Parvathi Bhavani v. Velayudhan Govindan — 1956 DIGILAW 79 (KER)

Judgment :- 1. This appeal arises out of a suit for cancellation of a partition deed and a fresh partition of the properties comprised in the said deed. The parties are Ezhavas governed by the Travancore Ezhava Act, III of 1100. Defendants 1 and 2 are brother and sister respectively, and they are the children of one Kannan Velayudhan and his wife Kurumba Eachamma both of whom are now dead. Kannan Velayudhan died on 9.2.1116 and Eachamma on 6.7.1122. Plaintiffs 1 and 10 are daughters of defendant 2. Plaintiffs 2 to 8 are the children of plaintiff 1, and plaintiffs 11 and 12 are the children of plaintiff 10. Plaintiff 9 is the daughter of plaintiff 2. 2. Besides defendants 1 and 2 Kannan Velayudhan and Eachamma had two more children. Those two children also are now dead. One of them, Narayani, had a son named Sivadasan who too is now dead. Before Kannan Velayudhan's death, Kannan Velayudhan and Eachamma executed a settlement deed, Ext. A in favour of defendants 1 and 2 and Sivadasan on 18.11.1111. The settlement deed contains numerous provisions regarding the enjoyment of the properties dealt with therein. For the purpose of this case it is unnecessary to recapitulate here all those provisions and it will be sufficient to note that by Ext. A the properties dealt with thereunder were divided into three schedules and one of the schedules was allotted to defendant 1, another to defendant 2, and the third to Sivadasan. At the time of the execution of Ext. A Sivadasan's mother as well as the other child of Kannan Velayudhan and Eachamma were both dead, and so allotments were made under that document only to defendants 1 and 2 and Sivadasan. There is a dispute between the plaintiffs and the defendants as to whether the share allotted to defendant 2 under Ext. A was given for her exclusive benefit or for the benefit of her thavazhi consisting of herself and her children. After the execution of Ext. A Kannan Velayudhan made some more acquisitions. Those acquisitions are A schedule properties in the present suit. Sivadasan was a minor at the time of the execution of Ext. A, and he died subsequently, while he was still a minor and unmarried. The properties given to him under Ext. A are B schedule properties in this suit. Before the execution of Ext. Those acquisitions are A schedule properties in the present suit. Sivadasan was a minor at the time of the execution of Ext. A, and he died subsequently, while he was still a minor and unmarried. The properties given to him under Ext. A are B schedule properties in this suit. Before the execution of Ext. A Kannan Velayudhan and his brother had executed a gift deed, Ext. I, in favour of Eachamma and her children in 1091. The properties comprised in that gift deed are C schedule properties in this suit. While Eachamma was alive a partition deed, Ext. C, was executed by her and defendants 1 and 2 on 13.11.1119 whereby plaint A, B and C schedule properties were divided on the footing that they belonged only to defendants 1 and 2 and Eachamma and that the plaintiffs who are defendant 2's children and their issue had no right to them. The plaintiff's brought the present suit for cancellation of Ext. C and for partition of plaint A, B and C schedule properties. Their case was that A and C schedule properties were obtained by Eachamma's thavazhi as their sub tarwad properties from Kannan Velayudhan and his brother, that on Sivadasan's death B schedule properties also became the sub tarwad properties of the said thavazhi, that the partition deed, Ext. C, was invalid as it was executed only by Eachamma and defendants 1 and 2, that the other adult members of the sub tarwad had not joined in its execution or agreed to it, that its execution was also brought about by fraud and undue influence practised by defendant 1 on defendant 2, that the division of properties thereunder was unfair and inequitable, and that it was therefore liable to be set aside. Defendants 1 and 2 contested the suit filing separate written statements. They denied the case of fraud and undue influence alleged in the plaint and contended that the plaint properties belonged only to defendants 1 and 2 and Eachamma, that the properties were not sub tarwad properties at all and the plaintiff's had no right to them, that the other adult members of the tarwad were not necessary parties to the execution of Ext. C, and that Ext. C which was executed and agreed to by defendants 1 and 2 and Eachamma was perfectly valid and not liable to be set aside. C, and that Ext. C which was executed and agreed to by defendants 1 and 2 and Eachamma was perfectly valid and not liable to be set aside. The court below upheld their contentions and dismissed the suit with costs. The plaintiffs have therefore brought this appeal. 3. The allegation in the plaint that defendant 1 had practised fraud and undue influence on defendant 2 is not only supported by no evidence but is also denied by defendant 2 herself who has been examined as Dw.1. This question was not therefore pressed by the appellants' counsel in this Court. In view of the clear provisions in the Ezhava Act, III of 1100, relating to intestate succession to self-acquired and separate properties of males and the provision in Ext. I that the donees were to take the gift thereunder equally, without any distinction as to any of them being a male or female, ( kv{Xo ]pcpj t'Zasy ) the findings of the Court below that plaint A and C schedules were not the plaintiffs' sub tarwad properties and belonged only to defendants 1 and 2 and Eachamma in their individual rights at the time of the execution of Ext. C were also not seriously objected to at the time of hearing here. 4. Two points alone were pressed here - the first related to plaint B schedule properties which had been allotted to Sivadasan under Ext. A, and the other to the properties allotted to defendant 2 under Ext. A. After dividing the properties dealt with thereunder into three schedules it was provided in Clause.4 of Ext. A that the third schedule therein, namely, plaint B schedule properties, should be taken by Sivadasan as his absolute properties and that mutation of name was also to be effected in the revenue registers accordingly. By a subsequent clause, Clause.13, it was further provided that, if Sivadasan died while he was a minor or before he was married, the third schedule properties would be taken by defendants 1 and in equal shares. By a subsequent clause, Clause.13, it was further provided that, if Sivadasan died while he was a minor or before he was married, the third schedule properties would be taken by defendants 1 and in equal shares. The appellants' contention in respect of plaint B schedule properties is that, having conferred an absolute estate in respect of these properties on Sivadasan by Clause.4, it was not open to the donors to revoke that gift except in the manner provided for by S.126 of the Transfer of Property Act, that it was not possible to make in this case a revocation as allowed by S.126 of the Transfer of Property Act since Sivadasan was a minor at the time of the gift and also died while he was a minor and was not therefore in a position to agree to a revocation or any contract, that Clause.13 is in effect a revocation of the absolute gift made to him in Clause.4 and so it is repugnant to the absolute estate created in his favour by the gift and is invalid and of no effect, that therefore the devolution of plaint B schedule properties on Sivadasan's death would be according to the provisions in the Ezhava Act relating to intestate succession, and that on his death those properties devolved on the sub tarwad of Eachamma's thavazhi and became the plaintiffs' sub tarwad properties. Reliance was also placed in support of this contention on the decisions in Subramonian Asari v. Kanni Ammal Velamma, 1952 KLT 686, Krishnaswami v. Srinivasan AIR 1945 Madras 362, and Pugalumperumal v. Thangathammal, AIR 1949 Madras 690. 5. It is no doubt true that Clause.4 standing by itself creates an absolute estate in favour of Sivadasan, but S.28 of the Transfer of Property Act expressly allows the creation of such an interest subject to the condition that on the happening of a specified uncertain event the interest shall pass to another person. S.28 reads: "On a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. S.28 reads: "On a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in S.10,12, 21, 22, 23, 24, 25 and 27." There is no case that Clause.13 in Ext. A offends any of the provisions in S.10,12, 21, 22, 23, 24, 25 and 27. It is only S.126 that is said to be standing in the way of Clause.13 taking effect. S.126 reads: "The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice." Since the provision in Para.3 of S.126 is "save as aforesaid a gift cannot be revoked" the argument of the appellants' counsel is that it was possible to revoke the gift made in Clause.4 only in the manner provided for in Para.1 and 2 of S.126 and that no revocation was possible in this case as the donee was a minor and was incapable of making any agreement or contract before his death. S.28 expressly allows the gift of any interest in favour of the donee subject to the condition that on the happening of a specified uncertain event the interest shall pass to another person. In such a case what is really conferred on the donee under the first clause is only a life State even though the interest is described in that clause as an absolute estate, and the absolute estate, passes to the donee or donees under the second clause on the happening of the specified uncertain event. In such a case what is really conferred on the donee under the first clause is only a life State even though the interest is described in that clause as an absolute estate, and the absolute estate, passes to the donee or donees under the second clause on the happening of the specified uncertain event. The question has come up for specific consideration in Govindaraja v. Mangalam Pillai, AIR 1933 Madras 80 and Rameshwar Kuer v. Shiolal AIR 1935 Patna 401. In the Madras case a husband made an absolute gift to his wife subject to the condition that if she died without issue the properties would pass to other persons living on the date of the gift. The validity of the gift over, which was to take effect on the wife's death without issue, was challenged on the ground that it was a revocation of an absolute gift and was a repugnant provision. This contention was overruled by Sundaram Chetty, J. who observed: "The distinction between a repugnant provision and a defeasance provision is sometimes, subtle but the general principle of law seems to be, that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative." In the case in Rameshwar Kuer v. Shiolal AIR 1935 Patna 401, by the first part of a gift deed an absolute estate was conferred on three daughters of the donor, but the concluding clause provided that if any of the three daughters died issueless the surviving daughters shall in equal shares be the absolute proprietoresses of the properties. It was held therein that such a case was governed by S.28 of the Transfer of Property Act, that the word 'interest' in S.28 has the same meaning as the 'thing bequeathed' in the Succession Act, that the two clauses read together showed that the intention of the donor was to create only a life estate under the first clause and an absolute estate under the second clause after the determination of the life estate under the first clause by the happening of the specified uncertain event. The passage extracted above from the judgment of Sundram Chetty, J., in AIR 1933 Madras 80 was quoted with approval and followed in the Patna case. All the earlier case law on the question has been discussed in both the Madras and Patna cases. In a recent case, Mt. Tejo v. Chhape Ram, AIR 1956 Punjab 45, also it has been held that a defeasance clause providing that if the donee on whom an absolute estate is conferred dies issueless the property shall be taken on his death by another person named in the gift deed is not opposed to any rule of law and that the effect of such a defeasance clause would be to cut down the absolute estate granted to the donee under the first clause to a mere life estate. The gift to the donee under the first clause is therefore only a gift of a life estate and the defeasance clause will not be repugnant to that gift and will not offend the provisions of S.126 of the Transfer of Property Act. The apparent conflict between S.28 and 126 will thus be resolved. 6. In the cases relied upon by the appellants' counsel there was no ulterior transfer to a second donee conditional on the happening or not happening of a specified uncertain event, that is to say, they were not cases coming under S.28 of the Transfer of Property Act. The cases in Subramonian Asari v. Kanni Ammal Velamma,1952 KLT 686 and Pugalumperumal v. Thangathammal, AIR 1949 Madras 690, were of simple revocation of the gift on the happening of a specified uncertain event and the property reverting to the donor. They were therefore cases directly hit by S.126 of the Transfer of Property Act and not coming at all under S.28. They were therefore cases directly hit by S.126 of the Transfer of Property Act and not coming at all under S.28. The effect of S.28 did not arise for consideration and was not considered in either of them. In Krishnaswami v. Srinivasan AIR 1945 Madras 362, also on a construction of the deed of gift it was held that there was no ulterior transfer to a second donee conditional on the happening of a specified uncertain event and that the document had only provided for a devolution of the property on the wife's death which was not allowed by law. The provision in the document was that if that first donee died without disposing of the properties during her life time another person was to take them after her death. Chandrasekhara Aiyar, J. held this provision to be invalid observing: "The Tamil words are "avanukku irukkum" making it perfectly clear that the testator was not contemplating a devise of his properties which Soundaravalli Amma was to enjoy during her lifetime with powers of alienation but was dealing with properties that would belong to her absolutely after his death and providing for their devolution after her death. He had no power to make such a provision, after giving his wife an absolute estate." This is not what has happened in the present case. Here the donor was actually making an ulterior devise or transfer of the property to take effect on the happening of a specified uncertain event and was not making a simple provision for the succession or devolution of property which had been absolutely given to the donee. We hold that Clause.13 of Ext. A is only a defeasance clause which can be made under S.28 of the Transfer of Property Act and that it is valid and would take effect. It follows that the Court below was right in holding that on the death of Sivadasan plaint B schedule properties devolved on defendants 1 and 2 and not on the sub-tarwad of Eachamma's thavazhi. 7. In Para.9 of its judgment the Court below has said that the gift made under Ext. A to defendant 2 was intended for her exclusive benefit and was not made in her name for and on behalf of her thavazhi, that is to say, according to the Court below, the gift made under Ext. 7. In Para.9 of its judgment the Court below has said that the gift made under Ext. A to defendant 2 was intended for her exclusive benefit and was not made in her name for and on behalf of her thavazhi, that is to say, according to the Court below, the gift made under Ext. A does not enure to the benefit of her thavazhi and so the plaintiffs are not entitled to claim the properties comprised in that gift as their sub¬tarwad properties. There was no occasion to make any pronouncement on this question since the properties comprised in the gift made to defendant 2 under Ext. A are not involved in this suit. The appellant's counsel therefore prayed that the observations in Para.9 of the judgment of the Court below which were to the effect that the gift made to defendant 2 under Ext. A was a gift to her alone and not a gift made to her thavazhi and that the plaintiffs are not therefore entitled to claim those properties as their sub-tarwad properties might be deleted. As the said properties are not involved in this suit we would leave the question open as to whether the gift made to defendant 2 under Ext. A enures to her exclusive benefit or to the benefit of her thavazhi as a whole. 8. Subject to the observation made in Para.7 above the decree of the Court below is confirmed and this appeal is dismissed. In the circumstances of the case parties will bear their costs in this Court.