TaxTMI 
TaxTMI 
2026 (7) TMI 1211
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....ry 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.....
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.... 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....
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.... Sahab v. Syed lsmayil (1995 (3) SCC 693), Ayyakkannu Padayachi (Deceased) and others ν. Boorasamy and another (1998 (2) L.W.678), State of Kerala v. Babu (2003 (2) KLT 526), Thangamani v. Ganesan (2014 SCC OnLine Mad 153), Alamelu Ammal v. Govindasamy Naicker (2003 (2) MLJ 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....
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....ccepts 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. If, 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 241] 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 renounc....
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....ed 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 m....