Skip to content


Janaki Amma and ors. Vs. Raveendra Menon and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 121 of 1976 and 88 of 1977
Judge
Reported inAIR1981Ker205
ActsContract Act, 1872 - Sections 17; Travancore Nayar Act, 1100 - Sections 22; Hindu Law; Succession Act, 1925 - Sections 111
AppellantJanaki Amma and ors.
RespondentRaveendra Menon and ors.
Appellant Advocate M.K. Narayana Menon, Adv.
Respondent Advocate S. Venkitarajan and; V. Harihara Iyer, Advs.
Cases ReferredNarayanan v. Commr. of Income
Excerpt:
family - partition - section 17 of contract act, 1872, section 22 of travancore nayar act, 1100, hindu law and section 111 of succession act, 1925 - property devolved upon mother of plaintiff by will under 'marumakkathayam' law - plaintiff challenged assignment of properties in favour of his siblings born subsequent to devolution of properties - documents on record and fact that partition deed executed in 1962 disproves plaintiff's contention that he came to know about alleged partition deed only in 1970 - suit instituted in 1970 thereby barred by limitation - contentions raised under act of 1925 inapplicable to matters related to travancore area - held, time barred suit not maintainable. - - b7). as per this will kunchi amma, the mother of the first defendant and tha first defendant.....balakrishna menon, j.1. a. s. no. 121 of 197g is against o. s. no. 90 of 1970 and a. s. no. 88 of 1977 is against o. s. no. 123 of 1971 on the file of the sub court, ernakulam. both the suits were jointly tried and there is a common judgment by the lower court o. s. no. 90 of 1970 is treated as the main suit and evidence was led in that suit. defendants 3 and 4 in o. s. no. 90 of 1970 are the appellants in a. s. no. 121 of 1976. the suit is to set aside a document of partition marked as ext a1 dated 23-4-1962 executed by the plaintiff and defendants 1 to 4 on the ground of fraud, and for a fresh partition of the suit property. the 1st defendant is the mother of the plaintiff and defendants 2 to 4. the plaintiff and tha 2nd defendant are the sons of the 1st defendant in her first husband.....
Judgment:

Balakrishna Menon, J.

1. A. S. No. 121 of 197G is against O. S. No. 90 of 1970 and A. S. No. 88 of 1977 is against O. S. No. 123 of 1971 on the file of the Sub Court, Ernakulam. Both the suits were jointly tried and there is a common judgment by the lower court O. S. No. 90 of 1970 is treated as the main suit and evidence was led in that suit. Defendants 3 and 4 in O. S. No. 90 of 1970 are the appellants in A. S. No. 121 of 1976. The suit is to set aside a document of partition marked as Ext A1 dated 23-4-1962 executed by the plaintiff and defendants 1 to 4 on the ground of fraud, and for a fresh partition of the suit property. The 1st defendant is the mother of the plaintiff and defendants 2 to 4. The plaintiff and tha 2nd defendant are the sons of the 1st defendant in her first husband Narayana Menon. Defendants 3 and 4 are the children of the 1st defendant in her second husband Krishna Pillai. The suit property belonged to one Govinda Panicker, a step-brother of the first defendant. He executed a will Ext. B7 on 21-4-1117. (Ext. A2 is a registration copy of Ext. B7). As per this will Kunchi Amma, the mother of the first defendant and tha first defendant were to enjoy the property and take its income during tha lifetime of Kunchi Amma and on her death the property was to devolve on the first defendant and her child-ren. Govinda Panicker died on 25-4-1117 and Kunchi Amma, the mother of the first defendant, died on 5-5-1118. Hence according to the terms of the will the property devolved on the first defendant and her children on the death of Kunchi Amma on 5-5-1118. It is admitted by both parties that the plaintiff and the second defendant were the only children of the first defendant alive at the time of the death of Govinda Panicker and Kunchi Amma. Defendants 3 and 4 are children born to the first defendant after the death of Govinda Panicker and Kunchi Amma.

2. The total extent of the property bequeathed as per Ext. B7 was 1.40 acres, out of which 44 1/2 cents were acquired by the Government for the purpose of the National Highway. On the basis that the property belongs to the plaintiff and defendants 1 to 4, the plaintiff received a l/5th share of the compensation awarded by the Land Acquisition Officer as per Ext. A10 Award. Ext. B8 dated 12-3-1962 is the receipt passed by the plaintiff for having received the l/5th share of compensation for the land acquired. There was a reference as per Ext. A5 for enhancement of compensation to the Sub Court, Erna-kulam. Compensation was enhanced as per the decree in L. A. No. Ill of 1963. The plaintiff received a l/5th share of the enhanced compensation also and passed Ext. B9 receipt on 9-4-1969. Defendants 3 and 4 were minors on the date of Ext. A10 award. Their 2/5th share of compensation was received on the execution of a security bond Ext. B6 dated 24-3-1962 by the plaintiff and defendants 1 and 2. Ext. B6 specifically states that the property is the subject of bequest as per Ext. B7 will of Govinda Panicker and on the death of Govinda Panicker and Kunchi Amma the property devolved on the plaintiff and defendants 1 to 4 in absolute rights. The document authorises the first defendant to receive the 2/5lh share of compensation due to the minors, defendants 3 and 4, on the security of the 3/5th undivided share of the plaintiff and defendants 1 and 2 in the remaining 95 1/2 cents of property. Thereafter Ext. A1 partition is entered into by the plaintiff and defendants 1 to 4, as per which the plaintiff is allotted 1-7 cents of land towards his 1/5th share in the property. Ext. Al also recites the devolution of the property on the plaintiff and defendants 1 to 4 as per Ext. B7 will of Govinda Panicker. As per this document the plaintiff is given his 1/5th share as per the second schedule and the remaining extent of the property is allotted to the Sakha of defendants 1 to 4 as per the first schedule to the document Ext. Al. It is admitted that the plaintiff obtained separate possession of the 17 cents of land allotted to him as per the partition. He assigned a portion of the property, a little over 6 cents in extent, to a stranger as per Ext. B11 dated 26-3-1968. This document recites the partition deed Ext. A1, as per which the plaintiff obtained title and possession of the property which is the subject of sale under Ext. Bll. Defendants 1 to 4 had already assigned an extent of 10 cents of land out of the 78 1/2 cents of land allotted to them as per Ext. Al to the assignee under Ext. B11 as per Ext. B12 sale deed dated 16-8-1965. The defendants also assigned 4 cents of land each to two kudikidappukars in the property as per Exts. B21 and B22 dated 21-7-1970. It is after all these transactions had taken place that the plaintiff filed the present suit to set aside Ext. Al partition and for a decree for partition of the property which is the subject-matter of bequest under Ext. B7 will. The present suit is filed on 3-9-1970, more than eight years after Ext. Al partition. According to the plaintiff, defendants 3 and 4 who were not born on the date of death of Kunchi Amma, had no right in the property, that the plaintiff was not aware of the terms of the will Ext. B7 that defendants 1 and 2 had fraudulently represented to the plaintiff that defendants 3 and 4 are also entitled to the property which is the subject of bequest under Ext. B7 that the plaintiff believed in the representation of his mother and brother, that it is on the basis of the said representation that he executed the partition deed Ext. A1, and that he came to know about the fraud only in July-August, 1970 when the second defendant had made a demand to the first defendant for partition of a half share in the property jointly allotted to defendants 1 to 4 as per Ext. Al partition. The suit is contested by defendants 1, 3 and 4, The second defendant supports the plaintiff. The first defendant had as per Ext. B27 sale deed dated 1-9-1970 assigned her 1/4th share in the property allotted to the group of defendants 1 to 4 as per Ext. Al to defendants 3 and 4. The contesting defendants deny the allegation of fraud. According to them, as per the will Ext. B7 the property devolved on the tavazhi of the first defendant and her children in accordance with Maru-makkathayam law and that defendants 3 and 4, even though born subsequently, are also entitled to an equal share in the property as any other member of the family, that the property was treated as tavazhi property, the allotment as per Ext. Al itself was to the Sakha of defendants 1 to 4, that the parties understood the bequest as per Ext. B7 as in favour of the tavazhi of the first defendant and her descendants, that the plaintiff was fully aware of the terms of the will and he had executed Ext. Al partition in full awareness of the rights of parties in the suit property, that he has also received his share of compensation in respect of a portion of the property acquired by the Government and that he had also received his share of the enhanced compensation awarded by the Sub Court, Ernakulam in L. A. No. 111 of 1963. The various other transactions by the parties were also on the basis that the property devolved on the tavazhi of the first defendant and her children as per the will Ext. B7. The contesting defendants also deny the plaint allegation that the plaintiff came to know about the terms of the will only in 1970 and contend that the suit is barred by limitationp.

3. The assignees of portions of the property as per Exts. B11, B12, B21 and B22 are not parties to the suit. The plaintiff however requires the 17 cents of land allotted to him as per Ext. A1 partition to be included in the 1/3rd share that may be allotted to him after setting aside Ext. Al partition so that it is not necessary to implead the assignees under the various documents aforesaid.

4. The court below has found that the property as per the will Ext. B7 devolved only on the plaintiff and defendants 1 and 2 and that defendants 3 and 4 are not entitled to any share in the same. It is also found that the document Ext. Al was executed by the plaintiff on account of fraud in concealing the fact that defendants 3 and 4 are not entitled to any share in the property . and that the partition deed and the land acquisition proceedings will not stand in the way of the plaintiff from claiming his l/3rd share in the property in view of the fact that he came to know about the terms of the will only in July, 1970. On these findings a preliminary decree is passed for partition of 1/3rd share in the plaint schedule property and for allotment of the same to the plaintiff. There is also a direction for inclusion of the 17 cents allotted to the plaintiff as per Ext. Al towards his share of fresh partition. He is also held entitled to a sum of Rs. 3,000/- with interest at 6% from the date of suit to make up his one-third share of the compensation in respect of the land acquired by the Government. The court below set aside Ext. Al partition deed on the finding that it was executed by the plaintiff on account of the fraud practised by the first defendant in concealing the fact that defendants 3 and 4 are not entitled to any share in the property. The second defendant is held entitled to his one-third share and the one-third share due to the first defendant is directed to be allotted to defendants 3 and 4 by virtue of Ext. B27 assignment by the first defendant to defendants 3 and 4.

5. The connected suit O. S. No. 123 of 1971 is by defendants 1, 3 and 4 in O. S. No. 90 of 1970. The second defendant in O. S. No. 90 of 1970 is the sole defendant in O. S. No. 123 of 1971. This suit is for partition of the property allotted to the Sakha of defendants 1 to 4 as per Ext. Al partition excluding the portions assigned as per Exts. B12, B21 and B22. The plaintiffs claim a reservation of the house in the property, as constructed with their share of compensation for a portion of the land acquired and also their share of the price received for Ext. B12 assignment. According to the plaintiffs the total amount received by way of compensation for the land acquired and as consideration for Ext. B12 was Rupees 29,708.44 and after defraying the expenses for conducting the cases of kudikidappukars and for paying them off, the balance amount available was Rs. 28,600.44. The defendant had received his one-fourth share Rs. 7,150/-the house was constructed with the plaintiff's three-fourth share of the amount aforesaid and hence they are entitled to a reservation of the house. The defendant in his written statement contended that the property, which is the subject-matter of bequest as per Ext B7, devolved only on the 3rd plaintiff and her two sons, namely, the defendant and the plaintiff in the connected suit O. S. No. 90 of 1970 that plaintiffs 1 and 2 are not entitled to any share, and that he is entitled to a one-third share in the property which is the subject-matter of bequest as per Ext. B7. According to him all amounts received by him had been spent for the common benefit and that the plaintiffs are not entitled to a reservation of the house in the property constructed with the amounts received as consideration for the sale deed Ext. B12 and as compensation for a portion of the land acquired. This suit was tried along with O. S. No. 90 of 1970 and the lower court has passed a decree for partition of the property in O. S. No. 90 of 1970 into three shares and for allotment of one share to the plaintiff therein, another share to the defendant in O. S. No. 123 of 1971 who is the second defendant in the main suit and for allotment of the remaining one-third share to plaintiffs 1 and 2 in O. S. No. 123 of 1971 who are defendants 3 and 4 in O. S. No. 90 of 1973. The claim of the plaintiffs in O. S. No. 123 of 1971 for reservation of the house and other structures in their favour was negatived. Accounts between defendants 1 and 2 in O. S. No. 90 of 1970 were directed to be settled in the final decree proceedings. It is against the decrees in the two suits that the above appeals have been filed by defendants 1, 3 and 4 in O. S. No. 90 of 1970 who are the plaintiffs in O. S. No. 123/1971.

6. As earlier stated O. S. No. 90 of 1970 was taken as the main suit and evidence was led in that suit. The parties in O. S. No. 123 of 1971 are also parties in O. S. No. 90 of 1970. The parties in these appeals are hence referred to in this judgment according to their respective ranks in O. S. No. 90 of 1970.

7. The plaintiff's claim for relief of cancellation of Ext. A1 partition and for a fresh partition of the property obtained under the will Ext. B7 depends upon pi-oof of fraud alleged in the plaint. The fraud alleged is that defendants 1 and 2 had concealed the fact that defendants 3 and 4 will have no rights under the will Ext. B7 for the reason that they are children born to the first defendant after Ext. B7 had taken effect on the , death of the testator, Govinda Pillai and the life estate holder Kunchi Amma. The fraud alleged is denied by the contesting defendants. According to them, the property devolved on the tavazhi of the first defendant and her children, as per the terms of the will Ext. B7 and the same was treated as tavazhi property. They deny having made any representation to the plaintiff that defendants 3 and 4 are also entitled to the property as according to them the parties to Ext. A1 understood the will as a bequest to the tavazhi of the first defendant and her children. In his deposition as P. W. 1 the plaintiff has stated that the mother, the first defendant had represented to him that the devolution of property as per Ex. B7 will is on herself and all her children. According to him, he had not perused the will at the time when Ext. Al partition was executed-He admits that he made no enquiries as to whether the recitals in Ext. Al relating to the devolution of property under the will Ex. B7 are correct or not. According to his evidence it was the mother who made the representation that her afterborn children are also entitled to the property under the will. In the plaint his case is that it is on account of the fraud of defendants 1 and 2 that he happened to execute Ext. Al partition. The 1st defendant examined as D. W. 2 has deposed that she made no representation either to the plaintiff or to the 2nd defendant as to their rights in the property. There was also no discussion among the plaintiff and defendants 1 and 2 in regard to the terms of Ex. B7.

8. Issue 5 in the suit relates to the fraud alleged by the plaintiff. This issue is answered by the learned Subordinate Judge in paragraph 13 of the judgment as follows :--

'13. As the mother has concealed the fact that the defendants 3 and 4 are not entitled to any share in the properties, I find that the document is executed as fraudulently and dishonestly as represented by the plaintiff,'

9. From the evidence in the case discussed above, it is not possible to arrive at a finding of fraud in the matter of execution of Ext. Al partition-deed. In the decision in Union of India v. Chatur-bhai N. Patel & Co. (AIR 1976 SC 712) the Supreme Court has stated at paragraph 7 as follows:

'It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasona-ble doubt; per Lord Atkin in A. L. N. Narayanan Chettyar v. Official Assignee, High Court Rangoon, AIR 1941 PC 93. However suspicious may be the circumstances, however strange the coincidence and however grave the doubts, suspicion alone can never take the place of proof. In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction'. The plaintiff derived title to the property by virtue of Ex. B7 will. Ext. B7 will is specifically referred to in the docu-ment of partition Ext. Al. The plain-tiff cannot be believed when he says that he did not know the contents of the will at the time when he executed Ext. Al partition. Nor did the defen-dants have a duty to the plaintiff to disclose the contents of the will. It should be presumed to be available for his perusal at the time when he executed Ext. Al partition. Ext. B6 security bond executed by the plaintiff and defendants 1 and 2 refers to the will Ext. B7, This document also shows that the parties understood the will as conferring title on the plaintiff and defendants 1 to 4. The partition deed is executed a month after Ext. B6. As per Ext. B8 receipt passed by the plaintiff he took his one-fifth share of the compensation awarded for a portion of the land acquired as per Ext. A10 award of the Land Acquisition Officer, Similarly, the plaintiff took his one-fifth share of the enhanced compensation as per Ext. B9 receipt. The partition deed Ext. A1 makes mention of the pendency of the land acquisition reference case. The 1st defendant is authorised to prosecute the same, receive the compensation that may be enhanced by the reference Court and after deducting the expenses for conducting the case pay the plaintiff his one-fifth share in the enhanced compensation. It is in pursuance to thai provision in Ext. Al that the plaintiff was paid his one-fifth share of the enhanced compensation, as per Ext. B9, receipt executed by him. Ext. B9 receipt also specifically refers to the partition deed Ext, Al as per the terms of which the plaintiff is entitled to one-fifth share of the enhanced compensation. Accepting the partition Ext. Al, the plaintiff has assigned a portion of the property to a stranger as per Ext. Bll sale deed dated 26-3-1968.

10. In the light of the documents executed by the plaintiff accepting the will as bequeathing the property to the plaintiff and defendants 1 to 4, it is futile for the plaintiff to contend that Ex. Al partition was entered into on account of the fraud of the 1st defendant in suppressing the contents of the will Ext. B7. Ext. B7 will itself makes a bequest of the property to the 1st defendant and her children. Defendants 3 and 4 are also the children of the 1st defendant, even though born after the death of the testator. It is not possible to accept the plaintiffs' case of fraud when the evidence in the case clearly shows that the parties including the plaintiff accepted the will on its terms, as a bequest to the 1st defendant and all her children. The finding of the lower Court that the plaintiff executed Ext. Al on account of the fraud by the 1st defendant in concealing the fact that defendants 3 and 4 are not entitled to any share in the property, cannot be sustained. We hold that the plaintiff has not proved fraud in the matter of execution of Ext. Al partition.

11. The learned counsel for the appellants has relied on the decisions of this Court in Janamma Pillai v. State of Kerala (1974 Ker LT 750) : (AIR 1975 Ker 35) (FB). Lekshmi Court v. Lekshmi Narayani (1958 Ker LT 310) and Seetha v. Krishnan (1975 Ker LT 156) : (AIR 1975 Ker 70) (FB) in support of his contention that the bequest under the Will Ext. B7 was to the tavazhi of the 1st defendant and her children. The learned Counsel for the plaintiff-Ist respondent, relies on the decision in Par-vathi Amma Kalliani Amma v. Padma-nabha Pillai Krishna Pillai (1956 Ker LT 803): (AIR 1957 Trav-Co 77) (FB); Siva-subramonia Pillai Thiruvadinatha Pillai v. Kalliani Amma Savithrikutty Amma (1957 Ker LT 765); Arumughom Pillai v. Janardhana Panicker (1959 Ker LT 1002) and Parmes waran Pillai Gopinathan Pillai v. Steela Phenes (1967 Ker LT 364) to contend that the Will Ext. B7 that took effect after the Travancore Nayar Act of 1100 had come into force is governed by the provisions of Section 22 of the said Act, even though the bequest is not by the father or husband but by a near relation of the 1st defendant. Reliance is particularly placed on the Full Bench decision in 1956 Ker LT 803 : (AIR 1957 Trav-Co 77) wherein it is held as follows :--

'3. Learned Counsel for the appellants urged that the common law in the Travancore jurisdiction governing Maru-makkathayees was well settled, that a gift by a husband to the wife or by the father to his children or any of them known as Makkathayam gifts, was presumed to be for the benefit of the sub-tarwad of his wife and children and that this principle had been extended to gifts by near relations as brother, mother or paternal uncle. The change was first brought about by Section 17 of the Nair Act of 1088 to be later affirmed by the Nair Act of 1100 that so far as Makkathayam gifts made after 1088 were concerned, the presumption was to be one of equality of right between the mother and all the children with the principle of partibility attached. According to learned Counsel, this change must be confined to gifts by husband or father and should not be extended to gifts by other near relations e. g. the paternal uncle and his tarwad as here, in regard to which the customary law had attached the incident of tarwad character. He referred to Section 44 (a) of the Nair Act of 1100 which saved 'the existing rules of Marumakkathayam law, custom, or usage, except to the extent hereinafter expressly provided for'. Learned Counsel for the respondents contended that the principle of tarwad character as applied to Makkathayam gifts by husband or father to wife or children, had not been extended to gifts by paternal uncle who was only in the position of a stranger and that even assuming such extension, there was no question here of the ascertainment or applicability of a custom or usage within the meaning of Section 44 (a) of the Nair Act. The matter was merely one of construction in respect of which the legislature should be deemed to have given a sure guidance for the future i. e., by emphasis of the aspect of a tenancy in common as contrasted with a tarwad character of the gift.'

12. Section 22 (1) of the Travancore Nayar Act is extracted below:

'22. (1) Property acquired by gift or bequest by the wife or widow or child or children from the husband or father, as the case may be, after Regulation I of 1088 came into force, shall, unless a contrary in-' tention is expressed in the instrument of gift or bequest, if any, belong to the wife or widow and each of the children in equal shares.'

It has been held in the decisions reported in 1959 Ker LT 1002; 1957 Ker LT 765 and 1967 Ker LT 364, that under a gift or bequest falling under Section 22 of the Act, the property devolves in tenancy in common on the donee or legatee and her children in existence at the time when the gift or Will took effect. The Full Bench decision in 1956 Ker LT 803 : (AIR 1957 Trav-Co 77) holds that Section 22 applies also to Wills and gifts executed by near relations apart from the husband or father. It is on the basis of these decisions, it is contended by the learned Counsel for the plaintiff that the Will Ext, B7 is not a bequest to the tavazhi of the 1st defendant and her children, but should be construed as a bequest that took effect in favour of the plaintiff and defendants 1 and 2 alone. Section 22 itself states that the mode of devolution provided for in the section is 'unless a contrary intention is expressed in the instrument of gift or bequest'. Ext. B7 Will on its terms is a bequest to the 1st defendant and her children (Original in Malayalam omitted.-- Ed.) This was a document capable of two interpretations either as a bequest in favour of the 1st defendant and her children existing at the time when the Will took effect, or on the expression (Original in Malayatam omitted. -- Ed.) as referring to a contrary intention expressed in the document, whereby the bequest is according to the ordinary notions of Marumakkathayam Law to the tavazhi of the 1st defendant and her descendants. Property acquired by gift or bequest from father or husband before Regulation I of 1088 came into force is tarwad property according to Section 41 of the Travancore Nayar Act. That was the law prior to the introduction of Section 22 of the Nayar Act is clear from the decision of the Full Bench in 1974 Ker LT 750: (AIR 1975 Ker 35). This is also the rule of customary Marumakkathayam Law applicable to the Malabar area prior to the introduction of the Madras Marumakkathayam Act -- vide the decision of the Full Bench in 1975 Ker LT 156 : (AIR 1975 Ker 70). It is thus clear that but for the statutory change effected by Sec-tion 22 of the Travancore Nayar Act, the bequest Ext. B7 can only be construed as a gift in favour of the tavazhi of the 1st defendant and her descendants. Section 22 on its terms applies only to gift or bequest by husband or father. The Section is also subject to the exception of a contrary intention expressed in the document. The parties in execut-ing Ext. Al partition deed and the other documents referred to earlier have accepted the inter-pretation that it is a bequest to the tavazhi of the 1st defendant and her children each being entitled to a one-fifth share on the date of Ex. Al partition. The parties are bound by the document Ext. Al executed by them and there is no valid ground made out to set aside or cancel the same.

13. In the decision of the Federal Court in Ratneswari Nandan Singh v. Bhagwati Saran Singh (AIR 1950 FC 142) Mahajan J. (as he then was) stated at page 165 as follows :

'.....It was argued that a partition made on an erroneous assumption as to what the law was, was not binding on the person who was acting under that assumption and could be reopened by him or his heirs, I am unable to subscribe to this proposition. It seems to me that there is neither any provision of statutory law nor any principle of equity which furnishes a cause of action to a person who enters into an arrangement as to partition of family property with the other coparcener on an erroenous impression of law for getting rid of that arrangement. It was conceded that if such a partition was effected by a decree of Court, it would conclusively establish the title between the parties to it. It was, however, contended that the rule applicable to decrees cannot be extended to cases of contracts or partitions made outside Court, it is true that a decree stands on a different footing than an arrangement or contract privately entered into between the parties but it is well settled that such an arrangement or contract can only be re-opened on the ground of fraud, undue influence, coercion or mutual mistake of fact. A mistaken view if law is no ground for granting relief to any of the parties as its ignorance furnishes no legal excuse to any person'.

Even if therefore the parties made a mistake in construing the will Ext. B7 as a bequest to the 1st defendant and all her children constituting a tavazhi it is only a mistake of law and such a mistake is not a ground to cancel the document of partition and grant a decree for partition of the property afresh on the basis that the bequest enures only to the benefit of the plaintiff and defendants 1 & 2.

14. According to the plaintiff, he came to know about the contents of the will Ext. B7 only in 1970 and the suit filed on 3-9-1970, is well within time. The court below has accepted the plaintiff's case that he came to know about the contents of the will only in 1970 and that court has held that the partition Ext. Al is liable to be set aside. The plaintiff is a party to Ext. Al partition. He is executant No. 3 in Ex. Al. He is also a party to Ex. B6 the security bond executed by the plaintiff and defendants 1 and 2 for receipt of the share of compensation due to defendants 3 and 4 who were minors at that time. The plaintiff is the third executant also in Ext. B6. Both these documents are of the year 1962. These documents specifically refer to the Will Ext. B7 as per the terms of which the parties derive title to the suit property. In the light of these documents, it is not possible to accept the plaintiff's case that he came to know about the contents of the Will only in the year 1970. The finding of the lower Court that the plaintiff knew about the contents of the Will only in 1970, is unsustainable and cannot be accepted. The partition as per Ext. Al was on 23-4-62. The present suit filed on 3-9-1970 to cancel the document is clearly barred under Article 50 of the Limitation Act 1963.

15. One other contention raised on behalf of the plaintiff and upheld by the lower Court is that the bequest under Ext. B7 is to a class of persons within the meaning of Section 111 of the Indian Succession Act and the property bequeathed shall go only to such of them as are alive when the bequest took effect This contention also cannot be accepted. For the one thing, the Indian Succession Act itself was not applicable to the erstwhile Travancore area where the property is situated on the date the bequest took effect. Even if the principles of Section 111 of the Indian Succession Act is to be held applicable the bequest in favour of the 1st defendant and her children (Original in Malayalam omitted--Ed.) is not a bequest to a class of persons within the meaning of Section 111 of the Act. If the bequest had been only to the children of the 1st defendant as a class, it may be a case that would fall under Illustration 6 of Section 111 of the Succession Act. Here the bequest is to the 1st defendant and her children. It cannot therefore be said, that Ext. B7 is a bequest to a class of persons within the meaning of Section 111 of the Indian Succession Act.

16. Reliance is placed on the decision in Narayanan v. Commr. of Income-tax. Madras (AIR 1967 SC 433) where in paragraph 4 it is held as follows :--

'4. Ordinarily the Will of a testator speaks on the date of his death. If a bequest is made to a class of persons, then the thing bequeathed by the operation of Section 111 of the Indian Succession Act, 1925, goes only to persons belonging to that class as are alive at the testator's death. But to this rule there is an exception that if property is bequeathed to a class of persons and such class is described as standing in a particular degree of relationship to a specified individual and the possession of the legatees is deferred until some time after the death of the testator because of a prior bequest or otherwise, the legacy shall be taken by such persons belonging to the class as are alive at the date to which the possession is deferred and to the representatives of any of them who have died since the death of the testator'.

The bequest in that case was to the grandchildren of the testator who belonged to a particular class and Section 111 of the Indian Succession Act squarely applied to the facts of that case. In the present case, the bequest is not to any class of persons but to the 1st defendant and her children, and Section 111 cannot apply to the bequest in the present case. Even assuming that Section 111 applies the partition deed Ext. Al was executed on account of a mistake of law and a mistake of law is not a ground to reopen a concluded partition. On the findings that we have come to above, the partition is also as a result of acceptance of a possible interpretation of the document by all the parties concerned, the plaintiff was fully aware of the contents of the Will even on the date of the partition and the present suit being clearly barred by limitation it is not open to him to raise a plea on the basis that it is a gift to a class of persons within the meaning of Section 111 of the Indian Succession Act.

17. The result is the decree of the Court below in O. S. No. 90 of 1970 cannot be sustained and in reversal of the same, the suit O. S. No. 90 Of 1970 is dismissed.

18. A. S. No. 88 of 1977 is against O. S. No. 123/1971 filed by defendants 1, 3 and 4 in O. S. 90/70 for partition against the 2nd defendant in respect of the property allotted to them as per Ext. Al partition. On the basis of the o:ecree passed by the lower Court in O. S. No. 90/70 that Court has passed a decree for partition of a one-third share in favour of the 2nd defendant with respect to the property which is the subject of bequest under Ext. B7 Will. For the reasons already stated that decree cannot be sustained. The partition Ext. Al is valid and binding on all the parties to the document. The plaintiffs in O. S. No. 123/71 are entitled to three out of four shares in the property in that suit and the defendant therein is entitled to one out of four shares.

19. The 1st defendant in O. S. 90/70 who is the 3rd plaintiff in O. S. 123/71 has assigned her share to defendants 3 and 4 namely plaintiffs 1 and 2 in O. S. 123/71 as per Ext. B27. Plaintiffs 1 and 2 in O. S. 123/71 are therefore entitled to three out of four shares in the property scheduled to the plaint in O. S. 123/71. They have a claim for reservation of the house in the plaint schedule property. This reservation is not allowed by the Court below and it is held that the house in the property is liable to be divided among the sharers. There is a direction in the preliminary decree for settlement of accounts between defendants 1 and 2 in the final decree proceedings. The case of the plaintiffs in O. S. 123/71 for reservation is set out iaparagraphs 2 to 5 of the plaint, that out of the total amount received by the parties to the suit, by way of compensation for a portion of the land acquired and by sale of a portion of the property as per Ext. B12, the defendant had been paid his 1/4 share. According to the plaintiffs, the house was constructed with the amount that fell to their share out of the total amount received as aforesaid and hence they are entitled to a reservation of the house in the suit property. There is no dispute that after meeting the expenses of certain litigations with the kudikidappukars and for payment to them the total amount available with the parties to the suit O. S. 123/71 was only Rs. 28,600.44 Ps. The 2nd defendant admits having received Rs. 7,150/- from out of this amount which will cover his one-fourth share. But he has a further case that the amount received was spent for common purposes. There is evidence in the case to show that a sum of Rs. 2,000/- was paid back to the mother, the 1st defendant. The construction of the house was admittedly made out of the funds received by sale of a portion of the property and also by way of compensation for a portion of the property acquired. There cannot be any doubt that it is a common fund even though the defendant had drawn some amounts from out of the common fund in respect of which he is liable to account. The house constructed out of the common funds belongs to the plaintiffs and the defendant in O. S. 123/71 and the plaintiffs are not entitled to any reservation in respect of the same. The defendant admits having received Rs. 7,150/- out of the common funds, but his case is that this amount was also utilised for common purposes of the family. As adverted to above there is evidence in the case to show that the defendant had paid back Rupees 2,000/- to the mother the 1st defendant. The 2nd defendant is liable to account for the amount received by him from the common funds. It is open to him to prove that those amounts were either paid back or spent for common purposes. The quantum of the 2nd defendant's liability in regard to the amount of Rs. 7150/- received by him is left for decision in the final decree proceedings. The decree in O. S. 123/71 of the court below is modified directing a partition of the property into four shares and allotment of three shares to the plaintiffs and one share to the defendant The defendant is also liable to account for the amounts received by him from out of the common funds.

20. In the result, A. S, No, 121 of 1976 is allowed and in reversal of the decree of the court below O. S. 90/70 is dismissed. A.S.No. 88 of 1977 is allowed in part and the decree in O. S. 123/71 is modified as aforesaid. The parties will bear their respective costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //