Andhra Pradesh High Court - Amravati
Kanala Srinivasa Reddy vs Kanala Subba Reddy on 17 October, 2022
THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL Nos.781 of 2019 and 4 of 2020
COMMON JUDGMENT:
SECOND APPEAL No.781 of 2019 The defendants are the appellants in above second appeal. The above second appeal is filed aggrieved by the judgment and decree dated 09.09.2019 in A.S.No.183 of 2014 on the file of II Additional District Judge, Guntur, reversing the judgment and decree dated 11.11.2014 in O.S.No.68 of 2003 on the file of Senior Civil Judge, Bapatla.
2. For the sake of convenience, the parties to this judgment are referred to as per their array in O.S.No.68 of 2003.
3. Suit O.S.No.68 of 2003 was filed initially by deceased sole plaintiff Kanala Subba Reddy, died pending suit and his wife was brought on record as 2nd plaintiff in I.A.No.449 of 2006 dated 02.11.2007. The relief sought for in the suit is to declare that the plaintiffs are the absolute owners of plaint schedule property as per the settlement deed dated 12.07.2000 executed by late Kanala Appireddy in favour of 1st 2 plaintiff and the said settlement deed is binding on the 1st defendant and for consequential permanent injunction etc.
4. (a) The averments in the plaint, in brief, are that, 1st plaintiff, Basivireddy and Appireddy are sons of Parasurama Reddy. Basivireddy migrated family to Krishjamrajuvaripalem in Prakasam District and has been living there. Appireddy and his wife are living at Dandamudi with 1st plaintiff and his family. The 1st defendant is the grandson of Basivireddy. Appireddy married Punnamma and they had no issues. Punnamma pre-deceased Appireddy and plaintiffs' family looked after Appireddy. In or about 1996, 1st defendant came to Dandamudi and lived for some time with plaintiffs' family. Appireddy died on 18.06.2001 by executing a registered settlement deed dated 12.07.2000 in favour of 1st plaintiff reserving life interest for him and vested remainder to 1st plaintiff.
(b) It was further stated that 1st defendant obtained settlement deed dated 24.03.1999 by playing fraud and misrepresentation and it was never acted upon. Appireddy 3 himself revoked the settlement deed dated 24.03.1999 and it is an incomplete one.
(c) After execution of settlement deed in favour of 1st plaintiff, late Appireddy delivered title deeds to 1st plaintiff along with settlement deed. When 1st defendant attempted to interfere with the possession and enjoyment of 1st plaintiff, he filed suit O.S.No.156 of 2001 on the file of Junior Civil Judge, Ponnur against the 1st defendant for injunction and later at the instance of elders, it was withdrawn. Since the 1st defendant started questioning right and possession of 1st plaintiff, he was constrained to file suit for the relief stated supra.
5. (a) 1st defendant filed written statement and contended inter alia that Appireddy and Punnamma had no issues. 1st plaintiff had two sons and two daughters. Late Appireddy and his wife sought the help of 1st defendant, who is no other than grandson of elder brother Basivireddy; that 1st defendant was fostered by them; that out of love and affection towards 1st defendant, two registered settlement deeds dated 16.07.1997 and 24.03.1999 were executed in respect of 4 plaint schedule property creating vested remainder in favour of 1st defendant and after life time of donor and his wife as regards item No.1 of plaint schedule property; that vested remainder to 1st defendant as regards item Nos.2 to 4 of plaint schedule property and the bequeaths were accepted by 1st defendant.
(b) It was further pleaded that 1st defendant opted to marry the girl of his native village to the dislike of late Appireddy and the marriage was solemnized on 16.05.2000; that disputes arose between 1st defendant and late Appireddy and 1st defendant was made to leave the house of Appireddy at Dandamudi village; that taking advantage, 1st plaintiff prevailed upon Appireddy and got executed registered cancellation deeds dated 12.07.2000 and got executed registered settlement deed dated 12.07.2000 in favour of 1st plaintiff in respect of plaint schedule property. 1st defendant in fact issued notice dated 24.07.2000 to late Appireddy, 1st plaintiff and his two sons not to indulge in any fake or false transactions.
(c) 1st plaintiff filed suit O.S.No.156 of 2001 for permanent injunction against the 1st defendant on the foot of 5 registered settlement deed dated 12.07.2000 and sought for interim injunction in I.A.No.292 of 2001, but no injunction was granted, however a receiver was appointed to take possession of the property. 1st plaintiff filed C.M.A.No.5 of 2002 and no order was passed in the said CMA and hence, suit O.S.No.156 of 2001 was not pressed as also C.M.A.No.5 of 2002 by filing memos.
(d) It was further contended that the alleged compromise between the parties is not true and correct. 1st defendant being absolute owner of the properties by virtue of two registered settlement deeds dated 16.07.1997 and 24.03.1999, on the death of settlor Appireedy got into possession of plaint schedule property to the knowledge of one and all. In view of litigation and troubles given by the 1st plaintiff, 1st defendant sold away item No.1 of plaint schedule property to Bhavanam Nagireddy (3rd defendant); item No.2 of plaint schedule property to Gogireddy Prabhakara Reddy (2nd defendant); item No.3 of plaint schedule property to Kanala Srinivasa Reddy (4th defendant); item No.4 of plaint schedule property to Bonthu Pushpalatha (6th defendant) and Gogireddy Padmavathi (5th defendant) under registered sale 6 deeds dated 10.07.2003 and handed over possession and documents to them. The said vendees came into possession of respective properties and are enjoying the same. 1st defendant also stated that registered settlement deeds dated 16.07.1997 and 24.03.1999 since were acted upon, cannot be revoked unilaterally and eventually prayed to dismiss the suit.
6. Defendants 2 to 6, purchasers, were brought on record as per the orders in I.A.Nos.137 to 141 of 2004 dated 14.07.2004.
7. Defendants 2 to 6 filed separate written statements and pleaded with regard to their purchase of properties and their possession over the same and they also prayed the Court to dismiss the suit.
8. Pending suit as stated supra, 1st plaintiff died and 2nd plaintiff was brought on record basing on registered Will dated 18.01.2006 executed by 1st plaintiff. Additional written statements were filed by 1st defendant and defendants 2 to 6 denying the genuineness of registered Will dated 18.01.2006. 7
9. Basing on the pleadings, trial court framed the following issues:
(1) Whether the suit is bad for non-joinder of necessary party?
(2) Whether the settlement deed dated 12.07.2000 is true and valid?
(3) Whether the plaintiff is entitled for declaration as the absolute owner of the plaint schedule property? (4) Whether the plaintiff is entitled for permanent injunction?
(5) To what relief?
Following additional issue was framed on 07.12.2004:
Whether D-2 to D-6 are bonafide purchasers?
10. During the trial, 2nd plaintiff examined herself as P.W.1 and got examined P.Ws.2 to 6. Exs.A-1 to A-16 were marked. On behalf of defendants, D.Ws.1 to 10 were examined and Exs.B-1 to B-28 were marked.
11. Trial Court decreed suit O.S.No.68 of 2003 by judgment dated 04.12.2009. Defendants filed A.S.No.524 of 2009 on the file of II Additional District Judge, Guntur. Lower Appellate Court partly allowed the appeal by judgment and decree dated 11.04.2011 and remanded the suit to the trial 8 Court with a direction to give opportunity to both parties to adduce evidence on the additional issues framed. The findings of the trial Court on the issues already framed and answered, were set aside. The issues framed are:
(1) Whether late Kanala Appireddy has got a right to cancel the registered gift deeds executed by him in favour of the first defendant which are dated 16.07.1997 and 24.03.1999?
(2) Whether the 1st defendant accepted and acted upon the gifts covered under documents dated 16.07.1997 and 24.03.1999?
(3) Whether Kanala Appireddy executed two registered gift deeds dated 16.07.1997 and 24.03.1999 under misrepresentation or fraud by the 1st defendant? (4) Whether the 1st plaintiff executed the Will of the year 2006 in favour of 2nd plaintiff?
12. After remand, both parties' adduced evidence and the trial Court vide judgment and decree dated 11.11.2014 dismissed the suit with costs. Aggrieved by the same, plaintiff filed appeal A.S.No.183 of 2014 on the file of II Additional District Judge, Guntur. Lower appellate Court allowed the appeal by setting aside the judgment and decree of trial Court 9 dated 11.11.2014. Aggrieved by the same, the present second appeal is filed.
13. Pending appeal, 3rd respondent died and his legal representatives were brought on record as appellant Nos.7 and 8.
14. S.A.No.781 of 2019 was admitted on 07.01.2020 and the following substantial questions of law were framed:
(1) Whether the Court below committed a grave error in making out a case for the plaintiffs and holding that the settlement deeds in question are Will deeds though there is no foundation in the pleadings in the above regard? And, if so, whether the decree and judgment impugned are vitiated and are liable to be set aside?
(2) Whether the appreciation of facts, law and evidence (both oral and documentary) by the Court below is perverse?
(3) Whether the Court below committed a grave error in making out a case, which is not pleaded by the plaintiffs, and placing reliance on the evidence, which is unsupported by pleadings, contrary to the settled principle that any amount of evidence without a pleading shall not be looked into? And, if so, whether the decree and judgment, which are impugned, are liable to be set aside?10
15. Pending second appeal, 7th appellant died and his legal representatives were brought on record as appellants 9 to 11 in I.A.No.2 of 2021 dated 29.07.2021.
SECOND APPEAL No.4 of 2020
16. Plaintiff in the suit filed the above second appeal. The above second appeal is filed aggrieved by the judgment and decree dated 09.09.2019 in A.S.No.184 of 2014 on the file of II Additional District Judge, Guntur, reversing the judgment and decree dated 11.11.2014 in O.S.No.206 of 2011 on the file of Senior Civil Judge, Bapatla.
17. Plaintiff in the above suit is 4th defendant in suit O.S.No.68 of 2003.
18. Suit O.S.No.206 of 2011 was filed by the plaintiff against the defendants for recovery of possession of suit schedule property and, also for past mesne profits etc.
19. The averments, in brief, in the plaint are that plaintiff is the absolute owner of the plaint schedule property; that plaintiff purchased the same under a registered sale deed dated 09.07.2003 for a valuable consideration; that vendor 11 got the property by virtue of registered settlement deed dated 24.03.1999 executed by his junior paternal grandfather by name K.Appireddy; that misunderstandings arose between the settlee K.Appireddy and vendor of the plaintiff regarding the marriage of plaintiff; that younger brother of K.Appireddy i.e. 1st defendant herein got the registered settlement deed cancelled on 12.07.2000 and obtained registered settlement deed dated 12.07.2000 in his favour; after death of Appireddy 1st defendant put forward his rival claim on the foot of registered settlement deed dated 12.07.2000 and filed suit O.S.No.156 of 2001 on the file of Junior Civil Judge, Ponnur; that I.A.No.692 of 2001 was filed for grant of ad-interim injunction; however learned Junior Civil Judge, Ponnur appointed an advocate receiver on 11.02.2002; that he filed C.M.A.No.5 of 2002 on the file of Senior Civil Judge, Bapatla and sought for stay by filing I.A.No.384 of 2002 and temporary injunction by filing I.A.No.425 of 2002; that by a common order dated 08.04.2002 learned Senior Civil Judge allowed the 1st defendant to continue in possession of item No.4 of thatched house on payment of Rs.400/- per month; that 1st defendant (plaintiff in O.S.No.156 of 2001) did not 12 prosecute proceedings further and walked out of litigation; that the vendor of plaintiff pursuant to sale deed, delivered possession to the plaintiff; that plaintiff effected repairs to house for Gruhapravesam and moving between Repalle, where his wife is working as teacher, and Dandamudi where property is situated; that during the midnight of 15.07.2003 taking advantage of absence of plaintiff, defendants 1 and 2 trespassed into the plaint schedule property and hence, filed the suit for recovery of possession of property.
20. Defendants 1 and 2 filed written statement and contended interalia that neither the plaintiff nor his vendor was in possession of the property; that suit O.S.No.68 of 2003 on the file of Senior Civil Judge, Bapatla was filed for declaration of title, wherein plaint schedule property is part of the suit schedule property; that defendants are real owners and have been in possession of plaint schedule property and prayed the Court to dismiss the suit.
21. Pending the suit, 1st defendant died and his legal representatives were brought on record as defendants 3 & 4. 13
22. Basing on the pleadings, trial court framed the following issues:
(1) Whether the plaintiff is owner and possessor of the suit schedule property?
(2) Whether the defendants came into possession of the suit schedule property as alleged by the plaintiff is true?
(3) Whether the contest of the defendants is true? (4) Whether the plaintiff is entitled for possession of the plaint schedule property, past profits, mense profits as prayed for?
(5) To what relief?
23. During the trial, plaintiff examined himself as P.W.1 and got examined P.W.2. Exs.A-1 to A-4 were marked. On behalf of defendants, 3rd defendant examined herself as D.W.1 and no documents were marked.
24. Trial Court by judgment dated 11.11.2014 decreed the suit with costs directing the defendants 2 to 4 to deliver possession of plaint schedule property within two months. Trial Court further directed defendants 2 to 4 to pay an amount of Rs.2,500/- towards past profits. Trial Court also came to conclusion that mesne profits shall be determined on separate application.
14
25. Aggrieved by the same, defendants filed appeal A.S.No.184 of 2014 on the file of II Additional District Judge, Guntur. Lower Appellate Court, being final fact finding Court misinterpreting and misreading Ex.A-4, allowed the appeal vide judgment and decree dated 09.09.2019. Assailing the same, the present second appeal is filed.
26. S.A.No.4 of 2020 was admitted on 07.01.2020 and the following substantial questions of law were framed:
(1) Whether the Court below committed a grave error in construing exhibit A4 settlement deed as a Will without a foundation in the pleadings of the plaintiffs and in making out a case for the plaintiffs which is not pleaded? And, if so, whether the decree and judgment, which are impugned, are liable to be set aside?
(2) Whether the appreciation of facts and evidence (both oral & documentary) by the Court below is perverse? And, if so, whether the decree & judgment impugned are liable to be set aside?
27. Heard Sri Raja Reddy Koneti, learned counsel for appellants and Sri N.Subbarao, learned counsel for respondent.
15
28. Learned counsel for the appellants would submit that Exs.B-16 and B-17 registered settlement deeds executed by K.Appireddy in favour of 1st appellant Kanala Veerareddy were acted upon. By executing those documents, right in praesenti was created in favour of 1st appellant. He would contend that the executant reserved life interest and vested remainder was given in favour of 1st appellant and hence, unilateral cancellation of Exs.B-16 and B-17 by way of Exs.A-5 and A-6 by K.Appireddy is nonest in the eye of law. He would further contend that Lower Appellate Court construed Exs.B-16 and B-17 as Wills and the said finding is contrary to the pleadings of both parties. Thus, he prayed to allow the second appeal.
29. Learned counsel for respondent would contend that Exs.B-16 and B-17 are Wills executed by late Appireddy in favour of 1st appellant and no delivery was affected pursuant to Exs.B-16 and B-17. Donor alone enjoyed the property. He would contend that since deliver was not affected pursuant to Exs.B-16 and B-17, donor got right to cancel the documents and the donor himself cancelled those two documents under Exs.A-5 and A-6 and executed Ex.A-4 registered settlement 16 deed in favour of 1st plaintiff and it was acted upon. Thus, he contended that no substantial question of law involved in the second appeal and he prayed to dismiss the appeal.
30. Perused the suit record and exhibits. Whether Exs.B-16 and B-17 are settlement deeds or Wills?
31. Whether a document is a Settlement Deed or Will, the Court has to examine the document as a whole and to look into the substance thereof and also to know the intention of the parties. Form or nomenclature of the instrument is not conclusive. One has to comprehend the meaning of the document from the document itself. The words used in the document are to be given literal meaning. In the event of intrinsic and inconsistent words and language used in the documents, the intention would prevail over the words used. The intention of the parties has to be determined from the attending circumstances leading to the transaction. Every deed or document should be interpreted by considering the implied terms. While considering the nature of document has to be examined qua transfer of any interest in the property in praesenti or after the death of executants. 17
32. Settlement deed is defined under Section 2 (14) of the Specific Relief Act, 1963 which reads thus:
"(b) "Settlement" an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925 (39 of 1925) whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed be disposed of;"
33. Will is defined under Sec 2 (h) of Indian Succession Act, 1925, which reads thus:
"(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
34. Before further analyzing, a reference may be made to Ramana Dayaram Shetty Vs. International Airport Authority of India1, wherein it was held that, the rules of interpretation are applicable alike to documents as to statutes. It may be noted that in addition to the general principles, while construing the documents like will Gift deed, power of attorney and trust deed, abundant caution should be exercised because more often than not these are the documents, which are executed without active participation of the other party to the documents, such as legatee, done or trustee. By reason of this, these documents need to be 1 AIR 1979 SC 1628 18 strictly interpreted having regard to the context, the attending circumstances and the subject matter and purpose of executing each of these documents.
35. Whether a particular document is a Settlement Deed or Gift or a Will? The Courts have formulated number of tests. These are (i) the name by which the document is styled; (ii) registration of the document; (iii) reservation of life estate in favour of executant; (iv) express words as to when possession passed; (v) use of the present or future tense in the document; and (vi) reservation of the power of revocation (vii) transfer of interest in praesenti or after the death of executant.
36. The relevant portion of Ex.B-16 settlement deed is extracted hereunder:
' క డ ,
మ మ . క ర ,
యనమ అ న మ పర కగ న .
న తన ం ం ద
ర . క వయ వ న , హ
యవల న సమయ ఆసన న . న
న ల . మ మడవ
యం గల శయ తఆ ంత ఆ
19
ంద య తలం క ప ఫలం ం
ప ఫల న దఖ పర ం ఖ
త ఆ న హ
కమం గల .2,00,000/- వ గల శన
సల అం గల తన ం 2వ
అ ట వ .2,00,000/- వగల
.67,000/- వగల
దఖ పర హ ల త క గ .
ఖ వ ల
త ల వర న ం వ
వ ం ఆ ం ం
వ ం గల అ
అ భ ం ం ఎ ం అ ంత
జ ంచగల డ జ ం న ఖ
వ నపర అప ం
సర ధ ప ం న కయ
సమస హ ల అ భ ం వల న . అ
నంతరం రస
ధ న కయ ర సమస హ ల
అ భ ం , , రస ధ , ,
రస ధ ల ఎవ , ఎన త
వ యగల ర . భ ష ఎ ం
త ఏ ధం వ న ట ం స ంత
ఖ ల ప ష ం ఈ ఖ టంకం
రపరచగల . ఈ ఎ ం అ ంత
య ద జ వ ఈ ఆ
ప త న ఏజ ల అ బంధ
20
సంసల ం న ద , అ
వ జ ం ండ ద , అ ం
అ న ద ఈ ఖ ర
జ ంచన న ం ఖ పర ."
37. The relevant portion of Ex.B-17 settlement deed is extracted hereunder:
" 1వ క ర అ . 1వ
ఎ సం న . శ ం ల .
ఆ రణ న 2వ అన న బ
న ం అన
మ మ మ మ . ఆ రణ న
2వ తన న తనం ం
వ తన న వయ ం ం ద క
కన వ . వయ
న డ . సద యం గల
శయ త ంత ఆ ంద య
తలం క ఖ గడ . 27-2-51వ
న మం త ంకట వల కయం ం
ం స. . ఆ 1వ సకం, 559వ
ం, 461 ం.594/55 ష బ న
కయ ద తం ంద
హ క భవం గల వ
ఖ .29,000/- వ గల
యం గల మ ప ఫలం ం
దఖ పరచ ం ఖ హ ల
త క గ నం ం
21
ఖ త లం వర
న ం వ ం
ఎ ం అ ంత య ం అం
గల అ త అ భ ం .
నంతరం 1వ నపర
ఎ ం అ ంత య ం అం గ
అ అ భ ం వ
ం అ భ ం వల న . 1వ
నంతరం, 2వ నం
అప ం వ ం
న, క ర సమస హ ల
అ భ ం వల న . అ న ధం
అ భ ం ల రస
ధ ల , , రస ధ ఎవర
ఎన త వ లగ ర .
భ ష ఎ ం వ వ , ఏ ధం వ న
ట ం స ంత ఖ ల స ప ష ం ఈ
దఖ టంకం రప ."
38. In Venkatasubramaniya Iyer v. Srinivasa Iyer2, the question considered was whether the document marked is a Settlement or a Will. The learned Single Judge answered the question in the following words:
"...A question of that kind is one that has to be decided primarily on the terms of the document itself. It was 2 AIR 1929 MAD 670 22 executed by a widow, the mother of the plaintiff, and is styled a settlement in favour of the plaintiff. It recites certain family arrangements by which certain moveables are divided between the widow and the plaintiff, and the widow retains certain immovable property for herself. It deals with property to an extent of over three velis left to her by her husband under his will absolutely and recites that, in respect of that on account of the request made to her by her son for the benefit of his minor son, the present defendant and out of favour to himself and in consideration of the arrangement that he would not during her lifetime encumber or alienate the rights that would come to him in the property after her death, she on her side undertakes to meet all her own expenses till her death out of the income and not to alienate the property. Thus the document prohibits both parties from alienating the rights retained or given thereby. It directs that after the widow's death, the plaintiff and his heirs shall enjoy the property with all absolute rights. It further provides that if the widow fails to pay the kist on the property, the plaintiff shall pay and may recover from her out of her income, and that the pattah for the property shall be transferred to the plaintiff. The document is styled as settlement and registered.
It is contended by the appellant that the document is a will since the only operative portion of it is that which bequeaths the property to the plaintiff and his heirs after the death of the widow. Both the lower Courts have rejected this contention and held the document to be a settlement. I think it is clear from the 23 tenor of the document that it is not a will. It mentions considerable property which is not disposed of by it at all. It does more than bequeath property to the plaintiff after the widow's death. He obtains by it certain rights in praesenti, for example, the right as covenanted with him that the widow will not alienate the property during her lifetime. He himself is given the right to recover the unpaid kists from her income and to have the pattah transferred to his name. There is no language indicating that the widow was retaining with her any power to revoke the document, while the surrender of her right to alienate during her lifetime indicates that she did not reserve any power to revoke. These points combined with the facts that the parties intended the document to be a settlement and styled it as such and that it was handed over to the plaintiff and not retained with the widow are sufficient to indicate that the widow was merely retaining a life-interest in the property and was transferring to the plaintiff the vested remainder. It is not of much help to refer to reported rulings in a case of this kind when the decision has to be based on the wording of a particular document, but documents of very similar wordings were held to be settlements and not wills in Rajammal v. Authiammal (1910) 33 Mad. 304 and in Gangaraju v. Somanna A.I.R. 1927 Mad.
197. These come nearer to the present case than those in Venkatachala Chetty v. Govindaswamy Naicker A.I.R. 1924 Mad. 605; Thakur Ishri Singh v. Baldas Singh (1884) 10 Cal. 792 quoted by the appellant. I can see no ground for holding that the lower appellate Court made 24 any error of law in regarding Ex. C. on the face of it as a settlement and not a will."
39. In Ramaswami Naidu Vs. Gopalakrishna Naidu3, it was held that:
"The broad tests or a characteristic as to what constitutes a will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a will or a gift is to see whether the disposition of the interest in the property is in praesenti in favour of the settlees or whether the disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of the executant, it would be a will. But if the executant divests his interest in the property and vests his interest in praesenti in the settlee, the document will be a settlement. The general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the document are only a guide to find out whether there was an immediate divestiture of the interest of the executant or whether the disposition was to take effect on the death of the executant."
"If the clause relating to the disposition is clear and unambiguous, most of the other clauses will be ineffective and explainable and could not change the character of the disposition itself. For instance, the clause prohibiting a revocation of the deed on any 3 AIR 1978 MAD 54 25 ground would not change the nature of the document itself, if under the document there was no disposition in praesenti." (Emphasis is mine)
40. In Ramaswami Naidu Vs. M.S.Velappan and Ors.4, the Division Bench of the Madras High-Court referred to the documents which were subject matter of consideration before it and observed:
"In the instant case the first plaintiff was already in charge of the properties as trustee to perform the obligations created under it and continued them after the lifetime of Meenakshi Ammal. There are also positive words whereby it was made clear that the properties should be vested in Velappan and his heirs for them to enjoy the same absolutely....
These two dispositive clauses create an interest in praesenti. The question is whether the postponement of such proprietary rights already vested in Velappan and his heirs, to the lifetime of Meenakshi Ammal, would make any difference. The Explanation to Section 19 of the Transfer of Property Act, providing that a vested interest is not defeated by the death of the transferee before he obtains possession, makes the legislative intent clear that such a vested interest, merely for the reason that it becomes vested after the lifetime of the settlor, would not make it a settlement not being in praesenti. We are therefore unable to agree 4 (1979) 2 MLJ 88 26 with the contention that the interest that Velappan, the first plaintiff, obtained under the instrument is not a vested one and that it could be defeated because it is postponed till after the lifetime of Meenakshi Ammal.
In the instant case the document itself is styled as a settlement deed. It has been registered. The right to enjoy the properties and secure the benefits and the temple honours as trustee under it have become a fait accompli even during the lifetime of Meenakshi Ammal. There is therefore no ambulation in the matter of the vesting of the interest in the first plaintiff by any declaration or use of words either express or implied."
41. In Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and Ors.5, the Hon'ble Apex Court observed that the nomenclature of the document is not conclusive and the Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby is created in favour of the recipient, all those to be gathered from the recitals of the documents as a whole and observed:
"The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries 5 AIR 1996 SC 2220 27 mentioned thereunder. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlor's demise. A reading of the documents together with the Schedule would give an indication that she had created right and interest in praesenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the Schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having divested herself of the right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter Hymavathy. The trial court and the learned Single Judge rightly negatived the claim. The Division Bench was not, therefore, correct in law in interfering with the decree of the trial court."
42. A perusal of Exs.B-16 and B-17 would indicate that (1) settlor treated settlee as his fostered son (2) settlee was brought up by settlor (3) interest was created 28 by setllor in favour of settlee on the date of execution of documents i.e. right in praesenti was created (4) having settled the properties in favour of settlee, settlor restricted his right of alienation. Insofar as Ex.B-17 is concerned, life interest was reserved onto himself and his wife and vested remainder to settlee. Restricted, right to alienate the schedule properties under Exs.B-16 and B-17. Thus, under Exs.B-16 and B-17, settlor himself settled the properties in favour of settlee on the date of execution of deeds without his right of alienation. No right was reserved to cancel the documents during his lifetime by settlor. Thus, on a careful reading of these documents, in the considered opinion of this Court, Exs.B-16 and B-17 are to be construed as Settlements deeds, but not Wills.
43. In the plaint, the plaintiff pleaded as follows:
"Plaintiff submits that he learns that defendant obtained settlement deed on 24.03.1999 for vested reminder in the schedule mentioned properties. Plaintiff submits that the said settlement deed was obtained by fraud and misrepresentation and the same as not accepted and acted upon. As such, late Appireddy by himself revoked the settlement deed dated 24.03.1999 in favour of defendant and it is an incomplete one."29
44. 1st Defendant in his written statement pleaded execution of two registered settlement deeds dated 16.07.1997 and 24.03.1999 in respect of plaint schedule property.
45. P.W.1 in his chief affidavit reiterated the plaint averments and stated that "1st defendant obtained settlement deed on 24.03.1999 for vested reminder for the schedule mentioned property and the said settlement deed was obtained by 1st defendant by fraud and misrepresentation". P.W.1 in her cross examination deposed that D2 to D6 purchased the part of suit schedule property from 1st defendant under the respective sale deeds. P.W.3 in her cross examination admitted that D2 to D6 are in possession and enjoyment of the schedule property. During the cross examination of D.W.1, no suggestion was put to D.W.1 that Ex.B-16 and B-17 are Wills but not settlement deeds. Thus, parties to the litigation i.e. neither the plaintiff nor defendants pleaded that Exs.B-16 and B-17 are Wills but not settlement deeds. Even in Ex.A-4 settlement deed it was recited about the execution of settlement deeds dated 16.7.1997 and 24.03.1999 and cancellation of those 30 settlement deeds. Exs.A-5 and A-6 cancellation deeds of Exs.B-16 and B-17, it was referred to as cancellation of settlement deeds.
46. Thus, a perusal of the pleadings, evidence of parties and cross examination of the parties would indicate that parties to the litigation never treated the documents Exs.B-16 and B-17 as Wills. No plea was raised to that effect and no evidence was let in.
47. However, for the first time, lower appellate Court came to the conclusion that Exs.B-16 and B-17 are Wills, but not Settlement deeds. Thus, the finding of the lower appellate Court construing Exs.B-16 and B-17 as Wills is contrary to the recitals in Exs.B-16 and B-17 as also the pleadings and evidence on record.
48. Whether delivery of possession of property is essential condition for valid settlement deed and, that the settlement of vested remainder can be validly made keeping life interest with the donor.
31
49. It is apt to extract Section 19 and 21 of Transfer of Property Act which elucidate the expression vested interest and contingent interest.
19. Vested interest.- Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanation- An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
21. Contingent interest. - Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the 32 happening of the event, in the latter, when the happening of the event becomes impossible.
Exception. - Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.
50. A reading of the plain language of the above reproduced sections makes it clear that an interest can be said to be a vested interest where there is immediate right of present enjoyment or a present right for future enjoyment. An interest can be said to be contingent if the right of enjoyment is made dependent upon some event which may or may not happen. On the happening of the event, a contingent interest becomes a vested interest."
51. In Rajes Kanta Roy Vs. Santi Devi6, the Hon'ble Apex Court observed thus:
"Although the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the 6 AIR 1957 SC 255 33 court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear."
52. As indicated supra, a perusal of Exs.B-16 and B-17 would indicate that settlor settled the rights in property in praesenti in favour of settlee and to enjoy the property after the life time of settlor. The executant/settlor imposes self- restriction with reference to the right to sell or create encumbrances though he is in possession of the property after execution of the document, the document is to be construed as Settlement Deed but not Will.
53. The next question for consideration is whether the settlor can cancels Exs.B-16 and B-17 unilaterally without the consent of settlee.
54. It is settled legal position that when a valid transfer is brought into existence in accordance with law, it cannot be set at naught at the instance of one of the parties to it. If any document is required to be cancelled, the only remedy is by way of a civil suit for cancellation under Sec 31 of the Specific Relief Act. No cancellation deed can be unilaterally 34 executed or registered. The person intending to cancel the gift deed/settlement deed has to invoke the jurisdiction of the competent civil Court for cancellation of the said deed.
55. This Court had an occasion to consider whether a gift deed can be cancelled unilaterally in Chelluboyina Nagaraju Vs. Molleti Ramudu alias Vijayalakshmi in S.A.No.216 of 2020 dated 13.04.2022. This Court came to the conclusion that a registered document cannot be cancelled unilaterally. This Court also placed reliance upon the judgment of this Court in Kolli Rajesh Chowdary Vs. State of Andhra Pradesh7. In that case, while dealing with the aspect whether registration of deed of cancellation unilaterally is violative of principles of natural justice and also contrary to the Rule 26(i)(k)(i), Hon'ble Court held that deed of cancellation/deed of revocation is declared as null and void and it is of no effect. There cannot be a unilateral cancellation of registered document and that a cancellation deed cancelling a registered document can be registered only after the same is cancelled by a competent Civil Court, after notice to the parties concerned, and that in the absence of any declaration 7 2019(3)ALD229 35 by a competent Court or notice to parties, the execution of deed of cancellation as well as its registration are wholly void and nonest.
56. Since Exs.B-16 and B-17 were acted upon by the 1st defendant, unless they are cancelled by the competent Court, the executant of the document cannot unilaterally cancel those documents. Such cancellation is non-est in the eye of law. They do not bind the settlee. The plaintiff filed the suit for declaration basing Ex.A-4 settlement deed dated 12.07.2000 upon unilateral cancellation of Exs.B-16 and B- 17 under Exs.A-5 and A-6. Since this Court came to the conclusion that the cancellation of Exs.B-16 and B-17 is not valid in the eye of law, plaintiff cannot maintain the suit basing Ex.A-4. Thus, the suit is liable to be dismissed.
57. This second appeal is filed under Section 100 of CPC. The scope of Section 100 of CPC is no longer res integra. While dealing with the scope of Section 100 CPC, the Hon'ble Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead) By Lrs. and Ors.8 held as follows:
8 (2001) 4 SCC 262 36 "Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."
58. The Hon'ble Apex Court in Yadavarao Dajiba Shrawane Vs. Nanilal Harakchand Shah (Dead) and Ors.9 held thus:
"... The position is well settled that when the judgment of the final Court of fact is based on mis-9
2002 (6) SCC 404 37 interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal."
59. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal10, held thus:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled 10 AIR 2009 SC 1481 38 position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
It was furthermore held:
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v.
Purushottam Tiwari MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...39
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
60. In the light of the expression of the Hon'ble Apex Court on the scope of interference of by the High Court in second appeal, this Court while exercising jurisdiction under Section 100 of the CPC must confine to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Court below where the Courts below have exercised the discretion judicially. Further the existence of substantial question of law is the sine qua non for the exercise of 40 jurisdiction. This Court cannot substitute its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record.
61. The findings recorded by the Lower Appellate Court, as narrated supra, are basing on misreading and misinterpretation of Exs.B-16 and B-17 and also without any pleading. Thus, the substantial questions of law framed at the time of admission are answered holding that Exs.B-16 and B-17 are Settlement Deeds. Settlor settled interest in favour of settlee on the date of execution of document i.e right in presenti was created in favour of settlee. Without any pleading and evidence Lower Appellate Court, misreading the contents of document and ignoring settled principles concluded that Exs.B-16 and B-17 are Wills but not Settlement Deeds. Thus, in view of substantial questions of law S.A.No.781 of 2019 deserves to be allowed. Accordingly, S.A. No. 781 of 2019 is allowed, however, without costs. S.A.No.4 of 2020
62. In view of findings recorded by this Court in S.A.No.781 of 2019, wherein this Court concluded that findings of the 41 lower appellate Court treating registered settlement deeds dated 24.03.1999 and 16.07.1997 Exs.B-16 and B-17 as Wills is not correct and in fact, those documents are Settlement Deeds; that Settlor transferred interest in praesenti in favour of settlee and thus, the settlor unilaterally cannot cancel the registered settlement deeds and that the suit filed for declaration basing on registered settlement deed dated 12.07.2000 is not maintainable, since no right was accrued in favour of 1st plaintiff Kanala Subba Reddy.
63. Appellant in the above second appeal is claiming right over the property by virtue of a registered sale deed executed by K.Appi Reddy by virtue of registered Settlement Deed dated 24.03.1999 Ex.B-16 in O.S.No.68 of 2003. In view of the findings recorded in S.A.No.781 of 2019, S.A.No.4 of 2020 deserves to be allowed. Appellant is entitled to possession of plaint schedule property in O.S.No.206 of 2011.
64. Accordingly, S.A.No.781 of 2019 is allowed setting aside the judgment and decree dated 09.09.2019 in A.S.No.183 of 2014 on the file of II Additional District Judge, Guntur. Judgment and decree dated 11.11.2014 in O.S.No.68 of 2003 42 on the file of Senior Civil Judge, Bapatla is restored and confirmed. No order as to costs.
65. S.A.No.4 of 2020 is allowed setting aside the judgment and decree dated 09.09.2019 in A.S.No.184 of 2014 on the file of II Additional District Judge, Guntur. Judgment and decree dated 11.11.2014 in O.S.No.206 of 2011 on the file of Senior Civil Judge, Bapatla is restored and confirmed. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 17th October, 2022 PVD