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JUDGMENT

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL

APPEAL

NO.

8197

OF

2012

[Arising out of SLP (Civil) NO.13385 OF 2009]

Mathai Samuel & Ors.

.. Appellant(s)

Versus

Eapen Eapen (dead) by Lrs. & Ors.

.. Respondent(s)

J U D G M

E N T

K.

S.

Radhakrishnan,

J.

1.

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

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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 3^rd defendant in the year

1964 by Sosamma Eapen was valid so also B1 sale deed executed

in the year 1978 by the 3^rd defendant in favour of 4^th defendant.

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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 3/6^th 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 3^rd defendant, was not binding on the plaintiffs.

5.

Defendant Nos. 3 and 4 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 3^rd 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

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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 8^th 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 reci