JUDGMENT : (A. Badharudeen, J.) This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908. 2. In this appeal, the 1st plaintiff in O.S. No. 569 of 2010 on the files of Principal Sub Court, Irinjalakuda assails decree and judgment in the above case dated 31.03.2015 whereby the suit filed by plaintiffs 1 and 2 was dismissed by the trial court. 3. Respondents in this appeal are the 1st defendant and the 2nd plaintiff. 4. Heard the learned counsel for the 1st plaintiff/appellant and the learned counsel appearing for the 1st respondent/1st defendant in detail. Perused the pleadings, evidence, and the decisions placed by the learned counsel for the 1st defendant/1st respondent. 5. For effective and easy discussion, the parties in this appeal will be referred to as ‘plaintiffs’, ‘1st defendant’, and ‘2nd defendant’ hereafter. 6. The plaintiffs’ case in brief:- Plaintiff Nos. 1 and 2, who are the male children born to Mulangil Krishnan and Devaki - the 2nd defendant would assert right over the plaint schedule property on the strength of a settlement deed No. 2372/1972 of Mala S.R.O. executed by the parents. According to the plaintiffs, after completion of the educational and marriage expenses of their sisters, the plaint schedule property was allotted to them, as per the settlement deed. 7. The contention raised by the plaintiffs further is that despite having no absolute right over the plaint schedule property to the 2nd defendant, the 2nd defendant executed sale deed No.1666 of 2009 in favour of the 1st defendant and assigned the plaint schedule property to the 1st defendant and therefore, the sale deed is illegal. Accordingly, plaintiffs prayed to adjudge sale deed No.1666 of 2009 of Annamanada S.R.O. dated 10.08.2009 as a void instrument, and order the same to be delivered up and cancelled. In addition, permanent prohibitory injunction to restrain the 1st defendant from alienating, creating any charge, or executing any further documents on the strength of the sale deed No.1666 of 2009 is also sought for. 8. The 2nd defendant did not file written statement and she was set ex-parte. While so she died during the pendency of the suit. 9. The 1st defendant filed written statement and resisted the suit. 8. The 2nd defendant did not file written statement and she was set ex-parte. While so she died during the pendency of the suit. 9. The 1st defendant filed written statement and resisted the suit. According to the 1st defendant, the 2nd defendant obtained absolute right over the plaint schedule property on the strength of the settlement deed No.2372 of 1972, and accordingly, the plaint schedule property was properly sold by the 2nd defendant in favour of the 1st defendant. Therefore, the sale deed executed by the 2nd defendant in favour of the 1st defendant requires no interference. She also denied the incapacity pleaded as against the 2nd defendant to execute the sale deed. 10. The trial court raised necessary issues and tried the matter. PW1 was examined and Exts. A1 to A8 were marked on the side of the plaintiffs. First defendant was examined as DW1 and Exts. B1 to B13 were marked on the side of the 1st defendant. However, the trial court dismissed the suit holding that Ext.B2 - the sale deed (copy of the same is Ext.A1) as a genuine document supported by consideration. 11. The learned counsel for the 1st plaintiff vehemently challenged the finding of the trial court by reading the recitals in Ext.A2 settlement deed No.2372 of 1972, and it is specifically pointed out that Ext.A2 was executed by Krishnan (father) along with Devaki - the 2nd defendant (his wife) with a view to ensure the education, marriage, etc, of the female children, and accordingly, a right was given to the 2nd defendant to sell the properties covered by the settlement deed or portion thereof during the lifetime of Krishnan, for the said purposes and in such contingency, Krishnan also to be joined as a party to the said conveyance as a witness during his lifetime. Further right to sell the property after the death of Krishnan also provided in Ext.A2 for the said purpose. Apart from that no absolute right transferred in the name of Devaki. 12. According to the learned counsel for the 1st plaintiff, the second part of the settlement deed stipulates that after meeting the education and marriage expenses of the female children during the lifetime of Krishnan, and Devaki, after their death, the property would go to the male children viz. Venugopalan, and Kamalakshan who are plaintiffs 2 and 1 in the suit. According to the learned counsel for the 1st plaintiff, the second part of the settlement deed stipulates that after meeting the education and marriage expenses of the female children during the lifetime of Krishnan, and Devaki, after their death, the property would go to the male children viz. Venugopalan, and Kamalakshan who are plaintiffs 2 and 1 in the suit. It is also pointed out that in the last portion of the settlement deed, there is specific recital further that Devaki also have the right to reside in the house situated in the property, and no other right specifically vested to Krishnan or Devaki. Here, as per the evidence given by DW1 itself, it is admitted that the education and marriage of the female children were completed during the lifetime of Krishnan and Devaki, and therefore, by operation of the recitals in Ext.A2, the property shall go in favour of the plaintiffs, and Devaki did not have any independent or absolute right to transfer the same after meeting the educational and marriage expenses of the female children and therefore Ext.B2 sale deed executed by Devaki in favour of the 1st defendant is ab initio void and the same would not confer any title or right upon the 1st defendant. Therefore, the trial court went wrong in non-suiting the plaintiffs, and the decree and judgment would deserve reversal. 13. Resisting his contention, the learned counsel for the 1st defendant submitted that on reading Ext.A2, there are so many stipulations; but ultimately, as per Ext.A2, Krishnan transferred his absolute right over the property in favour of the 2nd defendant - Devaki, and on the date of execution of Ext.A2 itself Devaki became the absolute owner of the property. Therefore, the property remained after selling properties for the marriage of one of the daughters and giving share to another daughter covered by Ext.A2 i.e. the paint schedule property absolutely owned and possessed by Devaki and the same was transferred in favour of the 1st defendant in terms of Ext.A2. Therefore the sale deed executed by the 2nd defendant in favour of the 1st defendant marked in Ext.A1/B2 is legally valid and the same could not be declared as void. Thus the trial court verdict is only to be confirmed. 14. Therefore the sale deed executed by the 2nd defendant in favour of the 1st defendant marked in Ext.A1/B2 is legally valid and the same could not be declared as void. Thus the trial court verdict is only to be confirmed. 14. According to the learned counsel for the 1st defendant in so far as the stipulations as pointed out by the learned counsel for the 1st plaintiff in Ext.A2 are concerned, the same are hit by Sections 10 and 11 of the Transfer of Property Act. According to him, conditions restraining alienation by providing restrictive interest created by the conveyance deed to be treated as void to hold the document as one which would confer absolute title upon the person who receives benefit out of it. 15. That apart, learned counsel also pointed out that in this matter, the proceedings before the trial court is bad in law for non-joinder of necessary parties. According to him, as per paragraph No.10 of the trial court judgment itself, the trial court observed that during pendency of the suit, i.e., on 13.03.2015, the 2nd defendant who is the mother of the parties in the suit died. If so, the trial court ought to have given an opportunity to the plaintiffs to implead the legal heirs/legal representatives of the 2nd defendant to proceed further in this matter. Therefore the proceedings are barred by non-joinder, though the same is not specifically stated in the written statement, because the same is a subsequent event during the pendency of proceedings, after filing written statement by the 1st defendant. In this connection, the learned counsel placed Division Bench judgment of this court reported 2018 SCC OnLine Ker 2771 P S Radhakrishnan v. A Indu, the reference paragraph No. 15 where this court held that, whether a person is a necessary party or not is a question of fact depending upon the relief claimed in the suit. But once it is established or the court is satisfied that he is a necessary party to the suit, it becomes a question of law and therefore can be raised for the first time in appeal. 16. But once it is established or the court is satisfied that he is a necessary party to the suit, it becomes a question of law and therefore can be raised for the first time in appeal. 16. Negating the contention as to non-joinder, it is submitted by the learned counsel for the 1st plaintiff that in this matter, a sale deed executed by the 2nd defendant in favour of the 1st defendant is sought to be declared as void and therefore the 2nd defendant or her legal representatives or legal heirs are not necessary parties in the suit. Therefore the question of non-joinder does not arise. 17. In view of the rival contentions, the points which would require answers are as under: 1. Whether absolute right over the property has been transferred in the name of Devaki as per Ext.A2 settlement deed? 2. Whether the recitals in the form of stipulations in Ext.A2 are hit by Sections 10 and 11 of the Transfer of Property Act? 3. What is the legal sanctity of Ext.A1/B2 sale deed? 4. Whether the plaintiffs obtained title over the plaint schedule property on the strength of Ext.A2? 5. Whether the question of non-joinder raised by the learned counsel for the 1st defendant assumes significance? 6. Is it necessary to interfere with the verdict of the trial court? 7. Reliefs and costs? 18. In order to address the questions raised, thorough scrutiny of the recitals in Ext.A2 is necessary. By nomenclature, Ext.A2 is titled as a settlement deed (dhananishchayadharam). The intent behind the execution of Ext.A2 and how the same would operate could be gathered from the recitals in paragraph No.2 and the same is extracted as under:- “OTHER LANGUAGE” The translation of the above text is as under:- "If, during the lifetime of the first person, the three women mentioned above are unable to cover their educational, marriage, and other expenses, either during the first person's lifetime or after their death, and if any of the immovable properties listed are sold or used in any other way to generate funds for the marriage expenses of the women, the second person has the right and authority to do so independently. In this manner, the second person has the authority and rights to carry out such actions. In this manner, the second person has the authority and rights to carry out such actions. If the second person needs to take any action during the first person's lifetime, the first person must sign as a witness for those actions. During our lifetime, if the educational or marital expenses for the women were not covered, after our deaths, the rights to the immovable properties listed in the inventory will be shared equally between the two of us, and the children, Venu Gopalan and Kamalakshan, will also share the inheritance. This inheritance will include the right to purchase or acquire property, as well as the right to live according to the law. If the marriages of the women do not take place during our lifetime, the children, Venu Gopalan and Kamalakshan, will be responsible for securing the marriages and other related expenses. As per the above-mentioned details, the second person has the right to collect the income from the properties, use them for family expenses, and live in the property listed in the inventory. Similarly, the first person also has the right to collect income from the properties for family expenses, and if necessary for the marriage expenses of the women, it is allowed to sell the properties. Both the first and second persons have the right to live in the properties listed in the inventory for the duration of their lives. However, the second person does not have any right or obligation over the specific properties mentioned below. Both persons have mutually agreed and consented to this, and the witnesses below have signed this agreement. 19. A specific narration in Ext.A2 is that the entire properties covered by Ext.A2 were obtained by Krishnan by various title deeds described in the schedule, and the properties were jointly possessed and enjoyed by Krishnan and Devaki. The further recital is that there are five children to Krishnan and Devaki viz. Venugopalan and Kamalakshan (male children), Usha, Lalithambika and Prema (female children) under the custody of them. Ext.A2 would recite that the properties were jointly enjoyed for the benefit for the family. 20. Summarising the stipulations in Ext.A2 it is discernible that Krishnan owned the property and the property was jointly enjoyed by Krishnan and Devaki. At this juncture, with the prime aim to protect the interest of the female children viz. Ext.A2 would recite that the properties were jointly enjoyed for the benefit for the family. 20. Summarising the stipulations in Ext.A2 it is discernible that Krishnan owned the property and the property was jointly enjoyed by Krishnan and Devaki. At this juncture, with the prime aim to protect the interest of the female children viz. education marriage etc, Krishnan and Devaki jointly executed Ext.A2, whereby Devaki was authorized to deal with the property for the purpose of the welfare of the female children, and sell the same if necessary for their education and marriage. Ultimately, it was intended by Krishnan that if any property remains after the accomplishment of the needs of the female children, the same shall go to the male children who are the plaintiffs herein. This intention of Krishnan and Devaki could be gathered from the last clause in Ext.A2 whereby it has been specifically described that apart from the stipulations, either Krishnan or Devaki did not have any other right over the property. 21. Since it is contended by the learned counsel for the 1st defendant that the stipulations in Ext.A2 are against Sections 10 and 11 of the Transfer of Property Act (for short, “the TP Act). It is necessary to extract the said provisions. The same read as under:- “10. Condition restraining alienation.—Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist) so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. 11. Restriction repugnant to interest created.—Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.” 22. Section 10 of the TP Act prevents absolute restrains on alienation which are conditions that completely prohibit the transfer of property, and Section 11 of TP Act prevents repugnant conditions that are in consistent with the interest transferred. In fact, Sections 10 and 11 of the TP Act prevent owners from being unduly restricted after transferring their property. Section 10 focuses on the owner's ability to transfer their property, while Section 11 focuses on the transferee’s ability to enjoy and manage the property. Thus as per Section 10 of the TP Act condition restraining the transferee or any other person claiming under him from parting with or disposing of his interest is void. As per Section 11 of the TP Act, when a property is transferred and an absolute interest therein is created in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, the transferee would be entitled to receive and dispose of such interest as if there were no such conditions. 23. In the instant case, as already discussed, what is transferred in favour of Devaki by Krishnan is right to enjoy and collect usufruct there from for the benefit of the family and also to sell the property or a portion thereof for the education and marriage, etc of the female children. In fact, no absolute right transferred in the name of Devaki though she was given right to sell the property for the education and marriage purpose of the female children with a further clause that the property remaining thereafter would go in favour of the plaintiffs. Thus the said property was enjoyed by Devaki for the said purpose, and some portions thereof were sold or given to the female children in terms of Ext.A2. But the second part of Ext.A2 is clear on the point that any property remains after meeting the expenses of their female children in connection with their education and marriage, the said portion of the property would go in favour of the plaintiffs and the same in no way are conditions repugnant to Sections 10 and 11 of the TP Act. It is discernible that Section 10 of the TP Act would apply in cases where there is an absolute transfer of right then restraining disposing of the transferee's interest thereafter. It is discernible that Section 10 of the TP Act would apply in cases where there is an absolute transfer of right then restraining disposing of the transferee's interest thereafter. Similarly, Section 11 of the TP Act also would apply in relation to absolute transfer of property in favour of the transferee. Here as per Ext.A2, the portion of the property available after meeting the expenses of the female children shall go to male children. Since the plaint schedule property so remained, no doubt, by operation of Ext.A2 the same shall go in favour of the plaintiffs being male children of Krishnan and Devaki. 24. If so, without much ado the intention behind Ext.A2 is the welfare of female children, and for the said purpose, right to deal and sell the property was given to Devaki, and no independent right apart from the same assigned in favour of Devaki. If so, the property which is left out after spending the same for the needs of the female children, shall go to the plaintiffs and thereby the plaintiffs obtained title over the plaint schedule property. If so, Devaki had no rights whatsoever in the property so as to sell the same to anybody thereafter. 25. In this connection a pertinent aspect which would require mention is with regard to a specific contention raised by the plaintiffs in Paragraph No. 3 of the plaint. It is pleaded by the plaintiff that “thereafter the 1st plaintiff in love and affection to his sisters including the 1st defendant has paid a sum of Rs.50,000/-each and obtained receipts on 18.03.1998. The 1st defendant who was never satisfied with anything given to her will frequently come to visit the 2nd defendant and induce her to grab more money.” In so far as this plea is concerned, there is no specific denial in the written statement. As per Order VIII Rule 5 of CPC every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under a disability. Proviso to Order VIII Rule 5 states that the court may in its discretion require any facts so admitted to be proved otherwise than by such admission. Proviso to Order VIII Rule 5 states that the court may in its discretion require any facts so admitted to be proved otherwise than by such admission. Thus failure to deny a specific allegation in the plaint specifically or by necessary implication shall be taken as admitted, since the 1st defendant has no disability. In this connection, it is to be noted that while examining the 1st defendant as DW1, Ext.A3 series with reference to Ext.A3(b) whereby she had received Rs.50,000/- from Kamalakshan/the 1st defendant is confronted she did not deny Ext.A3(b). As per Ext.A3(b) there is an admission by the 1st defendant that she had received due share from the properties of Krishnan and Devaki and despite that she received Rs.50,000/-which was voluntarily given by Kamalakshan. Other two female children who are the siblings of the 1st defendant also issued similar receipts as Ext.A3(a) and (c). Even though it is argued by the learned counsel for the 1st defendant that relinquishment over an immovable property worth rupees more than hundred would require registration and therefore Ext.A3 series are inadmissible in evidence, in fact in Ext.A3 series including Ext.A3(c) there is no relinquishment of right, rather an admission that she had received her share due from her parents, earlier. Therefore Ext.A3(a) would show that the 1st defendant is well aware of the fact that in terms of Ext.A2 the plaint schedule property would devolve upon the plaintiffs and with the said knowledge she obtained Ext.B2 sale deed as an experimental tactics. Be it so, the sale deed in the name of the 1st defendant executed by the 2nd defendant is void ab initio, and the same has no binding effect on the rights of the plaintiffs over the property. 26. Regarding the question of non-joinder argued by the learned counsel for the 1st defendant is concerned, the legal position is not in dispute that a suit shall proceed by joining all the necessary parties. When the question of non-joinder is found by an appellate court, the appellate court also shall address the same and do the needful to make an effective adjudication of the lis by joining all necessary parties therein. Otherwise, the adjudication becomes meaningless. Generally, parties to a suit can be categorized as ‘necessary party’ or a ‘proper party’. When the question of non-joinder is found by an appellate court, the appellate court also shall address the same and do the needful to make an effective adjudication of the lis by joining all necessary parties therein. Otherwise, the adjudication becomes meaningless. Generally, parties to a suit can be categorized as ‘necessary party’ or a ‘proper party’. A ‘necessary party’ is someone whose presence is absolutely essential for the court to effectively adjudicate the matter at hand, meaning without them, a proper decision cannot be reached. A ‘proper party’ is someone whose presence would be beneficial to fully resolve the issue, but the court can still make a final conclusive decision even if the said party is not included in the case. 27. In the instant case, originally, Devaki got arrayed as the 2nd defendant, and the relief sought in the suit is to cancel the sale deed executed by the 2nd defendant in favour of the 1st defendant. During trial stage, Devaki was set ex-parte initially and thereafter, she died. If so, if the sale deed would be set aside, the ultimate loser is the 1st defendant, and the sale deed is found to be genuine, the beneficiary also is the 1st defendant. Once the sale deed is found to be one executed by the 2nd defendant without having right to execute the same, the same is non-est, and in such contingency also, the property would go to the plaintiffs herein in terms of Ext.A2 settlement deed. In this connection, it is relevant to refer Order XXII Rule 4 of the Code of Civil Procedure and the same provides as under:- (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. 28. 28. As per Order 4(4), the court has the power to exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has filed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. In the instant case as already observed, the 2nd defendant was set ex-parte before the trial court and she did not file any written statement. If so, in view of Order XXII Rule 4(4) in the instant case, the court has the power to exempt the impleadment of legal heirs of the 2nd defendant. Otherwise, the 2nd defendant is only a proper party and not a necessary party. Therefore, the trial court is fully justified in holding that the legal representatives of the 2nd defendant are not necessary for deciding the matter in issue. Therefore, the said contention also must fail. In view of the matter, the question of non-joinder raised by the learned counsel for the 1st defendant would not succeed. 29. In view of the above discussions, the dismissal of the suit by the trial court holding the view that Ext.A1 sale deed is genuine would require interference so as to reverse the decree and judgment. 30. In the result, the appeal is allowed, and the decree and judgment of the trial court are set aside. Consequently, the suit is decreed, and sale deed No. 1666 of 2009 of Annamada SRO dated 10.08.2009 is declared as a void instrument and ordered the same to be delivered up and cancelled and the same shall not affect the right of the plaintiffs in the plaint schedule property. Consequently, the 1st defendant is restrained by permanent prohibitory injunction from alienating, creating any charge, or executing any further documents on the strength of the sale deed No. 1666 of 2009. Considering the nature of this case, both parties are directed to suffer their respective costs.