The main legal point established in the judgment is the interpretation of the clause in Ext. Al regarding the devolution of property, and the distinction between a repugnant clause and a defeasance clause.

K.A. Abdul Gafoor, J.

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. Al 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 properly was allotted to said Janaki. By Ext. Al the respective property 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 issue less. During the life time of Janaki, her husband-Sanku Nair had married one Meenakshi. Meenakshi gave birth to children of SankuNair, the husband of Janaki. Defendant No. 2 is one among them. Defendant No. 2 contended that clause 1 contained in Ext. Al regarding devolution of property on the death of Janaki as issue less is repugnant to the absolute transfer intended in Ext. Al 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. Al. 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:

"I. Whether the recitals in Ext. Al document regarding devolving of property of the party who has no issues to the party having issues is a repugnant clause or a defeasance clause?

2. Are not the recitals in Ext. Al document in derogation of the absolute estate granted earlier and as such repugnant to the preceding absolute estate?"

2. Both questions of law thus raised are based on the recitals contained in Ext. Al 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. Al. It is contended by him, relying on decisions reported mFatima 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 Pugalumperumal Pillai v. Thangathanunal (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 donor 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.

14. The deed considered in Fatima v. K. Saraswathi Amma (AIR 1986 Ker. 56) was a family settlement deed with certain restrictions that an incumbent shall not encumber or alienate the items in his share and such items should devolve upon his descendants for successive generations. This is absolutely one coming within S.10 of the Transfer of Property Act and therefore void, because it was, according to this Court an imposition of "total restraint on transfer of property or to impose rules to keep it out of circulation for ever offends public policy, irrespective of whether such conditions are imposed by a dee