Suit property, it is not disputed originally belonged to Narayani amma, mother of appellant and respondent No.1. While so, she executed Ext.B1, settlement deed No.4197 of 1984 dated 13.12.1984 purporting to transfer her right in the suit property in favour of respondent No.1 but of course reserving a right to take usufructs from the property and to reside in the building that may be constructed in the said property during her lifetime. After about two years on the premise that conduct of respondent No.1 towards her has changed she chose to cancel Ext.B1, settlement deed as per Ext.A2, cancellation deed No.2362 of 1986 dated 22.5.1986. That was followed by her executing Ext.A1, settlement deed No.495 of 1992 dated 5.3.1992 in favour of the appellant allegedly transferring her right, title and interest. In the year, 1995 apprehending trespass by respondents appellant filed O.S. No.131 of 1995 seeking declaration of her title and possession of the suit property and for prohibitory injunction.

Respondents resisted the suit and made a counter claim contending that appellant has no title or possession of the suit property and that it belonged and is in the possession of respondents as per Ext.B1. It is their contention that Ext.A1, settlement deed No.495 of 1992 is void since the mother who executed that document had no right, title, interest or possession to be conveyed to the appellant. Counter claim prayed for declaration of title and possession of respondent No.1 in the suit property and decree for prohibitory injunction against appellant trespassing into it. Appellant filed replication contending that Ext.B1 had not taken effect and the same was cancelled as per document No.2362 of 1986. Hence mother was competent to execute Ext.A1, settlement deed in her favour. Learned Munsiff was of the view that Ext.B1 has not taken effect, it was validly cancelled by the executant as per cancellation deed No.2362 of 1986 and hence she had authority, right, title and interest over the suit property to convey the same to the appellant as per Ext.A1. Accordingly counter claim was dismissed and suit was decreed. Aggrieved, respondent took up the matter in appeal. Learned District Judge held that since Ext.B1 had taken effect and by that document executant had conveyed whatever right she had over the suit property in favour of respondent No.1 though reserving a life interest as aforesaid, she could not cancel Ext.B1 or transfer the property in favour of the appellant as per Ext.A1. Validity and binding nature of Ext.B1 was upheld. Consequently judgment and decree of the trial court were reversed and respondents were given a decree as prayed for in the counter claim. Suit ended in dismissal. That judgment and decree are under challenge in this Second Appeal at the instance of appellant/plaintiff.

2. The following substantial question of law is framed for a decision. When the assignor in Ext.B1 has reserved certain rights which included a right to join in the document of encumbrance or transfer to be effected by the donee and not having effected mutation in favour of the donee and further conduct of donor in executing Ext.A2 cancellation deed and subsequent settlement deed is the first appellate court right in holding that Ext.B1 is an absolute transfer? Learned Senior Advocate harping upon the above question and relying on the decision of the Supreme Court in Baby Ammal v. Rajan Asari (1997 [1] KLT 340 (SC) and Subbegowda [dead] by Lr. V. Thimmegowda [dead] by Lrs. (JT 2004 [5] SCC 274) contended that Ext.B1 is not an absolute transfer of property in favour of respondent No.1, conditions imposed in Ext.B1 would show that there was no absolute transfer and that at any rate there was no transfer of possession of the property in favour of respondent No1. According to the learned Senior Advocate Ext.B1 not being an absolute transfer in favour of respondent No.1, its executant was competent to cancel the same as per Ext.A2 and convey her ri