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2013 DIGILAW 341 (KER)

Balan v. Thanka

2013-04-04

N.K.BALAKRISHNAN

body2013
Judgment 1. The plaintiffs are the appellants. Their suit was for declaration and consequential injunction. It is alleged that the plaint schedule property originally belonged to the first defendant. Ext.A10 settlement deed was executed by the first defendant on 16-2-1966 as per which she voluntarily, out of her free will and volition, gifted the plaint schedule properties in favour of Appunni the father of the first plaintiff and husband of the second plaintiff. A life interest was reserved in favour of the first defendant to take the usufructs from the said property. Except to the extent of her right to take usufructs in the said property, she had divested the title and possession in favour of Appunni as per the gift deed. The gift deed was accepted and acted upon by the donee. Certain items of properties were sold to 3rd parties by deceased Appunni and the donor Thanka. One such sale deed was executed in favour the first plaintiff. The donee Appunni looked after the donor Thanka. When Appunni became paralysed and was disabled, the first plaintiff started looking after the first defendant. Appunni was in possession of the property and was paying land revenue in respect of the same. In respect of one of the items Appunni and the first defendant jointly applied to the Land Tribunal for purchase of jenm right as O.A. 271/1971 and that petition was allowed. It is contended that the first defendant became very weak towards the middle of 1985 and when she was sick, defendants 2 and 3 made the first defendant to execute two documents exerting undue influence. It is alleged that the first defendant executed the document of cancellation of (Ext.A12) and another document purporting to be a gift deed in respect of the plaint schedule properties in favour of defendants 2 to 5. Those two documents are to be declared as null and void, the plaintiffs contended. The donee Appunni died on 13.10.1987. 2. A joint written statement was filed by the defendants contending that the document in question is not a gift deed and no gift deed was executed. The first defendant was made to believe that she was to execute a Will. The terms of Ext.A10 will reveal that it was intended to be executed as a Will and not as a gift. The first defendant was made to believe that she was to execute a Will. The terms of Ext.A10 will reveal that it was intended to be executed as a Will and not as a gift. The first defendant was not aware of the fact that Appunni had also joined in the application for purchase of jenm right. It was further contended that the other defendants had not meddled with the plaint schedule property and that the case set up by the plaintiff that there was a settlement or the gift in favour of Appunni is not true. 3. On the side of the plaintiff first plaintiff was examined as P.W.1 and Exts.A1 to A18 were marked. On the side of the defendants, first defendant was examined as DW1 and Exts. D1 to D4 were marked. 4. The trial Court after a detailed consideration of the evidence held that there was no valid gift in respect of the plaint schedule property in favour Appunni and so the plaintiffs cannot claim any right over the plaint schedule properties. It was also held that the first defendant was well competent to execute Ext. A12 cancellation deed and to execute another gift deed in favour of 2nd defendant and others. It was held by the trial court that there was no valid gift of the plaint schedule property in favour of Appunni and as such the plaintiffs who are claiming through Appunni cannot claim any right over the plaint schedule property. The trial court found that on a reading of the entire document, Ext.A10 cannot be found to be a gift deed. On the other hand, it was held that it spells out only as a Will and as such the cancellation deed executed by the first defendant is valid. Consequently, it was also held that the subsequent document executed by the first defendant is valid. The appellate Court concurred with the view taken by the trial Court. 5. The learned counsel for the appellants would submit that the courts below failed to interpret Ext. A10 in the correct perspective. The terms of Ext.A10 would unmistakably lead to the conclusion that there was a vesting of right in praesenti indicating that it was a gift deed and not a Will. 5. The learned counsel for the appellants would submit that the courts below failed to interpret Ext. A10 in the correct perspective. The terms of Ext.A10 would unmistakably lead to the conclusion that there was a vesting of right in praesenti indicating that it was a gift deed and not a Will. The fact that the life interest was reserved in favour of the donor, (the first defendant) is no reason to hold that there was no vesting of title in praesenti. The fact that the application for purchase of jemn right was filed by Appunni and the first defendant jointly would certainly indicate that Appunni had obtained right over the property by virtue of A10 gift deed and only because the first defendant was having life interest in the property, she was also joined as the applicant. The recitals in Ext.A10 itself would make it clear that the donee was put in possession of the property and the right over the plaint schedule property was also given then and there in favour of Appunni and as such the view taken by the Courts below is totally untenable. 6. The following substantial questions of law were framed in this Second Appeal: i) Whether on the facts and circumstances of the case, the court below committed illegality in interpreting exhibit A10 as Will ? ii) Whether on the facts and circumstances of the case, the court below went wrong in holding that Ext. A10 is not a gift and it has not come into effect ? iii) Whether on the facts and circumstances of the case, the court below has committed illegality in holding that late Appunni has not got vested right or interest in Ext. A10 property ? iv) Whether on the facts and circumstances of the case, the court below has committed illegality in not considering the conduct and acts of Appunni and Ist defendant after Ext. A10 and the admission of the Ist defendant, that the Appunni has got right and possession over the property, while interpreting Ext.A10? v) Whether on the facts and circumstances of the case, the court below committed illegality in not considering the material evidence on record. vi) Whether on the facts and circumstances of the case, the judgment and decree of the court below is sustainable in law ? 7. v) Whether on the facts and circumstances of the case, the court below committed illegality in not considering the material evidence on record. vi) Whether on the facts and circumstances of the case, the judgment and decree of the court below is sustainable in law ? 7. As stated earlier the crucial point for consideration is whether Ext.A10 is a gift deed or is it a Will as contended by the defendants. A reading of Ext.A10 itself will be sufficient to find whether Ext.A10 is a gift or Will. Some of the relevant terms occurring in Ext.A10 are necessary to be quoted here. One of the recital is to the effect "my entire right of property shown in the schedule is hereby given to you without any consideration". The Malayalam Version itself can be quoted here : There is also the recital that the right to take income from the property shown in the schedule to Ext. A10 was reserved in favour of the donor/settlor. That does not mean that there was no vesting of right in praesenti as on the date of Ext. A10 itself. There is a recital in Ext. A10 that in the said property there was a house constructed by Appunni. The document would further recite that the done Appunni was looking after the donor and so she was having special love and affection towards him. It was further stated that she had also expressed her full confidence in and belief that the donee Appunni would maintain and look after her even till her death and that was the reason why the said document (Ext.A10) was executed by her in favour of Appunni. It was specifically recited that she is/would be not having any right of alienation till her death in respect of the properties shown therein. It was stated : "But at the same time it was stated that till her death she had the right to take income from the property and for that purpose to keep possession also. That does not mean that she was keeping absolute possession of the property but possession only for the purpose of taking income from the property. " 8. That does not mean that she was keeping absolute possession of the property but possession only for the purpose of taking income from the property. " 8. Learned counsel for the appellant would submit that a reading of Ext.A10 would make it indubitably clear that there was complete divestiture of title in favour of the donee/Appunni and that the donor had not reserved any right of revocation or cancellation of the document. Simply because the right to take income was reserved in favour of the donor, it cannot be said that it is inconsistent with the conditions for a valid gift. It is not a case where the title was intended to be conveyed only on the death of the executant. The only right which was reserved in favour of the donor was the right to take income. 9. First defendant contends that she was made to believe that what was going to be executed was only a Will and not a gift. There can be no doubt that if the document speaks for itself that there was a disposition of the property in praesenti in favour of the donee/setlee and the disposition is to take effect immediately on the execution of the document then certainly it is a gift. But on the other hand if the disposition is to take effect only on the death of the executant and if there is a right of revocation in favour of the executant, then certainly it would partake the character of a will and not of a gift. So far as the case on hand is concerned, there could be no difficulty to hold that the document executed confers the right in praesenti and it is not intended to take effect on the death of the executant. The mere reservation of life interest with the settlor/donor to take income from the property during her life time does not postulate that the document in question is a Will but on the other hand the document bespeak the character of a gift. If it is a testamentary bequest then it would be revocable but if on the other hand it is a gift conveying the property in praesenti it would be irrevocable. The irrevocability of the disposition would run counter to the plea that is a Will. If it is a testamentary bequest then it would be revocable but if on the other hand it is a gift conveying the property in praesenti it would be irrevocable. The irrevocability of the disposition would run counter to the plea that is a Will. Though the nomenclature of the document may not be much decisive still that also is one of the circumstances to hold that the document intended to be executed was a settlement deed and not a Will, the appellants contend. There can be no doubt that where, under a deed styled as a settlement, there is no disposition in praesenti and the disposition is to take effect only on the death of the executant then irrespective of the fact whether there is a revocation clause or not, it can be held that there is no disposition in praesenti and if so document is to be construed only as a Will and not a gift. But so far as the case on hand is concerned, Ext. A10 is very clear, definite and certain that there is a divestiture of title in praesenti. 10. Much was argued on behalf of the defendants to contend that the executant was an aged lady and so she must have been prevailed upon by Appunni and thus she was made to believe that she was executing a Will and accordingly, she signed the document believing that she was executing a Will. The trial Court has pointed out the fact that the first defendant is an illiterate lady and so Appunni who was staying with her might have in all probability persuaded or misled the executant to believe that the document executed was only a Will though in fact it was a settlement deed. It is true, the argument is attractive, but at the same time there is no sufficient material to show that the first defendant Thanka was misled by the donee under Ext. B10 document. 11. The learned counsel for the appellants would rely upon the recitals in Ext.A12 the cancellation deed executed by Thanka in the year 1985. The fact that the settlement deed was executed by her in the year 1966 was admitted in Ext.A12. B10 document. 11. The learned counsel for the appellants would rely upon the recitals in Ext.A12 the cancellation deed executed by Thanka in the year 1985. The fact that the settlement deed was executed by her in the year 1966 was admitted in Ext.A12. It was further admitted that as per the settlement deed some of the items were assigned by herself and Appunni and a portion of the land was acquired by the Government and the remaining property was held as per the settlement deed. It was not stated that the remaining extent of the property was held by her. It is argued by the learned counsel for the appellants that had Appunni been not given the right in praesenti as per Ext. A10 there was no necessity of joining Appunni in the execution of such a document. The executant Thanka was joined as one of the executants in the assignment deeds executed subsequent to Ext.A10 because Thanka was having life interest in the said property. This is another towering circumstance, according to the plaintiffs, which would bolster up their case that the document (Ext.A10) executed by Thanka is actually a gift deed and not a Will as contended by the defendants. The donor chose or decided to execute the cancellation deed, Ext.A12, because Appunni was not maintaining her properly and so she thought that the settlement deed has to be cancelled by her and thus the cancellation deed was executed. 12. The recitals in Ext. A12 would only support the case of the plaintiffs that as per Ext.A10 there was a divestiture of title in praesenti; that is, as on the date of Ext.A10 itself. The taking of income alone was postponed. The fact that she had retained her right to take income is not a stipulation inconsistent with a deed of gift. 13. It is further argued by the learned counsel for the appellants that the gift deed was executed in 1966 whereas the cancellation deed was executed in 1985, more than 18 years after the date of execution of Ext.A10. The reason stated in Ext.A12 is that it was only because Appunni was not looking after her properly she thought of executing the cancellation deed. The reason stated in Ext.A12 is that it was only because Appunni was not looking after her properly she thought of executing the cancellation deed. That will make the position further clear that the contention raised by the defendants that there was no divesting of title as on the date of Ext.A10 is nothing but a travesty of truth. 14. The learned counsel for the appellants would submit that Ext.A10, on the face of it is seen to be of a non- testamentary character. There is nothing in Ext. A10 to show that Thanka had reserved the right to revoke it; on the contrary, there is an undertaking not to alienate any property during her life time. It was held by the Madras High Court in Gangaraju v. Pendyala Somanna - AIR 1927 Madras 197 "But the line between a Will and a conveyance reserving a life estate is a fine one, and it would be hard to define in some cases where the document has been held to be non-testamentary, wherein the personal interest which was transferred consists. A more easily applied testis that of revocability . There is nothing in the suit document to show that Kristnamma reserved the right to revoke it. On the contrary, there is an undertaking not to alienate any part of the property during his life time. I consider that this is equivalent to a promise not to revoke the instrument, because if the executant intended to reserve that right he could could not consistently have parted with the right to alienate. The same intention to give finality to the deposition is suggested by Ex.3, which is a conveyance of a portion of the property executed jointly by Kristnamma and the plaintiff". The aforesaid decision was followed by the Hon'ble Supreme Court in Mohan Ram v. B.N. Ananthachari - (2010) 4 SCC 161 . 15. It is submitted by the learned counsel for the appellants that in that document also it was held that the fact that the plaintiff who was required to join the document along with the executant Krishnamma was significant that it would support the view that an immediate conveyance of interest was intended in the document executed by Krishnamma the executant therein. There also it was noted that there was nothing in the document to show that Krishnamma reserved any right to revoke it; on the contrary, there was an undertaking not to alienate any property during his life time which according to the learned counsel for the appellant would suggest the irrevocability of the document in question. According to the learned counsel for the appellant, the facts dealt with therein are almost identical to the facts of this case. When the court has to interpret the document there should be a bias in favour of vested interest unless the intention to the contrary is defined and clear. In support of this argument the learned counsel has relied upon the decision of the Apex Court in Rajes Kanta Roy v. Shanti Debi - AIR 1957 SC 255 . That decision was followed by the Apex Court in Kokilambal v. N. Raman - (2005) 11 SCC 234 . It was held that no straight jacket formula has been evolved for construction of such instruments whether it is a settlement deed or Will. The consistent view is that while interpreting an instrument, to find whether it is of a testamentary character, which will take effect after the life time of the executant or is an instrument creating vested interest in praesenti in favour of the executee, the Court has to very carefully examine the document as a whole, look into the substance of the treatment of the subject by the settlor/executant the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any, containing the revocation thereof. There also it was pointed out that Krishnamma the executant did not reserve the right to revoke it. On the contrary, there was an undertaking not to alienate any part of the property during his life time. That was considered to be equivalent to a promise not to revoke the instrument because if the executant intended to reserve the right he could not consistently have parted with the right to alienate. That intention would give finality to the disposition as a gift deed and it can never be treated as a Will. The fact that Ext. That was considered to be equivalent to a promise not to revoke the instrument because if the executant intended to reserve the right he could not consistently have parted with the right to alienate. That intention would give finality to the disposition as a gift deed and it can never be treated as a Will. The fact that Ext. A10 prohibits the parties from alienating the rights retained or given thereby is a strong indication to hold that it was not a Will but a document which created rights in praesenti in favour of the settlee/donee and as such the document has to be construed as a gift and not as a Will. The very fact that executant Thanka had admitted in Ext.A12 itself that some of the properties covered by Ext.A10 were transferred or conveyed or alienated by Appunni the setlee/donee and the documents were executed by herself and Appunni, would make it clear that it was because she had no right to alienate the property, Appunni was also joined in the document of conveyance because as per Ext. A10 he was given the right in praesenti. It is also pointed out that there is no recital in Ext.A10 indicating that the executant was retaining with her any power to revoke the document. Therefore, it is contended that the parties intended the document to be a settlement deed and styled it as such and that it was handed over to Appunni and was not retained with the widow. The fact that Thnaka merely retained the life interest in the property and transferred to the plaintiff the vested remainder, is clearly decisive of the fact that it is a gift /settlement deed and not a Will. The documents having recitals/wordings were held to be settlementdeeds and not Wills. See the decisions in Rajammal v. Authiammal - ILR (1910) 33 Madras 304, Gangaraju v. Pendyala Somanna -AIR 1927 Madras 197; P.Venkatachalam Chetty v. P.S. Govindasawmi –AIR 924 Madras 605 . All these decisions were followed by the Hon'ble Supreme Court in P. Mohan Ram v.Ananthachari and Others - 2010 (4) SCC 161 . 16. It was also held by the Supreme Court in Namburi Basava Subrahmanyam v. Alapati Hymavathi and Others - (1996) 9 SCC 388 : "The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by the parties are conclusive. 16. It was also held by the Supreme Court in Namburi Basava Subrahmanyam v. Alapati Hymavathi and Others - (1996) 9 SCC 388 : "The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by the parties are conclusive. The court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole". It was held in that case that the settlement deed mentioned therein was to take effect on the date of execution itself. That was also a document whereunder the executant had created right, tile and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words he had created the life interest in the property and vested the remainder in favour of her second daughter. It was held that the executant, while divesting himself /herself of the title of the property would create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlors demise. The facts dealt with therein are exactly identical to the facts of this case, the learned counsel for the appellant submits. 17. It is also in evidence that Balan who is one of the assignees is actually the son of Appunni who has given evidence that some of the items covered by Ext.A10 were assigned to him by Appunni and the first defendant and since the first defendant and others tried to trespass into the property obtained assignment by him, he had to file O.S. 104/1988 before the Munsiff's Court, Chittur and that case was decided in his favour. Therefore, that also would show that some of the items of the properties covered by Ext.A10 were actually assigned by Appunni and the executant. As has been stated earlier, the executants happened to join the execution of the assignment deed in favour of P.W.1 because the executant had reserved with her the life interest. 18. Exts. Therefore, that also would show that some of the items of the properties covered by Ext.A10 were actually assigned by Appunni and the executant. As has been stated earlier, the executants happened to join the execution of the assignment deed in favour of P.W.1 because the executant had reserved with her the life interest. 18. Exts. A3 to A5 are the building tax receipts which have been produced to show that the house situated therein bearing No. 8/1957 was constructed by his father and that the building tax was paid by P.W.1. as he obtained right over the property as per the assignment deed executed by the first defendant and deceased Appunni. It is also in evidence that in the plaint schedule property a house was constructed after the execution of the gift deed, after demolishing the old house which was situated in that property. Those are circumstances indicating acts of possession exercised by the donee- Appunni pursuant to Ext.A10 gift deed executed in his favour by Thanka the executant. 19. It is also argued by the learned counsel for the appellant that since Ext. A10 was actually treated as a gift deed the income tax authorities had assessed the gift tax payable by the party and pursuant to Ext.A9 order passed by the Income Tax Officer the tax was paid. The fact that the original of Ext. P10 could not be produced by the plaintiff is no reason to hold that there was no acceptance since the evidence would show that the original was kept in the house where the first defendant was residing. The second defendant other defendants are also started residing in that house. 20. The first plaintiff who was examined as P.W.1 has stated that his father died on 13-10-1987. It was also stated that when his father Appunni was lying ill he (Appunni) could not look after the affairs of the first defendant and at that time he (P.W.1) was maintaining and looking after Thanka the first defendant. It was also stated that defendants 2 and 3 thereafter started residing with the first defendant and they prevailed upon the first defendant to execute Ext.A12 the cancellation deed. It was also stated that defendants 2 and 3 thereafter started residing with the first defendant and they prevailed upon the first defendant to execute Ext.A12 the cancellation deed. Evidence given by P.W.1 has been relied upon by the learned counsel for the appellants to fortify his submission that, accepting and acting upon the gift deed, Appunni constructed a house in the said property which was bearing No. 8/1957 of Pallassana Panchayath. Exts. A3 to A5 are the receipts for payment of the building tax in respect of that building. There is evidence to show that the first defendant was also residing in that house. It was stated that the old house situated in that property was demolished and it was using the materials of that house the said house was constructed. Anyway, the fact remains that deceased Appunni accepted and acted upon Ext.A10 and it was based on that he constructed the building in that property. This is another circumstance which has been relied upon by the learned counsel for the appellants to contend that Ext. A10 is a gift deed and it was accepted by the donee, deceased Appunni. In fact, the contention raised by the first defendant is that Ext.A10 was only Will and not a gift deed. There was no specific contention that Ext.A10 was not accepted by deceased Appunni. It is also not disputed that if Ext.A10 is construed as a gift then it can never be said that it is an onerous gift. The very recital in Ext.A12 will demolish the case of the defendants that Ext.A10 was a Will. What was cancelled was a settlement deed and not a Will. There is nothing in Ext.A12 to show that executant had created Ext.A10 only as a Will and not as a gift. That apart, at the risk of repetition it has to be stated that what has been stated in Ext.A12 is that she chose to execute the cancellation deed since Appunni was not maintaining her properly. The fact that this document (A12) was executed after about 18 years of Ext. A10 would also scuttle the plea raised by the defendants that Ext. A10 was not accepted or acted upon by the donee. When P.W.1 was in the witness box so many questions were put regarding his knowledge as to the execution of Ext.A10 and the contents therein. A10 would also scuttle the plea raised by the defendants that Ext. A10 was not accepted or acted upon by the donee. When P.W.1 was in the witness box so many questions were put regarding his knowledge as to the execution of Ext.A10 and the contents therein. Since Ext.A10 itself will bespeak the nature of the document and since the document has to be construed and interpreted based on the contents of that document as a whole, the statement if any, given by P.W.1 whether it is for or against the contentions raised by the plaintiffs will not be of any consequence. It is not a third party who has to interpret the document. The learned counsel for the respondents would submit that when P.W.1 was in the witness box he has made some admissions which is to the effect that the properties excluding the items which had been already sold and the remaining items are in the possesison of the Ist defendant and the land tax and water tax in respect of the property were being paid by the first defendant. There is another statement of P.W.1 that the document was executed by Thankam to take effect on the death of the executant. 21. As has been already said it is not P.W.1 who is to interpret the document . He is not a party to the document and therefore, even if any mistaken statement was made by P.W.1 that is not a reason to say that the document is to be interpreted otherwise. The document has to be interpreted reading and construing the document as a whole and not based on extraneous grounds or based on oral evidence given by somebody else. The fact that based on Ext.A10 so many documents were executed by Appunni and the first defendant, would demolish the case advanced by the respondent that Ext. A10 was executed only as a Will. If it was only a Will, there was no necessity of Appunni joining the assignment deeds executed in favour of P.W.1 and other persons. Though some admissions were made by PW1 during cross examination, it was clarified by P.W.1 in re-examination and stated that deceased Thanka had only life interest in the property and that defendant no. 2 and others started residing in the house situated in the plaint schedule property only since 1985. Exts. Though some admissions were made by PW1 during cross examination, it was clarified by P.W.1 in re-examination and stated that deceased Thanka had only life interest in the property and that defendant no. 2 and others started residing in the house situated in the plaint schedule property only since 1985. Exts. A13 to A18 have also been pressed into service by the plaintiffs to contend that Ext.A10 was acted upon, treated and accepted it as a gift deed and based on the same, documents were executed by deceased Thanka and Appunni jointly. When an employee working in the plaint schedule property was removed or disbanded from service an agreement was entered into. Ext.A13 was that agreement. It is contended that if deceased Appunni had no right over the property, there was no necessity of Appunni joining or executing Ext.A13. Similarly, Ext.A14 is the assignment deed executed in favour of one Subhadra as per which one of the items covered by Ext.A10 was assigned to her. Ext.A15 is the purchase certificate obtained jointly by Thanka and Appunni. Ext.A16 is a receipt for payment of purchase price shown in Ext.A15. Ext.A17 and A18 are the copies of two other documents which were executed by Appunni and Thanka. 22. The bone of contention is whether Ext.A10 is gift/settlement deed or is it a Will. The recitals in Ext.A10 will speak volumes asto the character of the document. The contention that there was no divestiture of title as on the date of execution of A10 in favour the setlee/done cannot be accepted. The circumstances delineated earlier would make it clear that the executant had created the document as a settlement deed and that was why she "cancelled" that "settlement deed" in 1985 as per Ext.A12, the appellants contend. 23. The decision of the Supreme Court in Mathai Samuel v. Eapen Eapen - 2012 (4) KLT 743 (SC) has also been referred to here. There it was held that in the case of Will the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand in the case of a gift the provision becomes operative immediately and a transfer in preasenti and comes into effect. There it was held that in the case of Will the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand in the case of a gift the provision becomes operative immediately and a transfer in preasenti and comes into effect. It was also held that a Will is, therefore, revocable because no interest is intended to pass during the life time of the owner of the property. But in the case of gift it comes into operation immediately. The learned counsel for the respsondents would submit that the mere registration of the document will not render the document a settlement deed. The real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift is to find out what exactly is the disposition made as per the document, whether it has transferred any interest in prasenti in favour of the settlees or it intended to transfer interest in favour of the executee only on the death of the executant. There is no case that Ext. A10 is a composite document. It was also argued that the subsequent conduct; namely, the obtainment of the purchase certificate or the transfer of a portion of the property etc. cannot be taken as circumstances to hold that the document is not a Will . But those aspects can also be relied upon to reinforce the fact that there is no ambiguity in the language employed in the document. Unlike in the case cited supra, here, the executant did not retain the entire right over the property in question. A reading of Ext.A10 would make it clear as to what was the disposition that was made by the executant and that the executant had transferred her interest in praesenti in favour of the settlee. The language used in the document is unambiguous and the meaning is clear that Ext.A10 is actually a settlement deed/gift deed or not a Will as contended by the respondents. 24. A true construction of Ext. A10 document would make it clear that it is a gift deed and not a Will. The courts below went wrong in interpreting Ext.A10. The language used in the document is unambiguous and the meaning is clear that Ext.A10 is actually a settlement deed/gift deed or not a Will as contended by the respondents. 24. A true construction of Ext. A10 document would make it clear that it is a gift deed and not a Will. The courts below went wrong in interpreting Ext.A10. Since A10 is a gift deed and since there is abundant evidence to show that it was accepted by the donee Appunni there was a complete divestiture of title in favour of Appunni who took possession of the property. The fact that the life interest was reserved in favour of the executant Thanka does not alter the character of the document in question. The fact that mutation was effected and land revenue was paid by Appunni would also reinforce the contention raised by the appellants that the donee Appunni had actually accepted the gift. Undoubtedly it is not an onerous gift. That apart, there is sufficient evidence to show that the gift was accepted by deceased Appunni. It is trite law that there can be no unilateral cancellation of the document and as such Ext.A12 is invalid and inoperative and is treated as non est. As such, subsequent documents executed by the respondents who claim right under Ext.A12 are also to be declared as invalid and inoperative. Therefore, I hold that the appellants are to succeed in this appeal. The first defendant died subsequently, it was reported. Since other defendants claimed right based on Ext.A12, the appellants have not impleaded the legal representatives of deceased 1st defendant and no relief is claimed against the deceased 1st defendant. 25. In the result, this Second Appeal is allowed. In reversal of the decree and judgment of the courts below, a decree is passed declaring that Ext.A12 cancellation deed No. 1278/85 and the subsequent gift deed No. 73/1986 are invalid, inoperative and nonest. It is also declared that the plaintiffs are the absolute owners of the plaint schedule property. A decree for prohibitory injunction is also passed restraining respondents 2 to 5 and their men from trespassing into or otherwise interfering with the plaintiffs right or possession over the plaint schedule property. Considering the circumstances of the case, parties are directed to suffer their respective costs.