Kerala High Court · 2006

K.A.ABDUL GAFOOR, J.---------------------------S.A.No.458 of 1994 D---------------------------Dated this the 18th day of October, 2006.JUDGMENTThe 4th defendant, the grandson of one ManickamAmma, is the appellant in this second appeal. He is assailingthe concurrent decree whereby the claim for partition ofproperty is dealt with.2. The plaintiff, the maternal uncle of the 4thappellant sought for partition in respect of the share of hismother Manickam Amma, who is the grandmother of theappellant, in A scheduled property. The courts belowconcurrently found that the plaintiff was entitled to 1/6th sharein A scheduled property. According to the appellant/4thdefendant, he was not entitled to that much. Therefore, thissecond appeal. S.A.No.458/94 :: 2 ::3. The courts below came to the conclusion thatthe plaintiff was entitled 1/6th share in the plaint scheduledproperty interpreting Ext.A1 partition deed entered into bythe said Manickam Amma, the plaintiff, his brother and sisterviz., defendants 1 and 2, and the appellant/4th defendantand his brother, 3rd defendant. The appellant is givinganother interpretation to Ext.A1 and contends that hisgrandmother Manickam Amma did have only 1/3rd share in Ascheduled property and therefore, the plaintiff will beentitled only to 1/4th of that 1/3rd and not 1/6th of the entireA scheduled property.4. The substantial question of law in support of thiscontention is whether the interpretation given by the courtbelow to the covenants in Ext.A1 is justified.5. There was also a contention centered aroundExt.A2 Will that its executant - the said Manickam Amma, did S.A.No.458/94 :: 3 ::not have any right to bequeath because, she did have onlythe life estate in the properties covered by it, even going bythe covenants therein. It is yet another substantial questionof law raised in this second appeal.6. I will first consider the effect of Ext.A1. KannanNair is the grandfather of the appellant. He died leavingcertain properties and his widow, Manickam Amma, andtheir children viz.,plaintiff his sister - the 1st defendant andhis brother 2nd defendant and Lakshmi Amma, the mother ofthe appellant. By reason of the application of the provisionsin Section 8 read with Schedule I of the Hindu SuccessionAct, all the said 5 persons acquired equal right over theproperty left by Kannan Nair i.e. 1/5th share each. Theproperty remained in the ownership and enjoyment of all thefive. While so, Lakshmi Amma, [the mother of the appellantand 3rd defendant] died. In Ext.A1, A scheduled property S.A.No.458/94 :: 4 ::was set apart jointly in favour of Manickam Amma, and hergrandchildren viz., the appellant/4th defendant and 3rddefendant, who are the heirs of deceased Lakshmi Amma,the daughter of Manickam Amma. The contention of theappellant is that by reason of setting apart A scheduleproperty in favour of the said three, in the absence of anycovenant defining their individual share in A scheduledproperty, each one of them gets only 1/3rd right therein.Consequently, on the death of Manickam Amma, only thepro rata share will revert back to the plaintiff. In otherwords, Manickam Amma did not have half the right in Ascheduled property, as contended by the plaintiff, theappellant submits.7. On the other hand, it is contended by the 1strespondent/plaintiff that the arrangement of partitioneffected in Ext.A1 whereby A scheduled property had been S.A.No.458/94 :: 5 ::left as the common property belonging to Manickam Amma,and defendants 3 and 4 (appellant) was only, consideringthe respective shares of each. On the death of Kannan Nair,Manickam Amma had only 1/5th share in the property left byhim and the mother of defendants 3 and 4 did have another1/5th share. As the mother of defendants 3 and 4 (appellant)was no more, her rights devolved on defendants 3 and 4(appellant). It was that share that had been set apart in ascommon property. Therefore, the respective shares in Ascheduled property are to be half right to Manickam Amma,and the remaining half right available for Lakshmi Amma willbe divided among defendants 3 and the 4thdefendant/appellant. It is the further contention that, on thedeath of Lakshmi Amma, 1/3rd share therein had also goneto Manickam Amma, being the mother of that deceased.Therefore, defendants 3 and 4 did have only the remaining S.A.No.458/94 :: 6 ::share in the A scheduled property. It is to give effect to thisshare, that Ext.A1 partition was effected and the Ascheduled property was set apart in favour of ManickamAmma and the children of Lakshmi Amma, defendants 3 and4 in common. Therefore, Manickam Amma had, over andabove the half right in A schedule, the 1/3rd right over theremaining half in the said common property. So, she had abequeathable right over the property. When Ext.A2 Will isalso taken into account, the plaintiff will be entitled to 1/6thshare. In support of this contention, the covenantscontained in Ext.A1 is much relied on.8. Thus the question is what was the intention ofthe parties at the time of executing or entering into Ext.A1partition deed.9. It is an admitted case that the properties wereleft behind by Kannan Nair, the husband of Manickam S.A.No.458/94 :: 7 ::Amma and that Kannan Nair has been succeeded by 5members, his widow and 4 children equally. Ext.A1 refers tothe death of one among the children Lakshmi Amma, themother of the appellant in the following words:“............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................” S.A.No.458/94 :: 8 ::{On death of Kannan Nair, his properties were devolved onparties 1 to 4 to the document and to Lakshmi Amma. Lateron death of Lakshmi Amma, the daughter of No.1 and themother of parties 5 and 6 (3rd defendant and the appellant/4thdefendant) the share of Lakshmi Amma had devolved uponNO.1 ( Manickam Amma) and Nos.5 and 6 (3rd defendantand /appellant/4th defendant). 10. After coming to this understanding, it is againrecited in the document that:“................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................” S.A.No.458/94 :: 9 ::{The properties, remained in the common possession andenjoyment. As it was inconvenient to enjoy the property inthe joint ownership and possession and as few of them haddemanded for partition of the said common property, all ofus have decided to effect partition.}11. It was thereafter the shares were allotted as:“............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................”(Taking into account the lie and quality of the propertyand the convenience of the parties as agreed to in thepresence of mediators, the property is partitioned and Ascheduled property is set apart for No.1 (Manickam S.A.No.458/94 :: 10 ::Amma and Nos.5 and 6 (3rd defendant and appellant/4thdefendant) among us jointly).12. If this joint allotment of A scheduled propertyin favour of Manickam Amma and her grandchildren ismeant to be equal, there was no reason for reciting aboutthe reversion of 1/3rd share of Lakshmi Amma to the motherManickam Amma in this document or the stipulation thatafter the death of Kannan Nair the properties were equallyenjoyed by Kannan Nair's 5 heirs including Manickam Ammaand deceased Lakshmi Amma [the mother of the appellantand 3rd defendant]. If the property had really been intendedto be in joint possession with equal interest, these recitals inthe document were unnecessary especially, that relating toreversion of 1/3rd share left by the pre-deceased daughter.That was specifically stipulated by the mother because the S.A.No.458/94 :: 11 ::mother had never intended to part with any of her rightsthat she got from her deceased husband, and also thatreverted to her by reason of death of her daughter LakshmiAmma. That means the joint possession in respect of Ascheduled property in Ext.A1 was in respect of the respectiveshares of No.1 Manickam Amma and No.4 [3rd defendant]and No.5 [the appellant] mentioned in that document.Necessarily, 3rd defendant and the appellant got interest in Ascheduled property by way of the share of their motherLakshmi Amma alone after reversion of the interest in thatproperty in favour of Manickam Amma, mother of deceasedLakshmi Amma. Therefore, in A schedule, 3rd defendantand the appellant together did have only ½ - [1/3rd x ½]. Inother words, ½ -1/6 = 2/6. In other words ManickamAmma did have 4/6 interest in A schedule property. S.A.No.458/94 :: 12 ::13. Now, I will consider the relevance of Ext.A2.Ext.A2 was executed by Manickam Amma. The contentionassailing Ext.A2 was that Manickam Amma did not have abequeathable right in the property covered by Ext.A2 goingby the covenant in Ext.A1. Covenants of Ext.A1 has alreadybeen discussed. The parties had been conscious of theshares over the property left not only by Kannan Nair, butalso the property left by Lakshmi Amma as well. Added tothis is the statutory provision contained in Section 8 of HinduSuccession Act, whereby Manickam Amma receives theproperty absolutely. When thus Manickam Amma hadabsolute share over the properties left by her daughterLakshmi Amma, definitely she will have the right to bequeaththat right in favour of the persons of her choice shown aslegatees in Ext.A2. Therefore, Ext.A2 cannot any more beassailed on that count. S.A.No.458/94 :: 13 ::In the result, the questions of law raised do notarise in his case. The Second Appeal stands dismissed. Nocosts. Sd/- (K.A.ABDUL GAFOOR) JUDGE sk///true copy// K.A.ABDUL GAFOOR , J. ---------------------------------------- S.A.No.458 of 1994 D JUDGMENT 18th October, 2006. ------------------------------------------------