IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 RSA.No. 1060 of 2006(A) ----------------------- AS.82/1999 of I ADDL.DISTRICT COURT-I,MAVELIKKARA OS.387/1995 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 5: ------------------------------------------------------------ 1. VIJAYAMMA, D/O.JANAKI, SREENILAYAM VEEDU NEDIYAVILA, KUNNATHOOR EAST, FROM SREENARAYANA VILASOM BUNGLOW, THEKKEMANKUZHY MURI, BHARANICKAVU VILLAGE. 2. NANU BAHULEYAN, -DO-, -DO-. 3. SUMATHY, D/O.KARTHIYAYANI, KAREETAVILAYIL VEEDU, PERINADU VEERAVIL, KOLLAM FROM SREENARAYANA VILASOM BUNGLOW, THEKKEMANKUZHY MURI, BHARANICKAVU VILLAGE. 4. VAMADEVAN, -DO-, -DO-. 5. CHINNAMMA SREELETHA, VAZHAPPALLIL VEEDU, MADATHIKARAZHMAMURI, OACHIRA VILLAGE FROM SREENARAYANA VILASOM BUNGLOW, THEKKEMANKUZHY MURI, BHARANICKAVU VILLAGE. BY ADV. SRI.P.R.VENKETESH RESPONDENTS: RESPONDENTS 1 -5 /PLAINTIFF: ------------------------------------------- 1. KUNJU KUNJU KUTTAPPAN, PUTHENVEETTIL THARAYIL, THEKKEMANKUZHY MURI, BHARANICAVU VILLAGE. 2. PONNAMMA, D/O.GOWRI OF DO.DO. 3. PONNAMMA USHAKUMARI, D/O.PLAINTIFFS 1 AND 2 OF DO. DO. DO. 4. SHEELA D/O.PONNAMMA, DO. DO. 5. SOMARAJAN, H/O.CHINNAMMA SREELETHA, VAZHAPPALLIL VEEDU OF DO. DO. ADV. SRI.S.SANAL KUMAR FOR R1 TO 4 SMT.BHAVANA VELAYUDHAN FOR R1 TO 4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1060 of 2006 ---------------------------------------- Dated this the 10st day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 82/1999 on the file of the I Additional District Judge Mavelikara which arises from the judgment and decree in O.S. 387/1995 on the file of the Munsiff Court, Kayamkulam The appellants are defendants 1 to5 in the suit. The suit was filed for declaration of right, possession and consequential injunction The suit was decreed by the trial court and confirmed in appeal by the lower appellate court. Hence this second appeal.The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. The dispute is that some portions of the properties mentioned in Ext.A1 document which was given to plaintiffs 1 and 2 were included in the properties given to defendants 1, 3, and 5 as per Ext.B1 will The plaintiffs and defendants are close relatives. The plaint schedule property originally belonged to the father's brother of 1st plaintiff viz. Sri.Narayanan and his wife, Smt.Kunjamma Ext.A1 settlement deed( Ext.A2 is the certified copy of the same) is the document executed by them on 28.1.1957 in favour of plaintiffs 1 and 2 with liberty for Narayanan to take income till his death and thereafter to take income by Kunjamma till her death. . While so the said Narayanan died in the year 1960 and some years later the said R.S.A. No. 1060 of 2006 -2- Kunjamma also died. 3. According to the plaintiffs after the death of Smt.Kunjamma on 9.8.1995, they became absolute owners of their property, that the defendants have no right over their property and that the title claimed by the defendants 1 and 3 and 5, on the basis of Ext.B1 will dated 2.12.1983 executed by Smt.Kunjamma is not sustainable in law and she has no right to execute a will in respect of the plaint schedule property. 4. The defendants in the suit claimed right over the portions of the plaint schedule property allotted to palintiffs 1 and 2 on the basis of Ext.B1 will dated 2.12.1983 . The important questions which were considered by the courts below are as to whether plaintiffs 1 and 2 have obtained right over the plaint schedule property on the basis of Ext.A1 settlement deed executed by the deceased Sri. Narayanan and deceased Smt.Kunjamma and the further question whether Ext.B1 will executed in favour of the defendants 1, 3 and 5 by deceased Smt. Kunjamma operates as a valid will. 5. According to the counsel for the respondents a reading of Ext.A1 settlement deed ( Ext.A2 is the certified copy of the same) will go to show that absolute right was given to plaintiffs 1 and 2 over the plaint schedule properties and that right has been postponed till the death of Smt.Kunjamma. It is also pointed out that as per the terms of Ext.A1 settlement deed Kunjamma reserved her right to create documents in respect of the properties during her life time and that the setlee will get R.S.A. No. 1060 of 2006 -3- right in the property only after the the death of settler. It is also contended that by the execution of Ext.B1 Will Smt.Kunjamma had bequeathed her right in favour of the defendants 1, 3 and 5 , that the 1st plaintiff himself was a witness to that execution and therefore the claim of the plaintiffs 1 and 2 to the effect that they have got title over the property cannot stand. According to the appellants/defendants the trial court is not justified in decreeing the suit and dismissing the counter claim, and in confirming the same by the lower appellate court 6. According to the counsel for the respondents/plaintiffs ExtA1 settlement deed was executed by the deceased Narayanan and deceased Kunjamma settling the property in the names of plaintiffs 1 and 2 reserving the executants' life interest. It is also pointed out that by execution of Ext.A1 vesting has taken place and any condition imposed restricting the enjoyment of the property after vesting is invalid in law and as such that will not affect the right of the parties, that the subsequent Will executed by Kunjamma has no effect and that will not bind the property of the plaintiffs which has been given to the plaintiffs as per Ext.A1 settlement deed. There was a recital in Ext.A1 settlement deed that the plaintiffs 1 and 2 have absolute title over the respective portions of properties allotted to them and it belongs to them completely if the same was not alienated/transferred . 7. The lower appellate court noticed that the only dispute is that some portions of the properties mentioned in Ext.A2 document which was R.S.A. No. 1060 of 2006 -4- given to plaintiffs 1 and 2 were included in the properties given to defendants 1, 3 and 5 as per Ext.B1will. The lower appellate court also noted that except the allegation that there was no acceptable evidence adduced on the side of the defendants by taking out a commission to prove that any portion of the property settled in favour of plaintiffs 1 and 2 as per Ext.A2 sale deed was included in Ext.B1 will executed by Kunjamma in favour of defendants 1, 3 and 5 and hence the burden is on the defendants to prove that fact and that burden was not discharged . Ext.B1 will which was subsequently executed in favour of the defendants 1 ,3 and 5 cannot take effect because the disputed portions property were already conveyed by Ext.A1 settlement deed In favour of plaintiffs 1 and 2. I find no reasons to interfere with the interpretation placed on Ext.A1 settlement deed and Ext.B1 will by the courts below after examining and analysing the facts evidence and circumstances of that case. No question of law much less any substantial question of law arises for consideration . There is no scope for invoking Section 100 of the C.P.C This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1060 of 2006 ---------------------------- JUDGMENT 10th June, 2009