Ulahannan Isaac v. Ulahannan John — 1981 DIGILAW 32 (KER)

JUDGMENT P. Janaki Amma, J. 1. The appellant is the plaintiff in O. S. No. 127 of 1965 on the file of the Munsiff, Muvattupuzha. The plaintiff and defendants 1 and 2 are the children of the 3rd defendant, Ulahannan Ulahannan, and the 4th defendant, Acha. Ext. P-1, described as a settlement deed was executed by defendants 3 and 4 in respect of their properties. The document recited that moveables belonging to the executants had been divided among their children and that the subject-matter of the desposition was the moveable properties and the liabilities. The A schedule items were allotted under the document to the 1st defendant, B schedule items to the plaintiff and the G schedule items to the 2nd defendant. On the date of the document certain of the properties along with some properties of the plaintiff were outstanding under a chitty hypothecation bond represented by document No. 871/58 and an amount of Rs. 3,000 remained to be paid. The plaintiff was directed to discharge the liability. An amount of Rs.2,000 was directed to be paid by the 2nd defendant to Chinnamma, the daughter of the executants within a period of 2 years from the date of the document. In case the plaintiff and the 2nd defendant did not pay the amounts directed to be paid by them respectively, the 3rd defendant in his life-time and the 4th defendant thereafter, if she was living, would be entitled to discharge the debt by sale of the items in the B and G Schedules. The executants reserve the right to reside in the property in the C Schedule and to take the usufructs of the items in the different schedules during their life-time either directly or by granting leases. The document further recited that in case the plaintiff and defendants 1 and 2 omitted to discharge debts or failed to maintain defendants 3 and 4 the latter had the right to cancel the document. The executants had the right to execute any document in respect of the items by themselves; but in case the plaintiff or defendants 1 and 2 were to sell any of the items, they could do so only with the concurrence of defendants 3 and 4. 2. According to the plaintiff, after the execution of the document he had been subscribing to the chitties and was in possession of the properties allotted to him. 2. According to the plaintiff, after the execution of the document he had been subscribing to the chitties and was in possession of the properties allotted to him. However defendants 3 and 4 under the influence of defendants 1 and 2 executed Ext. P-6, an assignment deed in favour of the 1st defendant in relation to items 1 and 2 in the plaint and also Ext. P-7 a lease deed in favour of the 5th defendant in respect of item No.3. The plaintiff would contend that the 3rd defendant had no right to execute such documents. The suit was accordingly filed for a declaration that Ext. P-6 the assignment deed and Ext. P-7 the lease deed were not valid and binding on the plaintiff. In the alternative the plaintiff claimed recovery of amounts spent by him in discharging the debts as per the directions in Ext. P-1 and also for value of improvements. 3. Defendants 1, 3, 4 and 5 contested. The 2nd defendant was removed from the array of parties. The contentions of the defendants were as follows: The plaint schedule item No.2 was assigned by the 3rd defendant in favour of the 4th defendant in consideration of the sthree-dhanam amount obtained by him. That property belongs to the 4th defendant absolutely. Item No.1 was outstanding on usufructuary mortgage. That mortgage right was obtained by the 5th defendant and the item is therefore in possession of the 5th defendant. The equity of redemption over item No.1 and the plaint schedule item No.2 were sold by the 3rd defendant to the 1st defendant, since the plaintiff did not discharge the chitty and other liabilities. The 5th defendant is in possession of the items both under the usufructuary mortgage and under the lease. The defendants further contended that possession of the properties covered by Ext. P-1 was all along with defendants 3 and 4 and never passed to the allotees. According to them, the document Ext. P-1 is only a Will and the title to the properties did not vest with the plaintiff. No improvements were effected by the plaintiff in the properties. The documents are not liable to be set aside. The trial court held that Ext. P-1 was not a settlement deed and that it was only a will executed by defendants 3 and 4 would have taken effect only on the death of defendants 3 and 4. No improvements were effected by the plaintiff in the properties. The documents are not liable to be set aside. The trial court held that Ext. P-1 was not a settlement deed and that it was only a will executed by defendants 3 and 4 would have taken effect only on the death of defendants 3 and 4. The court also held that there was failure on the part of the plaintiff to comply with the directions contained in the document and therefore defendants 3 and 4 were justified in disposing of the properties. Such disposal was in pursuance of the terms in the document and as such binding on the plaintiff. The court further held that the plaintiff having discharged an amount of Rs.2,273 was entitled to recover the said amount from the 3rd defendant. The amount was directed to be paid interest charged on the plaint schedule property. A personal decree was also given againt defendants 3 and 4, The plaintiff filed A.S, No.148 of 1970 against the above decree. The appellate court confirmed the decision of the trial court regarding the testamentary character of Ext. P-1 disposition. The appellate court held that the plaintiff was entitled to an amount of Rs.2,793 86 with interest at 6 per cent per annum from the date of the suit till the date of realisation. The above decree is challenged in the present Second Appeal. 4. The main contention put forward on behalf of the appellant is that Ext. P-1 is not a Will as found by the courts below but that it is a deed of settlement conferring rights in praesenti to the plaintiff and defendants 1 and 2 in the properties of defendants 3 and 4. The properties allotted to the respective sons vested in the allottees on the execution of the document. The fact that the defendants 3 and 4 retained their right to take the usufructs of the properties either directly or by execution of a lease deed does not detract the character of the document as a settlement deed. The fact that the plaintiff and the 2nd defendant are directed to discharge the liabilities outstanding the properties even during the life-time of the defendants would only show that they obtained a right in praesenti in the properties. If the recitals in Ext. The fact that the plaintiff and the 2nd defendant are directed to discharge the liabilities outstanding the properties even during the life-time of the defendants would only show that they obtained a right in praesenti in the properties. If the recitals in Ext. P-1 had the effect of vesting the properties in plaintiff and defendants 1 and 2, there could not be a subsequent divesting and the defendants 3 and 4 were not entitled to revoke the document. The clause relating to revocation of the document could not have therefore taken effect. The direction that the executees are entitled to sell the properties only with the concurrence of defendants 3 and 4 being a restraint on alienation is not binding on the plaintiff. 5. From the contentions raised it is seen that the main question involved in the appeal relates to the character of the interest created under Ext. P-1 and whether the document represented a Will or a settlement deed. In deciding whether a document is a Will or a settlement, Courts will generally take into account the name given to the document, whether the document is registered, whether language used in the document would indicate a present vesting of the properties and delivery of possession, whether there is any reservation of life-inberest in the executant and whether there is any reservation of power of revocation. 6. "A Will" says Mr. Jarman" "is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristic of Wills; for, though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. It is this ambulatory quality which forms the characteristic of Wills; for, though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the instrument. Thus, if a man by deed, limit lands to the use of himself for life, with remainder to the use of A in fee, the effect upon the usufructuary enjoyment is precisely the same as if he should by his Will, make an immediate devise of such lands to A in fee; and yet the case fully illustrates the distinction in question; for, in the former instance, A immediately on the execution of the deed, becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the settler, while, in the latter, he would take no interest whatever until the decease of the testator should have called the instrument into operation." (Jarman on Wills, 8th Edition, Volume 1, page 26). 7. If the connotation given by the parties to the document is a guideline in deciding its nature, Ext.P-1 is a Dhananischayadharam, suggesting thereby that the executants thereof intended to settle their properties on their children with immediate effect. The mention in the document, that the moveable properties had already been divided among the children, would also suggest that the intention of the executants was to distribute their immovable properties also likewise during their life- time. The direction to pay Rs.2,000 to Chinnamma, the daughter of the executants, within two years of the document and that the plaintiff should subscrible to the chitty and discharge the liability charged on the properties allotted to his share would indicate that the executants wanted that the document should take effect immediately, and during the lifetime of the executants. The reservation of a life-interest is not inconsistent with the document being a settlement. If the intention of the parties was that the document should take effect immediately, the mere fact that the executants retained in them the right to take the usufructs of the properties will not convert what is otherwise a settlement into a Will. It is no doubt true that the executants retained right of alienation and the right to revoke the document. It is no doubt true that the executants retained right of alienation and the right to revoke the document. Such a right is to be exercised only in case the plaintiff and the 2nd defendant failed to discharge the debts or if there was failure on the part of the children to maintain the parents. But if there was a vesting of the properties on the sons on the date of execution of the document, there could be no divesting and the clauses relating to alienation and cancellation may not take effect as they are against the principles contained in section 10 of the Transfer of Property Act. The executant, no doubt, can enforce the clause conferring a life-interest in the usufructs of the properties. 8. The question relating to interpretation of documents and whether a particular document is a settlement or a Will has come up before the several Courts in the country on different occasions and the principles are now well recognised. In Thakur Ishri Singh v. Thakur Baldee Singh (10 cal. 792 (p.c.)), the Prevy Council held, that if there are contingencies mentioned in the document which might not be ascertained till the death of the maker of the instrument, the instrument may not be a transfer inter vivos, but a Will. In Debi Bakksh Singh v. Habib Shah (I.L.R. 35 All. 337), a father divided the family properties among his children taking no share for himself. The document was described as a Will. The eldest son was allotted double the share of the other two sons. There was a clause in the document to the effect that the sons were to be in separate possession of the estate in the beginning of the year 1303 Fasli. There was a further provision that, "If I at any time come back from pilgrimages and find mismanagement or character of any one had then I shall have power to cancel this Will which shall be enforced from the date of its execution". Mutations were effected on the basis of the document and a division had been assented to, acquiesced in and acted upon by the sons. After the death of the father a suit was brought by the two younger sons claiming that they were entitled to a 1/8 share each. Mutations were effected on the basis of the document and a division had been assented to, acquiesced in and acted upon by the sons. After the death of the father a suit was brought by the two younger sons claiming that they were entitled to a 1/8 share each. It was held by the Privy Council that the document was not a Will but a family arrangement contemporaneously made and acted upon by the parties; the effect of which was to create a partition of the joint ancestral property. It was also held that the provision in the Will evidenced a contractual condition which the sons accepted in order to obtain partition and immediate possession of the property, and viewed thus the contractual acceptance of a power of forfeiture in case of bad behaviour would not be sufficient to prevent the partition operating in praesenti. In Rajammal v. Authiammal (I.L.R. 33 Madras 304), it has been held that the fact that the paper is drawn in the form of an agreement and that it is registered, are circumstances to be taken into consideration in deciding whether the document is a Will or a settlement. Where the document contains provisions which are not of an ambulatory character, the presumption will be against the testamentary nature of the document and the fact that such provisions are expressed to operate in future will not affect the nature of the document. The reservation of a life-interest does not by itself suffice to make the document testamentary. In Pardap Das v. Nand Singh (A.I.R. 1924 Lahore 729), there was a dispute regarding the title to the properties. Under a compromise certain properties were directed to be surrendered to the plaintiff. The remaining items were to be in the possession of the defendants, subject to the condition that the defendants should have no power to alienate the land. Subsequently, the defendants alienated portions of the land by way of mortgage. The plaintiff sought a declaration that the mortgage was null and void. It was held that the restriction in respect of alienation was null and void inasmuch as it was opposed to the principles underlying the provisions of section 10 of the Transfer of Property Act. Subsequently, the defendants alienated portions of the land by way of mortgage. The plaintiff sought a declaration that the mortgage was null and void. It was held that the restriction in respect of alienation was null and void inasmuch as it was opposed to the principles underlying the provisions of section 10 of the Transfer of Property Act. In Gomti Singh v. Anari Kuar (A.I.R. 1929 Allahabad 492), a Hindu following the mitakshara school executed a documer making his two wives along with himself joint owners of hr property, with a direction that neither he nor his wive should transfer the share without the consent of all. It was held that he and his wives got a 1/3 share in the property and that the provision prohibiting transfer was an absolute restraint within the meaning of section 10 of the Transfer of Property Act, and as such, it was void. In Brij Devi v. Shiva Nanda Prasad (A.I.R. 1939 All. 221), a gift deed was executed with a restriction that the donee or his successor had no right to transfer the property and that if they did transfer the same would be invalid and the donor or his successor would have a right to revoke the gift. It was held that the donee got full proprietary title to the property gifted and the condition restraining the donor's right of alienation being a condition repugnant to the estate created in him was void and inoperative. To the same effect are the decisions in T. V. Sangam Ltd. v. Shaumughasundaram (A.I.R. 1956 Punjab 255). 9. In the instant case the appellate court has laid considerable stress on the clause in Ext. P-1 as to what should happen in case after the death of the executants the full rights in the property vests in the children and the debts remained undischarged. This clause, according to the appellate Judge, would suggest that the full rights in the property would vest in the children only after the death of the executants. But the court over-looked the fact, that there is a clause in the document under which the executants reserved their right to take the usufructs on the property during their lifetime. So long as the sons did not have the right to take the usufructs in the property it could not be said that the full rights vested in them. But the court over-looked the fact, that there is a clause in the document under which the executants reserved their right to take the usufructs on the property during their lifetime. So long as the sons did not have the right to take the usufructs in the property it could not be said that the full rights vested in them. Therefore, the above referred clause does not in any way detract the document from being a settlement. On the other hand, the clause relating to the discharge of debts casts a liability on the sons even during the lifetime of the executants and this only leads to the conclusion that the executants wanted the document to take effect even during their lifetime. 10. Reference was also made to an earlier suit filed by the plaintiff for an injunction restraining defendants 1, 3 and 4 from interfering with his possession. That suit was no doubt dismissed by the Court. But the dismissal of the suit does not in any way affect the interpretation of the document, Ext. P-1, because the suit was dismissed on the ground that under the terms of Ext. P-1 defendants 3 and 4 were entitled to take the usufructs of the property and therefore the plaintiff had no exclusive right in the property. As already stated, a reservation of the right to take the usufructs of the property during the lifetime of the executants need not necessarily mean that the document is testamentary in character. In the preamble to the document defendants 3 and 4 have mentioned that what prompted them to execute the document was their impression that a partition of the properties would facilitate the sons to effect improvements in the respective items allotted to them. There is evidence in the case to show that both the plaintiff and the first defendant have effected improvements, though the trial Court did not allow the value thereof to the plaintiff. It is seen that the first defendant is staying in a house constructed by him in the item allotted to him. This would also indicate that the intention of the parties was that the allotment should take effect during the lifetime of defendants 3 and 4. 11. For the above reasons I am unable to agree with the interpretation that the trial court and the appellate court have given to Ext. P-1. I hold that Ext. This would also indicate that the intention of the parties was that the allotment should take effect during the lifetime of defendants 3 and 4. 11. For the above reasons I am unable to agree with the interpretation that the trial court and the appellate court have given to Ext. P-1. I hold that Ext. P-1 is a family settlement, under which the sons of the executants got a right in praesenti, subject to the right of the executants to take the income of the property during their lifetime. If the document is a settlement deed the fact that it contains a clause restraining alienation of the property or reserving the right to alienate in the executants may not be of much avail. 12. Assuming that the clause would entitle the executants to assign the property in case the plaintiff omitted to pay the debts directed to be paid by him the further question is whether the conditions under which the right was to be exercised has been satisfied in the instant case. Under the terms of the document, Ext. P-1, the first plaintiff was to discharge the amount as per Ext. D-1 the chitty hypothecation bond to the extent of Rs. 3,000. According to defendants 1, 3 and 4, the plaintiff omitted to discharge the debt and a notice was sent to the first defendant demanding the amount, and that was the reason why Ext. P-6 happened to be executed. A perusal of Ext. P-6 would go to show that out of the consideration of Rs. 3,000 the first defendant was to pay Rs. 1,372 for discharging the debt under the chitty hypothecation bond. Out of the balance, Rs. 427 was reserved with the first defendant for payment to the third defendant as and when he demanded and Rs. 1,200 towards the discharge of a mortgage and puramvayppa outstanding in an item of the property. The plaintiff would, however, say that he had discharged the major portion of the amount under Ext. D-1, kuri security bond. He has produced Ext. P-10 to show that the amount due as on 26th June 1963 was only Rs. 591.36. There is no evidence to show that an amount of Rs. 1,372 was due under Ext. D-1 on the date of Ext. P-6, i.e., on 17th July 1964. On the other hand, the endorsement on Ext. D-1, kuri security bond. He has produced Ext. P-10 to show that the amount due as on 26th June 1963 was only Rs. 591.36. There is no evidence to show that an amount of Rs. 1,372 was due under Ext. D-1 on the date of Ext. P-6, i.e., on 17th July 1964. On the other hand, the endorsement on Ext. D-1 would go to show that an amount of Rs. 631.14 alone was due on 16th July 1964. That amount was paid on that date in full discharge of the liability and the document was returned to the first defendant. The endorsement is to the effect that payment was made not by the first defendant but by the third defendant. Since the first defendant was also one of the executants, if the amount was really paid by him, there was no reason why the recital was otherwise. Therefore, the recital in Ext. P-6 made on 17th July 1964 directing the first defendant to pay Rs. 1,372.38 towards the transaction under Ext. D-1 has no weight at all because the liability under Ext. D-1 already stood discharged on that day. The first defendant did not examine himself to prove that payment was by himself. There is also no case that the amount of Rs. 1,200 reserved for discharge of the mortgage and puramkadam has been paid. It is admitted that the amount of Rs. 427 which the first defendant was directed to pay to the third defendant towards the consideration for the document, has not been paid. According to D.W. 1, this amount was not paid because the present suit was filed in the meanwhile. It is, thus, evident that Ext. D-1 was executed by the third defendant in favour of the first defendant without receiving any amount by way of consideration for the same 13. Ext. P-10 is a letter sent by the Damien Subsidies Ltd., to the plaintiff calling upon the plaintiff to pay Rs. 591.36 towards the chitty liability. There is no indication to show that the plaintiff refused to pay the amount. There is no evidence that any demand was made to defendants 1 and 3 to pay defaulted dues or that there was any apprehension of loss to them. On the other hand, there is every reason to believe that the plaintiff, who paid the major portion of the dues under Ext. There is no evidence that any demand was made to defendants 1 and 3 to pay defaulted dues or that there was any apprehension of loss to them. On the other hand, there is every reason to believe that the plaintiff, who paid the major portion of the dues under Ext. D-1, would pay the balance also. In other words, it cannot be said, that there was any default on the part of the plaintiff to comply with the terms of Ext. P-1. It, therefore, follows that Ext. D-1 was executed by the third defendant only to spite the plaintiff and to deprive him of what he got under the settlement deed. The payment by the third defendant can only be treated as voluntary, and therefore, was insufficient for availing the right of revocation or sale granted to the third defendant under the settlement. 14. I have already held that the original settlement deed took effect on the date of the document itself, and therefore, the third defendant was not competent to execute the document, Ext. P-6, depriving the plaintiff of what he got under the settlement. So far as Ext. P-7 is concerned, the position is different. The third defendant, under the terms of the settlement, has got the right to take the usufructs of the property either directly or by creation of a lease. Therefore, Ext. P-7 lease-deed is binding on the plaintiff during the lifetime of the third defendant, and if the fourth defendant chooses to accept the lease during her lifetime also. 15. It follows that the plaintiff is entitled to a declaration that Ext. P-6 document of assignment is not binding on him. The plaintiff is entitled to possession of the items thereunder subject to the right of defendants 3 and 4 to take the income thereof during their lifetime as provided in Ext. P-1. The plaintiff has no present right to challenge Ext. P-7 lease-deed. The Second Appeal will stand allowed and the suit will stand decreed to the above extent. The parties will bear their respective costs.