K.S. Paripoornan, J.
1. Defendants 1 to 4, 7 to 10, 12, 13, 14, 17, 19, 22 to 24, 31 to 37 in O.S. No. 32 of 1976, Subordinate Judge's Court, Attingal, are the appellants. Plaintiffs 1 to 9 and defendants 11, 15, 16, 18,20,21, 25 to 30, 35 to 40 and defendants 5 and 6 are the respondents, The suit was filed for declaration of plaintiffs' title and possession over the plaint schedule property and for an injunction. The plaintiffs claimed the right under Ext. A1 (same as Ext. B1) Will executed by one Velayudhan dated 27-3-1099. By the said document Velayudhan bequeathed 32 items of properties. They were his self acquired properties. He bequeathed properties to parties 1 to 6 (seshakars), parties 7 to 14, distant kindred and party No. 15, a person who brought him up. Parties 1 and 2 were seshakars. Party No. 3 is a seshakari (niece) and parties 4, 5 and 6 are the children of party No. 3. Parties 5 and 6 are daughters of party No. 3 and party No. 4 is Narayanan Govindan, the son of party No. 3-Seshakkari, Plaintiffs are the children of Narayanan Govindan. We are concerned in this case only with items 14 to 22 in Exhibit A1 (Ex.B1) Will, less three items sold away to strangers. It was submitted at the Bar that there was another Will by deceasedVelayudhan by which he gave other items of properties to his wife and children. We are not concerned with the same in this case. The real dispute is between the wife and children of Govindan, the plaintiff in the suit, and parties 5 and 6, who are sisters of deceased Narayanan Govindan and their children. Parties Nos. 1, 2 and 3 in the document are dead. The plaintiff claimed possession under Ext. A1 (Ext.B1) Will. The trial Court found that the plaintiffs have no proprietary right in respect of the plaint properties. It held that they have the right to be in possession and enjoyment of the same by virtue of Clause 17 of Ext.A1 (Ext.B1) Will and that they are in possession of the plaint items. The defendants were restrained by a permanent injunction from disturbing the possession and enjoyment of the plaintiffs. In appeal, the learned District Judge by his judgment dated 28th March, 1980 affirmed the said decision. But it should be noted that at the time of arguments, the respondents' counsel (plaintiffs and certain other defendants) submitted that the question of title may be left open. The only point pressed was regarding the right of the plaintiffs to obtain an order of injunction. In this second appeal also, counsel appearing for the parties pressed only the right of the plaintiffs to obtain an order of injunction.
2. The contesting defendants have come up in appeal against the decisions of the Courts below granting the injunction, as prayed for. At the time of admission of the Second Appeal, the following questions of law were formulated as substantial questions of law arising for consideration in the appeal :
A) What is the estate taken by the wife and children of Govindan under the provisions of the Will on a correct construction of its terms?
B) Under the stipulations in the Will does any right survive in the wife and children of Govindan after the death of Govindan?
C) Where the Courts recorded the agreement of parties to have the case decided on the basis of the provisions of the Will alone, is it open to enter a finding of possession to sustain the relief for injunction when the plaintiffs adduced no evidence whatever and also without adverting to the evidence adduced by the defendants?
D) Is there any scope for application of any presumption of possession in respect ofproperty possession of which is easily capable of being proved by evidence?
3. I heard counsel for the appellants, Mr. S. Narayanan Poti and also counsel for the respondents, Mr. V. Vyasan Poti and Mr. Gopalakrishnan Nair. Both sides admitted in the trial Court that the decision of the suit will depend upon the interpretation of Clause 17 of Ext.B1 (Ext.A1), the sole document relied on by both sides to establish their rival claims. So, the centre of controversy depends upon the scope and impact of Ext.B1 (Ext.A1) and in particular, Clause 17 thereof. The relevant clauses pf Ext.A1(Ext.B1) which fall for consideration are extracted hereinbelow : (Clause Nos. 10 and 17).
4. Appellants' counsel contended that the Courts below were wrong in holding that the plaintiffs (wife and children of Narayanan Govindan) were given a right of enjoyment and are in possession of the properties as per Ext.A1(Ext.B1). On a perusal of Ext.A1(Ext.B1), it is evident that parties Nos. 1, 2, 4 and 9 were given properties for their life, that parties 3, 5 and 6 (Seshakkari and her daughters) were given full rights of certain properties and also the residue of the properties allotted to parties 1, 2 and 4 for their life. Govindan died on 8-6-1976. The properties given to the legatees are specifically described in the schedule. Pages 15 to 22 of Ext.A1 contain the schedule. The properties allotted to various legatees are mentioned therein. Pages 18 and 19 of Ext.A1 deal with items 14 to 22. The heading is..
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In cases, where plurality of persons happened to be the legatees or were intended to enjoy the properties, eo nomine their names are seen mentioned or indication is given that 'A and others' are to enjoy the property. Page 15 contains the names of Bhagavathy Ummini and Bhagavathy Raman. Page 17 contends the names of Bhagavathy Ummini, Bhagavathy Raman and Bhagavathy Madhavi. Page 22 mentions the properties to be enjoyed by Kali Kali and Kali Kochu Pillai. It also mentions the properties to be enjoyed by P. Govindan and others. The properties to be enjoyed by Kunchel Raman and others are also mentioned in page 22. The mention of Narayanan Govindan (Party No. 4) alone as the person toenjoy the property. Items 14 to 22, are significant (Page 18). In this context, the reference in Clause 17, that Items 14 to 22 should be enjoyed by Narayanan Govindan along with his wife and children assumes significance. The subsequent clause in Clause 17 to the effect that after the demise of the 4th party. -- Narayanan Govindan -- his wife and children will not get any right is also crucial. Clause 17 pointedly says, that after the demise of the 4th party-Narayanan Govindan -
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5. It is trite law that Ext.A1(Ext.B1) Will should be read as a whole, reasonably and fairly. The intention of Velayudhan has to be gathered primarily from the language of the document. The circumstances under which the testator Velayudhan executed the Will-as the state of his property, of his family and other surrounding circumstances like the usual custom, practices and wishes of the testator's race or caste are to be borne in mind. Bearing in mind the above principles, Ext.A1(Ext.B1), read as a whole leads to the only conclusion that the wife and children of Narayanan Govindan -- Party No. 4 -- will have a right to enjoy the property, only along with Narayanan Govindan during his life. On the demise of Narayanan Govindan no right will survive or devolve to enable the wife and children of Narayanan Govindan to enjoy or claim possession of the property (Items 14 to 22). Deceased Velayudhan was a Marumakkathayi. By Ext.A1(Ext.B1) Will he was bequeathing his properties to his Seshakkars. He gave absolute rights only to his Sashakkari and her female children parties 3, 5 and 6. He also gave the residue of the properties allotted to parties Nos. 1, 2 and 4 for their life, to Sashakkari (Party No. 3) and her female children (parties 5 and 6). That the wife and children of Govindan will not get any right to the properties after his demise has been high-lighted in the subsequent portion of Clause 17. Incidentally, we may refer to Ext.B3. A perusal of Ext.B3 dated 30-11-1976 shows that after Govindan's demise his son-in-law filed a petition before the Land Tribunal claiming tenancy right, regarding a portion of the property given to Narayanan Govindan --Items 14 to 22 -- for enjoyment. The Ist plaintiff in this suit, wife of Narayanan Govindan, was the Ist respondent therein.She did not claim possession of the property with her. She was ex parte in the said proceeding. The Land Tribunal held that Narayanan Govindan had no right to make a demise of the property. The Courts below, on the basis of Clause 17 of Ext.A1 (Ext.B1), found that since the plaintiffs were residing with Narayanan Govindan they must be presumed to have been in possession on Govindan's death. The possession of the plaintiffs was based on Ext.A1 (Ext. B1) document. The continuance of the plaintiffs' possession of the property, after the demise of Narayanan Govindan, in pursuance to their earlier residence along with him, cannot be pressed into service. The sole question is as to whether the plaintiffs have got a right to enjoy or to be in possession as per Ext.A1 (Ext.B1) Will. Both sides admitted in the trial Court that the question of possession will depend solely on Ext.A1(Ext.B1) Will. That was the simple factor considered by the Courts below. The Courts below held that the plaintiffs have such a right based on Ext.A1 (Ext.B1) Will. As stated already, a reasonable and fair reading of Ext.A1 (Ext.B1) document as a whole, negatives the right of the plaintiffs to enjoy or to possess the properties (Items 14 to 22) after the demise of Narayanan Govindan. In this view of the matter, the Courts below erred in holding that the plaintiffs have a right to be in possession and enjoyment of the same after the demise of Govindan and that they are in possession of the plaint items and in restraining the defendants by the grant of a permanent injunction from disturbing the plaintiffs' possession and enjoyment.
6. The judgment and decree of the Courts below are set aside. The Second Appeal is allowed. The suit is dismissed. There shall be no order as to costs.