Sarojini v. Radha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938** **RSA.No. 626 of 2013 (G)** **----------------------AGAINST THE JUDGMENT IN AS. NO.12/2009 OF SUB COURT, VADAKARA DATED 31-12-2012. AGAINST THE JUDGMENT IN OS. NO. 75/2003 OF MUNSIFF COURT, VADAKARA DATED 29-11-2008.** **......** **APPELLANT/APPELLANT IN AS 12/2009-SUB COURT, VATAKARA/PLAINTIFF IN O.S.75/2003-MUNSIFF COURT, VATAKARA:** **-------------------------------------------------------------------------------------------------------------------** **SAROJINI, W/O.T.M. GOPALAN, AGED 57 YEARS, RESIDING AT PRASANTHI, PUTHUR VAYAL, POST KALPETTA, WAYANAD TALUK, THROUGH AGENT & POWER OF ATTORNEY K. PRABHAKARA KURUP, S/O.CHATHU KURUP, AGED 58 YEARS, PROFESSOR RESIDING AT KANNADINTAVIDA, POST NARIPETTA, VIA KALLACHI, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS. SRI.B.KRISHNAN, SRI.PARTHASARATHY.** **RESPONDENTS/RESPONDENTS IN AS 12/2009-SUB COURT, VATAKARA/ DEFENDANTS 1 TO 10 IN O.S.75/2003-MUNSIFF COURT, VATAKARA, DEFENDANTS 11, 12 & 13 JOINED IN APPEAL ONLY:** - **----------------------------------------------------------------------------------------------------------** **1. RADHA, W/O.NARAYANA KURUP, AGED 61 YEARS, HOUSEWIFE, 13, JANSI RANI STREET, SREE NAGAR COLONY, AMBATHUR POST, CHENNAI-600 062, THAMILNADU.** **2. CHANDRIKA, W/O.VENU, AGED 59 YEARS, HOUSEWIFE, SREENILAYAM, THALIKKARA, POST KAYAKKODY, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **3. SASIDHARAN.T., S/O.GOPALA KURUP, AGED 52 YEARS, RESIDING AT CHOYINANDI MEETHAL, PATHIYARAKKARA, POST PUDUPPANAM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** ## **RSA.No. 626 of 2013** **4. SUNITHA, W/O.SASI, AGED 40 YEARS, RESIDING AT THATHOTH, CHELLATTUPOYIL, POST MANIYOOR, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** - ***5. SAJINA, W/O.BABU, AGED 38 YEARS, RESIDING AT NEDUVAMBATH, POST AYANCHERY, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. (DELETED)** - **5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 10/03/2014 IN I.A. NO.636/2014.** **6. PRASEETHA, W/O.BABU, AGED 36 YEARS, RESIDING AT KALAMBILANKANDY, POST KILUR, VIA MELADY, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE- 673 522.** **7. GOPALA KRISHNAN, S/O.GOPALA KURUP, AGED 34 YEARS, RESIDING AT PATINHARE NADUKKANDY, POST ONCHIYAM, CHOMBALA, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **8. JANAKI AMMA, W/O.GOPALA KURUP, AGED 69 YEARS, RESIDING AT PATINHARE NADUKKANDY, POST ONCHIYAM, CHOMBALA, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **9. KANNOTH AYADAVAN KUDUMBA KSHEMA SAMITHY, A SOCIETY REGISTERED UNDER SOCIETIES REGISTRATION ACT REG. NO.505/2002, POST ONCHIYAM THROUGH ITS SECRETARY.** - ****10. DEVI AMMA, D/O.AMMALU AMMA, HOUSEWIFE, AGED 85 YEARS, RESIDING AT NADUKKANDIYIL, ONCHIYAM AMSOM DESOM, POST ONCHIYAM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. (STRUCK OFF)** - **** NAME OF THE SMT.DEVI AMMA SHOWN AS 10TH RESPONDENT IN THE APPEAL IS STRUCK OFF FROM THE CAUSE TITLE OF THE APPEAL MEMORANDUM AT THE RISK OF THE PETITIONER AS PER ORDER DATED 10/03/2014 IN I.A. NO.635/2014.** **11. VENU, S/O.DEVI AMMA, EX-SERVICEMEN, AGED 57 YEARS, RESIDING AT NADUKKANDIYIL, ONCHIYAM AMSOM DESOM, POST ONCHIYAM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** ## **RSA.No. 626 of 2013** **12. PRABHAKARAN, S/O.DEVI AMMA, AGED 49 YEARS, RESIDING AT NADUKKANDIYIL, ONCHIYAM AMSOM DESOM, POST ONCHIYAM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **13. SAROJINI AMMA, D/O.MANI AMMA, AGED 74 YEARS, HOUSEWIFE, RESIDING AT KANNATINTAVIDA, NARIPPATTA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **R12 BY ADVS. SRI.K.K.RAVINDRANATH, SRI.T.C.SURESH MENON, SRI.P.N.SUKUMARAN, SRI.P.S.APPU, SRI.P.SASI.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2016, THE COURT ON 01/04/2016 DELIVERED THE FOLLOWING:** rs. ## **C.R.** ## **P.B.SURESH KUMAR, J.** **= = = = = = = = = = =** R.S.A.No.626 of 2013. **= = = = = = = = = = =** Dated this the 1[st] day of April, 2016. ## **J U D G M E N T** The defeated plaintiff in a suit for partition is the appellant in this second appeal. 2. The facts relevant for decision are the following: The suit properties belonged to one Gopala Kurup. He assigned the same to his mother Ammalu Amma and sister Devi Amma, the 10th defendant. Later, Ammalu Amma died leaving behind Gopala Kurup and the 10th defendant as her legal representatives. Thereafter, Gopala Kurup also died. The plaintiff is a daughter of Gopala Kurup and defendants 1 to 8 are the remaining legal representatives of Gopala Kurup. There is a temple in the properties sought to be partitioned. The 9th defendant is the 2 ## **R.S.A.No.626/2013.** society managing the affairs of the said temple. The case th of the plaintiff is that on the death of Ammalu Amma, 1/4 share in the suit properties devolved on Gopala Kurup and on the death of Gopala Kurup, the plaintiff and defendants 1 to 8 became entitled to the said ¼ share. According to the plaintiff, she and defendants 1 to 8 are, therefore, entitled to 1/38th share each in the suit properties. The suit is, therefore, filed for partition of the said 1/38th share of the plaintiff. 3. Defendants 1 to 8 remained ex-parte. The 10th defendant contested the suit contending mainly that Ammalu Amma had executed Ext.B1 gift deed in respect of her share in the suit properties in favour of the 10th defendant and thus on her death, the 10th defendant became the absolute owner of the suit properties. 4. The trial court accepted the case of the 10th defendant and dismissed the suit. The plaintiff took up the 3 ## **R.S.A.No.626/2013.** matter in appeal. The 10th defendant died pending appeal. Ext.B1 relied on by the 10th defendant contains a recital that after the death of the 10th defendant, the properties would devolve on the female children of the sister of Ammalu Amma, namely, Mani Amma. The said recital in Ext.B1 reads thus: “6&U, 7&U jÒ¡ vzW¥ j]R£ RwxU j]R£ R^|xVb¾]pLp oLe] AÚvRqºfLReÐOU j]ép]\ÿ]q]¨OÐO. IÐvtORa Rk¦ o¨¥¨OWPa]” AvWLwRÕŸ jaÐ In the light of the said recital, on the death of the 10th defendant, the only daughter Mani Amma got herself impleaded in the appeal as the additional 13th defendant. In view of the death of the 10th defendant, the only contention raised by the plaintiff in the appeal was that in the light of the said recital in Ext.B1 gift deed, the 10th defendant had only a life interest in respect of the ½ share of Ammalu Amma in the suit properties and that on the death of the 10th defendant, the said ½ share of Ammalu Amma became 4 ## **R.S.A.No.626/2013.** vested with the additional 13th defendant. On that basis, it is seen that the plaintiff has entered into a compromise also with the additional 13th respondent in the appeal in respect of the suit properties and a compromise petition as I.A.No.1197 of 2012 has also been filed. I.A.No.1197 of 2012 was opposed by the legal representatives of the deceased 10th defendant contending that the share of Ammalu Amma in the suit properties has been transferred absolutely to the 10th defendant by virtue of Ext.B1 gift deed and as such, on her death, the said share also became vested with the children of the 10th defendant along with the remaining share of the 10th defendant. The appellate court considered the rival claims of the parties and held that Ext.B1 gift deed is an absolute gift in respect of the ½ share of Ammalu Amma in the suit properties in favour of the 10th defendant and that the clause in Ext.B1 relied on by the plaintiff and the additional 13th defendant being one **R.S.A.No.626/2013.** 5 repugnant to the absolute estate created in favour of the 10th defendant is void. Consequently, the appellate court dismissed the appeal rejecting the said contention of the plaintiff. Hence this second appeal. 5. Heard the learned counsel for the appellant as also the learned counsel for the respondents. 6. The learned counsel for the appellant, relying on the recital in Ext.B1 extracted above, contended that in the light of the said recital, it can only be said that the 10th defendant had only a life interest in respect of the ½ share of Ammalu Amma in the suit properties and that the absolute interest in the properties was intended to be given only to the female children of Mani Amma. In other words, the contention of the learned counsel for the appellant is that the clause in Ext.B1 relied on by the plaintiff is not a repugnant clause, but only a defeasance clause. As such, according to the learned counsel, the lower appellate court 6 ## **R.S.A.No.626/2013.** ought to have disposed of the appeal accepting the compromise petition filed by the appellant and the additional 13th defendant in the appeal. 7. Per contra, the learned counsel for the respondents contended that the recitals in Ext.B1 document, if understood in its entirety, would indicate beyond doubt that the intention of Ammalu Amma while executing Ext.B1 document was to create an absolute interest in respect of her ½ share in the suit properties in favour of the 10th defendant. As such, according to the learned counsel, the recital in Ext.B1 relied on by the plaintiff can only be construed as a repugnant clause and hence void. 8. In the light of the rival submissions made at the Bar, the only question arises for consideration is as to whether the clause in Ext.B1 relied on by the plaintiff is a repugnant clause or a defeasance clause. To resolve the said question, it is necessary to understand the nature of **R.S.A.No.626/2013.** 7 ## interest created as per Ext.B1 in favour of the 10th defendant. The relevant portion of Ext.B1 reads thus: “6 &U, 7& U jÒ¡ vzWt]RÓ¤ Ij]¨Oç KLzq] ^ÓU WOu] ¨eU WpVvwU jaÕ oOfsLp IRÕ¡RÕŸ AvWLw°¥¨OU WPa] 400 W v]s j]ép]\ÿ j]SÐLa Ij]¨Oç vLÃs|U Nkf] lsoL¨] Cf]jL¤ `L¢ j]j¨V hLjoLp] fq]WpOU WpVvwoOç òsU AfWt]Rs yWsR¾LaOWPa] Ku]´ WpVvwU fq]WpOU R\pÅ]q]¨ RWLº Ij] kŸ]Wp]Rs vzW¥ yUmÌoLp pLRfLÐ]ÐOU j]e¨sæLRf Ij]¨ pLRfLqvWLw mLÈ|fpOU Rj¡\ÿpOU jaÕOU Csæ AfO RWLº kŸ]Wp]Rs vzW¥ CÐ oOf¤ j} DaopLp] AvWLwRkŸOU WpVvwoOç vzW¥ WpVvwU Rv\ÿ Aa¨]pOU ^Ó vñO¨tORa j]WOf] RWLaO¾OU ^ÓosæL¾ y~¾O¨t]¤ j]Ð RWLaOS¨ºfLp RosL¤ ^Ó] kOrÕLaRWLaO¾OU orOvLŸ°¥ NkWLqU WOa]pLÓLqL¤ W]RŸºfLp RosL¤ kOrÕLaOW¥ vyP¤ R\pÅOU ^Ó] WOa]pLÓLqOoLp] Rjq]RŸL WOa]pLÓLq RRWvwoOç y~¾O¨¥ j} RjRq v|vzLqRkRŸLu]Õ]R\ÿL oRãL WpVvwRÕaO¾]pOU DºLvOÐ BhLpU IRÐÐOU j} AjOnv]\ÿ vqLjLp] Cf]jL¤ `L¢ j]RÐ Ai]WLqRÕaO¾]yÚf]\ÿ fq]WpOU R\pÅ]q]¨OÐO.” It is trite that after conferring an absolute estate in favour of the donee, the legal incidents of such an estate cannot be controlled or regulated by the donor. It is also trite that any such provision in the deed of gift will be repugnant to the absolute estate created in favour of the donee and to the legal incidents of such an estate and as such, the provision will be ineffective and wholly void. [ _See_ **Bai Kevli v.** 8 ## **R.S.A.No.626/2013.** **Dalsukhram Sakarchand** (AIR 1945 Bombay 178), **Minor Krishnaswami by grandmother and next friend, Pankajammal v. Minor Srinivasan and others** (AIR 1945 Madras 362) and **Pugalumperumal Pillai v. Thangathammal** (AIR 1949 Madras 690)]. As far as the present case is concerned, the recitals in the document as extracted above would indicate beyond doubt that the intention of the donor was to give the property absolutely to the 10th defendant. If the intention of the donor was to give the property absolutely to the 10th defendant, as held in the decision referred to above, the clause relied on by the plaintiff can only be held to be repugnant and hence void. 9. A defeasance clause is a clause which imposes a condition upon the fulfillment of which a deed or other instrument is defeated or made void. The distinction between a defeasance clause and a repugnant clause is that where the intention of the donor is to maintain the absolute 9 ## **R.S.A.No.626/2013.** estate conferred on the donee, but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void, but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative. [ _see_ _**Govindaraja Pillai v. Mangalam Pillai**_ (1933 Madras 80)]. The logic behind the said view is that Section 28 of the Transfer of Property Act expressly allows gift on an interest in favour of a donor subject to condition that on the happening of a specified uncertain event, the interest shall pass on to another person. As far as the present case is concerned, as noted above, the recitals in Ext.B1 would indicate beyond doubt that the interest on the 1/2 share of Ammalu Amma 10 ## **R.S.A.No.626/2013.** in the suit properties has been absolutely vested with the 10th defendant and the said vesting was not expressly or impliedly made subject to defeasance on the happening of a contingency. The clause relied on by the appellant, in the circumstances, cannot be understood as a clause which would come within the purview of Section 28 of the Transfer of Property Act. As such, the said clause cannot be construed as a defeasance clause. 10. The learned counsel for the appellant, relying on the decision of the Apex Court in _**Ramachandra Shenoy** v._ _**Hilda Brite**_ (AIR 1964 SC 1323) contended that to the extent it is legally possible, effect should be given to every disposition contained in a document unless the law prevents effect being given to it. According to the learned counsel, if one attempts to give effect to the clause relied on by the plaintiff in Ext.B1, it can only be said that what was intended to be given to the 10th defendant as per the said 11 ## **R.S.A.No.626/2013.** document was only a life interest in respect of the ½ share of Ammalu Amma. I do not agree. First of all, _**Ramachandra Shenoy** v._ _**Hilda Brite** (supra)_ is a case dealing with the interpretation of a Will and the principle referred to therein is a principle governing the construction of Wills. According to me, the principles laid down by the Apex Court in the said case cannot be applied as such to a case of gift where essentially the question is as to whether a particular clause contained therein is a repugnant clause or a defeasance clause. The second appeal, in the said circumstances, is devoid of merits and the same is accordingly dismissed. _**Sd/-**_ **JUDGE.** **P.B.SURESH KUMAR,** ## _**Kvs/-**_ _**// true copy /**_ ## _**PA TO JUDGE**_