Madras High Court
Minor Shanmugam vs N.R. Mani And Anr. on 11 November, 2003
Equivalent citations: AIR2004MAD178, 2004(1)CTC436, (2004)1MLJ608, AIR 2004 MADRAS 178, (2004) 1 MAD LJ 608, (2004) 2 MARRILJ 118, (2004) 1 CTC 436 (MAD)
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. The above appeal is directed against the order dated 15.3.1999 made in C.M.A.No. 31 of 1998 on the file of the Principal District Court, Erode, confirming the fair and decreetal order dated 7.4.1998 made in E.A.No. 300 of 1997 on the file of the I Additional District Munsif Court, Erode. The learned District Munsif dismissed the application filed by the appellant and refused to raise attachment made on 11.6.1987 attaching the property in the Execution proceedings in E.P.No. 81 of 1997 to execute the decree dated 9.1.1992 in O.S.No. 582 of 1997 laid by the first respondent/plaintiff (decree holder) against the second respondent/defendant (judgment debtor).
2. Admittedly, the property was settled by one Palani Ammal, the mother of the second respondent/defendant (judgment debtor) under Ex.A.6 dated 1.6.1984. Even before the suit was filed, the said property settled under Ex.A.6 by the said Palani Ammal in favour of the second respondent was attached on 11.6.1987. The settlement deed dated 1.6.1984 is said to have been cancelled by the settlor/executor on 15.6,1987 under Ex.A.7, treating the said settlement deed Ex.A.6 as the will and the appellant/third party purchased the said property given under Ex.A.6 on 16.6.1987 and hence filed the above E.A.No. 300 of 1987 to raise attachment. Both the Courts below refused to accept the contention made on behalf of the appellant that Ex.A.6 was a will and not a settlement. Hence the above appeal.
3. The substantial question of law as framed by this Court in the above civil miscellaneous second appeal with respect to the interpretation of the document Ex.A.6 is whether the document is a settlement deed or a will.
5. I am unable to accept the contention made on behalf of the appellant. It is true that the nomenclature of the deed is not relevant. It is trite law that what is relevant is the intention of the executor of the document. In the instant case, apart from the fact that Ex.A.6 was described "gift settlement deed", the intention of the executor is clearly stated a follows :
6. From the above, the intention of the executor/settlor is clear and it shows that.
1. The property was a self-acquired property.
2. She wanted to settle the property in favour of the second respondent.
3. The executor reserved her life interest in the property with respect to the rental income from the property governed under Ex.A.6
4. Thereafter, the Second respondent shall have absolute right on the property.
5. The gift settlement deed was executed with free and full consent of the executor Palani Ammal, but not at the instance of any third party.
6. The gift settlement deed is irrevocable.
7. Even if it is revoked, the same is not valid.
7. Therefore, the intention of the executor/settlor is clear. She intended to reserve her right over the rental income of the property during her lifetime and in all other respects she has transferred her interest in favour of the second respondent. Nowhere in Ex.A.6, it is stated that the said document will be given effect to only after the death of the executor/settlor. On the other hand, it is clearly stated that the executor/settlor shall have interest only with respect to the rental income derived from the property governed under Ex.A.6 and she has no right to revoke the settlement. In that view of the matter, I have no hesitation to construe Ex.A.6 as a settlement deed, in which case the order of attachment made on 11.6.1987 cannot be revoked. The substantial question of law is answered accordingly. The appeal fails and the same is dismissed. Consequently, connected C.M.P.No. 17390 of 1999 is also dismissed.