JUDGMENT : Appellants are the defendants in O.S.No.310/2004 on the file of Munsiff's Court, Kayamkulam which was one filed for recovery of possession and damages for use and occupation. The suit was decreed and the first appeal, A.S.No.7/2012 filed against the judgment and decree is also dismissed by the Additional District Court-II, Mavelikkara confirming the judgment and decree passed by the trial court. Against which, the appellants/defendants came up in second appeal. 2. Plaint schedule property is 10 cents of property originally hereinafter be referred as per their status before the trial court). Plaintiff was allotted, item No.2 as per Ext.A1 Partition Deed. Life interest of parents with respect to that property was reserved in the partition deed. Father Raman Pillai and mother Kamalamma expired on 09.11.1992 and 01.03.2004 respectively. Now plaintiff is the absolute owner of the plaint schedule property. While the father of the plaintiff was holding the property, he executed Ext.A2 agreement in the year 1975 in favour of Mohan Kumar, the husband of first defendant. Earlier father had given 17 cents of property on lease in favour of Balagangadharan Channar, who was conducting, 'Indira Motors' on ground rent in that property. Later, Balagangadhara Channar transferred his right in favour of Mohan Kumar for running an educational institution in the name and style, 'Mohan's Technical Institute'. The plaint schedule property was given on rent when Mohan Kumar required more property for running the institution on its northern side and he extended portions of the shed into plaint schedule property. 3. Defendants are the legal heirs of Mohan Kumar. Since Raman Pillai had only life interest, the agreement executed by him for ground rent is not legally binding on the plaintiff. After the death of the parents, plaintiff demanded the defendants to surrender the property and a lawyer notice was issued on 01.04.2004. But the property was not surrendered. Hence, the suit. 4. 1st defendant filed written statement for and on behalf of defendants 3 and 4 who are minors, as their guardian contending that the plaintiff has no right over the plaint schedule property. The entire 27 cents of property is lying as a single plot. Raman Pillai rented out 17 cents of property on ground rent to Balagangadhara Channar for a rent of Rs.10/-per month on 23.07.1964. He constructed building in the 17 cents of property prior to 1967. The entire 27 cents of property is lying as a single plot. Raman Pillai rented out 17 cents of property on ground rent to Balagangadhara Channar for a rent of Rs.10/-per month on 23.07.1964. He constructed building in the 17 cents of property prior to 1967. The remaining 10 cents of property was given to Mohan Kumar on oral lease much before 1965. He constructed sheds in the property for running the institute. Purchase of right of Balagangadhara Channar by Mohan Kumar is admitted. Raman Pillai executed an agreement in favour of Mohan Kumar on 03.07.1975 for a period of 30 years. So defendants claimed benefit under Section 106 of Kerala Land Reforms Act, 1963 (in short 'the Act'). 5. Written statement was subsequently amended claiming benefit under Section 60(b) of the Easements Act. It is contended that Raman Pillai permitted Mohan Kumar to construct a building in the plaint schedule property for continuing the institute. The period of agreement is 30 years. The suit has been filed before the expiry of 30 years. 6. PW1 examined. Exts.A1 to A14 marked from the side of the plaintiffs. Exts.B1 to B3 were marked from the side of the defendants. 7. The learned Munsiff on appreciating the facts, circumstances and evidence adduced found that the issue with regard to the claim of benefit under Section 106 of the Act, 1963, has already been considered and found against as per order in I.A. No.126/2009 on 17.01.2009 and hence issue was answered against the defendants. It is contended by the counsel for the defendants that order in I.A.No.126/2009 was challenged by the defendants by filing W.P.C.No.3299/2009 and this Court directed to consider that issue by the trial court. But, no finding as directed was entered into. Hence, finding so made by the trial court is wrong. However, at the time of hearing, the appeal before this court, the defendants did not claim any relief as per Section 106 of the Kerala Land Reforms Act, 1963. So, the above finding of the trial court is of little significance. At any rate, the trial court could have avoided such incorrect finding. It is further found that the transaction as per Ext.A2 agreement is only a lease and not a license as contended by the defendants and hence defendants are not entitled for the protection under Section 60(b) of the Easements Act. At any rate, the trial court could have avoided such incorrect finding. It is further found that the transaction as per Ext.A2 agreement is only a lease and not a license as contended by the defendants and hence defendants are not entitled for the protection under Section 60(b) of the Easements Act. Accordingly, recovery of possession was ordered and plaintiff is allowed to realise Rs.1,000/-per month towards damages for use and occupation from 03.05.2004 onwards. 8. Against which the appellants/defendants filed appeal and the first Appellate Court confirmed the judgment and decree passed by the trial court in all aspects except that the charges towards damages for use and occupation was limited to Rs.500/- per month. 9. Aggrieved by the same the appellants/defendants approaches this Court in second appeal. At the time of admission notice was issued to the respondent on the following substantial questions of law : “1. Whether the courts below erred in finding that Ext.A2 is a lease deed. 2. Whether the courts below erred in not finding that Ext.A2 was an irrevocable license. 3. Whether the Courts below erred in finding that Ext.A2 creates a lease arrangement between the parties thereon the light of interdictions under the Kerala Land Reforms Act. 4. Did not the courts below err in law in interpreting Ext.A2 as a lease deed in the light of the statements therein and deposition of PW1 that the appellants and their predecessors were only allowed to construct a shed thereon and occupy the same and the usufructs from the property is being taken by them? 5. Whether the Courts below erred in law by decreeing the suit in the absence of relief sought for recovery of possession based on title by the plaintiffs.” 10. Lower court records were called for. Both sides were heard. 11. When the matter came up for hearing, apart from the plea that Ext.A2 is a licence, the learned counsel for the defendants advanced argument with regard to the right of predecessor in interest of the plaintiff by virtue of Ext.A1 partition deed. Lower court records were called for. Both sides were heard. 11. When the matter came up for hearing, apart from the plea that Ext.A2 is a licence, the learned counsel for the defendants advanced argument with regard to the right of predecessor in interest of the plaintiff by virtue of Ext.A1 partition deed. He would contend that as per the partition deed, father of plaintiff has life interest with respect to item No.1 and with respect to item Nos.2 to 5 father and mother have been conferred with life interest and this 10 cents of property which has been taken according to him as per license is a part of item No.2. Plaintiff has a case in the plaint that since the parents have only life interest over the plaint schedule property they have no right to create any document transferring any interest and hence Ext.A2 itself is illegal and void. 12. Learned counsel for the defendants in this context would contend that as per Section 14 of the Hindu Succession Act, the widow’s estate is not a limited estate and it became her absolute property after the advent of Hindu Succession Act, 1956 and to substantiate that contention he relies on Sharad Subramanyan v. Soumi Mazumdar and Others 2006 (8) SCC 91 ; 2006 KHC 1294 as well as Munni Devi Alias Nathi Devi (Dead) Thr. LRs and Others v. Rajendra Alias Lallu Lal (Dead) Thr. LRs and Others 2022 KHC 6567; 2022 SCC Online SC 64. It is contended that, Raman Pillai died on 09.11.1992 and thereafter the entire life interest over the plaint schedule property devolved upon the mother and she died only on 01.03.2004. So, once the property devolved on her, it would be her absolute property. Hence, the case of plaintiff that parents have no right to execute lease deed and thereby Ext.A2 is void etc. is not sustainable. 13. It is also his contention that the plaintiff was not examined and PW1 is only his brother and as per the dictum laid down in Vidhydhar v. Manik Rao and another AIR 1999 SC 1441 ; 1999 (3) SCC 573 ; 1999 KHC 1091 an adverse inference has to be drawn against the plaintiff. 14. is not sustainable. 13. It is also his contention that the plaintiff was not examined and PW1 is only his brother and as per the dictum laid down in Vidhydhar v. Manik Rao and another AIR 1999 SC 1441 ; 1999 (3) SCC 573 ; 1999 KHC 1091 an adverse inference has to be drawn against the plaintiff. 14. The learned counsel for the respondent/plaintiff on the other hand would vehemently contend that the scope of interference under Section 100 of Code of Civil Procedure, 1908 ( in short 'Code') is very limited and the contentions with regard to the right of widow under Section 14 of the Indian Succession Act etc. has not been raised by the defendants at any point of time and hence it is not open for the defendants to take up such contention for the first time in the second appeal. He would also contend that the substantial questions of law formulated by this Court at the time of admission is only with regard to the interpretation of Ext.A2 deed as to whether it is a lease or licence. Hence, all these arguments advanced by the learned counsel for the defendants are beyond the scope of second appeal. The learned counsel placed relies on Syeda Rahimunnisa v. Malant Bi (Dead) by Legal Representatives and Another [ 2016 (10) SCC 315 ]. He would also contend that the defendants originally did not raise any contention in the written statement seeking protection under Section 60(b) of the Indian Easements Act, and only as an afterthought by way of introducing Paragraph 9(a) by amending the written statement such a plea was put forward. He would also contend that the defendants raised a plea of benefit under Section 106 of the Act, and plea under Section 60(b) of the Indian Easements Act. Those are contradictory to each other, defendants cannot approbate and reprobate at the same time. He would also contend that, no oral evidence has been adduced by the defendants to claim the benefit under Section 60(b). 15. The prime question for determination is as to whether Ext.A2 is a lease or license. In Halsbury's Laws of England 3rd Edition, Volume 23; page 427 reads thus: “In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties (r). The prime question for determination is as to whether Ext.A2 is a lease or license. In Halsbury's Laws of England 3rd Edition, Volume 23; page 427 reads thus: “In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties (r). The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement (t); nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence (u). In the absence of any formal document the intention of the parties must be inferred from the circumstances and the conduct of the parties (a).” 16. In Associated Hotels of India Ltd. v. R.N.Kapoor : AIR 1959 SC 1262 a three Judge Bench of Apex Court held that in order to ascertain whether a document create a lease or licence, the following propositions are taken as well established: (1) the substance of the document to be preferred to the form; (2) the intention of the parties whether they intended to create a lease or a licence; (3) whether document creates any interest in the property, or whether only permission is given to make use of property and the legal possession continues with the owner it is a licence; (4) whether under the document a property gets exclusive possession of the property, prima facie it is considered as lease. 17. A Division Bench of this Court in Moideenkutty Haji v. Muhammadali : 1987 (2) KLT 994 has held that licence is a personal privilege to do something on the premises which otherwise would not be lawful. It does not create any interest or estate in the immovable property whereas lease creates an interest in immovable property. 18. First of all Ext.A2 the deed executed between the father of the plaintiff and the predecessor of the defendants, Mohan Kumar has to be analysed. It does not create any interest or estate in the immovable property whereas lease creates an interest in immovable property. 18. First of all Ext.A2 the deed executed between the father of the plaintiff and the predecessor of the defendants, Mohan Kumar has to be analysed. The specific recitals in Ext.A2 is regarding taking of 17 cents of property on ground rent by Balagangadhara Channar and the subsequent requirement of more extent of property by Mohan Kumar and accordingly 10 cents of property was more given on rent agreeing to pay a total ground rent of Rs.20/-for a period of 30 years. It is further agreed that, if the second party ie. the predecessor of defendant feels that he does not require the land, he has the right to dismantle the shed etc. 19. So the question is whether the interpretation by the courts below that the arrangement as per Ext.A2 is lease is correct or not. Para Nos.7 to 10 in Geetha Varma and Others v. V.K.Amminikutty Nambishtathiri Amma and Others [AIR 1995 Kerala 168] was brought to my attention by the learned counsel for the plaintiff. It has been held therein that Section 60(b) can have operation only if the licensee has acted upon the license and erected structures or constructions of permanent character. It is held that “acting upon licence” means the state of mind of the licensee at the time when he constructed the structures or building. In a case where licensee has considered himself to be a lessee or mortgagee and has constructed the building or erected other structures in the property he would not be entitled to get the benefit under Section 60(b). It is also held that Section 60(b) is based on an implied grant and if there is an agreement to remove the structures, installations and building which it had put up in the property it cannot claim the benefit of Section 60(b) 20. Gopalan Gangadharan v. V.K.Devasia 1989 (2) KLT 914 arouse out of similar facts. In that case the defendant agreed in the license agreement that he would vacate the premises after dismantling the structures. In that context this Court held that in view of the agreement of the defendant to vacate the premises after dismantling the structures, he cannot thereafter contend that the license has become irrevocable under Section 60(b). In that case the defendant agreed in the license agreement that he would vacate the premises after dismantling the structures. In that context this Court held that in view of the agreement of the defendant to vacate the premises after dismantling the structures, he cannot thereafter contend that the license has become irrevocable under Section 60(b). It is also held therein that Rule of irrevocability under Section 60(b) has its basis on the principles of implied grant. It cannot have any operation when there is express contract between the parties. In that case also Ext.A4 deed specifically permitted the licensee to effect the construction and put installations in the property on the specific undertaking that they should dismantle the same after the expiry of the period of license and hence the contention that the plaintiff cannot recover the property from it in view of Section 60(b) was held to be not tenable. It is to be noted that in the above case, the deed itself has been styled as license and even in spite of that in view of specific stipulation in the license deed that after the expiry of the period of license, he would dismantle the constructions and installations, has taken as an indication to negative the plea under Section 60(b). 21. Mumbai International Airport Private Ltd. v. Golden Chariot and another and Airports Authority of India v. Golden Chariot Airport and Another [ 2010 (10) SCC 422 ] scope of Sections 52, 53, 60 and 62(c) of the Easements Act, 1882 and the question of irrevocability of license came up for consideration and it has been held that oral assurance to extent the license will not create irrevocable license. In that case eviction from licensed premises after expiry of license was resisted on the ground that license was irrevocable as huge investment in setting up restaurant was made on oral assurance for extension of license. It has been held that the mere license does not create any estate or interest in property to claim irrevocability and contractual license is normally revocable but depends on express terms of contract. 22. It has been held that the mere license does not create any estate or interest in property to claim irrevocability and contractual license is normally revocable but depends on express terms of contract. 22. Mohan R. v. Sarat Chandran Nair [ 2016 (4) KHC 318 ], it has been held that when there is no plea in the written statement that the licensee had acted upon the license to execute the work of permanent character and incurred expenses in such execution and in the absence of any authorisation in the deal to make a permanent structure and in the absence of evidence before the court to show that he had incurred expenses or constructions of a shed for running work shop, the courts were not justified in holding that the respondent is entitled to get benefit of Section 60(b). 23. Abdul Latheef and Another v. T.T.Joy and Others 2017 KHC 309 ; 2017 (2) KLT 199 ; AIR 2017 NOC 1107 was relied on by counsel for the defendants. Paragraph Nos.19 and 22 has been highlighted by the learned counsel, which reads thus: “19. It is true that the licence in this case has become irrevocable when the licensee acting upon the licence has executed a work of a permanent nature by constructing a telephone booth beneath the staircase and the said work is of a permanent character and further, the licensee has incurred expenses in the execution of such a work. Therefore, the said licence has become irrevocable within the meaning of S.60(b) of the Easements Act. 22. In the case of an irrevocable licence, the transferee of the property, will always be bound by such irrevocable licence created in the property. Over and above it, such an irrevocable licence is heritable also. This is because of the fact that the licensee has done work of a permanent character in the property and further, the licensee has incurred expenses in the execution of such a work, within the meaning of S.60(b) of the Easements Act. Further, in the case of a licence coming under S.60(a) of the Easements Act, it is coupled with a transfer of property, and such transfer should be in force. Further, in the case of a licence coming under S.60(a) of the Easements Act, it is coupled with a transfer of property, and such transfer should be in force. In the case of a revocable licence, such licence will not be heritable because of the fact that the successors in interest of the property affected by the licence, also can be equated with transferees of the property. In such case, they are not bound by a revocable licence created by the grantor.” 24. In this case in paragraph No.7 of written statement, the defendants had contended about the oral lease of the plaint schedule property by the predecessor-in-interest of the defendant from Raman Pillai on 23.07.1964 and in pursuance of that arrangement even before 1967 Balagangadara Channar put up building and started workshop. It is further concluded that in the balance 10 cents excluding 17 cents Mohan Kumar constructed building in the plaint schedule property and started Mohan's Technical Institute on oral lease in 1965. It is further contended that immediately after the oral lease before 1967 Mohan Kumar constructed building and started Mohan's Technical Institute. So, when the written statement was originally filed, the defendants were agitating their claim under Section 106 of the Act. It is by subsequent amendment of written statement and introduction of Paragraph No.9(a), the plea under Section 60(b) of Easements and Licence Act has been brought in, in the written statement. 25. It is contended by the learned counsel for the defendant that it is open for the defendants to take up inconsistent pleas in the written statement. It is true that there is no bar in taking inconsistent pleas in the written statement. But when such inconsistent pleas are taken, which are mutually destructive, it would definitely tell upon the intention of the parties at the time of execution of the deal and that would definitely in turn probabilise the case of the plaintiff regarding the ground rent arrangement between the parties while executing Ext.A2 agreement. 26. It is further contended by the learned counsel for the defendants that the relief sought in the plaint also probabilise the licence arrangement between the parties. He would contend that, PW1 during examination admitted that usurfructs from the trees surrounding the land in the plaint schedule property excluding the building is taken by the plaintiff and their enjoyment of the property. He would contend that, PW1 during examination admitted that usurfructs from the trees surrounding the land in the plaint schedule property excluding the building is taken by the plaintiff and their enjoyment of the property. The relief sought in the plaint is also to demolish the sheds and the property where it stands through the process of court and according to him, there is no relief for recovery of the plaint schedule property of 10 cents in the suit. That, according to him, would probabilise that the shed and the appurtenant land alone has been given to the defendant on a licence arrangement to put up the building and that would prove that the arrangement between the parties is only a licence. Madhugupta v. K.P.HasanKoya : 2019 (5) KHC 42 was relied on by the learned counsel. Paragraph No.2 of that decision was highlighted by the learned counsel wherein the learned Single Judge evaluated various clauses in Ext.A2 deed in that case, which is styled as licence. That was a case in which the suit has been filed for a mandatory injunction to evict the defendant from the plaint schedule building which was dismissed by the courts below finding that Ext.A2 agreement was not a licence but a lease, against which the second appeal has been field. While so, the learned Single Judge has held that the question whether the construction of the document whether it amounts to lease or licence is a substantial question of law for entertaining the second appeal. The relevant portion in Paragraph No.2 reads thus : “............... A mere permission given to hold the property or to possess the same without having a right of possession would constitute only a licence. Ext.A2 is styled as a licence. Clause (1) deals with user of the premises and its occupation for a period of 11 months. Clause (2) deals with the payment of licence fee. Clause (3) says that licence fee should be paid on or before the first day of each month. Clause (4) permits to use the premises for the business of sale of LPG gas stove. Clause (5) directs the party to keep the premises clean and tidy and not to cause any damages. Clause (6) deals with payment of electricity charges by the licensee. Clause (7) enumerates the intention of parties in clear terms that what they have intended is only a licence. Clause (5) directs the party to keep the premises clean and tidy and not to cause any damages. Clause (6) deals with payment of electricity charges by the licensee. Clause (7) enumerates the intention of parties in clear terms that what they have intended is only a licence. Clause (8) says that in case the party wants to continue the relationship after the expiry of the period agreed, the defendant is liable to pay an enhanced licence fee at the rate of 7.5%, based on which it was submitted that no such enhancement was demanded by the plaintiff even after the expiry of 11 months and the first demand was raised only after the expiry of four years. It was also submitted that the subsequent development should also be taken into consideration for detecting the nature of relationship. When Ext.A2 is construed in its strict sense with the aid of each and every clauses incorporated therein, it is clear that exclusive possession was not handed over to the defendant. Only a permission to occupy the premises for the conduct of the business was granted. There is nothing in Ext.A2 to show that exclusive possession was handed over to the defendant/licensee so as to hold the same as a matter of right. Clauses 1 to 7 deals with various terms agreed into by the parties. Provision made in the licence deed to attend repair works by the owner and for paying electricity charges by the licensee. Clause (7) was overlooked by both the courts below which specifies in clear terms what is the intention of the parties. They intended to create only a licence. ” 27. In the present case, Ext.A2 document is interpreted as lease deed by both courts below and the terms of which specifically provides that, in order to construct more sheds in continuation of the institution run by Mohankumar in 17 cents of property which he got transferred from Balagangadharan Channar, he was given 10 cents of property on rent on a total ground rent of Rs.20/-per month and is given on lease for 30 years and an amount of Rs.4000/-has also been received by the predecessor of the plaintiff from the predecessor of the defendants on 03/07/1975, the date of execution of Ext.A2 lease deed, which was agreed to be repaid before the stipulated period. It is further agreed that if at all the predecessor of the defendants feels that he does not require the land further, he can dismantle the shed and remove it. As already discussed in previous paragraphs, the right to dismantle the shed and remove the same from the land leased would indicate that the intention of the parties was to create a lease and not licence. Since it has been specified in Ext.A2 in unequivocal terms that the land has been leased out by the predecessor of the plaintiff on a ground rent of Rs.10/-per month for the purpose of putting up additional sheds in connection with the conduct of the educational institution by the predecessor of the defendants and that too, for a period of 30 years on receiving an advance of Rs.4,000/-with a further stipulation that before the stipulated period, the first party, that is, the predecessor of the plaintiff would return the balance amount and if at all the predecessor of the defendants, the second party, feels that he does not require the land anymore, he can dismantle the sheds and structures and remove the same, would prove the intention of the parties to create a lease arrangement. 28. So, also, the contention of the defendants that the relief sought is only for demolition of the building and surrender of the property where the building stands and no relief is sought with respect to the entire 10 cents of property etc., is not sustainable. Defendant has no contention in the written statement that only in part of 10 cents, building has been put up and rest of the property is in the possession of the plaintiff and plaintiff is taking income from the trees standing therein. PW1 during cross-examination stated that shed covers in entire 10 cents of property. In the absence of pleadings, it is well settled that evidence, if any produced by the parties cannot be considered and no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it (See Ram Sarup Gupta (Dead) by LRs v. Vishun Narain intercollege and others : AIR 1987 SC 1242 : 1987 (2) SCC 555 : 1987 KHC 965). Defendant cannot make use of some stray sentences during cross examination of plaintiff to build up a case without any pleading in that regard. So, the concurrent findings made by the courts below that the transaction between the parties as per Ext.A2 is lease and not licence is legal and proper. Hence, on the death of mother on 01.03.2004, the lease is determined as per Section 111(c) of Transfer of Property Act, since she is only a life interest holder with respect to the property. 29. In view of the findings that the transaction between the plaintiff and the predecessor of the defendant is one of lease and not licence, the argument advanced by the learned counsel for the defendant basing on Section 14(1) of the Hindu Succession Act, 1956, does not actually arise for consideration. The case of the plaintiff is that the plaintiff's predecessor have only life interest and has no right to create any lease in favour of the predecessor of the defendant. Learned counsel for the defendant also relied on Sharad Subramanyan as well as Munni Devi. As per Section 14(1) any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation to Sub Section (1) provides that “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. Sub Section (2) of Section 14 provides that nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. 30. The argument of the learned counsel for the defendant will not be attracted in the present case for reasons more than one. 30. The argument of the learned counsel for the defendant will not be attracted in the present case for reasons more than one. As per Ext.A1 partition deed, plaint schedule property forms part of item No.2. As per Ext.A1, life interest has been created with respect to item No.1 in favour of father and life interest has been created with respect to item Nos.2 to 5 in favour of parents, Raman Pillai and Kamalamma Pillai. The contention of the learned counsel is that father Raman Pillai died on 09.11.1992 and mother died on 01.03.2004. After the death of father, life interest with respect to item No.2 has been absolutely vested with mother Kamalamma Pillai and according to him, as per Section 14(1), the property so acquired by the mother shall be held by her as full owner and not as limited owner and thereby according to him she has every right to create a permanent licence also for enabling him to claim the protection under Section 60(b) of the Easements Act. But, on going through Sharad Subramanyan the argument advanced by the learned counsel based on Section 14(1) cannot be applied with respect to the property obtained by mother as per Ext.A1. On going through Ext.A1 it could be seen that it has been consented by the parents that they do not require any share out of the schedule properties and they only want life interest over the schedule property and accordingly partition was effected among the children reserving life interest of the parents. In Sharad Subramanyan the Apex Court quoted V.Tulasamma and others v. Sesha Reddy : 1997 (3) SCR 261 and the principles laid down in that decision has been extracted in paragraph No.11 it reads thus: “11. …............................ (1) that the provisions of Section 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times; (2) it is manifestly clear that sub-section (2) of Section 14 does not refer to any transfer which merely recognises a pre-existing right without creating or conferring a new title on the widow. This was clearly held by this Court in Badri Pershad's case ( (1969) 2 SCC 586 ). This was clearly held by this Court in Badri Pershad's case ( (1969) 2 SCC 586 ). (3) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession; (4) that sub-section (2) of Section 14 is merely a proviso to sub-section (1) of Section 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision." Analysing the scope and extent of sub-section (2) of Section 14 of the Act, which this Court treated as a proviso to sub-section (1), this Court took the view that as a proviso it should be interpreted in such a way so as not to substantially erode sub-section (1) of Section 14 and the Explanation thereto. It was pointed out that subsection (2) had carved out a completely separate field and before it could apply, the following three conditions must be satisfied: "(i) that the property must have been acquired by way of gift, will, instrument, decree, order of the Court or by an award; (ii) that any of these documents executed in favour of a Hindu female must prescribe a restricted estate in such property; and (iii) that the instrument must create or confer a new right, title or interest on the Hindu female and not merely recognise or give effect to a pre-existing right which the female Hindu already possessed." Finally, this Court said: "Where any of these documents are executed but no restricted estate is prescribed, sub-section (2) will have no application. Similarly where these instruments do not confer any new title for the first time on the female Hindu, Section 14(2) would have no application. Similarly where these instruments do not confer any new title for the first time on the female Hindu, Section 14(2) would have no application. It seems to me that Section 14(2) is a salutary provision which has been incorporated by the Parliament for historical reasons in order to maintain the link between the Shastric Hindu Law and the Hindu Law which was sought to be changed by recent legislation, so that where a female Hindu became possessed of property not in virtue of any pre-existing right but otherwise, and the grantor chose to impose certain conditions on the grantee, the Legislature did not want to interfere with such a transaction by obliterating or setting at naught the conditions imposed." 31. From the above, it would be clear that in order to attract Section 14(2), the property to be acquired by way of gift or under a Will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property. It further provides that the instrument should not create or confirm or recognise a pre-existing right which the female Hindu already possessed. In the above case, ultimately it was found that since there were no indications either in the Will or externally to indicate that the property has been given to the female Hindu in recognition of or in lieu of her right to maintenance it was held that the situation fell within the ambit of sub Section (2) of Section 14 of the Act and the restricted life estate granted to the female Hindu would not be enlarged into an absolute estate. 32. In this case also, there is nothing in the partition deed to indicate that the life estate has been created with respect to item Nos.2 to 5 in favour of the mother in recognition or in lieu of her right to maintenance. As per the recitals in Ext.A1 it has been consented by the parents by stating that they do not want any share in the properties and life estate has been created with respect to item Nos.2 to 5 in favour of the parents and hence it cannot be enlarged into an absolute estate. As per the recitals in Ext.A1 it has been consented by the parents by stating that they do not want any share in the properties and life estate has been created with respect to item Nos.2 to 5 in favour of the parents and hence it cannot be enlarged into an absolute estate. In Munni Devi the widow is found to be in exclusive settled possession of the Hindu undivided family property and that itself was held to be created a presumption that such property was earmarked for realisation of her pre-existing right of maintenance. That was a case in which female Hindu was in settled legal possession of the suit property before and after the commencement of the Act in lieu of her pre-existing right of maintenance and such limited ownership right fructified into full ownership by virtue of Section 14(1). So, the fact situation of that case is not squarely applicable in the present case because as found earlier, as per Ext.A1 with consent, the parents of the plaintiff mutually agreed that they do not want any share and thereby created a life interest alone with respect to item Nos.1 to 5 and also there is nothing to indicate that life interest was created in favour of the mother in recognition of her right of maintenance over the property and hence Section14(1) of the Act has no application with respect to property covered by Ext.A1 and the property obtained by mother as per Ext.A1 Will only come under Section 14(2). So, the argument of the learned counsel based on Section 14(1) of the Hindu Succession Act also has no application. 33. Yet another contention of the learned counsel for the defendant is that plaintiff was not examined and hence an adverse inference has to be drawn against the plaintiff by quoting Manik Rao. PW1 the brother of the plaintiff was examined from the side of the plaintiff and the specific contention of the learned counsel for the plaintiff is that a petition has been filed seeking permission of the court to examine his brother instead of him. That petition seem to have been filed under Order X Rule 2 read with Section 151 of the Code of Civil Procedure. Order X deals with examination of parties or companion of parties by the Code at the initial stage to ascertain the veracity of allegations in the pleadings. That petition seem to have been filed under Order X Rule 2 read with Section 151 of the Code of Civil Procedure. Order X deals with examination of parties or companion of parties by the Code at the initial stage to ascertain the veracity of allegations in the pleadings. For that purpose, the court is empowered to examine either the party or companion. But, Order XVIII of the Code deals with examination of witnesses, which provides under Rule 2 that on the day fixed for hearing of the case or any other adjourned day the party having right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove etc. Rule 3-A says that where a party himself wishes to appear as a witness he shall appear before any other witness on his behalf has been examined unless the court for reasons to be recorded permits him to appear as his own witness at a later stage. In this case, the brother of the plaintiff was examined as PW1 and he filed chief affidavit solemnly affirming that he has got direct knowledge regarding the facts of the case. During cross-examination, no single question seen put challenging the above averments in the affidavit. In Manik Rao, the suit was instituted for redemption of mortgage by conditional sale or in the alternative for a decree for specific performance of contract for repurchase against defendant Nos.1 and 2. Defendant No.2 admitted the whole claim of plaintiff. Defendant No.1 contested the suit and pleaded that the document in his favour was not a mortgage by conditional sale, but is an outright sale since the amount of consideration has not been tendered within the time stipulated therein, plaintiff could not claim reconveyance of property in question. Inspite of raising such contention defendant No.1 did not enter the witness box and stated the facts pleaded in his written statement. It was in that context, Apex Court held that when a party to the suit did not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. But the fact situation of the present case is entirely different. 34. But the fact situation of the present case is entirely different. 34. In the present case, there is no such contingency and everything is depending upon the interpretation of Ext.A2 deed executed between the predecessors in interest, of the defendants as well as that of the plaintiff and the attending circumstances. Parties in Ext.A2 are no more also. Both plaintiff and his brother were allotted properties as per Ext.A1. Part of item No.2 in Ext.A1 is the plaint schedule property. Moreover, this is a case in which no oral evidence was adduced from the side of the defendants though they claimed benefit under Section 60(b) of the Easements Act which is a fact which has to be proved specifically by the defendants in order to claim the benefits. So, the non-examination of plaintiff himself as a witness cannot be said as fatal in the present case. 35. The learned counsel for the defendants would further contend about the advance amount of Rs.4,000/-paid by their predecessor as per Ext.A2 and there is no order to return the same. But, in the written statement, the defendant did not raise any pleadings with regard to that. Such a contention is not seen raised before the courts below also. So, in this second appeal, the defendants are estopped from raising such a contention. However, since Ext.A2 reveals payment of Rs.4,000/-as advance by the predecessor of the defendants, it is left open to the defendants to adjust that amount towards the amount due from them on the account of damages for use and occupation. In the result, the regular second appeal is found to be devoid of any merit and hence dismissed with cost of plaintiff/respondent.