Madras High Court
Chinnammal vs Valliammal @ Pappu on 17 December, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17 .12.2014. CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN S.A.No.537 of 2006 and CMP.Nos.6595 of 2006 and 54 of 2009 Sellayi (deceased) 1.Chinnammal 2.Jaganathan 3.Varadarajan 4.Jothimani 5.Venkatesan ...Appellants vs. 1.Valliammal @ Pappu 2.Rathinam 3.Mani @ Rukmani 4.Jayalakshmi 5.Dhanam @ Sakunthala ...Respondents Second Appeal against the judgment and decree dated 02.11.2005 made in A.S.No.26 of 2005 on the file of the Principal District Judge, Salem, reversing the judgment and decree dated 24.12.2003 in O.S.No.353 of 2001 on the file of the Principal District Munsif, Salem. For appellants : Mr.M.S.Krishnan Senior Counsel for Mr.B.R.Sankaralingam For respondents : Mrs.Hema Sampath Senior Counsel for M/s.R.Meenal JUDGMENT RESERVED ON : 14.10.2014 JUDGMENT
Defendants, who succeeded before the Trial Court but, failed in appeal, are the appellants in the second appeal.
2. The case of the plaintiffs before the Trial Court was that the plaintiffs/married daughters, the deceased Ganesan and 6th defendant are the children of the first defendant and her husband, the deceased Palaniappa Gounder. The second defendant is the wife of the said deceased Ganesan and the defendants 3 to 5 are their children. The first defendant and her husband, during the life time of the latter, purchased immovable properties jointly out of their joint earnings and by partition deed dated 23.07.1999, they have been allotted ''A'' schedule property and they were in joint possession and enjoyment till the death of the latter. Thereafter, the first defendant was enjoying her undivided half share of the suit property. During the life time of Palaniappa Gounder, he and his wife/first defendant partitioned orally substantial portion of their properties retaining the first item of the suit property in her possession and occupation and had become divided from their sons, second defendant and the deceased Ganesan. In the suit properties, the said Palaniappa Gounder, during his life time, had put up pucca two-storied terraced building on the northern portion and both the first defendant/wife and himself were residing therein separately. After the death of Palaniappa Gounder, in the year 1987, first defendant continued to reside in it, as her sons were living separately with their respective families. Palaniappa Gounder, with the consent and knowledge of the first defendant and while in sound state of disposing mind, executed a Will dated 26.06.1987 in favour of their daughters/plaintiffs half portion of the suit property on the north together with building, well and electrical connections etc., bequeathing the same to them. The first defendant stood as one of the attestors. On the death of their father, the Will came into force and the defendants have taken possession and have become joint and absolute owners of the same. Since the other half portion of the suit property was in occupation and possession of their mother and she was residing in the terraced building, the plaintiffs had not disturbed her occupation of the said building. As the plaintiffs had been looking after the first defendant/mother to her satisfaction and happiness, she executed a registered irrevocable gift deed, dated 09.05.2000, transferring her common half share on the south of the suit property to the plaintiffs, which is shown as Item-2. Hence, the plaintiffs have been in the absolute, continuous, exclusive, peaceful and actual physical possession and enjoyment of the entire suit property. Knowing the execution of gift deed, the defendants by undue influence, coercion, forced the first defendant to execute a document of transfer touching the suit property to the detriment of the plaintiffs. On 19.04.2001, when the agricultural coolie workers engaged by the plaintiffs were working in the suit property, the defendants 2 to 6 drove them out of the land, threatening with dire consequences. Hence, the present suit had been filed.
3. The suit was resisted by the first defendant contending that the other defendants are helping this defendant in doing agricultural work in the suit property and when there arose misunderstanding between the defendants, this first defendant approached the plaintiffs and at that time, at the instigation of the plaintiffs, this defendant executed a registered document. After disposal of the suit filed by the defendants 2 to 5 against this defendant and the sixth defendant, in O.S.No.661 of 2000 before the District Munsif Court, Salem, this defendant cancelled the registered document. Husband of the defendant had not executed any Will in favour of anybody. After the life time of this defendant and her husband, the defendants 2 to 6, viz., late Ganesan and Venkatesan, sons of this defendant are entitled to equal share.
4. Fourth defendant filed the Written Statement, which was adopted by the defendants 2, 3 and 5, contending that all the plaintiffs are not willing to prosecute the suit and it is only the 5th plaintiff alone very keen in prosecuting the suit against the defendants. The joint family properties were divided among Palaniappa Gounder, the father of the sixth defendant and late Ganesan on 23.07.1979 and in the said partition, the above said Palaniappa Gounder and the first defendant were given the suit properties, which are described in the 'A' schedule of the said partition, but they have to enjoy the suit properties till their life time and after their life time, the suit properties have to be enjoyed by the said Late Ganesan and the sixth defendant and their sons absolutely. Palaniappa Gounder died intestate. The two-storied building in the suit property was put up in the joint efforts of the above said Palaniappa Gounder and his two sons. The defendants 3, 4 and 6 are paying kist for the suit properties and are also paying the Electricity Bills. Palaniappa Gounder did not execute any Will in favour of the plaintiff. Taking advantage of the misunderstandings arose between the first defendant and other defendants, the plaintiffs influenced the first defendant and created a sham and nominal gift settlement deed on 09.05.2000, in their favour. Though it is styled as Gift Settlement, the recitals in the said deed will show, it is only a Will and the settlement deed was not given effect. The first defendant after knowing the cunningness and hostile attitude of the plaintiff, has cancelled the above said alleged gift settlement deed on 06.02.2001. In fact, the suit filed by the defendants 2 to 5 against the first and sixth defendants on the file of the District Munsif, Salem, in O.S.No.661 of 2000 was not prosecuted and a joint memo was filed on 26.04.2000. The plaintiffs are making all sorts of efforts to enter into the possession of the suit properties on the strength of the alleged Gift Settlement Deed dated 09.05.2000. Since, the plaintiffs could not get into possession of the suit properties, they have come forward with this suit. The description of the property is misleading and though at one stage, the plaintiff have stated in paragraph-6 of the plaint that Item-2 is the suit property. The plaintiffs have not produced the alleged Will dated 26.06.1987. It is only the defendants who are in possession of the suit properties. In fact, the defendants are putting up a barbed wire fencing on the two sides by spending more than Rs.50,000/-. Hence, they prayed for dismissal of the suit with costs.
5. Sixth defendant filed the Written Statement stating that he is adopting the Written Statement filed by the fourth defendant and reiterated the facts stated by the fourth defendant in his Written Statement.
6. Third defendant filed the Additional Written Statement contending that it is the case of the plaintiffs that they came to know about the existence of Will only when the first defendant alleged to have executed the settlement deed on 09.05.2000, whereas the aforesaid Palaniappa Gounder died during 1987 itself. The amendment of the boundary in the description of Item-2 of the property is also highly belated and has to be rejected.
7. The Trial Judge framed the following issues:-
i)Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
ii)Whether the documents dated 09.05.2000 and 26.06.1987 are genuine and valid?
iii)Whether the description of suit property is correct?
iv)Is the suit property not in possession of the plaintiff?
v)To what relief the plaintiffs are entitled?
8. Before the Trial Court, the plaintiffs examined two witnesses as PW.1 and PW.2 and marked seven documents as Exs.A1 to A7. The defendants examined two witnesses as DW.1 and DW.2 and marked nineteen documents as Exs.B1 to B19. The Trial Court, on analysis of the oral and documentary evidence, dismissed the suit. On appeal, the appellate court, reversed the finding of the Trial Court and decreed the suit in favour of the plaintiffs. Aggrieved against the judgment and decree of the first appellate court, the present second appeal has been filed by the defendants.
9. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal:
i)Whether not the decree of the lower appellate court perverse when the lower appellate court rendered an inconsistent finding and conclusion without application of mind and non-consideration of evidence ?
ii)Whether the settlement deed was acted upon as there was no right in presenti ?
iii)Whether the suit is maintainable on omission to claim the relief of declaration admittedly when Ex.A2, settlement deed has been cancelled by the Executant ?
10. The arguments advanced by Mr.M.S.Krishnan, learned senior counsel appearing on behalf of the appellants and by Mrs.Hema Sampath, learned senior counsel appearing on behalf of the respondents are heard in detail. The materials available on record are also perused.
11. The learned Senior Counsel appearing for the appellants has submitted that the first appellate court has allowed the appeal filed by the plaintiffs/respondents without properly appreciating the evidence both oral and documentary and has come to a wrong conclusion and therefore, the judgment and decree of the lower appellate court has to be set aside. 12. The learned Senior Counsel has contended that when the title of the plaintiffs is under a cloud or in dispute and they are not in possession or not able to establish their possession, necessarily the plaintiffs will have to file a suit for declaration, possession and injunction. Therefore, since the plaintiffs had filed the suit only for permanent injunction, the very suit itself is not maintainable.
13. The learned Senior Counsel for the appellants has added that the lower appellate court in paragraph No.25 of its judgment has totally confused itself and gave contradictory findings, which itself shows that the appeal was not decided on the basis of both oral and documentary evidence and on merits. The conclusion and the findings arrived at in paragraph No.25 alone are sufficient to set aside the judgment and decree of the lower appellate court.
14. The learned Senior Counsel for the appellants has pointed out that since the so called Ex.A2 settlement deed, which is not a settlement deed in the eye of law, was cancelled, the plaintiffs do not have any kind of right over the suit properties and therefore, they cannot seek for any relief in respect of the suit property.
15. In support of his contentions, the learned Senior Counsel for the appellants has relied upon the following decisions:-
i) 2008 (6) CTC 237 (Anathula Sudhakar .v. P.Buchi Reddy (dead) by LRs. And others)
ii) 2001 (1) LW 724 (Arasappan Karayalar & another .v. Subramania Karayalar)
iii) 2007 (4) CTC 70 (Chinna Nachiappan and another .v. PL.Lakshmanan)
iv) 2009 (3) CTC 59 (M.B.Subramaniam .v. A.Ramasamy Gounder)
v) 2014 (2) CTC 421 (Ratna Kounder .v. Annamalai and others)
vi) 2014 (3) CTC 820 (Subramanian .v. Kosalai Ammal (deceased) and others)
vii) 1990 LW 430 (Ramaswami Naidu and another ..vs.. Gopalakrishna Naidu and others)
viii) 1994 LW 796 (Ponnuchami Servai .v. Balasubramanian alias Suresh)
ix) 1997 (2) LW 234 (Poongavanam v. Perumal Pillai and another)
x) 2001 (1) CTC 520 (P.S. Deivaprasad @ P.S. ... vs Dr. P.D.Balaji And Eleven Others ) 16. On the other hand, Mrs.Hema Sampath, the learned Senior Counsel for the respondents has submitted that the mother of the plaintiffs/respondents has executed Ex.A2 settlement deed in favour of the plaintiffs and on that basis, they are having title over the suit property and therefore, the plaintiffs have filed the suit for permanent injunction and hence, it cannot be said that the suit is not maintainable. 17. Further, the learned Senior counsel has submitted that in view of the settlement deed Ex.A2, the plaintiffs have been in possession and enjoyment of the suit property and the executant, being the mother of the plaintiffs, they have allowed her to reside in the suit property till her life time, which is a permissive possession, and therefore, it cannot be said that the plaintiffs are not in possession of the suit property.
18. The learned Senior Counsel for the respondents has also pointed out that Ex.B6 is a forged one, which was created with an intention to deprive the right of the plaintiffs over the suit property and therefore, the lower appellate court has come to a correct conclusion that when Ex.A2 settlement deed has been accepted and acted upon, and therefore, it cannot be revoked and the possession of D.W.1 is on behalf of the plaintiffs and hence, the lower appellate court reversed the findings and conclusion of the trial Court and hence, nothing warrants interference of this Court. 19. The learned Senior Counsel has also pointed out that when the settlement deed under Ex.A2 has been executed and the contents are having the character of the settlement deed, it cannot be said that what was executed by D.W.1 was not the settlement deed.
20. The learned learned Senior Counsel for the respondents has relied upon the following decisions in support of her contentions:-
(a) T.V.Kalyanasundaram Pillai vs. Karuppa Mooppanar and others (AIR 1927 Privy Council 42).
b) Kamakshi Ammal vs. V. Rajalakshmi and others (AIR 1995 Mad 415).
c) K. Balakrishnan vs. K. Kamalam and others ((2004) 1 SCC 581).
d) S.Thiagarjan vs. Saraswathy Kittu and six others (1999 (III) CTC 217).
e) J. Kuppuswami Mudali and others vs. Mahalingam (1997 (1) CTC 256).
f) A.S. Vedhagiri vs. Govindammal & Another (2013-2-L.W.-781).
21. The fate of this second appeal lies in the answer to the following questions:-
(a) Whether the suit filed by the plaintiffs for the relief of permanent injunction without seeking the relief of declaration, is maintainable or not?
(b) Whether Ex.A2 settlement deed alleged to have been executed by D.W.1 in favour of the plaintiffs/respondents is the settlement deed or Will and is it still in force in view of Ex.B6?
22. As far as the first question is concerned, it is pertinent to see the legal principles laid down by the Hon'ble Apex Court as well as this Court.
23. In 2008 (6) CTC 237 (Anathula Sudhakar .v. P.Buchi Reddy (dead) by LRs. And others), the Division Bench of the Hon'ble Supreme Court has held as under:-
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
24. In another decision in M.B. Subramaniam v. A. Ramasamy Gounder (2009 (3) CTC 59), the learned Single Judge of this Court has observed that it is a common or garden principle of law that when there is a serious title dispute to the knowledge of the parties, they, while filing a suit for certain relief, should necessarily pray for declaration of the title. 25. The learned Single Judge has further observed that it is trite proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a suit for injunction. He should necessarily pray for declaration of his title. 26. In yet another decision in (Ratna Kounder .v. Annamalai and others (2014 (2) CTC 421 ), this Court has held as under:-
"When the defendants have disputed the very title of the plaintiffs and established their title, the plaintiffs ought to have sought for declaration of title. However, the plaintiffs have not cared to amend the plaint and continued to prosecute the suit for bare injunction. When the defendants have categorically proved that they are entitled to the suit properties by claiming their title under Exs.B1 and B2, which is not seriously disputed by the plaintiffs by filing a Reply statement or amending the prayer for declaration of title, the general presumption is possession follows title. ......"
27. On the same line, this court in Subramanian v. Kosalai Ammal (deceased) and others (2014 (3) CTC 820), has observed as under:-
"So far as this case is concerned, the title of the plaintiff by virtue of the settlement deeds are under dispute. The settlement deeds are challenged as void documents, conferring no title upon the plaintiffs. It is purely a question of law. Therefore, when the title is challenged, it is necessary that plaintiffs should have sought for an amendment of plaint adding the relief of declaration of title also. That is not done. If the settlement deeds are held to be void documents, then, the plaintiff is denuded of title and then the defendant becomes the owner of the properties and in that case, the suit for injunction will not be maintainable as against the true owner of the properties.
The prayer for injunction will normally be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, the issue of title directly and substantially arises for consideration. Without a finding on title, it will not be possible to decide the issue regarding legality of possession. Therefore, in this case, the suit for injunction is not maintainable without seeking the relief of declaration of title. "
28. In the judgment reported in 2013-2-L.W.-781 (A.S. Vedhagiri vs. Govindammal & Another) relied on by the learned senior counsel for the respondents, it is held as follows:-
15. A conjoint reading of the above said provisions of the Specific Relief Act and the Tamil Nadu Court Fees and Suits Valuation Act, 1955 will make it clear that a suit for bare injunction without a prayer for declaration of title cannot be rejected as not maintainable. In addition, in a catena of cases it has been held that the Court can incidentally go into the question of title in a suit for injunction, though the issue regarding title is not a necessary issue in a suit for injunction. Only as a rule of convenience, Courts have held that complicated questions of title shall not be decided in a suit for injunction and in such cases also, outright dismissal of the suit is not recommended and on the other hand, relegating the plaintiff to a more comprehensive suit of declaration and injunction is recommended. It shall be obvious from the celebrated judgment of the Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. & others reported in 2008 (6) CTC 237, wherein their Lordships of the Supreme Court, after holding the question of title involved in the said case to be complicated which could not be conveniently dealt in a suit for bare injunction, dismissed the suit for bare injunction and at the same, granted permission to the parties to file a fresh suit for declaration. A further direction was issued to the effect that such case should be decided by the trial Court on its own merits without taking into account and without being influenced by any of the observations made in the former case. Keeping in mind, the observations made above, the questions raised in the present second appeal as substantial questions of law have to be considered.
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22. So far as the prayer for permanent injunction is concerned, though the same can be independently maintained and while considering the prayer for injunction, this Court can incidentally go into the question of title, this Court is of the considered view that the question of title in this case cannot be conveniently decided and that the complicated question of title involved in this case will deter the Court from making any attempt to decide the question of title in this case.
29. Applying the above said principles, now we see, whether the suit for permanent injunction filed by the plaintiffs/respondents is maintainable or not. 30. In the case on hand, the plaintiffs have not produced any document to prove that they are in lawful possession, like chitta, adangal and kist receipts, whereas the defendants have produced Ex.B.7 and Ex.B.8 Electricity receipts, Exs.B.9 to B.14 Kist receipts and Exs.B.17 and Ex.B.18 Chitta and Adangal respectively. Further, the defendants have produced Ex.B.15 and Ex.B.16 Receipts issued by Salem Cooperative Sugar Mills' to prove that they are in possession and enjoyment of the suit property.
31. From the above, it is clear that the plaintiffs have not proved, by both oral and documentary evidence, that they are in lawful or peaceful possession of the suit property and such possession is interfered or threatened by the defendants and therefore, the inevitable conclusion is that the suit for permanent injunction simpliciter will not lie. Further, since the plaintiffs are not in possession, they cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
32. Since the title of the plaintiffs is under a cloud or in dispute and they are not in possession or not able to establish their possession, necessarily the plaintiffs will have to file a suit for declaration, possession and injunction.
33. In the case on hand, since the plaintiffs have filed the suit only for the relief of permanent injunction, from the above discussion in the light of the principles laid down by the Hon'ble Apex Court, it is not maintainable.
34. Now we go to the second question, viz., "Whether Ex.A2 settlement deed alleged to have been executed by D.W.1 in favour of the plaintiffs/respondents is the settlement deed or Will and is it still in force in view of Ex.B6?"
35. Before dealing with this question with the facts of this case, we can have a look at the dictum laid down by this Court as well as the Hon'ble Apex Court.
36. In Ramaswami Naidu and another ..vs.. Gopalakrishna Naidu and others (1990 LW 430), this Court has carved out the following principles:-
"The broad tests or characteristics as to what constitutes a will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a will or a gift is to see whether the disposition of the interest in the property is in praesenti in favour of the settlees or whether the disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of the executant, it would be a will. But if the executant divests his interest in the property and vests his interest in praesenti in the settlee, the document will be a settlement. The general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the document are only a guide to find out whether there was an immediate divestiture of the interest of the executant or whether the disposition was to take effect on the death of the executant. If the clause relating to the disposition is clear and unambiguous, most of the other clauses will be ineffective and explainable and could not change the character of the disposition itself. For instance, the clause prohibiting a revocation of the deed on any ground would not change the nature of the document itself, if under the document there was no disposition in praesenti. In such a case the clause prohibiting revocation will be contrary to law and will be ineffective. If, on the other hand, the document is a settlement, merely because a right of revocation is given, it would not change the character of the document as a settlement 'because such a clause will be against law and will be invalid. The nomenclature of the document nor the fact that it had been registered also will not be of any assistance in most of the cases unless the disposition is very ambiguous and extraneous aid is required to construe that clause. "
37. In (Ponnuchami Servai .v. Balasubramanian alias Suresh (1994 LW 796), the learned Single Judge of this Court has observed as under:-
"The question whether a particular document is a testamentary or a non-testamentary instrument has been gone into in several cases. It is enough to mention two of the latest Bench decisions, namely, (1) Commr of Gift Tax Madras v. C. Thiruvenkata Mudaliar, ILR (1977) 1 Mad 53: (1977 Tax LR 1187) and (2) Ramasami Naidu v. M. S. Velappan, (1979) 2 Mad LJ 88. Though the second decision does not refer to the first, to which I was a party, still the principles enunciated in both the decisions are not materially different. Normally speaking, every document has to be construed with reference to the language it contained and therefore a decision construing one document cannot be an authority for construing another document except to the extent that the said decision may lay down certain principles or guidelines. The principles enunciated in this class of cases is that a testamentary bequest is revocable as the interest contemplated therein is intended to pass only after the lifetime of the testator, while a settlement or a gift which comes into operation immediately is irrevocable. Even if a Will contains a clause that it is not revocable the law makes it revocable whereas in a gift or settlement if there is a clause that the settler or donor can revoke it, still it will remain irrevocable under the law, because the done obtains his interest in the property on the execution of the document itself. Consequently, whether a particular document contains a provision as to whether it is revocable or irrevocable is not decisive of the question whether it is a Will or a gift. Similarly, the caption or the nomenclature given by the parties to the transaction is again not decisive of the question as to whether it is a Will or a gift. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a Will, it would operate only as a gift. Similarly if a document contains provisions which showed that the disposition would come into existence only on the death of the executant of the document even if the parties call it a settlement, it would be only a Will. The fact of registration alone would not render the document a settlement if it, in other respects, is a Will. Thus, the real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a 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 transfer of interest in favour of the beneficiary only on the death of the executant."
38. In the decision in T.V.Kalyanasundaram Pillai vs. Karuppa Mooppanar and others (AIR 1927 Privy Council 42), the Privy Council has held as follows:-
Where the donor of immovable property has handed over to the donee an instrument of gift duly executed and attested, and the gift has been accepted by the donee, the donor has no power to revoke the gift prior to the registration of the instrument.
39. In the judgment reported in (AIR 1995 Mad 415) between Kamakshi Ammal vs. V. Rajalakshmi and others, it has been held as follows:-
21. ........ In Samrathi v. Parasuram (AIR 1975 Pat 140) also it has been held, relying on Kalyana-sundaram Pillai v. Karuppa Moopanar (AIR 1927 PC 42) and Atmaram Sakharam v. Vaman Janardhan (AIR 1925 Bom 210 (FB)), that the fact of the gift deed being handed over by the donor to the donee, was sufficient evidence of his having accepted the gift. Learned counsel for the appellant was vehemently contending that despite the settlement deed, the 7th defendant alone continued to possess and enjoy the property and that there was also no mutation of names in the Municipal register pursuant to the settlements. According to him, from this, it can be inferred that there was no acceptance of the gift by the donee. But, we are unable to accept this contention. Even assuming that the 7th defendant continued to possess and enjoy the property alter the above referred to settlements, that by itself would not necessarily lead to the inference that there was no acceptance by the donee of the gifts. Even after accepting the gifts, the donee Pavun-ambal could have allowed her father, the 7th defendant to enjoy the income from the properties settled in view of the relationship of father and daughter between the donor and donee. Further, Exs.A.3 and A.4 specifically recite that possession has been handed over to the donee. When such recital is there, a presumption arises that possession has been handed over to the donee. (Vide Fatima Bibi v. Khairum Bibi (AIR 1923 Mad 52). No doubt, it may be rebuttable presumption. ........
40. In the decision in K. Balakrishnan vs. K. Kamalam and others ((2004) 1 SCC 581), after referring Sections 6, 122, 123, 126 and 127 of the Transfer of Property Act and Section 11 of the Contract Act, the Hon'ble Supreme Court has held that the gift having been duly accepted in law and thus being complete, it was irrevocable under Section 126 of the Transfer of Property Act and it was, therefore, not competent for the donor to have cancelled the gift and executed a Will in relation to the property.
41. In S.Thiagarjan vs. Saraswathy Kittu and six others (1999 (III) CTC 217), this Court has held as follows:-
10. In a judgment of this Court reported in Ankama v. Narasayya, AIR 1947 Mad. 127 brought to my notice by the learned counsel for the plaintiff, was held as follows:-
in the absence of any express reservation of a power of revocation in the gift deed, a donor does not continue to have the right to revoke a gift. In another judgment of this Court reported in R.Kumaraswamy Kounder v. Elumalai Kounder, 1996 (II) CTC 150, it has been held as follows:-
The gift once accepted by or on behalf of the donee cannot be thereof revoked under any circumstance for if a man will improvidently bind himself up by voluntary deed and not reserve a liberty to himself by a power of revocation, the court will not loose the fetters he has put upon himself. If the donor has no power of revocation at all, he ceases to have any interest or right in the property on his divesting himself of his title in favour of the donee, in which case there is no question of the donor continuing after the gift to be an ostensible owner and of any equity arising in his favour within the meaning of Section 41 of the Transfer of Property Act.
42. The decision in J. Kuppuswami Mudali and others vs. Mahalingam (1997 (1) CTC 256) also in the same line.
43. To decide the document whether it is a settlement deed or a Will, from the above principles laid down in the said decisions, it is culled out as under:- a. The general principle 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.
b. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a Will, it would operate only as a gift. Similarly if a document contains provisions which showed that the disposition would come into existence only on the death of the executant of the document even if the parties call it a settlement, it would be only a Will. In short, 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.
c. Even if a Will contains a clause that it is not revocable, the law makes it revocable whereas in a gift or settlement if there is a clause that the settler or donor can revoke it, still it will remain irrevocable under the law, because the donee obtains his interest in the property on the execution of the document itself.
d. Thus, the real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a 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 transfer of interest in favour of the beneficiary only on the death of the executant.
44. Now, we see the contents of Ex.A2 Settlement deed said to have been executed by D.W.1., which are as under:-
,dp ,e;j brl;oy;bkz;l; brhj;ij vd; bgz; kf;fshd nkw;goahsh;fs; Ie;J ngUk; jdJ $Ptpa fhyj;jpw;F gpd;dpl;L mile;J bfhz;L rh;t Rje;jpu ghj;jpaijfSld; ghuk;ghpakha; rfytpj tpepnahf tpf;fpiua';fSf;F ghf;fpakha; Mz;L mDgtpj;Jf; bfhs;sj;jf;fth;fs; vd;Wk; nkYk; ,e;j brl;oy;bkz;l; brhj;jpy; vd; $Ptpa fhyj;jpw;F gpd;dpl;L vd; Mz; thhpRfSf;nfh kw;w gpd; bjhlh;r;rpfSk; ntW ahUf;Fk; vt;tpj chpika[k; cwt[ ghj;jpaija[k; fpilahJ/ mg;go ntW vtnuDk; ghj;jpankh chpiknah mf;fiwnah ,Ug;gjhf bfhz;lhodhYk; mJ bry;yj;jf;fjy;y/ ,e;j brhj;jpd; RthjPdj;ij ,d;nw ehd; nkw;goahUf;F bfhLj;J mth;fSk; RthjPdj;ij bgw;Wf; bfhz;Ltpl;lhh;fs;/ ,e;j brl;oy;bkz;l; gj;jpuj;ij jhd; vf;fhuzj;ijf; bfhz;Lk; uj;J bra;ag;nghtjpy;iy/ mg;go uj;J bra;jhYk; mJ rl;lg;go bry;yj;jf;fjy;y/
45. The underlined contents of the document under Ex.A2, which is styled as settlement deed, imbibes the character of both the documents, viz., Will and Settlement deed. A document can have only one character and such character can be decided on the basis of the contents of the said document and on that basis, the nomenclature of that document will be decided.
46. Ironically, the contents of Ex.A2 are having the contradictory characters of both the documents, namely, Will and Settlement Deed.
47. Further, Ex.A2 provides, in one place, for immediate transfer of the interest from D.W.1 to the plaintiffs and therefore, it would operate only as a settlement or gift.
48. In contra, Ex.A.2 contains the provisions, in another place, that the disposition would come into existence only on the death of D.W.1, who is the executant of Ex.A2 and therefore, even if the document is styled as Settlement deed, it cannot be called as a settlement deed, but it could be only a Will.
49. At a time, no document can have two characters. Either it should be a Will or Settlement Deed. No document can be called, simultaneously, as Will or Settlement Deed, even if it be called as both, it cannot be given effect to. In such circumstances, this Court is of view that since Ex.A2 contains the character of both the two documents, viz., Will and Settlement Deed, it should be held as invalid as it cannot be given effect to. 50. The learned Senior Counsel for the appellants has submitted that Ex.A2 has been cancelled by D.W.1 under Ex.B6, dated 06.02.2001 and therefore, the plaintiffs do not have any kind of right over the suit property.
51. On other hand, though the learned Senior Counsel for the respondents has submitted that Ex.B.6 is a forged one and it was created only to deprive the right of the plaintiffs, no oral or documentary evidence was adduced or produced to show that Ex.B.6 is a forged one. 52. In this regard, D.W.1 in her evidence has clearly stated that she did not execute any settlement deed. But when she came to know about the execution of the settlement deed, she cancelled the settlement deed. However, in her cross examination, she has deposed that she did not execute the cancellation deed.
53. Regarding the execution of the settlement deed and its cancellation, there is no clear and categorical evidence on the part of either side. Anyhow, since this court has held that Ex.A.2 is invalid, the plaintiffs cannot claim any right over the suit property based on Ex.A2.
54. Since the aforesaid two questions have been answered as against the respondents/plaintiffs, the second appeal deserves to be allowed. 55. Further, a perusal of the judgment of the first appellate court would reveal that the findings and conclusions of the first appellate court are contradictory, perverse and not based on the legal evidence. Therefore, the judgment and decree of the first appellate court deserves to be set aside.
56. In view of the above discussions, the substantial questions of law are answered in favour of the appellants/defendants. 57. In fine, the second appeal is allowed setting aside the judgment and decree of the first appellate court and confirmed the judgment and decree of the trial Court. However, it is needless to say that the plaintiffs are at liberty to approach the appropriate forum seeking declaratory relief, if any. There will be no order as to costs. Connected Miscellaneous Petitions are closed.
17.12.2014.
Index : Yes/No. Internet : Yes/No. Mra To
1. Principal District Judge, Salem.
2. Principal District Munsif, Salem.
3. The Section Officer, V.R. Section, High Court, Madras.
R.MAHADEVAN, J.
mra P.D. JUDGMENT IN S.A.No.537 of 2006 Delivered on 17.12.2014.