CHOYI Vs. PERAVANKUTTY

JUDGEMENT

(1.) The first plaintiff in O.S.6 of 1983 is the appellant. The second plaintiff has been impleaded as respondent No.2. The plaintiffs are the children of one Ram. The defendant in the suit was another son of Raru. In addition to the plaintiffs and the defendant, Raru had another child Unnooli. The defendant is respondent No. 1 in the Second Appeal. Pending Second Appeal he died on 13-2-1991. His wife UnniPeri was impleaded as additional respondent in the Second Appeal. The defendant, respondent No. I put forward a contention that pending the proceedings he had assigned the plaint schedule, properties in favour of One Alavi and one Mohammed. The said persons have been supplementally impleaded as additional respondents in this Second Appeal. There appears to he a mistake showing the ranking in the memorandum of Second Appeal. The ranking will be corrected to show Unniperi, wife of the first respondent as supplemental respondent No.3. Alavi as supplemental respondent No.4 and Mohammed as supplemental respondent No.5.

(2.) The suit by the plaintiffs was one for a perpetual injunction restraining the defendant from alienating the plaint schedule properties on the ground that he had a limited interest in the properties and that the title to the properties vest with the plaintiffs. This claim of the plaintiffs was denied by the defendant, who claimed that he had absolute title to the properties and he could not be restrained by any injunction as claimed by the plaintiffs. The suit was dismissed by the courts below accepting the contention of the defendant and hence this Second Appeal by the first plaintiff.

(3.) The plaint schedule properties and other Hems of properties belonged to Raru, the father of the plaintiffs and the defendant. On 26-9-1961 1 Raru executed a Will which is marked as Ext. A1. Under the said Will Raru bequeathed the properties in favour of the defendant, his eldest son plaintiffs and Unnooli and Tirumala his wife. The defendant was shown as part No. 1 to that Will, the plaintiffs were shown as parties 2 and 3, Unnooli was part No.4 and Tirumala was party No.5. In para.4 of the Will Raru provided that items 1 acid 2 of the schedule to the Will along with two palmyra palms standing at the north western corner of item No.4 would devolve on the defendant exclusively on his death. In para.7 of the Will he provided that in case the defendant died prior to his death, if he had left behind children, the properties set apart to him were to go to those children. In case he had no children, his wife, additional respondent No.3 herein would have a life interest with a right to be in possession and the right to take the income until her life lime and item No. 1 would vest with the first plaintiff herein and item No.2 and the Palmyra palms would vest with plaintiff No.2 herein. It was further stated that since the defendant had no children at the time of execution of the Will, the defendant had no right to sell the properties set apart to him in para.4 of the Will and that he had only a right to encumber the properties to the extent of Rs. 100/-. In para.8 he provided for the contingency if any one of the plaintiffs pre-deceased him. In para.9 of the Will he reiterated the position by providing that the Will will come into effect only on his death and all the conditions provided in Clause.3 to 8 would come into effect only on his death and he would have the right to after or cancel the Will. The case of the plaintiffs was that read as a whole the estate bequeathed to the defendant was only a life interest with vested remainders to the plaintiffs in the respective items that the defendant could not therefore alienate the properties and hence they are entitled to an injunction restraining him from doing so. The defendant on the other hand contended that the bequest in his favour was absolute that since he survived Raru, Clause.7 of the Will had no operation and that in any event the said clause was bad and could not defeat the absolute estate coffered on him under Clause.4 of the Will. He relied on S.124 of the Indian Succession Act in support of his plea. The Trial Court held that the divesting clauses in the Will are unenforceable in law and consequently the defendant would have absolute rights over the properties bequeathed to him under Ext.A1 will. This view of the Trial Court has been upheld by the lower appellate court with the result that the suit by the plaintiffs stands dismissed.