NAMBURI BASA VA SUBRAHMANY AM

ALAPATI HYMAVATHI AND ORS.

APRIL 2, 1996

[K RAMASWAMY AND G.B. PATTANAIK, .I.I.]

Docunzent :

Deed of settlement-!11tc1prelalion of--Hind11 widow executing a settle- C ment deed beq11eathing propeny in favo11r of her second da11ghler who was to acquire absolute 1igltt to e11joy111ent alienation etc. on the deniise of Iler

1110the1~Recita/s ill deed illdicating settlement deed Lo take effect oil date of execution-After death of the da11ghter the widow executillg a will givi11g the said properties to the first daughte1~Hetd, the recitals in the documelll as also ill the Sched11/e thereto i11dicate that on the date of exec11tio11 1ight title alld D interest in the prope1ties had been created in praesenti in favour of the second

daughter-17ie docunient is to be constnu:d as a scttle111e11t deed and not as a will.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7599 of

E 1996.

From the Judgment and Order dated 11.7.95 of the Andhra Pradesh High Court in LP.A. No. 124 of 1989.

R. Sundaravardhan, Ms. Anjani Aiyagari for the Appellant.

Ms. K. Amareshwari and G. Narasimhulu for the Respondent.

The following Order of the Court was delivered :

Leave granted.

We have heard the counsel on both sides. This appeal by special leave arises from the Judgment and order dated July 11, 1995 of the Division Bench of the Andhra Pradesh High Court made in LP.A. No. 124/89. The undisputed facts are that Ch. Seshamma had two daughters, namely, Hymavathy and Vimalavathy. She had bequeathed her properties to her daughters by two settlement deeds executed and registered on

N.B. SUBRAHMANYAM v. A. HYMAVATHI 1101

1.12.1958. The appellant is the husband of Vimalavathy, who died on May A 4, 1970. On Au1,'llst 21, 1970, Seshamma had revoked the settlement deed Ex. B-J and executed will Ex. A-1 giving the properties gifted in favour of Vimalavathy to her daughter Hymavathy. Seshamma died on January 26,

1976. Smt. Hymavathy filed O.S. No. 35/78 in the Court of Subordinate Judge, Tenali. The trial Judge relying on the evidence of DW 1-3, .has held B that Ex. B-1 is a settlement deed and that, therefore, the will Ex. A-1 is not valid in law. Accordingly, he dismissed the suit. The learned single Judge by judgment and decree dated December 13, 1988 confirmed the decree of the trial Court. The Division Bench, as stated earlier, in the impugned judgment decreed the suit as claimed by Hymavathy. Thus this appeal by special leave.

The only question ;., the interpretation of the deed Ex. B-1. It is true, as rightly contended by Smt. K. Amareshwari, learned Senior counsel for the respondents, that the nomenclature of the document is not conclusive.

This recitals in the document as a whole and the intention of the executent D and acknowledgment thereof by the parties are conclusive. The court has to find whether the document confers any interest in the property i1t praesenti so as to take effect inter vivas and whether an irrevocable interest lhereby, is created in favour of the recipient under the document, or whether the executent intended to transfer the interest in the property only on the demise of the settler. Those could be gathered from the recitals in E the document as a whole. The settlement deed reads as under :

"I am 78 years old by now. Since I have suffering from Nanju disease and breathlessness and Asthama and I feel that it would be difficult for me to live long. You happened to be my daughter. F 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 developed upon me out of the G 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 H

SUPREME COURT REPORTS

(1996] 3 S.C.R.

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 grand son and so on by saying 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 your 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".

The Division Bench on its reading of the said document has construed it to be a will. Unfortunately, it did not not read the recital in the Schedule to the Settlement deed. The boundaries of the properties settled D (details of which are not material; hence omitted) through this settlement deed through which the rights were created in his favour.

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 E 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 F to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second daughter. It is settled law that the executent 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 settlor's demise. A reading of the documents together with the Schedule would give G an indication that she had created right and interest in praesenti in favour of her daughter Vimlavathy in respect of the properties mentioned in the schedule with a life estate for her enjoyment during her life time. Thus, it could be construed rightly as a settlement deed but not as a will. Having divested self thereunder, right and title thereunder, she had, thereafter, no H right to bequeath the same property in favour of her daughter Hymavathy.

N.ll. SUBRAHMANYAM v. A. HYMA VATH! 1103

The trial Conti and the learned single .Judge rightly negatived the claim. A The Division Bench was not, therefore, correct in law in interfering with the decree of the trial Courl.

The appeal is accordingly allowed. The decree of the trial Court stands confinned. No costs.

R.P.

Appeal allowed.