Kunchiyan Janaky v. Mathevi Nachi — 1955 DIGILAW 151 (KER)

Judgment :- 1. The 1st defendant is the appellant. The properties described in the plaint schedule originally belonged to one Kali Mathevi and sons, Raman Kesavan and the 2nd defendant. They executed a Settlement deed Ext. I or A dated 28.3.1100. According to the plaintiff, this deed conveyed title to her over the plaint schedule properties, subject to a life interest reserved in favour of the executants. Raman Kesavan died in the year 1107 and after his death, Kali Mathevi and the 2nd defendant executed a deed of cancellation Ext. II dated 16.12.1108, cancelling Ext. I. On the same day, they sold under Ext. III, the properties to the 1st defendant who is the wife of the 2nd defendant. Kali Mathevi died on 12.9.1119. The plaintiff's case is that she performed the funeral rites of Raman Kesavan and Kali Mathevi as stipulated in Ext. I. After Kali Mathevi's death, the 1st defendant attempted to take the yield from the properties and the plaintiff filed a criminal complaint against her. It was during the pendency of the same that the plaintiff came to know of Exts. II and III. She accordingly instituted this suit for cancellation of Exts. II and III on the ground that Kali Mathevi and the 2nd defendant were not competent to execute the deeds, in view of Ext. I. The 2nd defendant died during the course of the suit and defendants 1 and 3 to 7 were impleaded as his heirs. The 1st defendant resisted the suit contending that Ext. I was not a gift but was only a will and that even if it was a gift it was not accepted by the plaintiff and it had not come into effect. The trial court upheld the defendant's contentions and dismissed the suit holding that Ext. I was not accepted by the plaintiff. The plaintiff's appeal to the District Court was allowed reversing the decree of the trial court and decreeing the suit as prayed for. 2. The first point raised on behalf of the appellant is that Ext. I is a Will and not a transfer inter vivos. Though this contention was raised in the written statement, it does not appear to have been pressed in the courts below. However as the point was raised in the written statement and was argued at some length, the same may be considered. I is a Will and not a transfer inter vivos. Though this contention was raised in the written statement, it does not appear to have been pressed in the courts below. However as the point was raised in the written statement and was argued at some length, the same may be considered. Various decisions were cited by both sides as to the construction of such deeds. It has to be stated that these decisions are helpful only to show the grounds which appealed to courts in construing such documents one way or other. The question whether a certain document is testamentary or a transfer inter vivos depends on the intention gathered from the document itself in the light of the surrounding circumstances. Some of the tests which have been applied by courts are, the name by which a document is styled, the registration of it, the reservation of a power of revocation, the use of the present and future tense, possession of the deed and possession of the properties. The decision of these cases depended on the construction of the particular documents in each case. 3. The circumstances under which Ext. I was executed may be construed. Kali Mathevi and her sons partitioned their tarwad properties in the year 1108. It is seen from Ext. I that at the time of partition, certain properties were kept apart so that some provision could be made for looking for Kali Mathevi. The plaintiff belonged to a collateral branch of the tarwad and was not entitled to a share in the properties partitioned. The properties kept apart in partition for this purpose were dealt with under Ext. I. Raman Kesavan and the 2nd defendant were both married before that time. Ext. I was executed at the time of the execution of the partition deed and the plaintiff not being a person having community of interest with the executants of the partition deed, could not join in the execution of the same. 4. It was provided in Ext. I. Raman Kesavan and the 2nd defendant were both married before that time. Ext. I was executed at the time of the execution of the partition deed and the plaintiff not being a person having community of interest with the executants of the partition deed, could not join in the execution of the same. 4. It was provided in Ext. I that during the life time of Kali Mathevi she was to take the yield of the properties and on her death Raman Kesavan and the 2nd defendant were to take the income jointly or according to their respective shares and that after their death, the plaintiff and her children were to get mutation of names effected in revenue records, to pay the tax and to enjoy the property with full rights. It was also stipulated that the plaintiff was to effect improvements in the properties from the date of execution of Ext. I, but that she could not take the income until after the death of the executants. She was also prohibited from committing any act of waste. It was also provided that she should look after Kali Mathevi as in the past and conduct the funeral ceremonies of the three executants of Ext. I. The preamble of the deed stated that the plaintiff was chosen as the person to whom the properties were to be conveyed as she was looking after Kali Mathevi in the past and as she belonged to a collateral branch of the tarwad. Learned Counsel for the appellant stressed the use of the word WLsLjfgU in the earlier part of Ext. I. The relevant passage is extracted below:- 5. Reliance was also placed on the fact that possession of the properties, the right to take the yield and the right to get mutation of names were not given to the plaintiff straightaway. The fact that possession of the original deed Ext. I was with the 1st defendant was also stressed and it was contended that it could not have been handed over to the plaintiff. 6. If the defence contention that Ext. I is a will has to be accepted, it means that Kali Mathevi and her two sons jointly executed one Will. Such a course cannot but be regarded as somewhat unusual. 6. If the defence contention that Ext. I is a will has to be accepted, it means that Kali Mathevi and her two sons jointly executed one Will. Such a course cannot but be regarded as somewhat unusual. Though the name given by the parties to the deed is not by itself conclusive it is significant to note that they described the document as a settlement deed and paid stamp duty accordingly. If it were a Will, it need not have been written on stamp paper. The registration of the document was also as a deed of settlement and not as a Will. No power of revocation was reserved in the deed. There is also the fact that the right of the executants to take the yield during their life time was reserved. This would have been unnecessary if the deed were to come into effect only on the death of all the executants. No doubt the Privy Council has pointed out in Thakur Ishri Singh v. Thakur Bal Deo Sinkh (ILR 10 Cal. 792) that much importance need not be given to such a reservation as it is a frequent thing in India to find documents which are Wills in fact making clear that the person disposing of the property reserved a life interest in the same. This dictum was given in the year 1884 when Wills were not well-known in India. It was expressly provided in the deed that the plaintiff could enter into possession and effect improvements. 7. This clause makes it clear that a right in presenti was created in favour of the plaintiff and that the enjoyment of the income alone was deferred. The word is used in three places in Ext. I. It was provided. 8. Judged in the light of the circumstances referred to above, these clauses have reference only to the fact that a life interest was reserved in favour of Kali Mathevi and her two sons. There is circumstance which strongly supports this inference. The 1st defendant deposed that as soon as registration of Ext. I was over, her husband protested to his brother about the execution of the deed and that it was decided by them that the same need not be given effect to. It is surprising to note that the revocation deed was not executed immediately. The 1st defendant deposed that as soon as registration of Ext. I was over, her husband protested to his brother about the execution of the deed and that it was decided by them that the same need not be given effect to. It is surprising to note that the revocation deed was not executed immediately. In fact, Kali Mathevi and the 1st defendant's husband waited for eight years to execute the same. By that time Raman Kesavan was dead. In one at least of the decided cases the fact that a deed of revocation was executed within a few days of the first deed was taken as a ground for holding that the intention of the donor was to execute only a will. The long delay in executing the deed of revocation in this case goes against the defendant. It is also significant that even in Ext. II, the parties did not treat Ext. I as a will. The fact that the plaintiff was to get the property transferred to her name in revenue records only after the death of the three executants was also relied on by the appellant. Deeds containing a similar provision came up for construction before the Travancore High Court in Kumaraswami Pillai Chinna Sankaranarayana Pillai v. Kanakku Thanumalayaperumal Pillai Madhavan Pillai (36 TLR 145) and Nagamma v. Chithraputhra Pillai and others (3 TLT 741). It was held that when life interest was reserved, it was not unusual to find such a provision regarding mutation of names and payment of tax and that the same was not very material. As regards possession of the deed, the plaintiff's version is that she was in possession of the same but that she gave it to Raman Kesavan later, at his request. The parties were moving very amicably up to the time of death of Raman Kesavan and there is no reason why the plaintiff should not be believed regarding this part of the case, especially as she was being treated almost of a member of tarwad. As regards possession of the properties, both sides have examined witnesses on this point and the whole evidence was placed before me. I am of opinion that the witnesses for the plaintiff should be believed in preference to the defence witnesses. In these circumstances I agree with the view of the learned judge and hold that Ext. As regards possession of the properties, both sides have examined witnesses on this point and the whole evidence was placed before me. I am of opinion that the witnesses for the plaintiff should be believed in preference to the defence witnesses. In these circumstances I agree with the view of the learned judge and hold that Ext. I was not a will but was a deed intended to come into effect as soon as it was executed. 9. The next question is whether Ext. I was accepted by the plaintiff. As held by this court in Gangadhara Iyer Ganapathysubramonia Iyer v. Kulathu Iyer Sankara Iyer (1951 KLT 479), it is sufficient if acceptance can be inferred from the surrounding circumstances. Ext. I was executed at the time of the execution of the partition deed. That the execution of Ext. I was well known to others even at that time is admitted by the defence witnesses. The plaintiff who must have been looking after Kali Mathevi at that time could not have been unaware of it. Kali Mathevi and her sons must have required an assurance from the plaintiff. She would continue to look after the old woman and conduct the funeral ceremonies of the three executants as provided in Ext. I. The plaintiff has sworn that she accompanied Kali Mathevi to the Sub-Registrar's Office when the parties went there for the registration of Ext. I. The evidence in the case shows that the plaintiff began to effect improvements in the properties after Ext. I was executed. It can therefore be found that she accepted Ext. I. The only other point that remains is the question whether Ext. I came into effect. The argument advanced by the learned counsel for the appellant is that the plaintiff did not perform the funeral ceremonies of Raman Kesavan and Kali Mathevi. The validity of the gift deed did not depend on her performance of these ceremonies and there cannot be any defeasance of the right obtained under Ext. I, even if she fails to do so. In the result the findings and decree of the lower appellate court are confirmed and the second appeal is dismissed with costs.