Parvathy Nadachy Umayaparvathy Nadachy vs Ramalekshmy Seethalekshmy Ammal

Defendant No. 2 in O. S. No. 145 of 1122 of the District Court of Nagercoil is the Appellant before us. The suit which has been decreed by the trial Court was for a declaration of title and recovery of properly with mesne profits, past and future, from the Defendants.

The facts of the case in so far as they are necessary for a determination of the appeal are summarised as follows in the opening paragraph of the lower Court judgment:

The suit property belonged to one Ananthasubbu Asari. As he had no issues he adopted as his son one Palappan Asari, his sister''s son. The Plaintiff is the widow of that Palappan Asari. On 13-1-1110 Ananthasubbu Asari executed a settlement deed in favour of Palappan Asari in respect of the plaint schedule properties.

As per the settlement deed the full proprietary rights over the properties vested in praesenti in the donee, subject to a life interest in favour of the donor and after the donor''s death in favour of his wife. The donor''s wife died in 1115, and Palappan Asari the donee died in 1118. On 21-8- 1121 Ananthasubbu Asari executed a sale deed in respect of both the plaint schedule properties in favour of Defendant 1 who in his turn executed Anr. sale deed in favour) of Defendant 2 in respect of plaint item No. 1 on 9-2-1122.

The Defendants are in possession of the properties under the above said sale deeds. The Plaintiff impeaches the above sale deeds as invalid and seeks to recover the properties with mesne profits is the rightful owner from the Defendants.

Exhibit v. is the document executed by Ananthasubbu Asari on 13-1-1110. The name of the document as given in the document itself is (words in vernacular omitted), and the lower Court has come to the conclusion that it is in form and substance nothing other than a deed or gift or a deed of settlement which transferred the ownership of the property to the donee subject to the terms and conditions mentioned therein. According to the learned Counsel for the Appellant that conclusion is wrong and the document should be, construed as a Will and not as a deed of gift or settlement.

The correctness or otherwise of the nature of Ex. v. as found by the trial Court is the only question that was urged for consideration before us. The essential characteristic of a will, as is well known, is that it is a male declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variations in his intention; a disposition that requires the testator''s death for its consummation and is but ambulatory or without fixed effect until the happening of that event.

A gift, on the other hand, is a transfer of property that is voluntary, gratuitous and absolute conferring immediate rights; and if Ex. v. is a deed of gift, the sale deed of 21-8-1121 (Ex. II) executed by Ananthasubbu Asari in favour of Defendant 1 and the sale deed of 9-2-1122 (Ex. I) executed by Defendant 1 in favour of Defendant 2 will be of no effect as contended by the Plaintiff and found by the Court below.

An early definition of the term "gift" is in the Mitakshara, Chap. 3:

Gift consists in the relinquishment without consideration of one''s own right in property, and the creation of the right of Anr. ; and the creation of Anr. man''s right is completed on that Ors. acceptance of the gift, but not otherwise.

and a comparatively recent one is in 24 American jurisprudence 738:

A transaction wherein the donor must have an intent to give, there must be a delivery of the thing given, to or for the donee, in pursuance of such intent, and on the part of the donee, acceptance.

The canons of construction applicable to dispositions, testamentary or ''inter vivos'' - whatever be the difficulty in applying them to a given case, - are all well settled and identical. As stated in - ''Soorjeemoney Dossee v. Denobandar Mullick'' 6 Moo Ind App 526 at p. 550 (PC) (A) - a case of a will -

In determining the construction of a will what we must look to, is the intention of the testator. The Hindu law, no less than the English law, points to the intention as the, ele(sic) by which we are to be guided in determining the effect of a testamentary disposition; nor is there any difference between the one law and the other as to the materials from which the intention is to be collected.

Primarily the words of the will are to be considered. They convey the expression of the testator''s wishes; but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the case those circumstances no doubt must be regarded.

Reading. Ex. v. as a whole we feel no doubt that what was intended was a transfer ''inter vivos'' and not a testamentary disposition. The name given to the document, the fact that it was stamped as a settlement and that it was presented for registration not by the executant but by Palap-ban Asafi (which indicates acceptance as held in ''Esakkimadan Pillai v. Esakki Amma'' AIR 1953 Trav-C 336 (B),. the provision for mutation in the Revenue Records (which was immediately effected), the words of absolute and immediate transfer which are by no means ambiguous, and the absence of a provision for revocation or any indication in that behalf, cannot but lead to such a conclusion.

Some cases dealing with the various tests usually applied to distinguish a settlement from a will were cited before us. It will be wrong to consider any of those tests as positive, infallible or of universal application, In - ''Kunchaen Padmanabhan v. Aiyappan Krishnan'' 23 Trav-LJ 1013 (FB) (C), Thaliath J. said:

A number of authorities were cited before us to show the various tests to distinguish, a settlement from a will, but on going through them, I was not able to come across any infallible test. If the executant intend to convey any interest in the property ''in praesenti'' the document should be treated as a settlement, and if the intention was that the executees should acquire any intermit in the properties only on the demise of the executant, the deed is testamentary.

As stated in para. 7 above we entertain no doubts that Ex. v. is a deed of gift or settlement, and not a testamentary disposition, and in view of that, this appeal should fail and is hereby dismissed with costs.