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2004 DIGILAW 1493 (MAD)

Rasu Pillai v. Muthukumaran & Another

2004-11-10

S.K.KRISHNAN

body2004
Judgment :- Aggrieved by the judgment and decree dated 29.1.1993 passed in A.S.No.12 of 1990 by the Subordinate Judge, Ariyalur confirming the judgment and decree dated 28.9.1989 passed in O.S.No.299 of 1985 by the Principal District Munsif, Ariyalur, the second defendant in O.S.No.299 of 1985 has filed the above second appeal. 2. The facts, leading to the filing of this appeal, are as follows: a. The plaintiffs are the absolute owners of the suit properties and Patta to that properties bearing No.443 stands in the name of the plaintiffs' father and natural guardian one Late Gopal Pillai, who managed the suit properties from 1980. The first defendant, who lead a celebacy life, and the plaintiffs' grand-father Saravana Pillai, who died while the late Gopal Pillai was one year old, are brothers. Therefore, the first defendant lived in the plaintiffs' house as one of the family members and bequeathed his properties to the said late Gopal Pillai by means of registered settlement deed dated 22.9.1980, which was accepted by him. Since the suit properties are jointly enjoyed with other ancestral properties of the plaintiffs, no partition was effected between the grand-father of the plaintiffs and the first defendant. During the up-dating survey, notice was given to the plaintiffs' father and the first defendant and the first defendant gave his consent for transferring the patta bearing No.443 in the name of the plaintiffs' father. Thereafter, the first defendant issued a notice dated 31.10.1984 stating that he would revoke the settlement deed dated 22.9.1980 since he was not being maintained by the plaintiffs and the plaintiffs also gave their reply dated 12.11.1984 denying the same as false. At the instigation of one Rasu Pillai, who was not in good terms with the plaintiffs, the first defendant revoked the settlement deed dated 22.9.1980. Hence, the plaintiffs filed a suit for declaration of title to the suit properties and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit properties. Since the first defendant died pending the suit, one Rasu Pillai claimed the title over the suit properties, he was impleaded as second defendant in the suit. Hence, the plaintiffs filed a suit for declaration of title to the suit properties and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit properties. Since the first defendant died pending the suit, one Rasu Pillai claimed the title over the suit properties, he was impleaded as second defendant in the suit. b. Resisting the suit, the defendants have filed their written statement stating that the reading of the alleged settlement deed would show that it could be a will and the first defendant has not given his properties as gift to the plaintiffs and on the basis of patta, which stands in the name of late Gopal Pillai, the plaintiffs cannot claim any right over the properties of the first defendant when he paid kist for the suit properties. The alleged will dated 22.9.1980 has been revoked by revocation deed dated 12.7.1985 by the first defendant and on 6.9.1985, the first defendant sold the suit properties for Rs.19,700/- to the second defendant. c. The second defendant adopting the written statement filed by the first defendant would state that a co-parcener cannot execute a gift deed to another co-parcener and therefore, the deed dated 22.9.1980 is void under law and that no interest or title could be derived under such document. 3. The trial Court on the basis of oral and documentary evidence, decreed the suit filed by the plaintiffs in O.S.No.299 of 1985. Aggrieved by the same, the second defendant filed an appeal in A.S.No.12 of 1990 before the Subordinate Judge, Ariyalur, who dismissed the appeal. Hence, the present second appeal. 4. The Second Appeal was admitted on the following substantial question of law. "Whether Ex.A.1 is a settlement or a will." 5. Heard both sides. 6. Aggrieved by the same, the second defendant filed an appeal in A.S.No.12 of 1990 before the Subordinate Judge, Ariyalur, who dismissed the appeal. Hence, the present second appeal. 4. The Second Appeal was admitted on the following substantial question of law. "Whether Ex.A.1 is a settlement or a will." 5. Heard both sides. 6. The learned counsel appearing for the appellant would contend that Ex.A.1 dated 22.9.1980, which was executed by the late Kumarasamy Pillai, is not a settlement deed but it is a will and when the same was revoked by revocation deed Ex.A.10 dated 12.7.1985 by the said Kumarasamy Pillai, the plaintiffs cannot claim any right over the said properties since the same has been sold by the said Kumarasamy Pillai to this appellant by a registered sale deed Ex.B.1 dated 6.9.1985 and in such circumstances, the plaintiffs have no legal right to claim the suit properties and therefore, the judgment and decree passed the Courts below may be set aside. 7. Further, the learned counsel appearing for the appellant would contend that a coparcener cannot execute a gift deed to another coparcener and therefore, the Ex.A.1 gift deed is not valid under law. 8. In support of his contention, the learned counsel for the appellant relied on the following decisions. 1. ARTHUR MARY AMMAL VS. 1. ARULDOSS PILLAI (DECEASED) 2. M.F.DOSS MARY FLORADOSS 3. A. BASKAR 4. A. XAVIER RAJAN 5. ALEX MELAN 6. FATHIMA 7. RAJASH 8. JOHN (2003-4-L.W.86). 2. P0ONGAVANAM VS. PERUMAL PILLAI AND ANOTHER (1997-2-L.W.234) 3. MUKUND SINGH VS. WAZIR SINGH (1972) 4 SUPREME COURT CASES 178, and 4. R.JAMUNA BAI VS. M.A.ANUSUYA, 2. V.SAMBASIVAM, 3. HAMSA KANNAN, 4.DR.V. SAROJA W/O.SUNDARAJULU, VIJAYALAKSHMI NURSING HOME, DENKANIKOTTA, KRISHNAGIRI, DHARMAPURI DISTRICT. 9. On the contrary the learned counsel for the respondents would contend that Ex.A.1, as contended by the learned counsel for the appellant, is not will but it is a settlement deed, which was voluntarily executed by the late Kumarasamy Pillai and the same was accepted by the late Gopal Pillai, and thereby the interest of the Kumarasamy Pillai in the suit properties was transferred immediately in favour of the late Gopal Pillai and therefore, it cannot be called or termed as a will rather the contents made therein would clearly show that it is a settlement deed and therefore, what was held by the Courts below is correct and that no interference is called for. 10. Further, the learned counsel for the respondents would contend that since the interest of the late Kumarasamy Pillai in the suit properties was transferred immediately in favour of late Gopal Pillai by a registered settlement deed and the same was accepted by the late Gopal Pillai, it should be treated or taken as release deed and in such circumstances, no question would arise that a coparcener cannot execute a gift deed to another coparcener. 11. The learned counsel for the respondents strongly placed his reliance on the following decisions: 1. RAMASWAMI NAIDU VS. M.S. VELAPPAN AND OTHERS (1979 M.L.J. 88), 2. K. BALAKRISHNAN VS. K. KAMALAM AND OTHERS (AIR 2004 SUPREME COURT 1257), 3. PONNUCHAMI SERVAI VS. BALASUBRAMANIAN ALIAS SURESH (MINOR) REPRESENTED BY NEXT FRIEND GOMATHI AMMAL AND OTHERS (1981 M.L.J. 455) and 4. THAMMA VENKATA SUBBAMMA (DEAD) BY L.R., VS. THAMMA RATTAMMA AND OTHERS (AIR 1987 SUPREME COURT 1775). 12. Now the only point to be decided is whether Ex.A.1 is a settlement deed or a will, on which this second appeal is having its breath. 13. The second defendant Kumarasamy Pillai and the grand-father of the plaintiffs Saravana Pillai are the sons of one Murugapillai. The father of the plaintiffs one late Gopal Pillai is the son of Saravanapillai, who died while the Gopal Pillai was one year old. Since the said Kumarasamy pillai had no issues, he look after his brother's family and lived with them. In the year 1980, the first defendant executed a settlement deed Ex.A.1 dated 22.9.1980 in favour of the plaintiffs transferring the interest in the suit properties to the plaintiffs. 14. In the above background of the undisputed facts, it is proper to analyse the contentions of both the sides. 15. The learned counsel for the appellant would contend that Ex.A.1 dated 22.9.1980 is not a settlement deed but it is a will and the same was revoked by revocation deed Ex.A.10 dated 12.7.1985 and thereafter, the suit properties was sold by the first defendant to this appellant and in such circumstances, the plaintiffs have no right to claim over the suit properties, whereas it is contended by the learned counsel for the respondents that Ex.A.1 is a settlement deed and it is not a will and that the alleged revocation of Ex.A.1 is invalid under law and therefore, the appellant cannot claim any right over the properties of the plaintiffs. 16. In the above circumstances, it is necessary for this Court to have a perusal of Ex.A.1 to come to the conclusion whether it is a settlement deed or a will. Ex.A.1 reads as follows: 17. Now, in the light of the principles laid down by this Court it is to be seen whether the recitals made in Ex.A.1 constitutes the character of a settlement deed or a will. 18. In the decision, relied on by the learned counsel for the appellant, reported in 2003-4-L.W.86, a Division of this Court followed a broad formula, which was formulated by this Court in RAJAMMAL VS. PAPPAEYEE ( 2002(4) C.T.C 406 ) to find out the nature of the document, which is as follows: "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. a. The nomenclature (settlement or will) givenin the document is not a deciding factor. b. The registration of the document and the quantum of stamp paper used also have to be taken into consideration. c. 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. d. Though actual disposition can be postponed till the lifetime of the settlor or through 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 constructed as a settlement and not as testamentary. e. 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. f. 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. g. If the executant imposes self-restriction 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." 19. g. If the executant imposes self-restriction 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." 19. On the application of the above formula to the above said recitals in Ex.A.1, this Court has to come to an inevitable conclusion that Ex.A.1 is a settlement deed and not a will for the following reasons. a. Ex.A.1 itself has been styled as settlement deed. b. Ex.A.1 was duly registered and the required stamp paper was purchased by the second defendant himself. c. Since the plaintiffs are minors, while transferring the right over the suit properties to the plaintiffs, the first defendant retained the possession and enjoyment of the properties as guardian of the properties and of the minor plaintiffs until they become major and after his lifetime, the plaintiffs would be in possession and enjoyment of the said properties, which cannot be changed or revoked by himself or by his heirs at any point of time. Since there was no immediate disposition, which was postponed till the death of the first defendant, it cannot be construed that the recitals in Ex.A.1 constitutes the character of a Will and not a settlement deed. d. As already stated above, since the plaintiffs are minors and the settlor was 81 years old at the time of executing Ex.A.1, naturally, the settlor could not have given disposition of the properties in praesenti to the plaintiffs and therefore, as a guardian of the minors, the second defendant was in possession and enjoyment of the suit properties till his death without any power to encumber the same, which would not take away the character of a settlement deed. 20. Further, though the settlor was in possession and enjoyment of the suit properties after executing Ex.A.1, he imposed himself self-restriction with reference to sale and encumbrance and that it could only be treated as settlement and not as a will. 21. From the above, it is clear that, what was executed by the second defendant under Ex.A.1 is nothing but a settlement deed and not a will. 22. 21. From the above, it is clear that, what was executed by the second defendant under Ex.A.1 is nothing but a settlement deed and not a will. 22. But the above decision relied on by the learned counsel for the appellant is not applicable to the case on hand, as the facts and circumstances of that case was different from this case and further, the recitals under Ex.A.17 constitutes the character of a will and not a gift or a settlement. 23. Further, the other decisions relied on by the learned counsel for the appellant are also not applicable to the facts of this case. 24. On the other hand, the decision, in 1979 M.L.J.88, relied on by the learned counsel for the respondents is squarely applicable to the facts of this case for the foregoing reasons, wherein this Court ruled as follows: "Though the disposition may be postponed till the lifetime of the settlor and though prima facie it may appear that the disposition consummates only after his death, yet, such postponement not being illegal, if in a given instrument such as Exhibit A-1, there is a present disposition and a vesting of right in praesenti and if such a conclusion can be arrived at reasonably by reading the instrument as a whole, then a mere ambulation of interest during the lifetime of the settlor would not make it a testamentary one." 25. Further, while this Court had an occasion to deal with the similar matter in 1981 M.L.J. 455, which is solely applicable to the case on hand, this Court observed as follows: "On the facts here, it has to be held that the first defendant voluntarily executed a settlement of his undivided interest in favour of the plaintiff, the only other coparcener, with the result that the transaction was a renunciation of his interest in the joint family properties and that, thereafter, he had no power to execute the deed of revocation nor the sale deed in favour of the appellant. On a full consideration of the facts available in this case, I consider that this is a case in which there was only a settlement in favour of the plaintiff by the first defendant, that the settlement has to be taken as renunciation of the interest of the first defendant in the joint family properties and that the plaintiff is entitled to the declaration and other reliefs asked for. There is substance in the contention that the third defendant is a bona fide purchaser for value without notice of the interest of the plaintiff in the properties. Exhibit A-1 is a registered document, which confers an interest in praesenti on the plaintiff and if in spite of such a document the third defendant considered it worthwhile to purchase the property, then there will be no equity in his favour. He has to face the consequences of his action." 26. As already discussed above, since the plaintiffs are minors, while transferring the right over the suit properties to the plaintiffs under Ex.A.1 settlement deed, the postponement of disposition by the first defendant till his life time, would not take away the character of a settlement deed. Further, as elucidated above, the recitals in Ex.A.1 proved that Ex.A.1 is nothing but a settlement deed and not a will and therefore, the contention of the learned counsel for the appellant that Ex.A.1 is a will cannot be accepted. 27. Further, since the first defendant voluntarily executed a deed of settlement of his undivided interest in favour of the plaintiffs, it is nothing but a renunciation of his interest in the joint family properties and that, thereafter, he had no power to execute the deed of revocation nor the sale deed in favour of the appellant and therefore, the contention of the learned counsel for the appellant, that Ex.A.1 is a will, which was revoked by the first defendant and thereafter, his property was sold to the second defendant and therefore, the plaintiffs cannot claim any right over the properties, cannot be accepted. 28. In the light of the above discussion and following principles laid down by this Court and also considering the facts and circumstances of the case, this Court is of the view that Ex.A.1, which was executed by the first defendant in favour of the plaintiffs, is a settlement deed and not a will and that it cannot be revoked. 29. In the light of the above discussion and following principles laid down by this Court and also considering the facts and circumstances of the case, this Court is of the view that Ex.A.1, which was executed by the first defendant in favour of the plaintiffs, is a settlement deed and not a will and that it cannot be revoked. 29. In such circumstances, the second appeal fails and the same is dismissed confirming the judgment and decree dated 29.1.1993 made in A.S.No.12 of 1990 on the file of the Subordinate Judge, Ariyalur. No costs.