Andhra HC (Pre-Telangana)
G. Narasimhulu Chetti And Others vs S. Pandurangaiah Chetti And Others on 11 July, 1995
Equivalent citations: AIR1996AP24, 1995(3)ALT193, AIR 1996 ANDHRA PRADESH 24, (1995) 2 LS 253, (1995) 2 CIVILCOURTC 642, (1996) 1 HINDULR 297, (1996) 1 RRR 180, (1995) 3 CURCC 588
Author: V. Rajagopala Reddy
Bench: V.Rajagopala Reddy
ORDER V. Rajagopala Reddy, J.
1. This LPA arises out of the judgment and decree of the learned single Judge in A.S. No. 1772/84, dismissing the appeal though for different reasons and confirming the judgment and decree in O.S. No. 72/75 on the file of the Principal Subordinate Judge, Chittoor.
2. Originally there were three plaintiffs. On the death of the 1st plaintiff, his legal representatives were brought on record as plaintiff No. 4 and defendants 6 and 7. Defendants 1 and 2 also died and their legal representatives were brought on record as defendants 8 to 16. Defendants 2 to 5 were the tenants of the suit property. The suit was for declaration of title to the suit property, which is a house and vacant site and for possession. The suit was dismissed by the trial court and in appeal the learned single Judge confirmed the trial court's decree and judgment, though for different reasons. Hence this Letters Patent Appeal by the plaintiffs.
3. The facts are not in dispute. Two ladies Kamalambal and Lokambal executed the deed Ex. A4 on 22-5-1958 in favour of P. W. 1, who is the spn of Kamalambal's husband by his first wife, in respect of various properties including the suit property. Nearly 11 years thereafter, both the ladies executed cancellation deed Ex. B5 dated 20-8-1969 cancelling Ex. A-4 and simultaneously executed a gift deed Ex. B-6 gifting away the suit property in favour of the father of the 1st defendant. Subsequently on 5-12-1969 the two ladies executed a relinquishment deed Ex. A-10 in favour of P.W. 1 in respect of several properties covered by Ex. A-4, but excluding the suit property. The plaintiffs are the purchasers of the suit property from P.W. 1 under the sale deeds Ex. A-1 to A-3. The sale deeds were attested by the surviving sister Kamalambal, Lokambal having been passed away by that time. Subsequently Kamalambal also died.
4. The case of the plaintiffs was that Ex. A-4 being a settlement deed in favour of P.W. 1 by which P.W. 1 acquired interest in the property, it cannot unilaterally cancell the gift deed as Ex. B6 in favour of the father of the 1st defendant was invalid and not binding on P.W. 1. The case of the 1st defendant was that Ex. A4 was not acted upon and that the cancellation of deed under Ex. B5 and the gift deed Ex. B-6 are valid. It was also their case that in any event the conduct of P.W. 1 disclosed that he accepted the cancellation deed and that he was satisfied with the other properties except the suit property on the basis of the relinquishment deed Ex. A-10. P.W. 1 was therefore estopped from claiming the suit property. The trial court permitted the plaintiffs (appellants herein) to raise an additional question during the arguments, whether Ex. A4 was not a settlement deed but was a will and that by virtue of gift deed Ex. B-61st defendant's father did not acquire valid title to the suit property.
5. On a consideration of entire evidence on record, the trial court held that Ex. A-4 was not a settlement deed but a will, consequently by virtue of Ex. B-6 the defendants acquired title to the suit property. Several other issues have been framed and the trial court gave findings upon them, which are not necessary to narrate here for the purpose of this LPA. As a result of the above findings the trial court dismissed the suit.
6. Before the learned single Judge, it was contended by the plaintiffs-appellants that Ex. A-4 was a settlement deed which cannot be cancelled unilaterally and consequently Ex. B-6 falls to the ground. It was also contended that the conclusion of the trial court that Ex. A-4 was a will was erroneous. The learned counsel for the respondents argued before the learned single Judge that Ex. A-4 was in the nature of a will. Even assuming that it was not a will, it was argued that by virtue of subsequent conduct of P.W.1 accepting the properties under Ex. A 10 P.W. 1 was estopped from claiming suit property under the gift. The learned single Judge did not agree with the finding of the trial court that Ex. A-4 was a will, and held it to be will as under the said document the two ladies reserved life estate for themselves and passed vested remainder in favour of P.W. 1. The learned single Judge further held that in view of the acceptance of Ex. B-6, the gift deed in respect of the suit property in favour of 1st defendant's father, P.W. 1 is estopped from claiming any right or title under Ex. A-4 and in that view the learned single Judge dismissed the appeal.
7. Sri R. Venugopal Reddy, learned Senior Advocate appearing for the appellants has forcefully argued that the learned single Judge having found that Ex. A-4 was a settlement deed ought to have allowed the appeal. The learned counsel attacked the finding that Ex. A-4 was, not acted upon and that P.W. 1 agreed to take properties under Ex. A-10 and by operation of the rule of estoppel the plaintiff was precluded from claiming the suit property was erroneous.
8. The learned counsel for the respondents Sri C. Pattabhirama Rao contended that the learned single Judge was wrong in holding that Ex. A-4 was a settlement deed and that no valid reasons had been given by him to hold that it was not a will, as held by the trial court. He supported the finding of the learned single Judge on the finding that since Ex. A-4 was not acted upon the rule of estoppel precluded P.W. 1 to claim the property. Both the counsel have cited several decisions in support of their contentions, which we will consider a little later.
9. We requested the learned counsel for the appellants to take us through Ex. A-4 to ascertain whether it was a will or a settlement deed. If we find that it is will, the appeal fails and no further enquiry is called for regarding the later part of the controversy. The material portion of Ex. A-4 is as follows:--
"As you being the grandson of us as stated above, have yourself performed the obsequies of our above said brother viz., late Ranga Swamy Mudaliar, as you alone are attending to the works in respect of our maintenance as also the works connected with the protection of these properties, as it is not convenient for us to look after these properties due to old age, as we have abundance of love towards you, as we believe that you will maintain us well till the end of our lifetime as at present, and with good intention to support you by delivering the undermentioned properties, we have conveyed to you the below mentioned properties worth Rs. 10,000/- (Rupees Ten thousand only) which passed on to us as stated above, as a means from today onwards so as to enable you to possess and enjoy (them) as stated below:
From today onwards you shall perform all acts according to our will till the end of our lifetime and after our demise, yourself and your progeny shall enjoy the below mentioned properties from son to grandson and so on in succession and till the sun and moon enure with absolute rights of disposition by way of gift, sale etc. You shall personally look after the works in respect of the collection of rents etc., on these properties and all other works connected therewith, as also all such matters connected with the protection of these properties; and shall continue to maintain us. On our death, you shall perform our last rites due to be performed. As this settlement is made wilfully and finally, we have no right to alter or cancel it for any reasons whatsoever. To this effect is the Settlement deed executed and delivered by us with consent."
10. From the language of the recitals it is seen that the possession of properties was delivered so as to enable P. W. 1 to possess and enjoy according to the will of the two ladies during their lifetime. There is no transfer of interest in the property. The later part of the document recites that after their demise P.W. 1 and his progeny shall enjoy the property with absolute rights of disposition by way of gift, sale etc. Thereby the interest to enjoy the property will accrue in P.W. 1 only after the death of the excutants. Learned counsel for the appellant lays stress on the word 'conveyed' and argued that it amounts to transfer of property in favour of P.W. 1. Here the word 'conveyed' was used with reference to delivery of possession since the words that followed the word 'conveyed' speak of possession and enjoyment in accordance with the will of the executants. 'Conveyance' was not used to mean transfer of interest. The transfer of interest to enjoy absolutely is given only after her death. It is clear that there was no transfer of interest in praesenti in favour of P.W. 1. Hence we are of the view that Ex. A-4 is a will and not a settlement.
11. It was argued that the executants have used the nomenclature of the document as settlement on more than one occasion in the deed itself and also in the subsequent deeds, and that at huge expense the document has been registered. It is also contended that in the document it was stated as irrevocable. The above features would definitely go to show that the document was not a will and that the learned single Judge was right in holding from the above factual position that it was a settlement. We see no force in the contention. The nature of the document depends upon the actual recitals in it but not on its form. We have to see from the language whether the recitals amount to disposition of the interest in the property in praesenti or on the death of the executant. In other words whether there was divesting of interest immediately in the property and vesting the same in favour of P.W.1. The nomenclature that has been adopted by the parties in the various clauses of the document is mainly due to the ignorance of the true meaning of the words used. A Will in law cannot be construed as any other deed merely by the nomenclature given by the parties. It is significant to note that the word 'settlement' is not defined anywhere in the Transfer of Property Ad. Under the Indian Stamp Act 'settlement' has been defined as any non-testamentary disposition in writing of movable or immovable property (whether by declaration of trust or otherwise) made-
(a) in consideration of marriage,
(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or,
(c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition."
Though the definition should be relevant only for the purpose of payment of stamp duty under the Indian Stamp Act, still we can gather from the said definition the nature of settlement deed. It is disposition of property either for the purpose of settling the disputes among the family, for religious purposes or in consideration of marriage. None of these attributes are present in Ex. A-4.
12. Now we will proceed to consider the various decisions cited before us: The learned counsel for the appellants cited the following decisions:--
i) Pasungilia Pillai v. Isakkimuthu, AIR 1928 Mad 349; (ii) Ignatia Barito v. T.P. Rego, AIR 1933 Mad 492; (iii) Ramaswamy v. Gopalkrishna, ; (iv) Duraisami v. Saroja Ammal, .
13. In Pasungilia Pillai v. Isakkimuthu, AIR 1928 Mad 349 it has been held --. "In construing a deed the entire document should be considered and not merely particular words, terms, or even clauses and this has to be done in the light of the surrounding circumstances. The name by which the instrument is called by the maker must be borne in mind and should not lightly be brushed aside, but it is not conclusive." It has also been held that when a party used a particular nomenclature the courts are bound to start with the presumption that he knows the law as every man is supposed to know the law and starting with the presumption that the executant purports to call the document that he executes by a particular name, the court should examine the principal terms of the document in the same light. Learned Judge stated at page 351 col. 2. "One conclusive test as to whether, in such cases the document was intended to take effect inter vivos or not would be to see whether any irrevocable interest is thereby created immediately in favour of some other person. Undoubtedly the question can arise only in respect of documents where the property is directed to go to the donee after the death of the maker of the instrument". Again at page 354 it was held : -- "each document has to be construed having regard to the particular terms and language employed and it is a trite saying that no document is exactly like another." It is true as held in the above decision that the entire document has to be considered and the name of the document given by the parties should be borne in mind. But the ultimate test was held to be whether an irrevocable interest was thereby created. This decision supports the view we have taken and will not help the appellants.
14. In Ignatia Barito v. T.P. Rego, AIR 1933 Mad 492 considering the recitals in the document in question it is held -- "A primary test of wehther any particular document is a will or not is whether or not it is revocable. If it is irrevocable then it cannot be a will. Another test is that whether a document confers an immediate right to property. Where a document is not a will under both these tests and is registered as a settlement deed when as a will, it would not have required registration, the provision for unborn children and the appointment of the wife of the executant to perform functions such as might be performed by an executrix under a will, will not change the deed of settlement into Will." In this case it was held that the disposition of property was to take effect at once and that it was to be irrevocable.
15. Following the above decision, in Ramaswami v. Gopalakrishna, and in Duraisami v. Saroja Ammal, it was held-- "Ultimately, the reliable test was stated to be whether the disposition made under the document transferred any interest in praesenti or intended to transfer interest in favour of the settlee only on the death of the settlor."
16. The above decisions also do not help the appellant and in fact support the view we have taken.
Learned counsel for the respondents cited the following decisions:--
i) Venkatachalam v. Govindaswami, AIR 1924 Mad 605;
ii) Ponnuchami Servai v. Balasubra-maniam, .
17. In Venkatachalam v. Govindaswami, AIR 1924 Mad 605, considering the relevant recitals of a document it has been held that --"In form it is a deed of gift and not a Will, but in fact it is a declaration of the intentions of the donor with respect to her property which she desires to be carried into effect after her death, because there is no disposal of any immediate rights of possession or any immediate interest in the property. The fact that the document purports to reserve a life interest in the properly to the donor is an argument against its being a Will, but as was pointed out by the Privy Council in Thakur Ishri Singh v. Thakur Baldeo Singly reported in 1884 (10) Cal 792 (PC), no great attention need be paid to that because it is a frequent thing in this country to find documents which are in fact will in terms making clear that the person disposing of the property reserves a life or immediate interest in the property". On consideration of the above decision the learned Judge held that the document in question was Will, but not a deed of gift on the ground that the donee gets nothing until the death of the donor.
18. Ponnuchami Servai v. Balasubramaniam, was cited for the view that even if a Will contains a clause that it is not revocable and that it was registered, the deed should not be rendered as a settlement, if it in other respects it is a Will. It was clearly held -- "The real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a Gift or a Settlement is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended transfer of interest in favour of the beneficiary only on the death of the executant."
19. In Halsbury's Laws of England, page 144, para282,4th Edition, Volume 50, it is clearly stated -- "A Will is of its own nature revocable, and even though a testator at-tempts to make his testament and last Will irrevocable by the use of the strongest and most express terms, he may nevertheless revoke it, because his own act and deed cannot alter the judgment of law to make that irrevocable which is of its own nature revocable."
20. From a reading of the above decisions cited across the bar what emerges is that the construction of a document depends upon the language of recitals, but not upon its form or nomenclature. The intention of the executant is to be gathered from the words used in the document. To find out whether a document is a settlement or gift or a Will, the nature of the document has to be examined whether it transferred any interest in property in praesenti or after the death of the executant. Mere delivery of possession cannot amount to transfer of interest in the property. Applying the above principle we hold that Ex. A-4 is not a settlement but a Will since there is no transfer of interest in the property in praesenti. P. W. 1 was only given possession of the properties to enable him to enjoy and act according to the Will of the two ladies, his right of absolute and unfettered enjoyment with the rights of transfer, sale etc., coming into effect only after the death of the two ladies.
21. At the outset it was contended by the learned Counsel for the appellants that there was transfer of vested remainder in favour of P.W. 1 reserving the life estate in the executants. He cited Kali Prasad v. Ram Golam, AIR 1937 Pat 163 and Gulamhusein v. Fakir Mahomed, AIR 1947 Boni 185, to show that vested remainder is vested interest and is also transferable. The contention found favour with the learned single Judge. We find it difficult to accept the contention.
22. In the present case we have already held that what was transferred was only a right of possession in favour of P.W. 1 to enjoy the property as per the wishes of the executants. The right of possession cannot be equated to any interest in the property. The disposition of interest is only after their death. If the executants transfer the life estate in favour of one person and on that person's death the vested remainder was to be passed in favour of P.W. 1, then there will be a present transfer of vested remainder in favour of P.W. 1. Such a transfer of vested remainder is validly transferable and the said document can be considered as settlement or gift but not a Will. The argument that the life estate was transferred in favour of the executants themselves leaving vested remainder in favour of P.W. 1 is not tenable. The executants are the absolute owners of the property with rights of disposition. They are entitled to dispose of all the properties in their lifetime leaving nothing to P.W. 1 as vested remainder. The concept of vested remainder is inapplicable to the facts of this case. It is referable only to limited owners or in cases to whom the right to alienate was prohibited and consequently leaving behind them the property intact which will vest in the vested remainder. In Kali Prashad v. Ram Golam, reported in AIR 1937 Pat 163, it was held that when life estate was given to two persons with remainder to certain other person. The interest in the remainder is not a mere chance of possibility but a vested interest and so is transferable. In that case the life estate was given to a widow and on her death the vested remainder passing on to the persons to be appointed by her. There was a prohibition on alienation by widow evenfor a necessity. In Gulamhusein v. Fakir Mohomed, reported in AIR 1947 Bom 185, it was also held that the vested remainder in immovable property is present interest in the property and can be sold. It is, therefore, clear from the above two decisions that vested remainder in its true and proper sense is transferable. But in the present case the question of transfer of vested remainder does not arise for the aforementioned reasons. This is a document with clear recitals where under the property was entrusted to P.W. 1 to manage the same as per the directions to be given by two executants from time to time and that after their death P.W. 1 was to enjoy the same with all rights of ownership. There is, therefore, no transfer of interest in praesenti and it should therefore be treated as a Will. The learned single Judge was, therefore, not right in accepting the above contention and holding that Ex. A-4 was a settlement, We agree with the trial Court's reasoning and are constrained to disagree with the reasoning and finding of the learned single Judge and we hold that Ex. A-4 is a Will.
23. When once Ex. A-4 is held to be a Will the two ladies have every right to revoke or cancel the same, which they have done under Ex. B-5 dt. 20-8-1969 by way of registered document. Having done that they have executed Ex. B-6 on the same date, the gift deed, gifting away the suit property in favour of 1st defendant's father. Hence, the defendants acquired title for the suit property under the gift deed. It is, therefore, not necessary to discuss the reasoning and finding given by the learned single Judge holding that the plaintiffs had no competency or right to execute the suit sale deeds, as P.W. 1 had accepted the gift deed under Ex. B-6 in favour of the 1st defendant's father. In view of the above finding we confirm the judgment and decree of the learned single Judge and that of the trial Court.
24. In the result, the LPA is dismissed, but in the circumstances without costs.
25. Appeal dismissed.