PERCY GERALD PAPPALY SUBJECT INDEX LIFE INTEREST COMPARATIVE CITATION 1968 KLT 449 Vs. GEORGE PAPPALY
HIGH COURT OF KERALA
PERCY GERALD PAPPALY SUBJECT INDEX: LIFE INTEREST COMPARATIVE CITATION: 1968 KLT 449
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(1.) THE short question that arises for consideration in this revision petition is whether a fallen tree could be taken and enjoyed by a person who holds a life interest in the property. A settlement deed has been executed by the respondents in favour of the petitioner in respect of the property, reserving to themselves the right of enjoyment for their life-time. Subsequent the petitioner alleging that the life estate was orally transferred to him by the respondents, attempted to enter possession of the property. So, the respondents who are the parents of the petitioner had to file a suit O. S. 121/65 in the Munsiff Court of Ernakulam for a perpetual injunction to restrain the petitioner from entering possession of the property. During the pendency of the suit some yielding trees fell down due to natural causes and the corpus of these trees is now claimed by the petitioner who is the donee under the settlement, on the ground that it is part of the corpus of the property and will not constitute usufruct which alone the respondents were allowed to enjoy. THE respondents' case is that the timber of the fallen trees was fit only for fuel and it was accordingly used by them, for firewood. THE learned Munsiff stating that the petitioner (defendant) has not made out a case for sale of the timber in auction, has dismissed the petition I. A. 1395/67 filed by the revision petitioner.
(2.) THE whole question would depend upon the construction of the term'usufruct'. THE expression used in the document is the dictionary meaning of BZmbw is (i) (ii) (Vide Sabdataravali by G. Padmanabha Pillai Part i ). If a fallen tree is taken as an item of it can be enjoyed by the usufructuary. THE term'usufruct, is defined as: "the right of using and taking the fruits of something belonging to another. It was understood to be given for the life of the receiver, the usufructuary, unless a shorter period was expressed, and then it was to be restored to the owner in as good condition as when it was given except for ordinary wear and tear. " (Vide Concise Law Dictionary by osborn, 3rd Edn.) In Black's Law Dictionary, 2nd Edn. , the term'usufruct' is defined as: "the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility, and advantage which it may produce provided it be without altering the substance of the thing An usufruct in those things which the usufructuary can enjoy without changing their substance, though their substance may be diminished or deteriorate naturally by time or by the use to which they are applied". THE crux of the matter is that without committing any waste, the usufructuary can enjoy all the profit, utility and advantage deriving from the possession of the property. It is not correct to equate the holder of a life estate to a possessory mortgagee as was contended by the learned counsel for the petitioner. A possessory mortgagee is bound in law to account to the mortgagor for all loss sustained during the period he was in possession. In the present case, the life estate holders are themselves the donors or the settlers and the right of enjoyment has been reserved to themselves in the document. Whatever profit and advantage they can derive from the property during the period they are in possession can be appropriated by them, subject to the condition that they shall not commit waste in the property. In this view, I think they are not accountable to the revision petitioner for the value of the fallen trees- fallen due to natural causes. THE revision, in the circumstances, is groundless and is accordingly dismissed. No costs in this court. Dismissed.;
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