below. There is no illegality or
irregularity in the finding of the courts below nor could it be
said to be perverse or unwarranted.
S.A. 189/1998. 6
No question of law, much less any substantial
question of law arises for consideration in this second
appeal. This second appeal is without merits and it is liable
to be dismissed. I do so. There will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.