IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 AS.No. 756 of 1996() ----------------------------- OS.817/1992 of PRL.SUB COURT, KOTTAYAM .................... APPELLANTS/PLAINTIFFS: ---------------------------------------- 1. B. VIJAYALEKSHMI AMMA, WIFE OF RAGHAVAN PILLAI, RESIDING AT PADMALAYAM, AROOR P.O., ALLEPPEY. 2. V. LATHA DEVI, WIFE OF AJAYKUMAR, NOW RESIDING AT J.141, SAROJINI NAGAR, NEW DELHI, REPRESENTED BY POWER OF ATTORNEY HOLDER, R. RAJEEV, PADMALAYAM, AROOR. 3. R. RAJEEV, RESIDING AT PADMALAYAM, AROOR P.O., ALLEPPEY. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS/2ND DEFENDANT AND LEGAL HEIRS OF DECEASED FIRST DEFENDANT: ------------------------------------------------------------------------------ 1. LEKSHMANAN PILLAI ALIAS K.L. PILLAI, SON OF KUNJUSANKARAN CHETTIAR NOW WORKING AS SENIOR SURGEON, M.M.G. HOSPITAL, CHAZIABAD, U.P. 2. KAMALAMMA, WIFE OF DECEASED SREEDHARAN PILLAI, RESIDING AT KATTILAKKATTU HOUSE, AROOR P.O., ALLEPPEY. 3. SUDHEESH, SON OF DO. DO. DO. 4. SUNITHA, D/O. OF DO. DO. BY ADV. MR.P.R. VENKATESH. R1 BY SRI LEKSHMANAN PILLAI (PARTY). THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 756 of 1996 ORDER ON C.M.P. NO.4599/1996 IN A.S. NO.756/1996 DISMISSED 03/08/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 756 OF 1996 = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Prl. Subordinate Judge, Kottayam in O.S.817/92. The defendants and one Raghavan Pillai were brothers. Raghavan Pillai died and his legal representatives are the plaintiffs. The properties described in the plaint schedule according to the plaintiffs had been gifted in favour of the three children and on the death of Raghavan Pillai the property had devolved upon his legal representatives and therefore the plaintiffs are entitled to share over the property. It is also contended that after confirming the absolute right it cannot be taken away and therefore any recital in the document A.S. 756 OF 1996 -2- to the contra would militate against law and therefore the plaintiffs are entitled to the reliefs. 2. On the other hand the defendants would contend by virtue of the document and the recitals therein the property had been gifted to the three children jointly with no power of division and that the property on the death of one of the sons should devolve upon the other two. The learned Subordinate Judge on a consideration of the clause held that it is a joint tenancy created and the manifest intention of the executant is very clear and therefore the property would not devolve upon the plaintiffs who are the legal representatives of deceased Raghavan Pillai. Now it is profitable to extract the contents of the document. “---------------------------------------------- A.S. 756 OF 1996 -3- ------------------------------------------------ ----------------------------------------------- ------------------------------------------------ ------------------------------------------------ ------------------------------------------------ ---------------------------------------------- ------------------------------------------------ ----------------------------------------------- i.e., the property is given in favour of three jointly without the power of division and on the death of one of the persons it will devolve upon the others. Learned trial judge as stated earlier found that the manifest intention of the executant was to give the property to his three sons with a condition that on the death of one of the sons the property will go to other two. Now one of the decisions referred to by the learned counsel for the appellant is the A.S. 756 OF 1996 -4- decision reported in AIR 1953 Travancore-Cochin 115(Subramanian Asari v. Kanni Ammal Velamma). It was a case where in a gift deed there was an unequivocal and unconditional transfer in the opening paragraph of the document and a subsequent rider or condition limiting the power of the donee was incorporated. Then the Court held that it is repugnant to law and also to the document's first clause and therefore held that it will not bind the donee. 3. In the decision reported in Govindaraja Pillai v. Mangalam Pillai (AIR 1933 Madras 80) it has been held that when the intention is to grant absolute estate then the conditions repugnant to them are void. When the absolute estate subject to defeasance clause is not contrary to any law it is valid. That is the difference between a clause with condition and A.S. 756 OF 1996 -5- repugnant clause. Now the father of the three sons wanted the property to be given to them jointly and wanted them to enjoy it jointly and would further add that in case of death of one of them it has to go back to the other two. Such a clause is not repugnant or invalid in law. Situations would have been different if one of the brothers had sued for partition and then the question of partibility might have arisen. Here unfortunately Raghavan Pillai is no more. By virtue of the clause in Ext.A1 Raghavan Pillai's right have to devolve upon defendants 1 and 2. When it is so there is no right left and so the plaintiffs are not entitled to claim partition. Therefore I agree with the learned Subordinate Judge and hold that Ext.A1 document and its contents are legal and valid and it deprives the plaintiffs to get any A.S. 756 OF 1996 -6- right over the property. Therefore the appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 756 OF 1996 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 756 OF 1996 = = = = = = = = = = = J U D G M E N T 3rd August, 2010.