"C.R."

Thottathil B.Radhakrishnan, J.

1. Ambujakshy Amma and Madhava Menon had only one son, Jayaraja Menon @ Rajan Menon. The plaintiffs are his daughters through Sarasija @ Omanakunjamma. The parents of the plaintiffs were granted divorce as per Ext.B6 order dated 18.12.1981 by the competent court on an application under Section 13 B of the Hindu Marriage Act, after fairly long drawn contentious proceedings for divorce even before this Court. Thereafter, Rajan Menon married the first defendant on 16.6.1982 (Ext.B5 is the marriage certificate). He, thereafter, died on 17.1.1983. The second defendant was born to the first defendant and Rajan Menon. There is no dispute on this.

2. In 1993, that is, more than 10 years after the demise of Rajan Menon, the plaintiffs sued for partition of what they described as the estate left behind by Rajan Menon.

3. In answer, the defendants contended that Rajan Menon had executed Exts.B3 and B4 in favour of the plaintiffs on 23.4.1981, and it was on that consensus, that the mother of the plaintiffs agreed for the divorce and Exts.B3 and B4 were executed essentially in terms of that family settlement, as a result of which, the plaintiffs had no right to inherit any part of the estate of Rajan Menon. The plea was that the allotments made under Exts.B3 and B4 were in lieu of the share and those documents amount to deprivation of the plaintiffs' right to any further claim for share in Rajan Menon's estate.

4. The court below accepted the defence version, having regard to the evidence on record. In construing Exts.B3 and B4, it took the view that those transactions resulted out of a family settlement and the plaintiffs, having enjoyed the benefits of Exts.B3 and B4, are not eligible to sue for partition of the left over. The court below has also indicated in the judgment that Exts.B3 and B4 could also be treated as testaments by Rajan Menon, in as much as they contain clear intendments which may amount to bequests and those documents are proved by DW3, one of the attestors.

5. Learned counsel for the appellants seriously challenged the approach adopted by the court below, in particular, the view that Exts.B3 and B4 contain elements of testament and that they would stand amounting to deprivation of the plaintiffs the right to further share.

6. Per contra, the learned counsel appearing for the contesting defendants argued that the totality of the evidence on record, including the contents of Exts.B10 and B11, the Wills executed by Ambujakshy Amma, the late mother of Rajan Menon, as also the conduct of the second plaintiff in having executed Ext.B2 kychit in token of having received her share in terms of the grandmother's Ext.B11Will, is clinching to the effect that the suit claim, more than 10 years after the demise of Rajan Menon, is liable to be dismissed. He accordingly argued that there is no ground to interfere with the impugned dismissal of the suit by the court below.

7. The sequence of events, apart from that noted above, would show that Rajan Menon had married the mother of the plaintiffs on 22.10.1957; three children were born to them, of which, the only son Unni died on 14.3.1977 and the couple had been living separate since 1975. The application filed by Rajan Menon, for divorce, under Section 13 of the Hindu Marriage Act was dismissed. An appeal carried to this Court was ultimately dismissed as not pressed. It appears that it was thereafter that Exts.B3 and B4 were executed on 23.4.1981. On 15.6.1981, i.e., just nearly one and half months after the execution of Exts.B3 and B4, Rajan Menon and the plaintiffs' mother filed an application under Section 13 B of the Hindu Marriage Act, which, after the statutory gestation period of six months, was taken up and ordered after examining Rajan Menon. That was as per Ext.B6 order dated 18.12.1981. The plaintiffs themselves plead that yet another document as document No.30/1981 was also executed by Rajan Menon and the mother of the