1. The above Second Appeal arises against the judgment and decree in A.S No. 250 of 1991 on the file of I Additional District Judge, Coimbatore confirming the Judgment and Decree in O.S No. 730 of 1986 on the file of Sub-Court, Coimbatore.
2. The Defendants 1, 3 to 7 are the Appellants in the above Second Appeal. The Appellants 2 to 6 and the Second Respondent were recorded as legal representatives of the deceased-First Appellant. The Plaintiff in the Suit is the First Respondent and the other Respondents are the Defendants in the Suit.
3. The Plaintiff filed the Suit in O.S No. 730 of 1986 on the file of Sub-Court, Coimbatore for declaration, recovery of possession, permanent injunction and for past damages.
4. The brief case of the Plaintiff in the Suit is as follows:
(i) According to the Plaintiff, her father Chinnasamy @ Chinnayyan married Pappammal about 57 years ago. The Plaintiff, Jagadambal, Gopalan and Subramaniam are the daughters and sons of Chinnasamy and married Pappammal. In or about 1942, the Plaintiff's mother died. Subsequently, Plaintiff's father married one Nanjammal. Dhanalakshmi and Muniyappan are the daughter and son of Chinnasamy and Nanjammal.
(ii) According to the Plaintiff, her father, brought the First Defendant as his concubine and began to live with her under the very same roof wherein, his wife Nanjammal was living. When the said Chinnasamy was questioned by Nanjammal, she was beaten and was driven away from the house along with the two children. The Defendants 2, 4 and 5 are the sons while the Defendants 3, 6 and 7 are the daughters of the First Defendant.
(iii) According to the Plaintiff, on 21.10.1961, the Plaintiff's father executed a deed of settlement in respect of the suit house in favour of the Plaintiff and the Second Defendant, who was a minor then and who was represented by the Plaintiff. According to the said deed, the settlor was to be in possession and enjoyment of the house till his life without in any way encumbering the same, that on his death, the Plaintiff and the Second Defendant were to possess and enjoy their respective portions in the house as absolute owners thereof and that nobody else had any right, title or interest in the property.
(iii) According to the Plaintiff, the settlor inducted Defendants 8 to 13 into possession as tenants in respect of the room portions. At the instance and instigation of the First Defendant, the settlor made hurrying attempts to alienate the suit properties by way of sale to one Kandaswamy. The Plaintiff and Defendant filed a Suit in O.S No. 1934 of 1981 on the file of District Munsif Court, Coimbatore for permanent injunction against the settlor restraining him from alienating the suit properties. Subsequently, at the request of the settlor, the Plaintiff did not press the Suit. On 12.7.1984, the Plaintiff and the settlor executed a deed of sale in respect of Door Nos. 48 and 49 forming part of the suit property to one Suppathal. On 24.5.1986, the settlor died and the deed of settlement came into effect. Under the said deed, though the title and ownership vested in the Plaintiff and the Second Defendant on the date of its execution itself, possession of the suit properties were stood postponed till the life time of the settlor. After the death of the settlor, the settlees became entitled to the possession and enjoyment of their respective shares.
(iv) According to the Plaintiff, On 16.6.1986, the Plaintiff issued lawyer's notice to the First Defendant to deliver vacant possession and called upon the Defendants 8 to 13 to pay the arrears of rent and future rents also to her. On 27.6.1986, the Defendants 1 and 2 sent a reply denying the title of the Plaintiff to the priorities settled on her. The Defendants 1 and 2 averred that the settlement was revoked by the settlor by execution of deed of cancellation on 21.4.1962 The Defendants 1 to 7 have absolutely no manner of right, title or interest in the properties. Owing to their mala fide denial of title and wilful default of payment of rents to her, the Plaintiff launched proceedings for eviction against them in R.C.O.P Nos. 241, 235, 242, 237, 243 and 250 of 1986. Since the Defendants 1 to 7 in their reply notice denied the title of the Plaintiff, the Plaintiff has filed the Suit.
5. The brief case of the Defendants 1 to 7 are as follows:
(i) According to the Defendants, the Plaintiff's father did not marry Nanjammal after the death of the Plaintiff's mother. The First Defendant is not a concubine of Plaintiff's father namely, Chinnasamy. The suit house as described in the Plaint is not involved in the document dated 21.10.1961 The deed of settlement 21.10.1961 was brought about by fraud and undue influence by the Plaintiff and her husband. Late Chinnasamy had no intention to gift the property. He was not aware of the contents of the document. The Plaintiff and her husband mislead the executant to put the signature by misrepresentation and fraud and he was straightway taken to the Nursing Home after the document was registered. The document dated 21.10.1961 cannot be construed as a gift. The promise from the Plaintiff, which is a condition of the settlor having executed the deed of settlement not having been fulfilled by the settlees the disposition made under the document go defeated. The debt to the Bank was settled only by the settlor. The settlement was not acted upon. The settlor by registered document dated 21.4.1962, revoked the settlement dated 21.10.1961 Therefore no rights vested to the settlor under the document dated 21.10.1961 The document dated 21.10.1961 did not transfer the title to the settlees “in praesenti”. The document recited that her title to the property would vest in the settlees only after the life time of the settlor. Therefore, it is only a Will and as such validly revoked by the settlor even during his life time.
(ii) According to the Defendants, late Chinnasamy had begotten three sons and three daughters through his second wife, the First Defendant. In order to maintain his large family, he had to incur debts. Therefore, late Chinnasamy wanted to alienate a portion of his property namely, the suit property to meet the family expenses. In view of dismissal of Suit in O.S No. 1934 of 1981, the present Suit is barred by Principle of res judicata. The Plaintiff joined in the execution of the Sale Deed dated 12.7.1984 along with late Chinnasamy only at the instance of the buyer.
(iii) According to the Defendants, a family arrangement was effected by late Chinnasamy during the end of June and early July 1984 wherein, it was decided that the property of Cninnasamy shall be managed by him during his life time, and after his life time, it will be so managed by the First Defendant and the income from the property shall be utilised for the marriage expenses of the remaining two unmarried sons and two unmarried daughters of Chinnasamy. It was also decided to pay some amounts to the four children of late Chinnasamy through his senior wife. Therefore, the Defendants prayed for dismissal of the Suit.
6. The brief case of the Defendants 8 to 12 and 14 are as follows:
According to the Defendants they are paying the rents to the First Defendant till they received summons from the Court in the present Suit. According to the Defendants they are entitled to the protection under the Tamil Nadu Buildings (Lease and Rent Control) Act and therefore, no decree could be passed against them for the possession of the properties in their occupation. Therefore, the Defendants prayed for dismissal of the Suit.
7. Before the Trial Court, on the side of the Plaintiff, 2 witnesses were examined and 14 documents-Exs.A-1 to A-14 were marked and on the side of the Defendants, 3 witnesses were examined and 9 documents Exs. B-1 to B-9 were marked.
8. The Trial Court after taking into consideration, the oral and documentary evidences of both the parties, decreed the suit except the prayer for past damages.
9. Aggrieved over the judgment and decree of the Trial Court, the Defendants 1, 3 to 7 preferred Appeal in A.S No. 260 of 1991 on the file of I Additional District Court, Coimbatore and the lower Appellate Court also confirmed the judgment and decree of the Trial Court and dismissed the Appeal.
10. Aggrieved over the judgments and decrees of the Courts below, the Defendants 1, 3 to 7 have preferred the above Second Appeal.
11. Heard Mr. R. Subramanian, learned counsel appearing for the Appellants, Mr. S.V Jayaraman, learned Senior Counsel for the First Respondent and Mr. MA.P Thangaval, learned counsel for the Second Respondent.
12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:
“(i) Whether the Courts below are right in holding Ex.A-1 as a settlement deed?
(ii) When Ex.A-1 is not a mere gratuitous transfer by the executant in favour of the Plaintiff and the Second Defendant and in consideration of the property the Plaintiff was not merely made liable to pay the debt incurred by the executant but also she undertook the burden of maintaining the executant and when the transferees under Ex.A-1 could to have accepted the gift of the properties without the burden imposed upon them, whether Ex.A-1 can be construed as a gift as defined in Section 122 of the T.P Act?
(iii) Whether the Suit is barred by limitation under Article 58 of the Limitation Act ?”
13. On a careful consideration of the materials available on record and the submissions made by both the counsels, it could be seen that Respondents 3 to 9, who are the tenants in respect of the suit properties, had vacated the premises. The Appellants also given up Respondents 3 to 9 in the Second Appeal. The First Respondent is claiming title over the suit property by virtue of Ex.A-1-document dated 21.10.1961 According to the First Respondent Ex.A-1 is a settlement deed. According to the Appellants Ex.A-1 is only a Will. It is not in dispute that the father of the First Respondent Chinnasamy, executed Ex.A-1 document in favour of the Respondents 1 and 2. The said document was revoked by the said Chinnasamy under Ex.A-14 deed of revocation dated 21.4.1962 According to Ex.A-1-document, the executant was to be in possession and enjoyment of the suit house till his life time without in any way encumbering the same, that on his death, the Respondents 1 and 2 were to possess and enjoy their respective portions in the house as absolute owners thereof. The executant allotted ground portion of the house bearing Door Nos. 41 to 45 and 47 and the 3 coconut trees standing to the north of the 2 coconut trees on the south, with equal rights in the latrine and bath room situate immediately east and south of Door No. 37 to the First Respondent. The executant gave the rooms now bearing the Door Nos. 39 and 40 along with the 2 southern coconut trees, a common half share in the said bath room and latrine with the right of way over the north-south passage situate immediately west of Door Nos. 34 to 35 on the eastern extremity of the house leading to the Perur Main Road to the second Respondent. It is also recited in the Ex.A-1-document that on consideration of the promise, the settlement was made. On consideration of the promise by the First Respondent to support the executant for the rest of his life and for discharging the mortgage debt of executant.
14. Since the question involved in the present Second Appeal is as to the nature of Ex.A-1-document i.e, whether Ex.A-1 document is a settlement deed or a Will, for deciding this issue it will be appropriate to extract Ex.A-1 document, which reads as follow:
15. The learned counsel appearing for the Appellants submitted that the recital in Ex.A-1 will clearly prove that it is only a Will and not a settlement. In support of his contention, the learned counsel relied upon the following judgments:
(i) P.S. Deivaprasad v. P.D. Balaji, 2001 (1) CTC 520, wherein it is held as follows:
“Where there is absolute and instantaneous transfer of interest in praesenti to beneficiary and where there is absolute or complete disinvestment of right, title, interest of executant on date of execution it is settlement. Where conferment of right is postponed till life-time of executant and beneficiaries will get interest after life-time of executant it is Will.
(ii) K. Balakrishnan v. K. Kamalam, 1997 (1) MLJ 169, wherein it is held as follows:
“Donor was absolute owner of property gifted and enjoyment was not restricted to co-donor personally - Donor inherited property as full owner - Gift deed executed in the present case is not invalid merely because donor had reserved possession and enjoyment of property gifted till her life time.
(iii) Rajammal v. Pappayee Ammal, 2002 (4) CTC 406, wherein it is held as follows:
“32. from the above said decisions, we can formulate the following broad formula to be applied to find out the nature of the document:
(i) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the phraseology used therein.
(ii) The nomenclature (settlement or Will) given in the document is not a deciding factor.
(iii) The registration of the document and the quantum of stamp paper; used also have to be taken into consideration.
(iv) 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.
(v) Though actual disposition can be postponed till the life time 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.
(vi) 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.
(vii) If the executant is entitled to be in possession of the property and enjoy the benefits during his lifetime with the power to encumber, the document has to be construed only as a Will.
(viii) 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.”
(iv) Subbegowda (dead) by LRs. v. Thimmegowda (dead) by LRs,, 2004 (3) CTC 359, wherein it is held as follows:
“Where document does not disclose intention to transfer property, same would be construed on basis of what it reads and what is explicit from contents of documents.”
(v) Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, 1997 (2) SCC 255, wherein it is held as follows:
“A document has to be read harmoniously as a whole giving effect to all the clauses contained in the document which manifest the intention of he person who executed the document.”
16. Per contra, learned Senior Counsel appearing for the First Respondent submitted that Ex.A-1 document is a settlement deed executed in favour of Respondents 1 and 2, therefore, the same cannot be revoked by Ex.A-14-revocation deed dated 21.4.1962 In support of his contention, the learned Senior Counsel relied upon the judgment reported in K. Balakrishnan v. K. Kamalan, 2004 (1) CTC 146, which reads as follows:
“Donor was absolute owner of property gifted and enjoyment, was not restricted to donor personally. Donor inherited property as full owner. Gift deed executed in the present case is not invalid merely because donor has reserved possession and enjoyment of property gifted till her life time.
17. On a careful consideration and the submission made by both the learned counsels, the materials available on record and also the decisions relied upon by the respective learned counsels, on a reading of Ex.A-1 document, it could be seen that in the 4th paragraph, the executant namely Chinnasamy, has stated that the executant was to be in possession and enjoyment of the house till his life time without in any way encumbering the same, that on his death, the Respondents 1 and 2 were to possess and to enjoy their respective portions in the house as the absolute owners thereof and that nobody else have any title or interest in the property. It is also recited in Ex.A-1-document that the document was made on consideration that the promise by the First Respondent to support the executant for the rest of his life and for discharging the mortgage debts of the executant.
18. The learned Senior Counsel for the Respondents submitted that since the executant has stated in paragraph No. 3 of the document that he is settling the property in favour of Respondents 1 and 2 and in view of the said recital, it shows that transfer of interest “in praesenti” in favour of the beneficiaries. However, in the next paragraph in Ex.A-1 document, the executant has specifically stated that the beneficiaries namely, Respondents 1 and 2 are entitled to absolute right only after his life time. That apart, by the execution of Ex.A-14-revocation deed dated 21.4.1962, the executant revoked the Ex.A-1-settlement deed executed in favour of Respondents 1 and 2. A combined reading of paragraph No. 4 in Ex.A-1-document and Ex.A-14-revocation deed, it could be seen that the intention of the executant was only to give the properties to the Respondents 1 and 2, only after his life time. That apart, there was no vesting of right on the date of execution of Ex.A-1-document. This will prove that Ex.A-1-document is only a Will and not a settlement.
19. Applying the principles laid down in the above decisions, it could be seen that when there is absolute and instantaneous transfer of interest in praesenti to the beneficiaries and where there is absolute or complete divestment of right, title, interest of executant on the date of execution then the document can be construed as settlement. Where the conferment of right is postponed till the life-time of executant and if the beneficiaries get interest only after the life-time of the executant, the document has to be construed only as a Will. The nomenclature given in the document is not a deciding factor. Though Ex.A-1-document has been mentioned as settlement deed, it cannot be construed as a settlement deed. As per Ex.A-1-document, the beneficiaries, namely, Respondents 1 and 2 were restricted to encumber or alienate the properties during the life time of the executant. This will also prove that Ex.A-1-document is only a Will and not a settlement. The executant namely, Chinnasamy, imposes self-restriction with reference to encumbrance, though he is in possession of the property after the execution of Ex.A-1-document. Power to enjoy the benefits from the properties will also prove that the executant's intention was to write only a Will and not a settlement. There is no vesting of right in praesenti.
20. In Ex.A-14-revocation deed, the executant has clearly mentioned that the possession was with him and that he was paying the property tax in respect of the suit properties. Therefore, on a reading of Ex.A-1 and A-14- documents, it is clear that the conferment of right was postponed til] the life time of the executant and the beneficiaries were given right only after the life time of the executant. In Ex.A-1-document, the executant had also mentioned about the discharge of debts to the bank by the beneficiaries. However, by reading of Ex.A-14-revocation deed, it is clear that the beneficiaries, namely, Respondents 1 and 2 did not discharge the debts to the bank and subsequently it was discharged only by the executant. This is also one of the ground for the executant to revoke Ex.A-1-document by Ex.A-14-revocation deed.
21. In these circumstances, I am of the view that the Ex.A-1-document dated 21.01.1961 can be construed only as a Will and not as a settlement deed. Therefore, the executant have every right to revoke the Will which was rovoked by Ex.A-14-document. The revocation of Ex.A-1-document by Ex.A-14-document is valid.
22. Since it is found that Ex.A-1-document is a Will, the questions of law are decided in favour of the Appellant. The Courts below have erroneously found that Ex.A-1-document is a settlement deed which cannot be sustained. The judgments and decrees of the Courts below are liable to be set aside. Accordingly, the judgments and decrees of the Courts below are set aside. The above Second Appeal is allowed. However, there shall be no order as to costs.
MEHEK