JUDGMENT

K. S. Radhakrishnan, J.-Leave granted.

2. We are, in this appeal, called upon to determine the question whether the recitals in exhibit A1 concerning item No.1 of schedule No. 8 therein (item No. 1 of the plaint schedule) discloses a testamentary disposition or a settlement creating vested rights in favour of the plaintiffs and defendant Nos. 1 to 3 though possession and enjoyment stood deferred until the death of the executants.

3. O.S. No. 169 of 1990 was instituted before the court of Subordinate Judge, Thiruvalla by the original plaintiffs and one Eapen for partition and separate possession of various items of properties, of which, we are in this appeal concerned only with item No. 1 of the plaint schedule. The trial court passed a preliminary decree giving various directions, however with regard to the above mentioned item which relates to 3 acre 40 cents, it was held that exhibit A1 document did not preclude the executants’ rights for disposing the same during their lifetime. Consequently, the trial court held that so far as item No.1 in schedule No. 8 of exhibit A1 is concerned, the same has the characteristics of a testamentary disposition, therefore not available for partition. The court held that B3 sale deed executed in favour of 3rd defendant in the year 1964 by Sosamma Eapen was valid so also B1 sale deed executed in the year 1978 by the 3rd defendant in favour of 4th defendant.

4. The plaintiffs took up the matter in appeal as A.S. No. 62 of 1991 before the court of District Judge, Pathanamthitta, which was allowed vide judgment dated 26.03.1994 and the decree and judgment of the trial court was modified and a preliminary decree was passed allowing partition and possession of 3/6th share of various items including sub-item 1 of schedule No. 8 of exhibit A1 document. The Appellate Court took the view that the above item was settled by exhibit A1 in favour of the original plaintiffs and defendant Nos. 1 to 3 jointly though its possession and enjoyment were deferred till the death of the executants. It was also held that the assignment deed, executed by one of the executants and later by 3rd defendant, was not binding on the plaintiffs.

5. Defendant Nos. 3 and4 then filed Second Appeal No. 686/1994 before the High Court. The High Court affirmed the judgment of the lower appellate court vide judgment dated 12.03.2009. While the appeal was pending before the High Court, the 3rd defendant died and his legal heirs got themselves impleaded. The High Court took the view that disposition with regard to the above mentioned item was not ambulatory in quality or revocable in character during the lifetime of the executants and held that the disposition of the plaint item No. 1 is a settlement though possession and enjoyment were deferred. It was held that the executants had no right of disposal of that item and hence the transfer in favour of defendant No.3 and the subsequent assignment in favour of defendant No.4 were invalid. Aggrieved by the same, these appeals have been preferred.

6. Shri T. L. Viswanatha Iyer, learned senior counsel appearing for the appellants submitted that exhibit A1 does not postulate any transfer of ownership or title over 8th schedule by the executants to their sons so also schedule Nos. 7 and 9. Learned senior counsel submitted that items in schedule Nos. 7, 8 and 9 were under their absolute control of the executants and they had the full freedom to deal with those properties. Learned senior counsel referring to the various recitals in exhibit A1 agreement submitted so far as schedule Nos. 1 to 6 are concerned, the transfer of interest was absolute in character and settled on all the sons equally and rest of the three items of the schedule, the executants had retained those items to themselves and to that extent exhibit A1 operated only as a Will. Learned senior counsel pointed out that so far as schedule Nos. 7 and 9 are concerned, the courts found that they are testamentary in characte