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Rev. Fr. M.S Poulose v. Varghese And Others
Factual and Procedural Background
Leave was granted in an appeal concerning the legal character and effect of a document executed by Ithara and his wife Annam, who owned “7 acres and odd” of land. During their lifetime, Sosa (daughter of Mathew) and her husband Varghese—the respondents—looked after the elderly couple. On 5-3-1966, the couple executed Ex. A-2, under which 70 cents of land was given absolutely to Sosa in consideration of affection and faithful service. For the remainder of the property, Ex. A-2 contained recitals reserving to the executants the right during their lifetime to live in the building with the beneficiaries, appropriate the entire income and profits from the properties (except what was set apart in Sosa’s name), and to mortgage or alienate the scheduled property jointly with the beneficiaries with the consent of all parties.
During their lifetime, the executants cancelled Ex. A-2 by Ex. A-3 dated 11-3-1968. The respondents challenged the cancellation. In the trial court they succeeded; on appeal, that decision was reversed. The High Court “confirmed the same” and construed Ex. A-2 as a gift deed under which the donors had divested their title with effect from 25-3-1966, thereby lacking authority to cancel the instrument subsequently.
Legal Issues Presented
- Whether Ex. A-2 operated as a gift deed that divested the donors of title over the entire property (thereby precluding cancellation during their lifetime), or whether, beyond the 70 cents given absolutely to Sosa, it should be construed differently.
- Whether the reservation clauses in Ex. A-2 (rights to live on the property, appropriate income and profits, and mortgage or alienate jointly) indicated that the donors retained title and that the remainder of the instrument should be read as a will.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court noted that there was a dispute regarding the recitals in Ex. A-2 and therefore obtained an official translation of the critical clause. Upon examining the translated recital, the Court found that the executants expressly reserved, during their lifetime, the rights to:
- Live in the building along with the beneficiaries,
- Appropriate the entire income and profits from the properties (save for those explicitly set apart in Sosa’s name), and
- Mortgage or alienate the scheduled property, to be effected jointly with the beneficiaries and with the consent of all concerned.
From these reservations, the Court drew the conclusion that the donors had not completely divested themselves of title to the remainder of the property under Ex. A-2, apart from the 70 cents conveyed absolutely to Sosa. In effect, the reservation of comprehensive lifetime control over possession, income, and powers of alienation was inconsistent with an immediate and complete transfer of title in the remaining property as a gift. The Court held that the High Court erred in treating Ex. A-2 as a gift deed that divested the donors of title as of 25-3-1966. Instead, the Court determined that, save for the 70 cents absolutely given to Sosa, the operative part of Ex. A-2 must be read as a will.
Because the donors were not divested of title in the remainder of the property by Ex. A-2, the High Court’s premise—that the executants lacked authority to cancel during their lifetimes—was incorrect.
Holding and Implications
APPEAL ALLOWED. The Court held that Ex. A-2 conveyed 70 cents absolutely to Sosa, but the remainder of the instrument must be read as a will, as the executants had expressly reserved lifetime rights including possession, enjoyment of income, and powers of alienation. The High Court’s conclusion that Ex. A-2 was a gift deed divesting the donors’ title (with effect from 25-3-1966) was incorrect.
Consequently, the Court directed that the parties—identified as the appellant (son of Skaria, brother of Ithara) and the respondents (daughter and son-in-law of Mathew, a brother of Annam)—should make partition and enjoy the properties in equal moiety. No costs.
Implications: The immediate effect is that the High Court’s view is set aside and the parties must partition and share the properties equally. The opinion does not discuss broader legal implications or establish new precedent beyond resolving the characterization of Ex. A-2 on the facts presented.
Order
1. Leave granted.
2. We have heard the counsel on both the sides. One Ithara and his wife Annam had 7 acres and odd land. During their lifetime, Sosa, daughter of Mathew and her husband Varghese, the respondents herein, were looking after the old people. They executed a deed dated 5-3-1966, Ex. A-2. Thereunder they have given in consideration of the affection and the faithful service rendered by them, 70 cents of land absolutely to Sosa. For the rest of the lands, it was recited thus:
“We reserve our right during our lifetime to live according to our wishes in the building described along with you and if need be we have full rights and liberty to appropriate the entire income and profits from the properties except those set apart in the name of the second named amongst you. In the event during our lifetime it becomes necessary to mortgage or alienate the schedule property the same should be effected by you jointly with us and with the consent of all of us.”
3. We are not concerned with rest of the terms of the document. During the lifetime of the old people, they cancelled this document under Ex. A-3, dated 11-3-1968. The respondents challenged the same. In the trial court they succeeded, but on appeal it was reversed. The High Court confirmed the same. The High Court construed that the document is a gift deed and that therefore, the donors, having divested their title to the properties had no right to cancel the same subsequently.
4. There was a dispute with regard to the recitals among the parties. Therefore, we have got officially translated the recital as extracted herein before. It indicates that the old people, the executants, have jointly reserved the right during their lifetime not only to live in the building and enjoy the entire income from the properties, but also reserved the right to alienate or mortgage the properties. In other words, they have not divested themselves from the title to the rest of the property completely, except 70 cents of the land given to the respondent Sosa in absolute terms. The High Court, therefore, was not right in its conclusion that it is a gift deed and the donors were divested of the title on execution of Ex. A-2 with effect from 25-3-1966. That part must be read to be a will.
5. The appeal is accordingly allowed. Since the appellant is the son of Skaria, brother of Ithara, and the respondents are daughter and son-in-law of Mathew, a brother of Annam, wife of Ithara, both the parties should, according to us, make partition and enjoy the properties in equal moiety. No costs.
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