IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 RSA.No. 188 of 2011() --------------------- AS.80/2005 of PRL.SUB COURT,TRIVANDRUM OS.504/2001 of III ADDL.MUNSIFF COURT.,TRIVANDRUM .................... APPELLANT/RESPONDENT/DEFENDANT ---------------------------------------------------------- KRISHNAMMA,D/O.LEKSHMI, KABANIVILA VEEDU,TC 22/345, ATTUKAL,MANACAUD,THIRUVANANTHAPURAM BY ADV. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SMT.S.MEERA SMT.M.G.AISHWARYA RESPONDENT/APPELLANT/PLAINTIFF -------------------------------------------------------- ANIL KUMAR,S/O.GOPI, GOPIKRISHNA, ATTUKAL MANACAUD P.O.,THIRUVANANTHAPURAM-695009 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb M.SASIDHARAN NAMBIAR, J. ---------------------------------------- R.S.A.No. 188 OF 2011 -------------------------------------------------- Dated this the 7th day of March, 2011 J U D G M E N T Appellant is the mother of the respondent in O.S.No.504/2001 on the file of the III Additional Munsiff Court, Thiruvananthapuram. The suit was instituted seeking declaration of his title to the plaint schedule properties and for a permanent prohibitory injunction restraining the appellant from alienating the property or inducting third parties into possession of the properties. Item No.1 of the plaint schedule properties is 5 cents in Survey No.1732/30, item No.2 is 3 cents in Survey No.1713/4, item No.3 is 15 cents in Survey No.2003 and item No.4 is 8 cents in Survey No.2002A/3 of Manacaud Village. Item Nos.2 and 3 of the plaint schedule properties originally belonged to Gopi, husband of the appellant and father of the respondent. Item Nos. 1 and 4 of the plaint schedule properties were jointly acquired by the appellant and her husband. Appellant along with Gopi executed Ext.A1 settlement deed No.1240/1997 in favour of the respondent, transferring their R.S.A.No. 188 OF 2011 2 rights and possession reserving life interest with them. Respondent is claiming that he has absolute right and possession over the plaint schedule properties and appellant has no right to alienate the property or to induct third parties in possession of the properties. Appellant contended that though Ext.A1 settlement was jointly executed by the appellant and her husband subsequently, under Ext.B1, it was cancelled in 2001, and respondent has therefore no title to the plaint schedule properties and hence he is not entitled to the decree sought for. 2. The learned Munsiff on the evidence of Exts.A1 to A3 and B1, granted decree in favour of the respondent declaring his title to item Nos.2 and 3 of the plaint schedule properties and half right over item Nos.1 and 4 of the plaint schedule properties finding that the remaining half share is vested with the appellant and during her life time, respondent cannot claim title to the property. Respondent challenged the judgment before the Sub Court, Thiruvananthapuram in A.S.No.80/2005. The learned Sub Judge, on re-appreciation of evidence, found that, Ext.A1 is a settlement deed, where under Gopi, husband of the appellant, R.S.A.No. 188 OF 2011 3 transferred his entire rights in respect of item Nos.2 and 3 and his half right in respect of item Nos.1 and 4 along with the appellant, who was having half right over item Nos.1 and 4 in favour of the respondent. It was found that Ext.A1 settlement deed was acted upon and accepted and hence appellant is not entitled to execute Ext.A1, cancelling that right and on the death of Gopi, his life interest has been terminated and appellant is only having a life interest over the properties and item Nos.1 and 4 of the plaint schedule properties, granted a decree in respect of the entire plaint schedule properties declaring the title of the respondent and restraining appellant from alienating the properties or inducting third parties in possession of the properties. It is challenged in the second appeal. 3. Learned counsel for the appellant was heard. 4. The argument of the learned counsel is that Courts below did not properly appreciate Ext.A1. It was argued that though Ext.A1 settlement deed was executed, it was not accepted or acted upon. Therefore, during the life time of the appellant, as she is having the absolute right over one half of R.S.A.No. 188 OF 2011 4 item Nos.1 and 4 of plaint schedule properties and hence, she is entitled to transfer the properties and cancel Ext.A1 to that extent as has been done under Ext.B1 and therefore the decree granted is not sustainable. 5. A reading of Ext.A1, copy of which was made available by the learned counsel, establishes that, as rightly found by the learned Sub Judge, the entire rights of the appellant and her husband over the plaint schedule properties were transferred in favour of their son, the respondent, retaining only life interest over the properties. The recitals in Ext.A1 show that, entire right of the appellant and her husband in respect of item Nos.1 and 4 of plaint schedule properties were transferred in favour of the respondent directing that respondent has to effect mutation and has also to pay the tax and take income from the property retaining their life interest. It is the definite case that Ext.A1 was accepted and acted upon. The evidence establish that, Ext.A1, after registration, was obtained back from the Sub Registry Office by the respondent, in whose favour the properties were settled. It is also not in dispute that as provided R.S.A.No. 188 OF 2011 5 under Ext.A1, mutation was effected and basic tax and building tax were being paid by the respondent thereafter. In such circumstances, as rightly found by the first appellate Court under Ext.A1, respondent has title over the entire plaint schedule properties and appellant is only entitled to the life interest over item Nos.1 and 4 plaint schedule properties. The decree granted by the first Appellate Court was only declaring the title of the respondent over the properties and prohibitory injunction, restraining appellant from alienating the properties, creating any documents in respect of the plaint schedule property or inducting third parties in possession of the properties or committing waste. In such circumstances, no substantial question of law is involved in the appeal. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE dmb