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2011 DIGILAW 2965 (MAD)

Amaravathy v. Isakimuthi

2011-06-23

A.SELVAM

body2011
JUDGMENT ( 1. ) THIS second appeal has been directed against the concurrent Judgmnets and decrees passed in Original Suit No.529 of 1991 by the Second Additional District Munsif Court, Tirunelveli and in Appeal Suit No.76 of 1997 by the Principal District Court, Tirunelveli. ( 2. ) THE first respondent herein as plaintiff has instituted Original Suit No.529 of 1991 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the deceased appellant has been shown as sole defendant. The nubble of the plaint is that the suit property is originally belonged to Esakkimuthu and he purchased the same under a registered sale deed dated 28.08.1952 and he married one Sivanthiammal and she has begotten the present defendant. The said Sivanthiammal has passed away and the defendant has been given in marriage to one Subbiah prior to 32 years. The said Esakkimuthu has married one Lakshmi Ammal as his second wife. But unfortunately she has not lived with him. On 17.02.1969 and 19.02.1969 the original owner of the suit property by name Esakkimuthu has executed two settlement deeds in favour of his brother Subbiah. As per settlement deeds both of them have to enjoy the property mentioned therein without alienating the same. Further it is recited in the settlement deeds that the property mentioned therein should ultimately go to male descendants. The settlee viz., Subbiah has passed away on 13.04.1983. The property mentioned in the settlement deeds has been enjoyed by the heirs of Subbiah. The settlor viz., Esakkimuthu has passed away on 20.07.1991. As per the recitals found in the settlement deeds, the plaintiff is having absolute right, title and interest over the suit property. The defendant is not having any manner of right, title and interest over the same. Now the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. ( 3. ) IN the written statement filed on the side of the defendant it is averred that the suit property is not in possession and enjoyment of the plaintiff, whereas the same is in active possession and enjoyment of the defendant. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. ( 3. ) IN the written statement filed on the side of the defendant it is averred that the suit property is not in possession and enjoyment of the plaintiff, whereas the same is in active possession and enjoyment of the defendant. It is false to say that the father of the defendant viz., Esakkimuthu has executed two settlement deeds dated 17.02.1969 and 19.02.1969. The father of the defendant viz., Esakkimuthu has executed a settlement deed in favour of the defendant on 12.08.1975 and thus, the defendant has become absolute owner of the suit property. The plaintiff is not entitled to get the reliefs sought for in the plaint and therefore, the present suit deserves to be dismissed. ( 4. ) ON the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.76 of 1997 on the file of the first appellate Court. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and whereunder confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. ( 5. ) AT the time of admitting the present second appeal the following substantial questions of law have been formulated for consideration: (a) Whether the Courts below are right in decreeing the suit, with regard to prayer for injunction, when no document was filed to prove the plaintiff's possession, on the date of filing of the suit or prior to the suit? (b) Whether the Courts below are right, in decreeing the suit by declaring plaintiff's right in the suit property, when the settlement deed was not proved, as by the requirement of law? (c) Whether the Courts below are right in giving interpretation to the alleged settlement deed, filed in Exs.A2 and A3? (b) Whether the Courts below are right, in decreeing the suit by declaring plaintiff's right in the suit property, when the settlement deed was not proved, as by the requirement of law? (c) Whether the Courts below are right in giving interpretation to the alleged settlement deed, filed in Exs.A2 and A3? (d) Whether the Courts below are right in decreeing the suit, when the plaintiff failed to prove his case, with regard to title and possession" ( 6. ) BEFORE contemplating the rival submissions made on either side, it would be apropos to look into the rival pleadings mentioned in the plaint as well as in the written statement. In the plaint it has been specifically averred that the suit property is originally belonged to Esakkimuthu who is none other than the father of the defendant and he voluntarily executed two settlement deeds on 17.02.1969 and 19.02.1969 in favour of his brother Subbiah, wherein it has been recited that both of them should enjoy the property mentioned therein till their life time and ultimately their male descendants should derive absolute interest. Both the said Esakkimuthu and his brother Subbiah have passed away and the present plaintiff is the grandson of Subbiah and therefore, as per the recitals mentioned in the settlement deeds, the plaintiff is having absolute right, title and interest over the suit property and in which, the defendant is not having any manner of interest and since the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for in the plaint. ( 7. ) IN the written statement it is averred that the original owner of the suit property viz., Esakkimuthu has not executed any settlement deeds much less on 17.02.1969 and 19.02.1969 and on 12.08.1975 he voluntarily executed a settlement deed in favour of the defendant and therefore, the defendant has become absolute owner of the suit property and in which the plaintiff is not having any manner of right, title and interest and therefore, the present suit deserves to be dismissed. ( 8. ) THE Courts below have concurrently accepted the contention urged on the side of the plaintiff by way of rejecting the defence taken on the side of the defendant. ( 8. ) THE Courts below have concurrently accepted the contention urged on the side of the plaintiff by way of rejecting the defence taken on the side of the defendant. The registration copies of settlement deeds dated 17.02.1969 and 19.02.1969 have been marked as Exs.A2 and A3. In the written statement at paragraph-4 it has been specifically averred that the original owner of the suit property viz., Esakkimuthu has not executed the settlement deeds dated 17.02.1969 and 19.02.1969. Since a clear denial has been made on the side of the defendant with regard to execution of settlement deeds dated 17.02.1969 and 19.02.1969 the entire burden lies upon the plaintiff to prove its execution. Even though a specific stand has been taken on the side of the defendant to the effect mentioned supra, on the side of the defendant Exs.B8 and B9 have been marked. Exs.B8 and B9 are nothing but original settlement deeds dated 19.02.1969 and 17.02.1969. Since Exs.B8 and B9 have been marked on the side of the defendant it is needless to say that the denial made in paragraph-4 of the written statement with regard to settlement deeds dated 17.02.1969 and 19.02.1969 cannot be accepted. Under the said circumstances, in the present appeal, apart from the substantial questions of law, the Court has to analyse as to whether as per Exs.B8 and B9, the plaintiff is having absolute right, title and interest over the suit property. ( 9. ) IN Exs.B8 and B9 it is mentioned like thus: njd; jgrpy; fz;l brhj;J vdf;F rh;t Rje;jpukha; ghj;jpag;gl;L ehBd jPh;it Kjypaitfisr; brYj;jp ehd; jdpj;j epiyapYk; eph; tpy;yA;fkha[k; Mz;L mDgtpj;J tUfpBwd.;; vdf;F jw;BghJ taJ 62 MfpwJ. ehd; jk;Kila rk;ul;ridapy; nUe;J tUfpBwd; jhd; vdf;F Btz;oa cjtpfs; vy;yhk; bra;J vd;id ghJfhj;J tUfpwPh; vd;id ndpBkYk; jhBk ghJfhj;J tUtPh; vd;w ek;gpf;ifa[k; vdf;F nUf;fpwJ. MfBt jk;Kila Bghpy; cs;s md;iga[k;, Mjuita[k; cj;Bjrpj;J kjpg;g[ U.2,000/- nuz;lhapuk; bgUkhd njd; jgrpy; fz;l brhj;ij ne;j brl;oy;bkz;L j!;jhBt$;Kyk; jkf;F ghj;jpag;gLj;jpf; bfhLj;jpUf;fpBwd;. ehsJ Bjjp Kjy; jgrpy; fz;l brhj;ij ehDk;, jhKk; ek; nuz;L Bgh;fSila Ma[s;tiu ahbjhU tpjkhd guhjPdA;fSf;Fk cl;gLj;jhky; jPh;it Kjypaitfis brYj;jpf; bfhz;L mDBghfk; kl;Lk; bra;J bfhs;s Btz;oaJ jk;Kila Mz; re;jjpfs; ek; nuz;L Bgh;fSila Ma[s;fSf;Fg; gpd; brhj;ij mile;J rh;t Rje;jpu nand;l tpdpBahf ghj;jpakhft[k; rkghfkhft[k; Mz;L mDgtpj;Jf; bfhs;s Btz;oaJ. ne;jbrl;oy;bkd;L j!;jhBti$ vd; kdg;g{h;tkha; jkf;F vGjpf; bfhLj;jpUf;fpwgoahy; nij khw;w kUjspf;f xj;Jr; bra;a vdf;F mjpfhuk; ny;iy mJ thkph;rp ehd; VjhtJ bra;jhy; mJ bry;yj;jf;fjpy;iy. ( 10. ne;jbrl;oy;bkd;L j!;jhBti$ vd; kdg;g{h;tkha; jkf;F vGjpf; bfhLj;jpUf;fpwgoahy; nij khw;w kUjspf;f xj;Jr; bra;a vdf;F mjpfhuk; ny;iy mJ thkph;rp ehd; VjhtJ bra;jhy; mJ bry;yj;jf;fjpy;iy. ( 10. ) EVEN a cursory look of Exs.B8 and B9 it is made clear that the settlor viz. Esakkimuthu has executed the same in favour of the grandfather of the plaintiff viz. Subbiah. In both the settlement deeds it has been clearly mentioned as jkf;F ghj;jpag;gLj;jpf; bfhLj;jpUf;fpBwd;. It means, a right has been created in praesenti in favour of the settlee viz., Subbiah. Further in Exs.B8 and B9 it is recited that both the settlor and settlee should enjoy the property mentioned therein and the same should ultimately vest with their male descendants. The Courts below have proceeded on the basis of the subsequent recitals found in Exs.B8 and B9 to the effect that the settlor viz., Esakkimuthu has had no male issue and the present plaintiff is nothing but the grandson of the settlee viz., Subbiah and therefore, the plaintiff is having right, title and interest over the suit property. ( 11. ) THE learned counsel appearing for the appellants has repeatedly contended that in Exs.B8 and B9 no right has been created in praesenti in favour of the settlee and only male descendants of the settlor and settlee should get absolute interest after the life time of settlor and settlee. Under the said circumstances, Exs.B8 and B9 cannot be construed as settlement deeds and the same are nothing but Wills. ( 12. ) IN order to dispel the argument advanced by the learned counsel appearing for the appellants, the learned counsel appearing for the first respondent has also equally contended that in Exs.B8 and B9 a right in praesenti has been created in favour of the settlee and since a right in praesenti has been created in favour of the settlee, the same are nothing but settlement deeds and further no averment is found place in the written statement as to the effect that Exs.B8 and B9 are nothing but Wills and the same are not settlement deeds. Under the said circumstances the contention urged on the side of the appellants with regard to Exs.B8 and B9 cannot be accepted. As rightly pointed out on the side of the first respondent, except the denial mentioned supra with regard to execution of Exs.B8 and B9 by the original owner of the suit property viz. Under the said circumstances the contention urged on the side of the appellants with regard to Exs.B8 and B9 cannot be accepted. As rightly pointed out on the side of the first respondent, except the denial mentioned supra with regard to execution of Exs.B8 and B9 by the original owner of the suit property viz. Esakkimuthu no further averments are found place in the written statement to the effect that Exs.B8 and B9 are nothing but Wills and not settlement deeds. In fact, the point now urged on the side of the appellants has not been put forth either in the trial Court or in the first appellate Court. It has already been pointed out that the Courts below have proceeded on the basis of the words male descendants found in Exs.B8 and B9. ( 13. ) EVEN though the said contention has not been urged either in the Courts below or necessary averments are not found place in the written statement, for the sake of convenience and also for giving quietus to the parties, the Court has to look into as to whether Exs.B8 and B9 are nothing but Wills or settlement deeds. ( 14. ) IT has already been pointed out that under Exs.B8 and B9 a right in praesenti has been created in favour of the settlee viz., Subbiah. At this juncture it would be more useful to look into the decision reported in 1979 (II) MLJ 88 (Ramaswami Naidu V. M.S.Velappan and others), wherein the Division Bench of this Court has observed as follows: While interpreting an instrument, particularly to find out whether it is of a testamentary character, which will take effect after the lifetime of the executant or whether it is an instrument creating a vested right in praesenti in favour of a person, the question has to be examined with care, after looking into the substance of the document, the treatment of the subject by the settlor, the intention appearing both expressly in the instrument or by necessary implication, and avowed intention of the settlor not to revoke the settlement at any time, making it also public by registering the document, under the appropriate law of the country. Some of the important tests laid down in the decided cases appear to be; (i) the nomenclature used by the settlor in styling the document. Some of the important tests laid down in the decided cases appear to be; (i) the nomenclature used by the settlor in styling the document. (ii) the express dispositive words used which touch upon the time when the vested interest is created. (iii) the reservation of the power of revocation in the instrument; (iv) the effect of the reservation of a life estate in favour of the executant under the instrument; (v) registration of the document under the appropriate law. In the instant case, the document itself is styled as a settlement deed. It has been registered. The right to enjoy the properties and secure the benefits and the temple honours as trustees under it had become a fait accompli even during the lifetime of the executant of the document 'M'. One other factor which has a great impact upon the facts and circumstances of this case is that the instrument is expressly made not revocable. ( 15. ) FROM a close scrutiny of the norms settled in the decision referred to supra, the following aspects have to be looked into while interpreting an instrument. (i) nomenclature used by the settlor in styling the document. (ii) express dispositive words used which touch upon the time when the vested interest is created. (iii) reservation of the power of revocation in the instrument; (iv) effect of the reservation of a life estate in favour of the executant under the instrument; (v) registration of the document under the appropriate law. ( 16. ) IN the instant case in Exs.B8 and B9 it has been clearly mentioned as jkf;F ghj;jpag;gLj;jpf; bfhLj;jpUf;fpBwd; and the same denotes that a right in praesenti has been created in favour of the settlee and further in Exs.B8 and B9 it is recited that the settlor has no right to cancel the same. Therefore, it is quite clear that the settlor viz., Esakkimuthu has executed Exs.B8 and B9 as settlement deeds and thereby created a right in praesenti in favour of the settlee viz., Subbiah. Therefore, it is quite clear that the settlor viz., Esakkimuthu has executed Exs.B8 and B9 as settlement deeds and thereby created a right in praesenti in favour of the settlee viz., Subbiah. Section 19 of the Transfer of Property Act, 1882 reads as follows: Where on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. ( 17. ) AS pointed out earlier in Exs.B8 and B9 it has been clearly recited as jkf;F ghj;jpag;gLj;jpf; bfhLj;jpUf;fpBwd; and therefore a right in praesenti has been created in favour of the settlee viz., Subbiah. ( 18. ) IN 2003 2 LW - 355 (Appandainatha Nainar and others V. Appadurai and others), the Division of this Court has dealt with with an identical case, wherein also right in praesenti has been created in the document in question in favour of the settlee and subsequently a rider has been put in to the effect that ultimate interest vest with the male descendants. The Division Bench of this Court after considering the recitals found in the document in question as well as a right in praesenti is created therein, has come to a definite conclusion to the effect that the same is nothing but a settlement deed and not a Will. The Honourable Apex Court has dealt with similar facts and also question of law in P.K.MohanRam Vs. B.N.Ananthachary and others) reported in (2010) 4 MLJ 345 (SC), wherein it has been held that A careful reading of Ex.A2 shows that in the title itself the document has been described as Settlement Deed. By executing that document, the settlor expressed his intention, in no uncertain terms, to settle the property in favour of 16 persons who were none else than his own relatives and declared that 'from this day onwards I and you shall enjoy the land and house without creating any encumbrance or making any alienation whatsoever.' This was an unequivocal creation of right in favour of 16 persons in praesenti. Though, the beneficiaries were to become absolute owners of their respective shares after the death of the settlor, the language of the document clearly shows that all of them were to enjoy the property along with the settlor during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the settlor made it clear that he will have no right to cancel the Settlement Deed for any reason whatsoever or to alter the terms thereof. The mere fact that beneficiary Nos.1 and 2 and after them their heirs were to receive honours at the temple or that shares were to be divided after disposal of the property cannot lead to an inference that Ex.A2 was a 'Will'. If Ex.A2 is read as a whole, it becomes clear that it was a 'Settlement Deed' and the trial Court and the lower appellate Court did not commit any error by recording a finding to that effect. As a sequel to this, it must be held that the High Court committed serious error by setting aside the concurrent judgments and decrees of the two Courts. ( 19. ) IT is not an exaggeration to say that the Honourable Apex Court has decided similar factual aspects and also question of law and ultimately found that if a right is created in praesenti in a particular document, the same is nothing but a settlement deed and not a Will. ( 20. ) IN the instant case even at the risk of repetition the Court would like to point out that in Exs.B8 and B9 a right in praesenti has been created in favour of the settlee. IN view of the decision referred to supra and also in view of the vital recitals found in Exs.B8 and B9, the Court can very well come to a conclusion that Exs.B8 and B9 are nothing but settlement deeds and not Wills as put forth on the side of the appellants. The learned counsel appearing for the appellants has drawn the attention of the Court to the decision reported in 2005 3 L.W. 736 (kokolambal and others vs. N.Raman), wherein the Honourable Apex Court has distinguished vested interest as well as contingent interest. The learned counsel appearing for the appellants has drawn the attention of the Court to the decision reported in 2005 3 L.W. 736 (kokolambal and others vs. N.Raman), wherein the Honourable Apex Court has distinguished vested interest as well as contingent interest. As per the dictum given by the Honourable Apex Court, vested interest means, when there is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made depend upon some event or condition which may or may not happen. On the happening of event or condition a contingent interest becomes a vested interest. ( 21. ) IN fact in the decision referred to supra, the Honourable Apex Court has dealt with a particular document alleged to be a settlement, wherein no right in praesenti has been created in favour of the settlee and the settlee should get absolute interest only after the life time of settlor. Under the said factual situation, the Honourable Apex Court has come to a definite conclusion that the document in question is nothing but a Will and not a settlement deed. ( 22. ) EVEN at the risk of repetition the Court would like to point out that in Exs.B8 and B9 it has been clinchingly stated that a right in praesenti has been created in favour of the settlee viz. Subbiah and therefore, there is no incertitude in coming to a conclusion that Exs.B8 and B9 are nothing but settlement deeds. In view of the foregoing elucidation of both the factual and legal aspects this Court has not found any force in the contention urged on the side of the appellants, whereas the argument advanced on the side of the first respondent is really having subsisting force. The second, third and fourth substantial questions of law formulated in the present second appeal are as to whether the Courts below are right in declaring the right of the plaintiff and also in interpreting the documents in question? ( 23. The second, third and fourth substantial questions of law formulated in the present second appeal are as to whether the Courts below are right in declaring the right of the plaintiff and also in interpreting the documents in question? ( 23. ) EVEN though a specific plea has not been taken in the written statement as to whether Exs.B8 and B9 are Wills or settlement deeds, this Court has analysed the said aspect elaborately and ultimately found that Exs.B8 and B9 are settlement deeds and therefore, the second, third and fourth substantial questions of law are not having substance and the same are decided against the appellants. ( 24. ) THE first and foremost substantial question of law is as to whether the Courts below are right in granting the relief of injunction even though the plaintiff has not proved his possession? As per Exs.B8 and B9 the plaintiff is having absolute right, title and interest over the suit property. On the side of the defendant, some kist receipts have been filed. Simply because some kist receipts have been filed on the side of the defendant, the Court cannot come to a conclusion that the plaintiff is out of possession. Therefore, the first and foremost substantial question of law formulated in the present second appeal is also decided against the appellants. ( 25. ) ON the side of the appellants, MP(MD)No.3 of 2010 has been filed, wherein a settlement deed alleged to have been executed by the original owner of the suit property in favour of the defendant on 12.08.1975 has been annexed. ( 26. ) IN Exs.B8 and B9 a candid recital is found place to the effect that the settlor viz., Esakkimuthu has not reserved his right of revocation and further he declared that he has no right to revoke the same. Under the said circumstances, he cannot execute the alleged settlement deed dated 12.08.1975 in favour of the defendant and the same cannot be admitted as additional evidence and therefore MP(MD)No.3 of 2010 is liable to be dismissed. On the side of the first respondent MP(MD)No.2 of 2011 has been filed praying to admit the documents mentioned therein as additional evidence and all the documents mentioned therein have become emerged during pendency of the present suit and further, this Court has categorically found that the first respondent/plaintiff is having right, title and interest over the suit property. On the side of the first respondent MP(MD)No.2 of 2011 has been filed praying to admit the documents mentioned therein as additional evidence and all the documents mentioned therein have become emerged during pendency of the present suit and further, this Court has categorically found that the first respondent/plaintiff is having right, title and interest over the suit property. Under the said circumstances, it is totally unnecessary to look into the documents filed in MP(MD)No.2 of 2011 and therefore, the same is liable to be dismissed. ( 27. ) IT has already been pointed out that Exs.B8 and B9 are nothing but settlement deeds, by which the plaintiff is having absolute right, title and interest over the suit property. The Courts below after considering all the rival contentions raised on either side have rightly rejected the defence put forth on the side of the defendant. In view of the discussion made earlier, this Court has not found any infirmity nor illegality in the concurrent Judgments and decrees passed by the Courts below and altogether the present second appeal deserves to be dismissed. ( 28. ) IN fine, this second appeal deserves dismissal and accordingly is dismissed without cost and the concurrent Judgments and decrees passed by the Courts below are confirmed. Connected MP(MD)Nos.1 of 2010 and 1 of 2011 are also dismissed.