Parukutty Ammal v. Kunchu Guptan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935 RFA.No. 455 of 2006 ( ) -----------------------OS 331/1995 of SUB COURT, OTTAPPALAM APPELLANT/PLAINTIFF: --------------------- PARUKUTTY AMMAL, AGED ABOUT 53 YEARS, D/O.ERAKKATTIL KUNCHU GUPTAN AND W/O.MADATHIL SUKUMARA GUPTAN, MANNAMBATTA AMSOM KODAMANNA DESOM, OTTAPPALAM TALUK NOW RESIDING AT AT NO.10A, BLOCK D3, ICE HOUSE POLICE QUARTERS, CHENNAI - 5. BY SENIOR ADV.SRI.T.KRISHNANUNNI SRI.SAJU.S.A K.C.KIRAN. RESPONDENT(S)/DEFENDANTS 1 TO 6 : ------------------------------------ ## 1. SRI.KUNCHU GUPTAN, AGED 86 YEARS, S/O.ERAKKATTIL KRISHNANKUTTY MUTHAN MANNAMPATTA AMSOM, KODARMANNA DESOM, P.O.PUNJAPPADAM OTTAPALAM TALUK, PALAKKAD DISTRICT. (DIED. L.Rs. IMPLEADED) 2. THANKAMMAL, W/O.KUNCHU GUPTAN (DIED). ## 3. SMT.KUNHILAKSHMY AMMAL, W/O.THONDIYATH NARAYANA GUPTAN PRAKKATTIL HOUSE, P.O. PUNJAPPADAM, MANNAMPATTA AMSOM KODARMANNA DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. ## 4. SRI.UNNIKRISHNAN, S/O.AYYAPPAN, MALAMPALLIYIL HOUSE, P.O.PUNJAPPADAM, KATAMPAZHIPURAM PALAKKAD DISTRICT. (DIED. L.Rs. IMPLEADED) ## 5. SMT.SANTHA, ## W/O.UNNIKRISHNAN, DO. DO. 6. SRI.APPU, S/O.AYAMKULANGARA RAMAN, - MALAMPPALLIYIL HOUSE, P.O.PUNJAPPADAM, KATAMPAZHIPURAM - PALAKKAD DISTRICT. ## ADDL. R7 IMPLEADED : 7. AJITH KUMAR M.(13 YEARS), REP. BY GUARDIAN SMT.SANTHA, - W/O.LATE UNNIKRISHNAN, MALAMPALLAYIL HOUSE, P.O.PUNJAPPADAM, KATAMPAZHIPURAM, PALAKKAD DISTRICT. ## ADDL.R8 IMPLEADED : 8. ANUP M. (11 YEARS) REP. BY GUARDIAN SMT.SANTHA, W/O.LATE UNNIKRISHNAN, MALAMPALLAYIL HOUSE, P.O.PUNJAPPADAM, KATAMPAZHIPURAM, PALAKKAD DISTRICT. (THE LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. 7TH RESPONDENT AND ADDL.8TH RESPONDENT AS PER ORDER DATED 2.9.2008 IN I.A.NO.251/08) (IT IS RECORDED THAT RESPONDENT NO.4 EXPIRED AND RESPONDENT NO.5 IS RECORDED AS ONE OF HIS LEGAL HEIRS VIDE ORDER DT. 25.1.2008 IN I.A.252/08) (IT IS RECORDED THAT THE FIRST RESPONDENT EXPIRED AND THE APPELLANT AND THE THIRD RESPONDENT ARE HIS LEGAL HEIRS VIDE ORDER DT. 25.1.2008 IN MEMO CCF 328/08 DATED 16.1.2008) R,R1, R3 TO R6 BY ADV. SRI.T.SETHUMADHAVAN R,R1, R3 TO R6 BY ADV. SRI.PUSHPARAJAN KODOTH R,R1, R3 TO R6 BY ADV. SRI.K.JAYESH MOHANKUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2013, THE COURT ON 27-06-2013 DELIVERED THE FOLLOWING: **M.L.JOSEPH FRANCIS, J. ----------------------------------------------R.F.A. No.455 of 2006 ----------------------------------------------Dated 27[th] June, 2013.** ## **J U D G M E N T** This appeal is filed by the plaintiff in O.S.No.331 of 1995 on the file of the Sub Court, Ottappalam. Respondents 1 to 6 herein were the defendants 1 to 6 in that suit. 2. O.S.No.331 of 1995 is a suit for declaration and for injunction. The plaint averments are briefly as follows : Plaint A schedule properties were given to the plaintiff as per settlement deed No.1614/1981 of Kadambazhippuram Sub Registry executed by the first defendant for a consideration of `16,000/-. First defendant was left with only limited interest to take income from the properties till his death. Plaint B, C and D schedule properties are portion of A schedule. Defendants 1 and 2, who are plaintiff's parents are residing in the house situated in the property and managing the properties for plaintiff. As per the settlement deed an amount of `7,000/- was to be paid to the plaintiff's sister (third defendant) and that amount was paid by the plaintiff as per registered receipt executed by the third defendant on 4.6.1981. Balance purchase money which had to be remitted to the Government 2 R.F.A. No.455 of 2006 as per the purchase certificate was sent by the plaintiff to the first defendant and he remitted it for and on behalf of the plaintiff. After getting right over the properties as per the settlement deed, plaintiff renovated the existing house and took upstairs, electrified the house and fitted a motor for cultivation purpose. Plaintiff has spent a lot of money for the maintenance and improvement of the properties. First defendant can only reside in the house and take income from the properties until his death and except that he has no other right or interest over the properties. Plaintiff was used to sent money to the first defendant for maintenance of the properties and the first defendant used to write to her seeking money. It was for the plaintiff that the first defendant cut some trees from the properties and constructed three shop rooms. Things going so, first defendant permitted third defendant also to reside in the house and thereafter upon influence from third defendant, the first defendant executed a cancellation deed cancelling settlement, for which he had no right at all. He is also heard to have transferred B schedule portion of the properties to the 3 R.F.A. No.455 of 2006 third defendant, C schedule portion of the properties to 4[th] and 5[th] defendants and D schedule portion to the 6[th] defendant. All those transfers are invalid and not binding the properties and the plaintiff. Hence the suit has been filed seeking declaration that after death of first defendant, she will have possession and right over A schedule properties and that first defendant has no right to alienate the properties, sell the house and other improvements in the properties or to commit any act of waste and also seeking mandatory injunction to direct defendants 3 to 6 to surrender their possession of B, C and D schedule properties to the first defendant, to direct the first defendant to recover possession of those items from the defendants 3 to 6 and if he fails to do so, to appoint Receiver for managing the properties for the plaintiff until the death of the first defendant. 3. Defendants 1 and 2 are plaintiff's parents. They filed joint written statement contending as follows : Plaintiff has never got any right or possession of the plaint schedule properties. The settlement deed mentioned in the plaint has been cancelled. Plaintiff did not get any right as per the 4 R.F.A. No.455 of 2006 settlement deed. No possession or title was transferred or intended to be transferred to her under the said document. It is absolutely a false contention that defendants resided in the house as permitted by the plaintiff and they are managing the properties for the plaintiff. Settlement deed was executed out of love and affection towards the plaintiff and not for any consideration, but hoping that she would look after her aged parents. But she did not care to look after the defendants who are aged and sick and therefore, the settlement deed which was intended to take effect after the death of first defendant, was cancelled as per a cancellation deed executed on 17.5.1995. Plaintiff has filed the suit after obtaining a revenue receipt by paying basic tax at the Village Office so as to make it appear that she is in possession of the properties. It was the 1[st] defendant who renovated the house by spending money from the income from the properties. Plaintiff has never sent any money order to maintain and improve the properties as she claims. B schedule portion of the property was assigned to the third defendant for valuable consideration and it was with that R.F.A. No.455 of 2006 5 money, first defendant constructed the shop rooms. Since the plaintiff got no right or interest over the properties, she is not entitled to get any relief as sought for. 4. The third defendant is the sister of the plaintiff. She filed written statement denying the plaintiff's allegation against her. Plaintiff has not given her `7,000/- as seen from the receipt produced. It was the first defendant who gave her `7,000/- and receipt was given in the name of the plaintiff as she demanded. It is absolutely a false allegation that first defendant father and second defendant mother are under her influence. B schedule property was purchased by her for valuable consideration. Plaintiff has no right over the plaint schedule properties as per the settlement deed said to have been executed by the first defendant. Plaintiff is, therefore, not entitled to get plaint B schedule property recovered from her possession and the suit is liable to be dismissed. 5. Defendants 4 and 5 are the persons who purchased plaint C schedule properties from the first defendant. It was bonafidely that they purchased C schedule 12 cents from 6 R.F.A. No.455 of 2006 the first defendant on 20.6.1995 and since then, they are in possession and ownership of that property. Plaintiff is not entitled to get relief against these defendants and C schedule property is in their possession. The 6[th] defendant also filed written statement resisting plaintiff's claim in respect of D schedule 20½ cents, which he purchased for valuable consideration from the first defendant. 6. In the Sub Court, PW1 and Dws.1 and 2 were examined and Exts.A1 to A12 series and Exts.B1 to B12 were marked. The learned Sub Judge, on considering the evidence on record, found that the disputed document can be treated only as a will which was cancelled by first defendant and as such, the plaintiff has no right or interest over the plaint schedule property and dismissed the suit without costs. Against that judgment and decree dismissing the suit, the plaintiff filed this appeal. 7. Heard the learned senior counsel for the appellant and the learned counsel appearing for the respondents. R.F.A. No.455 of 2006 7 8. At the time of hearing, the learned senior counsel for the appellant raised the following arguments : The court below ought to have seen that Ext.A1 settlement deed conveyed title in praesenti. The learned Sub Judge ought to have seen that Ext.A1 is a document conveying title with a reservation regarding right of stay and enjoyment of income during life time for the settler. The court below failed to see that the restriction in alienation by the settler, which is clearly incorporated in Ext.A1 is a crucial factor in construing the character of the instrument. The court below ought not to have held that Ext.A1 is a will. The court below ought to have held that Ext.B1 cancellation deed is a nullity and ab initio void. The court below ought to have held that Exts.B6, B9 and B11 assignment deeds are invalid. The court below failed to see that if, as held, no rights were conveyed as per Ext.A1, there was no necessity to cancel it by another registered document. The learned counsel for the respondents supported the judgment of the court below. 9. The execution of Ext.A1 settlement deed 8 R.F.A. No.455 of 2006 No.1614/81 executed by the first defendant in favour of plaintiff in respect of plaint A schedule property is not disputed by the first defendant. Admittedly, the plaintiff and third defendant are the daughters of defendants 1 and 2. The decision of this case mainly depends on the interpretation to be given to Ext.A1 settlement deed. The main question to be considered is as to whether Ext.A1 is a settlement deed or a will. In this connection, it is worthwhile to extract the relevant recitals contained in Ext.A1 settlement deed, which reads as follows : ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... 9 R.F.A. No.455 of 2006 ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ................................................................................................... ## 10. In the decision reported in Subbegowda v. Thimmegowda (AIR 2004 SUPREME COURT 2428), it was held as follows : “The question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and 10 R.F.A. No.455 of 2006 then, by looking into to the extent permissible - the prevailing circumstances which persuaded the author of the document to execute it. If the executant intended to transfer property the Court would lean in favour of holding the transferee having been vested with interest in the property. Where an intention to transfer property within the meaning of Section 5 of Transfer of Property Act, 1882 cannot be spelled out, the document will be given effect to as it reads and as is explicit from what is set out in the deed itself.” ## 11. In the decision reported in **Namburi Basava Subrahmanyam v. Alapati Hymavathi** (AIR 1996 SUPREME COURT 2220), it was held thus : “the nomenclature of the document is not conclusive. 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”. ## 12. In the decision reported in **P. K. Mohan Ram v.** 11 R.F.A. No.455 of 2006 ## **B. N. Ananthachary** (AIR 2010 SUPREME COURT 1725), it is stated in paragraph 16 as follows : "The broad tests or characteristics as to what constitutes a will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a Will or a gift is to see whether the disposition of the interest in the property is in praesenti in favour of the settlees or whether the disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of the executant, it would be a Will. But if the executant divests his interest in the property and vests his interest in praesenti in the settlee, the document will be a settlement. The general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the document are only a guide to find out whether there was an immediate divestiture of the interest of the executant or whether the disposition was to take effect on the death of the executant." "If the clause relating to the disposition is clear and unambiguous, most of the other clauses will be ineffective and explainable and could not change the character of the disposition itself. For instance, the clause prohibiting a revocation of the deed on any ground would not change the nature of the document itself, if under the document there was no disposition in praesenti." ## 13. In view of the principles laid down in the above 12 R.F.A. No.455 of 2006 decisions, it is clear that in the case of a will disposing of or distributing the property of the testator take effect on his death. On the other hand, in the case of a gift or a settlement, provisions become operative immediately and a transfer in praesenti is intended and comes into effect. From the very nature of the case, a will is revocable because no interest is intended to pass during the life time of the owner of the property and therefore, even if a will contains a clause that it is irrevocable, the law makes it revocable. Similarly, in the case of a gift or settlement because it comes into operation immediately even if it contains a clause that the settler or donor can revoke it, still it will remain irrevocable under the law because the donee obtains his interest in the property on the execution of the document itself. Consequently, whether a particular document contains a provision as to whether it is revocable or irrevocable is not decessive on the question as to whether it is a will or settlement. 13 R.F.A. No.455 of 2006 ## 14. In the decision reported in **Subbegowda v. Thimmegowda** (AIR 2004 SUPREME COURT 2428), it was held in paragraph 9 as follows : “9. A conditional transfer or a settlement accompanied by conditions is not unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the Court will give effect to it unless there is some provision of law which annuls or invalidates such conditions, restraint or limitation.” 15. The learned counsel for the appellant submitted that if for any reason, it is found that there is no sufficient evidence to find that Ext.A1 is a settlement deed, sufficient opportunity may be given to the appellant/ plaintiff to adduce further evidence and for that purpose, the case may be remanded to the court below. On perusing the judgment of the court below, it is clear that the learned Sub Judge has not properly appreciated the evidence by applying the principles of law correctly while considering the nature of Ext.A1 document. During the pendency of this appeal, the first respondent/first defendant died and therefore, the plaint has to be amended and the relief claimed in the plaint has to be suitably modified 14 R.F.A. No.455 of 2006 in view of the subsequent event. Since the learned Sub Judge has not properly appreciated the evidence on record, I am of the view that in the interest of justice, the case has to be remanded to the court below for fresh disposal in accordance with law, after giving sufficient opportunity to both sides to make suitable amendments in their pleadings and to adduce further evidence. Accordingly, this Appeal is allowed and the judgment and decree dismissing O.S.331 of 1995 on the file of the Sub Court, Ottappalam is set aside and the case is remanded to the court below for fresh disposal in accordance with law after giving sufficient opportunity to both sides to make necessary amendments in their pleadings and to adduce further evidence. Parties are directed to appear before the Sub Court, Ottappalam, on 26.8.2013. There is no order as to costs in this appeal. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)