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 2 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.

          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
2
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
3
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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