IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 RSA.No. 236 of 2011 --------------------------------- AS.78/2009 of SUB COURT PALA OS.120/2008 of MUNSIFF COURT, PALA ........ APPELLANT/APPELLANT/PLAINTIFF: SOMANATHAN, AGED 67 YEARS, S/O. NARAYANAN, MANANTHANATHU HOUSE, KANNANBARA KARA, KANNANBARA VILLAGE, PALAKKAD DISTRICT FROM MANANTHANATHU KADANAD KARA, KADANAD VILLAGE-686653. BY ADV. SRI.V.R.KESAVA KAIMAL RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. SAVITHRI, AGED 77 YEARS, W/O. NARAYANAN, NOW RESIDING AT VADAKKAMPARAMBIL, MUNDUPALAM KARA, LALAM VILLAGE, FROM MANANTHANATHU KADANAD KARA, KADANAD VILLAGE-686653. 2. BIJU AGED 34 YEARS, S/O. THANKAPPAN, VADAKKAMPARAMBIL, MUNDUPALAM KARA, LALAM VILLAGE-686653. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.236 of 2011 -------------------------------------- JUDGMENT Plaintiff in O.S.No.120/2008 on the file of Munsiff's Court, Pala is the appellant. Defendants are the respondents. Plaint schedule property originally belonged to Narayanan. Appellant is the son and first respondent, his second wife. Narayanan admittedly executed Exhibit A1 will, whereunder, he bequeathed plaint schedule property in favour of appellant providing that first respondent, during her life time, is entitled to take usufructs from the property. Appellant instituted the suit seeking a decree for permanent prohibitory injunction contending that he got absolute right in the plaint schedule property and the rubber trees standing in the property are now not yielding and taking advantage of the fact that appellant is not residing in the property, first respondent, with the help of second respondent, is taking preparation to cut and remove the rubber trees standing in the plaint schedule property. 2. Learned Munsiff, on the evidence of PWs 1 to 4, DW1 and Exhibits A1 to A5 and C1, found that, though under Exhibit RSA 236/11 2 A1 property was bequeathed in favour of the appellant, first respondent was reserved the tight to take usufructs from the property. Even according to the appellant, the rubber trees are not now yielding and slaughter tapping is over. Therefore, they could be sold and re-plantation is to be effected. Learned Munsiff found that first respondent is entitled to sell the rubber trees and appellant is not entitled to a decree restraining the first respondent from doing so. Learned Munsiff incidentally found that once the rubber trees are cut and removed, they are to be re-planted and if first respondent fails to do so, appellant is at liberty to re-plant the same. Appellant challenged the judgment before Sub Court, Pala in A.S.No. 78/2009. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. Second appeal is filed challenging the judgment. 2. Learned counsel appearing for the appellant was heard. 3. Though learned counsel appearing for the appellant vehementally argued that findings of the courts below are not sustainable in the light of the provisions made in Exhibit A1 will, under the will, first respondent is entitled to enjoy the income RSA 236/11 3 from the property. The rubber trees are not now yielding. Hence, finding of the courts below that first respondent is entitled to cut and remove the rubber trees and rubber trees are to be re- planted is perfectly correct. 4. Learned counsel then submitted that first respondent is aged 77 years and if she is to re-plant the rubber trees, she will not do so and in such circumstances, appellant is to be permitted to re-plant the same. Under Exhibit A1 will, the property was bequeathed to the appellant. What was provided to the first respondent is only the right to take income from the property during her life time. In such circumstances, the observation, while dismissing the suit, that first respondent has to re-plaint the rubber trees will not stand in the way of the appellant re- planting the rubber trees without causing any obstruction to the first respondent to cut and remove the rubber trees. As no substantial question of law is involved, appeal is dismissed. 25th February, 2011 (M.Sasidharan Nambiar, Judge) tkv