IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 AS.No. 704 of 1997() -------------------- OS.52/1995 OF SUB COURT, PAYYANNUR .................... APPELLANTS/PLAINTIFFS: ------------------ 1. PUTHIYAPURAYIL DEVU, D/O. CHEMMARATHI, AGED 61 YEARS. 2. PUTHIAPURAYIL SARASWATHI, D/O. MADAVI, AGED 48 YEARS. 3. PUTHIYAPURAYIL JANAKI, D/O.MADHAVI, AGED 45 YEARS. (ALL THE APPELLANTS ARE RESIDING AT KUNHIMANGALAM AMSOM DESOM, P.O. KUNHIMANGALAM, KANNUR DISTRICT). BY ADV. SRI.SIBI THOMAS RESPONDENTS/DEFENDANTS: --------------------- 1. PUTHIYAPURAYIL GOVINDAN. S/O.ANANDAN VYDIAR, AGED 77 YEARS, PHYSICIAN, 75 CHINA STREET, PENANG, MALASIA. (DIED) 2. PUTHIYAPURAYIL ANANDAN, S/O. ANANDAN VYDIAR, AGED 74 YEARS, RESIDING IN KUNHIMANGALAM AMSOM, MALLIYOT DESOM, P.O. KUNHIMANGALAM , KANNUR DISTRICT. (DIED) SUPPL. 3. DEVU, W/O.ANANDAN VYDIAR, RESIDING AT MALLIYOOTT HOUSE, KUNHIMANGALAM P.O., PAYYANNUR (VIA) KANNUR DISTRICT. '' 4. PADMANABHAN, S/O. ANANDAN VYDIAR, -DO- -DO- '' 5. MADUSOODANAN, S/O.ANANDAN VYDIAR, -DO- -DO- '' 6. BHARAGAVI, D/O. ANANDAN VYDIAR, -DO- -DO- -2- A.S.NO.704/1997 '' 7. MALINI, D/O.ANANDAN VYDIAR, -DO- -DO- '' 8. JAYASREE, D/O. ANANDAN VYDIAR, -DO- -DO- (SUPPLEMENTAL RESPONDENTS 3 TO 8 IMPLEADED AS THE L.RS. OF THE 2ND RESPONDENT VIDE ORDER DTD. 10/1/2007 ON I.A.NO.1668/2004.) ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R1 & R2 SRI.P.BALAKRISHNAN FOR SRI.GEEN T.MATHEW FOR R1 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.704 OF 1997 -------------------------- 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 -2- A.S.No.704/97 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 -3- A.S.No.704/97 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. 4. 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. 5. 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: -4- A.S.No.704/97 “ 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.” 6. 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. -5- A.S.No.704/97 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. 7. 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 -6- A.S.No.704/97 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 -7- A.S.No.704/97 court below are confirmed. The appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -8- A.S.No.704/97 HARUN-UL-RASHID,J. -------------------------- A.S.NO.704 OF 1997 -------------------------- JUDGMENT 20th JANUARY, 2010