SULOCHANA AMMA Vs. NARAYANAN NAIR

JUDGEMENT

(1.) THE first defendant is the appellant. The suit filed by the respondent was one for declaration of title and for recovery of possession of the plaint schedule property. The suit has been decreed by the courts below. Hence this Second Appeal by the first defendant.

(2.) THE plaint schedule property belonged to one Kutti Amma the maternal aunt of the plaintiff. The husband of Kutti Amma was one Krishnan Nair. On 19-5-1961 Kutti Amma executed Ext. A1 udambadi. According to the plaintiff under the said udambadi the plaint schedule property was settled on him subject to the retention of a life estate in favour of Kutti Amma and her husband Krishnan Nair. According to the plaintiff the document only provided that Krishnan Nair was to be in possession of the property entitled to take the income even during the life time of Kutti Amma. There was a further provision its the document that any document in respect of the property was to be executed only jointly by Kutti Amma and Krishnan Nair. It was further provided that in case Kutti Amma and Krishnan Nair did not dispose of the property it will devolve on the plaintiff. So according to the plaintiff reading the document harmoniously it must be construed that the property was settled to him in prenti and that he had derived title thereto, Kutty Amma died in the year 1971. It appears that Krishnan Nair attempted to cut down the improvements in the property which resulted in the present plaintiff filing a suit O.S. 151 of 1972 for a permanent injunction restraining Krishnan Nair from cutting or removing any trees standing in the property. Krishnan Nair has joined Issue with the plaintiff regarding the title to the property. An issue was framed in that suit as to whether the present plaintiff had derived title as per the document executed by Kutti Amma which is marked in the present proceedings as Ext. A1. By Ext. A2 judgment the Trial Court found that under the document executed by Kutti Amma the present plaintiff has acquired title to the property and that Krishnan Nair had only a life Interest over the property and had no authority to commit waste in the property. A decree for injunction was passed against Krishnan Nair. Krishnan Nair filed an appeal A.S. 38 of 1966 against "the said decree of the Trial Court. By Ext. A4 Judgement dt. 9-6-1978 the decree of the Trial Court was confirmed with the result that the finding that the plaintiff herein had acquired title to the said property subject to a life interest in favour of Krishnan Nair became final.

(3.) MEANWHILE Krishnan Nair had died in the year 1981 and the life estate in his favour came to as end. The present suit was therefore filed by the plaintiff as mentioned for declaration of title and recovery of possession. The present appellant who bad taken Ext. B1 from the assignees of Krishnan Nair and her husband who died pending suit were impleaded as defendants. According to the plaintiff under the settlement deed Ext. A1 he had title to the property and his title to the property stands confirmed by the adjudication Exts. A2 to A4 and the appellant who claims to be only an assignee from Krishnan Nair is bound by the decision and on the expiry of the life estate of Krishnan Nair the plaintiff is entitled to recover the property. The appellant resisted the suit by contending that Krishnan Nair had absolute title over the property and that under Ext. A1 the plaintiff did not get title to the property. It was also pleaded that Exts. A2 to A4 do not create any bar of res judicata in view of the finding that that suit was only for an injunction.