Andhra HC (Pre-Telangana)
Kirala Venkatamma, Died Per L.R vs K. Munaswamy & Others on 6 June, 2018
Equivalent citations: AIR 2018 HYDERABAD 114, (2018) 3 HINDULR 134, (2019) 193 ALLINDCAS 289 (HYD), (2018) 4 ANDHLD 675
Author: A. Shankar Narayana
Bench: A. Shankar Narayana
HONBLE SRI JUSTICE A. SHANKAR NARAYANA
SECOND APPEAL No.106 OF 1996
06-06-2018
Kirala Venkatamma, died per L.R. .. Appellant
K. Munaswamy & others .. Respondents
Counsel for the Petitioner: Sri K.S. Gopalakrishnan,
Advocate
for Sri T.C. Krishnan, Advocate
Counsel for the respondent No.1 : Sri P.Vidya Sagar, Advocate,
for Sri P. Jagadish Chandra Prasad
Advocate
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. AIR 1978 Madras 54
2. AIR 1982 Madras 281
3. AIR 1994 NOC 39 Madras
4. AIR 1981 Madras 351
5. AIR 1975 Patna 140
6. AIR 1964 Orissa 212
7. AIR 1960 Mysore 97
8. AIR 2002 Madras 1
9. (1909) 10 Cal.L.J. 644
HONBLE SRI JUSTICE A. SHANKAR NARAYANA
SECOND APPEAL No.106 OF 1996
JUDGMENT:
Plaintiff - Smt. Kirala Venkatamma in O.S. No.327 of 1984 on the file of the Principal District Munsif, Puttur, who succeeded, lost in Appeal Suit No.14 of 1991 on the file of the Subordinate Judge of Puttur and, thus, she preferred the present Second Appeal under Section -100 of the Code of Civil Procedure, 1908 (for short Code).
2. She filed the suit in O.S. No.327 of 1984 for declaration of her right and title to the suit schedule property and consequential perpetual injunction to restrain defendant Nos.1 to 5 therein from interfering with her possession and enjoyment over the suit schedule property.
3. The suit schedule property consists of item Nos.1 and 2. Item No.1 is dry land to an extent of Ac.0-49 cents out of Acs.1.66 cents situated in Survey No.173/1 with right in the Well in Survey No.173/6 to which Well a pump set is installed and the right of 1/12th share in the Well and appurtenance therein, the Channels, trees etc., and item No.2 is a house site measuring east - west 25yards and north
- south 20 yards within specific boundaries.
4. During pendency of the present second appeal, the sole appellant died and her brothers daughter came on record as appellant No.2 being her legal representative. Respondent No.2 also died and his legal representatives are already on record as other respondents.
5. Appellant No.1 herein is plaintiff in the aforesaid suit, while respondent Nos.1 to 5 are the defendants.
6. For the sake of convenience, the parties hereinafter referred to as they were arrayed in the aforesaid suit.
7. O.S. No.327 of 1984 was filed for the aforesaid reliefs by the deceased plaintiff - Kirala Venkatamma. Her case had been that defendant No.2 was her brother. Defendant Nos.1 and 3 are his sons. Defendant Nos.4 and 5 are wives of defendant Nos.1 and 3 respectively, and all of them were living together.
i) Originally the suit schedule property belonged to husband of the plaintiff, Kirala Narasaiah, and after his demise, she succeeded by way of inheritance to the suit property as they were issueless.
ii) On 19.12.1969, she executed a document terming it as settlement deed in favour of defendant No.1, who was minor then under the guardianship of his father, defendant No.2, stipulating therein that she should possess and enjoy the plaint schedule properties until her life time, and that defendant Nos.1 and 2 should treat her properly and, thereafter, defendant No.1 would derive absolute rights in case he performs her obsequies.
iii) But, subsequent to the execution of the said deed, it is alleged that she was ill-treated by the defendants and, therefore, by execution of a registered deed, dated 21.01.1971, she had cancelled the earlier deed. According to her case, she did not deliver the possession to the beneficiary under the former deed and she had been in continuous possession and enjoyment of the suit schedule properties and, therefore, she sought the aforesaid reliefs.
8. Before the trial Court, defendant No.1 filed written statement and defendant Nos.2 and 4 filed a memo adopting the written statement of defendant No.1. Defendant Nos.3 and 5 remained ex parte.
i) They admitted the relationship and execution of the registered deed of 1969, but, they claimed that the possession was delivered by her. They admit that the plaintiff cancelled the settlement deed, but they state that they gained knowledge about the execution of that deed a week prior to 25.04.1975, the date on which a letter was executed by the plaintiff.
ii) They claimed that the plaintiff had no right to cancel the settlement deed. They admit that though, defendant No.1 was not put in possession of the suit schedule properties on the date of settlement deed, but subsequently the plaintiff had delivered the possession of suit schedule properties to him as evidenced by the letter, dated 25.04.1975. Further allegations were denied stating that though, cist was paid, but the amount was actually paid on his (defendant No.1) behalf.
iii) They state that the plaintiff without intimation to them allowed her another brother - Balaramaiah, who intended to knock away the suit schedule properties for his son - Balachandraiah and started living with him having joined him in the month of October, 1971 and had not returned despite requests made by them. According to them, only in the second week of April, 1975, she came to their house and expressing that she was duped by the said Balaramaiah, executed the letter, dated 25.04.1975, affirming the delivery of possession over the suit schedule properties.
9. The trial Court framed as many as seven (7) issues thus:
1. Whether the plaintiff got title to the suit property?
2. Whether the deed of cancellation dt.20.1.71 is valid and binding on the defendants?
3. Whether the plaintiff is in possession of the suit property?
4. Whether the plaintiff pe3rfected her title by adverse possession also?
5. Whether the plaintiff is entitled to the declaration as prayed for?
6. Whether the plaintiff is entitled to the permanent injunction?
7. To what relief?
10. Before the trial Court, on behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A-1 to A-6 were marked. On behalf of the defendants, DWs.1 to 4 were examined and Exs.B-1 to B-4 were marked. Amongst the documents, Ex.A-5 is the registered settlement deed executed by the plaintiff in favour of defendant No.1 and Ex.A-6 is the cancellation deed, dated 21.01.1971, which are relevant for the present purpose. Ex.B-1, which is registered settlement deed executed by Kailasamma in favour of PW.1, dated 27.12.1967 and Ex.B-3, letter, dated 25.04.1975, said to have executed by the plaintiff on 25.04.1975 are relevant documents besides certified copies of the documents obtained from the revenue department by both sides.
11. The trial Court had taken up issue Nos.2, 3 and 4 together for discussion. Ex.B-1, a registered settlement deed, dated 27.12.1967, reflects that the mother of the plaintiff originally held the suit schedule properties and under the said registered settlement deed, she gave the suit schedule properties to the plaintiff. To prove the same, the said document was filed. The trial Court interpreting Ex.A5, a copy of registered settlement deed, observing that the nomenclature of the document is not important, but the recitals and intention of the person is to be seen, and thereby by examining Ex.A-5 found that the intention of the plaintiff was only to execute a will but not a settlement deed as she retained the interest during her life time and that the property becomes vested absolutely only after her demise and even retaining the possession are all sufficient to consider it as a will and merely because it is captioned as settlement deed, it cannot be said that it is a settlement deed when intention is culled out and thereby rejected the stand taken by the defendants and even observed that taking undue advantage of her illiteracy, it appears the nomenclature of the document was also wrongly mentioned and even observed that the evidence of DWs.3 and 4 is of no use, nor their evidence would improve the case of defendants, found the aforesaid issues in favour of the plaintiff and against the defendants.
i) On issue No.1, since there is no dispute between the parties that the suit schedule properties are the absolute properties of the plaintiff and referring to Ex.B-1 and the stand of the defendants, however, held that Exs.A-1 to A-4 would prove the title of the deceased plaintiff over the suit schedule properties.
ii) On issue Nos.5 and 6, basing on the findings recorded on other issues, held them in favour of the plaintiff, and thereby decreed the suit with costs, as prayed for on 30.09.1991.
12. The defendant No.1 got aggrieved over the said judgment and decree, dated 30.09.1991, has preferred the Appeal Suit No.14 of 1991, making other defendants as respondent Nos.2 to 5.
i) The learned lower appellate Court referring to what has been observed by the trial Court and findings recorded on issues settled for trial, formulated the point for consideration to the effect whether the appeal of the appellant - defendant No.1 is sustainable under Law.
ii) The learned lower appellate Court mainly concentrated on the original registered settlement deed, dated 19.12.1969, marked as Ex.B-2, copy of which is also marked as Ex.A.5 on behalf of the plaintiff, and also Ex.A-6, which is cancellation deed, dated 21.01.1971, referred to in the above in interpreting the nature of Ex.A.5/B.2 document whether to construe it as will or gift and elaborately dealt with the recitals therein by extracting certain recitals in vernacular language in paragraph No.10 and observing that the Settlor disposed of her interest in the property in praesenti, and what all was reserved for her was only enjoyment of the income on the schedule properties and nothing more and that even she has clarified that she had no further right over the property and also asserted that she had no right either to alter it or cancel in future and even she got included a clause that she had no right to revoke and basing on the rulings in Ramaswami Naidu & another v. Gopalakrishna Naidu & others and Ponnuchami Servai vs Balasubramanian for the proposition that no importance can be attached to the nomenclature alone and the contents of the document are to be considered, and also relying on the decisions in Narsimhan v. Perumal (dead) by legal representatives , Duraisami Reddiar and another v. Saroja Ammal and others , to the effect that on the transfer of interest in praesenti is the criteria; Mst. Samrathi Devi v. Parasuram Pandey & Others , Adhikari Narayanamma v. Adhikari Thabitunaidu , Revappa v. Madhava Rao & another , relied on by the appellant and concluded that Ex.B-2, which is equivalent to Ex.A-5 is a settlement deed and settlor had no right to cancel and the cancellation deed is of no avail and is of no consequence and thus, allowed the appeal suit on 12.06.1995, setting aside the judgment and decree passed by the trial Court in the original suit.
12. Aggrieved over the said judgment and decree, dated 12.06.1995, passed by the learned lower appellate Court, the deceased plaintiff preferred the present second appeal. During pendency of the appeal, the sole appellant died and second respondent died. K. Thulasamma, the daughter of brother of the deceased plaintiff, came on record as the legal representative, as appellant No.2, and respondent Nos.1 and 3 were treated as legal representatives of the deceased defendant No.2. The said orders were made on 08.02.2011 by this Court.
13. Since originally substantial questions of law as such were not formulated, but only referred to ground Nos.1, 2 and 3 constituting substantial questions of law, the following substantial questions of law are formulated.
i) Whether the learned lower appellate Court was right in reversing the judgment and decree of the trial Court without meeting the reasoning of the trial Court?
ii) Whether the learned lower appellate Court was right in construing Ex.A-5/B-2 as settlement deed because of its nomenclature despite a reading of entire document would reflect that it is a will as it comes into effect only on the death of the deceased plaintiff and got vested in defendant No.1 on her demise and possession of the property was retained by the deceased plaintiff?
iii) Whether the learned lower appellate Court was right in reversing the judgment of the trial Court when Ex.A-3 was not proved when revenue records through Exs.A-1 to A-4 would prove the possession of the deceased plaintiff, more particularly, when defendant No.1 did not file any document to substantiate his possession?
14. Heard Sri K.S. Gopalakrishnan, learned counsel, representing Sri T.C. Krishnan, learned counsel for the appellants - plaintiffs, and Sri P. Vidya Sagar, representing Sri P. Jagadish Chandra Prasad, learned counsel for respondent No.1 - defendant No.1.
15. Both the learned counsel have come up with the argument that only the nature of Ex.A-5/B-2 is to be decided in view of reversal finding recorded by the learned lower appellate Court construing it as settlement deed, whereas the trial Court construed it as will, and that would suffice in resolving the controversy in the present second appeal. Therefore, it is necessary to examine the recitals in the said document in the light of the rulings relied on by both sides.
i) Sri K.S. Gopalakrishnan, learned counsel for the appellant - plaintiff would rely on the decision in Ramaswami Naidu1. The Honble Madras High Court in paragraph No.2 referred to the document therein which was styled as a settlement deed and referred to the contents therein. Then referred to the broad tests or characteristics as to what constitutes a will and what constitutes a settlement deed that have been noticed in various decisions. But, the main test to find out whether the document constitutes a will or a settlement deed is to see whether the disposition of the interest in the property is in praesenti in favour of the settlee or whether the disposition is to take effect on the death of the executant, and if the disposition is to take effect on the death of the executant, it would be a will. But, if the executant divests his interest in the property and vests his interest in praesenti in the settlee, the document will be a settlement, and then referred to the important clauses in the document marked therein in paragraph No.4 thus:
4. In this case, one other important circumstance which calls for special mention and consideration is the clause to the effect that the executant was to enjoy the income from the properties during her lifetime and that she will not have any right to encumber the property or in any way dispose of the same during her lifetime.
This clause is normally consistent with a document being a settlement and a transfer of an interest in praesenti but the right to possession and the right to income being postponed to a future date. But as already stated, the fundamental and the only reliable test is to find out whether under the main dispositive clause an interest in praesenti was transferred or the disposition is to take effect on the death of the executant. If this is construed and we come to a conclusion that, there was no present disposition and that the disposition is to take effect on the death of the executant, the clause relating to the enjoyment of the income and restraining the powers of alienation of the executant would be ineffective and will not enlarge the disposition nor affect the rights available to the executant under law.
Since in the present case according to the main disposition clause, as I already pointed out, the plaintiffs have to take the properties only on the death of the executant and that they have to enjoy the properties absolutely only after her death, the clause restricting the powers of the executant would not enlarge their interest and make it a, disposition in praesenti. Though a document has to be construed with reference to the language used in the document and the decisions rendered for the construction of other documents cannot be called in aid, it is useful to refer to some of the decided cases where similar clauses were construed as a guide for the interpretation. In Halsbury's Laws of England, Simonds Edn., Volume 39, at page 844, it has been observed as follows-
"The revocable nature of a will cannot be lost, even by a declaration that it is irrevocable or by a covenant not to revoke it."
At page 838 of the same edition, it has been observed as follows -
"A will is of its own nature revocable, and therefore though a man should make his testament and last will irrevocable in the strongest and most express terms, yet he may 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."
To the same effect is the decision in one of the earliest cases in Sagarchandra Mandal v. Digambar Mandal. (1909) 10 Cal LJ 644 at p. 645, wherein it has been observed as follows-
"If therefore an instrument is on the face of it a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its quality, for as Lord Coke said in Vynior's case, (1610) 8 Coke 82 (a). "If I make my testament and last will irrevocable, yet I may revoke it for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable". The principal test to be applied is whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease. If it is really of this latter nature, it is ambulatory and revocable during his lifetime."
On the clause relating to enjoyment of income by the executant during her lifetime and provision to the effect that the executant should not in any way alienate the property during her lifetime, a Division Bench of this Court in T. C. No. 372 of 1970, dated 13- 7-1976 : (reported in 1977 Tax LR 1187) has held on almost similar facts, that those restrictive clauses do not in any way affect the disposition and that the document is a will. The above decisions support the construction which I have placed on the document in question. I therefore hold that the document is a will and not a settlement. The second appeal fails and the same is accordingly dismissed There will be no order as to costs.
ii) The learned counsel for the respondents - defendants, Sri P. Vidya Sagar, relies on the ruling Revappa7, for the proposition that probative value of admission made by a party previously may reasonably be presumed to be so and until the presumption is rebutted, the fact admitted should be taken to be established, and in a gift of immovable property by person governed by Hindu Law and delivery of possession is not an essential.
a) The learned counsel also relies in Kasi Gounder v. Chinnapaiya Gounder , for the proposition that a settlement deed executed when registered and accepted cannot be revoked and ground of failure to maintain settlor on the part of settlee not a ground to revoke and execution of subsequent settlement deed in favour of another is of no use for another and the settlee under first deed can recover possession of the land, subject matter of the settlement.
b) The learned counsel also relies in Adhikari Narayanamma6, for the proposition that provisions of Section 123 of the Transfer of Property Act, 1882 applicable to gifts of immovable property made by persons governed by Hindu Law and the Section lays emphasis on the due execution of the instrument of the gift and not so much on the actual delivery of possession of the property. Therefore, the learned counsel for the defendants would submit that the learned lower appellate Court did not go wrong in analyzing the document putting it to the requisite test and arrived at the conclusion that Ex.A-5/B-2 is a settlement deed, but not will and, therefore, no interference is warranted as no substantial questions of law are involved.
iii) The learned counsel, Sri K.S. Gopalakrishnan, would contend in vehemence, that all attributes of a will are occurring in Ex.A-5/B-2, since the very recital that it shall come into effect only after her demise retaining possession over the property evidenced by the revenue documents marked as Exs.A-1 to A-4 are all sufficient to hold that the document in question is will but not settlement deed as no interest in praesenti was vested in defendant No.1 on the date of execution of Ex.A-5/B-2 and, therefore, the learned lower appellate Court went wrong completely and unjustly reversed the finding tendered by the trial Court without assigning proper reasoning.
16. On the anvil of the rulings referred to and relied on by learned counsel for both sides the contents of document, Ex.A-5/B-2, require examination putting it to test whether it has got attributes of a will or a settlement deed.
17. The Courts below subjected Ex.A-5/B-2 to test, and the primary Court held that all attributes of a will are occurring and nomenclature is not the criteria, and thereby held that Ex.A-5/B-2 is will and cannot be construed as settlement deed as levelled.
18. Contra to the said finding recorded by the trial Court, the learned lower appellate Court referring to certain recitals in Ex.A-5/ B-2 arrived at the finding that it is a settlement deed but cannot be construed as will. In arriving at such conclusion, the learned lower appellate Court, mainly taken into consideration certain expressions occurring in Ex.A-5/B-2. The first recital considered by the learned lower appellate Court is to the effect that schedule properties were given free of cost or without consideration and the Settlor can only enjoy the income derived on the schedule properties and also considering that neither Settlor nor her heirs could not have any rights in the schedule properties, opined that it confirms that the Settlor disposed of her interest in the property in praesenti, and what all she reserved for her is only enjoyment of income on the schedule properties and nothing more, and thereby construed Ex.A-5/B-2 as a settlement deed, but not a will.
19. It is no doubt true, the rulings relied on by the learned counsel for the defendants are to the effect that the ground of failure to maintain settlor on the part of settlee not a ground so far as revocation deed is concerned and that in a gift of immovable property by a person governed by Hindu Law delivery of possession is not essential. But, something more is required to be examined in the present case. In the decision relied on by the learned counsel for the appellant in Ramaswami Naidu1, rendered by a learned Single Judge of Madras High Court, His Lordship had the occasion to refer to one of the earliest cases in Sagarchnadra Mandal v. Digambar Mandal , extracting the relevant portion thus:
"If therefore an instrument is on the face of it a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its quality, for as Lord Coke said in Vynior's case, (1610) 8 Coke 82 (a). "If I make my testament and last will irrevocable, yet I may revoke it for my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable". The principal test to be applied is whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease. If it is really of this latter nature, it is ambulatory and revocable during his lifetime."
Thus, it is clear from the law declared in Sagarchnadra Mandal9, the principal test to be applied as to whether the disposition made takes effect during life time of the executant of the deed or whether it takes effect after his decease, if it is really of the latter nature it is ambulatory and revocable during the makers life time. Therefore, the clause occurring in Ex.A-5/B-2 that maker has no right to alter it is no ground to hold that it attracts attribute of settlement deed but not will. The learned Single Judge has also relied on a decision of Division Bench of Madras High Court in T.C. No.372 of 1970, dated 13.07.1976 [reported in 1977 Tax L.R. 1187] that restrictive clauses in the document occurring therein do not in any way affect the disposition and that the document is a will where the executant in relation to the clause as to enjoyment of income during her life time and provision to the effect that the executant should not in any way alienate the property during her life time got mentioned. The learned Single Judge of Madras High Court was testing the document of alike nature occurring in the present case marked as Ex.A-5/B-2 as could be seen from the factual aspect projected in paragraph No.3 thus:
3. The broad tests or characteristics as to what constitutes a will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a will or a gift is to see whether the disposition of the interest in the property is in praesenti in favour of the settlees or whether the disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of the executant, it would be a will. But if the executant divests his interest in the property and vests his interest in praesenti in the settlee, the document will be a settlement. The general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the document are only a guide to find out whether there was an immediate divestiture of the interest of the executant or whether the disposition was to take effect on the death of the executant.
If the clause relating to the disposition is clear and unambiguous, most of the other clauses will be ineffective and explainable and could not change the character of the disposition itself. For instance, the clause prohibiting a revocation of the deed on any ground would not change the nature of the document itself, if under the document there was no disposition in praesenti. In such a case the clause prohibiting revocation will be contrary to law and will be ineffective. If, on the other hand, the document is a settlement, merely because 3 right of revocation is given, it would not change the character of the document as a settlement 'because such a clause will be against law and will be invalid. The nomenclature of the document nor the fact that it had been registered also will not be of any assistance in most of the cases unless the disposition is very ambiguous and extraneous mid is required to construe that clause.
When Ex.A-5/B-2 is examined, the crucial recital is to the effect that after demise of maker or executant, the properties mentioned in the schedule were to be taken possession by the beneficiary i.e., defendant No.1 herein and, thereafter to enjoy as absolute owner with right to alienation either by way of gifting or by selling the property with all absolute rights. This particular recital was completely misconstrued by the learned lower appellate Court. On the other hand, the learned lower appellate Court, somehow, went to the extent of making an observation that right in praesenti was transferred in favour of the beneficiary by the settlor which finding runs completely contra to what has been mentioned in Ex.A-5/B-2 by the executant. Thus, it is abundantly clear that the aforesaid recital vests the settlee or the beneficiary with absolute right only after demise of the executant but not the interest in praesenti with absolute rights. Thus, dispositive rights in the properties were postponed and provided to take effect by the beneficiary only after the demise of the executant but not in praesenti, in the sense, on the date when the executant executed Ex.A-5/B-2. Therefore, viewed from any angle, the original document of Ex.A-5/B-2 can only be construed as will but not settlement deed when put to the test in the light of the principles laid down in the aforesaid decisions referred by the learned Single Judge rendered by a Division Bench of Madras High Court and in Sagarchnadra Mandal9, no other view is possible. Therefore, the mere nomenclature terming the original of Ex.A-5/B-2 as a settlement deed would not make the document a settlement deed, but it is will with all attributes of a will. Hence, the finding recorded by the learned lower appellate Court contrary to the finding recorded by the trial Court on Ex.A-5/B-2 is patently perverse and, therefore, liable to be set aside. Thus, it accounts for substantial question of law is involved in the present Second Appeal.
20. The present Second Appeal, is therefore, allowed setting aside the judgment and decree, dated 22.06.1995, passed in A.S. No.14 of 1991 by the learned Subordinate Court, Puttur, and restoring the judgment and decree, dated 30.09.1991, passed in O.S. No327 of 1984, by the learned Principal District Munsif, Puttur. In the circumstances, both the parties shall bear their own costs.
As a sequel thereto, miscellaneous applications, if any pending in the second appeal, stand closed.
___________________________ A. SHANKAR NARAYANA, J une 06, 2018.