Kerala High Court
Nikhil @ Kannan vs Sarojini on 9 July, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936
RSA.No. 1062 of 2013 ()
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AS 265/2010 of ADDL. DISTRICT COURT (SPL. COURT), KOTTAYAM
IN OS 623/2008 of PRL.SUB COURT,KOTTAYAM
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SECOND APPELLANT/APPELLANT/PLAINTIFF:
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NIKHIL @ KANNAN, AGED 24 YEARS,
S/O.LATE SANTHOSH, EDAMANAPPATTU HOUSE,
PADINJATTUMBHAGOM KARA, PEROO VILLAGE,
ATHIRAMPUZHA P.O., KOTTAYAM
REPRESENTED BY POWER OF ATTORNEY MRS.SHEEBA SANTHOSH,
W/O.LATE SANTHOSH, EDAMANAPPATTU HOUSE,
PADINJATTUMBHAGOM KARA, PEROOR VILLAGE,
ATHIRAMPUZHA P.O., KOTTAYAM.
BY SRI. S. SREEKUMAR SENIOR ADVOCATE
ADVS. SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENT/RESPONDENT/DEFENDANT :
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SAROJINI, AGED 75 YEARS
W/O.LATE PRABHAKARAN, VILLOOTHARA HOUSE, WARD NO.16,
PANAYAKAZHIPPU ROAD, MATTAMBALAM VILLAGE,
NEAR NAGAMBADOM OVER BRIDGE, KOTTAYAM, PIN 686001.
BY ADV. SRI.C.S.MANU
SRI.S.K.PREMRAJ
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 09/06/2014 , THE COURT ON 09-07-2014 DELIVERED THE
FOLLOWING:
BP
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - -
R.S.A. No. 1062 of 2013
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Dated this the 9th day of July, 2014.
JUDGMENT
The fate of this appeal should depend upon the construction of the terms of Ext.A1 document. If it is to be interpreted as a Will, then the appellant should lose. On the other hand, if it is construed as a settlement conferring rights in praesenti, he has to be given a decree. Both the courts below construed Ext.A1 document as a Will and non-suited the plaintiff.
2. Shorn off unnecessary details, the paternal grandmother of the plaintiff executed Ext.A1 settlement deed dated 5.11.2003 in his favour in respect of 38.999 cents of land with a building therein. By Ext.A6 cancellation deed dated 5.5.2008 the settelor under Ext.A1 cancelled Ext.A1 document treating it as a Will. The challenge against the said cancellation deed was that Ext.A1 is a settlement deed which RSA.1062/2013.
2created rights in praesenti and that conferred vested right in the plaintiff which cannot be taken away at a latter stage by executing a cancellation deed. On the basis of those allegations, the suit was laid for cancellation of Ext.A6 and for other reliefs.
3. The defendant resisted the suit by pointing out that Ext.A1 was intended to be only a Will and the settleor under that document is entitled to vary the document at her wish. It is clear on a reading of Ext.A1, according to the defendant, that the rights in favour of the plaintiff are to come into existence only on the death of the defendant and he gets no existing rights in respect of the property. Possession continued with the defendant and no rights whatsoever were exercised nor was the property enjoyed by the plaintiff. Contending so, she prayed for a dismissal of the suit.
4. On the basis of the above pleadings, issues were raised and parties went to trial. Exts.A1 to A6 were marked RSA.1062/2013.
3from the side of the plaintiff. No evidence was adduced on the side of the defendant.
5. As already stated, both the courts below on construction of the terms of Ext.A1 document came to the conclusion that it is only a Will and therefore the suit has to be dismissed and did so.
6. At the time of admission of the Second Appeal, the following questions of law were formulated:
"(i) Whether the courts below went wrong in interpreting the terms of Ext.A1 as a Will?
(ii) Is there not a divestiture of title in favour of the donee (the appellant) as per Ext.A1?"
7. The sole question that arises for consideration is regarding the nature and character of Ext.A1 document. Shri.S.Sreekumar, learned Senior Counsel appearing for the appellant contended that both the courts below have misunderstood the terms of the document and misconstrued the deed and the findings are erroneous both on facts and in RSA.1062/2013.
4law. On a reading of Ext.A1 as a whole, it is quite evident, according to the learned counsel, that vested rights are created in praesenti though the enjoyment is postponed to a future date. It is not as if a right in favour of the grantee under Ext.A1 document is to take effect on a future date. He gets rights in praesenti, though the settlor reserves certain rights in herself to be exercised during her lifetime. It is true, according to the learned Senior Counsel, that absolute right in respect of the property is to vest with the plaintiff only on the death of the settlor. But that by itself is not a ground to come to the conclusion that the document is a Will. The distinction lies in properly construing the document and reaching a conclusion whether the rights created is vested right or contingent right.
8. Learned Senior Counsel pointed out that he had no quarrel with the proposition that in ascertaining the rights under the document, the document has to be read as a whole RSA.1062/2013.
5and the intention of the parties had to be gathered from the same. Neither the nomenclature nor the sentences taken out of context is relevant to characterize a document to fall within a particular category. According to the learned counsel, when the document is read as a whole, it can be seen that the settlor divested herself with certain rights and interest in the immovable property and that vested in the grantee. It is clear from the document that vested rights are created in favour of the grantee, and the mere fact that he is to enjoy the property and exercise absolute rights over the property only after the death of the grantor cannot divest the grantee of the vested rights that have accrued to him as per the document. In support of his contention, he relied on the decision reported in Namburi Basava Subrahmanyam v. Alapati Hymavathi (1996 KHC 1200) and P.K.Mohan Ram v. B.N. Ananthachary ((2010) 4 SCC 164).
RSA.1062/2013.
6
9. According to the learned Senior Counsel, the facts of the present case compare very well with the decision in Namburi Basava Subrahmanyam v. Alapati Hymavathi (1996 KHC 1200) and there is no reason as to why the principle laid down in the said decision should not be followed. It is also pointed out that similar principle is laid down in the decision reported in P.K.Mohan Ram v. B.N. Ananthachary ((2010) 4 SCC 164) also. The courts below have not understood the distinction between a vested right and an independent contingent right and merely because it is stated in the document that absolute rights are to accrue only after the death of the grantor, the courts below have jumped to the conclusion that it is a Will.
10. According to the learned counsel, it is evident from a reading of Ext.A1 that it creates vested rights and if that be so Ext.A6 cancellation deed has no legal sanction. It is RSA.1062/2013.
7therefore contended that a decree may be granted in favour of the plaintiff.
11. Learned counsel appearing for the respondents on the other hand contended that both the courts below have considered the recital in Ext.A1 in considerable detail, analysed the significance of each of the sentences and have come to the conclusion that on a fair reading of the document, it can only be treated as a Will. Emphasis is laid on the fact that even the appellant cannot dispute that absolute rights in respect of the property is to vest with the grantee only on the death of the grantor and that is sufficient to show that the document is a Will. It is significant to notice, according to the learned counsel, that the possession and enjoyment is to be retained by the grantor even though certain vestige of rights are given to the plaintiff as per Ext.A1 document. The substantive interests and rights over the immovable property are to accrue to the grantee only on the death of the grantor RSA.1062/2013.
8and if that be so, the settlor is competent to effect the cancellation of Ext.A1. A reading of the evidence of P.W.1 will show, according to the learned counsel, that he has no idea of what has happened and that is sufficient to show that he had exercised no manner of right over the property and therefore the finding of the courts below are perfectly justified. In support of his contention that the document can be construed only as a Will, learned counsel placed considerable reliance on the decision reported in Kokilambal v. N. Raman (AIR 2005 SC 2468). Finally it was contended that both the courts below have concurrently found that the document is only a Will and being a question of fact unless it is shown that the findings are perverse, arbitrary or contrary to the evidence on record, interference under Section 100 of the Code of Civil Procedure may not be justified.
12. As conceded by both the counsel, the principle regarding the interpretation of a document are well settled. RSA.1062/2013.
9This court need not labour to elaborate those aspects for, that exercise has already been undertaken by the lower appellate court. The propositions relied on by the lower appellate court are in tune with the well settled principles of law. It is unnecessary to narrate those decisions and enter on a discussion as to how to construe a document.
13. The dispute lies as to whether Ext.A1 creates a vested right or only a contingent right. It will be useful to refer to the terms of the document itself namely, Ext.A1. The relevant recital reads as follows:
"dIXq^U UXqaU55Z .fa IldDHa" .fK &dVO_:na <`U_:na UxaKUHaN^O 5HX .Ka U_{_AaK H_6_\_gH^?m .H_AaU dIgDc5N^O &dV_DU^DmX\c" dID_K\N^A_Oa"
5HX .Ka U_{_AaK H_6_\_fa 5]_:n_\_HaN^O_ D^f] IyOaK UcUXmE5ZAm )ZfMGm ( 5^xC" Nb\"
GHH_Vm:ON^O_ DK_x_AaKa.eIG_5UXqaU55Z 'KaNaDW .gK^f?^Jm 5HX .Ka U_{_AaK H_6_W h5UV" U:na H?Ka" UXqaU55ZAaU XVA^VH_5aD_5Z 5HX .Ka U_{_AaK H_6_\_fa gIx_W 5bG_D`VJa" %dI5^x"
gIxaN^y_ IGO" I_?_:na" .fa I_\'A^\"
RSA.1062/2013.
10
d5OU_d5OXVUnXb^DLcN^O_ %HaMU_:na
f5^gUID^5aKa.eIG_5UXqaU_W 'KaU X5\
gN\^F^OB{a" 5^\"Ufx .?aAaKD_Ha" .?aM_AaKD_Ha"
'KaU f5G_?J_W H_gK^f?^Jm OgEWm?"
D^NX_AaKD_Ha" fIxaN^yaKD_Ha" .H_Aa 5^\"Ufx
%U5^VUa" %G_5^xUa" )I^O_x_AaKDa" .fa I_\mA^\"
?_ %G_5^x^U5^VBZ H_K_W DfK \O_AaKDa"
&5aKa.e5b?^fD ?_ UXqaU55Z .fa 5^\Jm 5HX U_Fc^Mc^X &UVcBZgA^ ?_ XmE\Jm fI^DagN6\^XmE^IHBZ, f5G_?BZ IC_OaU^X &UVcfM?a5gO^ f:OnaKD^O_xaK^W 5HX .K H_6_W &UVcfM?aK If" .H_AaU %U5^V" gNWMyE 5^xcBZAm >^X 2M_Ga x<_Xmxy^A_ DKaf5^U^UaKDa"
&5aKa.eIG_5UXqaU55{_W XmE^I_:nm .fLC_\a"
5xCBZ f:gOnI &UVc" gHx_G^W .fa 5^\gJ^{"
>^Ha" H`Oa" 5b?_g:VKa gUIDa" %\o^fD f:OnaK 5^xCBZ XbO" %X^GaUa" IG_5UXqaU55{_W XmE^I_AaKD\o^JDa" &5aKa."
Ext.A6 is the cancellation deed. That characterizes Ext.A1 as a Will. There can be no manner of doubt that if Ext.A1 is to be construed as a Will, the settlor under Ext.A1 certainly retains rights to vary the same.
RSA.1062/2013.
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14. From the portion extracted above as contained in Ext.A1, the salient features as could be discerned are;
i) Certain benefits are granted by Sarojini to her grandson Nikhil who is dependent on her.
ii) the document was effected out of love and affection for her grandson.
iii) property belonging to Sarojini was settled in favour of Nikhil.
iv) From the date of execution of Ext.A1, the grantee is to exercise all the rights along with the settlor. He is to enjoy joint possession and tax and revenue are to be paid in his name and mutation is to be effected in his name.
v) The settlor retains the power to keep possession and take income from the property till her lifetime.
vi) It is also discernible from the document that the settlor is entitled to reside in the house in the property along with the grantee.
vii) during the lifetime of the donor if the grantee wants to sell or encumber the property, it has to be done jointly with the settlor.
viii) It is significant to notice that if during the life time of the donor, the donee wants to raise money for RSA.1062/2013.
12
his educational purpose or wants to put up a structure, the donor is bound to execute the necessary documents as demanded by the donee.
15. On a construction of Ext.A1 document, one is left in no doubt that from the date of execution of the document , donee gets rights in the properties. At any rate, he becomes the joint owner with the donor. Tax is to be paid in his name and mutation has to be effected. It is true that absolute rights over the property accrue to the donee only on the death of the donor. The right to reside and right to take usufructus are reserved in favour of the donor. But it is significant to notice that the donor does not reserve the right of alienation or to encumber the property subsequent to the execution of Ext.A1 document. It is true that the document mentions that if any sale is to be effected, it has to be done jointly. But then the clause that if the donee wants to raise funds for educational purpose or to construct building in the property, the donor is bound to execute such documents RSA.1062/2013.
13as demanded by the donee is equally significant.
16. It is therefore evident that the single ownership is converted into joint ownership and the right of alienation which was exclusively available to the donor is no longer available to her. Encumbering the property, sale of the property etc. can be done only jointly.
17. The question is can it be said that no rights have accrued in favour of the donee on the execution of Ext.A1 document.
18. A document has to be read as a whole to gather the intention of the parties. If the terms are clear and unambiguous, the terms of the document should be given effect to. The exercise should not be to probe into the intention of the writer or author as to what he had in his mind, but to ascertain what a reasonable man would conclude by reading the document. The words are to be given ordinary plain meaning taking note of the circumstances and also if RSA.1062/2013.
14necessary the conduct of the parties also.
19. In the decision reported in Moideenkutty Haji v. Muhammedali (1987(2) K.L.T. 994) wherein it was held as follows:
"The intention of the parties has necessarily to be gathered primarily or in the first instance from the language used by them in the agreement, the substance of it, as opposed to the form. That is the first and manifest expression of their intent and what they intended to achieve under the transaction. It is a general principle that the intention which the framer of a document had in his mind when he brings it into existence is not the material factor, but what is incorporated in the document. The question is not what the writer of the document intended or meant (in his mind), but what a reasonable man reading the document as a whole would understand it to mean. The intention has thus to be gathered from the language of the document, explained if necessary by the circumstance and the conduct of the parties."
20. In the decision reported in Narayani Amma v. Narayanan Namboodiri (1985 K.L.J. 49), it was held as follows:
RSA.1062/2013.15
"It is well-settled principle of interpretation, that in interpreting a deed, the question is not what the parties to the deed may have intended to do by entering into that deed, but what is the meaning of the words used in the deed. It does not matter what the parties, in their inmost states of mind, thought, the terms meant. They may have meant different things but still the terms of the language used in the deed should bind them. It is for the court to interpret such terms or language used in the deed."
21. In the decision reported in Hathika v. Padmanabhan (1994(1) K.L.T. 345), it was held as follows:
"The intention of parties has to be gathered from the terms of the document when they are express and clear. Whatever be the consequence and whatever be the harship caused to one of the parties the legal effect of those words cannot be ignored. The question is not what the parties had intended or meant but what is the legal effect of the words used by them in the deed. The court can look into the surrounding circumstances to ascertain the intention of the parties only in case of ambiguity in the language used. Oral evidence may RSA.1062/2013.16
guide the court unravelling the true of the parties in such a case and tendering of extrinsic evidence as to acts, conduct and surrounding circumstances is permissible to enable the court to ascertain the real intention of the parties. In short, the court is concerned with the substance of the document the recitals therein and not the form and the recitals are to be construed to ascertain the real intention of the parties in the light of such recitals and other available facts and circumstances."
It is also well settled that nomenclature of the deed is not decisive or conclusive. Relationship between the parties, the circumstance under which the document was executed, the reason for execution of the deed, the conduct thereafter etc. are relevant considerations.
22. According to the learned counsel for the appellant, this is a case where Section 19 of the Transfer of Property Act comes into play and it is not a case covered by Section 21 of the Transfer of Property Act. Those provisions read as follows:
RSA.1062/2013.17
"19. 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 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 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."
"21. Contingent interest.- Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a RSA.1062/2013.18
contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible."
In case of vested right being created, the transfer is complete on execution of a document. But in case of a contingent right, transfer depends upon a condition which to occur.
23. Mulla on Transfer of Property Act - 11th Edition at page 156 under the caption 'Vested Interest' it is observed as follows:
"The distinction between a vested and a contingent interest may seem simple, but in practice, it is not always easy to distinguish the one from the other. The difficulty arises from the fact that a vested interest is not necessarily in possession. An interest may be vested and not yet in possession in any one of the three cases referred to in the explanation, ie, (1) by a provision postponing enjoyment; or (2) by the intervention of a prior interest; or (3) by a provision for accumulation. Again, an interest may be vested although, it is liable to be divested by a condition subsequent. The difference RSA.1062/2013.19
between a condition precedent and a condition subsequent is that when the condition is precedent, the estate is not in the grantee until the condition is performed, but when the condition is subsequent the estate vests immediately in the grantee, and remains in him till the condition is broken. Conditions subsequent are dealt with in ss 28 and 31."
24. In Halsbury's Laws of India - Vol.12 at page 90 under Note 240.118, it is observed as follows:
"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 condition postponing enjoyment does not prevent the interest vesting immediately, but may in certain cases be itself void for repugnancy after the transferee has attained majority. No particular form or words are necessary to effect vesting."
25. Sanjiva Row in his book on Transfer of Property Act- 6th Edition, at page 294, it is mentioned as follows:
RSA.1062/2013.20
"General.- (a) Vested and contingent interests.- On a transfer of property, two sorts of interest may be created-
(1) vested, and (2) contingent.
Vested interests are defined in this section, while contingent interests are defined in Section 21. It is important to notice the distinction between these two kinds of interests.
A transfer of property may create an interest in favour of a person.-
(a) forthwith, or
(b) without specifying the time when it is to take effect, or ) on the happening of an event which must happen, or
(d) to take effect on -
(i) the happening of a specified uncertain event, or
(ii) if a specified uncertain even shall not happen. According to this section, the interest described in divisions (a), (b) and ) is a vested interest, while according to Section 21, that described in divisions (i) and (ii) is contingent.
RSA.1062/2013.
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Again, on a transfer of property, an interest may be created-
(a) forthwith, or
(b) in future.
In case (a), the interest is a present interest, and therefore a vested interest. Future interest may be placed in two categories, namely-
(1) vested interests, and (2) contingent interests."
At page 295, it is mentioned as follows:
"The meaning of the expression 'without specifying the time when it is to take effect' is not clear. If the time, when the transfer is to take effect, is not specified, the intention of the transferor may be-
(a) that the transfer should take effect forthwith, or
(b) that it should take effect at some future time, whether -
(i) absolute or defined, that is, fixed; or
(ii) conditioned on the happening of a specified event, which is certain to happen.
RSA.1062/2013.
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But the intention not having been expressed by the transferor, it will have to be gathered from all the facts and circumstances of the case."
26. In Transfer of Property Act AIR Commentaries by Manohar and Chitaley - Vol.1 at page 458, it is observed as follows:
"This section deals with the question under what circumstances a person obtains a vested interest or immediate right on a transfer of property. It provides that unless a contrary intention appears from the terms of the transfer, a person gets a vested interest when it is created in his favour (1) without specifying the time when it is to take effect, or (2) in terms specifying that it is to take effect forthwith, or (3) in terms specifying that it is to take effect on the happening of a event which must happen.
It will be noticed that the test to find out whether an interest is vested or otherwise, is the intention of the person creating the interest. Such intention must, RSA.1062/2013.
23
however, be gathered from the language employed by the grantor in the grant, giving the plaint and natural meaning to the words employed by him. The document must be construed as a whole, giving attention to every provision therein. In cases of doubt, the rule is to so construe the document, if possible, as to lead to vesting.
"It has long been an established rule for the guidance of the Courts of Wetminster," said Lord Chief Justice Best in Duffield v. Duffield.
"In construing devices, that all estates are to be holden to be vested, except estates in the device of which a condition precedent to the vesting is so clearly expressed that the Courts cannot treat them as vested, without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstance occasioning that doubt, and what seems to make a condition is holden to have only the effect of postponing the right of possession."
At page 463, it is observed as follows:
"It has been seen in Note 4 that an interest may be vested though the enjoyment thereof is postponed. And the explanation makes it clear that from the mere provision for postponement of the enjoyment, it should RSA.1062/2013.24
not be inferred that the interest is not vested. In other words, the mere fact that a transferee is not entitled to immediate enjoyment does not necessarily make the interest a contingent one. Thus, where a gift was made to A with a direction postponing the enjoyment of it, it was held that the direction did not postpone the vesting."
27. In Words and Phrases - Permanent Edition - Vol. 44 at page 279, it is mentioned as follows:
"Whether an interest is "vested" or "contingent" is not to be tested by certainty of obtaining actual enjoyment or by defeasibility of the right of possession, but there is a vested estate if there is a present right to a future possession, though such right may be defeated by some future event, contingent or certain."
28. In Law of Property by G.C. Venkata Subbarao - 2nd Edition at page 130, it is observed as follows:
"Vested Remainder is Heritable.- Vested remainders and reversions are treated as future interests only for the reason that they do not carry immediate possession of the property. They are for all practical purposes present proprietary interests. As such they are heritable. Even if the person entitled to the vested RSA.1062/2013.25
remainder dies before the determination of the particular estate, his interest does not lapse but is transmitted to his heir. Of course, if the remainderman's estate is a life-estate this rule can have no application. Where, he has an estate of inheritance, notwithstanding his death, before the estate falls in possession, his representative in interest can claim possession as soon as it becomes vacant by the expiration of the precedent interests. In this respect the vested estate resembles the reversion which is also a heritable or transmissible interest in property."
29. In Law of Property by Strahan - 4th Edition at page 152, it is observed as follows:
"Remainders are either vested or contingent. A vested remainder is a remainder of the more ancient kind, that is, one of the owner which is living and ascertained, and which is an actual estate in the land, complete in interest though deferred to the precedent estate in enjoyment. Being complete, it is ready, and must continue ready, from its commencement as a vested remainder till its expiration in natural course, to come into possession immediately on the determination of the preceding interest, the existence of which is the RSA.1062/2013.26
only thing which prevents it being complete not merely in interest, but also in enjoyment. It is true it may fail, or, rather, determine before the period arrives, when it would vest in possession, but such determination must arise from its own natural expiration, not from any outside event or contingency. Thus, take a limitation to A. for life and then to B. for life-B. being a living person. If B. predeceases A., his life estate will never become an interest in possession; but as long as B. lives, his estate is ready to come into possession the moment A.'s life estate determines."
30. In Halsbury's Laws of India - Vol.8 at page 55 Note 300.066, it is observed as follows:
"When the interest created is a present right with present enjoyment to take effect soon after the death of a testator or is a present interest with future enjoyment delayed by an intervening life interest or by a condition that a certain event, which is bound to happen, must take place, it is called a vested bequest. A present indefeasible interest to future possession is a vested right."
31. In Halsbury's Laws of England - Vol. 35 at page 625 under Note 1019, it is observed as follows:
RSA.1062/2013.27
"Vesting. An estate or interest is or becomes vested when:
(1) the person or persons, corporation or body to whom or to which it is limited is or are ascertained and in existence and capable of being an alienee, (2) the quantum of the estate and interest is ascertained; and (3) all other events have happened to enable the estate or interest to come into possession at once.
Subject to the determination at any time of the prior estates and interests."
32. The principle that can be carved out from the above literature is that a vested remainder is one which is ready from its commencement to its end, to take effect as soon as a particular estate shall determine. Vested remainder is similar to a reversion, the only difference being that one operates as a result of a grant and the other by the force of law. In the case of vested interest, the distribution is predetermined while in contingent interest, it may or may not. A contingent remainder is one which is not ready from its RSA.1062/2013.
28commencement to its end and it is to take effect as soon as particular estate is terminated.
33. As far as vested interest is concerned,
i) Its destination is determined.
ii) Present interest is created.
iii) The event by which absolute estate is to take effect is certain to happen.
34. It will be now useful to refer to the various decisions relied on by the counsel on both sides in support of their respective contentions.
35. In the decision reported in Namburi Basava Subrahmanyam v. Alapati Hymavathi (1996 KHC 1200) the facts are as follows:
"3. The only question is the interpretation of the deed Ext.B1. It is true, as rightly contended by Smt. K. Amareshwari, learned Snior counsel for the respondents, that the nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgment thereof RSA.1062/2013.29
by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole. The settlement deed reads as under:
"I am 78 years old by now. Since I have suffering from Nanju disease and breathlessness and Asthama and I feel that it would be difficult for me to live long. 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 Damnarla Anajaiah and Vejella Veeraiah and other which is my self acquired property, and the land developed 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.
RSA.1062/2013.30
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 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 you and made you to believe that the schedule mentioned properties have not been alienated and have 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."
On interpretation of the terms of the document, the court came to the conclusion which reads 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 RSA.1062/2013.31
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 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 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. A reading of the documents together with the Schedule would give an indication that she had created right and interest in prasenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having divested self thereunder, right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter, Hymavathy. The Trial Court and the learned Single Judge rightly negatived the claim. The Division Bench was not, RSA.1062/2013.32
therefore, correct in law in interfering with the decree of the Trial Court."
36. In the decision reported in Usha Subbaraio v. B.N.Vishveswaraiah ((1996) 5 SCC 201), the terms of the document read as follows:
"During my lifetime I will be in charge and management of my properties. After my life-time, if my wife Nadiga Nanjamma should survive me, she the said Nadiga Nanjamma shall be in charge and management of all my properties given in Schedules A, B, C and D together with their accretions and together with my properties acquired by me in future. My wife, the above mentioned Nadiga Nanjamma will have no power to dispose of any of these properties mentioned in Schedules A, B, C and D by sale, gift, will, mortgage or hypothecation. She the said Nadiga Nanjamma is entitled to take the produce of the lands mentioned in A Schedule and use the same for the maintenance of herself and her children. She the said Nadiga Nanjamma is also entitled to use the interest dividends and incomes of the properties mentioned in B and D Schedules for the same purpose."
RSA.1062/2013.
33At paras 8 to 13 and 21, it was observed as follows:
"8. For the purpose of determining the date of vesting of the interest in the bequest it is necessary to bear in mind the distinction between a vested interest and a contingent interest. An interest is said to be vested interest when there is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition which may or may not happen. On the happening of the event or condition a contingent interest becomes a vested interest. The Transfer of Property Act, 1882 as well as the Indian Succession Act, 1925 recognise this distinction between a vested interest and contingent interest. Vested interest has been thus defined in Section 19 of the Transfer of Property Act, 1882:-
"Section 19. 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.
RSA.1062/2013.34
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 from a provision whereby the enjoyment thereof is postponed, or whereby 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".
9. Contingent interest is defined in Section 21 of the T.P. Act in the following terms :-
"Section 21. Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible. Exception - Where, under a transfer of property, a person become entitled to an interest therein upon RSA.1062/2013.35
attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent".
10. In the Indian Succession Act provision with regard to date of vesting of a legacy when payment or possession is postponed is contained in Section 119 which provides as follows :-
"Section 119. Date of vesting of legacy when payment or possession postponed - Whereby the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest.
Explanation : An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some RSA.1062/2013.36
other person, or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that, if a particular event shall happen, the legacy shall go over to another person".
11. Section 120 of the Indian Succession Act makes the following provision for date of vesting when legacy is contingent upon specified uncertain event :-
"Section 120. Date of vesting when legacy contingent upon specified uncertain event. - (1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens. (2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.
Exception. Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent. RSA.1062/2013.
37
12. By virtue of Section 119, in a case where bequest is a of vested interest and by the terms of the bequest the legatee is not entitled to immediate possession of the thing bequeathed, the right to receive it at the proper time becomes vested in the legatee on testator's death and in the event of the death of the legatee without having received the legacy the said right to receive it passes to the legal representatives of the legatee. This is, however, subject to a contrary intention being expressed in the Will. But in the case of a contingent bequest, Section 120 prescribes that the legacy vests in the legatee only after the happening or not happening of the contingency which means that in the event of the legatee dying prior to happening of that contingency no interest passes to his legal representatives. Although the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the Court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear. (See :
Rajes Kanta Roy v. Santi Devi, 1957 SCR 77, at p.90 : (AIR RSA.1062/2013.38
1957 SC 255 at p. 261)]. As regards Wills the rule is that "where there is doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift and, accordingly, it vests at the testator's death or at the earliest moment after that date which is possible in the context". [See : Halsbury's Laws of England, 4th Edn., Vol.50, para 589 at p. 395].
13. In order to determine whether the appellant can claim any right in the properties of the testator, it is, therefore, necessary to examine the nature of the bequest that was made by the testator in favour of his five sons including the deceased husband of the appellant. If it is found that the bequest is in the nature of vested interest, it would vest in the husband of the appellant on the death of the testator and after the death of her husband the appellant, as his legal representative, would be entitled to claim her husband's interest in the properties. But in case the bequest is found to be in the nature of a contingent interest which was to vest in the legatees only after the death of Smt. Nadiga Nanjamma, the appellant would not be entitled to claim any interest in the properties since her husband had pre-deceased Smt. Nadiga Nanjamma.
......... ............
RSA.1062/2013.
39
21. The High Court has construed the expression "my surviving children" to mean the children of the testator who survive Smt. Nadiga Nanjamma and has held that after the death of Smt. Nanjamma only the children surviving Smt. Nanjamma could claim partition in respect of the premises mentioned in Schedules 'A', 'B' and 'D'." Finally the conclusion reached is as follows:
"23. We are unable to read the Will as indicating a contrary intention to make a departure from the rule regarding vesting of the legacy as contained in Section 119 of the Act. In our opinion, the Will cannot be construed as creating a contingent interest in the sons of the testator so as to postpone the date of vesting of the legacy till after the death of Smt. Nadiga Nanjamma. On a proper construction the Will must be construed as containing a bequeath of a vested interest in favour of the sons surviving the testator which means that the legacy vested in the legatees, including the husband of the appellant, at the time of testator's death and after the death of her husband, the appellant is entitled to claim the one-fifth share of her husband in properties mentioned in Schedules "A", "B" and "D" in addition to properties mentioned in Schedule "C" viz. the theft RSA.1062/2013.40
deposits standing in the name of the appellant's husband in the Bank of Mysore Ltd."
37. In the decision reported in P.K.Mohan Ram v. B.N.Ananthachary ((2010) 4 SCC 161) the facts are as follows:
"12. For deciding the question raised in this appeal, it will be useful to notice the contents of Ex. A-2. The English translation of the document produced by Shri M.S. Ganesh, learned senior counsel for the respondents, which was accepted by learned senior counsel appearing for the appellant as correct, reads thus :"Document No.753/1969
Settlement Deed of land and house property of the value of Rs. 20,000/-
....... .......... ..........
The settlement deed executed by me in respect of the land and house etc, in favour of these 16 persons is as follows:I did not beget any male or female issue. My wife Ponnammal died about 3 years ago. In accordance with the terms of the partition deed dated 29.1.1937, bearing Ramanthapuram R.O.I 162.43 to 48. 701/1937 between my brothers Balu K. Ramaswamy Iyer and Balu K. Nannaiyer and me, I got as my share the undermentioned land and house etc. valued at Rs. 20,000/-. Since then I RSA.1062/2013.41
have been in uninterrupted possession and enjoyment of the same on payment of municipal taxes and so on. You 16 persons being my relatives and considering your welfare and mine and out of my love and affection for you,I settle this property on you 16 persons by executing this settlement deed. From this day onwards I and you shall enjoy the under-mentioned land and house etc., without creating any encumbrance or making any alienation whatsoever. During my lifetime I shall collect the rental income from the under-mentioned land and house etc. and after paying the municipal taxes, with the remaining income I shall spend my life as I wish till the end of my days. After my death, you 16 persons shall become eligible and have absolute right to sell the under-mentioned land and house at the prevalent market price. Out of the sale proceeds thus received, you should create a religious trust by paying Rs. 4,000/- to the Devasthanam of Sri Prasanna Venkatesa Perumal in the office of the Saurashtra Sabha at Madurai for the purpose of taking out annual procession of Perumal in the sacred streets on Amavasai day in the month of Margazhi. The honors at the temple should be bestowed upon persons 1 and 2 among you and after them upon their heirs.
Further, from the sale proceeds, you should purchase an RSA.1062/2013.
42
immoveable property for Rs. 4,000/- in the name of Balu G. Perumal Iyer Feeding Charities and you 16 persons as trustees should provide for feeding of my relations on the day of the procession of the deity (Perumal). Should there be any delay in purchasing the immovable property, you 16 persons would be fully entitled to advance money on interest or by mortgage to generate income for the feeding. Upon my death, whoever among 1 and 2 of you is present shall perform my last rites and all you 16 persons shall together spend upto Rs. 2,000/- from your personal funds for that purpose. During my lifetime, I myself shall redeem the mortgage of the under-mentioned land and house which I had mortgaged to Ramaseshan and Co. of Madurai by a mortgage deed dated 24.3.1969 for a sum of Rs. 1500/-. In the event I die before redeeming the mortgage, you 16 persons shall discharge that debt. As mentioned above, after deducting Rs. 8,000/- from the sale price, the balance amount should be divided into seventeen shares. 1 and 2 among you shall take three shares, 3 to 16 among you shall take one share each. 1 and 2 among you shall divide the three shares equally between you. If anyone of you 16 persons dies before the sale of the property, the remaining persons excluding the deceased shall have the absolute RSA.1062/2013.
43
right to sell the property. I shall have no right whatsoever to cancel this settlement deed for any reason whatsoever or to alter these terms. I execute this settlement deed of my own free will."
Finally, the conclusion drawn is as follows :
"27. After noticing the contents of the documents, the Division Bench referred to Vynior's case and observed :
"As to the true character of the instrument propounded by the appellant we think there can be no reasonable doubt that it is a Will. A Will is defined in section 3 of the Indian Succession Act as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Section 49 then provides that a Will is liable to be revoked or altered by the maker of it, at any time when he is competent to dispose of his property by Will. If, therefore, an instrument is on the face of it of 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. "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 RSA.1062/2013.44
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 life. [Musterman v. Maberley, and in Bonis v. Morgan]. Indeed, the Court has sometimes admitted evidence, when the language of the paper is insufficient, with a view to ascertain whether it was the intention of the testator that the disposition should be dependent on his death. [Robertson v. Smith]. Tested in the light of these principles, there can be no doubt that the instrument now before us is of a testamentary character. It is described as a Will and states explicitly that as after the death of the testator, disputes might arise among his relations with regard to the properties left by him, he made the disposition to be carried into effect after his demise. The terms and conditions are then set out, paragraph by paragraph, and in each paragraph the disposition is expressly stated to take effect after his demise. Against all this, reliance is placed on the sixth paragraph, in which the testator says that he would be at liberty to mortgage the properties and not to sell them absolutely. Such a restraint as this RSA.1062/2013.45
upon his own power of alienation during his lifetime would be obviously void. It does not indicate any intention to make the deed irrevocable."
........... ..............
29. A careful reading of Ex. A-2 shows that in the title itself the document has been described as Settlement Deed. By executing that document, Shri K. Perumal Iyer expressed his intention, in no uncertain terms, to settle the property in favour of 16 persons who were none else than his own relatives and declared that 'from this day onwards I and you shall enjoy the land and house without creating any encumbrance or making any alienation whatsoever.' This was an unequivocal creation of right in favour of 16 persons in praesenti. Though, the beneficiaries were to become absolute owners of their respective shares after the death of the settlor, the language of the document clearly shows that all of them were to enjoy the property along with settlor during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the settlor made it clear that he will have no right to cancel the Settlement Deed for any reason whatsoever or to alter the terms thereof."
RSA.1062/2013.
46
38. In the decision reported in Narayani v. Sreedharan (2011(4) K.L.T. SN 107) it is held as follows:
"Even if by a document, the property which exclusively belongs to the executant is settled in favour of another, retaining his life interest in the property and providing that on his death the other would get absolute right in the property, it cannot be said that there was no transfer of interest in praesenti because of the retention of the life interest of the executant as there was divesting of the rights of the executant, except his life interest."
39. Relying on the above decisions and drawing analogy from the facts contained in those decisions, learned counsel for the appellant contended that the terms of Ext.A1 compares well with the terms of the documents involved in the above cases and in all the above cases such documents were construed as creating rights in praesenti.
40. However, the learned counsel appearing for the respondent drew the attention of this Court to the decision reported in Kokilambal v. N. Raman (AIR 2005 SC 2468) the RSA.1062/2013.
47facts of the case are available in paragraph 3, which reads as follows:
"Since we did not beget issues, even during my husband's life time he brought up Varadan, the younger son of his elder sister viz., Kuppammal, as his own son. He (my husband) suddenly passed away. Even during his life time he has decided to take Varadan as an adopted son. I have also decided to act according to his wishes and hence, I performed the last rites of my deceased husband through Varadan. Due to the love and affection that I have towards Varadan, I intend to make an arrangement for him, and hence I executed and delivered this Deed of Settlement.
This income derived from out of the under- mentioned Schedule property viz., Door No.43, Kakkaran Basin Road, shall be enjoyed by myself and Varadan, till my life time. After my demise, the house, more fully described in the schedule, shall be enjoyed by Varadan absolutely.
From now on, the aforesaid Varadan himself, shall collect the rental income of the aforesaid House and pay the corporation and land tax, repairs etc., and the reminder rental amount shall be enjoyed by me and RSA.1062/2013.48
Varadan in moiety. Hereafter, I have no right to alienate the property. But, both of us have right to alienate the same jointly."
In that decision, it was observed as follows:
"In this background, we have to examine the settlement deeds created by Kokilambal in favour of the deceased Varadan.The recitals of the settlement deeds i.e. A-1 and A-2 as reproduced above, clearly says that since Kokilambal had no son and her husband Konicka Mudaliyar during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has settled that the income derived from the properties i.e Door No.43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life time and after her demise, it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house and pay the corporation and land tax, repairs etc. and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The appellant No.1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore, this settlement in no uncertain terms lays down that the properties in question will vest absolutely RSA.1062/2013.49
after the death of the appellant No.1 and during their life time, both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both will have the right to alienate the property in question jointly. These conditions are very clear, Varadan would have acquired the absolute right over the property, after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them jointly meaning thereby that the appellant No.1 continued to hold the property during her life time and both of them were permitted to enjoy the usufructs of that property. These settlement deeds in our opinion, clearly make out that Varadan was not made absolute owner of the property during the life time of the settlor, Kokilambal."
41. It has to be observed that there is some difficulty in reconciling the decisions in Namburi Basava Subrahmanyam's case (supra) and Kokilambal's case (supra). But certain propositions emerge from a reading of the above decisions and they are ;
RSA.1062/2013.
50
i) There is no straight jacket formula to ascertain the nature of interest created.
ii) Each case depends upon the facts of that case and the deed that comes up for interpretation.
iii) Merely because the enjoyment or possession is postponed by itself is not a ground to hold that no vested interest is created.
iv) If interest in praesenti is created with condition, the transfer becomes effective immediately. But the interest is to take effect after the condition is satisfied, then it becomes a contingent interest.
42. Bearing the above principles in mind, one may have a look at the recitals in Ext.A1 once again.
43. There can be no dispute regarding the fact that the plaintiff had no manner of right over the property dealt with under Ext.A1 and it belonged solely to the settlor. By Ext.A1 document, proprietary rights are created in favour of RSA.1062/2013.
51the plaintiff with obligation to pay the tax and effect mutation. In pursuance to the above recital tax was being paid in plaintiff's name. It is true that the right to take income and to deal with the property remained with the settlor. But it is significant to notice that in the document, it is mentioned that from the date of the deed onwards the grantor reserves permission to reside with the grantee. This indicates that even the grantor treated the transfer to be effective from the date of execution. Otherwise it would have been unnecessary for the grantor to say that she can continue her residence with the grantee. This is a tacit acknowledgment of the fact that from the date of Ext.A1 onwards the property belonged to the donee.
44. There are restrictions imposed on the right to be enjoyed by the grantee. At the risk of repetition, one may notice that if the property is to be alienated during the lifetime of the grantor, it had to be jointly done by the grantor and the RSA.1062/2013.
52grantee. One significant clause in Ext.A1 is that if the grantee wants to raise funds for educational purpose or wants to construct a building or such other structures in the property and for that purpose deeds are to be executed, then the grantor is bound to comply with the demand made by the grantee. This also indicates that rights are created in favour of the grantee. Of course, one is not forgetting the fact that the absolute rights are to be enjoyed by the grantee only on the death of the grantor. But one cannot omit to note two significant aspects. The absolute right which the grantor had over the property no longer subsists after the execution of Ext.A1 document and she does not reserve the right to encumber or to create interest over the property in derogation of the rights granted to the grantee.
45. Ownership over immovable property carries a bundle of rights. Section 19 of the Transfer of Property Act deals with only creation of an interest in the immovable RSA.1062/2013.
53property. It is not necessary that the entire bundle of rights should be transferred. It is significant to notice that the Section contemplates that as per the execution of the deed conceived thereof, the document may take effect forthwith and on the happening of an event which must happen. In the case on hand, the absolute estate is to vest in the grantee consequent on the death of the grantor which is an event certain to happen. So the time at which the rights became absolute is well determined. In Ext. A1, while rights in praesenti has created, the absolute right is to accrue on the death of the settlor. Recitals relating to payment of tax and effecting of mutation and also the restriction regarding alienation etc., clearly show that interests are created in favour of the grantee.
46. Though the respondent in this appeal may be able to draw support from the decision reported in Kokilambal's case (supra), the various other decisions cited by RSA.1062/2013.
54the appellant show that the more preferable interpretation is the one which would lead to the conclusion that on a fair reading of Ext.A1 document vested interest is created, the enjoyment of which is postponed to a future date or the happening of an event which is certain to happen.
47. It is also well settled that in case of any doubt or ambiguity, the interpretation which goes to the benefit of the grantee creating a vested interest should be accepted.
48. Learned counsel appearing for the respondent referring to the evidence of P.W.1 contended that it is conceded by P.W.1 that he had not taken possession of the property and that the income was being enjoyed by the grantor. The statement by P.W.1 to the effect that he gets absolute rights only on the death of the grantor is also referred to. Learned counsel referred to the following statement in the deposition of P.W.1:
RSA.1062/2013.55
"(Q) IG_5 UXqaA{_W H_BZAm H^{_DaUfxeO^fD^xae%U5VUa" X_i_:n_G_f\oKm IyOaKa?
(A) .H_Ay_O_\o."
49. Learned counsel for the respondent went on to contend that from the conduct of the plaintiff also it is evident that no rights have been exercised or no rights were intended to be exercised in pursuance to Ext.A1.
50. Though it may seem so, the facts are otherwise. Tax has been paid by the plaintiff in his name.
51. Even accepting the contention raised by the learned counsel for the respondent based on the evidence of P.W.1, that is not sufficient to annihilate the rights which accrued to the plaintiff as per Ext.A1 document. It is virtually impossible to hold that by virtue of Ext.A1 plaintiff gets no rights or interest in the property at all. Certainly and surely rights in praesenti are created and that acquires the character of a vested right. The interpretation which finds favour is that RSA.1062/2013.
56while the rights are created in praesenti, absolute estate is to accrue only on the death of the grantor or in other words the absolute enjoyment accrues only on the death of the grantor. But as has already been found the two contingencies are insufficient to dilute the vigor of Ext.A1 and reaching the conclusion that it did not create a vested interest in favour of the plaintiff.
52. For the above reasons, this Court finds it extremely difficult to concur with the judgment and decree of the trial court holding that the plaintiff is not entitled to any relief. It looks otherwise.
53. If as a matter of fact, it is found that Ext.A1 creates a vested interest in favour of the donee, then necessarily Ext.A6 has to be held invalid. It can have no legal effect.
In the result, this appeal is allowed, the judgments and decrees of the courts below are set aside and a decree is RSA.1062/2013.
57passed in the following terms:
i) Ext.A6 is held to be invalid and stands canelled.
ii) The plaintiff is entitled to mutate the property in his own name.
There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.