Ramadasan and Kalyanikutty Amma v. Sivadasan and Bhargavikkutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 RFA NO. 102 OF 2010** **AGAINST THE DECREE AND JUDGMENT DATED 21.11.2009 IN OS NO.95 OF 2006 OF SUB COURT, OTTAPPALAM** **-----** ## **APPELLANTS IN RFA/DEFENDANT NO.1 & SUPPL. DEFENDANT NO.2 IN SUIT:** - **1 RAMADASAN** **S/O. LATE KAKKASSERI RAVUNNI NAIR, AGED 35, RESIDING AT SIVARAM NILAYAM, POMBRA DESOM,ELUMBULASSERI AMSOM, OTTAPALAM TALUK.** - **2 KALYANIKUTTY AMMA,** **W/O. LATE KAKKASSERI RAVUNNI NAIR, AGED 35, RESIDING AT SIVARAM NILAYAM, POMBRA DESOM,ELUMBULASSERI AMSOM, OTTAPALAM TALUK.** **BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN** ## **RESPONDENTS IN RFA/PLAINTIFF & SUPPL.DEFENDANT NO.3 IN SUIT:** **1 SIVADASAN, S/O. LATE KAKKASSERI RAVUNNI NAIR, AGED 36, NOW RESIDING AT KUNNAPULLI, POMBRA P.O., KARAKURISSI, PALAKKAD - 678595.** **RFA NO. 102 OF 2010 -2-** **2 BHARGAVIKKUTTY, D/O. LATE KAKKASSERI RAVUNNI NAIR, & KALYANIKUTTY-, AMMA, RESIDING IN POMBRA P.O., ELUMBULASSERI AMSOM, OTTAPALAM TALUK.** ## **BY ADV SRI.SANTHEEP ANKARATH** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON** **13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.102 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 13[th] day of March, 2024** ## **J U D G M E N T** The preliminary decree in a suit for partition is under challenge by defendants 1 and 2. 2. The plaint schedule consists of five items of properties. It belonged to one Ravunni Nair. He died on 21.12.2004. According to the plaintiff, Ravunni Nair had executed Ext.A1 Settlement Deed dated 12.11.1999 whereunder all the five items of properties were settled in favour of the plaintiff and the first defendant. The plaintiff seeks for partition and separate possession of his half share. 3. The defendants contended that Ext.A1 Settlement Deed had not taken effect. It was claimed that the settlement was cancelled by the father on 10.03.2003 as per Ext.B8 Cancellation Deed. Thereafter, the father had executed Ext.B9 Will dated 12.03.2003. As per Ext.B9 RFA No.102 of 2010 -: 2 :- Will, plaint items 1 and 5 were bequeathed to the plaintiff and items 2 to 4 were bequeathed to the first defendant. 4. The trial court upheld Ext.A1 Settlement Deed and passed a preliminary decree as prayed for by the plaintiff. 5. I have heard learned counsel on either side. 6. The points that arise for determination are :- - _(i) Is Ext.A1 a Settlement Deed or a Will ?_ - _(ii) Is the finding of the trial court that Ext.A1 had taken_ - _effect, sustainable ?_ 7. The learned senior counsel for the appellant would argue that, the recitals in Ext.A1 indicates that the transfer is to take effect only after the death of the executant. There is no transfer _in praesenti;_ therefore, the document is only a Will. On the contrary, the learned counsel for the respondents would contend that, under the document there has been a complete transfer, RFA No.102 of 2010 -: 3 :- but only the vesting of rights has been postponed beyond the life time of the donor. Under the document a vested interest is created in terms of Section 19 of the Transfer of Property Act. Therefore, the document cannot be a Settlement Deed, it is argued. 8. It would be appropriate to refer to the relevant recitals in Ext.A1 Settlement Deed :- “Fómð F-sâ a-¡fpw F-sâ ]n-´p-SÀ-¨ ap-X-em-b-h-Imin-Ifpw F-só B-{i-bn-¨p I-gn-ªp-h-cp-ó-h-cpam-b \n§-fp-sS t]-cnð F-\n-¡p-Å kv-t\l-hm-Õeyw \n-an¯w \n-§fp-sS `m-hn-t{i-b-Ên\pw ta-eme-s¯ I-gn-¨n-en\pw th-ïn Xm-sg ]-«n-I-bnð ]-d-bp-ó h-l-IÄ F-sâ a-cWwh-sc Rm³ X-só {I-b-hn-{In-b kzm-X-{´y-anñmsXbpw A-\ym-[o-\-s¸-Sp-¯m-sXbpw I-bvh-iw sh-¨v B- Zm-b-§Ä F-Sp-¯v A-\p-`-hn-¨p-h-cp-hm\pw F-sâ a-c-Wti-jw Xm-sg ]-«n-I-bnð ]-d-bp-ó h-l-Ifpw A-Xnð F-\n-¡p-Å P-òw sh-dp-¼m-«w shdpw Xn-cp-sh-gp-¯v I- bvh-iw ap-Xem-b k-akv-X A-h-Im-i-§fpw Iq-Sn \n-§Ä¡v {I-b-hn{I-b kzm-X-{´y k-ln-Xw e-bn-¸m-\p-Å \n-Ý— b-t¯m-Sp-Iq-Sn C-Xn-\mð Rm³ \n-§-fp-sS cm-hp-®n \mbÀ (H¸v) {Sj-dn ap-{Z 11.11.99 (5)—t]-cnð [-\-\nÝ-bw sN-¿p-I-bpw sN-bv-Xn-cn-¡póp. A-Xn-\mð ]-«n-I-bnð ]-d- RFA No.102 of 2010 -: 4 :- bp-ó h-l-IÄ F-sâ a-c-W-ti-jw \n-§-fp-sS t_m-²ywt]m-se I-bvh-iw sh-¨v A-Xp-I-fn-ep-Å k-akv-X A-h-Imi-§-tfm-Sp-Iq-Sn ssIh-iw h¨v \-S-¡p-ó-Xn\pw \-S-¯n¡p-ó-Xn-\pw P-òm-h-Im-iam-b h-l-I-fp-sS \n-Ip-Xn P-a Xn-cn-¨v ]«-bw hm-§nbpw sh-dp-¼m-«w shdpw Xn-cp-sh-gp¯-h-Im-iam-b h-l-I-fp-sS \n-b-am-\p-Iq-ey-§Ä t\-Sn F- Sp¯pw \n-Ip-Xn ap-X-em-b-h AS-¨v {I-b-hn-{I-b-kzm-X-{´yt¯m-Sp-Iq-Sn AS-¡n A-\p-`-hn-¡p-ó-Xn\pw aäpw \n-§Ä¡v ]qÀ-®m-[n-Im-cm-h-Im-i-ap-sïópw ta-emð F-\n-¡v F-sâ ac-Ww h-sc ]«n-I h-l-IÄ I-bvh-iw sh-¨v B-Zmb-§Ä F-Sp-¯v A-\p-`-hn-¸m-\ñm-sX th-sd bm-sXm-c-h— Imihpw tXÀ-¨-bpw cm-hp-®n \mbÀ (H¸v) {Sj-dn ap-{Z ” — 11.11.99. (6) tNm-Zyhpw C-sñópw \n-Ý-bn-¨n-cn-¡póp. The document is styled as a Settlement Deed. It purports to convey the property absolutely to the donees. The vesting of title and possession is postponed after the life time of the donor. The rights of the donor to deal with the property by alienation or otherwise has been curtailed. This apparently indicates creation of rights in favour of the donees. RFA No.102 of 2010 -: 5 :- ## 9. Sections 19 and 5 of the Transfer of Property ## Act are relevant and they read thus :- _“_ _**19. Vested interest.** —Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer._ _A vested interest is not defeated by the death of the transferee before he obtains possession.”_ _“ ”_ _**5. Transfer of property defined.** —In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act._ _In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.”_ RFA No.102 of 2010 -: 6 :- Evidently, merely because the document postpones the right to enjoyment to the happening of an event which is certain to happen, it cannot be contended that no vested interest is created under the document. Learned counsel on either side have placed a host of decisions which laid down the principles to distinguish a Will and settlement. A Will takes effect only after the death of the testator, whereas a Settlement takes effect immediately. The precedents lay down the rule that, if interest is created in the property _in praesenti_ then the document is a Settlement and not a Will. In _**Kokilambal v. Raman 2005 (2) KLT 1007 (SC),**_ it was held that, in order to find out the intent of the settler the deed has to be read as a whole and inference drawn. The Lordships referred to an earlier judgment of the Apex Court in _**Usha Subarao v. B.N.Vishveswaraiah and Others (1996) 5 SCC 201**_ which observed thus :- RFA No.102 of 2010 -: 7 :- _“An interest is said to be a vested interest when there is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition which may or may not happen. On the happening of the event or condition a contingent interest becomes a vested interest.”_ Reference was also made to Halsbury's Laws of England 4[th] Edition Vol. 50, paras 591 and 592 which read as under :- _“Although the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the Court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear. As regards Wills the rule is that where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift and accordingly, it vests at the testator's death or at the earliest moment after that date which is possible in the context.”_ RFA No.102 of 2010 -: 8 :- The Apex Court held that, if there is an immediate right of present enjoyment or a present right for future enjoyment, it is a vested interest. So also, Courts lean in favour of a vested interest in the absence of a definite and clear contrary intention. In the case at hand, the executant has, under Ext.A1 Settlement Deed, restrained his rights to merely a right to take usufructs from the property with an express curtailment on the right of alienation. The right of the donee to deal with the property has been postponed. Bearing in mind the principles laid down by the Apex Court it can only be concluded that under the document a vested interest has been created. There is transfer of right _in praesenti_ but, postponing the right of enjoyment. The document is thus construed as a Settlement Deed. 10. Having held Ext.A1 to be a Settlement Deed, the next question is whether Ext.B8 cancellation is valid. The gift once accepted, is not open for cancellation by RFA No.102 of 2010 -: 9 :- the donor. Therefore, the point for determination is whether the gift was accepted before execution of Ext.B8. Here it is relevant to note that, in the written statement there is no contention that the gift was not accepted. There is no contention that the donees were not aware of the gift. The gift not being an onerous one, mere knowledge of the gift by the donee is sufficient to constitute acceptance since, a person would only be too willing and eager to promote his own interests. _**(See Narayani Bhanumathi v. Lelitha Bhai 1973 KLT 961)**_ that the donees were aware of Ext.A1 settlement, being not in dispute, the trial court concluded that Ext.A1 was accepted. The said finding cannot be faulted. 11. Having found that Ext.A1 is a Settlement Deed and that it was accepted, Ext.B8 cancellation is not of any consequence. The trial court was right in having held so. RFA No.102 of 2010 -: 10 :- The decree and judgment of the trial court warrants no interference. The appeal fails and is dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge