Karnataka High Court
Sri L R Srinivasa S/O Late Lakshmamma vs Smt Sarojamma D/O Late Kenchamma on 11 July, 2018
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2018
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
RSA NO.3104 OF 2006 (DEC & INJ)
BETWEEN
1. SRI L R SRINIVASA
AGED ABOUT 70 YEARS
S/O LATE LAKSHMAMMA
R/AT NO.20, GOTTIGERE VILLAGE
UTTARAHALLI HOBLI
BANGALORE SOUTH TQ
BANGALORE - 560 083
SINCE DECEASED BY LRS
1(a) YOGISH CHANDRA KUMAR
AGED 42 YEARS
S/O A SRINIVASA
1(b) SRI PRASHANT KUMAR
AGED ABOUT 37 YEARS
S/O A SRINIVASA
BOTH ARE RESIDING AT
546 GOTIGERE POST
GOTIGERE BG ROAD
NEAR ANJENAYA TEMPLE
BANGALORE
1(c) SMT PRIYADARSHINI S
AGED 40 YEARS
2
W/O NANJUNDIAH
NO.76/39, BYRAVESWARA NILAYA
KOTNUR DINNE SOS POST,
BANGALORE - 560076
2. SMT PARVATHAMMA
AGED ABOUT 55 YEARS
W/O L R SRINIVASA
R/AT NO.20, GOTTIGERE VILLAGE
UTTARAHALLI HOBLI
BANGALORE SOUTH TQ
BANGALORE - 560083.
...APPELLANTS
(BY SMT KSHAMA NARGUND BANAVATHY, ADV. FOR
SRI M.B. NARGUND, ADVOCATE)
AND
1. SMT SAROJAMMA
AGED ABOUT 55 YEARS
D/O LATE KENCHAMMA
GOTTIGERE VILLAGE
BANNERGHATTA ROAD
BANGALORE SOUTH TQ
BANGALORE- 560 083.
2. SMT JAYAMMA
AGED ABOUT 45 YEARS
D/O LATE KENCHAMMA
BAGALUR VILLAGE
HOSUR TALUK
DHARMAPURI DIST
TAMIL NADU - 635 103.
3. SRI VENKATESH
AGED ABOUT 42 YEARS
3
S/O LATE KENCHAMMA
BELATHUR LAYOUT
HOSAKOTE TALUK
KADUGODI POST
BANGALORE RURAL DIST
BANGALORE- 560 067.
4. SMT YESHODAMMA
AGED ABOUT 40 YEARS
W/O LATE KODANDARAMA
DODDAINDALAVADI
ANEKAL TALUK
BANGALORE RURAL DIST
BANGALORE - 562 102.
... RESPONDENTS
(BY SRI Y R SADASHIVA REDDY, SR. COUNSEL
AND SRI RAHUL S. REDDY, ADVOCATE FOR R1 TO R4)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 17.8.2006 PASSED IN
R.A.NO.16/2002 ON THE FILE OF THE PRESIDING OFFICER,
DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-II,
BANGALORE RURAL DIST, BANGALORE, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:
16.10.2001 PASSED IN O.S.NO.283/1997 ON THE FILE OF THE
PRL.II CIVIL JUDGE (JR.DN.), BANGALORE RURAL DIST,
BANGALORE.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
R.DEVDAS J., (ORAL):
This Regular Second Appeal is preferred by the defendants in original suit No.283/1997 which was dismissed on 16.10.2001 by the Principal II Civil Judge (Jr.Dn.), Bangalore Rural District, Bangalore and being aggrieved by the judgment of the First Appellate Court in R.A.No.16/2002 dated 17.08.2006 passed by the Fast Track Court-II, Bangalore Rural District, Bangalore.
2. The parties shall be referred to as per their status before the Trial Court.
3. The brief facts of the case are as follows:
One Sri Nanjunadappa had two daughters by name Smt. Lakshmamma and Smt. Kenchamma. Sri Nanjundappa executed a Settlement Deed dated 10.7.1965 which was duly registered on 16.7.1965. As per the recitals in the settlement deed, Sri Nanjundappa had several self-acquired properties and since he had no male issues, he intended to 5 settle the properties amongst his daughters and the eldest son of Smt.Lakshmamma i.e., A.Srinivas who is the defendant No.1 in the suit. Defendant No.1 has been referred to as A.Srinivas and L.R.Srinivas in many places. Suffice to say that both the names refer to the same person. Though there are several items of immoveable properties in the Deed of Settlement, the property in question or the suit schedule property pertains to only one item. It is a house site measuring 25' x 15' situated at Gottigere Village, within the gramtana limits, settled in favour of the second daughter Smt.Kenchamma. It is pertinent to notice the boundaries of the suit schedule property. Towards the north of the suit schedule property is the property settled in favour of A.Srinivas and it consists of a house. It is suffice to notice that one of the properties that was given in favour of A.Srinivas, is the property which was lying to the northern side of the suit schedule property. The importance of this aspect will be discussed at a later stage.6
The settlement deed makes it clear that though the properties are settled in favour of the parties under the deed of settlement, all the properties will remain in the possession of Nanjudappa during his lifetime and the possession will be taken by the respective parties only after the death of Nanjudappa. On 20.10.1967 the said Nanjundappa executes a sale deed with respect to the suit schedule property in favour of his grandson A.Srinivas who is the first defendant in the suit. In the recitals Sri Nanjundappa, states that though the property was settled in favour of his second daughter-Kenchamma, since Kenchamma was seriously ill and she was in need of money and since she is settled in a house constructed at Kammanahalli, with the consent of Kenchamma's husband, the suit schedule property is sold in favour of A.Srinivas for a consideration of Rs.200/-.
The plaintiffs are the two daughters, a son and a daughter-in-law of Smt.Kenchamma. The suit is filed 7 against L.R.Srinivas and his wife Smt.Parvathamma, for declaration that the plaintiffs are the absolute owners of suit schedule property having inherited the same from the estate of Smt.Kenchamma. The plaintiffs have also sought for a relief of permanent injunction against the defendants.
4. In the written statement, the first defendant contended that the settlement deed executed by Nanjundappa was conditional and possession was not passed on under the settlement deed. The defendant contended that there was no transfer of the schedule property in favour of Kenchamma. It is contended that since Nanjundappa executed the sale deed during his lifetime, in favour of the first defendant for valuable consideration, the contention of the plaintiffs that they were in possession of the suit schedule property should be negatived. The defendants further contended that the revenue records stand in their name and they have been 8 paying taxes to the local authority and they are in lawful possession of the suit schedule property.
5. On behalf of the plaintiffs, one Raghuram, who is the son of the first plaintiff enters the witness box as PW1, by virtue of a special power of attorney executed by the plaintiffs to conduct the proceedings in the suit. The documents that were relied upon by the plaintiffs are the settlement deed and an encumbrance certificate which is not pertaining to the suit schedule property. The defendants produced the sale deed that was executed by Nanjundappa in favour of the first defendant, house assessment extract and tax paid receipts. The Trial Court framed the following issues:
i) Whether the plaintiffs prove that the suit schedule property originally belonged to late Nanjundappa son of Salaivahana Venkatappa, who is the grand father of the plaintiffs?9
ii) Whether the plaintiffs prove that,
Nanjundappa has no male issues and
executed a Settlement deed on
10.07.1965 in favour of his two daughters Kenchamma and Lakshmamma and thus the plaintiff became the absolute owner of the suit schedule property?
iii) Whether the plaintiffs prove that, plaintiffs are in lawful possession of the suit schedule property as on the date of the suit?
iv) Whether the plaintiffs prove that, the defendants are unlawfully interfering with their lawful possession and enjoyment of the suit schedule property?
v) Whether the first defendant proves that, late Nanjundappa sold the suit schedule property to the first defendant?
vi) Whether the suit is properly valued?
10
vii) Whether the plaintiff is entitled for the
relief of declaration and Permanent
Injunction?
viii) What decree or order?
6. The Trial Court is of the opinion that by reading the entire settlement deed, the intention of the executant appears to settle the property after his demise and therefore the document is in fact a Will. Having taken note of the last portion of the settlement deed where the executant retains the possession of the properties and categorically states that neither the executant nor the parties therein shall alienate the properties, the Trial Court specifically gives a finding that the restraint imposed by the executant is only regarding the properties retained by Nanjundappa and the condition of non-alienation does not operate to the other properties including the suit schedule property. The Trial Court arrives at a conclusion that the settlement deed in fact is a Will and the settlement made thereunder will come 11 into operation only after the death of Nanjundappa. In other words, the Trial Court holds that the control continued in the hands of Nanjundappa till his death. The Trial Court also considered the recitals in the sale deed to arrive at a conclusion that the intention of the executant of the settlement deed is to settle the properties only after his demise and therefore the settlement deed, though styled as a settlement deed, is in fact a Will.
7. The credibility of the evidence of PW1, who is the grandson of Nanjundappa, is said to be questionable since he was not born when the deed of settlement was executed and he was incompetent to speak about the said document. The Trial Court having come to a conclusion that the settlement deed is in fact a Will and since possession was not transferred to the settlees, Nanjundappa was entitled to dispose of the suit schedule property during his lifetime and therefore, the sale deed executed by Nanjundappa in favour of the first defendant is held to be valid. The Trial Court, on 12 the basis of the house assessment extracts and tax paid receipts, concludes that the defendants have paid taxes with respect to the suit schedule property and they have established their lawful possession with respect to the suit schedule property.
8. The Trial Court also gave a finding that the plaintiffs have failed to substantiate that Kenchamma took possession of the suit schedule property under the deed of settlement and since no document is produced to substantiate Kenchamma's lawful possession over the suit schedule property, the claim of the plaintiffs' that they are in lawful possession of the suit schedule property has been negatived. With this the suit was dismissed.
9. The defendants filed a regular appeal. The first appellate Court examined the question whether, on execution of deed of settlement, the instrument conveyed interest and possession of the suit schedule property in favour of Kenchamma and whether the trial Court was right 13 in construing the document as a Will. The first appellant Court also considered as to whether the document could be construed as a 'gift'. Adverting to Mulla's Hindu Law, 7th Edition, the first appellate Court arrives at a conclusion that even if the document is treated as a 'gift' and the donor reserves the usufructs of the property to himself for life, the settlement of the said property in favour of the donee will be valid and irrecoverable. The first appellate Court is of the opinion that even if the recitals in the settlement deed reserves the enjoyment of the property by the settler i.e., Nanjundappa for his life time, the document cannot be construed as a Will. The first appellate Court also took note of the admissions made by defendant No.1 during his cross- examination, that the suit schedule properties were given to the possession of Kenchamma and that she enjoyed the same till her death.
10. Reliance was placed on the judgment in the case of S.Thirupathi Pillai V/s Ganthimathi Ammal and 14 another reported in (1966) II Madras Law Journal Reports 325, wherein it was held that once a settlement deed is executed then the settlor has no right to revoke except under certain conditions. The lower appellate court therefore held that the settlor had no legal capacity to execute the sale deed and there is no need for seeking cancellation of such a sale deed.
11. The first appellate Court also took into consideration the judgment cited by the defendants in the case of G.Chikkappanna V/s Kenchamma reported in ILR 1998 KAR 3450. In the said case it had been held that in a situation where the property is to devolve on the beneficiary after the death of one of settlors, such a settlement may be construed as an irrevocable Will. The interpretation given by the first appellate Court is that in the settlement deed the suit schedule property stands transferred to Kenchamma and there is no contention about 15 happening of any future event for making the settlement deed effective.
12. As regards the capacity of the power of attorney holder to enter the witness box and give evidence about a document that was executed prior to his birth, the first appellate Court holds that there was nothing which the plaintiffs alone had to speak out of their personal knowledge in this matter. The points involved in this case is purely question of law and the interpretation of the recitals of the documents. Therefore, the first appellate Court has rightly opined that merely because the plaintiffs' did not enter the witness box, adverse interference cannot be drawn against them.
13. On re-appreciating the evidence on record and on going through the arguments of the learned counsels and adverting to the judgment cited, the first appellate Court allowed the appeal, set-aside the judgment and decree 16 passed by the trial Court and further declared that the plaintiffs are the absolute owners of the suit schedule property having inherited and succeeding to the estate of late Kenchamma. The defendants were permanently restrained from interfering or disturbing the peaceful possession and enjoyment of the suit schedule property by the plaintiffs.
14. Being aggrieved by the judgment and decree passed by the first appellate Court, the defendants are before this Court. During the course of the second appeal, the original defendant No.1 - L.R. Srinivas passed away and is now represented by his legal heirs.
15. On 14.03.2007 this appeal was admitted to consider the following substantial question of law;
"Whether the lower appellate Court was justified in holding that the deed dated 10.07.1965 is a settlement deed and not a Will and therefore the 17 deceased Nanjundappa had not retained any right to alienate the suit schedule property in favour of the 1st defendant?"
16. Heard Ms.Kshama Naragund Banavathy - learned counsel for appellants and Sri Y.R.Sadashiva Reddy - learned Senior Counsel for respondent Nos.1 to 4.
17. Learned counsel for the appellants, in order to buttress her contention that the Deed of Settlement is nothing but a 'Will', relied upon a judgment of the Hon'ble Supreme Court in the case of Mathai Samuel and others V/s Eapen Eapen (Dead) by L.Rs., and others reported in AIR 2013 SC 532. The conclusion drawn by the Supreme Court on the question whether a gift deed would be construed as a Will, is as follows:
"15. We may point out that in the case of a Will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand, in case of a gift, the provision becomes operative immediately and a transfer in 18 praesenti is intended and comes into effect. A Will is, therefore, revocable because no interest is intended to pass during the lifetime of the owner of the property. In the case of gift, it comes into operation immediately. The nomenclature given by the parties to the transaction in question, as we have already indicated, is not decisive. A Will need not be necessarily registered. The mere registration of 'Will' will not render the document a settlement. In other words, the real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in praesenti in favour of the settlees or it intended to transfer interest in favour of the settlees only on the death of the settlors."
18. Therefore the test is whether the document transferred right in praesenti or intended to transfer right in favour of settlees only on the death of the settlors.
19. In the case of P.K.Mohan Ram V/s B.N.Ananthachary and Others reported in (2010) 4 19 Supreme Court Cases 161, while considering similar questions as to whether the deed of settlement can be construed as a Will, in paragraphs 29 and 30, the Hon'ble Supreme Court has concluded as follows:
"29. A careful reading of Ext. A-2 shows that in the title itself the document has been described as a settlement deed. By executing that document, Shri K.Perumal Iyer expressed his intention, in no uncertain terms, to settle the property in favour of 16 persons who were none else than his own relatives and declared that "from this day onwards I and you shall enjoy the land and house without creating any encumbrance or making any alienation whatsoever". This was an unequivocal creation of right in favour of sixteen persons in praesenti. Though, the beneficiaries were to become absolute owners of their respective shares after the death of the settler, the language of the document clearly shows that all of them were to enjoy the property along with the settler during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the settler made it clear that he will have no right to cancel the 20 settlement deed for any reason whatsoever or to alter the terms thereof.
30. The mere fact that Beneficiaries 1 and 2 and after them their heirs were to receive honours at the temple or that shares were to be divided after disposal of the property cannot lead to an inference that Ext.A-2 was a "Will". If Ext. A-2 is read as a whole, it becomes clear that it was a "settlement deed" and the trial Court and the lower appellate Court did not commit any error by recording a finding to that effect. As a sequel to this, it must be held that the High Court committed serious error by setting aside the concurrent judgments and decrees of the two Courts."
20. In another case decided by the Hon'ble Supreme Court in the case Subbegowda (Dead) by L.Rs., V/s Thimmegowda (Dead) by L.Rs., reported in ILR 2004 KAR 4611, again the question was in respect of a settlement deed. In that case, the Hon'ble Supreme Court concluded that there is no recital in the deed which may be read or is capable of being construed as a demise in 21 praesenti vesting absolute title of the property in Narayani in present or in the future. Whatever was given to Narayani and his natural father by the deed was capable of being cancelled or revoked under the power of revocation expressly reserved by Thimmegowda to himself. The deed dated 01.08.1969 does not amount to transferring the schedule property to Narayani. It was only an arrangement called settlement with the power of revocation expressly reserved to author, subject to which reservation arrangement was intended to given in effect.
21. The judgment of this Court in the case of G. Chikkappanna Vs. Kenchamma reported in ILR 1998 KAR 3450, which was cited before the first appellate Court, has once again been reiterated by the learned counsel for the appellants. Another decision of this Court in Smt.Rukmini Bai and Another Vs. Venkoba Rao and Others reported in ILR 2003 KAR 2192 was relied upon by the learned counsel to drive home the point that as per 22 the principles of construction, the intention of the maker of the deed should be construed from the reading of the whole document, and ordinary rule of construction should be applied.
22. The thrust of the argument of the learned counsel for the appellant is that a plain reading of the deed of settlement makes it clear that, though the properties were settled in favour of two daughters and a grand son, the possession continued to remain with Nanjundappa till his death. When such is the intention of the maker of the document, the trial Court was right in construing the document as a Will. The learned counsel further submits that the intention of Nanjundappa is further reiterated in the recitals of the sale deed dated 20.10.1967 (Ex.D.1) which was executed by Nanjundappa in favour of his grand son-L.R. Srinivas. The learned counsel points out that Nanjundappa has made it very clear in the recitals by stating that though the suit schedule property was settled 23 in favour of Kenchamma under the deed of settlement, since she was very ill and was in need of funds for medical needs, she has been put up in another house at Kammanahalli and with the consent of the husband of Kenchamma, the suit schedule property was sold in favour of his grand son for a sum of Rs.200/-.
23. The learned Senior Counsel representing the respondents joins issues on this aspect. He submits that it is not clear from the recitals of the sale deed (Ex.D1) as to whether the house property at Kammanahalli was a property belonging to Nanjundappa and that he delivered the said property to Kenchamma by executing a deed of transfer. He further points out that there is no recitals in the sale deed to show Rs.200/- was the market value of the property and that the said amount was handed over to Kenchamma or her husband. But to a pointed question of the Court as to whether the parties have examined the 24 witness on this aspect, both the learned counsels admit that there is nothing on record or in evidence on this aspect.
24. The learned Senior Counsel submits that in the last portion of the deed of settlement, Nanjundappa himself had, in unequivocal terms bound himself that neither he nor any party to the document shall alienate the properties till his life time. Learned counsel for the appellant hastens to point out that the sentence could not be read in isolation. If the entire paragraph is read, it is clear that the condition of non alienation is imposed only with respect to the property bearing Sy.No.46 of Kammanahalli, Beguru Hobli, Bengaluru South Taluk which is a property jointly purchased in the name of Nanjundappa and L. Srinivas and two more properties bearing Sy.No.75/1 and 75/2. The trial Court had also given its findings on this aspect of the matter and it is rightly held that the conditions of non alienation put by Nanjundappa is in respect of property which were retained by Nanjundappa and not to the property which were shown 25 to be given to his daughters Kenchamma, Lakshmamma and his grand son - L.R. Srinivas.
25. Learned Senior Counsel appearing for the respondents relies upon a judgment of Madras High Court in the case of S. Tirupathi Pillai Vs. Ganthimathi Ammal and Another reported in (1966) 2 Madras Law Journal Reports page 325 and points out that once a Settlement Deed is executed, then settlor has no right to revoke the Settlement Deed, except under certain conditions. He has no legal capacity to execute the Sale Deed, because he has no title to the property. Therefore, there is no necessity for the first respondent to seek cancellation of the Sale Deed. She can ignore the Sale Deed and get a declaration on the strength of the Settlement Deed.
26. The entire case revolves around the question as to whether the settlor Nanjundappa could have revoked the settlement made in favour of one of his daughters i.e. Kenchamma and whether he could execute a Sale Deed, 26 lawfully transferring the title with respect to the property settled in favour of Kenchamma. The trial Court has come to a conclusion that the Deed of Settlement is in fact, a Will and nomenclature of document should not be the basis for arriving at conclusion as to the nature of the document. The first appellate Court, taking into consideration the evidence on record and relying on the judgments cited before the Court, comes to a conclusion that the possession of the suit schedule property was handed over to Kenchamma after the Deed of Settlement was executed and that she enjoyed the suit schedule property during her life time. It further holds that as per the Deed of Settlement the settlor could enjoy usufructs of the suit schedule property till his death, but the settlement was irrevocable, because no such power was retained by the settlor in the Deed of Settlement, in expressed terms and therefore, he could not revoke the same. It further holds that the Sale Deed executed by Nanjunadappa in favour of defendant 27 No.1-Srinivas is not binding on the plaintiffs. It further holds that the plaintiffs being legal heirs and successors of deceased Kenchamma, have acquired ownership over the suit schedule property.
27. What is to be noticed is that in the case of P.K. MOHANRAM Versus B.N. ANANTHACHARY AND OTHERS which is cited by the learned counsel for the appellants, in Para No.19 their Lordships have held that the Court has to very carefully examine the documents as a whole, look into to the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the express language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. It has also been held that form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof. That was also a case where questions were raised regarding a Settlement deed. 28 In that case too, the settlor allotted shares to the settlees, reserved right of possession along with the settlees and expressly provided that the settlees will become absolute owners of this respective shares after the settlor's death. Their Lordships held that the document cannot be construed as a "Will".
28. On going through the recitals in the Deed of Settlement and the Sale Deed executed by Nanjundappa, it can safely be concluded that the document in question is a Settlement deed, conferring absolute right over the suit schedule property in favour of Kenchamma. There are no express terms in the document by which Nanjundappa retained the power to revoke the deed. Therefore he could not have revoked the Deed of Settlement. Kenchamma was alive when the sale deed was executed by Nanjundappa in favour of the first defendant. Kenchamma has not given her consent to the Sale deed. The first defendant, in his cross-examination, admitted that 29 Kenchamma was in possession of the suit schedule property. This shows that the Deed of Settlement conveyed rights in presanti and the settlees have taken possession of their respective shares immediately after the execution of the Deed of Settlement.
29. This Court cannot lose sight of the admitted fact that Nanjundappa was residing with Lakshmamma and her son Srinivas. Lakshmamma sold away Survey No.77/2 which had fallen to the share of Kenchamma, as evidenced by Ex.P3, which is an Encumbrance Certificate. It cannot be ruled out that Nanjundappa has acted under pressure of Lakshmamma and her son Srinivas. Nanjundappa revoked the settlement made in favour of Kenchamma and has attempted to deal with the properties to the prejudice of Kenchamma. As observed in the beginning of this judgment, the first defendant had acquired the property situated to the North of the suit schedule property under the Deed of Settlement and had an eye on the suit schedule 30 property. It is right to conclude without hesitation that Nanjundappa had not retained the power to revoke the Deed of Settlement and therefore he could not have revoked the settlement made in favour of Kenchamma.
30. Having anxiously considered the evidence on record and the arguments addressed by the learned counsels for both the sides, this Court is of the opinion that no fault could be found with the judgment of the first Appellate Court. The substantial question stands answered in the affirmative. Therefore, this appeal deserves to be dismissed and it is accordingly dismissed, with costs.
SD/-
JUDGE KLY/JT/mr/sbs