IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.3.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.103 of 2011 Sravamangala Satsangam Trust rep.by its Managing Trustee, Swami A.V.Rajagopalan ... Appellant/Plaintiff vs. 1.R.P.Mani 2.M.Sridhar ... Respondents/Defendants This second appeal is filed against the judgement and decree dated 27.9.2010 passed by the Sub-Court, Tambaram, in A.S.No.110 of 2010 confirming the judgement and decree dated 23.12.2008 passed by the District Munsif Court, Alandur, in O.S.No.487 of 1999. For Appellant : Mr.P.B.Ramanujam For Respondents : Mr.K.S.V.Sethuraman for R1 and R2 JUDGMENT This second appeal is filed by the plaintiff, inveighing the judgement and decree dated 27.9.2010 passed by the Sub-Court, Tambaram, in A.S.No.110 of 2010, confirming the judgement and decree dated 23.12.2008 passed by the District Munsif Court, Alandur, in O.S.No.487 of 1999, which was filed for declaration and permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A recapitulation and 'resume' of facts absolutely necessary and germane for the disposal of this second appeal would run thus: (i) The appellant herein, as plaintiff, filed the suit seeking the following reliefs: "(a) to declare that the revocation of settlement alleged to have been executed by the defendant on 4.2.1988 is null and void and not binding on the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ (b) to grant permanent injunction restraining the defendant, his relatives, men, agents, servants and persons purporting to act on behalf of the defendant from in any way alienating the suit property belonging to the plaintiff." (extracted as such) (ii) The defendant filed the written statement resisting the suit. (iii) Whereupon the trial Court framed the relevant issues. On the plaintiff's side, one P.Ramalingam was examined as P.W.1 and Exs.A1 to A6 were marked. The defendant examined himself as D.W.1 and marked Exs.B1 to B6. (iv) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court. 4. Challenging and impugning the judgements and decrees of the Courts below, this second appeal is focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law: "a) Whether the Courts below were right in holding the Exhibit A2 was only a Will and not a Settlement Deed, when the original documents of title were handed over to the Settlee at the time of execution of said deed itself? b) Whether the once the appellant had accepted the gift settlement, the donor had any right to revoke the same subsequently, especially when the power of revocation was admittedly absent in the Settlement Deed? c) Whether the Courts below erred in not placing the burden on the defendants to establish the pleas of undue influence and mental depression at the time of execution of Exhibit A2 Settlement Deed? d) Whether the Courts below were right in finding that Exhibit A2 was only a Will and not a Settlement Deed merely because the executor had retained life interest, without examining whether such interest was vested or contingent?" 5. Heard both sides. 6. The learned counsel for the appellant/plaintiff advanced his arguments, the gist and kernel of them would run thus: (i) The original settlement deed Ex.A2 was handed over by the settlor in favour of the settlee as a measure of indicating that https://hcservices.ecourts.gov.in/hcservices/ the settlement as contemplated in the settlement deed came into effect as on the date of execution of the settlement deed itself. (ii) Ex.A2-the Settlement deed can never be termed as a 'Will' and it was only assessed for stamp duty as settlement deed and accordingly it was registered. (iii) Simply because there is a clause to the effect that the property shall vest in the settlee only after the death of the settlor and his sister, that it does not mean that the property did not get vested even as on the date of execution of the settlement deed. The deed has to be read as a whole. Accordingly, if seen, it is clear that the intention of the settlor was to benefit the trust with an intention that the trustee would spend the income arising out of the property for doing poojas to the deity and the Courts below fell into error in not appreciating the evidence available on record. (iv) The contention on the side of the settlor that because of some undue influence and mental depression, he executed Ex.A2-the Settlement Deed was not proved, even then the Courts below decided the lis against the plaintiff. Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgements and decrees of the Courts below and for decreeing the suit as prayed for. 7. Per contra, in an attempt to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the defendant would advance his arguments, the warp and woof of them would run thus: (a) The Courts below appropriately and appositely, correctly and convincingly adverted to the recitals in Ex.A2-the Settlement Deed and decided the lis properly, warranting no interference in second appeal. (b) The whole reading of Ex.A2 would show that the said Ex.A2 is nothing but a 'Will' and not a donation simpliciter. Accordingly, the learned counsel for the respondent/defendant would prays for the dismissal of the second appeal. 8. I hark back to the following principles as found embodied in the following judgement of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; "24. ........(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the https://hcservices.ecourts.gov.in/hcservices/ courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." and the other precedents emerged in this regard. (ii) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 9. A bare perusal of the above precedents would exemplify and demonstrate that unless there is any perversity or illegality in the decisions rendered by the Courts below, the question of interfering in second appeal on the finding of facts would not arise and there should be valid legal grounds also for interference. 10. As such, at the outset itself, I incline to know as to whether any substantial question of law is involved in this matter. 11. I would like to extract herein the relevant portion of Ex.A2-the Settlement Deed. " . . . . After the life-time of the Settlor and S.Sankari, the property described in the schedule hereunder shall vest with the Donee, who shall take possession of the same and spend the rents and profits derived from the said property . . . . . " (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ 12. No doubt, in the prior portion, of Ex.A2-the Settlement Deed, possession is contemplated to be with the settlor and also his sister; only after their demise, the property should vest with the trust - the settlee. There is no clause to the effect that vesting would take place immediately. But for the sentences extracted supra relating to vesting of the property, obviously, the settlement deed would connote and denote as though the settlor executed the settlement deed as a donation simpliciter. Simply because physical possession was intended to be with the settlor and his sister till their lives, one cannot jump to the conclusion that it was not a settlement intended to be acted upon immediately. If the real intention as per the recitals in a deed is to the effect that on exertion of settlement, the property concerned should vest with the settlee/donee along with possession and thereafter, as a concession the settlor and his people could enjoy it for their lives it would still be a settlement/donation. But, here vesting as well as possession was intended to be deferred till the lives of the settlor and his sister. The aforesaid sentences regarding vesting disambiguate the ambiguity involved in the deed. 13. At this juncture, I recollect and call up the following maxim: 'Animus hominis est anima scripti' – The intention of the party is the soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the intention of the individual who executed it. 14. The intention of the person executing the document should be taken into account. If at all there is any false description, then that could be ignored by ushering in the following maxim: 'Falsa demonstratio non nocet, cum de corpore (persona) constat – False description does not injure or vitiate, provided the thing or person intended has once been sufficiently described. Mere false description does not make an instrument inoperative and the maxim 'Utile per inutile non vitiatur – The useful is not vitiated by the useless. Surplusage does not spoil the remaining part if that is good in itself, also would attract. 15. Here those maxims, warranting ignoring of the false description cannot be made use of by the plaintiff for the reason that still earlier maxim referred to supra should be taken into consideration, so to say, the intention of the person who made the document is of paramount importance. The subsequent sentence relating to vesting cannot also be belittled or discarded by invoking the principle 'Surplusagium non nocet' – Surplusage does no harm. We cannot ignore it by saying that it is nothing but a surplus sentence, which occurred later. 16. I also recollect the following maxims: https://hcservices.ecourts.gov.in/hcservices/ (i) 'Leges posteriores priores contrarias abrogant' – Later laws abrogate prior laws that are contrary to them. (ii) 'Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est' – When two clauses in a will are found to be contradictory, the last in order prevails. in the facts and circumstances of this case. 17. As such, if viewed, the case of the defendant is in better footing than that of the plaintiff. Had the settlor intended that the vesting should take place immediately on execution of the settlement, then that would not have made him to incorporate such a sentence concerning vesting of the property at a later portion of the same deed. 18. Both sides cited the following decisions. (a) On the side of the appellant/plaintiff cited the following decisions: (i) 2004(5) CTC 648 – RASU PILLAI V. MUTHUKUMARAN AND ANOTHER. (ii) (2010) 4 SUPREME COURT CASES 161 – P.K.MOHAN RAM V. B.N.ANANTHACHARY AND OTHERS; (iii) AIR 2004 NOC 281 (MADRAS) = (2004) 1 MAD LJ 523 – R.DHANASEKARAN V. THE GOVERNMENT OF TAMIL NADU AND OTHERS; (iv) 2003-2-L.W.605 – 1.PALANISAMY GOUNDER, 2.SWAMINATHAN V. PERIAMMAL; (v) AIR 1996 SUPREME COURT 2220 – NAMBURI BASAVA SUBRAHMANYAM V. ALAPATI HYMAVATHI AND OTHERS. (b) On the side of the respondent/defendant, the following decisions are cited: (i) (1996) 9 SUPREME COURT CASES 388 – NAMBURI BASAVA SUBRAHMANYAM V. ALAPATI HYMAVATHI AND OTHERS; (ii) (1985) 4 SUPREME COURT CASES 85 – A.SREENIVASA PAI AND ANOTHER vs. SARASWATHI AMMAL ALIAS G.KAMALA BAI; (iii) (1996) 5 SUPREME COURT CASES 201 – USHA SUBBARAO V. B.N.VISHVESWARAIAH AND OTHERS; (iv) (2005) 11 SUPREME COURT CASES 234 – KOKILAMBAL AND OTHERS V. N.RAMAN. A mere perusal of the above precedents would exemplify and demonstrate that absolutely there is no quarrel over with the legal proposition that the entire deed has to be read to understand the intention of the executant of a deed. 19. Here my discussion supra would highlight and spotlight that the intention of the settlor was that the property should continue to remain in his possession and ownership, and only after his death and the death of his sister the property should get https://hcservices.ecourts.gov.in/hcservices/ vested in the trust. There is also no indication that during the life time of the settlor, at least, a portion of the income should be spent for doing pooja to the deity. 20. It is also a point to be noted that in Ex.A2, the settlee did not sign also. In a case of ordinary donation Section 123 of the Transfer of Property Act would be attracted, which normally warrants both the donor and donee to sign it and donation should be followed by delivery of possession also, but those facts are not present in this case. It cannot also at once be presumed that it is a kind of agreement, which emerged between the plaintiff and the defendant within the meaning of Section 2(24)(c) of the Tamil Nadu Stamp Act., which refers to "agreement in writing to make such ............" The said Ex.A2 cannot be taken as an agreement also in writing to make such disposition, warranting interference of the Court before its revocation. 21. No doubt, in Ex.A2 there is no clause to the effect that the settlor reserved his right to revoke, even then the aforesaid clauses to the effect that the vesting and possession should take place only after the death of settlor and his sister, were treated on par with the clauses in a 'Will', by both the courts below, warranting no interference in second appeal. 22. In view of the ratiocination adhered to above, I am of the considered view that no question of law much less substantial question of law is involved in the second appeal. Accordingly, the second appeal stands dismissed. However, there is no order as to costs. Msk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Sub-Court, Tambaram. 2. The District Munsif Court, Alandur + 1 cc to Mr. P. B. Ramanujam, Advocate SR No.23050 + 1 cc to Mr. K.S.V. Sethuraman, Advocate SR No.22907 TEJ(CO) SR/12.5.2011 S.A.No.103 of 2011 https://hcservices.ecourts.gov.in/hcservices/