Andhra HC (Pre-Telangana)
Alapati Hymavati (Died) And Ors. vs Namburi Basava Subrahmanyam And Ors. on 11 July, 1995
Equivalent citations: 1995(3)ALT922
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
JUDGMENT V. Rajagopala Reddy, J.
1. This L.P.A. arises out of the Judgmentand decree of the learned single Judge in A.S.No. 1654/80, confirming the judgment and decree passed by the trial Court in O.S.No. 35/78 on the file of the Subordinate Judge, Tenali.
2. The 1st appellant is the plaintiff. She and wife of the 1st respondent Vimalavathy, are sisters and are the daughters one Seshamma. Seshamrna executed 2 documents Ex. B-1 and B-2 both dated 1-12-1958 by which she settled certain properties on the 1st appellant, Vimalavathy. The wife of the 1st respondent died on 4-5-1970 leaving the 1st respondent as her heir. Thereafter, Seshamma executed Ex. A-1 alleged will dt. 21-8-1970 revoking Ex. B-1 dated 1-12-1953 and bequeathing the properties covered by Ex. B-1 in favour of the 1st appellant/plaintiff. Seshamma died on 26-1-1976. The suit was filed for possession of some items of suit property on the basis that Ex. B-1 was a will and not a settlement deed and hence the revocation deed Ex. A-1 dt. 21-8-1970 was valid and that the plaintiff/appellant was entitled to the suit property. 1st respondent's case is Ex. B-1 was not a will but a settlement deed by which mere was disposition of interest in praesenti in favour of his wife and only possession was postponed till after the death of Seshamma. Therefore, Ex. A-1 is invalid and the plaintiffs have no right in the suit property. The trial Court dismissed the suit holding that Ex. B-1 was not a will but a settlement deed and in appeal the learned single Judge did not find any reason to interfere with the lower Court's Judgment and decree. The 1st appellant, therefore, came up in this Letters Patent Appeal.
3. Learned counsel appearing for the appellants and respondents have fairly conceded that the result of the L.P. A. depends upon the construction of recitals in Ex. B-1 document dt. 1-12-1958 and that if there is disposition and passing of interest in the suit property in favour of the appellants in praesmti, on the date of Ex. B-l it would amount to settlement deed or if the passing of interest is postponed till after the death of the executant it has to be considered as a will, in which case the 1st appellant succeeds.
4. We now proceed to examine the recitals of Ex. B-l. Ex. B-1 is in Telugu. Its translated copy was given to us, which is extracted hereunder:
"I am 78 years old by now. Since I have been suffering from 'Nanju" disease and breathlessness and Asthma and I feel that it would be difficult for me to live Song. You happened to be my daughter, out of great love and affection, I have for you I, having felt strong desire got this settlement deed executed in your favour this day, settling the properties mentioned in the schedule hereunder i.e. the property I had purchased on 21-11-1935 from Sharadappa wife of Damarla Anjaiah and Vejella Veeraiah and others which is my self-acquired property, and the land devolved upon me out of the property of my husband under a decree passed by the Andhra Pradesh High Court and which has been in my absolute rights and enjoyment, to belong to you after my death to be enjoyed by you with absolute rights. Therefore taking possession of the schedule land after my death you may enjoy the same freely and happily till the Sun and Moon endure together with trees, water stones, treasures and treasure troves with all the rights with absolute powers of disposition by way of gift, mortgage, exchange, sale etc. from your son to grand son and so on by paying the taxes of the municipality, Government etc. from then onwards. I, heirs of my successors shall never raise any dispute against you, your heirs or successors in this behalf. Having assured your and made you to believe that the schedule mentioned properties have not been alienated and have not been subjected to any attachments of Courts, securities etc. and are free from all encumbrances and which are in my absolute right and enjoyment, this deed of settlement is got executed and "delivered to you"."
5. From a reading of the entire document it is clear that it is a Will. It was stated that the property should belong to Vimalavathy, w/o 1st respondent, after the death of Seshamma, with absolute rights. The possession also was to be taken over by her after Seshamma's death. However, this deed has been described as a settlement deed and has been delivered to Vimalavathy on the same day. Since no interest has been transferred in praesenti and it has been clearly stated that the property should belong to the 1st respondent's wife only after the executant's death with absolute rights, the document is therefore not a settlement deed, but a Will. It is contended by the learned counsel for the respondents that the document has been described as settlement and it has been registered incurring huge expenditure having been executed on a stamp paper and that there was no reservation of right to revoke or cancel the document it should be treated as a settlement deed. Learned counsel for the respondents also relied upon the following sentences in Ex. B-1: "I, my heirs or successors shall never raise any disputes against you, your heirs or successors in this behalf. Having assured you and made you to believe that the schedule mentioned properties have not been alienated and have not been subjected to any attachments of Courts, securities etc., and are free from all encumbrances and which are in my absolute right and enjoyment, this deed of settlement is got executed and delivered to you." He, therefore, contends that these covenants of title always present in a deed inter vivos and are absent in a Will, and hence the document has to be treated as a settlement deed. He also relied upon the words - "This settlement deed executed in your favour this day settling the properties mentioned in the schedule hereunder...." In the schedule it was also recited that - "out of this settlement deed rights have been counsel for the respondents urges that the intention of the executent was to transfer the property in praesenti and therefore, the learned single Judge was right in holding that it was a settlement deed. We think that there is no force in the above contentions. What is mainly to be seen is whether under the document there was disposition of property in favour of the 1st respondent's wife immediately on the date of the document. Whether 1st respondent's wife was conferred with any interest in the property. If there was such disposition or conferring of right then only it is a settlement. As we have seen from the above recitals the possession as well as the interest to enjoy absolutely the properties under Ex. B-1 are postponed till after the death of the executant. It is impossible to construe that there was any transfer of interest in the property. There is no ambiguity in the recitals. If there is vagueness or ambiguity in the language of the recitals then it is permissible to gather the intention of the parties from the surrounding circumstances. What is to be seen in considering a document is not the nomenclature attached to it or the form of the document. They are only guides, not conclusive, for the construction of the deed.
6. It has been held in Venkatachala v. Govindaswami, AIR 1924 Madras 605 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 property 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 Singh, 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 Wills interms making dear 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.
7. It has been held in Ponnuchami Servai v. Balasubramanian, 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 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.
8. Learned counsel for the respondents has cited:
i) Pasungillia Pillia v. Isakkimuthu, AIR 1928 Madras 321
ii) Ignatia Brito v. T.P. Rego, AIR 1933 Madras 492.
iii) Duraisami v. Saroja Ammal,
iv) Ramaswami v. Gopalakrishna,
9. In Pasungilia Pillai v. Isakkimuthu, AIR 1928 Madras 321 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 that 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.
10. In Ignatia Brito v. T.P.Rego, AIR 1933 Madras 492 considering the recitals in the document in question it is held -" A primary test of whether any particular document is a Will or nor is whether or not it is revocable. It is irrevocable then it cannot be a will. Another test is that of 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 a 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.
11. Following the above decision, in Duraisami v. Saroja Ammal (5 supra) and in Ramaswami v. Gopalkrishna (6 supra) 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."
12. The above decisions support our view. We are, therefore, dear that Ex. B-1 is only a Will but not a settlement deed. The learned single Judge, we are constrained to say, is not correct in holding that the document was a settlement deed. We, therefore, allow the appeal and set aside the judgment and decree of the trial Court as confirmed by the learned single Judge.
13. In the result, the Letters Patent Appeal is allowed, but, in the circumstances, without costs.