ULAHANNAN ISAAC Vs. ULAHANNAN JOHN

JUDGEMENT

(1.) THE appellant is the plaintiff in O.S.No.127 of 1965 on the file of the Munsiff,Muvattupuzha.The plaintiff and defendants 1 and 2 are the children of the 3rd defen­dant,Ulahannan Ulahannan,and the 4th defendant,Acha.Ext.P -1,described as a settlement deed was executed by defendants 3 and 4 in respect of their properties.The document recited that moveables belonging to the execu­tants had been divided among their children and that the subject -matter of the desposition was the moveable properties and the liabilities.The A schedule items were allotted under the document to the 1st defendant,B schedule items to the plaintiff and the G schedule items to the 2nd defendant.On the date of the document certain of the properties along with some properties of the plaintiff were outstanding under a chitty hypothecation bond represented by document No.871/58 and an amount of Rs.3,000 remained to be paid.The plaintiff was directed to dis­charge the liability.An amount of Rs.2,000 was directed to be paid by the 2nd defendant to Chinnamma,the daughter of the executants within a period of 2 years from the date of the document.In case the plaintiff and the 2nd defendant did not pay the amounts directed to be paid by them respectively,the 3rd defendant in his life -time and the 4th defendant thereafter,if she was living,would be entitled to discharge the debt by sale of the items in the B and G Schedules.The executants reserve the right to reside in the property in the C Schedule and to take the usufructs of the items in the different schedules during their life -time either directly or by granting leases.The document further recited that in case the plaintiff and defendants 1 and 2 omitted to discharge debts or failed to maintain defendants 3 and 4 the latter had the right to cancel the document.The executants had the right to execute any document in respect of the items by themselves;but in case the plaintiff or defendants 1 and 2 were to sell any of the items,they could do so only with the concurrence of defendants 3 and 4.

(2.) ACCORDING to the plaintiff,after the execution of the document he had been subscribing to the chitties and was in possession of the properties allotted to him.How­ever defendants 3 and 4 under the influence of defendants 1 and 2 executed Ext.P -6,an assignment deed in favour of the 1st defendant in relation to items 1 and 2 in the plaint and also Ext.P -7 a lease deed in favour of the 5th defendant in respect of item No.3.The plaintiff would contend that the 3rd defendant had no right to execute such documents.The suit was accordingly filed for a declaration that Ext.P -6 the assignment deed and Ext.P -7 the lease deed were not valid and binding on the plaintiff.In the alternative the plaintiff claimed recovery of amounts spent by him in discharging the debts as per the directions in Ext.P -1 and also for value of improvements.

(3.) THE main contention put forward on behalf of the appellant is that Ext.P -1 is not a Will as found by the courts below but that it is a deed of settlement conferring rights in praesenti to the plaintiff and defendants 1 and 2 in the properties of defendants 3 and 4.The properties allotted to the respective sons vested in the allottees on the execution of the document.The fact that the defendants 3 and 4 retained their right to take the usufructs of the pro­perties either directly or by execution of a lease deed does not detract the character of the document as a settlement deed.The fact that the plaintiff and the 2nd defendant are directed to discharge the liabilities outstanding the properties even during the life -time of the defendants would only show that they obtained a right in praesenti in the properties.If the recitals in Ext.P -1 had the effect of vesting the properties in plaintiff and defendants 1 and 2,there could not be a subsequent divesting and the defendants 3 and 4 were not entitled to revoke the document.The clause relating to revocation of the document could not have therefore taken effect.The direction that the executees are entitled to sell the properties only with the concurrence of defendants 3 and 4 being a restraint on alienation is not binding on the plaintiff.