PARUKUTTY AMMA Vs. PARUKUTTY AMMA

JUDGEMENT

(1.) These Revisions arise from proceedings for issuance of a Succession Certificate regarding the amounts remaining in deposit in the name of deceased Govindan Nair, an Advocate who practiced in Calicut. Govindan Nair originally married one Sreedevi and through her, had a son Govindankutty Nair. Sreedevi died. Then Govindan Nair married a second time, Kunhilakshmi Amma, the younger sister of Sreedevi. He had children through her. Govindan Nair died on 13.12.1980. Govindankutty Nair, the son of Govindan Nair through his first wife Sreedevi, died on 16.2.1981 and his legal representatives are impleaded in the proceedings. The second wife and children of Govindan Nair filed O.P. 68 of 1987 before the Subordinate Judge's Court of Kozhikode under S.372 of the Indian Succession Act for the issue of a Succession Certificate. The nephews and nieces of Govindan Nair, being the children of the sister of Govindan Nair, filed O.P. 69 of 1987 claiming the issuance of Succession Certificate in their favour. Both the applications were tried together. There was no dispute that on 9.5.1980 Govindan Nair had duly executed a will. The essential dispute centered around an interpretation of the terms of that will. Under that will, Govindan Nair bequeathed the property referred to therein to Govindankutty Nair, his son through the first wife and his nephews and nieces. Govindan Nair stated in that will that he was not giving anything to his second wife and children under that will since he had already given them sufficient properties and had also given good education to all his children through his second wife. Thus in the will Govindan Nair clearly expressed his intention that under that instrument he was not giving anything to his second wife and children. In that will, Govindan Nair provided for the performance of his obsequies and functions connected therewith, to be performed by Govindankutty Nair, the son through the first wife. Govindankutty Nair was authorised to spend for such ceremonies as are referred to in the will. After meeting such expenses from out of the funds made available, the testator provided in the will that the amount in hand (I ncn¸v kwJy) left after meeting his various expenses would be taken equally by his son through the first wife, and nephews and nieces of Govindan Nair. The Succession Certificate related to certain amounts in deposit in the local banks in the Savings Bank Accounts of Govindan Nair. According to the nephews and nieces, the bequest regarding the 'cash in hand' included the bequest of the balance amounts remaining in the saving bank accounts and hence they are entitled to the Succession Certificate to be issued to them jointly with the legal representatives of Govindankutty Nair, who had died meanwhile. The case of the second wife and children was that on a true interpretation of the terms of the will, the expression 'cash in hand' (I ncn¸v kwJy) would not take in the amounts in deposit in the savings bank accounts and hence it must be taken that Govindan Nair died intestate regarding the balance amounts left in Savings Bank Accounts and they being the legal heirs of Govindan Nair under the Hindu Succession Act, they are entitled to the Succession Certificate regarding those amounts. The Trial Court, on an interpretation of the terms of the will, taking note of the provision that the testator was not intending to give anything to his second wife and children under that will and on an interpretation of the scope of the expression 'cash in hand' (I ncn¸v kwJy), came to the conclusion that there was a bequest in respect of the balance amounts in the Savings Bank Accounts in favour of Govindankutty Nair and the nephews and nieces and consequently the nephews and nieces were entitled to the Succession Certificate prayed for. Hence, the Trial Court allowed O.P. 69 of 1987 and dismissed O.P. 68 of 1987 filed by the second wife and children. Two appeals were taken before the lower appellate court by the second wife and children of Govindan Nair. That court held that the expression 'cash in hand' (I ncn¸v kwJy) in the will would only take in actual cash in the possession of Govindan Nair at the time of his death and not the amounts that remained in Savings Bank Accounts and consequently, it must be held that regarding those amounts, Govindan Nair died intestate. According to the lower appellate Court, the second wife and children of Govindan Nair being his legal representatives were entitled to the Succession Certificate and not the nephews and nieces and Govindankutty Nair, the legatees under the will. Thus the decision of the Trial Court was reversed. These Civil Revision Petitions are filed by the nieces of Govindan Nair challenging the interpretation placed on the will by the lower appellate Court.

(2.) Even at that stage, I may refer to the argument raised on behalf of the second wife and children by Mr. T.R. Govinda Warriyar, senior counsel, that what was involved was only an interpretation of the will and even if two views were possible, the lower appellate court has taken one of the possible views and hence it cannot be said that any error has been committed by that court warranting interference by this court under S.115 of the Code of Civil Procedure. Mr. K. T. Sankaran, counsel appearing for the nieces on the other hand contended that what was involved was the entitlement to the Succession Certificate and by holding that there is no bequest in favour of the nephews and nieces in respect of the amounts remaining in Savings Bank Accounts and by holding that Govindan Nair died intestate in respect of those amounts, the lower appellate court has committed an error of jurisdiction and has directed the issuance of Succession Certificate to the second wife and children of Govindan Nair and this would amount to an error within S.115 of the Code of Civil Procedure committed by that Court. Considering that what is involved is the question whether Govindan Nair died intestate in respect of the amounts left in his Savings Bank Accounts or had bequeathed the amounts, I think that this court will not be justified in declining jurisdiction under S.115 of the Code of Civil Procedure on the basis that one of the possible views has been taken by the lower appellate court on an interpretation of the terms of the will. This Court, as a court of conscience has a duty to give effect to the wishes of the testator to the utmost extent possible.

(3.) I may also notice that the interpretation placed on the expression 'cash in hand' (I ncn¸v kwJy) by the lower appellate Court is unduly narrow. Normally, cash in hand need not exactly take in the amount in the hands of the testator or which he had actually in hand or at his physical control in specie at the time of his death. Any amount or anything which represents that amount which he is capable of dealing with as if he were dealing with cash would also come within that expression. The entire amounts in the Savings Bank Accounts were capable of being dealt with by the testator by the issuance of a cheque. It was readily available to him to be dealt with. In such a situation, it cannot be said that the interpretation placed by the lower appellate court on the expression 'cash in hand' (I ncn¸v kwJy) is justifiable or is one possible interpretation of the terms of the will. The only support Mr. T.R. Govinda Warriyar could muster in support of his submission is the meaning given for the expression 'cash' as coin of the realm in Ramanatha Iyer's Law Lexicon. A reference to Black's Law Dictionary shows, cash means money or its equivalent and it includes negotiable instruments, cheques and balances in bank accounts. There is no finding by the lower appellate Court that at the time of the death of Govindan Nair he had with him money in coins of the realm. There is also no evidence on that aspect. Under the will Govindan Nair charged Govindankutty Nair, his son through the first wife, to perform certain ceremonies expending the money of the testator. Govindan Nair would have necessarily contemplated that Govindankutty Nair should expend the amounts that the testator had in hand and further sums if required used from his Savings Bank Accounts for the purposes set out. Thus going by the normal interpretation of the bequest clause contained in the will and appreciating it in the circumstances of the case, it has to be held that the lower appellate court was clearly in error in holding that the 'cash in hand' (I ncn¸v kwJy) which was bequeathed to the nephews and nieces and the son through the first wife did not take within its sweep the amounts lying in the Savings Bank Accounts of the testator.