Ammalu Ammal vs Govindaswami Reddiar and another

Natesan, J.—The short question for consideration in this Second Appeal is whether by virtue of the release deed, Ex. A.8 the vested

remainder in the suit property, which the first defendant had, had accrued to the plaintiff and enlarged her estate into a full and absolute estate in the

properties. The suit properties, along with several other items, originally belonged to one Ayilu Reddi. The plaintiff is the niece of Ayilu Reddi, that

is, his sister''s daughter. The first defendant in the suit, the contesting defendant, is the grandson of the brother of Ayilu Reddi''s wife. By a

registered settlement deed dated 30th December 1944, original of Ex. B. 1, Ayilu Reddi settled all his properties on his wife, Parvathi alias

Kamalammal, for life and gave the vested remainder in the properties to the first defendant. After the death of Ayilu Reddi both Parvathi and the

first defendant were in possession and enjoyment of the properties. They alienated some of the properties in favour of the plaintiff under registered

sale deeds, Ex. A. 6 and A. 7 dated 27th July 1955 and 30th May 1956 respectively. Between these sale deeds there was some misunderstanding

between Parvathi and the first defendant, and there was some exchange of notices. On 25th August 1956 under the original of Ex. A. 1, Parvathi

sold the suit properties and certain other items to the second defendant in the suit for a consideration of Rs. 3000. On this alienation, on 29th

August 1956, the first defendant published in a Tamil daily that the alienation would not bind him and that he had a vested interest in the properties.

Some two months afterwards on 30th October 1956, the second defendant obtained from the first defendant by the registered deed, Ex. A. 8, a

release of his interest in the properties. Asserting full title to the properties by virtue of the sale deed followed up by the release deed the second

defendant conveyed the suit properties to the plaintiff under the registered sale deed, Ex. A. 3, dated 19th November 1958. Subsequent to the

sale patta had been duly transferred in the name of the plaintiff and she had been paying kist for the properties, having possession and enjoyment of

the same. Parvathi, who under the settlement of her husband had a life interest in the properties, died in March 1961. Alleging interference with her

possession in the beginning of April 1962, the plaintiff filed the suit out of which the second appeal arises, for a declaration of her absolute title to

the properties and for a permanent injunction, restraining interference with her possession by the defendants; in the alternative the plaintiff claimed

possession of the properties. The suit was instituted on 13th April 1962. The plaintiff would allege that the trespass by the first defendant was at

the instigation of the second defendant.

The second defendant has remained ex parte and the first defendant contended inter alia that the release deed was taken from him by the

second defendant by threat and coercion, and that he executed the document without knowing its contents. There was also the plea that, as the

second defendant is not related to the first defendant and there was no question of any natural love and affection between the parties, the release

which was for no considerations is void and unenforceable under S.25 of the Contract Act. Though pleas of threat and coercion and

misrepresentation had been set up in the written statement, at the commencement of the trial both parties endorsed on the plaint that they had no

oral evidence in the case. All the documents including a certified copy of the release deed were marked by consent. Later the first defendant

applied for reopening of the case to adduce oral evidence and examined himself. On the defence that Ex. A. 8 was obtained by threat and force,

the learned District Munsif gave no definite and clear finding. He only remarked that though there was only the uncorroborated sole testimony of

the first defendant as an interested party there seemed to be some truth in it, considering the circumstances under which it came into force. The

actual decision in the case against the plaintiff was rested on a question of law. The learned District Munsif was of the view that though styled as a

release it was not a deed of release but only an executory promise not supported by consideration. He held that as an agreement without

consideration in view of S.25 (1) of the Contract Act, it was not enforceable. On the part of the plaintiff it was attempted to show that the

alienation by Parvathi was in discharge of debts which were binding on the first defendant also. But this attempt to plead that the release was one

for consideration failed. The trial court observed that the vested interest of the first defendant in the suit properties could be transferred either by a

transfer deed or under a gift deed or even by a proper deed of release. But the learned District Munsif saw no words of transfer in document and

read therein only a promise.

On appeal by the plaintiff the learned Subordinate Judge agreed with the trial court that under Ex. A. 2 the release deed, there was only a

promise by the first defendant not to enforce any rights in the properties after the death of Parvathi and no more and being a promise without

consideration was unenforceable.

When the second appeal was taken up for hearing it was contended inter alia for the first defendant that if the document is to be viewed as a

transfer or conveyance of the interest of the first defendant without consideration the document would be a gift and must conform to the

requirements of an instrument of gift. Learned counsel submitted that there was no evidence of attestation of the document as provided for under

S.123 of the Transfer of Property Act. The deed has been admitted by consent at the trial and the parties had rested their case at the trial and in

the lower appellate court practically and wholly on the construction of the document. The courts below have proceeded on the view that the

document contained only a promise unsupported by consideration, and so for the reasons stated in my order on 12th April 1968. I called for a

finding from the lower appellate court on the question whether the release deed which admittedly had been executed by the first defendant was

duly attested by witnesses required for a gift under S.123 of the Transfer of Property Act. The finding returned is that there is overwhelming

evidence to show that the document has been attested by two witnesses as required by law. It was during the enquiry on the order calling for a

finding that the original release deed got exhibited, the parties having contented themselves earlier by marking a registration copy of the release

deed, Ex.A 2, by consent. Objections have been filed to the findings but there is no substance in them. The first defendant has not chosen to

examine himself on this vital question as to the due execution of this instrument. The plaintiff examined the scribe and one of the attestors to that

document. The attestors to the document have also been the identifying witnesses before the Sub Registrar. The document which was executed on

30th October 1956 on stamp paper of that date was presented for registration on 12th November 1956 by the executant that is the first defendant

himself. The other attestor, Royal Reddy, it is in evidence, has been assisting the first defendant in the case and bad came to court to help him.

When P.W. 2 spoke about this no questions were put to him in cross-examination, and the first defendant besides not examining himself has not

chosen to examine Royal Reddi in support of his defence. Learned counsel for the first defendant attempted to discredit the evidence of the scribe,

P.W. 1. The learned Subordinate Judge has discussed all the aspects of the evidence and his finding is unimpeachable particularly in second

appeal. I have to proceed in the view that if the deed requires attestation as a transfer without consideration and so amounting to a gift it has been

duly attested.

While calling for a finding learned counsel for the first defendant submitted that a finding may be called for on the question of undue influence and

coercion also without reference to the transaction evidenced by Ex. A. 8. But this will be to give a handle to the first defendant to secure perjured

evidence. The trial court, as stated earlier, has given no dear finding on this defence. It has contented itself with stating that there seemed to be an

element of truth in the contention. It does not find for the first defendant in the matter. Securing an instrument under threat and coercion is certainly

a serious charge. The execution is admitted. The instrument is a registered instrument. The document had been presented by the executant himself

for registration some days afterwards. The release was taken in October 1956 and shortly after or even long after, at least when the right to the

possession of the vested remainder arose, no notice was issued setting up the invalidity of the document as one obtained under threat and coercion.

All that is said about the second defendant in that written statement is that he was a rich and influential man in the village with men and money. It is

not stated as to what were the acts of threat or coercion under which the consent of the first defendant was obtained by the second defendant for

the release, Ex. A 8. The written statement only pleads that afraid of the cruel acts of the second defendant and his companions he excised the

release deed. Despite the defence of fear of threat and force in the execution of the document and an added plea of misrepresentation that the sale

deed itself was taken nominally for his own protection, at the commencement of the trial originally the parties intimated to the court that they had no

oral evidence. The issues as framed are not very revealing. The three material issues are : (i) whether the plaintiff is entitled to the declaration and

injunction prayed for ; (ii) whether the sale deed in favour of the plaintiff is not valid and enforceable and (iii) (additional issue framed later)

Whether the release deed dated 10th October 1956, is a void transaction and can be ignored by the first defendant?

The trial court would say that the validity of the release deed was strongly disputed by the first defendant on the ground that it was obtained by

threat and coercion and that it was not supported by consideration. So far as consideration is concerned, the document itself states that it is net for

any cash consideration. But clearly the defence that the document was obtained by threat and coercion if it was an issue seriously pressed ought to

have been the subject of specific issue of fact. The issues as framed may be purely issues of law. Jumbling together distinct matters involving

questions of law and fact into one issue is to be avoided, as that is likely to cloud the questions for consideration. But no grievance has been made

of that by the first defendant.

The defence of coercion having regard to the discussion made by the learned District Munsif has obviously been lugged into issue (2).

X X X

[The discussion of facts is omitted: Ed.]

The decision of the trial court, as I read the judgment, does not in the least rest on this plea of coercion. It cannot, as it has not given a positive

finding in the matter. The appellate court does not even consider it, and the evidence on record cannot admit of a finding in favour of the first

defendant on that plea. The case has therefore now to be considered on the legal pleas which are available to the parties, on the true construction

of the document.

The document is very plain in its terms, and expressed in simple language current in the region. It is recited there that it is a deed of release

executed in favour of Narayana Gounder (the second defendant) by Govindaswami Reddiar (the first defendant). After setting out that it was a

deed of release, we get the preamble to the document. The circumstances for the exemption of the deed are set out. Reference to, made to the fact

that the release had purchased the properties from Parvathi Ammal for Rs. 3000 on 25th August 1956. It is then stated that the said properties

bad been settled by Ayilu Reddiar on Parvathi Ammal on 30th December 1944, and under the terms of the settlement after the death of Parvathi

Ammal he (the releasor) was to take the property with absolute rights. Then it is stated in the deed that despite this fact, for the discharge of certain

debts his grandmother, Parvathiammal, had conveyed the properties to the releasee for a consideration of Rs. 3000 and that the properties were

under the possession and enjoyment of the releasee. Then we come to the material parts of the document running thus:

As thinking that I may after the death of my grandmother under the terms of the settlement deed claim rights in the properties you asked, me,

without receiving any cash from you. I have executed and given this deed of release to you. Giving the assurance, that after the death of my

aforesaid grandmother I shall not claim any rights in the properties scheduled hereunder which you have purchased for Rs. 3000. I have executed

and given this deed of release......The patta for the aforesaid lands are in your name. To examine the contents of this document we have to see

whether there are words of release of conveyance. It sets out the fact that the releasee had purchased the properties from Parvathiammal who had

only a life interest in the properties. It states that the releasor had the remainder in the properties vested in him. Then reference is made to the fact

that the releasee had purchased the properties from the grandmother for a consideration of Rs. 3000 for the discharge of a debt payable by the

grandmother and the expression of apprehension by the releasee that the releasor may after the death of the grandmother assert rights in the

properties. The releasor stales that it is in these circumstances he was executing the deed of release. The courts below would consider the

reference in the deed that after the death of the grandmother he would not asset any rights in the properties as amounting at best to a promise by

the releasor not to enforce any rights in the properties after the lifetime of Parvathiammal, an executory agreement without consideration.

Therefore, they held it is unenforceable.

The courts below have failed to appreciate that the releasor was herein referring only to the consequences which flowed from his giving the

release. There is no promise to grant a release in future. The assurance is to refrain from acts contrary to the release granted. The releasor Sets out

what rights he bad and states that he was executing the release deed because of the apprehension entertained by the releasee from the rights

outstanding. The assurance is an express statement of the effect of the document of release and nothing more. It is like the assurance of quiet

enjoyment in a deed of sale. The deed is a solemn document deliberately entered into by parties stating the purpose for which it is entered into. It

must be construed having regard to the express purpose the parties intended to achieve, in the manner the parties apparently intended is to be

understood and interpreted. When he says that he shall not claim any rights in the properties after the death of the life tenant and states that he was

therefore executing the release deed, all that he means is that by the release deed, he was then and there renouncing and giving up all rights and

interest which he bad in the properties and that he could no more assert any rights therein. The courts below have missed the significance of the

expressions used. It clearly deals with the vested remainder which the first defendant had in the properties. The effect of the document is to enlarge

the interests which the assignee of the life tenant got in the properties and make the interests of the assignee from the life tenant an absolute interest

without any outstanding remainder in any one else.

Mr. Suryanarayana, learned counsel for the first defendant, contended that there could be no release of a vested remainder, that in effect, what

the releasor purports to make is a gift and there could be no gift of a vested remainder. Learned counsel argued and very seriously that a vested

remainder is future property an so incapable of being dealt with or conveyed in praesenti, whether it be by way of release or gift or any other kind

of transfer. No authorities were cited for the point. Apart from the fact, as will be presently seen that there can be a valid release of the vested

remainder :where the releasee is the life tenant in possession, the argument of counsel ignores that where there is a vested remainder the interest

vested is proprietary in character. It is an existing interest�only possession and enjoyment of the property is postponed, the same vesting in the

life tenant. If the interest created in favour of a person is to take effect on the happening of an event which must happen, it is a vested interest. If it

is to take effect on the happening of a specified uncertain event, which may or may not happen, the interest is a contingent one. A person who has

a vested interest is not like an expectant heir. He has a transmissible interest in the property and he can deal with the property even though he had

no possession or enjoyment of the same

In Srichand Sowkar v. Kasi Chetti 66 M.L.J. 170-38 L.W. 860 it is pointed out that a person who has a vested remainder in a property was

competent to effect a mortgage of the properties even before the death of the surviving life estate holders. In Budhiraju Seethayamma (deaceased)

and Others Vs. Vullipalam alias Putrevu Jagannadha Rao and Others, ) a Division Bench of this court held that a vested remainder is property and

it is immovable property, being an interest in land. It is therefore capable of being alienated by the holder of the interest. Under S. 6 of the Transfer

of Property Act, properly of any kind may be transferred, except as provided by the Act, and certainly a vested remainder is not one of the

properties exempted from transfer. If it is property capable of alienation I fail to see why it should not be gifted. The entire argument has been built

on the basis that it is future property. That certainly it is not.

Learned counsel contends that to operate as a gift there are no words of conveyance. Here as already discussed I am unable to agree with

such a construction of the document. The grantor and grantee mean that they say. The releasor in substance says that he is releasing his lights in the

properties, and what those rights are he has indicated, the effect of the document he had indicated, namely, that he shall not be asserting any rights

in the properties after the death of the life tenant. The manifest intention is to give up or transfer whatever he has, to the releasee. It is like many

documents commonly met with in the mofussil where only the nature of transaction is indicated without elaborating its significance with synonyms

and the various covenants that law would annex and would be implied or follow on the transfer. It is not the nomenclature which the parties adopt

far the deed that determines the character of the document. It is their intention that is expressed. Though the parties might have used the word

''release'' if the intention to vest by the document any rights which the executant of the document has, in the claimant, is clear there is no reason why

the instrument should not be treated as a conveyance of those rights. Where there are words that could vest the property in the claimant, and an

intention to so vest by the document, a deed of release could be well construed as a transference of the rights. Authorities are not lacking for the

position. It is sufficient to refer to the decision of the Supreme Court in Thayyil Mammo and Another Vs. Kottiath Ramunni and Others, where it is

observed:

A registered instrument styled a release deed releasing the right title and interest of the executant in any property in favour of the releasee for

valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer.

In Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar and Another, their Lordships observed:

In the present case the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift.

Under S.123 of the Transfer of Property Act, 1822, a gift may be effected by a registered instrument signed by or on behalf of the donor and

attested at least by two witnesses. Consequently a registered instrument releasing right title and interest of the releasor without consideration may

operate as a transfer by way of a gift, if the document clearly shows an intention to effect a transfer and is signed by or on behalf of the releasor

and attested by at least two witnesses.

Reference may also be made to Chief Controlling Revenue Authority v. R. N. Patel AIR 1968 Mad. 159 (F.B.)�80 L.W. 598 F.B. The

document of release in this case is admittedly executed by the first defendant, and the finding is, it has been duly attested by witnesses in

accordance with the requirements of S.123 of the Transfer of Property Act. The essentials of a valid gift under the Act are present in this case.

Once it is found that a vested remainder is immovable property, all that is required to effectuate a gift is, that there should be a registered instrument

duly signed and attested by two witnesses. There is no question, of any want of acceptance in this case during the lifetime of the donor. After the

provisions of the Transfer of Property Act relating to gift became applicable to Hindus there has been no difficulty in upholding the validity of the

gift of a remainder. S. 123 of the Transfer of Property Act has superseded, if there was any absolute rule making delivery of possession essential

for the completion of the gift. See Lallu Singh v. Gur Narain 45 All 115 F.B. where the Full Bench of the Allahabad High Court has upheld the

validity of a gift of property, the donor reserving to himself the life interest in the property.

But as indicated already a person in whom the remainder is vested can validly release his interest in favour of the life tenant. The release here is

in favour of the life tenant. There is no definition of release as such, but the Indian Stamp Act while providing for stamp duty payable on release

gives the nature of the document as an instrument whereby a person renounces a claim upon another person or against any specified properly. A

remainderman has a claim on the properly in the possession and enjoyment of the life tenant. He has a present claim on the property and it would

fall to his possession on the death of the life tenant. Under the English law of Real Property a release is the giving up of the larger estate to the

smaller, as opposed to surrender; in a surrender the lesser interest is given up to the greater. In common parlance, the expression is applied to

either of the transactions. A release certainly implies an existing outstanding interest in the releasor and is a convenient form of conveyance of that

interest to the releasee. A releasor renounces by means at a deed of release the interest which he has over the property. The life tenant has not the

transmissible interest in the property in him. That is vested in the remainderman. The life tenant has only a partial interest in the property, present

enjoyment and possession. The rest of it even during the lifetime of the life tenant vests in the remainderman. When he gives up all the remaining

rights in the property which are vested in him to the life tenant there is a release. The releasee''s title is fed and swelled. In Kuppuswamy Chettiar

Vs. A.S.P.A. Arumugam Chettiar and Another, already cited, their Lordships of the Supreme Court observed at page 1397�

Now it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another

having a limited interest; e.g., by a remainderman to a tenant for life; and the release then, operates as an enragement of the limited estate.

This is direct authority on the question now under consideration. Learned counsel for the first respondent would observe that the question did not

arise for consideration in that case. But clearly their Lordships are enunciating a principle of law in the matter, and pointing out in what cases there

can be a valid release. In the case before the Supreme Court the deed was in favour of a person having no interest in the property, and they

pointed out that it could not therefore take effect as an enlargement of an existing estate. The document was intended to be and was a transfer of

ownership and so though styled as a deed of release is was said that it would transfer title to one who had no interest in the property. In the present

case clearly the effect of Ex. A. 8 is to enlarge the interest which the second defendant had acquired under Ex. A. 2, and make the second

defendant the absolute owner of the properties the settlor dealt with without any outstanding interest in any one else. The second defendant was

therefore competent to convey and transfer the absolute title in the properties covered by Ex. A. 3. The first defendant had no right or interest in

the properties after he had executed the deed, Ex. A. 8. The courts below in the circumstances erred in their construction of the deed. The suit

ought to have been decreed as prayed for. The second appeal is allowed. There will be a decree as prayed for by the plaintiff having regard to the

manner in which the case has been fought out in the below courts the plaintiff will be entitled to her costs in the trial court only. Otherwise, they will

bear their respective costs. No leave.