Mistakes in property derivation do not invalidate a valid settlement deed if the intention is clear.

JUDGMENT

1. This is an appeal filed by the 1^st defendant in the suit. The suit was for mandatory injunction and prohibitory injunction filed by the plaintiff.

2. As per plaint allegations, the plaint Schedule Item No.1 property as per Ext.A1 settlement Deed executed by the father of the plaintiff. The defendants are the brothers of the plaintiff. Defendant No.2 is having property on the southern side of item No.1 property. The defendants trespassed into plaint scheduled item No.1 property and erected a temporary shed using wooden sticks and tarpaulin which is included in Plaint Schedule Item No.2. Defendant No.2 cleared about 30 cents of land on the western side of the said shed and the said property is included in Plaint Schedule Item No.3. Hence, the suit is filed to remove item No.2 shed and also to restrain the defendants from trespassing into the plaint scheduled Item No.1 property.

3. The defendants opposed the suit prayers contending inter alia that the father of the parties retained life interest over the property. The plaintiff did not comply with the terms and conditions in Ext.A1, and hence, the father canceled Ext.A1 Settlement by Ext.B2 Cancellation deed, and thereafter, out of the said property, 30 cents was given to defendant No.1 and 50 cents was given to the defendant No.2 orally. The defendants have been residing in the said properties cultivating the same from the year 2006 onwards. They have no intention of trespassing into the remaining portion of the plaint scheduled property which is in the possession of the plaintiff.

4. The Trial Court decreed the suit, and the 1^st defendant filed appeal before the First Appellate Court and the same was dismissed, confirming the judgment and decree of the Trial Court.

5. I heard the learned counsel for the appellant, Sri. C.S.

Bissimon.

6. The learned counsel for the appellant contended that, Ext.A1 Settlement is non est on account of two fundamental legal defects with respect to the same. The first legal defect is that the derivation of the property is wrongly stated in Ext.A1. In Ext.A1, the property is stated as derived as per Ext.B1 Document No.643/2003, whereas Ext.B1 would prove that the property and the survey number are different. The second legal defect is that there are no witnesses in Ext.A1 Settlement as required under Section 123 of the Transfer of Property Act . But the Trial Court, as well as the First Appellate Court, illegally treated the Scribe and the Document Writer as attesting witnesses, which is in violation of Rule 30 of the Kerala Registration Rules. The learned counsel invited my attention to Rule 30, which mandates that if the document is a non-testamentary document presented for registration, the Document Writer, as well as the Scribe, shall attest the document.

7. On consideration of the above contentions, I find that, admittedly, the property which is scheduled in Ext.A1 originally belonged to the father. Ext.B2 Cancellation Deed also affirms that the property covered by Ext.A1 belonged to the father of the parties, and hence, he executed Ext.B2 to get back the property. The Trial Court and the First Appellate Court have found that Ext.B1 is not the prior Deed of Ext.A1 as the properties and survey numbers are different. The defendants do not have a case that the property scheduled in Ext.A1 is not the property of the father. A mere mistake in the derivation of title in ExtA1 is not sufficient to hold that the said settlement is invalid. When the father has made his intention clear with respect to the settlement of his property as per the description in the said document