IMPORTANT POINTS
(1) Female Hindu succession – There is also no fetter in a owner of a property to give a limited estate, if he so chooses to do, including to his wife.
(2) Will – While construing Will, intention of testator is to be given paramount importance.

JUDGMENT

Dated this the 7th day of June, 2024 All these second appeals were preferred by a common appellant namely one Prahladan, against the judgment and decree in A.S.No.249 of 2010, AS.No.51 of 2011 and AS. No.50 of 2011 respectively, on the file of the III rd Additional District Judge, Thrissur.

2. Prahladan as plaintiff filed two suits, OS.No.354 of 2006 and O.S.No.404 of 2007 before the Additional Subordinate Judge’s Court, Irinjalakuda. OS.No.354 of 2006 is for declaration and cancellation of a document and OS.No.404 of 2007 is for injunction.

3. Admittedly, the suit properties originally belonged to one Kumaran, the father of Prahladan, who is now no more. Kumaran married thrice. His first two wives are no more and Pankajakshi, the 2nd defendant in OS.354 of 2006 and 1 st defendant in OS.404 of 2007, is his 3rd wife. Prahladan and Dayanandan, who is the 3 rd defendant in OS.354 of 2006 and 2nd defendant in OS.404 of 2007 are the children of Kumaran in his 1 st wife. In his second marriage, RSA. Nos.615, 803 & 856 of 2016 Kumaran had two children namely Ashok Kumar and Anuroop Kumar, who died unmarried and issueless. During his life time, Kumaran had assigned some of his properties to Prahladan and Dayanandan. Thereafter, he had executed Exhibit A5 will No.7/93 on 19.1.1993 bequeathing his remaining properties in favour of Ashok Kumar and Anuroop Kumar, after reserving right of enjoyment to Pankajakshi. Since Ashok Kumar and Anuroop Kumar predeceased Pankajakshi, assuming that she obtained exclusive title over the properties covered by Exhibit A5 will, Pankajakshi assigned the plaint schedule property involved in OS. No.354 of 2006 in favour of one Anitha Hari, the 1st defendant in that suit, as per Exhibit A6 Assignment Deed No.1797/2005.

4. According to Plaintiff Prahladan, since Ashok Kumar and Anuroop Kumar predeceased Pankajakshi, the plaint schedule property devolved upon himself and Dayanandan being the legal heirs of Anuroop Kumar and as such Exhibit A6 Assignment Deed executed by Pankajakshi in favour of Anitha Hari is null and void. Therefore, in OS.No.354 of 2006, he prayed for a decree declaring that Exhibit A6 is null and void. He filed OS.No.404 of 2007 RSA. Nos.615, 803 & 856 of 2016 praying for an injunction restraining Pankajakshi from alienating or encumbering the scheduled property therein and from committing waste there.

5. The contention taken by Pankajakshi and her assignee Anitha Hari is that by virtue of the provisions of Exhibit A5 will, on the death of Ashok kumar and Anuroop Kumar, by virtue of the operation of sub section 14 of the Hindu Succession Act 1956, the plaint schedule property devolved absolutely upon Pankajakshi and as such she has got every right to dispose of it. Therefore, they prayed for dismissing the suit.

6. The learned Sub Judge tried both the suits jointly and as per a common judgment dated 27.2.2010, decreed both the suits and declared that Exhibit A6 Assignment deed is null and void and plaintiff Prahladan and Dayanandan are the legal heirs of deceased Ashok Kumar and Anuroop Kumar and a charge for a sum of Rs.1,00,000/- with 6% interest was created in the property covered by Exhibit A6 due to Anitha Hari from Pankajakshi. Pankajakshi was also permanently restrained from alienating or encumbering the scheduled property or from committing any waste there.

7. Aggrieved by the above judgment and decree of the trial court, the assignee, Anitha Hari, preferred AS.No.249 of 2010 while Prahladan filed AS. No.50 of 2011 and AS.No. 51 of 2011. As per common judgment dated 30.3.2016, the District Judge Thrissur, allowed AS.No.249 of 2010, set aside the judgment of the trial court and dismissed AS. Nos.50 and 51 of 2011. Dissatisfied with the above findings of the First Appellate Court, Prahladan filed these second appeals.

8. At the time of admission, the following substantial questions of law were formulated by this Court in RSA No.615/2016:—

“(i) Whether “Possession of the prop