Madras High Court
A. Alphonese And Another vs Vincent And 7 Others on 15 April, 1998
Equivalent citations: 1998(3)CTC404, (1998)IIIMLJ253
ORDER
1. This second appeal arises out of the judgment of the learned Additional District Judge, Tiruchirapalli in A.S.No. 95 of 1983 dated 31.8.84, in confirming that of the learned Sub-Judge, Tiruchirapalli in O.S.No.203 of 1981, dated 28.4.1982.
2. The plaintiffs are the appellants in the above second appeal.
3. The suit was filed for decree for partition of the properties described in the Schedules A and B metes and bounds and to put the plaintiffs in possession of their 2/6th share, for directing the first defendant to deliver possession of 'C' schedule property and for mesne profits to be determined under Order 20, Rule 12, C.P.C. The plaintiffs claim that the properties described in schedule A belonged to one Sowrimuthu who died in 1942 leaving behind him his only son, Anthonysamy and that the plaintiffs and the defendants 1 to 4 are the children of Anthonysamy Pillai. It is further pleaded that the heirs of Anthonysamy Pillai are entitled to l/6th share in the 'A' schedule property and the plaintiffs are entitled to 2/6th share. The properties described in 'B' schedule belonged to plaintiffs mother Adaikala Mary, wife of Anthonysamy Pillai, that she died on 20.5.1980 leaving 21 1/4 soveriegns of gold jewels described in 'B' schedule and that the said jewels belong equally to the plaintiffs and defendants 1 to 4. It is further contended that the 'C' schedule property also belonged exclusively to the plaintiff's mother. She had duly executed a registered settlement deed on 11.1.1971 to the effect that the property should be taken in equal shares with absolute rights by the plaintiffs. The settlement deed was duly executed by plaintiffs mother Adaikala Mary in a sound and disposing state of mind and it was also duly attested and registered. In the said settlement deed, she has reserved herself the right of residence in the house till her life time and also reserved to herself the enjoyment of the income from the house property till her life time. After the death of the mother, plaintiffs had become absolutely entitled to the properties described in the schedule. It is further contended that the first defendant was not in possession of the properties. He refused to give a share legitimately due to the plaintiffs and therefore a registered notice was sent through the plaintiffs advocate on 1.10.80 calling upon him to effect the division of properties and to put the plaintiffs in possession of their 2/6th share. A reply was received from the first defendant on 14.10.80 alleging that the first defendant was not in possession of A and B schedule property, that the jewels were in possession of the plaintiffs and with regard to C schedule, the settlement was untenable. Hence the suit.
4. The first defendant filed written statement disputing the claims in the plant. According to him there was a registered Will dated 31.5.47 duly executed and attested by the father of the parties, namely, Anthonysamy Pillai and in the said Will it has been stated that on account of two daughters having been married and having been provided with sufficient seervarisai, they were not entitled to any share in the family properties and therefore the defendants 2 to 4 cannot get any right, title or interest in the properties of the deceased Anthonysamy Pillai and the fact of the execution of the Will has been suppressed in the plaint. As regards the jewels, the 1st defendant pleaded that he did not personally know about the possession of 21 1/4 soveriegns of gold jewels described in the 'B' schedule. Regarding the alleged Settlement Deed dated 11.1.71, it was cancelled subsequently by a cancellation deed dated 30.4.75 and after the cancellation, the mother of the parties in a sound and disposing state of mind had executed a registered Will dated 14.5.75 and that even as per the Will, in'C' schedule daughters were not given any share much less any right, title or interest in the properties. The daughters were to be given Rs.1,000 as per the Will dated 14.5.75 and it would prevail. According to the defendants on the said ground also the suit for partition was not maintainable.
5. The trial Court after considering the oral and documentary evidence, decreed the suit in favour of the plaintiffs declaring 2/6th share in favour of the plaintiffs in item Nos.1.to 4 of 'A' schedule property and 2/6th share in 9 1/2 soveriegns of jewels under 'B' schedule and 2/6th share in 'C' schedule property. The further claim was relegated to enquiry under Order 20, Rule 12, C.P.C. The claim of the plaintiffs for declaration of absolute rights with reference to 'C' schedule property was rejected by the trial court on the finding that the settlement deed said to have been executed by Adaikala Mary was not legally binding. The said finding was arrived at on the interpretation of the document by the trial Court to the effect that it was only a Will and therefore in the absence of proper probate proceedings, the document was not operative. On appeal by the plaintiffs, the Appellate Court also agreed with the finding of the trial Court regarding the nature of settlement deed said to have been executed by Adaikala Mary. Consequently, the Appellate Court also confirmed the findings of the trial Court. Hence, the above second appeal.
6. The only issue which arises for consideration in this second appeal is as regards the nature of the Settlement deed executed by Adaikala Mary under Ex.Al. Both the Courts have found that the recitals under the document only indicated that it was a Will and not a settlement deed. The learned counsel for the appellants took me through the recitals of the document under dispute, namely, Ex.A1 and the question arises whether the recitals under the document justify the claim of plaintiffs to the effect that it is only a settlement deed and not a Will. Apart from the fact that the document was registered by the settlor as a settlement deed, there are several recitals in the document which will show that by no stretch of imagination can the document be treated as a Will. The settlor had declared that she has no power to set aside or revoke or modify the Settlement deed in any manner. It is further declared that the properties be thereby enjoyed by the settlees in equal shares. It is also further "declared that in the event of one of the settlees willing to purchase the property, the settlees after assessing the value of the property at the prevailing market rate, the parties willing to purchase the property, shall pay half the value and take the whole property absolutely. Therefore, a reading of the document clearly shows that the settlor had relinquished all her rights in the property and has also declared not to set aside or revoke or modify the settlement deed. Therefore, I am unable to sustain the finding of the Courts below that the document has to be treated as a Will.
7. Learned counsel for the appellant has referred to the judgment of this Court by Mohan, J., as he then was. reported in Sakunthala Ammal v.
Pattammal, 1976 (I) M.LJ. 297, wherein learned Judge has held that wherein a document, the executor had expressed a desire to give the property dealt with thereunder with an undertaking that it would not be encumbered or alienated by her during her life time and she would only enjoy the income therefrom would only indicate that the document was a Settlement deed and not a Will.
8. In the context of interpretation of document more particularly as to whether the document is of the nature of a Will or a settlement, reference is made to a judgment of a Division Bench of this Court reported in Ramaswami Naidu v. Vellappan, 1979 (II) M.L.J. 88. the Division Bench has specified certain nomenclature to find out the real nature of the document and after referring to several judgments in the said context, has held that the following are some of the important tests.
(a) the nomenclature used by the settlor in styling the document.
(b) the express dispositive words used which touch upon the time when the vested interest is created.
(c) the reservation of the power of revocation in the instrument;
(d) the effect of reservation of a life estate in favour of the executant;
(e) registration of the document under the appropriate law.
9. Applying the tests laid down in all the said decisions with reference to the document in dispute in this second appeal, it is irresistible to conclude that the said document is only a settlement deed.
10. Further, the learned counsel for the respondents also contended that the Lower Appellate Court has also held that the document was not property proved inasmuch as the attesting witnesses were not examined. It is true that the requirement of examination of attesting witnesses is necessary for the proof of the document. But in the present case as stated earlier, the execution of the document is not seriously disputed and in fact the defendants relied on the so called cancellation deed which is said to have been executed by the mother on 30.4.75 under Ex.B.4. Therefore, the question of proof of the document does not arise as it is not seriously disputed by the defendants themselves.
11. Therefore, in view of my conclusion that Ex.A1 is only an irrevocable settlement deed which is valid and enforceable, the finding of the Courts below in the said context have to be set aside. The reliefs claimed in the second appeal are restricted to the rights of parties as flowing under Ex.A1 only and with reference to the other issues, the claim of the appellants have been mostly granted by the Courts below. In the result, with reference to 'C' schedule property alone, the findings of the Courts below are set aside and the claim of the plaintiffs-appellants for delivery of possession of 'C' schedule is upheld. The findings of the Courts below in other respects are confirmed.
12. In the result, this second appeal is partly allowed only with reference to 'C' schedule property as indicated above. No costs.