KOCHU NEELAKANTAN Vs. NANI THANKAMMA

JUDGEMENT

(1.) Defendant No. 2 in a suit for partition is the appellant in this Second Appeal. He has challenged a concurrent decree rendered against him. Defendant No. 1 actually supported the plaintiff. The plaintiff sued for two-third share over the property. One Kallyani, the maternal grand mother of the plaintiff and defendant No. 1 executed Ext. A1 settlement deed giving away what ever property she had to her two daughters Nani and Janaki. Plaintiff and defendant No. 1 are the children of said Nani. The plaint schedule property was allotted to said Janaki. By Ext. A1 the respective properly was absolutely given to the said two daughters; but it contained a clause that in case any among them dies without issues, the property shall devolve upon the other. Admittedly Janaki died issueless. During the life time of Janaki, her husband-Sanku Nair had married one Meenakshi. Meenakshi gave birth to children of Sanku Nair, the husband of Janaki. Defendant No. 2 is one among them. Defendant No. 2 contended that Clause.1 contained in Ext. A1 regarding devolution of property on the death of Janaki as issueless is repugnant to the absolute transfer intended in Ext. A1 itself and in such circumstances, Janaki should have absolute right over the property. So, the plaintiff could not have sued for partition of the properties vested in Janaki as per Ext. A1. The suit was decreed which was later confirmed by the lower appellate court. The defendant No. 2 has thus formulated two questions of law in this Second Appeal, as follows:

(2.) Both questions of law thus raised are based on the recitals contained in Ext. A1 regarding devolution of property on the death of said Janaki, as to whether it is a repugnant clause or a defeasance clause. The Courts below mainly relying on the decisions reported in AT. Narayanan v. State ( AIR 1973 Ker. 96 (F.B.) did not accept the contention of the appellant that those are repugnant clauses to defeat the absolute transfer intended as per Ext. A1. It is contended by him, relying on decisions reported in Fatima v. K. Saraswathi Amma ( AIR 1986 Ker. 56 ), Subramanian v. Kanni Ammal (AIR 1953 TC 115), and Pugalumperumal Pillai v. Thangathammal (AIR (36) 1949 Mad 690), that such clauses will act as repugnant clause and therefore is to be ignored and the property did not devolve, on the death of Janaki, to Nani or her children.

(3.) A reading on the decisions contained in Pugalumperuumal Pillai v. Thangathammal (supra) and Subramanian v. K. Kanniammal (supra) will disclose that what had been discussed therein were certain clauses contained in the gift deeds which enable reversion of property gifted, back to the donor or his children or enjoyment of the property by the donee or their progenies. The Court found that a reading of the documents and the intention manifested in the documents would reveal that the gifts were absolute and therefore the clauses regarding reversion to the donor should be ignored, because those were repugnant to the transfer made as per the deeds in question.