VARKEY VARGHESE Vs. KATHREENA

JUDGEMENT

(1.) Interpretation of a settlement deed executed by a father in favour of his daughter containing a restrictive covenant that if she 'marries' or becomes a 'nun', the property will revert back to her brother comes up for consideration in this appeal.

(2.) Suit filed for declaration of title and possession at the instance of the respondent / plaintiff was dismissed on the ground that the suit is barred by limitation. On appeal by the plaintiff, the First Appellate Court reversed the judgment and decree and held that the plaintiff is entitled for the relief and decreed the suit.

(3.) The plaintiff was given an extent of 10 cents pursuant to a settlement deed dtd. 13/9/1965 by her father. Three schedules were drawn up in the settlement deed. The plaintiff was conferred right and title over the B schedule property. The dispute in the appeal centers around a clause in the settlement deed, wherein the father inserted a clause by stating that if the plaintiff got married or becomes a nun, the entire rights in the property would extinguish and would later devolve upon the defendant. The plaintiff got married on 23/6/1971. The father died in 1983. Later the plaintiff was in Germany, after her marriage. Subsequently, the plaintiff came to know that the defendant had in a clandestine manner mutated the property without any authority and was enjoying the property. Hence the suit for declaration was instituted stating that the offending clause in the settlement deed, which bars the plaintiff from enjoying the property because of her marriage, is void ab initio. The defendant resisted the suit by contending that the suit is barred by limitation. It was further contended that there was no cause of action for the plaintiff to file the suit. It was further pointed out that the suit property was mutated by the defendant soon after the marriage of the plaintiff and that the property was wholly enjoyed by the defendant and it was mortgaged with a third party and the usufructs were being collected from the property by the defendant. On behalf of the plaintiff, Exts.A1 to A4 documents were marked and PW1 and PW2 were examined. On behalf of the defendant, Exts.B1 to B5 were marked. Exts.X1 and X2 were the third party exhibits. There was no oral evidence adduced by the defendant.