Chakkunni vs Rafi @ Raphel

Thottathil B. Radhakrishnan, J.—This appeal is by some of the defendants in a suit for partition.

The suit properties and some other items belonged to Porinchu (senior). He had five sons, Devassy, the first defendant Paily, Porinchu (junior)

and defendants 2 and 3. In 1952, Porinchu (senior) executed Ext.A1 settlement, under which, he made allotments in favour of the sons. The suit

properties were dealt with under Ext.A1. The other assets were dealt with under Ext.A4, a Will executed on the same day. The subject matter of

the suit from which this appeal arises is `C'' schedule in Ext.A1, which is shown to have been allotted in favour of Porinchu (junior). The third

among the sons of Porinchu (senior), it appears, was a person of challenged physical or mental status. We make this observation on the basis of

the recitals in Ext.A1 and the requirement that he be provided with more care, over and above the allotment of properties. Therefore, the

properties allotted to him under Ext.A1 are dealt with in `C'' schedule which provides the manner in which that item would be managed during the

life time of Porinchu (senior); in the event of the demise of Porinchu (senior); in the event of Porinchu (junior) getting married and also in the event

of his having children. Ext.A1 contains a clause which reads as follows:

A bare English version of the aforequoted provision would read that ""if any among you happen to die issueless, the allotment made in favour of

such person would revert to the surviving among the sons of Porinchu (senior).

(emphasise supplied)

The plaintiffs are the children of Devassy. On the death of Porinchu (junior) issueless, they sued for partition of `C'' schedule in Ext.A1, that is,

the allotment made in favour of Porinchu (junior). Unfortunately, Devassy pre-deceased Porinchu (junior) on 6.9.1972, while Porinchu (junior)

died on 5.12.1987. Their father, the settlor, Porinchu (senior) died much earlier, on 20.9.1968. On this fact situation, the surviving brothers of

Porinchu (junior), i.e., defendants 1, 2 and 3, contended that Devassy having pre-deceased Porinchu (junior), the children of Devassy had no right

to claim share in the estate of Porinchu (junior). This is the short issue that arises for determination in this first appeal.

On the basis of different submissions and arguments made before the court below, the manner in which Porinchu (senior) dealt with his assets

under Ext.A4 Will and the evidentiary value of Ext.A4, including as to whether it could be treated as an ancient document, were considered by the

court below. The interpretation of Ext.A1 was sought to be achieved by relying on Ext.A4 Will also. We are inclined to caution ourselves that such

an approach is quite unnecessary for deciding the appeal in hand. This is because Exts.A1 and A4 dealt with different properties. No properties

dealt with in Ext.A1 are dealt with in Ext.A4.

With the aforesaid, we proceed to decide on the issue as to whether the aforequoted clause in Ext.A1 is of any assistance to the contesting

defendants, to say, that the plaintiffs who are the children of Devassy, the predeceased brother of Porinchu (junior), would be deprived of any

share in the property of Porinchu (junior) or whether the plaintiffs could stand to say that such clause, if any, is void and inoperative.

Ext.A1 contains allotments being made in favour of all the sons of Porinchu (senior). The clause quoted above, if operative, is one that would

affect the share of each of those allottees. If it applies to Porinchu (junior), it does apply in equal force to Devassy as also to defendants 1, 2 and 3,

had any of them died before the suit. The said clause cannot be intended to have been made as if it were to affect only the estate of Porinchu

(junior).

With the aforesaid, we find that there is absolute vesting of title even in favour of Porinchu (junior) and what has been provided for under Ext.A4

in relation to `C'' schedule is only a programming for the management of the allotted assets, having regard to the particular challenged status of

Poricnhu (junior). That does not, in any manner, impair the absolute conferment of title in favour of Porinchu (junior) as per Ext.A1. In this view of

the matter, any further restraint in the nature of the clause quoted above would hit the rule against perpetuity, as contained in Section 14 of the

Transfer of Property Act. In so far as the properties governing `C'' schedule in Ext.A1, regarding its management during the currency of the life

time of Porinchu (junior) is concerned, the same cannot be treated as any absolute restraint of transfer. Therefore, though the court below has

made reference to Sections 10 and 11 of the TP Act also, we are of the firm view that the impugned clause would fall squarely within the vice

inhibited by Section 14 of the T.P. Act and it is, therefore, void and inoperative. It cannot, in any manner, deprive the children of Devassy, the

plaintiffs, of their due share as heirs of Porinchu (junior) on non- testamentary succession.

For the aforesaid reasons, this appeal fails. The same is accordingly dismissed. No costs, having regard to the relationship between the parties.

ORDER

These are application for impleadment of the legal heirs of deceased third defendant Rappai, who died pending the first appeal. The

impleadment was sought on the basis of a Will allegedly executed by Rappai. This Court called for findings by the court below regarding the

genuineness of the Will. The findings have been sent up to the effect that the Will can be acted upon. Obviously, that findings would not stand in the

way of any further litigation or issue being raised inter partis as to succession to the estate of Rappai. We order impleadment of the first respondent

in these applications as the legal representative of the deceased third defendant, Rappai, the 6th respondent, for the purpose of this appeal and for

further proceedings before the court below, to the extent of considering the allotment of the estate in question in the suit.