Madras High Court
Gurusamy (Died) vs Palaniammal on 28 January, 2008
S.A.(MD)No.622 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 03.01.2020
Delivered on 09.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)No.622 of 2006
1.Gurusamy (died)
2.Koothayee (died)
3.G.Vaiyapuri
[Appellants 2 and 3 brought on record as Legal
Representatives of the deceased sole appellant
Vide Court order dated 28.01.2008, made in
M.P.(MD)No.1 of 2007]
[Memo presented in Court and recorded as
2nd appellant died and 3rd appellant who is already
on record and recorded as Legal Representative
of the deceased 2nd appellant, vide Court order
dated 02.01.2020] : Appellants
Vs.
1.Palaniammal
2.Lakshmi
3.Kannan
[The first defendant died on 03.05.2005 left the
respondents 1 and 2 / appellants 2 and 3 /
defendants 2 and 3 as legal heirs]
: Respondents
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S.A.(MD)No.622 of 2006
PRAYER: Second Appeal is filed under Section 100 of the Code of
Civil Procedure, praying to allow the Second Appeal and set aside
the decree and judgment of the first Appellate Court dated
24.11.2005 in A.S.No.142 of 2005 on the file of the First Additional
Sub Court, Madurai and to confirm the decree and judgment
passed in O.S.No.214 of 2002, dated 13.04.2005 on the file of the
District Munsif Court, Tirumangalam.
For Appellant No.3 : Mr.J.Barathan,
For Mr.T.R.Jeyapalam
Appellant No.1 : Died
Appellant No.2 : Died
For Respondents 1&2 : Mr.R.Suriya Narayanan
For Respondent No.3 : No Appearance
********
JUDGMENT
*********** Aggrieved over the judgment of the first Appellate Court reversing the Trial Court judgment and decree in the suit filed for recovery of possession and damages, the present Second Appeal is filed.
2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court. 2/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006
3. The brief facts leading to the filing of this appeal are as follows:
3.1. The plaintiff has purchased the suit property from the husband of the first defendant, by name Baluchamy @ Santhanam on 10.11.2000. In pursuant to the sale deed, the tax assessment was also transferred to his name. The second and third defendants are the daughters of the said Baluchamy @ Santhanam. The husband of the first defendant has executed a document on 10.11.1963 in favour of the first defendant regarding the suit property with a hope that she will look after the welfare of the said Baluchamy @ Santhanam. But, contrary to his expectation, the first defendant did not care for her husband and deserted him and left the matrimonial home and settled at Dindigul with the second defendant. However, the property was continued to be in possession and enjoyment of Baluchamy @ Santhanam. Though the document dated 10.11.1963 is styled as a 'settlement', the recitals of the same will prove that it is only a 'Will'. It is stated in the document that it should come into effect only after the death of Baluchamy @ Santhanam. Hence, it is only a Will. The same was cancelled by the said Baluchamy @ Santhanam on 09.11.2000. The 3/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 first defendant also created a settlement deed in favour of the defendants 2 and 3 on 27.12.2000 by anti-dating the same as '18.09.2000'. The settlement is void. The fourth defendant has trespassed into the property and is in possession. Hence, the suit.
3.2. It is the case of the defendants that the document dated 10.11.1963 executed by Baluchamy @ Santhanam in favour of the first defendant is only a settlement deed. The plaintiff is a close relative of Baluchamy @ Santhanam. The said Baluchamy had no right whatsoever to revoke or cancel the settlement deed. Even if it is done, it will not bind the defendants. Possession of the suit property was given to the first defendant in pursuant to the settlement deed dated 10.11.1963. Since then, she along with her husband was in possession and enjoyment of the property. The allegation that the first defendant has deserted her husband is denied. The cancellation deed dated 09.11.2000 is also invalid.
Hence, the first defendant prayed for dismissal of the suit.
3.3. On the basis of the above pleadings, the following issues were framed:
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http://www.judis.nic.in S.A.(MD)No.622 of 2006 "(i) Whether Ex.B.1 is a settlement or Will?
(ii) Whether the sale deed, namely Ex.A.1 in favour of the plaintiff is true, valid and binding upon the defendants?
(iii) Whether the plaintiff is entitled for recovery of possession? and
(iv) To what other reliefs?"
3.4. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.11 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Exs.B.1 to B.5 were marked.
3.5. On the basis of the evidence and materials, the Trial Court has decreed the suit in favour of the plaintiff holding that Ex.B.1 is construed only as a Will and the testator has cancelled the same and the plaintiff, being a purchaser, is entitled to recover the suit property, as against which, the appeal was filed before the First Appellate Court. The First Appellate Court allowed the appeal 5/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 holding that Ex.B.1 dated 10.11.1963 is only a settlement deed and not a Will. As against the same, the present Second Appeal is filed.
4. At the time of admission of the Second Appeal, the following substantial questions of law were framed:
""(i) Whether the finding of the first appellate Court in deciding the issue with regard to Ex.A.3 or B.1 is a settlement deed on the foot of the nomenclature alone without reading the document in whole is maintainable?
(ii) Whether there is any right in
presenti is vested with the deceased 1st
defendant in Ex.A.3 or B.1 on the date of
execution which is the valid ingredient for a gift settlement deed?
(iii) Whether the first appellate Court is correct in holding that Ex.A.3 or B.1 is a settlement deed without giving importance to the recitals in the document namely "the donee can claim absolute title only after the life time of the executant" which term refers to a will? 6/24
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(iv) Whether the first appellate Court can decide that Ex.A.3 or B.1 is a settlement deed without any substantial proof of acceptance of the said settlement deed on the part of the respondents?"
5. The learned counsel appearing for the third appellant vehemently contended that the first Appellate Court has not properly appreciated the contents of the documents and no right in praesenti was created in Ex.B.1-the so-called settlement deed. Further, there is no evidence to show that the alleged settlement has been accepted by the donee. Therefore, it is the contention that when no right in praesenti was created, such document could be considered only as a Will. It is his further contention that the recitals in the document, if read in its entirety, the intention of the executor is very clear that it will take effect only after his life time. Such being a position, the document is only a Will and cannot be construed as a settlement. No evidence whatsoever available on record either to prove the alleged acceptance of the so called alleged settlement. Hence, it is his contention that the Trial Court has properly appreciated the documents. Whereas, the first 7/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 Appellate Court has failed to consider the entire recitals of the documents. The first Appellate Court has merely decided the appeal on the basis of the nomenclature of the document . Further, it is his contention that mere reservation of the right not to revoke is not a deciding factor and possession is always retained by the executant, coupled with the enjoyment of the property during his life time and without the power to encumber by the first defendant. Such being a position, the document is only to be construed as a Will and not a settlement. Hence, it is his contention that the first Appellate Court has not appreciated the documents in proper perspective. Hence, he prayed for allowing the appeal. In support of his submissions, he has placed reliance on the following judgments:
(i) Rajammal v. Pappayee Ammal [2002(4) CTC 406];
(ii) Ramaswami Naidu v. Gopalakrishna Naidu [1990 LW 430]; and
(iii) Arthur Mary Ammal v. Aruldoss Pillai & others [2003(4) LW 86]
6. Whereas, it is the contention of the learned counsel appearing for the first and second respondents that the first 8/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 Appellate Court has properly analysed the contents of the documents and came to the right conclusion. It is his contention that the property has been transferred by way of settlement deed and possession also handed over. Since the husband and wife were residing in the same house, there cannot be any evidence for acceptance. The acceptance can be inferred from the conduct of the parties. The manner in which the rights have been created in praesenti and enjoyment was also given to the wife and restricting a sale of the property by the executant itself clearly indicates that the document is only a settlement. The intention of the testator is very clear and the necessary stamp duty has been paid for registration of the settlement and the document has been properly registered. Hence, it is his contention that mere reserving the interest during the life time of the settlor, that itself is not a ground to hold that the document is a Will. Hence, it is his contention that the first Appellate Court has properly analysed the document.
Hence, he prayed for dismissal of the appeal. In support of his submissions, he has also relied upon the judgment of the Apex Court reported in 2010(5) CTC 113 [P.K.Mohan Ram v. B.N.Ananthachary].
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7. In the light of the above submissions, the Court analysed the entire facts. The only substantial question of law to be decided in this appeal is with regard to the construction of Ex.B. 1, the document said to have been executed by the husband of the first defendant.
8. It is the contention of the plaintiff that Ex.B.1 is only a Will and not a settlement. Whereas, it is the contention of the first defendant that it is only a settlement deed. The relationship between the parties is not in dispute. The plaintiff is relative of Baluchamy @ Santhanam. It has been clearly admitted by the plaintiff himself in the evidence. The relationship between the parties is also not in dispute. The first defendant in the suit is the wife of Baluchamy @ Santhanam and the defendants 2 and 3 are her daughters born through the said Baluchamy. These facts are not in dispute. Looking at the plaint pleadings, it is also not disputed by the plaintiff about the execution of Ex.B.1 document dated 10.11.1963.
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9. It is well settled that the main test to find out whether the document constitutes a Will or a gift, nomenclature of the document is not relevant, only the intention of the parties and the recitals of the deed have importance to find out whether the absolute transfer of the property taken place in praesenti.
10. On careful perusal of Ex.A.3 and Ex.B.1, the recitals makes it clear that the settlor had executed the settlement in stamp papers and the settlement was registered on the value of Rs.300/-. The recitals read as follows:
"ehd; mDgtpj;J tUfpw Rkhh; U.300.00 bgUkhd kid tPL tifawhf;fis ,e;j brl;oy;bkz;L Kyk; cdf;F ehd; ghj;jpag;gLj;jpf; bfhLj;jpUf;fpnwd;. mjid ePa[k;> ehDk; Vnfhgpj;J mDgtpj;J tu ntz;oaJ. vd; Ma[Sf;Fg;gpd; eP ]h;t Rje;ju ghj;jpaq;fSld; Mz;lDgtpj;Jf; bfhs;s ntz;oaJ. ,e;j brl;oy;bkz;il ehd; khw;wnth> jpUj;jnth> uj;J bra;anth vdf;fjpfhukpy;iy. mg;gor; bra;jhYk; mJ bry;yj;jf;fjpy;iy.
ek; FLk;g mt];aj;ij Kd;dpl;L VnjDk; ge;jf guhjPdk; bra;a ntz;oa mt];ak; nehpl;lhy; ehkpUtUk; nrh;eJ ; ge;jf guhjPdk; bra;J bfhs;syhbkd;Wk;> ek;kpy; 11/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 ahnuDk; jdpj;Jg; ge;jf guhjPdk; bra;jhy; mJ bry;yj;jf;fjpy;iy bad;W ,e;j brl;oy;bkz;il vGjpf; bfhLj;jpUf;fpnwd;."
11. From the above recitals in the document, the word "ghj;jpag;gLj;jpf; bfhLj;jpUf;fpnwd;" makes it very clear that the transfer of title has been effected in praesenti in favour of the settlee and further, creating a right in praesenti to enjoy the property and also restricting the right of the settlor to deal with the property and reserving the life interest only till his life time make it clear that the right has been already vested and enjoyment is also given in praesenti in favour of the settlee.
12. It is also well settled that for valid gift, handing over of possession is not sine qua non. What is required to valid the gift is acceptance and transfer of title and not a transfer of possession. Therefore, mere the settlor reserving some right to enjoy the property along with the settlee does not mean that this document is only a Will. Such right to enjoyment till the life time of settlor, even after the valid gift executed by him in respect of the property, is valid in the eye of law. In this regard, it is useful to refer to the 12/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 judgment of the Hon'ble Apex Court reported in 2014(4) CTC 572 [Renikuntla Rajamma (D) by L.Rs. v. K.Sarwanamma]. A Full Bench of the Hon'ble Supreme Court has held that donor executing registered gift deed retaining possession of property for enjoyment by donor during the life time and right to receive rents of property does not in any way affect transfer of ownership in favour of donee. The Apex Court in the above judgment has held that the transfer of possession of property covered by registered instrument of gift duly signed by donor is not sine qua non for making a valid gift. The delivery of possession of gifted property is not essential condition for completion of valid gift. Therefore, Law is well settled that the delivery of possession of gifted property is not essential condition for completion of valid gift. What is relevant to see that whether the gift has been accepted or not.
13. Admittedly, in the present case, the husband and wife were residing in the same house at the relevant point of time. Though in the plaint, it is stated that the first defendant has left the matrimonial home and residing somewhere else, in the evidence of P.W.1, no whisper whatsoever made with regard to this. Whereas, D.W.1, in her evidence, has clearly stated that till the death of her 13/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 husband, she was residing with him and only after his death, she went to her daughter's house. This also has not been challenged in the cross-examination. Therefore, when the husband and wife were residing together and the document itself clearly indicated that both should enjoy the property together and receive the benefits, it can be easily inferred that the gift has been accepted by the wife on the date when she was put in possession of the property along with her husband. Therefore, it cannot be said that there is no evidence whatsoever to prove the alleged acceptance. Admittedly, as already discussed above, the husband and wife were residing under the same roof. Such being the position, this Court has to necessarily infer that the gift has been properly accepted by the wife.
14. In the judgment reported in Rajammal v. Pappayee Ammal [2002(4) CTC 406], this Court, considering the various judgments in the field, in Paragraph No.32, has held as follows:
32. From the above said decisions, we can formulate the following broad formula to be applied to find out the nature of the document:- 14/24
http://www.judis.nic.in S.A.(MD)No.622 of 2006 (1) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the phraseology used therein.
(2) The nomenclature (settlement or will) given in the document is not a deciding factor.
(3) The registration of the document and the quantum of stamp paper used also have to be taken into consideration.
(4) The recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor with reference to the character of the document.
(5) Though actual disposition can be postponed till the lifetime of the settlor or though prima facie it appears that disposition consummates after his death, if there is a present disposition and vesting of right in praesenti, the document has to be construed as a settlement and not as testamentary.
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http://www.judis.nic.in S.A.(MD)No.622 of 2006 (6) If any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor, then the said document is only a testamentary and not a settlement.
(7) If the executant is entitled to be in possession of the property and enjoy the benefits during his lifetime with the power to encumber, the document has to be construed only as a will.
(8) If the executant imposes self-
restriction and with reference to sale and
encumbrance, though he is in possession of the property after execution of the said document, the document has to be construed only as a settlement and not as a will."
15. Even, applying the above judgment to the case at hand, the gift has been validly registered and registration and execution have also not been denied by the plaintiff and proper stamp papers have also been used and registered on the value of 16/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 Rs.300/-. Though recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor, the document clearly indicated that the possession was allowed to continue not only with the settlor but also settlee and self- restriction was imposed with reference to sale and encumbrance. Therefore, such document has to be construed only as a settlement and not as a Will.
16. It is also relevant to note that in the judgment reported in 2010(5) CTC 113 [P.K.Mohan Ram v. B.N.Ananthachary], the Hon'ble Apex Court, drawing a distinction between vested interest and contingent interest, has held that when there is immediate right of present enjoyment or present right for future enjoyment created in the document, a vested interest has been created in favour of the settlee.
17. In the above judgment, in Paragraph 13, the Hon'ble Apex Court has held as follows:
"Having noticed the distinction between vested interest and contingent interest, we shall now consider whether 17/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 Ex.A.2 was a Settlement Deed or a Will.
Although, no strait-jacket formula has been evolved for construction of such instruments, the consistent view of this Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the life time of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the Court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the expressed 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 18/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 Court is required to look into the substance thereof."
18. At this juncture, it is worthwhile to refer to Section 19 of the Transfer of Property Act, 1882, which reads as follows:
"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 19/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 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."
19. The above provision makes it very clear that when there is immediate right of present enjoyment or present right for future enjoyment created in a document, such interest can be said to be vested interest.
20. The other judgment relied upon by the the learned counsel for the third appellant in Arthur Mary Ammal v. Aruldoss Pillai & others [2003(4) LW 86], when carefully seen, a Division Bench of this Court has held that no disposition in praesenti created. Therefore, the document was construed as a Will. The above judgment is not applicable to the facts of this case. 20/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006
21. Having regard to the above settled position of law, this Court is of the view that in this case, the very document itself clearly indicated that the immediate right of present enjoyment was created in the document. What was restricted is only the right of encumbrance during the life time of the donor. Further, the donor himself prevented from making any encumbrance. The same makes it very clear that the document is only a settlement and not a Will.
22. As discussed above, the recitals of the document itself clearly indicates that the document is intended only a settlement not as a Will and properly registered in stamp papers on the value of Rs.300/-. Thus, the settlor has consciously retained possession along with his wife/donee only till his life time and also imposed self-restriction dealing with the property. The word "ghj;jpag;gLj;jpf; bfhLj;jpUf;fpnwd;" itself indicates that the absolute transfer has been created in praesenti and right of enjoyment is also given in praesenti and the vested interest has been created on the date of document. Hence, the said document is construed only as a settlement and not a Will. It is not the case of the plaintiff that no 21/24 http://www.judis.nic.in S.A.(MD)No.622 of 2006 such document ever executed by the settlor. Execution of the deed has been admitted. Once the Court found that the document is only a settlement and execution is admitted, there is no further proof required to prove the document. Therefore, any subsequent revocation made by the settlor just one day prior to sale deed in favour of the plaintiff unilaterally, the same will not bind the defendants and the defendants have acquired the title through the first defendant. The first defendant has acquired the title in the year 1963. Therefore, settlor had no right whatsoever to cancel the settlement unilaterally and re-transfer the property. Such sale deed in favour of the plaintiff did not convey any valid title in his favour. It is also stated that the first defendant, in turn, has transferred the property in favour of her daughters/defendants 2 and 3. Such being the position, the suit filed for recovery of possession based on the sale deed, which did not convey any title in favour of the plaintiff, has to necessarily fail. Accordingly, all the substantial questions of law framed are answered against the appellants.
23. In the result, the Second Appeal stands dismissed. No costs.
09.01.2020
Index : Yes/No
Internet : Yes/No
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S.A.(MD)No.622 of 2006
To
1.The First Additional Sub Court,
Madurai.
2.The District Munsif Court,
Tirumangalam.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.622 of 2006
N.SATHISH KUMAR, J
SML
Judgment made in
S.A.(MD)No.622 of 2006
Delivered on:
09.01.2020
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