IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 271 of 2005()
1. NARAYANAN NAIR, S/O.PUTHUR AMMU @
... Petitioner
Vs
1. JANAKI AMMA,
... Respondent
2. SREEDEVI @ OMANAKUTTY,
3. SUVARNAKUMARY, D/O.DO.DO.DO.
4. SUNANDA, D/O.DO.DO.
5. SURENDRAN, S/O.DO.DO.
For Petitioner :SRI.H.SIVARAMAN
For Respondent :SRI.C.A.CHACKO
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/01/2011
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.271 OF 2005
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Dated this the 17th day of January 2011
JUDGMENT
Defendant is the appellant. Concurrent decision
rendered in a suit for injunction decreed in favour of the
respondents/plaintiffs is challenged in the Second Appeal.
Plaintiffs in the suit are the sister and children of the
appellant/defendant. Admittedly, the appellant had executed
Ext.A1 deed styling it as a settlement deed in favour of the
plaintiffs in respect of the plaint property having an extent of 20
cents comprising buildings. Under the terms of the settlement
deed, which are taken note of and stated with precision by the
lower appellate court in its judgment, the right of the appellant to
continue to have occupation in the building with the
respondents/defendants and also to cut the trees in the property
is reserved. A further covenant had also been made that in the
event of effecting any conveyance over the property by the
plaintiffs, donees under Ext.A1 settlement deed, the appellant
should also be made a party, and otherwise it shall be void.
Ext.A1 deed was later cancelled by the appellant as if no
settlement of gift effected, but only bequests made under a will.
Impeaching that cancellation as inoperative and void the plaintiffs
R.S.A No.271 OF 2005 – 2 –
sought for a decree of perpetual prohibitory injunction to restrain
the appellant from interfering with their possession and
enjoyment of the suit property. Whatever stated under the
revocation deed (Ext.B1) to cancel Ext.A1 settlement deed
contending that it was only a will was reiterated by the appellant
to resist the suit claim. On the materials placed, both the courts
below negatived the contentions raised by the appellant, and it
was held that under Ext.A1 settlement deed the plaintiffs have
obtained absolute title and possession over the property subject
to the reservation over its enjoyment and also alienation as spelt
out under that deed. Though the trial court had granted a decree
of injunction in toto as canvassed for by the plaintiffs, in the
appeal, the lower appellate court modified that decree limiting
the injunction to the restraining of the defendant from committing
waste in the property, but, without in any way infringing his right
to cut the trees in the property which was reserved under Ext.A1
settlement deed. Impeaching the concurrent decision so
rendered by the two courts below as unsustainable under both
facts and law, the defendant has preferred this Second Appeal.
2. Notice on admission given, respondents 1 and 3 have
entered appearance. I heard the counsel on both sides. The
R.S.A No.271 OF 2005 – 3 –
learned counsel for the appellant, adverting to the terms covered
by Ext.A1 that for effecting any conveyance over the property,
the consent and also joining of the settler, the defendant, was
necessary and further the plaintiffs would get a right to alienate
the property only after the life time of the settler, contended, the
appellant/defendant is having exclusive possession and
enjoyment over the property. After going through the copy of
Ext.A1 handed over to me, taking note of the further terms as well
covered by that deed, I find that the conclusion formed by both
the courts below that the settlement deed had come into effect by
which there was already a transfer of the possession in favour of
the plaintiffs, the donees, is unassailable. Under the settlement
deed there are only of some restrictions in the matter of transfer
over the property, which could be done only with the consent and
joining of the settler and also his entitlement to have joint
occupation with the donees and also to cut trees in the property.
The materials tendered in the case clearly demonstrate that
mutation has been effected in favour of the plaintiffs, the donees,
and they are in possession and enjoyment of the property. The
rights of the appellant, which are reserved under Ext.A1
settlement deed, have been taken due note of by the lower
R.S.A No.271 OF 2005 – 4 –
appellate court to modify the decree passed by the trial court
while upholding the decree of injunction in favour of the plaintiffs
by which the appellant/defendant is restrained only from
committing waste in the plaint property. There is no merit in the
appeal, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv