V. Viswanath Kamath Vs V. Balakrishna Kamath (Kerala High Court)
The Kerala High Court decided together a Regular Second Appeal (RSA No. 835 of 2017) and a Regular First Appeal (RFA No. 122 of 2020), both arising from disputes among members of the Kamath family concerning ownership, possession, and partition of immovable property. The Regular Second Appeal arose from a suit seeking mandatory injunction directing the defendant to vacate the plaint ‘C’ schedule portion of a building and to execute documents relating to transfer of shares and debentures. The defendant had also raised a counterclaim regarding the shares and debentures. The trial court decreed both the suit and counterclaim, and the decree was affirmed in appeal. The second appeal was confined to the dispute regarding the plaint ‘C’ schedule. The Regular First Appeal arose from a subsequent suit filed by the defendant in the earlier suit seeking partition of the plaint ‘A’ schedule property, including the ‘C’ schedule. The trial court granted a preliminary decree for partition, which was challenged in appeal. Since both appeals involved the same property and rights asserted by the parties, they were heard together.
The property had originally been purchased under Ext.A1 sale deed in the names of H.V. Kamath and his wife Indira Bai. H.V. Kamath executed Ext.A4 Will, asserting absolute ownership over the property and bequeathing the plaint ‘A’ schedule property jointly to two of his sons while giving another son, the defendant, the plaint ‘B’ schedule property together with permission to continue his advocate’s office in the plaint ‘C’ schedule as long as he wished. The defendant contended that the Will created a life interest in his favour over the ‘C’ schedule and further claimed that since the property stood jointly in the names of his parents, his mother owned a half share which devolved equally upon the four children after her death, entitling him to seek partition. He also argued that the plaintiffs’ claim that the mother was merely a name lender was barred by the Prohibition of Benami Property Transactions Act, 1988.
The High Court rejected the contention based on the Benami Prohibition Act. It held that Section 2(9)(A)(b)(iii) specifically excludes property held in the name of a spouse from the definition of a benami transaction and, therefore, Ext.A1 was not a benami transaction attracting the prohibition under Section 3. The Court further examined Ext.A4 Will, Ext.B2 Will executed by the mother, and Ext.B9 Resolution executed by the legal heirs. It observed that the mother had not included the disputed property among her assets in Ext.B2 Will and had accepted the contents of Ext.A4 Will through subsequent conduct. The Court held that these circumstances established that the property had been purchased exclusively with the father’s funds and that the mother was only a name lender as stated in Ext.A4 Will.
The Court also relied upon the doctrine of election embodied in Chapter XXII of the Indian Succession Act. It held that the mother had accepted the benefits conferred upon her under Ext.A4 Will and therefore could not simultaneously assert rights inconsistent with the Will. Consequently, her legal representatives were likewise not entitled to claim that she retained co-ownership of the property.
On the issue of the defendant’s occupation of the plaint ‘C’ schedule, the Court found that Ext.A4 Will merely permitted him to maintain his advocate’s office there as long as he wished and required him thereafter to shift the office articles to the building bequeathed to him under the Will. It held that no life interest or proprietary interest had been created in his favour. Referring to the Commission Report (Ext.C1), the Court noted that the advocate’s office was no longer functioning and the premises were practically abandoned. Accordingly, it held that the permission granted under the Will had worked itself out and that the defendant was not entitled to continue in possession.
The Court further rejected the objection regarding maintainability of the suit for mandatory injunction. It observed that the defendant’s occupation had always remained permissive under the Will, that the plaintiffs’ title had never been disputed, and that notice terminating the permission had been issued before institution of the suit. Relying on the Supreme Court decision in Avtar Singh, it held that the suit, though framed as one for mandatory injunction, was in substance one for possession and was maintainable.
Answering the substantial questions of law accordingly, the High Court held that the plaint ‘A’ schedule property was not partible and that the plaintiffs were entitled to vacant possession of the plaint ‘C’ schedule. It dismissed RSA No. 835 of 2017, affirming the decree directing delivery of vacant possession, and allowed RFA No. 122 of 2020 by setting aside the preliminary decree for partition and dismissing the partition suit. The parties were directed to bear their respective costs.
Cases Discussed
•Sukhalal and Others v. Jacob and Another, 2020 (1) KHC 466
• Radhakrishnan v. P.K. Gopalakrishna Panicker (Kerala High Court), 2017 Supreme (Online) (KER) 8609
• Thangamani v. Ganesan (Madras High Court), 2014 SCC OnLine Mad 153
• Mary George v. Lilly (Kerala High Court), 2009 (1) KLT 265
• State of Kerala v. Babu (Kerala High Court), 2003 (2) KLT 526
• Alamelu Ammal v. Govindasamy Naicker, 2003 (2) MLJ 99
• Ayyakkannu Padayachi (Deceased) and others v. Boorasamy and another, 1998 (2) L.W 678
• Mehboob Sahab v. Syed Ismayil (Supreme Court), (1995) 3 SCC 693
• Avtar Singh, AIR 1985 SC 857
• C. Beepathuma and Others v. Velasari Shankaranarayana Kadambolithaya and Others (Supreme Court), AIR 1965 SC 241
• Bhanu Ram v. Baij Nath Singh (Supreme Court), AIR 1961 SC 1327
• Ramakottayya v. Viraraghavayya, ILR 52 Mad. 556 : AIR 1929 Mad. 502 (FB)
• Rangaswami Gounden v. Nachiappa Gounden, ILR 42 Mad 523 : AIR 1918 PC 196
• Kandasami Pillai v. Rangasami Nainar, 1912 (23) M.L.J. 301
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
RSA No.835 of 2017 arises from the decree and judgment in OS 202/2012 of the Principal Munsiff’s Court, Kochi, as affirmed in AS 25/2015 of the Subordinate Judge’s Court, Kochi. The suit is essentially one for mandatory injunction to vacate plaint ‘C’ schedule, which is a portion of the building in the ‘A’ schedule property, and for a mandatory injunction to execute documents necessary to effect transfer of the plaint ‘B’ schedule shares, debentures, etc. A counter claim was raised by the defendant seeking similar relief against the plaintiff in respect of the shares and debentures. The suit and the counter claim were decreed by the trial court. The decree was affirmed in appeal. The sole defendant is in appeal. The appeal is confined to the dispute over the ‘C’ schedule.
2. RFA No.122/2020 arises from OS 27/2016 of the Subordinate Judge’s Court, Kochi, which was later transferred to the Principal Subordinate Judge’s Court, Ernakulam, and re-numbered as OS 77/2019. The suit was instituted by the defendant in OS 202/2012, seeking partition of the plaint ‘A’ schedule (including the ‘C’ schedule therein) described in OS 202/2012. The trial court passed a preliminary decree for partition against which defendants 1 and 2 who are the plaintiffs in OS 202/2012 are in appeal.
3. For the sake of convenience the parties are hereinafter referred to as per their status in OS 202/2012; so also is the reference made to the plaint schedule descriptions and the exhibits.
4. One H. V. Kamath and his wife Indira Bai had four children viz. i) Balakrishna Kamath, ii) Viswanatha Kamath, iii) Namdeva Kamath, and iv) Panduranga Kamath. Ext.A1 Sale Deed No.1520, dated 04.09.1971, relates to the plaint ‘A’ schedule (which takes in ‘C’ schedule) in OS 202/2012. Ext.A1 Sale Deed is in favour of late H.V.Kamath and his wife late Indira Bai. H.V.Kamath died on 19.06.1990. He had executed Ext.A4 Will dated 28.01.1990. His wife Indira Bai died on 13.01.1996. She had executed Ext.B2 Will dated 26.07.1991.
5. Under Ext.A4 Will, H.V.Kamath claiming to be the absolute owner of the entire properties bequeathed the plaint ‘A’ schedule (including the ‘C’ schedule), having an extent of 10.374 cents in Survey No.656/13 of Mattanchery village, with a building thereon, jointly in favour of his two sons Viswanatha Kamath and Namdeva Kamath, who are the plaintiffs in OS 202/2012. Another son Balakrishna Kamath, who is the defendant in OS 202/2012 and the plaintiff in OS 77/2019, was a lawyer following the footsteps of his father. Under Ext.A4 Will, Balakrishna Kamath was given the plaint ‘B’ schedule, having an extent of 12.045 cents, in Survey No.656/13 in Mattanchery village, with a building thereon. He was also given the right to continue functioning of the Advocate’s Office in the ‘C’ schedule, as long as he wishes. The entire articles in the office were bequeathed to him. The plaintiffs allege that, the defendant, in spite of having ceased functioning of the Advocate’s Office in the ‘C’ schedule, has refused to give vacant possession to the plaintiffs. It is accordingly that OS 202/2012 was filed seeking vacant possession.
6. Balakrishna Kamath who is the defendant in OS 202/2012 and the plaintiff in OS 77/2019, claims that under Ext.A4 Will he holds life interest over the plaint ‘C’ schedule (Advocate’s office portion) of the building. Though not urged in the written statement in OS 202/2012, it is his case in OS 77/2019 that, under Ext.A1, the ‘A’ schedule property belonged in equal shares to their father and mother. The contention that title over ‘A’ schedule vests absolutely with the father, is violative of the provisions of the Prohibition of Benami Property Transactions Act, 1988 (for short, “the Benami Prohibition Act”). One half right over ‘A’ schedule property belonged to their mother Indira Bai. Ext.A4 Will has effect only in respect of the father’s half share over the property. The mother’s half share devolves equally on all the four children. On the said basis he seeks for partition of the ‘A’ schedule (including the ‘C’ schedule).
7. The suits were tried separately. OS 202/2012 was decreed directing Balakrishna Kamath-the defendant therein, to give vacant possession of the ‘C’ schedule to the plaintiffs therein. The decree was affirmed in appeal. The first appellate court specifically upheld the absolute title of the father over the ‘A’ schedule. It is assailed in the Regular Second Appeal. OS 77/2019 filed by Balakrishna Kamath seeking partition of the ‘A’ schedule property (including the ‘C’ schedule), was decreed, holding that the mother was a co-owner along with the father, holding half right over the property. Her right was held to be available for partition among the brothers. Challenging the same the Regular First Appeal has been filed by defendants 1 and 2 therein. Apparently, the findings are conflicting.
8. Since the subject matter in both the suits and the right asserted by the parties are the same, the appeals have been jointly heard and are being disposed of by this common judgment.
9. The substantial questions of law and the points that arise for determination are :-
(i) Is the plea of the plaintiffs that the mother was only a name lender in Ext.A1 and that absolute title vested with the father, barred by the provisions of Benami Prohibition Act, 1988 ?
(ii) Does the materials on record establish the absolute title of the father over the ‘A’ schedule property ?
(ii) Is the nature of right created in favour of the defendant Under Ext.A4 Will, a life interest, as claimed by him ?
(iv) On the facts or the case, is a mere suit for mandatory injunction maintainable ?
10. According to the appellant, the claim of the plaintiffs that, the ‘A’ schedule, though acquired in the names of the father and the mother, the father is the absolute title holder, is barred under Section 4 of the Benami Prohibition Act. We find that the said contention has no force. No doubt, Ext.A1 is in the names of the husband and the wife. Section 2(9) defines a benami transaction. Section 3 prohibits a benami transaction. Section 2(9)(A)(b)(iii) specifically excludes property held in the name of the spouse from the purview of the said definition. Therefore, Ext.A1 is not a benami transaction and the prohibition under Section 3 of the Act is not attracted. The contention is only to be negatived, and we do so.
11. Going by the recitals in Ext.A1 mother was a co-owner along with the father. It is to be noticed that, in Ext.A4 Will, the father asserted exclusive title in himself stating that the wife was only a name lender in Ext.A1 Sale Deed. The wife is the first attestor to Ext.A4. The learned counsel for the appellant is right in his contention that, an attestor to a document cannot be imputed with knowledge of its contents. Her attestation is only with regard to the execution of the document. This is a well recognised principle of law. However, to the above proposition there are well recognised exceptions. When the attestor has personal interest in the subject matter covered under the document, or when the attestor is a very close relative of the executant, it would be reasonable to infer that the attestor had knowledge about the contents of the document that he attested. [See Kandasami Pillai v. Rangasami Nainar (1912 (23) M.L.J. 301), Mehboob Sahab v. Syed lsmayil (1995 (3) SCC 693), Ayyakkannu Padayachi (Deceased) and others v. Boorasamy and another (1998 (2) L.W678), State of Kerala v. Babu (2003 (2) KLT 526), Thangamani v. Ganesan (2014 SCC OnLine Mad 153), Alamelu Ammal v. Govindasamy Naicker (2003 (2) ML.I 99), Mary George v. Lilly (2009 (1) KLT 265), Radhakrishnan v. P.K. Gopalakrishna Panicker (2017 Supreme (Online) (KER) 8609)]. There would often be other attending circumstances which would corroborate the same, justifying such inference.
12. In the case at hand, subsequent to the death of the father, the mother executed Ext.B2 Will. Conspicuously, the property in question was not included therein, among her assets. If she treated herself to be a co-owner of the immovable property and was unaware of the contents of Ext.A4 Will, there was no reason why the same would have been excluded. This is a strong circumstance which indicates that the mother was aware of and in agreement with the assertion in Ext.A4 Will that Ext.A1 property belonged to the her husband exclusively and that she was only a name lender therein. The mere presence of a residuary disposition with regard to assets if any left out, is a poor solace to contend otherwise since this was one of the two items of immovable properties held by the family.
13. The above apart, after the death of the father, Ext.B9, a document styled as “RESOLUTION” was executed between his legal heirs(wife and children). Under Ext.B9, the parties constituted the defendant as the executor, to implement the terms of the Will. Therein the parties have affirmed that the contents of Ext.A4 Will have been read over and that the parties are fully convinced of the contents thereof. That the contents of Ext.B9 was read over and understood by all the parties has been affirmed at paragraph 2 of the additional written statement of the defendant, filed in OS 202/2012, and also in his deposition, when he was cross-examined.
14. Therefore, it is evident that the mother had endorsed the statement in Ext.A4 Will that the property in question was purchased under Ext.A1 with exclusive funds of the father/ husband and that she was only a name lender. The above is sufficient enough to find that the father was exclusive owner of the property.
15. There is yet another view of the matter. In Ext.A4 Will, the testator, while affirming absolute title over the property in question made bequeath in favour of his wife. The wife accepted the bequest in her favour; rather, as revealed from Ext.B9, the Will as such has been accepted. The bequeath has been accepted by her fully conscious of the statement of the testator regarding his absolute title over the property in question. Having accepted the bequest, the legatee cannot turn back and make any claims against portion of the bequest claiming title in herself in derogation to the testator. This is essentially the doctrine of election as embodied in Chapter XXII of the Indian Succession Act. The section reads thus:
“180. Circumstances in which election takes place.
When a person, by his will, professes to dispose of something which he has not right to dispose of the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will. “
In Law of Wills by Mantha Ramamurti, 6th Edition, the following passage from Jarman on Wills has been quoted :-
“1. DOCTRINE OF ELECTION.— The doctrine of election may be stated thus : “He who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. 1f, therefore, a testator has effected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs the devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition; but if on the contrary, he chooses to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights. “
The principle was explained by the Apex Court in C Beepathuma and Others v. Velasari Shankaranarayana Kadambolithaya and Others [AIR 1965 SC 2411 thus :-
“17. The doctrine of election which has been applied in this case is well settled and may be stated in the classic words of Maitland-
“That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.”
(See Maitland’s lectures on Equity Lecture 18)
The same principle is stated in While and Tudor’s Leading cases in Equity Vol. 18th Edn, at n. 444 as follows :
“Election is the obligation imposed upon a party by courts of equity to
choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both… That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument.”
18. The Indian courts have applied this doctrine in several cases and a reference to all of them is hardly necessary. We may, however, refer to a decision of the Madras High Court in Ramakottayya v. Viraraghavayya, ILR 52 Mad. 556 : (AIR 1929 Mad. 502 FB) where after referring to the passage quoted by us from While and Tudor, courts Trotter, G.J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial committee in Rangaswami Gounden v. Nachiappa Gounden, ILR 42) Mad 523: (AIR 1918 PC 196). Recently, this court has also considered the doctrine in Bhanu Ram v. Baij Nath Singh, AIR 1961 SC 1327.”
A legal representative, in such capacity, is not entitled to raise a contention which was not available to his predecessor. (See Sukhalal and Others v. Jacob and Another 2020 (1) KHC 466) . Viewed in the above manner also, the defendant is not entitled to contend that the mother was a co-owner of the property.
16. Before the trial court, the claim for eviction was sought to be defended contending that, under Ext.A4 Will a life interest has been created in favour of the defendant and hence he cannot be evicted. A bare reading of the recitals in Ext.A4 Will reveals that the said contention has no force. Under the Will, the defendant is permitted to maintain the office “as long as he wishes”. There is a further recital that “…thereafter he shall remove all the said furniture, law books etc. etc. etc, hereby bequeathed to him to his building referred to in clause (1) supra…”. Evidently, no life interest is created over the property, nor any interest over the property. The very permission granted to the defendant also requires him to shift to the building bequeathed to him under the Will namely, the plaint ‘B’ schedule property. As per the further recitals in the Will, the property in question is bequeathed absolutely in favour of the plaintiffs subject to the life interest of the mother. Therefore, the contention of the defendant that a life interest is created under the Will has no force. Ext.C1 is the Commission Report obtained in the suit. The report reveals that the Advocate office is not functioning in the plaint ‘C’ schedule and that it is practically in an abandoned state. Therefore, at any rate, the permission granted to the defendant has also worked itself out. Possibly, this suggests the reason why the objection to right to seek eviction was not seriously pursued by the appellant during the course of hearing.
17. Another contention urged by the defendant is that, going by the plaintiffs’ case the defendant had ceased to use the plaint ‘C’ schedule as Advocate’s Office for the past 15 years. This had given the plaintiff a cause of action to sue for mandatory injunction. Having allowed the defendant to remain in possession for so long, at such distance of time a mere suit for mandatory injunction is not maintainable. The plaintiff ought to have sued for recovery of possession on the strength of the title, it is claimed.
18. We are unable to accept the above argument. The frame of the suit, with reference to the nature of the relief claimed, was not challenged by the defendant in the written statement. Under the Will, the defendant was permitted to continue in the office portion of the building as long as he wishes. The parties are siblings. The title of the plaintiffs was never disputed by the defendant. The permissive occupation of the defendant never got altered; it continued to be so. The plaintiff issued Ext.A32 notice of termination dated 10.10.2011 and filed the suit in July 2012. The suit for mandatory injunction is very much maintainable. That apart, in AvtarSinghAIR1985SC857 the Apex Court held that even if there was some delay in seeking for the relief, attempt is to be made to avoid multiplicity of suits and another round of litigation. The court also observed thus :-
…. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.”
We have noted above that there has been no change in the nature and character of possession of the defendant. No rights independent of the right obtained under Ext.A4 Will accrued with the defendant by the passage of time nor is there any such claim. In the circumstances, we find that the suit is perfectly maintainable.
19. The points for determination and the substantial questions of law are answered as above.
20. On the above discussions we find that the plaint ‘A’ schedule property is not partible and that the plaintiffs are entitled to vacant possession of plaint ‘C’ schedule from the defendant.
In the result, RSA 835/2017 will stand dismissed affirming the impugned decree and judgment. RFA 122/2020 will stand allowed setting aside the decree and judgment of the trial court and the suit OS 77/2019 will stand dismissed. Parties to bear their respective costs.
