Research › Search › Judgment

Andhra High Court · body

2019 DIGILAW 356 (AP)

Edala Anitha v. Edala Sulochanamma

2019-12-06

D.V.S.S.SOMAYAJULU

body2019
ORDER : D.V.S.S. Somayajulu, J. 1. This civil revision petition is filed questioning the order dated 09.08.2016 in OS. No. 367 of 2010 passed by the Principal Senior Civil Judge, Nellore on the admissibility of the document. 2. Document No. 1 is dated 09.08.1996. An objection was raised about the -admissibility of the document. The question before the lower Court was about the contents of the document and whether stamp duty or registration are needed. The lower Court treated the said document as a Will and held that the same does not require registration or stamp duty. Questioning the same, this revision is filed. 3. This Court has heard Sri Ch. C. Krishna Reddty, learned counsel for the petitioner and Sri T.C. Krishna, learned counsel for the respondents. 4. The essential point that is urged by the learned counsel for the petitioners is that the said document has given an absolute power to Smt. E. Sulochanamma to sell the same and she has also been put in possession of the property. Therefore, learned counsel for the petitioner argues that it is a document which settled the property on the said E. Sulochanamma directing her to sell the property and to repay the debt of Rs. 2 lakhs incurred by the deceased. Learned counsel relies upon the language used and states that as possession was actually delivered on that day itself, it has to be treated as a settlement deed. 5. In reply to this, learned counsel for the respondents argued that the deed in question is not a settlement deed at all. According to him, the deceased was indebted to a number of people. Therefore, with a view to ensure that his property is utilized for settling the said debt, this document has been executed for specific purpose of clearing the debts. He points out that the person, who executed the document himself called it a Will. Therefore, he points out that as it also contains the signature of two witnesses, it should be treated as a Will and should be acted upon as a Will. Hence, he states that the lower Court did not commit any error. 6. It is not in dispute that the executant-Subba Reddy died after some time he executed this document. Even in the written statement that is filed, this document is referred to as a last Will and testament. Hence, he states that the lower Court did not commit any error. 6. It is not in dispute that the executant-Subba Reddy died after some time he executed this document. Even in the written statement that is filed, this document is referred to as a last Will and testament. The issue that arose for consideration before the lower Court was, whether the said document was a Will or a settlement deed. The lower Court treated it as a Will and held that it does not require any stamp duty or registration. 7. The fundamental rules of construction of document are (a) the plain language rule of interpretation and (2) that the entire document is to be read as a whole to understand its purport. 8. In the case on hand, if the document is examined totally and the contents are read, the deceased states that he has borrowed a sum of Rs. 2 lakhs towards medical expenses and family expenses. He, therefore, asked respondent No. 1 to sell the property to others and clear the debts. In the later part, he states that all rights are given to respondent No. 1 and she is put in possession of the property on that day itself. 9. As per the settled legal position, a Will will come into effect after the death of the testator. Till the date of death of the testator, he has the legal right to change or modify the same. In the case on hand, the fact remains that he has delivered the possession to respondent No. 1-E. Sulochanamma. While there is no definition of settlement under the Transfer of Property Act, the Stamp Act defers the settlement as follows: Section 2 (24) of the Indian Stamp Act. 1899 "Settlement":- "Settlement" means any non-testamentary disposition, in writing, of movable or immovable property [whether by way of declaration of trust or otherwise] made- (a) in consideration of marriage; (b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him; or (c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition); 10. A reading of this make it clear that a settlement is a non-testamentary dispensation in writing for the purpose of distributing the property of the settler amongst his family or those for whom he desires to provide. (Clause 2(24)(b)). Therefore, it is clear that a settlement deed is a deed for the purpose of distributing property not only amongst the family but also for others. Therefore, if the document is viewed against the backdrop of the definition, the document in writing which provides for settlement of the property for a particular purpose is also a settlement. Rights are created in praesenti-the power to sell is given and possession is delivered on that day. In the judgment of the Hon'ble Supreme Court of India reported in Namburi Basava Subrahmanaym v. Alapati Hymavathi AIR 1996 SC 2220 : 1996 (3) ALT 4 (D.N.), a similar question fell for consideration before the Hon'ble Supreme Court of India. In that case, the Hon'ble Supreme Court clearly held that the recital about the delivery of the property would clearly indicate that the settlement deed executed was to take effect from that date. 11. From the document before this Court also, the purpose of the settlement is for clearance of an existing debt. Possession was given on that day to respondent No. 1 to sell the property. Therefore, in view of the judgment of the Hon'ble Supreme Court of India and the definition of the Settlement, this Court is of the opinion that the document in question cannot be treated as a Will; and that it is a settlement deed. The impugned order in OS. No. 367 of 2010 dated 26.08.2019 on the file of Principal Senior Civil Judge, Nellore is, therefore, set aside. 12. In the result, the civil revision petition is allowed. No order as to costs. 13. As a sequel, miscellaneous petitions, if any, shall stand closed.