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2021 DIGILAW 503 (MAD)

P. Boopathy v. C. Mahalakshmi

2021-02-15

T.RAVINDRAN

body2021
JUDGMENT : (Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 04.01.2008 passed in A.S.Nos.66 & 65 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No.III, Dharpuram, Erode District, reversing the Judgment and Decree dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of 2004 on the file of the Subordinate Court, Dharapuram, Erode District, respectively). Common Judgment 1. Challenge in the second appeals Nos.1087 & 1088 of 2008 are directed against the common judgment and decree dated 04.01.2008 passed in A.S.Nos.66 & 65 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No.III, Dharapuram, Erode District, reversing the common Judgment and Decree dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of 2004 on the file of the Subordinate Court, Dharapuram, Erode District, respectively. 2. At the time of admission of the second appeals, the following substantial questions of law were formulated for consideration: "a. Has not the lower Appellate Court committed an error of law in decreeing the appeal, since the intention of the settlor, contests of the Ex.1 would clearly prove that it is only a Will, but not settlement? b. Has not the lower Appellate Court committed an error of law in decreeing the appeal without appreciating the written statement filed by the deceased Ponnusamy Gounder and even assuming his settlement, the given contents not been acted upon, since there is no acceptance and the offer has been withdrawn before the same.? 3. Considering the factual matrix involved in the second appeals and the substantial questions of law projected by the appellant, the only point that arises for consideration is, whether the settlement deed dated 23.12.1996 marked as Ex.A1 in the trial Court is really a settlement deed as put forth by the plaintiff or only a Will as put forth by the defendant. 4. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 5. The defendant is the sister of the plaintiff. The plaintiff and the defendant are the children of Ponnusamy Gounder. 6. 4. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 5. The defendant is the sister of the plaintiff. The plaintiff and the defendant are the children of Ponnusamy Gounder. 6. The suit in O.S.No.355 of 2003 has been laid by the plaintiff seeking for the reliefs of declaration and permanent injunction in respect of the suit property based on the settlement deed dated 23.12.1996 said to have been executed in her favour by her father viz., Ponnusamy Gounder, since deceased and put forth the case that the defendant is attempting to interfere with her peaceful possession and enjoyment of the same without any basis. 7. Per contra, the defendant would put forth the case that the document dated 23.12.1996 said to have been executed by the deceased Ponnusamy Gounder in favour of the plaintiff is not a settlement deed, but it is only a Will and therefore, according to the defendant, the abovesaid instrument has been subsequently cancelled by the deceased Ponnusamy Gounder by way of the cancellation deed dated 05.02.2003 marked as Ex.B2 and further, according to the defendant, Ponnusamy Gounder had settled his properties including the property in issue in his favour by way of the settlement deed dated 26.02.2003 marked as Ex.B3 and accordingly, on the basis of Ex.B3 settlement deed, the suit in O.S.No.65 of 2004 has been laid by the defendant against the plaintiff for the reliefs of declaration and possession. 8. The suits laid by the plaintiff as well as the defendant were jointly tried by the trial Court and common evidence has been recorded in both the suits i.e. in O.S.No.355 of 2003 preferred by the plaintiff. 9. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to A8 were marked. On the side of the defendant, DWs1 to 6 were examined and Exs.B1 to B18 were marked. 10. On a consideration of the oral and documentary evidence adduced in the matter and the submissions put forth by the respective parties, the trial Court was pleased to dismiss the plaintiff's suit in O.S.No.355 of 2003 and decree the defendant's suit in O.S.No.65 of 2004. Impugning the judgment and decree passed in both the suits, the plaintiff preferred the first appeals. Impugning the judgment and decree passed in both the suits, the plaintiff preferred the first appeals. The first appellate Court, on an appreciation of the materials placed on record and the submissions put forth by the respective parties, was pleased to entertain the appeals preferred by the plaintiff and by way of setting aside the judgment and decree of the trial Court in both the suits, resultantly, dismissed the suit laid by the defendant in O.S.No.65 of 2004 and decreed the suit in favour of the plaintiff as prayed for in O.S.No.355 of 2003. Impugning the judgment and decree of the first appellate Court in the abovesaid appeals, the present second appeals have been preferred by the defendant. 11. Inasmuch as the only point that arises for determination in the second appeals is on the basis of the construction of the document marked as Ex.A1 i.e. whether the same is a settlement deed as put forth by the plaintiff or only a Will as put forth by the defendant, as above pointed out, the other facts of the case are not required to be dealt with in detail. According to the plaintiff, her father Ponnusamy Gounder had settled the property in issue in her favour by way of Ex.A1 settlement deed out of love and affection and since then it is she, who has been in the possession and enjoyment of the property and thereby, claiming the reliefs prayed for, the suit has been laid by her based on the abovesaid settlement deed Ex.A1. 12. 12. The father Ponnusamy Gounder, who was alive during the pendency of the suit laid by the plaintiff and he was arrayed as the first defendant, had filed the written statement, which has been adopted by the second defendant contended that the property in issue had not been settled in favour of the plaintiff by way of Ex.A1 and according to the defendants' case, as the plaintiff requested for settling certain properties in her favour by way of a Will, it is put forth that the document dated 23.12.1996 is only executed by the first defendant as a Will though styled as a settlement deed in favour of the plaintiff and therefore, contended that by way of Ex.A1 settlement deed, the plaintiff is not entitled to seek the reliefs prayed for and further put forth the case that the abovesaid deed has been cancelled by the first defendant under Ex.B2 cancellation deed and thereafter, the first defendant has settled his properties including the property in issue in favour of the second defendant, as above seen, by way of Ex.B3 settlement deed. 13. In the light of the rival pleas put forth by the respective parties, we will have to construct and interpret the document dated 23.12.1996 marked as Ex.A1 as to hold whether the same is only a settlement deed or a Will as contended by the respective parties. In such view of the matter, the recitals contained in Ex.A1 settlement deed assume significance and for a better appreciation of the document, the recitals in Ex.A1 are extracted below: “TAMIL” "A Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. A will has three essentials i.e. (i) it must be a legal declaration of the testator's intention: (ii) that declaration must be with respect to his property: and (iii) the desire of the testator that the said declaration should be effectuated after his death. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant's lifetime. A will has three essentials i.e. (i) it must be a legal declaration of the testator's intention: (ii) that declaration must be with respect to his property: and (iii) the desire of the testator that the said declaration should be effectuated after his death. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant's lifetime. So far as gift/settlement is concerned, it is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee." 14.Considering the principles of law enunciated by the Apex Court as to how the document should be determined i.e. as to how the nature of the document be determined, as to whether the same is a settlement or a Will, it is seen that the Court should carefully examine the document as a whole, look into its substance, treatment of the subject by the settlor/executant, intention as appearing from the express language or by necessary implication and prohibition, if any, against the revocation thereof and further held that Form or nomenclature of document is not conclusive. The abovesaid principles of law have been enunciated by the apex Court in the decision reported in (2010) 4 Supreme Court Cases 161 (P.K. Mohan Ram Vs. The abovesaid principles of law have been enunciated by the apex Court in the decision reported in (2010) 4 Supreme Court Cases 161 (P.K. Mohan Ram Vs. B.N. Ananthachary and others) and the same are extracted below: "A. Transfer of Property Act, 1882 - Ss.19 and 21 - "Vested interest", "contingent interest" - Concepts of, restated B. Family and Personal Laws - Succession and Inheritance - Family Arrangement/Settlement - "Settlement deed" or "will" - Principles for determination of - Held, court should carefully examine the document as a whole, look into its substance, treatment of the subject by settlor/executant, intention as appearing from the express language or by necessary implication and prohibition, if any, against revocation thereof- Form or nomenclature of document, not conclusive - In the present case, all the beneficiaries of purported "settlement deed" were settlor's own relatives - The deed declaring that thenceforth the property shall be enjoyed by settlor and beneficiaries without creating any encumbrance or making any alienation - Reserving settlor's right to income from the property during his lifetime, the deed requiring that after settlor's death, all the beneficiaries should sell the property, spend the specified portion of sale proceeds for certain purposes and divide the remainder among themselves in the manner specified - The deed denuding the settlor of right to cancel it or alter its terms -Said contents of deed, held, created in favour of beneficiaries a right in praesenti - Although beneficiaries could become absolute owners of their respective shares and receive certain other benefit only after disposal of the property, reading the deed as a whole, held, it was a "settlement deed" i.e. a disposition in praesenti and not a "will" - Succession Act, 1925 - Ss.2(h), 59, 119 and 120 - Hindu Succession Act, 1956- S.30 - Transfer of Property Act, 1882 - Ss.19 and 21 One K, owner of the suit property executed a settlement deed in favour of the appellant, Respondents 1 and 2 and thirteen others declaring that from the date of execution of the deed, K and the beneficiaries shall enjoy the suit property without creating any encumbrance or making any alienation. Reserving K's right to income from the property during his life, the deed stipulated that after his death the property should be sold by all the said beneficiaries or those of them surviving at that time. Reserving K's right to income from the property during his life, the deed stipulated that after his death the property should be sold by all the said beneficiaries or those of them surviving at that time. That out of the sale proceeds, a religious trust should be created by paying a certain amount to the temple specifie. Stating the purpose of the trust, the deed added that the honours of the temple should be bestowed upon Beneficiaries 1 and 2 and, after them, upon their heirs. That from the surplus amount, the beneficiaries should purchase an immovable property of the value specified in the name of a charitable feeding institution. That in case of delay in purchasing of the property, the beneficiaries would be free to advance the money to earn interest for using the same for feeding. That the remainder amount should be divided among the sixteen beneficiaries in the manner specified. That all the said beneficiaries should meet the expenses of last rites of K from their personal funds. Specifying the amount of K's debt, the deed required the said beneficiaries to discharge the undischarged portion thereof, if any. The settlor finally recorded that he shall have no right to cancel the "settlement deed" or alter the terms thereof. The question before the Supreme Court was: whether the deed executed by K was a "settlement deed" and was therefore irrevocable and denuded K of any right to execute a subsequent will in favour of Respondents 1 and 2 as held by the trial court and first appellate court or it was merely a will as held by the High Court in the second appeal? The appellant contended that in view of Section 19 of the Transfer of Property Act, 1882, the transfer of the property rights in praesenti coupled with an unequivocal inhibition against cancellation/amendment thereof clearly showed that the document in question was a "settlement deed" and not a "will". Contradicting the appellant, the respondents contended that the rights created in favour of the beneficiaries were contingent and were to become operative after the death of the settlor and, therefore, the said document was a will. Contradicting the appellant, the respondents contended that the rights created in favour of the beneficiaries were contingent and were to become operative after the death of the settlor and, therefore, the said document was a will. Accepting the appellant's contentions and allowing the appeal, the Supreme Court Held: The plain language of Sections 19 and 21 of the Transfer of Property Act, 1882 makes it clear that an interest can be said to be a vested interest where there is immediate right of present enjoyment or a present right for future enjoyment. An interest can be said to be contingent if the right of enjoyment is made dependent upon some event which may or may not happen. On the happening of the event, a contingent interest becomes a vested interest. Although, no straitjacket formula has been evolved for construction of settlement deeds and wills, the consistent view of the Supreme Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the lifetime of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the express language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. The form or nomenclature of the instrument is not conclusive and the court is required to look into the substance thereof. Rajes Kanta Roy v. Shanti Debi, AIR 1957 SC 255 : 1957 SCR 77 : Usha Subbarao v. B.N. Vishveswaraiah, (1996) 5 SCC 201 : Kokilambal v. N. Raman, (2005) 11 SCC 234 , relied On Williams on Executors and Administrators (13th Edn.) Vol.2, pp.658 and 663; Jarman on Wills (8th Edn.) Vol.II, pp. 1390, 1373 and 1397, cited. A careful reading of the document in question shows that in the title itself the document has been described as a settlement deed. 1390, 1373 and 1397, cited. A careful reading of the document in question shows that in the title itself the document has been described as a settlement deed. By executing that document, K expressed his intention, in no uncertain terms, to settle the property in favour of sixteen 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". That was an unequivocal creation of right in favour of sixteen 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. A. Sreenivasa Pai V. Saraswathi Ammal, (1985) 4 SCC 85 ; Namburi Basava Subrahmanyam v. Alapati Hymavathi, (1996) 9 SCC 388 , followed Gangaraju v. Pendyala Somanna, AIR 1927 Mad 197 : Venkatasubramaniya Iyer v. Srinivasa Iyer, AIR 1929 Mad 670 : Ramaswami Naidu v.M.S. Velappan, (1979) 2 MLJ 88 , impliedly approved. Mahadeva Iyer v. Sankarasubramania Iyer, (1908) 18 MLJ 450 : Rajammal v. Authiammal, ILR (1910) 33 Mad 304: P. Venkatachalam Chetty v.P.S.Govindasawmi Naicker, AIR 1924 Mad 605: Thakur Ishri Singh v. Baldeo Singh, (1883-84) II IA 135: ILR (1884) 10 Cal 792, cited. The mere fact that Beneficiaries 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 the document in question was a "will". if the same is read as a whole, it becomes clear that it was a "settlement deed". if the same is read as a whole, it becomes clear that it was a "settlement deed". Vynior case, Trin 7 Jac 1 Rot 2629: 77 ER 595: Sagore Chandra Mondol v. Digambar Mondol, (1909-10) 14 CWN 174: (1909) 9 Cal LJ 644: Ramaswami Naidu v. Gopalakrishna Naidu, AIR 1978 Mad 54 : Ponnuchami Servai v. Balasubramanian, AIR 1982 Mad 281 : Poongavanam v.Perumal Pillai, (1997) 1 MLJ 169 , distinguished on facts Masterman v. Maberly, (1829) 2 Hag Ecc 235: Morgan, In re, (1866) LR 1 P&D 214: Robertson v. smith,(1870) LR 2 P&D 43, cited." 15. Applying the abovesaid principles of law to the case at hand, when it is found that as per the recitals contained in Ex.A1 settlement deed, the settlor viz., the father had executed the abovesaid deed in favour of his only daughter out of love and affection only with the intention of settling the property comprised therein, absolutely, in favour of the plaintiff and when it is further noted that the abovesaid deed viz., Ex.A1 has been properly registered only as a pucca settlement deed by paying necessary stamp duty as required for the settlement deed and furthermore, the settlor viz., the father has clearly averred in the settlement deed that he would not encumber the property settled in any manner till his life time and would only reserve that he would enjoy the income received from the property till his life time and thereafter, it is only the settlee viz., the plaintiff, who would enjoy the suit property absolutely in her own right and further also declared that the other legal heirs would not be entitled to secure any right or interest over the property settled in favour of his only daughter in any manner and also further declared that the property settled has not been subjected to any encumbrance or the subject matter of any legal proceeding and to cap it all, when he has clearly recited that the plaintiff is entitled to mutate her name in the revenue records qua the property, as such, by approaching the concerned revenue authorities and also recited that for the said purpose, he had himself presented the petition in addition to that, clearly recited that he would not revoke the settlement deed in any manner and even if he executes any document revoking the settlement deed, the same would only be an invalid document and considering the abovesaid recitals wholly, as rightly determined by the first appellate Court, it is clear that the settlor only with the intention of settling the property in issue had executed the same in favour of his only daughter viz., the plaintiff and clearly declared that his other legal heir viz., his son i.e. the defendant would not be entitled to claim any right or interest over the property settled and that apart, the settlor had also directed the plaintiff to mutate her name in the revenue records following the settlement deed and that he had himself given the petition in that connection also not reserved any right of revocation and also further stated that in the event of executing any cancellation deed, the same would only be invalid and also restrained himself from alienating the property settled till his life time and would only state that till his life time, he would enjoy the income derived from the property settled and after his death, the settlee would acquire the property absolutely in her own right. In such view of the matter, as rightly determined by the first appellate Court, on a combined reading of the recitals contained in Ex.A1, it is seen that the interest in property settled had been transferred to the plaintiff in praesenti and by way of Ex.A1, it is seen that the plaintiff has acquired a vested interest over the property settled by acquiring immediate right of present enjoyment or a present right for future enjoyment as stipulated under Sections 19 & 21 of the Transfer of Property Act, 1882 and it is further noted that the plaintiff's right to enjoy the property has not been made contingent depending upon some event which may or may not happen and in the light of the abovesaid factors, merely because the settlor had reserved the right to enjoy the income derived from the property during his lifetime and the deed in question viz., Ex.A1 reciting that after his death, the beneficiary viz., the plaintiff would acquire the absolute right, that recital in isolation would not take away the nature of the instrument from a settlement deed and that apart, when the settlor had denuded himself of the right to cancel the settlement deed in any manner, applying the principles of law outlined by the apex Court, as reported in the decision referred to supra, it is evident that as concluded by the first appellate Court, Ex.A1 could only be interpreted to be a settlement deed as contended by the plaintiff and not a Will as put forth by the defendant's counsel. 16. The abovesaid principles of law had also been outlined by the apex Court in the decision reported (2012) 13 Supreme Court Cases 80 (Mathai Samuel and others Vs. Eapen Eapen (dead) By LRs and others), whereunder also it has been held that when there is a transfer in praesenti by the terms of the instrument and when the settlor has executed the settlement voluntarily and without consideration and with the intention, which could be gathered from the recitals above pointed out and when there is no ambiguity in the recitals employed by the settlor, it is found that Ex.A1 deed is only a settlement deed as put forth by the plaintiff and not a Will as contended by the defendant. 17. 17. The first appellate Court, in detail, considered the various recitals mentioned in Ex.A1 as well as the nature of the document, as such and also on an appreciation of the various authorities cited before it as well as the decisions submitted for consideration before the trial Court, rightly concluded that all the ingredients necessary for a settlement deed are satisfied on a proper interpretation of the recitals contained in Ex.A1 deed and on that premise concluded rightly that Ex.A1 deed is only a settlement deed and not a Will. 18. The contention has been raised that the possession of the property settled had not been delivered to the plaintiff or in other words, the plaintiff has not taken the possession of the suit property by way of accepting the settlement deed. The abovesaid factors had also been considered by the first appellate Court in detail in para-13 of its judgment properly. In addition to that, the apex Court, the decision reported in (2014) 9 Supreme Court Cases 445 (Renikuntla Rajamma Vs. K. Sarwanamma) has held that gift of immovable property reserving life interest in property for donor is valid and the delivery of possession to donee is not essential condition and further held that the gift is valid even if there are recitals in the gift deed, whereunder, the donor had retained the possession and right to received rents of property during his life time and the position of law has been outlined by the apex Court in the abovesaid decision, which are extracted below: "A. Property Law - Transfer of Property Act, 1882 - Ss.123, 122 and 129 (after its amendment in 1929)- Gift of immovable property reserving life interest in property for donor, valid - Delivery of possession to donee not essential condition - Rule of Hindu law making transfer of possession a condition for completion of a valid gift stood superseded by S.123 after the 1929 amendment to S.129 - Property gifted by retaining possession and right to receive rents of property by donor during donor's lifetime - Held, gift valid - Family and Personal Laws - Hindu Law – Gift B. Property Law - Transfer of Property Act, 1882 - Ss.122 and 123 - Gift - Retention of life interest by donor, held, valid C. Property Law - Transfer of Property Act, 1882 - S.126- Irrevocability of valid gift - Affirmed. The appellant, a Hindu woman, executed a registered gift deed in respect of an immovable property in favour of the respondent reserving to herself the right to retain possession and to receive rents of the property during her life time. The gift was accepted by the respondent. But subsequently, the appellant revoked the gift deed by a revocation deed. The respondent filed a suit assailing the revocation deed and seeking a declaration that the same was invalid and void ab initio. The trial Court found that the appellant -defendant had failed to prove that the gift deed set up by the respondent-plaintiff was vitiated by fraud or undue influence or that it was a sham or nominal document. The gift, according to the trial Court, had been validly made and accepted by the respondent-plaintiff, hence, was irrevocable in nature. It was also held that since the appellant donor had taken no steps to assail the gift made by her for more than 12 years, the same was voluntary in nature and free from any undue influence, misrepresentation or suspicion. The fact that the appellant donor had reserved the right to enjoy the property during her life time did not affect the validity of the deed, opined the trial Court. Accordingly, the suit was decreed. The first appellate Court and the High Court in second appeal concurred with the findings of the trial Court. An apparent conflict between two earlier decisions of the Supreme Court viz., Naramadaben Maganlal Thakker, (1997) 2 SCC 255 and K. Balakrishnan, (2004) 1 SCC 581 had led to reference to the present. Bench of the Court for an authoritative pronouncement as to the true and correct interpretation of Sections 122 and 123 of the Transfer of Property Act. Held: Section 123 read with Section 122 of the TP Act provides that a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of Section 122. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of Section 122. A conjoint reading of Sections 122 and 123 makes it abundantly clear that "transfer of possession" of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift. Section 123 of the TP Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by deliver. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. Absence of any such requirement can only lead to the conclusion that deliver of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property. K. Balakrishnan v. K. Kamalam, (2004) 1 SCC 581 , affirmed. Lallu Singh v.Gur Narain, AIR 1922 All 467, approved. Dharmodas Das v. Nistarini Dasi, ILR (1887) 14 Cal 446: Balbhadra v. Bhowani, ILR (1907) 34 Cal 853: Alabi Koya v. Mussa Koya, ILR (1901) 24 Mad 513: Madhavrao Moreshvar Pant Amatya v.Kashibai Kom Dattubhai, ILR(1910) 34 Bom 287: Man Bhari v. Naunidh, ILR (1882) 4 All 40; Balmakund v. Bhagwan Das, ILR (1894) 16 All 185: Phul Chand v.Lakkhu, ILR (1903) 25 All 358; Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur, (1916- 17) 44 IA 65: (1917) 5 LW 654: AIR 1916 PC 182 , cited. The language employed in Section 129 before its amendment was clear enough to give Section 123 an overriding effect vis-a-vis rules of Hindu law pertaining to gift including the rule that required possession of the property gifted to be given to the donee. The amendment has made the position more explicit by bringing all other rules of Hindu and Buddhist law also under Chapter VII and removing the protection earlier available to such rules from the operation of Chapter VII. Judicial pronouncements as to the true and correct interpretation of Section 123 of the TP Act have for a fairly long period held that Section 123 of the Act supersedes the rule of Hindu Law which makes the delivery of possession an essential condition for the completion of a valid gift. Tevappa v. Madhava Rao, AIR 1960 Mys 97; Tirath v. Manmohan Singh, AIR 1981 P&H 174 , approved Njagwan Prasad v. Harisingh, AIR 1925 Nag 199, cited. The decision of Maganlal Thakker, (1997) 2 SCC 255 clearly rests on the facts of that case. Absolute transfer of ownership in the gifted property in favour of the donee was absent in that case which led the Supreme Court to hold that the gift was conditional and had to become operative only after the death of the donee. The judgment is in that view clearly distinguishable and cannot be read to be an authority for the proposition that delivery of possession is an essential requirement for making a valid gift. Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, (1997) 2 SCC 255 , distinguished on facts. In the present case, the execution of registered gift deed and its attestation by two witnesses in not in dispute. It has also been concurrently held by all the three courts below that the donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor. Therefore, the High court was justified in refusing to interfere with the decree passed in favour of the done. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor. Therefore, the High court was justified in refusing to interfere with the decree passed in favour of the done. R.Rajamma V.K. Sarwanamma, Second Appeal No.809 of 2003, order dated 09.03.2006 (AP), affirmed Renikuntla Rajamma v.K. Sarwanamma, (2014) 9 SCC 456 , referred to." 19. Considering the principles of law outlined in the above apex Court's decision and applying the same to the case at hand, it is seen that a conjoint reading of Sections 122 and 123 of Transfer of Property Act, 1882 makes it abundantly clear that the transfer of possession of the property covered by the registered instrument of gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift and further, it is noted that the retaining of the settled property by the donor to use the income of the settled property till his life time would also not in any manner undermine the nature of the document to consider the same as only a Will and therefore, when it is found that the right of the plaintiff to the property in issue by way of Ex.A1 settlement deed has been transferred in praesenti, the first appellate Court is found to be wholly justified in upholding the plaintiff's case and rejecting the defendant's case. 20. Inasmuch as, as above pointed out, Ex.A1 deed is only a settlement deed, it is seen that subsequent thereto, the father viz., Ponnusamy Gounder would be disentitled to cancel the same and in such view of the matter, as rightly concluded by the first appellate Court, the deed of cancellation marked as Ex.B2 has no legal sanctity and after Ex.A1, the plaintiff's father would not be legally entitled to settle the property in favour of the defendant, his son by a deed of settlement marked as Ex.B3 and hence Ex.B3 also would not acquire any legal force and accordingly, the first appellate Court is correct in holding that Exs.B2 & B3 would not confer any valid right over the property in issue in favour of the defendant and accordingly, correctly upheld the plaintiff's case and dismissed the defendant's case. 21. 21. The reasonings and conclusions of the first appellate Court being rendered, based on the proper appreciation of the materials placed on record, particularly, the proper appreciation of the recitals contained in Ex.A1 settlement deed as well as the principles of law governing the interpretation of the document, whether the same is only a settlement deed or a Will, in the light of the various decisions of the apex Court and our High Court and when the reasonings and the conclusions of the first appellate Court are not shown to be in any manner perverse, illogical or irrational and are found to be in accordance with law, in such view of the matter, as above pointed out, when Ex.A1 settlement deed has been given effect to and the plaintiff having acted upon and it is only the plaintiff, who is in the possession and enjoyment of the property settled, all put together, in my considered opinion, no interference is warranted in the judgment and decree of the first appellate Court. The substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendant. In conclusion, the Judgment and Decree dated 04.01.2008 passed in A.S.Nos.66 & 65 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No. III, Dharpuram, Erode District, reversing the Judgment and Decree dated 29.03.2007 passed in O.S.Nos.355 of 2003 & 65 of 2004 on the file of the Subordinate Court, Dharapuram, Erode District, respectively are confirmed and resultantly, both the second appeals are dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.