IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 RSA.No. 271 of 2005() --------------------- AS.64/2002 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.230/2000 of MUNSIFF COURT, VADAKKANCHERRY .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- NARAYANAN NAIR, S/O.PUTHUR AMMU @ ITTICHIRI AMMA, KUMTALANGAD DESOM, WADAKKANCHERRY VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.H.SIVARAMAN SRI.K.V.SADANANDA PRABHU RESPONDENT(S): RESPONDENTS/PLAINTIFF ------------------------------------ 1. JANAKI AMMA, D/O.PUTHUR AMMA @ ITTICHIRI AMMA, KUMTALANGAD DESOM, WADAKKANCHERRY VILLAGE, TALAPPILLY TALUK. 2. SREEDEVI @ OMANAKUTTY, D/O.JANAKI AMMA, OF DO. DO. 3. SUVARNAKUMARY, D/O.DO.DO.DO. 4. SUNANDA, D/O.DO.DO. 5. SURENDRAN, S/O.DO.DO. ADV. SRI.C.A.CHACKO FOR R1&3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.271 OF 2005 -------------------------------- Dated this the 17th day of January 2011 JUDGMENT Defendant is the appellant. Concurrent decision rendered in a suit for injunction decreed in favour of the respondents/plaintiffs is challenged in the Second Appeal. Plaintiffs in the suit are the sister and children of the appellant/defendant. Admittedly, the appellant had executed Ext.A1 deed styling it as a settlement deed in favour of the plaintiffs in respect of the plaint property having an extent of 20 cents comprising buildings. Under the terms of the settlement deed, which are taken note of and stated with precision by the lower appellate court in its judgment, the right of the appellant to continue to have occupation in the building with the respondents/defendants and also to cut the trees in the property is reserved. A further covenant had also been made that in the event of effecting any conveyance over the property by the plaintiffs, donees under Ext.A1 settlement deed, the appellant should also be made a party, and otherwise it shall be void. Ext.A1 deed was later cancelled by the appellant as if no settlement of gift effected, but only bequests made under a will. Impeaching that cancellation as inoperative and void the plaintiffs R.S.A No.271 OF 2005 - 2 - sought for a decree of perpetual prohibitory injunction to restrain the appellant from interfering with their possession and enjoyment of the suit property. Whatever stated under the revocation deed (Ext.B1) to cancel Ext.A1 settlement deed contending that it was only a will was reiterated by the appellant to resist the suit claim. On the materials placed, both the courts below negatived the contentions raised by the appellant, and it was held that under Ext.A1 settlement deed the plaintiffs have obtained absolute title and possession over the property subject to the reservation over its enjoyment and also alienation as spelt out under that deed. Though the trial court had granted a decree of injunction in toto as canvassed for by the plaintiffs, in the appeal, the lower appellate court modified that decree limiting the injunction to the restraining of the defendant from committing waste in the property, but, without in any way infringing his right to cut the trees in the property which was reserved under Ext.A1 settlement deed. Impeaching the concurrent decision so rendered by the two courts below as unsustainable under both facts and law, the defendant has preferred this Second Appeal. 2. Notice on admission given, respondents 1 and 3 have entered appearance. I heard the counsel on both sides. The R.S.A No.271 OF 2005 - 3 - learned counsel for the appellant, adverting to the terms covered by Ext.A1 that for effecting any conveyance over the property, the consent and also joining of the settler, the defendant, was necessary and further the plaintiffs would get a right to alienate the property only after the life time of the settler, contended, the appellant/defendant is having exclusive possession and enjoyment over the property. After going through the copy of Ext.A1 handed over to me, taking note of the further terms as well covered by that deed, I find that the conclusion formed by both the courts below that the settlement deed had come into effect by which there was already a transfer of the possession in favour of the plaintiffs, the donees, is unassailable. Under the settlement deed there are only of some restrictions in the matter of transfer over the property, which could be done only with the consent and joining of the settler and also his entitlement to have joint occupation with the donees and also to cut trees in the property. The materials tendered in the case clearly demonstrate that mutation has been effected in favour of the plaintiffs, the donees, and they are in possession and enjoyment of the property. The rights of the appellant, which are reserved under Ext.A1 settlement deed, have been taken due note of by the lower R.S.A No.271 OF 2005 - 4 - appellate court to modify the decree passed by the trial court while upholding the decree of injunction in favour of the plaintiffs by which the appellant/defendant is restrained only from committing waste in the plaint property. There is no merit in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv