ARUMUGHAM PILLAI Vs. BHAGAVATHI AMMA
HIGH COURT OF KERALA
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(1.) THE suit,out of which this appeal arises,was instituted by the plaintiff "the appellant,for a declaration that a hypothecation bond executed by the 1st defendant in favour of the 2nd defendant is valid only to the extent of the interest of the 1st defendant in the property in question.The property was purchased in the name of the 1st defendant,the second wife of one Arumugham Pillai Sivantha Perumal;the plaintiff being his son by his first wife.It was recited in the sale deed Ext.P -1 that the consideration for it has proceeded from the husband of the 1st defendant,that the 1st defendant is to have a life interest in the property and that after her death the full interest in the property shall devolve on the plaintiff and his male children.The case of the plaintiff was that according to the provisions in the recital the 1st defendant has only a life interest in the property,that the remainder vested in the plaintiff and that the hypothecation bond was valid only to the extent of the interest of the 1st defendant.
(2.) THE 1st defendant contended that she obtained an absolute interest in the property under Ext.P -1.
(3.) THE learned Munsiff accepted the contention of the 1st defendant for the reason that the sale deed by its operative portion conveyed an absolute interest to the 1st defendant and that the later recital in it extracted below being repugnant to the absolute interest created in favour of the 1st defendant was inoperative.The specific provisions of the recital are: ...[VERNACULAR TEXT COMITTED]...
The learned Munsiff,therefore,dismissed the suit.There was an appeal from the decision to the District Court.That court reversed the decision holding that the intention of the concerned parties as evidenced by the recital was to purchase the property in the name of the 1st defendant but to confer on her only a life interest over it.The learned District Judge was of opinion that the recital in the sale deed indicating that intention having been agreed to by the 1st defendant by accepting the sale deed,she could not be heard to contend otherwise.Against this decree,there was a second appeal to this court and a learned Judge reversed the decision and restored the decree passed by the learned Munsiff.The learned Judge held that under the sale deed the 1st defendant obtained an absolute interest in the property and that the interest sought to be created by the recital in favour of the plaintiff was repugnant to the absolute interest already created in favour of the 1st defendant and was therefore inoperative.It is against this decree that the appeal has been filed.
The learned Judge in taking this view was largely influenced by the operative portion of the sale deed which runs as follows: ...[VERNACULAR TEXT COMITTED]...
He said that so long as there is a conveyance by the vendor of the full interest in the property in favour of the 1st defendant by the sale deed,a recital in it by the vendor that the consideration has proceeded from the husband of the 1st defendant,who was not a party to the sale deed,with the intention that the 1st defendant should have only a life interest in the property and that the remainder should vest in the plaintiff and his male children has no legal consequence.;
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