NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1206­1207 OF 2015

SIVASANKAR V.K.                                       ..Appellant Versus

V.K. SIVAN AND OTHERS                          ..Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

These appeals are presented by the unsuccessful Defendant

No. 3 against the concurrent findings given by the  Court of

Subordinate Judge, Kozikode in O.S. No. 203 of 1996 and the

High Court of Kerala in A.S. No. 1044 of 1998.   It is relevant to

note that the other defendants have accepted the judgment of the

Trial Court, which decreed the suit for partition of the suit

property, granting 1/3rd  share to the plaintiff, and consequently

did not file any appeal against the judgment. It was only

Defendant No. 3 who questioned the judgment of the Trial Court,

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and failed in the appeal. A review petition filed by him was also

dismissed.

2. The main issue involved in these appeals is the

interpretation of the terms of a Will (Exhibit B­1) executed by the

late Komappan in the year 1940 regarding the bequest of the suit

property, i.e., Item Nos. 1 and 2 of ‘Schedule A’ of the Will. Both

the Trial Court and the High Court have on interpretation of the

Will and considering the other material on record concluded that

the plaintiff is entitled to 1/3rd  share in the suit property

according to the terms of the Will.

3. On reading the Will in question, we find that specific

bequests have been made (except ‘Schedule A’) by Komappan in

favour of his sons, Choikutty and Peravakutty and his daughter

Perachikutty, as well as in favour of Komappan (Junior), son of

the late  Peravan, the  pre­deceased son of the testator,  and  in

favour of Smt. Thirumala, wife of Peravan. However, the testator

had not  bequeathed the property falling under  ‘Schedule  A’ in

favour  of the  aforementioned persons.  On the  other  hand, the

testator intended to keep the said property described in ‘Schedule

A’  in common, reserving with his wife the right to take income

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therefrom and with  all the legatees, the right to reside in the

house situated therein. It can  be  borne  out from  reading the

entire Will that after their lifetime the surviving male children of

said Choikutty, Peravakutty and Komappan (Junior), were to

manage and administer and get the property.  The  material

question which the court would have to decide in this matter is,

whether taking into account the document in question and all the

relevant facts into consideration it could be said that the donor

intended to confer the right  over the property  in  favour of the

legal representatives of the aforementioned three persons to the

extent of 1/3rd each. It is needless to observe that it is within the

power of the testator to decide whether he wants the property to

be held by the male members of the three branches, has to be

inferred from the language of the Will and attending

circumstances. In the instance case, it is abundantly clear from

all the attending circumstances, and the reading of the entire will,

that  the testator wished that  ‘Schedule A’  properties are  to be

enjoyed by the male children of the aforementioned three persons

to the extent of 1/3rd each.

4. In this view of the matter,  in our considered opinion, the

Trial Court as well as the High Court have rightly come to the

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conclusion that the plaintiff has got 1/3rd share in the properties

under ‘Schedule  A’ to  Exhibit  B­1  Will.  The  contention of the

appellant that the male children of Choikutty, Peravakutty and

Komappan (Junior) are entitled to equal shares cannot be

accepted. Hence, the appeals fail and stand dismissed.  

........................J.                                       (N.V. RAMANA)

........................J.                 (MOHAN M. SHANTANAGOUDAR)

New Delhi, November 02, 2018

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