LEGAL REPRESENTATIVES OF 5 TH v. ADDL

Judgment

1. M.P.LATHIKA, WIDOW OF V.K.RAJEEVAN, VELLACHALANKANDY HOUSE, BALUSSERY P.O., CALICUT - 673 612.

3. V.K.DHANYA, D/O. V.K.RAJEEVAN, VALLACHALANKANDY HOUSE, BALUSSERY P.O., CALICUT - 673 612. V.K.DHANRAJ, S/O. V.K.RAJEEVAN, VALLACHALANKANDY HOUSE, BALUSSERY P.O., CALICUT - 673 612. BY ADV. SRI.V.V.ASOKAN RESPONDENTS: ADDL.APPELLANTS & RESPONDENTS 2,3,4,6,7,8 AND OTHER LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT: PLAINTIFF & DEFENDANTS 2, 3,4, 6, 7, 8 AND OTHER LEGAL REPRESENTATIVES OF THE 1ST DEFENDANT:

1. JAYASREE SIVANAND, DHANLAKSHMI NILAYAM, PALATHUPARAMBU, KUTHIRAVATTOM, CALICUT.

2. LATHIKA CHANDRAMOHAN, PURUSHOTHAMAN & CO: KANNUR.

3. RANGEETHA RAJESH, RAGAM, PANAYAPPALLY, COCHIN-5.

5. V.MURALEEDHARAN, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALICUT. DR.JITHENDRA KUMAR, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALICUT.

7. NARESH KUMAR, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALCIUT., VALSALA BALAN, W/O. LATE VALLACHALANKANDY BALAN, KRISHNA, JAWAHAR NAGAR HOUSING COLONY, EAST NADAKAVU, CALICUT.

8. V.K.YADHUNADHAN, AMARAPURI, VATTOLI BAZAR, BALUSSERY, KOZHIKODE.

9. V.K.JEEVARAJ, AMARAPURI, VATTOLI BAZAR, BALUSSERY, KOZHIKODE.

10. DAYAVATHI, M.A. COTTAGE, MAYAKKAL ROAD, MAHE.

11. V.K.HEMA, W/O. ACHUTHAN, MALAYIL HOUSE, MAKKADA,KAKKODI, KOZHIKODE.

12. V.K.AJITHA, KOMMADATH HOUSE, NADUVATTOM, ARAKKINAR, KOZHIKODE-3.

13. V.K.SARALA, THACHARAKKAL NALUKANDATHIL, ELATHUR, KOZHIKODE.

14. BABY, WIDOW OF VELLACHALANKANDY BHASKARAN AMARAPURI, VATTOLI BAZAAR, BALUSSRY, KOZHIKODE.

15. VINEETHA SIVANANDAN, AMARAPURI, VATTOLI BAZAAR, BALUSSERY, KOZHIKODE.

16. JYOTHI SURESH, AMARAPURI, VATTOLI BAZAR, BALUSSERY, KOZHIKODE.

R1 TO R7 BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL SRI.V. SIVASWAMY SRI.K.I.M. METHER SRI.A.K. JOSE SRI.JOSE JOSEPH R15 & R16 BY ADV. SRI.M.C.RATNAKARAN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2007, THE COURT ON 16/11/2007 DELIVERED THE FOLLOWING: C.M.P.NO.1409/2002 IN A.F.A.NO.17/2002 DISMISSED SD/- P.R.RAMAN, JUDGE 16/11/2007 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ P.R.RAMAN & K.T.SANKARAN,JJ. ---------------------------------------------------- A.F.A. NO. 17 OF 2002 ---------------------------------------------------- Dated this the 16th November, 2007 JUDGMENT SANKARAN, J. The question of law involved in this appeal is whether the donee to whom immovable property was gifted along with her three sons, with a condition that she would have a life estate, is entitled to claim the protection under Section 14(1) of the Hindu Succession Act; or whether it would come under Section 14(2) of the said Act.

2. The AFA arises out of a suit for partition in respect of eleven items of immovable properties. The appellants herein are the legal representatives of defendant No.6. The plaintiff and defendants 1 and 2 are the children of Kumaran Vaidyar and Janaki. Defendants 5 to 9 are the legal representatives of the first defendant. Defendants 3 and 4 are the legal representatives of the second defendant. Kumaran Vaidyar died on

8.8.1967 and his widow Janaki died on 6.8.1991. Item Nos.1 and 2 admittedly belonged to Kumaran Vaidyar. In this appeal, we are concerned with only item Nos.1 and 2. Item Nos.3 to 8 belonged to Janaki, the mother of the plaintiff and defendants 1 and 2. Item Nos.9 to 11 belonged to Kumaran Vaidyar. Plaintiff claimed a one-third share in the plaint schedule properties. The trial court passed a preliminary decree for partition in respect of item Nos.9 to 11. On appeal by the plaintiff, a learned single A.F.A. NO.17 OF 2002 :: 2 :: Judge of this Court in modification of the preliminary decree passed by the court below passed a decree granting one-third share to the plaintiff in item Nos.1, 2 and 9 to 11.

3. Item Nos.1 and 2 and another item of immovable property were gifted by Kumaran Vaidyar as per Ext.A1 gift deed, dated 28.4.1961. According to the plaintiff, the gift was in favour of Janaki and her children together, with a life estate in favour of Janaki in respect of item Nos.1 and 2 in the gift deed (which are item Nos.1 and 2 in the plaint schedule). According to the contesting defendants, item Nos.1 and 2 were gifted by Kumaran Vaidyar to Janaki and item No.3 in the gift deed was gifted in favour of the plaintiff and defendants 1 and 2. The defendants contended that Janaki had absolute title over item Nos.1 and 2 and that there was no creation of a life estate in her favour.

4. In respect of item No.3, there was an earlier suit for partition as O.S.No.82 of 1980, filed by the present plaintiff. The defendants therein, who are defendants 1 and 2 in the present suit, set up an oral partition as a defence. That contention was not accepted and the suit was decreed by the trial court, which was confirmed by this Court in Ext.A4 judgment, dated

24.1.1990. In Ext.A4 judgment, the High Court found that as per the gift deed, dated 21.4.1961, three items of immovable properties were gifted by Kumaran Vaidyar in favour of his wife Janaki and their three children. It A.F.A. NO.17 OF 2002 :: 3 :: was also found that in respect of item Nos.1 and 2 in the gift deed, a life interest was granted to Janaki.

5. In the appeal against the preliminary decree in the present suit, namely, O.S.No.20 of 1990, the learned single Judge held that Janaki did not get any absolute right over item Nos.1 and 2 as per Ext.A1 gift deed and she had only a life estate. The learned single Judge also took note of the appellate judgment in respect of O.S.No.82 of 1980 (Ext.A4) and it was held that even assuming that Ext.A4 would not operate as res judicata, it would operate as a judicial precedent.

6. The contesting defendants had put forward a contention that there was an oral partition among the parties. They also put forward a contention that Janaki had executed a registered Will dated 13th July, 1979 (Ext.B1). As per the Will, the plaint item Nos.3 and 4 came to vest in the first defendant and items Nos.5 and 6, in the second defendant. It was also contended that item Nos.7 and 8 were bequeathed by Janaki in favour of defendants 3 and 4. The trial court found that the case of oral partition set up by the defendants is not true. Ext.B1 Will was found to be genuine by the trial court. On appeal, the learned single Judge confirmed the finding of the trial court as regards Ext.B1 Will. It was also held that item Nos.1 and 2 are partible. A.F.A. NO.17 OF 2002 :: 4 ::

7. Sri.Mayankutty Mather, learned counsel for the appellants, put forward two contentions. They are the following: (1) As per Ext.A1 gift deed, an absolute estate was created in favour of Janaki and, therefore, item Nos.1 and 2 are not parible, as she had disposed of her rights therein under Ext.B1 Will, and (2) Even if the first contention is not accepted, it could certainly be found that the properties were gifted to Janaki under Ext.A1 in lieu of maintenance and, therefore, Section 14(1) of the Hindu Succession Act would apply.

8. Sri.P.G.Parameswara Panicker, learned senior counsel appearing for the first respondent/plaintiff contended that on a proper interpretation of Ext.A1, the finding of the learned single Judge that only a life estate was created in favour of Janaki, could be sustained. He submitted that Section 14(1) of the Hindu Succession Act does not apply at all as there was no pleading that item Nos.1 and 2 were allotted to Janaki in lieu of maintenance and that this contention is put forward for the first time in this appeal. He also submitted that Section 14(1) would not apply at all and Section 14(2) would clearly apply in the case.

9. We shall consider the points referred to above together.

10. On a careful consideration of the recitals in Ext.A1, we are of the view that no absolute estate is created in favour of Janaki. She was given A.F.A. NO.17 OF 2002 :: 5 :: a right to possess and enjoy item Nos.1 and 2 during her life time. Therefore, Janaki could not have disposed of by way of Will, the title in respect of item Nos.1 and 2. As held by the learned single Judge, the intention of the donor was also to confer a life interest in favour of Janaki. We agree with the reasoning and conclusion made by the learned single Judge on this point.

11. There is no case for the defendants in their pleadings that item Nos.1 and 2 were allotted to Janaki in lieu of maintenance and, therefore, Section 14(1) of the Hindu Succession Act, 1956 would apply. No such contention was put forward by the defendants before the learned single Judge as well.

12. For the sake of convenience, Section 14 of the Hindu Succession Act is extracted below: “14. Property of a female Hindu to be her absolute property:-- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation:-- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before A.F.A. NO.17 OF 2002 :: 6 :: the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”

13. Sri.Mayankutty Mather relied on the decisions reported in Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (AIR 1977 SC 1944 = (1977) 3 SCC 99), Shakuntla Devi v. Kamla and others (2005) 5 SCC 390, Jose v. Ramakrishnan Nair (2003(3) KLT 999), Balwant Kaur and another v. Chanan Singh and others ((2000) 6 SCC 310), Pachu v. Chirutha (2003 (1) KLT 241) and (1978 Madras 21).

14. Sri.P.G.Parameswara Panicker relied on the decisions reported in Gumpha and others v. Jaibai ((1994) 2 SCC 511), F.M.Devaru Ganapathi Bhat v. Prabhakar Ganapathi Bhat ((2004) 2 SCC 504) and Kunji Thomman and others v. Meenakshi and others (AIR 1970 Kerala 284).

15. In Vaddeboyina Tulasamma and others v. Vaddeboyina