IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 21.08.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.504 of 1992 1. Usha Jayaraman 2. Minor Gopal ... Appellants Vs. 1. M.K.Narayani @ Kokula 2. M.K.Ramachandran @ Kannan 3. Lakshmi 4. Renuka Devi 5. Selvi Radhika 6. Vasalambal 7. V.Sekar 8. Minor Dheepa 9. Minor Bhuvaneswari rep.by Court Guardian ... Respondents Appeal against the judgment and decree of the learned Additional Subordinate Judge, Salem passed in O.S.No.468 of 1984 dated 06.07.1990. For appellants :: Ms.P.T.Asha for M/s.Sarvabhauman Associates For respondents :: Mr.S.V.Jayaraman Senior Counsel for Mr.V.Srinivasan for R2 JUDGMENT This appeal is focussed as against the judgment and decree dated 06.07.1990 passed by the learned Additional Subordinate Judge, Salem in O.S.No.468 of 1984 in dismissing the suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Pithily and precisely, tersely and succintly, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus: One Parvathavarthani Ammal executed a Registered Gift Settlement Deed dated 22.03.1956, bequeathing the property described in the schedule of the plaint in favour of her two brothers, viz., M.N.Krishnan Chettiar and M.N.Gopal Chettiar and put them in possession of the said property reserving her right to reside in the said property during her life time and to collect rents also without the power of alienation. It was also in the recitals that Krishnan Chettiar and Gopal Chettiar should have no right to alienate the property till her life time. In the event of those two beneficiaries dying during the life time of Parvathavarthani Ammal, the legal heirs of the benficiaries, shall inherit the property after her death. It so happened, during her life time, the two beneficiaries, viz., Krishnan Chettiar and Gopal Chettiar died; whereupon, the said Parvathavarthini Ammal executed a deed on 09.06.1980 cancelling the earlier Settlement Deed dated 22.03.1956. She had no such right to cancel the earlier Settlement Deed dated 22.03.1956. After the death of Parvathavarthini Ammal on 04.09.1982, as per her earlier Settlement Deed dated 22.03.1956, the plaintiff, Kannan @ Jayaraman and his sister Lakshmi Bai, the children of the deceased Gopal Chettiar as one group and the defendants 1 to 6, the children and the 7th defendant, the wife of the deceased M.N.Krishnan Chettiar as another group are entitled to half share each. However, the said Lakshmi Bai released her right vide Release Deed dated 15.09.1983 in favour of the plaintiff, whereby he became entitled to half share of his deceased father Gopal Chettiar in the suit properties. Despite incessant requests for partition, there was no positive response from the defendants for the partition. Hence, the suit. 3. Per contra, remonstrating and denying, challenging and impugning, the allegations/averments in the plaint, the second defendant filed the written statement for and on behalf of the other defendants also with the averments, the gist and kernel of them would run thus: The said Parvathavarthini Ammal cancelled the earlier Settlement Deed dated 22.03.1956 and subsequently, executed a Gift deed dated 12.08.1980 in respect of the entire suit property in favour of D2 alone who is one of the sons of Krishnan Chettiar. She also delivered the suit property in his favour. Suppressing the said fact, the plaintiff filed the suit averring and alleging as though the cancellation deed executed by her was non est in the eye of law. 4. D2 also filed the additional written statement, the warp and woof of it would run thus: It is not the nomenclature that matters but the substance of the document, which is material. The Settlement Deed dated 22.03.1956 was a Will in the legal sense and the said Parvarthaniammal, being the executant, had the power to revoke the Will during her life time. Accordingly, he prayed for the dismissal of the suit. 5. The plaintiff filed the reply statement, denying and refuting the contents of the written statements by projecting that the said deed dated 22.03.1956 was not a Will but a Gift, which was acted upon. 6. On behalf of D6 minor, the Court guardian filed the written statement, the nitty gritty of it would run thus: Ex.B1 is a valid gift deed capable of creating vested interest in praesenti and accordingly, the Settlees viz., Krishnan Chettiar and Gopal Chettiar became owners and consequent upon their death respective legal heirs became owners. The allegations to the contrary in the plaint are untenable. Accordingly, D6 is also entitled to one share in the suit property. 7. The trial Court framed the relevant issues. During trial, no one was examined on either side and on the side of the plaintiff, Exs.A1 to A3 were marked and on the side of the defendants Ex.B1 to B13 were marked. The trial Court ultimately dismissed the suit. 8. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the trial Court, the plaintiff has filed this appeal on the following grounds among others: (a) The judgment and the decree of the trial court are against law, weight of evidence and all probabilities of the case. (b) Ex.B1 (Ex.A1), the Certified copy of it dated 22.03.1956 is a Settlement Deed and not a Will. (c) The trial Court erred in holding that Ex.B1(Ex.A1) is not having the effect of creating vested interest in favour of the Settlees in praesenti. (d) The Settlor's commitment in Ex.B1 that she would not encumber the property during her life time would show that she divested herself of her ownership right; but the trial Court did not consider it. (e) Ignoring the various precedents, the trial Court simply dismissed the suit. (f) Without adhering to the provisions of the Transfer of Property Act, the trial Court adjudged the lis wrongly. Accordingly, the plaintiff prayed for setting aside the judgment and decree of the trial Court and for decreeing the original suit as prayed for. 9. Heard the learned counsel appearing on either side. 10. The points for consideration are as to: (1) Whether Ex.B1 (A1) was a Gift Settlement Deed capable of creating vested interest in praesenti in favour of the beneficiaries as contemplated thereunder or whether, it had the effect of a Will only? (2) Whether the Ex.B1 was acted upon or not ? (3) Whether the deed dated 12.08.1980 is valid in law? and (4) Whether there is any infirmity in the judgment and the preliminary decree of the trial Court? Point Nos.1 and 2 : 11. These points are taken together for discussion as they are inter-woven and inter-linked with each other. 12. The learned counsel for the plaintiff by drawing the attention of this Court to the various features of Ex.B1 would develop her argument to the effect that as per Ex.B1, there had been vesting of interest in praesenti on the two beneficiaries, viz., Krishnan Chettiar and Gopal Chettiar; the very fact that she expressly stated with specificity that the said deed is irrevocable would speak volumes that it was not a Will; she had the right of residence only along with the right to collect rent and the actual vesting of the property took place immediately on the execution of the Settlement Deed. 13. Whereas the learned Senior Counsel appearing for D2 by inviting the attention of this Court to the various recitals in Ex.B1 would develop his argument to the effect that Ex.B1 in stricto sensu was a Will and not settlement capable of creating vested interest in praesenti on the two beneficiaries referred to therein. 14. So far this case is concerned, the entire adjudication is resting on adjudging as to whether Ex.B1 as a Settlement Deed was capable of creating vested interest in praesenti on the beneficiaries therein or it was only a Will. 15. Learned counsel for the plaintiff cited various decisions and it is therefore just and necessary to consider them in seriatim. (i) (1996) 9 SCC 388 (Namburi Basava Subrahmanyam vs. Alapati Hymavathi & Others). An excerpt from it would run thus: "3. The only question is the interpretation of the deed Ex. B-1. It is true, as rightly contended by Smt K. Amareshwari, the learned Senior Counsel for the respondents, that the nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgement thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole. The settlement deed reads as under: I am 78 years old by now. Since I am suffering from Nanju disease and breathlessness and asthma, I feel that it would be difficult for me to live long. You happened to be my daughter. Out of great love and affection I have for you, I, having felt strong desire got this settlement deed executed in your favour this day, settling the properties mentioned in the schedule hereunder i.e., the property I had purchased on 21-11-1935 from Sharadappa, wife of Damarla Anajaiah and Vejella Veeraiah and others which is my self-acquired property, and the land devolved upon me out of the property of my husband under a decree passed by the Andhra Pradesh High Court and which has been in my absolute rights and enjoyment, to belong to you after my death to be enjoyed by you with absolute rights. Therefore, taking possession of the schedule land after my death you may enjoy the same freely and happily till the sun and moon endure together with trees, water, stones, treasures and treasure troves with all the rights with absolute powers of disposition by way of gift, mortgage, exchange, sale etc., from your son to grandson and so on by paying the taxes of the municipality, Government etc., from then onwards. I, heirs of my successors shall never raise any dispute against you, your heirs or successors in this behalf. Having assured you and made you to believe that the schedule-mentioned properties have not been alienated and have not been subjected to any attachments of courts, securities etc., and are free from all encumbrances and which are in my absolute right and enjoyment, this deed of settlement is got executed and delivered to you. 4. The Division Bench on its reading of the said document has construed it to be a Will. Unfortunately, it did not read the recital in the Schedule to the settlement deed. The boundaries of the properties settled (details of which are not material; hence omitted) through this settlement deed through which the rights were created in his favour. 5. The said recital clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlors demise. A reading of the documents together with the Schedule would give an indication that she had created right and interest in praesenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the Schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having divested herself of the right and title thereunder, she had, thereafter, no right to bequeath the same property in favour of her daughter Hymavathy." Placing reliance on the aforesaid precedent, the learned counsel for the plaintiff would develop her argument that once investing of ownership in praesenti is contemplated in the Settlement Deed, it cannot be labelled as Will. Absolutely, there could be no quarrel over such a proposition and both sides could see eye to eye on the point concerning the legal proposition as found set out in the aforesaid decision of the Hon'ble Apex Court. (ii) The one other decision of this Court cited by the learned counsel for the plaintiff reported in AIR 1981 Madras 351 (Duraisami Reddiar and another vs. Saroja Ammal and others) is not relevant to this case as in the cited case, there was a recital in the deed that the testator reserved her right to retain her name in the patta till her death and whereupon the Court held that such a recital alone would not make a Gift Settlement as a Will. (iii) The decision of this Court reported in AIR 2004 Madras 178 (Minor Shanmugam vs. N.R.Mani and another) is on the point that if there is no recital in the document that the said document will be given effect after the death of the executant, it cannot be construed as a Will. Here, in Ex.B1, there is a clear indication that the vesting would take place only after her death and as such, the said cited decision is not applicable to the facts and circumstances of this case. (iv) It is worthwhile to highlight that both sides placed strong reliance on the earlier decision of this Court reported in 2002 (4) CTC 406 (Rajammal vs. Pappayee Ammal). An excerpt from it would run thus: "32. From the above said decisions, we can formulate the following broad formula to be applied to find out the nature of the document:- (1) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the pharaseology used therein. (2) The nomenclature (settlement or will) given in the document is not a deciding factor. (3) The registration of the document and the quantum of stamp paper used also have to be taken into consideration. (4) The recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor with reference to the character of the document. (5) Though actual disposition can be postponed till the lifetime of the settlor or though prima facie it appears that disposition consummates after his death, if there is a present disposition and vesting of right in praesenti, the document has to be construed as a settlement and not as testamentary. (6) If any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor, then the said document is only a testamentary and not a settlement. (7) If the executant is entitled to be in possession of the property and enjoy the benefits during his life time with the power to encumber, the document has to be construed only as a Will." (8) If the executant imposes self-restriction and with reference to sale and encumbrance, though he is in possession of the property after execution of the said document, the document has to be construed only as a settlement and not as a Will. (emphasis supplied) (v) In fact, the two other decisions viz., 2003 (3) MLJ 229 (Arthur Mary Ammal vs. Aruldoss Pillai (Deceased) and others and 2004 (4) MLJ 619 (Rasu Pillai vs. Muthukumaran and another) cited by the learned counsel for the plaintiff are all based on the aforesaid judgment of this Court reported in 2002 (4) CTC 406; as such, I am of the considered opinion that in the light of the criteria set out in that judgment and also the decision of the Hon'ble Apex Court reported in 1996 (9) SCC 388 cited supra, Ex.B1 should be analysed. 16. The learned Senior counsel is right in his argument by pointing out that the very stipulation in Ex.B1 that the Settlees shall not encumber the property in any manner would highlight that Ex.B1 is not a Settlement Deed but only a Will. If as argued by the learned counsel for the plaintiff that as per Ex.A1, there ensued on the very execution of the deed, absolute vesting of right in the settlees in praesenti then, there should not have been any embargo for the settlees to encumber it. But here, the clauses are to the effect that the Settlees shall not encumber till the life time of the Settlor Parvathavarthini Ammal. Over and above that the learned counsel for the defendants would draw the attention of this Court to the following clause in the Ex.B1 as under: @//////////////////////c';fSf;F i& nryk; lt[d; g$hh; $t[spf;fil bjUtpy; ,Uf;Fk; i& $hjp R.M.fpU&;zd; brl;oahh; ghhpia gh;tjth;jdp mk;khs; Mfpa ehd; vGjpf; bfhLj;j fpg;L brl;oy;bkz;L gj;jpuk; vd;d btd;why; eP';fs; vdf;F rnfhjuh;fshdgoahYk; c';fs; nghpy; vdf;F ,Uf;Fk; mgpkhdj;jpdhy; vd; g[U&d; vd; ngUf;F 3/12/1947 y; vGjp itj;j capy; rhrdg;go vdf;F rh;t Rje;jpukha; ghj;jpag;gl;L vd; g[U&d; ,we;j gpw;ghL vdf;F rh;t Rje;jpukha; ghj;jpag;gl;L vd; RthjPdj;jpy; ,Ue;J tUtJk; nryk; rg;nfhh;l; O.S.No/70-1953y; gpue;j ofphpapYk; moapy; fz;l brhj;J vdf;F rh;t Rje;jpukha; ghj;jpag;gl;L mDgtpj;J /tUtJkhd kjpg;g[ U:/10000- gj;jhapuk; bgUkhd moapy; fz;l epge;jidfspd; go c';fSf;F ehd; fpg;l; brl;oy;bkz;lhf bfhLj;Jtpl;nld; c';fs; RthjPdKk; bra;J tpl;nld;/ vd; $Ptjpirtiuapy; ehd; vt;tpjkhd guhfPd';fSk; bra;ahky; FoapUe;J bfhz;Lk; thlif tpl;L mDgtpj;Jf; bfhz;L tUfpnwd;/ vd; $Ptjpir tiuapYk; moapy; fz;l brhj;ij eP';fs; ahUk; guhjPdk; bra;a chpik ,y;iy/ moapy; fz;l brhj;ij vd; MapYf;F gpwF eP';fns RthjPdk; bra;J bfhz;L eP';fns jhd tpf;fpua';fSf;F nahf;fpakha; /rh;tRje;jpuj;Jld; Mz;lDgtpj;Jf; bfhs;s ntz;oaJ vd; $Ptjpirf;F gpd;dhy; eP';fs; ,y;yhtpl;lhy; c';fSila thhpRfs; /rh;tRje;jpukha; RthjPdk; bra;J bfhz;L rh;tRje;jpukha; mila ntz;oaJ/ moapy; fz;l brhj;jpd; thlif mDgtkh vdf;F jtpu kw;wgo i& brhj;jpy; vdf;fhtJ vd; kw;w thhpRfSf;fhtJ ahbjhU ghj;jpaKk; rk;ge;jKk; fpilahJ/@ (emphasis supplied) and develop his argument that if really, Ex.B1 was intended to be a settlement simpliciter capable of creating vested interest in praesenti on the two beneficiaries, then such underlined clauses as above should not have found place in Ex.B1. 17. The learned Senior counsel appearing for D2 is right in his submission for the reason that if Ex.B1 was capable of creating at once absolute ownership in those two beneficiaries, then there would have been no necessity at all for incorporating the aforesaid clauses relating to inheritance by legal heirs of the two beneficiaries consequent upon the beneficiaries pre-deceasing the Settlor. Even without that clause, in case of gift settlement, the heirs would become owners automatically as per law. Here, the Settlor, clearly and categorically pointed out that during her life time, the Settlor had no right to encumber the property and as on the date of her death, if those two beneficiaries would not be alive, their legal heirs should get it and that too after her death. If Ex.B1 is taken as a gift settlement, then as per the recitals in it, consequent upon the death of the Settlees, pre- deceasing the Settlor, there would arise a vacuum inasmuch as the Settlor is alive, the legal heirs of settlees would not be allowed to inherit. There should not be any vacuum or suspended animation in devolution of property and that is the basic principle recognised in jurisprudence. No property can be kept in suspended animation or abeyance without any person having ownership over it even for a fraction of a second. In other words, the property rights cannot be kept in abeyance. If interpretation of the deed results in creating such a vacuum, then it is at once clear that such an interpretation is void. It is therefore clear, if the interpretation suggested by the learned counsel for the plaintiff is accepted, it would have created a vacuum between the death of the Settlees and the devolution in favour of the settlees' legal heirs, in view of the Settlor having been alive. It is therefore, crystal clear that the learned Senior Counsel was right in his argument that Ex.B1 cannot be construed in such a manner so as to create vacuum in the vesting of right over the property. 18. At this juncture, I would like to point out that the decision rendered by this Court in the cited case, is mainly based on the fact that the Settlor therein settled in favour of his concubine so as to make provision for her maintenance and it was the avowed object of the Settlor that after his death, she should not suffer. In that context, the Settlement Deed was came to be interpreted and the Court rendered that the Settlement was valid in that case. 19. But here, it is crystal clear that there is no clause to the effect that the Settlor wanted to make some provision for the maintenance or for the upkeeping of the welfare of those beneficiaries. There is also no indication that the Settlor's two brothers under Ex.B1 were depending upon her financially. Ex.B1 was to the effect that she decided to execute the Settlement out of love and affection towards her brother and not for the purpose of providing some financial assistance or maintenance to them. Wherefore, it is crystal clear that Ex.B1 is only a Will and not a Gift Settlement. 20. My mind is also reminiscent of the following decision of the Hon'ble Apex Court reported in 2005 (3) LW 736 (Kokilambal and others vs. N.Raman). An excerpt from it would run thus: 13. In this background, we have to examine the settlement deeds created by Kokilambal in favour of the deceased Varadan. The recitals of the settlement deeds i.e.A-1 and A-2 as reproduced above, clearly says that since Kokilambal had no son and her husband Manicka Mudaliyar during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has settled that the income derived from the properties i.e.Door No.43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life time and after her demise, it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house and pay the corporation and land tax, repairs etc.and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The appellant No.1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore, this settlement in no uncertain terms lays down that the properties in question will vest absolutely after the death of the appellant No.1 and during their life time, both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both will have the right to alienate the property in question jointly. These conditions are very clear. Varadan would have acquired the absolute right over the property after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them jointly meaning thereby that the appellant No.1 continued to hold the property during her life time and both of them were permitted to enjoy the usufructs of that property. These settlement deeds in our opinion, clearly make out that Varadan was not made absolute owner of the property during the life time of the settlor, Kokilambal. 14. Learned counsel for the respondent has tried to interpret this document that since the appellant No.1 had already divested her right to alienate the property that should be enough to show that the entire property stood vested in favour of Varadan. Learned counsel for the respondent tried