Madras High Court
Rajammal vs Pappayee Ammal on 9 October, 2002
JUDGMENT K. Govindarajan, J.
1. The second defendant who suffered a decree before the Courts below has filed this Second Appeal.
2. The respondent/plaintiff filed a suit in O.S.No.387/1985 on the file of the District Munsif Court, Namakkal, for a declaration that the plaintiff is entitled to the suit property, after the lifetime of the 1st defendant and for possession of the same from the 2nd defendant. Even according to the plaintiff, as stated in the plaint filed in O.S.No.387/1985 on the file of the learned District Munsif Court, Namakkal, she is a concubine of the first defendant and with that relationship they lived together. So the 1st defendant has executed a settlement deed under Ex.A4, dated 25.2.1980 in favour of the plaintiff. On that basis, the plaintiff has come forward with the suit that she is the absolute owner of the said property pursuant to the said settlement deed, and the sale in favour of the 2nd defendant by the 1st defendant under Ex.B1 dated 27.9.1980, is sham and nominal, and the 1st defendant has no right to execute the said sale deed. It is stated that such a sale in favour of the 2nd defendant will not bind the plaintiff.
3. The 1st defendant contested the suit contending inter alia that the said document Ex.A4 was executed as a consideration of the plaintiff's living as a concubine of the 1st defendant. So, the said document cannot be enforceable in law. It is also stated that it is only a will and not a settlement deed and so the 1st defendant is entitled to cancel the said document, and, factually it was cancelled, and a sale deed was executed in favour of the 2nd defendant.
4. Pending suit, the 1st defendant died. The trial Court decreed the suit holding that Ex.A4 is a settlement deed and so the defendants cannot claim any right over the suit property on the basis of Ex.B1 sale deed. So, the 2nd defendant preferred an Appeal in A.S.No.189/91 on the file of the District Court, Salem. The learned District Judge also confirmed the judgment and decree of the trial Court, and dismissed the Appeal. Hence this Second Appeal by the 2nd defendant.
5. The Substantial questions of law that were framed in this Second Appeal are:-
(1) Whether the interpretation of the document Ex.A4 by the Courts below to hold that it is a settlement deed is correct in view of the contra decisions reported in 85 L.W. Page 152, page 430, 1977 I.T.R. page 661 and the unreported judgment in S.A.No.645 of 1968?
(2) Whether the lower Court is right in applying the decisions reported in 1947 Bombay page 49, 1979(1) MLJ page 88 and 1981 MLJ page 171 to hold that the document Ex.A4 is not a will?
6. From the pleadings, it is clear that the plaintiff was living with the 1st defendant as a concubine and as a consideration for the same, the 1st defendant had executed a document under Ex.A4, dated 25.2.1980 in favour of the plaintiff. Subsequently, the 1st defendant executed a sale deed under Ex.B1 dated 27.9.1980 with respect to the same property in favour of the 2nd defendant. The plaintiff claims right in the suit property on the basis that Ex.A4 is a settlement deed and thereby she got right in the property, and the 1st defendant has no right to execute the sale deed in favour of the 2nd defendant under Ex.B1. According to the 1st defendant, Ex.A4 is only a Will and that Ex.A4 was executed in consideration of the plaintiff's living as a concubine with the 1st defendant and so on the basis of the said document, the plaintiff cannot claim any right in the suit property.
7. Both the Courts below have concurrently found that the said document cannot be construed as illegal, merely because it was executed in favour of the plaintiff, the concubine. The Courts below have relied on the decision in Saradambal Ammal v. Natesa Mudaliar, 1984 L.W.330. With respect to the nature of the said document, both the Courts below have concurrently found that it is a settlement deed and cannot be construed as a Will and so the plaintiff is entitled to claim right in the said property.
8. Learned senior counsel appearing for the appellant has not argued. challenging the finding given with respect to the first issue, namely, whether the document is sustainable in law as it was executed in favour of the concubine, the plaintiff. Learned counsel had concentrated his argument only to sustain the case that the document, namely, Ex.A4 has to be construed as a Will and not a settlement deed. According to the learned counsel, -
(1) the said document was executed with the intention to have a convenient life by the plaintiff, after the life time of 1st defendant;
(2) the 1st defendant had retained possession of the said property during his lifetime;
(3) there is no restriction for the sale of the said property by the 1st defendant. But the restriction is only to encumber. According to the recitals in the said document, title would pass on only after the life time of the 1st defendant.
On the basis of the said recitals, learned Senior Counsel appearing for the appellant has submitted that it has to be construed only as a Will and not a settlement deed as held by the Courts below.
9. On the other hand, learned counsel for the respondent has submitted that the intention of the parties has to be looked into on the basis of the recitals in the document Ex.A4. The intention of the 1st defendant while executing the said document was to give right in the said property to the plaintiff under the said document and only the right of enjoyment in the property has been postponed till his lifetime.
10. The question whether the document is a gift or a Will depends not merely upon form of the document but upon the intention gathered from the words used in the document itself. To ascertain the intention, the Court has to consider the relevant portion of the document as a whole and also take into account the circumstances under which the particular words were used, and not from the use of any specific word or phrase therein. The essential character of a Will is that it is a mere declaration of an intention so long as the testator is alive and such declaration may be revoked or varied according to the variation in the testator's intention. The disposition requires the testator's death for its consummation. But, gift, on the other hand is a transfer of property, that is, voluntarily, gratitious and absolute confirming of the immediate right, which can be revoked only as mentioned under Sec.126 of the Transfer of Property Act.
11. Before going into the facts of the case, I am inclined to deal with the decided cases in this regard.
12. The Division Bench of this Court in venkatachalam Chetty v. Govindaswami Naicker, Vol.XLVI M.L.J. 288, has considered the document in question, which contains the following portion:-
"You shall yourself after my life-time use and enjoy the two rooms, house municipal No.11, ....... I shall myself enjoy the rent in respect of the two rooms as long as I may be alive."
To the above said effect, the gift has been made and while considering whether the said document is a Will or deed of gift, the Learned Judges have come to such a conclusion that the said document was a will on the basis that the donee gets right only after the death of the donor.
13. The Judicial Committee, in Venkata Narasimha Appa Row v. Parthasarathy Appa Row, (1913) L.R. 41, I.A.51, 70, observed as follows:-
"In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intention, i.e., to construe the will. It is true that in so doing they are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure "The Court is entitled to put itself into the testator's armchair"."
14. The Division Bench of this Court in the decision in Ignatia Brito v. T.P. Rego, AIR 1933 Madras 492, gives much importance to the fact that the said document was registered to come to a conclusion that the said document is a deed. While doing so, the Division Bench has held as follows:-
"A will need not be written on a stamp, neither need it be registered, while its registration costs less than the registration of a deed of settlement. Had the executant intended the document to be a will he would hardly have undergone this extra expenditure, besides which it has been laid down in Mahadeva Iyer v. Sankarasubramania Iyer, (1908) 18 M.L.J. 450 = 4 M.L.T 103 and reiterated in Gangaraju v. Somanna, A.I.R. 1927 Mad. 197, that where an instrument is a deed in form there must be something very special in the case to justify its being treated as testamentary in character. Now a primary test of whether 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. This has been pointed out in Rajamani v. Antiammal, (1910)33 Mad 304 = 7 I C 357 and Sita Koer v.Deo Nath Sahay, (1904)8 S C W N 614 = 3 C L J. 370. Another test is that of whether a document confers an immediate right to property as has been pointed out by the Privy Council in Muhammad Abdul Ghani v. Fakhr Jahan Begum, A.I.R. 1922 P C 281 = 68 I C 254 = 49 I A 195 (P.C) Even the reservation of a life estate by the settlement does not render the instrument the less a settlement as is remarked in Rajammal v. Anthiammal, (1910)33 Mad 304= 7 I C 357, already referred to."
15. The Apex Court in the decision in Pearey Lal v. Rameshwar Das , has observed regarding the rule of cosntruction of the will, as follows:-
"It must be conceded that there is some conflict of ideas in the document, but in constructing a will executed in 1897,the Court should try its best to get at the intention of the testator by reading the will as a whole. We must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. Another rule which may also be useful in the context of the present will is that the words occurring more than once in a will shall be presumed to be used always in the same sense unless a contrary intention appears from the will see Section 86 of the Indian Succession Act. So too, all parts of a will should be construed in relation to each other. Vide section 84 of the said Act. It is also a well recognized rule of construction that the Court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like; see S. 75 of the said Act."
16. In another judgment of the Apex Court in C.A.Nos.470 and 477 of 1962, dated 6.2.1964 (Rangammal & another v. Kuppuswami Konar & another), it is held as follows:-
"The terms of the will, if literally construed, lead to conflict of idea and expressions, but the intention of the testator is obvious from the broad pattern of the will and also from the phraseology used. He wanted the property to continue in the different branches of his sons till, at any rate, his sons and his grandsons that were living at the time of the will had issues. As he knew the capacities and the character of his sons and grandsons, he gave suitable directions. But one thing is clear that he used the expression "should go" whenever he intended to give a particular property absolutely to one or other of his sons or grandsons and those words were invariably used, without exception, whenever he had full confidence in a son or a grandson, as the case may be."
17. Even in the decision in Sellayya Pillai v. Devaraya Pillai, 85 L.W. - 152, the learned Judge of this Court has taken similar view as it has been taken in the decision in 1976 T.N.L.J. 325, and found that the absence of a clause relating to revocation or the mention of a clause containing the statement that the settlement is not revocable, is not decisive on the question as to the character of the document.
18. The Division Bench of this Court in the decision in Commissioner of Gift Tax, Madras II, Madras v. C. Thiruvenkata Mudaliar, Madras, 1976 T.L.N.J., 325, has found that even if the document contains a provision as to whether it is revocable or irrevocable, it is not decisive on the question whether it is a Will or gift. This conclusion was arrived at on the basis that even if a Will contains a clause that it is irrevocable, the law makes it revocable. Equally, in the case of gift as it comes into operation immediately even if it contains a clause that the settlor can revoke it, still it will remain irrevocable under law because the donee obtains interest in the property on the execution of the document itself. Ultimately, it was found that the principal test to be applied is whether the disposition takes effect during the life-time of the executor or whether it takes effect after his death.
19. In the decision in Ramaswami Naidu v. Gopalakrishna Naidu, 90 L.W. 430, while considering the terms of a document to the effect that after the lifetime of the executant, the property will have to be taken and absolutely with all rights of alienation by the plaintiff, and that during the lifetime, the executant was entitled to enjoy the income from the properties with any power to encumber the property or in any way alienate the same, it was found that the said document has to be construed only a Will and not a settlement deed. The learned Judge has narrated the test to be applied to find out the nature of the document as follows:-
"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 settlee 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 a right of revocation is given, it would not change the character 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 and is required to constitute that clause."
20. Contrary to the above said view, another Division Bench of this Court in the decision in Ramaswami Naidu v. Vellappan, 1979-II-M.L.J. - 88, while construing the document marked as Ex.A1 in the said case, it has been held that though disposition can be postponed till the lifetime of the settlor and though prima facie it may appear that disposition consummates only after his death, yet such postponement not being illegal, if in a given instrument, there is a present disposition and a vesting of right in praesenti, such a conclusion can be arrived at by reading the instrument as a whole, that the mere ambulation of interest during the life time of the settlor would not make it testamentary. The learned Judges have also taken into consideration the fact that the said document was a registered one to come to the conclusion that the document is a settlement deed.
21. The learned single Judge of this Court in the decision in Kothandaraja Pillai v. Swamy Viswa Vinayakar Kovil, 1981-1 M.L.J. 344, has found that the ban imposed under the document on alienation by her during the lifetime could only be on the basis that she had settled the property on the temple as otherwise it would be otiose and the ban brings out her intention in settling absolutely. On that basis it is found that the document is a settlement.
22. In the decision in Ponnuchami Servai v. Balasubramanian alias Suresh, 94 L.W. 796, the Learned Judge found that the real and the only reliable test for the purpose of finding out whether a document constitutes a will or gift 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 to transfer interest in favour of the beneficiary only on the death of the executant. But the Learned Judge has also found that the provision as to whether it is revocable or irrevocable made in the document is not decisive of the question whether it is a will or gift. Even the nomenclature given in the document is again decisive of the question whether it is a will or gift.
23. But the Division Bench of this Court in the decision in Sadasivam and 6 others v. Subramania Pillai and 8 others, 1986 T.N.L.J. -270, while construing the words - @vd; $Ptfhy jpirf;Fg; gpwF cd; $Ptndhghaj;jpw;F@ has held that it means that she is entitled to give property therein in favour of the beneficiaries under the document only after the lifetime of the executant. The learned Judges have also taken into consideration the fact that there is a restrictive clause that the beneficiaries should not encumber or alienate the properties during the lifetime of the executrix and, she has not parted with possession and entered possession under the said document. On that basis the learned Judges held that the said document can be construed as a Will and not a settlement deed.
24. In the decision in Gopalakrishnan (decd) and 2 others v. Mangammal and 10 others, 1992-2 L.W. 200, the learned Judge of this Court, taking into consideration the embargo on alienation by the settlee found that if the settlor did not intend to convey the interest in the property in praesenti to the settlee, there is no necessity to make such embargo. According to the learned Judge, if really, the settlor was not having any intention to give the property in praesenti he would have executed a power of attorney in order to manage the properties and that should be taken care of. On that basis the learned Judge held that the document in question has to be construed only as a settlement and not as a will. But this view is contrary to the view taken by the Divisio Bench of this Court in 1976 T.N.L.J. 325 (supra).
25. The Apex Court in the judgment in N.B.Subrahmanyam v. A. Hymavathi, , took a similar view that was taken by the Division Bench of this Court in 1979-2-M.L.J. 88 (supra), and held as follows:-
"5. The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on settlor's demise. ...."
26. In the decision in Poongavanam v. Perumal Pillai, 1997-1-M.L.J. 169, it is held as follows:-
"10. The recitals extracted above only indicates that the property given under the settlement could be enjoyed by him without any rights of alienation and it is only after the lifetime of the executant, viz., the 1st defendant, he (2nd defendant)shall acquire absolute right in respect of the property with right to sell and encumber the property by assuming absolute control and enjoyment of the property. The above recitals would go to show that not only a document was a crisp one and that there is no specific or clear and absolute instant disposition of transfer of interest in praesenti in favour of the beneficiary under the doument but equally, there is absolutely no complete divestation of theright, title, interest of the executant on the date of the execution of the deed, such conferment of rights are postponed till the lifetime of the 1st defendant. The recitals themselves, in my view, are sufficient in law to show that it is only in the nature of a will and at any rate not settlement absolute, the document thus being tested in the light of well-settled principles and often reacted by the courts."
27. In the judgment reported in Alphonese, A and another v. Vincent and 7others, 1998-2-L.W. 675, the learned Judge following the judgment in 1979-2-M.L.J. - 88 (supra), has held as follows:-
"Apart from the fact that the document was registered by the settlor as a Settlement deed, there are several recitals in the document which will show that by no stretch of imagination can the document be treated as a will. The settlor had declared that she has no power to set aside or revoke or modify the settlement deed in any manner. It is further declared that the properties be thereby enjoyed by the settlees in equal shares. It is also further declared that in the event of one of the settlees being willing to purchase the property, the settlees after assessing the value of the property at the prevailing market rate, the parties willing to purchase the property, shall pay half the value and take the whole property absolutely. Therefore, a reading of the document clearly shows that the settlor had relinquished all her rights in the property and has also declared not to set aside or revoke or modify the settlement deed. Therefore, I am unable to sustain the finding of the Courts below that the document has to be treated as a Will."
28. In the judgment reported in Deivasironmani v. Rajathangam, 1998-1-M.L.J. 322, the learned Judge has held as follows:-
"10. If the donor has a right to encumber he property in any manner without concurence or consent of the donees, that itself is an indication that no right in praesenti was created, nor was it intended to be created.
11. Before going to the relevant decisions, See 122 of the Transfer of Property Act, has to be considered. That section defines 'gift' as 'the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee'. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. So, from the above definition of 'gift', it is clear that there must be an immediate transfer or certain existing movable or immovable property by one person called 'donor' to another person called 'donee'. The same must also cannot be a gift. In Ex.A-1,there are no words of transfer."
29. Another learned Judge of this Court in the judgment reported in Deivaprasad, P.S. v. Dr. P.D. Balaji, 2001 (1)CTC 520, construing the document in which the propeprty was given to be enjoyed by the executrix without any power of alienation, and it is only after her life time that the daughters shall acquire absolute right, has held as follows:-
"14. A reading of the said document as a whole will clearly point to the intention of the executant that she desired the document to be a Will to come into force after her life time. In the instant case, it is true that the document itself has been styled as a settlement deed and it is also registered. It cannot be disputed that the accepted definition of a Will is that it is an instrument, whereunder a person makes disposition of his properties to take effect after his life time. In the instant case, after looking into the substance of the document under Ex.P1, the treatment of the property by the executant, the intention appearing both expressly in the instrument and by necessary implication, it would be clear that her intention was to execute a Will and not a settlement."
30. While construing the recitals that the settlor has no right to revoke the document and for encumbering the property in any manner, the Learned Judge in the decision in Appadurai & others v. Mallinatha Nainar (died) &others, (2001) T.N.L.J. 52, has held that the intention of the executor has been made specific by the recitals that with reserving the right of possession and right to receive income from the suit property during his life time, the executor has conveyed immediately in praesenti absolute right in favour of the plaintiffs, and he has no further power to deal with the property or to make any encumbrance including alienation, mortgage etc.
31. In the judgment reproted in Ananthachary v. Mohan Ram,(2001)2 M.L.J. 270, it is held s follows:-
"The main test is whether the disposition of the interest in the suit property is in praesenti infavour of the settlees or whether it takes effect on the death of the executant. If it is on the death of the executant, it would be a Will. If the interest of the property is divested and the interest invested in praesenti on the settlee, the document has to be treated as settlement. To find out the same, the substance of the document should be treated entirely, and it cannot be decided on the basis of the form of the nomenclature."
The same view has been taken in the decision in Muthuswami v. Palaniswami, (2001)3 M.L.J. 183.
32. From the above said decisions, we can formulate the following broad formula to be applied to find out the nature of the document:-
(1) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the phraselogy 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.
(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.
33. To appreciate the facts of the present case on the basis of the above said principle, it is better to quote from the document the following relevant portion, namely, Ex.A4, dated 25.2.1980:-
@1980;k; tUlk; gpg;uthp khjk; 25k; njjp ,Ugj;ije;jhk; njjp ehkf;fy; jhYf;fh g";ir gilahh; nky;Kfk; fpuhkk; Fg;gr;rpghisaj;jpypUf;Fk; tptrhak; rpd;dg;g ft[z;lh; itg;g[ kidtpa[k; ey;ypahk;ghisak; uhf;fpahf; ft[z;lh; kfSkhd ghg;ghap mk;khs; Mfpa cdf;F Fg;gr;rp ghisaj;jpypUf;Fk; $Ptdk; rpd;dg;g ft[z;lh; Fkhuh; rpd;dg;g ft[z;lh; Mfpa ehd; vd; kdg;g{h;tkha.; vGjp itj;j brl;oy;bkz;L gj;jpuk; ahbjdpy; eP vd;Dila itg;g[ kidtp Mf ntz;Lk;/ eP gppw;fhyj;jpy; Rfkha; ,Ue;Jtu xU Vw;ghL bra;J itf;f ntz;Lk; vd;W fUjpa[k; eP vd;Dila itg;g[[ kidtp vd;w th";irapdhYk; gphpaj;jpdhYk; vdf;F rh;tRje;jpukha; ghj;jpag;gl;l ,jdoapy; fz;l U:/32000 (U:gha; Kg;gj;jpuz;lhapuk; kjpg;g[s;s brhj;Jf;fis moapw;fz;l ruj;Jf;Fl;gLj;jpp ,ijg; gj;jpuj;jpd; K:yk; cdf;F brl;oy;bkz;L bra;Jitj;Jk; brhj;ija[k; ,d;nw cd;Dila RthjPdj;jpy; tpl;oUf;fpnw;d/ moaw;fz;l brhj;ij ehsJ njjpapy; cd; RthjPdj;jpy; tpl;oUg;gjhf vGjpapUe;jhYk; vd; $Ptdj;Jf;fhf moapw;fz;l brhj;ij vd; Ma[s; tiuapy; ehnd rh;f;fhh; jPh;itia brYj;jpf;bfhz;L ve;jtpjkhd tpy;y';fj;Jf;Fk; cl;gLj;jhky; mDgtpj;JtUntdhft[k;/ vd; fhyj;Jf;Fg;gpd; moapw;fz;l brhj;ij rh;tRje;jpukha[k; jhdhjptpdpahfptf;fpiua';fSf;F nahf;akha[k; Mz;L mDgtpj;Jf;bfhs;st[k;/ moapw; fz;l brhj;jpy; kw;w ahUf;Fk; ve;jtpjkhd ghj;jpaKk; fpilahJ/ ghj;jpak; bfhz;lhodhYk; mJ bry;yj;jf;fjy;ybtdWk; ,ejr; brl;oy;bkz;Lg;gj;jpuj;ij ehd; vf;fhuzj;ijf; bfhz;Lk; uj;J bra;fpwjpy;iy/ kPwp ehd; uj;J bra;jhYk; mJ bry;yj;jf;fjy;ybtd;Wk;. gl;lhita[k; ehsJ njjpapy; cd; ngUf;F khw;w kD bfhLj;Jk; vd; kdg;g{h;t rk;kjpapy; vGjp itj;j brl;oy;bkz;Lg;;gj;jpuk;.@ From the above said recitals, we can elucidate the following:-
1) The reason for executing the said document is -
"eP gpw;fhyj;jpy; Rfkha; ,Ue;J tu xU Vw;ghL bra;abntz;Lbkd;W fUjp ///////////@ which means the 1st defendant wanted to make an arrangement for her better life in future;
(2) It is stated that possession of the property has been given to the plaintiff.
(3) It is also stated that, though it is stated that, possession of the property was given to the settlee, she would enjoy the property till her life time by paying kist and without encumbering the same;
(4) After his life time, the plaintiff has to enjoy the property absolutely;
(5) No other person is entitled to claim the said property, and even if anybody claims right it cannot be sustained, and the 1st defendant declares that he won't cancel the settlement deed for any reason; even if it is cancelled, it cannot be sustained;
(6) He has given a petition to change the patta in the name of the plaintiff;
(7) The document was registered on 25.2.1980, on the date when the document was written.
(8) It is stated that the 1st defendant has no right to revoke the said document.
34. The Learned Counsel for the appellant has submitted that even according to the plaintiff, it is stated in para 7 of the plaint to the effect that -
@jhth brl;oy;bkz;l;-gof;F 1k; gpujpthjpapd; Ma[Sf;F gpwF jhth brhj;Jf;fs; thjpf;nf nru ntz;oaJ@ The Learned Counsel relied on the prayer in which the plaintiff has stated that -
@jhth brhj;J 1k; gpujpthjpapd; Ma[Sf;Fg; gpwF thjpf;nf ghj;jpag;gl;lJ vd;W declare bra;Jk;@ In support of his submission that the 1st defendant was in possession durig his lifetime, the Learned Counsel relied on the evidence of the plaintiff who had deposed to the effect that -
@brl;oy;bkz;l; gj;jpug;go jhth brhj;J vd; fztUf;Fk; vdf;Fk; ghj;jpag;gl;lJ vd;Wk; brl;oy;bkz;l;go vdf;F !;thjPdk; tplntz;Lk; vd;Wk; nfhhp cs;sJ/@ Even in the cross-examination, she has stated that -
@mjpy; brhj;J vd;dplk; !;thjPdk; bfhLj;jjhf vGjtpy;iy/ jd; Ma[s; tiu jhd; mDgtpj;jjhft[k;. jd;Dila Ma[Sf;Fg; gpd; vdf;Fg; ghj;jpak; vd;Wk; gj;juj;jpy; vGjg;gl;lJ@.
Even P.W.2 admits that the 1st defendant has been in possession of the property during her life time.
35. I am not able to accept the submission made by the learned Senior Counsel appearing for the appellant. It is not the case of the 1st defendant that Ex.A4 is not a settlement, but it is a will. This is clearly established from the recitals made in Ex.A9, the cancellation deed. The 1st defendant had admitted in the said document that Ex.A4 settlement deed was obtained by fraud, and he has executed only a settlement deed with full intention to give the property to the plaintiff. He has come forward with the different plea in the written statement stating that Ex.A4 is a will and not a settlement. D.W.1, the appellant had specifically stated that the settlement deed Ex.A4 was executed by the 1st defendant when the plaintiff and 1st defendant were living together. She had specifically stated - @thjp nghpy; gphpakhf ,Ue;jnghJ vGjp itj;jhh;@. She has not deposed that Ex.A4 settlement deed was obtained by misrepresentation or fraud as mentioned in the cancellation deed Ex.A9. There is no other evidence available to support the recitals contained in Ex.A9.
36. So, the 1st defendant himself understood that Ex.A4 is a settlement deed. Moreover, in the absence of any plea and evidence that Ex.A4 was obtained by fraud, we have to decide the case only on the basis of the recitals in the said document and also on the basis of the principles set out in the judgments cited supra.
37. It is not in dispute that the plaintiff was living with the 1st defendant. The intention to execute the said document is to make a safeguard to the plaintiff for her future living. The recitals as extracted above in the said document would clearly establish that the intention of the 1st defendant is to give the suit property absolutely to the plaintiff, though the enjoyment was postponed till the lifetime of the 1st defendant. As held by the Division Bench in the decision in 1979-2-M.L.J. 88, and in the decision in (supra), the postponement of disposition till the lifetime of the 1st defendant cannot make Ex.A4 as a will, but an overall reading of the recitals therein would clearly establish that the said document has to be construed only as a settlement and not a will. There is self-imposed restriction on the 1st defendant from encumbering the property during his lifetime. He himself came forward to change the patta in the name of the plaintiff. If the plaintiff is not the owner of the suit property, the question of changing the patta in her name will not arise. There is a restriction on the legal heirs of the 1st defendant from claiming right in the suit property. The Courts below have found that the 1st defendant knew the difference between the will and the settlement deed. This finding was given on the basis of Ex.A7 which was executed on the same date when the settlement deed Ex.A4 was executed. Ex.A7 is a will executed by the 1st defendant in favour of the plaintiff with respect to some other property. As rightly found by the Courts below if the 1st defendant wanted to execute a document in the nature of a will, there is no necessity to execute Ex.A4 and Ex.A7 separately. The above said fact clearly establishes that the 1st defendant wanted to give the suit property absolutely under Ex.A4 to the plaintiff. The Courts below also relied on Ex.A8, the plaint filed in O.S.No.909/1980 filed by the 1st defendant against the plaintiff. In the said plaint, he has clearly stated that the said document Ex.A4cannot be construed as a will. Hence Ex.A4 has to be construed only as a settlement deed and so the 1st defendant has no right to cancel the same.
38. In view of the above discussion, the Courts below are correct in holding that the said document is a settlement deed and not a testamentary. Accordingly, this Second Appeal is dismissed. No costs.