Balagopal, S/o Narayana Pillai v Subhadramma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934** ## **RSA.NO. 1067 OF 2011 ( )** **---------------------------------------AS.32/2005 OF ADDITIONAL DISTRICT COURT, (ADHOC), KOLLAM OS.583/1995 OF PRINCIPAL SUB COURT, KOLLAM** **APPELLANT(S)/APPELLANT NO.2/DEFENDANT NO.3:** **--------------------------------------------------------------------------** **BALAGOPAL,S/O.NARAYANA PILLAI, R/AT PULLIYIL PUTHEN VEEDU,(GEETHA NIVAS) ASRAMAM CHERRY,KOLLAM EAST VILLAGE,KOLLAM.** **BY ADV. SRI.P.V.JYOTHI PRASAD** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT NO.4:** **--------------------------------------------------------------------------------------------** **1. SUBHADRAMMA,D/O.BHAGEERATHI AMMA, R/AT PULLIYIL PUTHEN VEEDU,(USHAS),ASRAMAM CHERRY KOLLAM EAST VILLAGE,KOLLAM PO 691 001.** **2. THE SECRETARY,THE QUILON CO-OPERATIVE URBAN BANK LTD.,KOLLAM 691 001.** **3. RAJAGOPAL,S/O.NARAYANA PILLAI, PUNNOOR HOUSE,KANDALLOOR SOUTH PO, PUTHUKULANGARA KAYAMKULAM 690 535.** **4. VENUGOPAL,S/O.NARAYANA PILLAI, PULLIYIL PUTHEN VEEDU,CANTONMENT NORTH,KOLLAM EAST VILLAGE,KOLLAM PO 691 001.** ## **R.S.A. No.1067 of 2011** **5. GEETHANJALI,D/O.THANKAMMA AMMA, POORAM NAGAR-2,CONTONMENT NORTH, KOLLAM EAST VILLAGE KOLLAM PO 691 001.** **BY ADV. SRI.K.SUBASH CHANDRA BOSE R3 TO 5 BY ADV. SRI.ALEX N.MATHEW R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.8.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1067 of 2011 ==================================== Dated this the 10[th] day of August, 2012** ## **J U D G M E N T** The 3[rd] defendant in O.S. No.583 of 1995 of the Sub Court, Kollam is the appellant, challenging the decree granting declaration, partition and injunction as confirmed by the Additional District Court, Kollam in A.S. No.32 of 2005. 2. The following are the substantial questions of law framed for a decision: (i) Whether the courts below were justified in interpreting the provisions in Ext.A1 to hold that deceased first defendant did not derive absolute right with power of alienation in respect of the plaint A schedule property allotted to her and third defendant is therefore not entitled to claim title? (ii) Whether the restrictions imposed in Ext.A1 is hit by Section 10 of the Transfer of Property Act (for short, “the Act”)? **R.S.A. No. 1067 of 2011** -: 2 :- 3. The 1[st] respondent-plaintiff and defendants 1 and 2 are the children of the late Bhageerathy Amma and Madhavan Pillai. The 1[st] defendant died pending suit in the trial court. The 2[nd] defendant died while the appeal was pending in the first appellate court. Respondents 3 to 5 and the appellant (who is the 3[rd] defendant) are the children of the deceased 2[nd] defendant. The 2[nd] respondent is the Secretary of a Co-operative Bank (who was the 4[th] defendant in the suit). Parties are referred hereunder as arrayed in O.S. No.883 of 1995. 4. The suit property originally belonged to Kunju Pillai, paternal uncle of the plaintiff and the deceased 2[nd] defendant. He sold the said property to Bhageerathy Amma and Madhavan Pillai, parents of the plaintiff and deceased 1[st] and 2[nd] defendants as per document No.221 of 1098ME. Madhavan Pillai released his right to Bhageerathy Amma as per document No.451 of 1099ME. Bhageerathy Amma executed Ext.A1, settlement deed No.771 of 1954 making certain dispositions of the properties belonging to her including the suit property (A schedule of Ext.A1). The dispute is concerning the A schedule of Ext.A1, settlement deed described in the plaint schedule. 5. The deceased 1[st] defendant executed Ext.A4, **R.S.A. No. 1067 of 2011** ## -: 3 :- settlement deed concerning the plaint schedule property (A schedule of Ext.A1) in favour of the 3[rd] defendant claiming right as per Ext.A1. The plaintiff filed the suit originally seeking a declaration that Ext.A4, settlement deed is invalid since the 1[st] defendant (according to the plaintiff) was not competent or entitled to dispose of the suit property and for a decree of injunction to restrain the 3[rd] defendant (in whose favour Ext.A4, settlement deed was executed) creating documents concerning the said property. Defendants 1 and 2 contended that the suit property absolutely belonged to the 1[st] defendant and she was competent to execute Ext.A4, in favour of the 3[rd] defendant. The third defendant also raised similar contentions. While so, the 1[st] defendant died on 05.03.1998. Thereon, plaint was amended to incorporate a prayer for partition of the suit property among the plaintiff and deceased 2[nd] defendant. The plaintiff claimed that she has half right in the suit property and the remaining half right went to the deceased 2[nd] defendant. The amended plaint was resisted by defendants 2 and 3 on various grounds including that the suit property absolutely belonged to the 1[st] defendant who was competent to execute Ext.A4, settlement deed in favour of the 3[rd] defendant. ## **R.S.A. No. 1067 of 2011** -: 4 :- 6. The trial court took the view that Sec.28 of the Act would apply and hence the deceased 1[st] defendant had no right to execute Ext.A4, settlement deed in favour of the 3[rd] defendant. The trial court was of the view that on the death of the 1[st] defendant, the suit property reverted to the plaintiff and the 2[nd] defendant , each having one half right over the said property and accordingly granted relief in the suit as prayed for. 7. The 3[rd] defendant challenged that judgment and decree in the Additional District Court, Kollam. The first appellate court confirmed the finding entered by the trial court and dismissed the appeal. Hence this Second Appeal. 8. The learned counsel for the appellant-3[rd] defendant has contended that neither the trial court nor the first appellate court has considered the real nature of disposition of the property (A schedule of Ext.A1) as per that document. It is contended that there is an absolute settlement of the suit property in favour of the deceased 1[st] defendant though subject to the conditions referred to therein. According to the learned counsel, when there is an absolute settlement of the property in favour of the deceased 1[st] defendant, the further directions in Ext.A1 are invalid being repugnant to the disposition already **R.S.A. No. 1067 of 2011** ## -: 5 :- made. The deceased 1[st] defendant was therefore competent to execute Ext.A4. At any rate, it is only in a situation where the 1[st] defendant died issue-less and her husband, Balakrishna Pillai died after her, that on the death of Balakrishna Pillai, it was intended that the suit property would revert to the plaintiff and the deceased 2[nd] defendant. The learned counsel contends that a reading of various clauses in Ext.A1 would show that those conditions were imposed only to ensure that if Balakrishna Pillai died after the death of the 1[st] defendant there being no issues for them, the suit property shall not be inherited by the legal heirs of Balakrishna Pillai but should remain in the family and hence it was directed that in such a contingency the property shall go to the plaintiff and the 2[nd] defendant. The said contingency has not happened in this case since Balakrishna Pillai predeceased the 1[st] defendant. Hence the said direction in Ext.A1 has failed. In the circumstances question of the suit property reverting to the plaintiff or the 2[nd] defendant did not arise. It is further contended that Sec.28 of the Act has no application on the facts of the case since Balakrishna Pillai predeceased the 1[st] defendant. It is argued that Ext.A4, settlement deed must stand and the judgment and decree of the courts below should go. **R.S.A. No. 1067 of 2011** -: 6 :- 9. The learned counsel for the plaintiff and the legal heirs of the deceased 2[nd] defendant (respondents 3 to 5) while supporting the judgment and decree of the courts below pointed out that Secs.21 and 28 of the Act would apply, the interest created in favour of the 1[st] defendant as per Ext.A1 is only a contingent interest which is to take place only on the happening of a certain event, i.e., on the 1[st] defendant remaining issue-less. It is argued that as per recitals in Ext.A1, on the death of the 1[st] defendant and her husband (Balakrishna Pillai), the suit property is to vest with the plaintiff and 2[nd] defendant equally. Therefore the 1[st] defendant was not competent to execute Ext.A4, settlement deed. That document is invalid. It is pointed out that in view of the death of 1[st] defendant during the pendency of the suit, the property has vested with the plaintiff and all the legal heirs of 2[nd] defendant (respondents 3 to 5 and the appellant) and the property is partible among them. The learned counsel for the plaintiff placed reliance on the decision in **K. Narayanan v. State** (AIR 1973 Kerala 96). 10. Section 21 of the Act deals with contingent interest and states that where, on a transfer of property an interest is created in favour of a person to take effect only on the happening ## **R.S.A. No. 1067 of 2011** ## -: 7 :- of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when in the happening of the event becomes impossible. Almost similar is Sec.28 of the Act. The said provision says that on a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in a case of specified uncertain event shall not happen such interest shall pass to another person. It is further stated in Sec.28 of the Act that in each case the dispositions are subject to the rules contained in Secs.10, 12 and 21 to 25 and 27 of the Act. 11. In the decision cited supra the distinction between repugnant and defeasance clauses is considered. It is held that where an absolute right is conferred with the clause superadded that in case the conferee dies without children the estate would revert to her sister and sister's children, then what is conferred is an absolute estate with a defeasance clause as distinguishable from an absolute estate created with a repugnant clause. In the ## **R.S.A. No. 1067 of 2011** ## -: 8 :- former, the defeasance would apply and cut down the interest of the transferee and in the latter case when the clause is repugnant to the transfer already made the clause which is repugnant fails and the transfer prevails. 12. Exhibit A1 is styled as a “settlement deed” executed by the late Bhageerathy Amma on 11.02.1964 in favour of the plaintiff and defendants 1 and 2 as regards the properties referred to therein. The preambular portion of Ext.A1 describes the document as under: " സരസ�ത� അമയ�ട�യ�� ......................... Sk¡¨V a]pL¢ a] ^Lf] Nñ} Ws|Le]AÚ oW¥ YQznqeU ArOk¾]oPÐO vpôOç nLY}qg]AÚ ijj]épLiLqU.'' IuOf] RWLaO¾ (Saraswathy Amma is the deceased 1[st] defendant) Thereafter the document traces title of Bhageerathy Amma to the properties dealt with therein. It is further recited in Ext.A1 as under: ## **R.S.A. No. 1067 of 2011** -: 9 :- ""..........So¤NkWLqU Ij]¨O y]È]\ÿ]ŸOç vñOvWWt]¤ IR£ RRWvwU v\ÿ]q]¨OÐfO Wu] \ÿOç kŸ]W vñO vWWRtkã] IR£ ^}v]f¾]¤ KqO v|vò R\pÅO vàeRoÐO Ij]¨OU a] oLiv¢k] ç Av¡W¥¨OU DºLp BNYzvOU An]NkLpvOU AjOyq]\ÿO fLRu krpOÐ v|vòW¥¨O¥RÕŸO '' . CT ijj]épLiLqU IuOf]fqOÐfLWOÐO Further there is a recital in Ext.A1 that Bhageerathy Amma and her husband, Madhavan Pillai would have the right to enjoy the properties referred to therein as before and reside in the building during their lifetime. The further recitals in Ext.A1 which require consideration is: ""..........`°tORa qºOSkqORapOU ^}v]f SwxU ## Aa]p]¤ I kŸ]Wp]¤ v]vq]¨OÐ vñO¨¥ j]°t] & ¤ 1 LU SkqOWLq]യ�� CÐO oOf¤ Skq]¤ WPŸ] WqU f} ¡¾OU SkqOoLr] kŸpU k]a]\ÿOU So¤ NkòLv]\ÿ -: 10 :- ## **R.S.A. No. 1067 of 2011** NkWLqU `°¥ qºOSkqOSapOU ^}vfSwxU y¡vÿy~LfÍ|oLp] AffO kŸ]W¨L¡ jaÐORWLSçºfOoLWOÐO. I m] y] kŸ]W vñO¨¥ j]°¥¨V Shz¼]¨eRoÐO v]\Lq] ¨OÐ kƒU Svº Shz¼°¥ Avqv¡ CÐO oOf¤ R\pÅORWLSçºfOU I m] y] kŸ]W vñO¨t]¤ òLk]\ÿO `°tORa qºOSkqOSapOU ^} v]f¾]¤ pLRfLqOv]ioLp WaRÕaO¾sOWtOU R\áOÐf]jO j]°¥ക� fj]\ÿO Ai]WLqo]sæL¾fOU Af]jO v]kq}foLp] Nkv¡¾]¨OÐ kƒU BpfO y~pSov AyLiOvOU BWOÐO. kŸ]W vñOv]¤ vav]¤ WPfOf¤ òsU DçfOU BpfOU KLSqL kŸ] Wp]sOU S\¡¾]ŸOçfOU BpfO Avqv¡¨OfRÐ & Aa°OÐfOU BWOÐO. j]°t]¤ 1 LU SkqOWLq]¨O yÍLjU DºLWLRfp]qOÐL¤ Av¥¨O f]q]\ÿO v\ÿ]q]¨OÐ I kŸ]W vñOvWW¥ a]pLtOU a]pLtORa n¡¾LvLp mLsWQxVek]çpOU WPa] S\¡ÐO `°tORa ^}v]f SwxU Bp]qU qPk vRq & WaRÕaO¾] vL°OÐf]jO Ai]WLqoOçfOU 1 LU **R.S.A. No. 1067 of 2011** ## -: 11 :- SkqOWLq]pORa ^}v]f SwxU a] mLsWQxVek]ç SvRr v]vLz¾]¤ J¡RÕaLRf ^}v]\ÿ]q] ¨OÐfLpL¤ I kŸ]W vñOvWW¥ a] mLsWQxVek]ç AjOnv]¨OÐf]jO So¤ kr´ WaRÕŸfsLvWLwU a] mLsWQxVek]ç fj]\ÿO WaRÕaO¾]RWLçOÐf]jOU a]pL¡WtORa ^]v] & & fSwxU I kŸ]W vñO¨¥ 2 U 3 U SkqOWL¡ y¡vÿ ” ... y~LfÍ|oLp] IaO¾ORWLSçºfOU BWOÐO 13. I am called upon to interpret the above recitals to say whether an estate was created in favour of the deceased 1[st] defendant, the first party to Ext.A1, with a defeasance clause and whether on the death of the 1[st] defendant and her husband Balakrishna Pillai the suit property (A schedule of Ext.A1) is to vest with the plaintiff and the deceased 2[nd] defendant as contended by the learned counsel for the plaintiff and respondents 3 to 5 or as the learned counsel for the appellant-3[rd] defendant contends, that there is an absolute gift in favour of the 1[st] defendant followed by certain repugnant conditions and that the vesting of the suit property with the plaintiff and the 2[nd] defendant at any rate, would happen only if Balakrishna Pillai **R.S.A. No. 1067 of 2011** ## -: 12 :- died after the death of the 1[st] defendant, issue-less. 14. The learned counsel for the 3[rd] defendant contended that the recital “a]pL¡WtORa ^]v]fSwxU I kŸ]W vñO¨¥2&U 3&U SkqOWL¡ y¡vÿ y~LfÍ|oLp] IaO¾ORWLSçºfOU ” BWOÐO refers to the death of Balakrishna Pillai subsequent to the death of the 1[st] defendant issue-less. The learned counsel would contend that it was so provided in Ext.A1 to ensure that if Balakrishna Pillai died after the death of 1[st] defendant issue-less, the property shall not go to the legal heirs of Balakrishna Pillai but should remain with the family of Bhageerathy Amma herself. The learned counsel for the plaintiff and respondents 3 to 5 **”** would say that the expression a]pL¡WtORa ^]v]fSwxU refers to 1[st] defendant and Balakrishna Pillai, both of whom have died and hence the property should vest with the plaintiff and 2[nd] defendant. 15. Going by Ext.A1, I am inclined to think that there is an absolute gift of the suit property (A schedule in Ext.A1) to the 1[st] defendant. The reason is that apart from describing Ext.A1 as a “settlement deed” (which would take effect as a gift), the further recitals in Ext.A1 which I have extracted above authorizes the 1[st] ## **R.S.A. No. 1067 of 2011** ## -: 13 :- defendant to effect mutation in her name, obtain patta and enjoy the property (subject to the life interest created in favour of Bhageerathy Amma and her husband and of course subject to other conditions stipulated therein concerning encumbering the property). By Ext.A1, there is a transfer of the suit property in presenti in favour of the deceased 1[st] defendant. If there was no such transfer in presenti, I am not inclined to think that Ext.A1 would have authorized the 1[st] defendant to effect mutation in her name, pay revenue and obtain patta. 16. True that in Ext.A1 it is recited that during the lifetime of Bhageerathy Amma and her husband, none of the donees could encumber the property on their own and for such purpose the junction of Bhageerathy Amma and her husband is required. Reason is obvious that a life interest was provided over the entire property for Bhageerathy Amma and her husband and hence to protect their interest it was necessary to ensure that the donees under Ext.A1 did not encumber the property as they wished. It is to be noted that absolute right of enjoyment is given to the donees under Ext.A1 after the death of Bhageerathy Amma and her husband. It is clear from the recitals in Ext.A1 concerning the necessity to have the junction of ## **R.S.A. No. 1067 of 2011** ## -: 14 :- Bhageerathy Amma and her husband also to encumber the property that with the junction of Bhageerathy Amma and her husband, it was open to the donees under Ext.A1 (including the deceased 1[st] defendant) to encumber the property for any amount they wished. That also indicated transfer of title in presenti to the donees (including the deceased 1[st] defendant) under Ext.A1. 17. I do not forget that so far as the deceased 1[st] defendant is concerned, a further condition is imposed on her as per Ext.A1 that if she remained issue-less, she could encumber the property with the junction of her husband, Balakrishna Pillai to the tune of Rs.1,000/- and that after the death of the 1[st] defendant, if the said Balakrishna Pillai (husband of the 1[st] defendant) remained unmarried, he could enjoy the A schedule of Ext.A1 (suit property) and could encumber the property (upto Rs.1,000/-). The said recital is made in Ext.A1 conferring a life interest over Balakrishna Pillai during his lifetime (provided he survived the 1[st] defendant who dies issue-less and himself remained unmarried). 18. The crucial recitals in Ext.A1 the plaintiff and respondents 3 to 5 would rely upon is a]pL¡WtORa ^]v] ## **R.S.A. No. 1067 of 2011** -: 15 :- fSwxU 2&U 3&U SkqOWL¡ y¡vÿ y~LfÍ|oLp] ## IaO¾ORWLSçºfOമ�ക�ന�. 19. According to the plaintiff and respondents 3 to 5, on the death of the 1[st] defendant issue-less and her husband, the suit property is to revert to the plaintiff and the deceased 2[nd] defendant (party Nos.2 and 3 in Ext.A1) and hence the deceased 1[st] defendant had no right to dispose of the property during her lifetime. Hence Ext.A4 executed by her in favour of the appellant3[rd] defendant is invalid. 20. I am unable to accept that contention. The recitals in Ext.A1 which I have extracted above is clear that an absolute estate is created in favour of the deceased 1[st] defendant with a condition that if she died issue-less, the property is to be enjoyed by Balakrishna Pillai if he remained unmarried. This is clear from the recital in Ext.A1 “....mLsWQxVek]ç fj]\ÿO WaRÕaO¾]“ which indicates a contingency that is to happen if Balakrishna Pillai survived the 1[st] defendant who died issue-less and himself remained unmarried. A reading of the recitals in Ext.A1 makes it abundantly clear that Bhageerathy Amma, the executant was contemplating a situation where the 1[st] defendant died issue-less, ## **R.S.A. No. 1067 of 2011** ## -: 16 :- her husband (Balakrishna Pillai) remained unmarried and died in which case the suit property would go to the legal heirs of Balakrishna Pillai. The executant of Ext.A1 did not at all contemplate and provide in Ext.A1 that even if the 1[st] defendant died issue-less after the death of Balakrishna Pillai, the property should go to the plaintiff and the deceased 2[nd] defendant. There was no occasion or necessity to state so. Even without providing so in Ext.A1, the property would have only gone to the legal heirs of the 1[st] defendant. So it is clear that the executant of Ext.A1 contemplated and wanted to avoid a situation where after the death of the 1[st] defendant issue-less, the suit property (A schedule of Ext.A1) is inherited by Balakrishna Pillai and on his death, the property went into the hands of the legal heir of Balakrishna Pillai belonging to his family. That alone is the reason why in the event of the 1[st] defendant dying issue-less, a life interest alone was created in favour of Balakrishna Pillai, provided that he remained unmarried. And on his death in that situation the property was to go to the plaintiff and the deceased 2[nd] defendant. Such a situation has not happened as Balakrishna Pillai predeceased the 1[st] defendant. Thus the life interest created in favour of Balakrishna Pillai failed and the deceased 1[st] defendant took the ## **R.S.A. No. 1067 of 2011** ## -: 17 :- suit property absolutely on the death of her parents. If on the other hand, the executant of Ext.A1 wanted to allot the property to the plaintiff and the 2[nd] defendant after the death of the 1[st] defendant and Balakrishna Pillai (no matter, who predeceased whom) there was no necessity to confer title in favour of the 1[st] defendant as per Ext.A1. It was sufficient to state that the deceased 1[st] defendant also would have a life interest over the suit property. It is relevant to notice from Ext.A1 that no restriction is imposed on the deceased 1[st] defendant in the matter of alienation or encumbrance in case Balakrishna Pillai predeceased her. Thus on the death of Balakrishna Pillai during the lifetime of the 1[st] defendant, the life interest created in his favour failed and the deceased 1[st] defendant got the suit property without any restriction on her right and power to alienate and encumber the property. The expression “a]pL¡WtORa” ^]v] fSwxU occurring in the extracted portion in Ext.A1 does not refer to the death of the 1[st] defendant and her husband, Balakrishna Pillai. For, if the reference was to the death of 1[st] defendant and Balakrishna Pillai, the expression would have been “��യ�ള�കള�ട� “ (plural) and not “a]pL¡WtORa”. I ## **R.S.A. No. 1067 of 2011** -: 18 :- “ ” can only understand the word a]pL¡WtORa as an expression made in reverance, referring to Balakrishna Pillai, the husband of 1[st] defendant, having regard to the sequence of events contemplated in Ext.A1, i.e., Balakrishna Pillai who remained unmarried after the death of the 1[st] respondent, issueless, dying. I must notice that in the earlier portion of Ext.A1, when it referred to the husband of Bhageerathy Amma, he is described as “�� മ�ധവന പ�ള അവരകള�� . Certainly the word “അവരകള “ is used in reverance. Similar is the intend behind ” the word “a]pL¡WtORa Therefore the said expression cannot be understood as referring to the death of 1[st] defendant and Balakrishna Pillai. It is seen from page 21 (paragraph 17) of the judgment of the trial court that the said court did not notice the distinction between “��യ�ള�കള�ട� “ and “a]pL¡WtORa” but proceeded on the basis that the expression used in Ext.A1 is “��യ�ള�കള�ട� “ which made the whole difference. The first appellate court also did not notice the mistake committed by the trial court. 21. In interpreting a deed, the right approach would be to read the deed as a whole and to construe the deed in the light of ## **R.S.A. No. 1067 of 2011** ## -: 19 :- all the recitals therein and not to read each clause as isolated provisions. 22. A reading of Ext.A1 would show that so far as A schedule of Ext.A1, settlement deed (suit property) is concerned subject to the limitations regarding enjoyment referred to therein, an absolute estate was created in favour of the deceased 1[st] defendant with a further recital that if she died issue-less and she is survived by Balakrishna Pillai who remained unmarried, on the death of the said Balakrishna Pillai, the suit property is to vest with the plaintiff and the 2[nd] defendant. 23. It is admitted that Balakrishna Pillai predeceased the 1[st] defendant (who died issue-less pending the suit). In other words, the question of Balakrishna Pillai remaining unmarried after the 1[st] defendant died issue-less and in the contingency, the suit property vesting with the plaintiff and the deceased 2[nd] defendant did not arise. 24. So far as Sec.21 of the Act relied on by the learned counsel for the plaintiff and respondents 3 to 5 is concerned, that refers to an interest created in favour of a person to take effect only on the happening of a specified uncertain event. No such situation arises in this case since I found that there is a ## **R.S.A. No. 1067 of 2011** ## -: 20 :- transfer of interest in favour of the 1[st] defendant of course subject to the conditions referred to therein. Section 28 of the Act also has no application since the earlier part of the said provision refers to the happening of a specified uncertain event. In this case the uncertain event referred to is the death of Balakrishna Pillai (remaining unmarried) after the death of the 1[st] defendant (issueless) which has not happened. The latter part of Sec.28 of the Act has no application since that part relates to a clause which provided for a specified uncertain event not happening and thereon a party acquiring interest. That in my view is not the situation in this case. In the circumstances neither Sec.21 nor Sec.28 of the Act come to the rescue of the plaintiff so far as his claim is concerned. 25. It follows that it was within the power of the 1[st] defendant to execute Ext.A4, settlement deed in favour of the appellant-3[rd] defendant after the death of her husband. If that be so, the question of the plaintiff and the 2[nd] defendant and consequently respondents 3 to 5 acquiring right over the suit property did not arise. 26. In view of what I have stated above, there is no relevance in the 2[nd] substantial question of law framed. **R.S.A. No. 1067 of 2011** -: 21 :- 27. The substantial questions of law framed for decision are answered accordingly. The second appeal is allowed as under: (i) Judgment and decree of the learned Additional District Judge, Kollam in A.S. No.32 of 2005 are set aside. (ii) Judgment and decree of the learned Principal Sub Judge, Kollam in O.S. No.583 of 1995 are set aside. (iii) O.S. No.583 of 1995 of the Principal Sub Court, Kollam will stand dismissed. (iv) Parties are directed to suffer their costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv