Case: P. AMBUJAKSHY AMMA Vs. K. KRISHNA PILLAI & ORS

1. The appellant is the first defendant in O.S.No.77 of 1984. The suit was for a declaration that the deed dated 30.10.1974 (Ext.A1) executed by the second defendant (K. Paruvathi Amma) in favour of the plaintiffs is legal and valid and has the effect of vesting the title in the property in the plaintiffs. The further relief prayed in the suit is for declaration that the revocation deed dated 25.10.1977 (Ext.A2) revoking the Ext.A1 deed and the gift deed dated 25.10.1977 (Ext.A3) executed by the second defendant (K.Paruvathi Amma) in favour of the first defendant (P.Ambujakshi Amma) is null and void.2. The suit was dismissed by the learned trial Court. In first appeal by the plaintiffs the suit was decreed which decree has been affirmed by the High Court in Second Appeal. Hence this appeal by the defendant No.1.3. The trial Court, on the pleadings of the parties, did not frame any issue as to whether the deed (Ext.A1) is a Will or a Gift. Proceeding on the basis that it was a settlement deed the trial Court held that the conditions subject to which the deed was executed had not been complied with by the plaintiffs and, therefore, the benefits thereunder could have been revoked by executing Ext.A2 document.4. In appeal, the first Appellate Court reversed the said decree holding the deed (Ext.A1) to be a gift deed and further holding that the same had been accepted and acted upon by the plaintiffs. Consequently it was held that the gift deed could not have been revoked by the second defendant. The second Appellate Court affirmed the aforesaid view giving rise to the present appeal.5. We have heard the learned counsels for the parties.6. Having read and considered the deed dated 30.10.1974 (Ext.A1), it appears to us that the same cannot be construed to be a gift deed. No transfer of property during the life time of the executant has been effected by the said document. Rather, the said deed appears to be in the nature of a Will bequeathing property, which is to take place after the death of the executant/second defendant.7. If the said document is to be construed to be in the nature of a Will, which is attested by the plaintiff No.1 himself, the same could have been revoked at any time by the Executant/Second Defendant, which was so done by the deed dated 25.10.1977 (Ext.A2). Thereafter i.e. after such revocation it was naturally open for the second defendant to execute a further gift deed on the same date i.e. 25.10.1977 in favour of first defendant, who is the daughter of the second defendant.8. An argument has been advanced on behalf of the respondents/plaintiffs that no substantial question of law was framed by the High Court on the issue as to whether the deed dated 30.10.1974 (Ext.A1) is a Will or a Gift. While the learned counsel for the respondents/plaintiffs may be correct in making the aforesaid contention, the same cannot furnish a sound basis for causing a remand of the matter to the Courts below and that too at this stage. Significant in this regard is the fact that, notwithstanding the absence of any specific issue(s) framed by the trial Court on the nature of the document, the High Court has held the same to be a gift. If the High Court has held that the deed (Ext.A1) as a gift, which conclusion is apparently unacceptable, we do not see why on a reading of the document, if we are to be satisfied that it is in the nature of a Will, we should not make a declaration to the said effect, with all consequential effects on the validity of the revocation deed (Ext.A2) and the subsequent gift deed dated 25.10.1977(Ext.A3).

Decision:
1[ds]6. Having read and considered the deed dated 30.10.1974 (Ext.A1), it appears to us that the same cannot be construed to be a gift deed. No transfer of property during the life time of the executant has been effected by the said document. Rather, the said deed appears to be in the nature of a Will bequeathing property, which is to take place after the death of the executant/second defendant7. If the said document is to be construed to be in the nature of a Will, which is attested by the plaintiff No.1 himself, the same could have been revoked at any time by the Executant/Second Defendant, which was so done by the deed dated 25.10.1977 (Ext.A2). Thereafter i.e. after such revocation it was naturally open for the second defendant to execute a further gift deed on the same date i.e. 25.10.1977 in favour of first defendant, who is the daughter of the second defendantWhile the learned counsel for the respondents/plaintiffs may be correct in making the aforesaid contention, the same cannot furnish a sound basis for causing a remand of the matter to the Courts below and that too at this stage. Significant in this regard is the fact that, notwithstanding the absence of any specific issue(s) framed by the trial Court on the nature of the document, the High Court has held the same to be a gift. If the High Court has held that the deed (Ext.A1) as a gift, which conclusion is apparently unacceptable, we do not see why on a reading of the document, if we are to be satisfied that it is in the nature of a Will, we should not make a declaration to the said effect, with all consequential effects on the validity of the revocation deed (Ext.A2) and the subsequent gift deed dated 25.10.1977(Ext.A3).