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2015 DIGILAW 510 (KER)

MERI DAISY RANI v. ANTHONIMUTHU

2015-05-25

A.V.RAMAKRISHNA PILLAI

body2015
JUDGMENT A.V. RAMAKRISHNA PILLAI, J. 1. The defendants in O.S. No. 352 of 2001 on the files of the Munsiff's Court, Palakkad have come up with this appeal against the decree and judgment passed by the District Court, Palakkad in A.S. No. 158 of 2004. 2. The respondents approached the trial court for a decree of permanent prohibitory injunction restraining the appellants from entering upon the plaint schedule property as well as from interfering with the possession of the respondents among other reliefs. 3. In the plaint it is alleged that the suit property originally belonged to the father of the parties herein as per a partition deed of 1989 of SRO, Palakkad. Their father expired on 12.3.1998. During his life time he had executed a Will by which the property devolved upon the mother of the parties. On 23.8.2000, the mother of the parties executed Ext.B1 deed in favour of the appellants in respect of the plaint schedule property. The respondent/ plaintiff alleged that though Ext.B1 is described as settlement deed, it was a Will and therefore, a fresh Will, Ext.A3 had been executed by the mother on 21.11.2000 cancelling Ext.B1 and later by Ext.A4 dated 2.11.2000 the properties were assigned to him. Therefore, according to the respondent/plaintiff, he was in possession and enjoyment of the property. 4. The appellants/defendants contended that Ext.B1 is the settlement deed executed by the mother in their favour and the same was accepted by them. Therefore, it was their specific case that in furtherance of Ext.B1, they came to be in possession and enjoyment of the plaint schedule property therein. According to them, the reservation made in Ext.B1 was with respect to the life interest of the mother only and the entire property was conveyed and delivered to the appellants. Therefore, according to the appellants, Exts.A3 and A4 and other documents are not binding on them and they have no effect so long as Ext.B1 is there. They further contended that the mother had no right even to cancel Ext.B1 as it had come into force on the date of execution. Therefore, the appellants prayed for a dismissal of the suit. 5. The trial court after raising proper issues for trial, permitted both sides to adduce their evidence and at the trial, Pws.1 and 2 and Dws.1 and 2 were examined. Exts.A1 to A6, B1 and C1 were marked. Therefore, the appellants prayed for a dismissal of the suit. 5. The trial court after raising proper issues for trial, permitted both sides to adduce their evidence and at the trial, Pws.1 and 2 and Dws.1 and 2 were examined. Exts.A1 to A6, B1 and C1 were marked. The trial court after considering the evidence dismissed the suit. The matter was taken in appeal before the lower appellate court which granted a decree reversing the judgment of the trial court holding that Ext.B1 was only a Will executed by the testator. It is with this background, this appeal has been preferred. 6. Arguments have been heard. 7. The entire issue revolves around the interpretation of Ext.B1 executed by the mother of the parties. While the appellants claim absolute title on the basis of Ext.B1 alleging that it was an out and out gift which came into force on the date of execution, the respondents would contend that it was only a Will which could be cancelled and in fact was cancelled by the mother of the parties. 8. It is trite that the settlement deed is substantially a gift deed, as the difference between the two is very thin and narrow. The learned counsel for the appellants would argue that Ext.B1 is a registered deed engrossed on a stamp paper worth Rs. 5,000/- in terms of the requirement of a gift deed. It was pointed out that the deed was handed over to the appellants and delivery was effected in terms of the deed and the appellants were residing in the plaint schedule property. It was pointed out that as per the terms of Ext.B1, the mother had reserved only a life interest. 9. As per Section 2(h) of the Indian Succession Act Will means a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. However, in a settlement deed, the properties are transferred voluntarily, gratuitously and absolutely conferring immediate rights over the property to the donee. In settlements, the transfer is in praesenti and it comes into effect then and there. But in the case of Will, its character is ambulatory and without fixed effect. However, in a settlement deed, the properties are transferred voluntarily, gratuitously and absolutely conferring immediate rights over the property to the donee. In settlements, the transfer is in praesenti and it comes into effect then and there. But in the case of Will, its character is ambulatory and without fixed effect. However, it has to be borne in mind that the entire document has to be read as a whole to ascertain the real intention of the executant regarding the time at which the transfer has to take place. In the case of Ext.B1, it is clear that all the requirements of a settlement/gift have taken place and the property had been given in possession of the donees then and there and they had accepted it. No specific form of acceptance of a settlement/gift is prescribed by law. The acceptance can be made impliedly and need not be in express actions or terms. The acceptance need not be taken through actual physical possession. A mere silence of the donee itself may amount to acceptance. In such cases, it can be evidenced by mere handing over of the original of the deed which could be relied on as a proof of acceptance. In this case Ext.B1 which is the original of the deed was produced before this Court by the appellants herein. No suspicious circumstances exist regarding the possession of Ext.B1. A third party to the deed cannot make a challenge against the acceptance. It is true that as per Ext.B1, alienation was restricted and the mother has reserved her right to reside in the residence. Any document executed after Ext.B1 by the donor including Exts.A1, A3 and A4, even if they were voluntarily executed would not change the legal character of the appellants. It is crucial to note that Ext.B1 (photocopy of the same is marked as Ext.A2) was executed on 23.8.2000. The subsequent cancellation, i.e. Ext.A3 was executed on 21.11.2000. The following assignment deed (Ext.A4) was executed on 2.12.2000. Tax is seen paid on 19.12.2000 as per Ext.A6 and a possession certificate (Ext.A5) dated 20.12.2005 was obtained from the Village Officer. The suit was filed on 14.5.2000. The quick succession of these events would clearly indicate some kind of interference by the respondents in getting the documents executed in their favour. Tax is seen paid on 19.12.2000 as per Ext.A6 and a possession certificate (Ext.A5) dated 20.12.2005 was obtained from the Village Officer. The suit was filed on 14.5.2000. The quick succession of these events would clearly indicate some kind of interference by the respondents in getting the documents executed in their favour. When there is scramble for possession, production of a tax receipt to prove possession will not have any consequence. De jure possession of the property passed as on the date of execution of Ext.B1 though de facto possession in the form of occupation continued with the mother. Any strange act of possession is not sufficient. Settled possession is necessary to disprove the claim of the appellant. Once the gift has come into force, it can be annulled only through the intervention of a civil court. This Court had occasion to consider a similar situation in Balan and Others vs. Thanka and Others, 2013 (2) KHC 643. In that case, this Court had considered the recital in a document wherein it was stated that "my entire right of property shown in the schedule is hereby given to you without any consideration". It also contained recitals, "you would not be having any right of alienation till my death in respect of the properties shown therein" and "the right to take income from the property is reserved in favour of the settler". This Court held that there was a disposition of the property in praesenti in favour of the donee/settlee and the disposition has taken effect immediately. 10. The respondents, per contra, invited my attention to the decision of the Apex Court in Mathai Samuel & Others vs. Eapen Eapen (dead) by LRs. and Others, AIR 2013 SC 532 . That was a case where the document in dispute was having a composite character and having special features of a testamentary disposition and settlement in respect of items and properties covered in the schedules. The Apex Court observed that when a composite document is severable and in part clearly testamentary, such part may effect as a Will and other part, if it has the characteristics of a settlement and that part will take effect in that way. The Apex Court observed that when a composite document is severable and in part clearly testamentary, such part may effect as a Will and other part, if it has the characteristics of a settlement and that part will take effect in that way. In that case, the deed in dispute contained several expressions which reveal that the executant had absolute control, domination and command over the property on the basis of which the Apex Court concluded that the executant had retained the entire right of the property in question and not part of this. However, in the present case, the recitals would make it clear that what was restricted was only the alienation and what was reserved with the executant was only to reside in the property. The intention of the executant is clear from Ext.B1 and the dispossession of the property has taken place as and when the same was executed. 11. Therefore, on a consideration of the entire materials now placed on record, this Court is of the definite view that the appellant is entitled to succeed. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and O.S. No. 352 of 2001 on the files of the Munsiff's Court, Palakkad is dismissed.