Madras High Court
N.Saraswathi (Deceased) vs K.Padmavathi on 26 March, 2019
Author: N. Sathish Kumar
Bench: N.Sathish Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.597 of 2008
and M.P.No.1 of 2008
1.N.Saraswathi (Deceased)
2.R.Ranjani
3.R.Amutha
(Appellants 2 and 3 brought on record as LRs
of the deceased sole appellant vide order
of this Court dated 25.02.2014 made in
M.P.No.1 to 3 of 2011 in S.A.No.597 of 2008) ... Appellants
Vs.
1.K.Padmavathi
2.B.Sasikala
3.V.Indirani
4.K.Ragunathan
5.M.Jayavani
6.T.Govindarajulu
7.Janakiammal
8.Padmavathy
9.Minor Prabhu,
S/o.Late Ramanarayanan
10.Minor Kannan
S/o.Late Ramanarayanan
Minors 9 and 10 are represented by their mother and
natural guardian Padmavathi
11.Dwarakan
12.T.N.Ramasamy ... Respondents
http://www.judis.nic.in
2
PRAYER: The Second Appeal is filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 29.06.2004 made in A.S.No.9
of 2003 on the file of the Principal District Judge, Coimbatore, confirming
the judgment and decree dated 30.08.2001 made in O.S.No.412 of 1996 on
the file of the III Additional District Munsif, Coimbatore.
For Appellants : Mr.D.Krishna Pradeep
For Respondents : Mr.S.Mukunth
for M/s.Sarvabhauman Asso.
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JUDGMENT
The present Second Appeal has been filed against the judgment and decree dated 29.06.2004 made in A.S.No.9 of 2003 on the file of the Principal District Judge, Coimbatore, confirming the judgment and decree dated 30.08.2001 made in O.S.No.412 of 1996 on the file of the III Additional District Munsif, Coimbatore.
Brief facts leading to the instant Appeal are as follows:-
2. The parties are arrayed as per ranking of the trial Court. The first plaintiff is wife of one Kandaswamy and others are children of the first plaintiff. The mother of the said Kandaswamy namely, Dhanabagyathammal, http://www.judis.nic.in 3 executed a settlement in favour of Kandaswamy in respect of the suit property. The settlement is irrevocable. The said Kandaswamy had died intestate on 25.07.1983. When the plaintiffs demanded the suit property, the defendants informed that the settlement executed by Dhanabagyathammal was cancelled on 10.12.1985. Therefore, the contention is that unilateral cancellation is not valid under law. Hence, the suit was filed.
3. The first defendant filed a written statement that the first defendant is the daughter of Dhanabagyathammal. According to her, in the year 1979, her mother executed two settlement deeds. One is in favour of his brother Kandaswamy and another is in her favour. The property settled in favour of the Kandaswamy lies in northern portion and the property settled in favour of the first defendant lies in southern portion. The purport of the said settlement deeds was that during her life time, the settlor should enjoy the suit property.
4. According to the defendants, delivery of possession was postponed till the death of the settlor. Her only intention was that the property should be owned and enjoyed by the settlees only after her life http://www.judis.nic.in 4 time. Further, settlee Kandaswamy died on 25.07.1983. After his death, settlor had executed a registered cancellation deed dated 10.12.1985 revoking the earlier settlement deed dated 18.08.1979 in favour of Kandaswamy. Thereafter, she also executed a Will in respect of the suit property bequeathing the same to the first defendant. According to her, as per Will, she is entitled to the property.
5. In the additional written statement, her contention is that the plaintiffs were aware of the settlement deed. Since the settlement was a conditional one to operate only after the death of Dhanabagyathammal, she cancelled the same. The plaintiff as well as defendant No.9 are not entitled to the fractional shares or any share in the suit property.
6. The trial Court has framed necessary issues. On the side of the plaintiffs, P.W.1 and P.W.2 were examined and Exs.A1 to A9 were marked and on the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B1 to B3 were marked.
7. The trial Court has found that the cancellation of settlement is not valid and also disbelieved the Will projected by the defendants and http://www.judis.nic.in 5 decreed the suit for partition. The first appellate Court has also confirmed the findings of the trial Court, as against which, the present Second Appeal is filed.
8. While admitting the Second Appeal, this Court has framed the following substantial question of law:-
“Whether the settlement deed executed by the settlor reversing her life estate can be said to be in force, when the settlee predeceased the settlor and followed by cancellation of the same by the settlor herself?”
9. The learned counsel appearing for the appellants submitted that the settlement under Ex.A1 is not completed and possession has not been handed over. The settlor reserved the right to enjoy the property till her life time. Hence, the learned counsel submitted that the settlement deed is not complete transfer of property. Settlor's intention was to divest the property only after her life time. The same makes it clear that settlement is not completed. Hence, he submitted that the findings of the trial Court and the first appellate Court are invalid and not in accordance with law.
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10. The learned counsel appearing for the appellants relied upon the judgment of the Hon'ble Supreme Court in the case of Kokilambal and Others Vs. N.Raman reported in (2005) 11 SCC 234. The learned counsel contended that execution of the settlement deed is not in dispute. In paragraph 5 of the written statement, the first defendant has categorically admitted that the execution of the settlement deed is not only in favour of Kandaswamy, but, also in her favour. When there are two transactions on the same day, the transaction in favour of the settlee is also relevant and document is admitted. Once the settlement is completed, transfer of title is also completed. Without power of reservation, settlor has no right to cancel such a settlement unilaterally.
11. On the other hand, settlement could be made only on the ground set out under Section 126 of the Transfer of Property Act. Hence, the learned counsel submitted that merely because the life interest is retained, it could not be said that there was no settlement at all. The recitals of document clearly shows that settlement was accepted during the life time of settlor. The Courts below clearly found that the settlement deed viz, Ex.A1 is valid and granted the reliefs.
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12. In support of his submissions, the learned counsel appearing for the appellants, also relied upon the judgment of the Hon'ble Supreme Court in the case of P.K.Mohan Ram Vs. B.N.Ananthachary and Others reported in (2010) 4 SCC 161. Since the entire issue revolves around Ex.A1, settlement deed, this Court has to decide whether the revocation of such settlement is valid in the eye of law or whether the settlement is not completed as contended by the learned counsel appearing for the appellants.
13. It is not in dispute that one Kandaswamy is the son of settlor, Dhanabagyathammal, and the first defendant is the daughter of said Dhanabagyathammal and undisputed fact is that the said Dhanabagyathammal has executed two settlement deeds. In Ex.A1 favour of her son Kandaswamy in respect of the northern portion of the property. Similarly, the daughter namely, the first defendant was given southern portion of the property. Execution of the above settlement deeds is not in dispute.
http://www.judis.nic.in 8
14. On a careful perusal of Ex.A1, no doubt, the settlor retained her life interest. The intent of recital, makes it clear that the possession would be handed over after life time and further, recitals make it clear that original document has been handed over to the settlees. Further, the settlor did not reserve any right of revocation. Besides, she has also not reserved any right of alienation except stating that loan can be raised jointly. She has also not retained any power to deal with the property independently. In this regard, it is useful to refer Section 122 of the Transfer of Property Act, which reads as follows:-
“122. “Gift” defined “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the done, and accepted by or on behalf of the done.
Acceptance when to be made Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the done dies before acceptance, the gift is void.“ The above definition makes it clear that the transfer of possession is not essentional condition for valid gift. Therefore, merely because, the settlor retained life interest in the property, it could not be said that there was no transfer of title.
http://www.judis.nic.in 9
15. In this regard, it is useful to quote the judgment of the Hon'ble Larger Bench of the Supreme Court in the case of Ranikuntla Rajamma (D) by L.Rs. Vs. K. Sarwanamma reported in 2014 (4) CTC 572. The Hon'ble Apex Court, taking into consideration of the conflict views of the earlier decision of the Court, has held that “Transfer of possession“ of Property covered by registered instrument of Gift duly signed by Donor and Attesting Witness is not sine qua non for making of valid Gift and delivery of possession of Gifted property is not essential condition for completion of valid Gift. Mere retention of right to use the property during the life time of donor does not in any way affect transfer of ownership in favour of Donee.
16. Yet another contention of the learned counsel is that Donor has retained her right and therefore, the revocation is valid. It is to be noted that as already discussed, the recitals of Ex.A1 make it clear the except retaining the power to collect rents, the property has already been transferred. In fact, all the title deeds were handed over to the Donee. The above recital makes it clear that Gift was accepted by the Donee during the life time of Donor. Merely because, the Donee died in the year 1983 prior to the death of settlor, it cannot be stated that the Gift has not been accepted by the Donee. There was acceptance of Gift on the date of execution of the http://www.judis.nic.in 10 document itself, which makes it clear that all the title deeds have been handed over to the Donee and the same makes it clear that the Gift has been accepted by the son of the settlor on the same day. Therefore, merely because, the Donee had died after a few years, it cannot be stated that the Gift was not accepted. No doubt, in the judgment cited by the learned counsel appearing for the appellant in the case of Kokilambal and Others Vs. N.Raman reported in (2005) 11 SCC 234, the Hon'ble Apex Court has held that in order to ascertain whether the intention of settlor was to divest the property in his lifetime or contingently on the happening of a certain event, the settlement deed must be read as a whole and inference should be drawn after a close scrutiny of its contents. Taking note of the specific fact of the above case that Donor has retained the power of alienation jointly along with settlee, the Hon'ble Apex Court has held that the property has not been divested.
17. On the death of the settlee during the life time of the settlor, the settlement did not come to an end. Absolutely, there is no dispute in the judgment cited above, the fact remains in this case that the Donor has not retained any power of alienation except retaining her life interest to enjoy the property. Further, she has also handed over the title deeds to the http://www.judis.nic.in 11 settlee. That apart, she has also made specific recital to that effect, that settlement is irrevocable. Therefore, the appellants cannot take advantage of the above-quoted judgment of the Hon'ble Supreme Court, which was rendered on the basis of the facts pertaining to the above case.
18. In the judgment of the Hon'ble Supreme Court in the case of P.K.Mohan Ram Vs. B.N.Ananthachary and Others reported in (2010) 4 SCC 161, the Hon'ble Supreme Court has had as follows:-
“A careful reading of Ext.A-2 shows that in the title itself the document has been described as a 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 sixteen 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 the settlor during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the setttlor made it clear that he will have no right to cancel the settlement deed for any reason whatsoever or to alter the terms thereof.” http://www.judis.nic.in 12
19. Further, the settlor herself stated in unequivocal terms that there is no power to revoke settlement. Merely, after death of the settlee, few years after the transfer was completed, revocation of such settlement is not valid under law. Unilateral cancellation of the settlement deed cannot be valid under law. The settlement can be revoked only on the conditions contemplated under Section 126 of the Transfer of Property Act. Even Ex.B1, revocation deed, clearly shows that the only ground for revocation is that since the settlee being a son, died, she has no option except to revoke the settlement. Except that there was no reason assigned in the cancellation deed and further, the settlement is not a conditional one to contend that on failure to comply with the conditions, it gets revoked. When the transfer was completed and title has been already divested, the question of cancelling or revoking such a settlement does not arise at all unilaterally, unless any of the conditions mentioned under Section 126 of the Transfer of Property Act is complied.
20. The Court below has found that unilateral cancellation of settlement is not valid in the eye of law. The trial Court has also found that http://www.judis.nic.in 13 the Will is not a proved one and shrouded with serious suspicious circumstances. The Courts below arrived at a decision after analyzing the entire factual matrix. Accordingly, this Court has also found that cancellation of such settlement is not valid in the eye of law. Therefore, the substantial question of law is answered against the appellants and hence, the Second Appeal is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
26.03.2019
asi
Index : Yes/No
Internet : Yes/No
Speaking Order : Yes/No
To
1. The Principal District Judge, Coimbatore.
2. The III Additional District Munsif, Coimbatore. http://www.judis.nic.in 14 N. SATHISH KUMAR, J.
asi S.A.No.597 of 2008 and M.P.No.1 of 2008 26.03.2019 http://www.judis.nic.in