NARAYANAN ANANDAN Vs. R RAKESH

JUDGEMENT

(1.) First defendant is the appellant. Second defendant is the father of the first plaintiff and husband of the second plaintiff. First plaintiff being a minor is represented by his mother the second plaintiff. The suit is filed to set aside two sale deeds, Ext. A2 and A3, executed by the second defendant in favour of the first defendant. The property comprised in Exts. A2 and A3 has an extent of 10 1/2 cents which forms part of 30 cents obtained by the 2nd defendant under Ext. A1 will dated 8-11-1952. Ext. A1 will was executed by Kesavan Kunjukrishnan in favour of the second defendant who is the testator's brother's son. Plaintiffs' case is that second defendant was given only a life interest as per Ext. A1 and so he was not competent to alienate the property and that the alienations in favour of the first defendant are invalid. First defendant's contention is that second defendant has got absolute right as per Ext. A1 will and the condition regarding restraint of alienation is invalid. It is alternatively contended by the first defendant that even assuming that second defendant has only life interest as per Ext. A1 that right is transferable and so first plaintiff cannot claim any right in the property so long as the second defendant is alive.

(2.) The Trial Court declared the title of the first plaintiff over the plaint schedule property finding that Ext. A2 and A3 sale deeds are void and that the second plaintiff is entitled to, recover possession of the property for and on behalf of the first plaintiff from the first defendant. First defendant is restrained by a permanent injunction from putting up any buildings in the plaint schedule property and from committing any acts of waste thereon. The judgment and decree of the Trial Court have been confirmed by the lower appellate court.

(3.) The question that arises for consideration is whether as per Ext. A1 will the second defendant is given only a limited interest viz. life interest or that he has been given absolute right and if so, the condition regarding restraint of alienation is valid. To resolve the controversy the recitals in Ext. A1 have to be considered in the light of the observations made in Gnambal Ammal v. Raju Ayyar ( AIR 1951 SC 103 ) wherein the Supreme Court held: