IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 704 of 1997()
1. PUTHIYAPURAYIL DEVU
... Petitioner
Vs
1. 8UTHIYAPURAYIL GOVINDAN
... Respondent
For Petitioner :SRI.CIBI THOMAS
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :20/01/2010
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.704 OF 1997
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DATED THIS THE 20TH DAY OF JANUARY, 2010
JUDGMENT
Plaintiffs in O.S.No.52/95 on the file of the Sub Court,
Payyannur are the appellant. The suit was filed for declaration
that the assignment deed No.4282/92 dated 18/12/1992 is void
and not binding on the rights of the plaintiffs or on the plaint
schedule property and for an injunction restraining the 2nd
defendant from entering into the plaint schedule property or from
exercising any acts of possession on the strength of the
assignment deed. The court below held that the lst defendant has
got exclusive right over the property, that the lst defendant is
entitled to alienate the property during his lifetime and therefore,
the plaintiffs are not entitled to a decree on the basis of the relief
claimed in the plaint. Aggrieved by the decree and judgment, the
plaintiffs have preferred this appeal. The parties hereinafter
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referred to as the plaintiffs and defendants as arrayed in the suit.
2. The plaintiffs and defendants are members of the
same family and they and others have entered into a partition
dividing the family property. The plaint schedule property in the
suit is 22 cents described as item No.1 in Ext.A1, which is the
partition deed dated 22/5/92 executed between the plaintiffs and
defendants. The properties belonging to the family are divided
into four items. A schedule property was allotted to the lst
defendant, B schedule to the 2nd defendant and C schedule to
defendants 3 and 4. The party No.1, who is the lst defendant,
was allotted A schedule property, party No.2, who is the 2nd
defendant, was allotted B schedule, party Nos.3, 4 and 5 together
were allotted C schedule and party Nos.6 and 7 together were
allotted D schedule. There are 3 items in A schedule. The
subject matter of the suit is item No.1 in A schedule.
3. According to the plaintiffs, the lst defendant has got
only life interest in the plaint schedule property and has no right
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to alienate the property in favour of others. It is further alleged
that the stipulation in Ext.A1 confers absolute right over item
No.1 in favour of party No.4, 6 and 7 (plaintiffs in the suit) and
therefore the lst defendant has no right to assign the property.
The lst defendant by Ext.B1 jenm deed dated 18/12/92 assigned
the property in favour of his brother, the 2nd defendant. In the
circumstances, the plaintiff prayed for passing a decree declaring
that Ext.B1 jenm deed is void and not binding on the rights of the
plaintiffs and for consequential injunction.
3. The lst defendant admitted the execution of the
partition deed and also Ext.B1 jenm deed. He contended that he
got absolute right over the property, that there is no restrictions
imposed by the terms of the partition deed and therefore, the
plaintiffs are not entitled to any relief.
4. The dispute centres around one paragraph in Ext.A1
partition deed. The recitals in paragraph 11 of page 3 of the
judgment reads as follows:
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” On going through the recitals in the initial
portions of Ext.A1 there can be no doubt that
the right conferred on the lst defendant is an
exclusive right and he has become the absolute
owner of the property by the said documents.
The further recitals in the document also makes
it clear that what is intended to be conveyed to
the lst defendant is the exclusive right over the
property shown in the A schedule. This is the
case with other allottees also. There is
difference in the recital in the initial portions so
far as the right conferred on the parties are
concerned. It is against these recitals that the
subsequent recital that the lst defendant shall
not alienate item No.1 in A schedule is made in
the document.”
5. The trial court interpreted the the partition deed and
held that there can be no doubt that the right conferred on the lst
defendant is an exclusive right and he has become absolute
owner of the property as per Ext.A1 partition deed. The court
below also considered the contention raised by the plaintiffs.
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The court below held that there is no clause restraining the lst
defendant from alienating the property nor enjoying the property
as an absolute owner. The court below held that the intention of
the parties at the time of execution of Ext.A1 was to confer
exclusive right on the lst defendant. So far as A schedule items
are concerned in respect of item No.1 in A schedule also, there
was no intention to restrict his right to a life interest. The trial
court rightly observed that if this is the intention it could have
been specifically stated in the document itself, that the right that
is given to the lst defendant is only a life interest and the property
is allotted to party Nos.4, 6 and 7.
6. I have also gone through the relevant paragraph
extracted above. The said clause recites that item No.1 of A
schedule was in the possession and enjoyment of the lst
defendant as on the date of Ext.A1 partition deed, that on his
death the property shall devolve on party Nos. 4, 6 and 7 and
their female children. In the earlier portion of the partition deed
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the properties are divided into four shares and it was recited that
A schedule was allotted to the lst defendant, B schedule to the 2nd
defendant, C schedule to party Nos.3, 4 and 5 and D schedule to
party Nos. 6 and 7. So, there was allotment of properties to each
and every sharer. The extracted portion only shows that the
property shall be devolved on party Nos.4, 6 and 7, after the
death of the lst defendant. That does not mean that the lst
defendant has got no independent or exclusive right. The recitals
in the partition deed do not restrict his right during the life time.
That means, he can enjoy the property as absolute owner. During
his life time he executed Ext.B1 jenm deed in favour of his
brother, the 2nd defendant. I do not find any reason to interfere
with the findings entered by the court below. The interpretation
placed by the court below of the impugned paragraph and rest of
the paragraphs are correct and are in order. I find no reason to
take a different view from the view taken by the court below.
In the result, the judgment and decree passed by the
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court below are confirmed. The appeal fails and accordingly
dismissed. No order as to costs.
HARUN-UL-RASHID,
JUDGE.
kcv.
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HARUN-UL-RASHID,J.
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A.S.NO.704 OF 1997
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JUDGMENT
20th JANUARY, 2010
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