Madras High Court
Appandainatha Nainar, Kannayya ... vs Appadurai, Minor Duraisamy And Minor ... on 3 March, 2003
Equivalent citations: (2003)1MLJ805
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
JUDGMENT N.V. Balasubramanian, J.
1. An oft-repeated question on the construction of a document, whether it is a will or settlement arises in this Letters Patent appeal.
2. One Mallinatha Nainar, the first defendant in the suit, executed a document dated 5.6.1972 which was registered in the Office of Sub-Registrar, Gingee. He thereafter revoked the said document by another registered deed dated 20.8.1980. The plaintiffs, who are the grandsons of Mallinatha Nainar, filed the suit for declaration of their title to the suit properties on the ground that the deed executed on 5.6.1972 was a deed of settlement and Mallinatha Nainar has no right of revocation and he has no right to alienate the properties and the alienation made by him in favour of his another son, the second defendant in the suit and the subsequent sale in favour of outsiders by the second defendant are not valid in the eye of law, and hence, the suit has been filed for declaration that the plaintiffs are entitled to the suit properties as per the settlement deed dated 5.6.1972 and for other consequential reliefs.
3. Mallinatha Nainar, who executed the document and who figured as first defendant in the suit, in his written statement, has stated that there was an earlier partition in the family and in the said partition, he was allotted certain properties and he was forced to execute the document and by the deed, no right was conferred to the plaintiffs or the sons of the second defendant. According to him, no present right was conferred in the document dated 5.6.1972 as alleged by the plaintiffs and it was not his intention also to give any present right under the document dated 5.6.1972. His case was that the document was only a will and that document was also not acted upon. It is also stated that since the document was a will, that need not be revoked, but however, with a view to put an end to the dispute, he executed the deed of revocation. His main case is that no right was conferred on the plaintiffs by the document and subsequently, the properties were sold for valuable consideration to the second and third defendants. Other defendants also supported the case of the first defendant.
4. The trial Court, on the basis of evidence, held that the document dated 5.6.1972 is a will and the document was also executed under undue influence exercised by the sons of the first defendant and the first defendant had the right to revoke the document. The trial Court also upheld the alienation by the first defendant in favour of the second defendant and also the subsequent alienations by the first and second defendants in favour of third defendant. Consequently, the trial Court dismissed the suit filed by the plaintiffs. Against the judgment and decree, an appeal was preferred before this Court and a learned Single Judge of this Court, by judgment dated 24.11.1999, held that the document is only a settlement deed and not a will. Learned Single Judge held that the deed of revocation and subsequent alienations in favour of defendants 2 and 3 are not valid and cannot confer any right on the executor or the alignees. Hence, the learned Single Judge allowed the appeal and decreed the suit as prayed for. It is against the judgment and decree, the present appeal has been filed.
5. The entire question depends upon the construction of the document, which is in Tamil and to appreciate the controversy, we quote from the said document the relevant portion which reads as under:-
@,tu;fSf;F i&/a{u; Jiurhkp eapdhu; Fkhuu; i& tpguk; ky;ypehj eapdhu; vGjp itj;j brl;oy; bkz;L gj;jpuk; vd;dbtd;why; c';fspy; 1. 2 egu;fs; vd; Fkhuu;fSk; nky; fz;l ikdu;fs; vd; kfd;fs; bgw;w ngug; gps;isfs; MdgoahYk; c';fs; ngupy; vdf;F ,Uf;Fk; gpupaj;ija[k; tp;!;thrj;ija[k; Kd;dpl;Lk; c';fSf;F Mjut[ bra;J itf;f btz;oa flik vdf;F ,Ue;J tUtjhYk; ,jdoapy; fz;l U:gha; 21.500/00 ,Ugj;jp xU Mapuj;jp Ie;E}W bgWkhd ,jdoapy; fz;l V/ gp bc&l;a{y;fspy; fz;l brhj;Jf;fis ,d;W c';fSf;F jhd brl;oy;bkd;lhf bra;J itj;jpUf;fpnwd;/ ,jd; fPH; tUk; brhj;Jf;fspd; tUkhdj;ij kl;oy; jPu;it brYj;jp ehd; vd; Ma[s; tiu mDgtpj;J vd; Ma[Sf;F gpwF ,jd; fPH; tUk; V bc&l;a{y; brhj;ij ek;kpy; 1 egUf;F jw;nghJ ,Uf;Fk; Mz; re;jjpa[k; ,dp nky; Vw;gLk; Mz; re;jjpfSk; rk ghfkhf ru;t Rje;jpukha; mile;J bfhs;s ntz;oaJ/ ,jdoapy; fz;l gp bc&l;a{y; brhj;ij c';fspy; 2 egUf;F jw;nghJ ,Uf;Fk; re;jjpfSk; ,dpnky; Vw;gLk; Mz; re;jjpfSk; rkghfkhf ru;t Rje;jpukhf mile;J bfhs;s ntz;oaJ. jtpu vd; Ma[Sf;Fs; ,jd; fPH; tUk; brhj;Jf;fspy; eP';fs; gpuntrpf;f c';fSf;F cupik ,y;iy/ ,e;j brl;oy;bkz;L gj;jpuj;ij khw;wnth. uj;J bra;anth vdf;F cupik fpilahJ/ ,jd; fPH; tUk; brhj;Jf;fis mlkhdk;. nghf;fpak;. fpuak; Kjypa ve;j tpjkhd guhjPd';fs; bra;at[k; vdf;F cupikna fpilahJ/ mg;go ehd; VjhtJ tpy;y';fk; bra;jhYk; mitfs; bry;yjf;fpdjy;y/ ,e;jgof;F vd; rk;kjk;@ The document was written in Tamil and the official English version of the above said portion reads thus:-
"Whereas, the said persons, (1) and (2) are the settlor's sons and the said minors are his grandsons, through his sons and out of love and affection towards them, and as it is his duty to do some favour to them, he hath this day settled the properties mentioned in the 'A' & 'B' Schedules hereunder by way of gift, which is worth about Rs.21,500/- (Rupees twenty one thousand and five hundred only) in favour of the settles. The Settler shall have the enjoyment of the income derived out of the properties mentioned hereunder by paying the tax, etc. during his life-time and after his life-time, the existing male descendants and the future male descendants of the person numbered as 1 amongst us shall attain the properties mentioned in the 'A' Schedule hereunder, absolutely in equal shares. The existing descendants and the future male descendants of the person numbered as 2 amongst us, shall attain the properties mentioned in the 'B' schedule hereunder absolutely in equal shares. Besides, during the life-time of the Settler, the Settles have no right to enter into the below mentioned properties. The Settler does not have the right to revoke or alter this Settlement Deed. The Settler does not have the right to carry out any alienation of the said properties like mortgage, lease or sale. Even if he does any alienation, they are not valid. To this effect, the Settler gives his consent."
6. We heard Mr. Muthukumarasami, learned senior counsel appearing for the appellants and Mr. G. Subramaniam, learned senior counsel appearing for the respondents. They referred to number of decisions which laid down the tests to determine whether a particular document is a will or a settlement. Mr. Muthukumarasami, learned senior counsel referred to the following decisions:
1.REV. FR. M.S.POULOSE v. VARGHESE AND OTHERS (1995 SUPP. (2) S.C.C. 294).
2. VENKATACHALAM CHETTY v. GOVINDASWAMI NAICKER (XLVI M.L.J.288)
3. C.G.T. v. THIRUVENKATA MUDALIAR (107 ITR 661)
4. SADASIVAM & 6 OTHERS v. SUBRAMANIA PILLAI & 8 OTHERS (1986 T.L.N.J. 270)
5. RAMASWAMI NAIDU v. GOPALAKRISHNA NAIDU (90 L.W. 430).
6. PONNUCHAMI SERVAI v. BALASUBRAMANIAN ALIAS SURESH (94 L.W. 796).
7. POONGAVANAM v. PERUMAL PILLAI (1997(I) MLJ 169)
8. ANANTHACHARY v. MOHAN RAM (2001) 2 M.L.J. 270) Mr. G. Subramaniam, learned senior counsel referred to the following decisions:-
1. RAMASWAMI NAIDU v. VELAPPAN (1979 II MLJ 88)
2. DAMODARAM PILLAI v. DHANALAKSHMI (1981 I MLJ 171)
3. CHANDRAKUMARI v. AGASTHIAPPA NAINAR (1981 II MLJ 373)
4. N.B. SUBRAMANYAM v. A. HYMAVATHI
5. ALPHONESE, A. v. VINCENT
6. PALANIAMMAL (DIED) AND LAKSHMI v. PASUMAYIL AND TWO OTHERS (1998-1-L.W.239)
7. DESHAV KUMAR SWARUP v. FLOWMORE PRIVATE LIMITED .
7. It is clear from the reading of various decisions that every document has to be construed on its own terms with reference to its contents, and the decisions relied upon lay down certain principles or guidelines to determine whether a particular document is a settlement or a will. In RAMASWAMI NAIDU v. VELAPPAN (1979 II MLJ 88) this Court held that the following are some of the important tests to determine whether a document is a will or a settlement:
"(i) the nomenclature used by the settler in styling the document;
(ii) the express disparities words used which touch upon the time when the vested interest is created;
(iii) reservation of the power of revocation in the instrument;
(iv) the effect of the reservation of a life estate in favour of the executant under the instrument;
(v) registration of the document under the appropriate law."
This Court also added that it is the substance of the instrument and the generous impulses which prompted a person to execute the document and not the form adopted which should determine the real nature of the instrument. In other words, it is necessary to find out the nature of disposition in the document in question; whether there is transfer of any interest in praesenti in favour of the settle or whether the document provides for the transfer of interest in favour of the beneficiary on the death of the executant. It is in the light of this principle, the question whether the document in question is a will or a settlement has to be considered, and hence, we are of the view it is not necessary to quote in extenso the judgments relied upon as the tests laid down in all the cases are same and we have to construe the document as a whole to find out whether there is a transfer of right or interest in the property in favour of the settles in praesenti or not.
8. We have carefully considered the document with the aid of the counsel for both the parties and a close reading of the document indicates the following relevant points:-
a) The settler has settled A and B schedule properties on the date of the deed in favour of the transferees by a gift settlement.
b) The settler was given the right to enjoy the income from the properties after payment of kist during his life time.
c) After his life time, A-schedule property should be enjoyed by the existing and future male grandsons through one of the sons of the settler, namely, Appandanatha Nainar.
d) Similar transfer was made with reference to B-schedule property in favour of the existing and future male grandsons through his another son, by name, Parsuvatha Nainar.
e) The transferees had no right to enter into possession of the properties until the life time of the executant.
f) The executant had no right to modify or revoke the document.
g) The executant had no right to create any mortgage, usufructuary mortgage or to sell the properties and if any encumbrance is created, it will not bind the beneficiaries.
h) In the schedule, it is stated that the patta of the properties should continue to stand in the name of the executant.
9. The intrinsic evidence in the document itself shows that there was transfer of right in praesenti in favour of the settles on the date of execution of the document. The first defendant, in the document, has stated that he settled A and B schedule properties on the date of execution of the document in favour of the transferees by way of gift settlement. The document in original which is in Tamil clearly shows that there was a transfer of interest in the properties in praesenti in favour of the settles and the first defendant had only a right of enjoyment of income from the properties. Though the document provides that after the life time of the settler, the properties should be enjoyed in equal shares by the existing and future grandsons, since there was a transfer of interest in praesenti in favour of the existing grandsons, they would hold the properties in trust for the future grandsons also and the document cannot be read to mean that the transfer would take place only on the death of the settlor.
10. Another important factor is that the first defendant has emphasised in the deed that he had the right to enjoy the income from the properties only and after his life time, the properties should be taken by the existing as well as future grandsons through his sons in equal shares. If anyone of the existing grandsons on the date of document dies during the life time of the settler, since vested interest has been created in favour of the existing grandsons, his legal heirs would take the properties along with other beneficiaries/settlees mentioned in the deed, and it is not stated in the document that the grandsons existing on the date of death of the settler would take the properties in equal shares. The above clause gives a clue that the properties were settled in favour of the existing grandsons and they were required to share the properties along with the future grandsons on the death of the settlor.
11. The dispositive clause in the document clearly points out that the first defendant has settled the properties in favour of the parties to the document and there was transfer of title in favour of them also. The latter clauses in the document speak only of possession and the possession of the properties was directed to be taken after the life time of the settler by the existing grandsons and future grandsons through his sons in equal shares. Moreover, the clause prohibiting the settles from entering the properties during the life time of the settler also gives some indication that a right has been created in favour of them and that is the reason for the presence of a clause prohibiting the settles from entering into the suit properties during the life time of the settler. The document is also styled as a settlement deed and it is also expressly stated that the settler has no power to revoke or modify the document. He has no power to mortgage or sell or transfer any interest in the properties during his life time. The settler, by virtue of the document, has virtually stripped himself of all his rights in the properties except the right to be in possession and enjoy the income from the properties during his life time. The document shows that the first defendant retained himself only the right of enjoyment of income from the properties during his life time and all other interests in the properties were transferred in favour of the settles even on the date of execution of the document. Since there was transfer of interest in praesenti in favour of the settles on the date of execution, we hold that the learned Single Judge was right in holding that it was a deed of settlement and not a will. It is clear from the evidence that the intention of the settler was that he desired to execute a deed of settlement so that the properties should not go out of the family. His conduct at the time of registration of the document and his subsequent conduct confirming that it was a settlement deed in the rent control proceedings show that the parties meant the document to be a settlement deed. Further, the first defendant was a person well-versed in litigation. His deposition shows that he knew the distinction between a will and a settlement as he has stated that a will need not be registered and a will can be written on a plain paper.
12. It is relevant to notice also the circumstances under which the document came to be executed. The executant is the father of the second defendant as well as the paternal grandfather of the plaintiffs. It is stated that the wife of the executant was living separately and he was living with another woman. A partition in the family took place in the year 1971, that is on 1.11.1971 between the father and his two sons and certain properties were allotted in favour of the father and certain properties were allotted to the sons separately. It is in evidence that the sons impressed upon the father to execute the document in question so that the properties should not go out of the family. It is also in the evidence of the independent witness, P.W.2 that the first defendant gave instructions for the preparation of the document in question and wanted to make settlement of the properties and he never wanted to write a will. He has deposed that besides the document in question, in respect of the property obtained by the first defendant by way of a will from his father, a partition deed was also prepared which was written by P.W.2 on the same date when the deed in question was executed and registered. He also denied the suggestion that it was written as a will and his evidence was that the document was written only as a settlement. P.W.2 is a Village Karnam and there was no suggestion to him that he was supporting the case of the plaintiffs because that he was interested in the plaintiffs. It is clear that the purpose of creating the document in question is that the properties should not go out of the family.
13. We have also gone through the evidence of the first defendant. The evidence of the first defendant, who was examined as D.W.1, shows that he knew the distinction between a will and a settlement. He deposed that a will could be written on a plain paper. His evidence that there was some representation that will should be written in stamp papers and hence he executed the document in stamp papers as if it was a will cannot be true in view of his own deposition in the rent control proceedings in R.C.O.P. No. 3 of 1978 on the file of the District Munsif, Gingee that he executed a deed of settlement and he had only a right of enjoyment. Further, the evidence of the independent witness, P.W.2 is acceptable wherein he has stated that the deed of settlement was prepared and it was not written as a will. The endorsement of the registering authority on the document also shows that the necessity to identify the executant was dispensed with as the Sub-Registrar knew the executant personally which clearly shows that the first defendant had executed number of documents in the said Sub-Registrar's Office. The evidence of record discloses that there was an earlier partition deed between him and his sons and on the date when the document in question was executed, another deed of partition was also executed and the endorsement on the document shows that the document was presented by the first defendant voluntarily and at that time, he admitted that it was a deed of settlement.
14. Another important factor is that when the first defendant executed the deed of revocation, he has not stated in the document that the document in question was a will and hence, he revoked the same. On the other hand, the case of the first defendant was that the document was not acted upon and hence, he executed the deed of revocation. The intention behind the execution of the document in question and the subsequent conduct of the first defendant clearly show that he executed the deed as a settlement and not as a will and it is only in the notice dated 25.9.1980, marked as Ex.A-4, the first defendant has taken the plea for the first time that the document was a will and prior to that he never disputed that the document was a settlement.
15. As far as the decisions relied upon by the learned senior counsel for the appellants are concerned, in those cases there was no transfer of right in praesenti in favour of the settles. In C.G.T. v. THIRUVENKATA MUDALIAR (107 ITR 661), the document used the words, 'settlor settles the property', but the Court found that there was intrinsic evidence in the document to show that there was no provision in the document for transfer of interest in the immovable property in favour of anyone of parties to the document and the clauses in the document were found to be testamentary in nature. Therefore we hold that the learned Single Judge was right in holding that the document in question was a deed of settlement and not a will and there was transfer of interest and title to the properties in favour of the settles and the possession alone was directed to be transferred after the life time of the settler. Though the present case is somewhat different from the cases relied on in the sense that there is a clause in the document to the effect that the donees, viz., existing as well as future grandsons were to take the properties absolutely after the life time of the settler, that clause alone is not sufficient to hold that it is a will. In our view, the said clause has to be read in the light of earlier dispositive clauses wherein it is stated that the properties were transferred in praesenti in favour of the settles and the settler had no right of alienation, but he retained only the right to enjoy the income from the properties during his life time. We therefore hold that the document is a deed of settlement. Learned Single Judge also found on evidence that there was no undue influence on the first defendant in the execution of the document.
16. We therefore hold that the document in question is a settlement and not a will. Consequently, the deed of revocation and subsequent alienations are not valid and the learned Single Judge was right in holding that the judgment and decree of the trial Court cannot be sustained and the suit is liable to be decreed as prayed for. Consequently, we dismiss the Letters Patent appeal, but in the circumstances of the case, there will be no order as to costs. Connected C.M.P. No. 22404 of 1999 is closed.