IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 423 of 2005()
1. EDAMANA ILLATH SANKARAN EMBRANTHIRI,
... Petitioner
Vs
1. E.S. SANTHADEVI,
... Respondent
2. EDAMANA ILLATH MADUSOODANAN, -DO-.
For Petitioner :SRI.V.G.ARUN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :03/12/2008
O R D E R
V. RAMKUMAR, J.
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R.S.A.No.423 of 2005
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Dated this the 3rd day of December, 2008
JUDGMENT
The plaintiff in O.S.No.1048 of 1997 on the file of the
Munsiff’s Court-IIA, Kozhikode is the appellant in this second
appeal. The said suit was one for declaration that the 1st
defendant has not obtained any right or possession over the
plaint A Schedule Property admeasuring 35= cents under Ext.A1
settlement deed dated 22.3.85 and for recovery of possession of
the said property.
2. The facts which have been either proved or admitted are
the following:-
The 1st defendant is the wife of the plaintiff and 2nd
defendant is one of their sons. The plaintiff was the owner of the
plaint C Schedule property consisting of two items. Item No.1 of
the plaint C Schedule property has a total extent of 85 cents and
Item No.2 of the C Schedule property has a total extent of 80
cents. The plaint B Schedule property consists of portions of
item No.1 of the plaint C Schedule property and was settled by
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the plaintiff in favour of two of his sons including the 2nd
defendant. The plaint A Schedule Property admeasuring 35=
cents was settled by him in favour of his wife, the 1st defendant
as per Ext.A1 settlement deed dated 23.2.85. Plaint A Schedule
property and Plaint B Schedule Property would together
constitute Item No.1 of the plaint C Schedule property. After the
plaintiff and his wife fell apart, the plaintiff had, after 6 years of
executing Ext.A1 settlement deed, executed Ext.A2 cancellation
deed dated 25.6.91 purporting to cancel Ext.A1 settlement deed.
Thereafter he filed the present suit in the year 1993 seeking the
above releifs.
3. The suit was resisted mainly by the 1st defendant
contending, inter alia, that Ext.A1 settlement deed was acted
upon and it was not permissible for the plaintiff to cancel the
same as was done under Ext.A2.
4. Both the courts below have held that Ext.A1 settlement
deed was acted upon and the 1st defendant was in possession of
plaint A Schedule property and was dealing with the same as
the absolute owner and, therefore, it was not open to the plaintiff
to cancel Ext.A1 settlement deed by executing Ext.A2
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cancellation deed. The conclusion reached by the courts below
are in accordance with the decision of this Court in
Gopalakrishnan v.Kamalamma (2006(4) KLT 377).
No question of law, much less any substantial question of
law arises for consideration in this second appeal. The questions
of law formulated in the memorandum of appeal do not arise for
consideration in this second appeal which is accordingly
dismissed in limine.
Dated this the 3rd day of December, 2008.
V. RAMKUMAR, JUDGE
sj