P.K. Vasu and Others vs Leela and Kunchappan

Thottathil B. Radhakrishnan, J

The first plaintiff in a suit for partition and separate possession is the appellant. It is submitted that the whereabouts of the second plaintiff is not known and that is why he also did not join the appeal. Kuppandy died on 6.2.1993 leaving behind his children, namely, the two plaintiffs and the three defendants. Just five months after the death of Kuppandy, the two plaintiffs filed the suit from which this appeal arises. The defendants propounded Ext.B4 Will whereby Kuppandy was shown to have bequeathed his assets in different proportions to his children, including the plaintiffs. In answer to that, the plaintiffs set up a case that during the life time of Kuppandy, the first plaintiff filed O.S No.245 of 1985 and on 30.6.1987, an application was filed under Order 23 Rule 3 in that suit reporting that Kuppandy, the first defendant therein agreed that his assets would be dealt with only after his life time and that it would be shared equally by his children. The court below repelled that contention. It upheld the Will propounded by the defendants. It did not find that Ext.A1 petition filed under Order 23 Rule 3 of the CPC in OS No. 245/1985 was decisive, either as a compromise, or as one amounting to revocation of Ext.B4 Will in terms of Section 70 under the Indian Succession Act.

The learned counsel for the appellant pointedly argued that even if Ext.B4 Will is to be treated as eligible to be upheld in the light of the testimony of the attestor, Ext.A1, the so called compromise petition in OS No. 245/1985 ought to be treated as one which has resulted in supersession of Ext.B4 Will. It is argued that Ext.A1 amounts to cancellation of Ext.B4 Will. Support in this regard is drawn from the contents of Section 70 of the Succession Act.

For one thing, Ext.B4 Will propounded by the defendants has been upheld by the court below. The Will of Kuppandy was propounded by the defendants in answer to the suit for partition. The existence of transferable interest in Kuppandy at the point of time of that Will is not in dispute. If that were so, the plaint claim could not have been sustained on the face of Ext.B4 Will without seeking a declaration as to the void or voidable nature of Ext.B3 Will on any ground available in law.

That apart, we have given anxious consideration to the different aspects of Exts. A2 and A5. The first plaintiff P.K Vasu herein was the sole plaintiff in that suit. There were five defendants, including Kuppandy. However, Ext.A1 is signed only by the plaintiff and second defendant and the left thumb impression of Kuppandy is also affixed. It is attested by the Advocate of the plaintiff and the Advocate for the defendants. Defendants 3 to 5 have not joined that compromise. The request in Ext.A2 was to dismiss the suit. Examining the contents of that, we do not find any bequest therein. We are unable to treat it as one amounting to the cancellation of Ext.B3 Will which was executed earlier in point of time. We say this because, Kuppandy makes no reference to that Will in Ext.A2. Principles governing interpretation and construction of deeds and documents and also manner in which pleadings have to be construed, do not advise us to treat Ext.A2 which is only an application under Order 23 Rule 3 before the civil court as containing a conscious exercise by Kuppandy to cancel Ext.B3 Will. We would recall that the exercise of execution of Will by a testator involves the mental element, including the decision making process, whereby the testator decides and carries out the process of making the bequest. As a necessary corollary, when such a bequest is admitted to be shown as cancelled by a subsequent exercise, including by something in writing, not amounting to Will, we have to decipher a conscious exercise by the maker to recall the bequest made by him. The solemn function of the courts in dealing with testamentary matters will be ultimately to search for the intention of the testator as surfacing out of the materials and the totality of the facts and circumstances. Looking at Ext.A1, we do not find our way to hold that Kuppandy ever intended to revoke Ext.B3 by putting his left thumb impression on Ext.A1 compromise petition in OS No. 245 of 1985.

The learned counsel for the appellant very persuasively pointed out that on equitable consideration, it can be seen that his client, the first plaintiff has not got any share under Ext.B3 Will at par with the bequest made in favour of his siblings, more particularly the 3rd defendant. We have looked into that aspect also. We see from the pleadings of the plaintiffs that the first plaintiff, the appellant before us, was a PWD contractor. He sued his father and siblings during the life time of his father on the premise that it is by utilising his earnings as PWD contractor that the acquisition, including the building, in the name of his father, was made. He therefore, then wanted a declaration as to his exclusive rights to that holding. This is the history that led to the institution of OS No. 245/1985 by him. The father faced that litigation. On 30.6.1987, the compromise petition was filed. He died on 6.2.1993. Hardly five months thereafter, the present suit is filed. The fine pendulum of equity shys away from swinging anywhere towards the interest of the first plaintiff, for any equitable relief as projected before us. On all counts this appeal fails.

In the result, this appeal is dismissed. No costs, only because parties are siblings.