R. Jamuna Bai vs M.A. Anusuya and 3 others

This is the story of a Jinxed deed. The events of the case makes one wonder if the deed carried the curse of death with it.

One Varadaiya Chetty, owner of the suit property executed a deed on 5.6.1970. He had two wives. Through the first wife, he had a daughter

called Lakshmi Kantha. The respondent 2 to 4 are the children of the said Lakshmi Kantha. Through the second wife, Varadaiya Chetty had a son

Arunachalam whose wife is the first respondent and a daughter who is the appellant herein. The appellant had a son called Ajit Kumar, now

deceased. Jamuna Bai filed two suits. One was, O.S.No.2986 of 1986, which was filed for return of original documents relating to the suit

property and certain movables being National Savings Certificate. In this suit, Varadaiya Chetty alone was made as defendant. Subsequently, the

other respondents were brought on record as his LRs after the death of Varadaiya Chetty. The other suit was O.S.No.2987 of 1956 which was

for declaration and recovery of possession of the suit property. O.S.No.2986 of 1986 was presented on 30.8.1985 before this Court and then

transferred to the City Civil Court. O.S.No.2987 of 1986 was filed on 9.3.1988 in this Court and then transferred to City Civil Court. Both the

suits were heard together by The III Assistant Judge, who dismissed them. Aggrieved thereby, A.S.No.151 of 1998 (O.S.No.2986 of 1986) and

A.S.No.150 of 1998 (O.S.No.2987 of 1986) were filed. A.S.No.150 of 1998 was dismissed confirming the decree of the Trial Court.

A.S.No.151 of 1998 was partly allowed with regard to the National Savings Certificate alone, in other respects, the decree of the Trial Court was

confirmed. Thus the above two second appeals have been filed. S.A.No.806 of 1999 is against A.S.No.150 of 1998 and S.A.No. 127 of 1999 is

against A.S.No.151 of 1998.

The final decision in the second appeals will depend upon whether the deed dated 5.6.1970 was a gift and whether it came into effect. For this

purpose the crucial recitals of this deed will have to be seen.

Clause (1) : The settlor settles the property described in Schedule A on the first beneficiary herein, who shall be entitled to possess and enjoy the

rents and profits from the said property during his lifetime.

Clause (2): The first beneficiary shall only enjoy the income from the said property described in the Schedule A hereto and he shall have no manner

of right of alienation even of his life interest.

Clause (3): After the lifetime of the first beneficiary the said property shall vest absolutely in the natural children bom to the first beneficiary and to

his wife Anasuya and existing at the time of the death of the first beneficiary and no son or daughter by adoption or otherwise of the first beneficiary

shall acquire any right in the said property described in the Schedule A hereto.

Clause (4): If there are no natural children born or existing at the time or the death of the first beneficiary, the property described in Schedule A

shall vest absolutely in Ajit Kumar (the second beneficiary herein) the son of S. Rangamannar and R. Jamuna Bai and in case, the said Ajit Kumar,

the second beneficiary is not alive, the property shall vest absolutely in the heirs of Ajit Kumar.

Clause (5): In case of the said property described in the Schedule A vesting in Ajit kumar under Clause 4 supra, the said Ajit Kumar or his heirs in

whom the said property becomes vested, shall pay to Anasuya, the wife of the first beneficiary; The said property shall be changed for the payment

of the aforesaid amounts to the grand-children of the settlor as provided herein.

Clause (6): The senior hereby settles the property described in Schedule II hereto absolutely on his grandson V. Sambasivam, the third beneficiary

herein (son of V. Krishna Gupta), subject to the settlor possessing and enjoying the income from his property during his lifetime.

The following facts are admitted:

Arunachalam died on 23.1.1960. He had no children. Ajit Kumar died on 22.10.1984. He was not even married on that date. On the death of

Ajit Kumar his mother claiming to be his class (1) heir filed the first suit against Varadaiya Chetty. Varadaiya Chetty died on 12.2.1988. Therefore,

the second suit was filed, by her claiming title to the suit property.

Mr. V. Lakshmi Narayanan, learned counsel for the appellant submitted that Ex-A1 was only a settlement deed and it had been acted upon. He

referred to Ex-A20 to show that the deed was acted upon. Ex-A20 is a family settlement deed which was executed by Varadaiya Chetty in favour

of Arunachalam and Jamuna Bai, to appellant herein. This has been executed on the same date as the deed in dispute in Ex-A1. Under Ex-A20

another property, which is at Arumugham. Street is dealt with. Both were intended to come into effect immediately. The counsel also referred to

Ex-A30 which is a sale deed executed by the first respondent herein disposing of certain property which had come to her husband. The learned

counsel referred to Ex-A30 which is a sale deed executed by the first respondent herein disposing or certain property which had come to her

husband. The learned counsel referred to this deed to show that there was a partition in the family and Ex-A30 would show that the partition had

been given effect to and the properties allotted to each party and enjoyed by them separately. He referred to the relevant clause in Ex-A1. He

submitted that the word hereby in clause 1 would show that there was a transfer in praesenti and it cannot be construed as a Will. He submitted

that clauses 1, 2 and 3 should be read together. If so, it would show that the settlor namely Varadaiya Chetty intended the property to go to

Arunachalam immediately. The only restriction is that he will have no right of alienation. Thereafter, in the event of the said Arunachalam having no

natural children, the property shall vest absolutely in Ajit Kumar. And if, Ajit Kumar is not alive at the time or the death Arunachalam it shall vest in

the hands of the heirs of Ajit Kumar. He also referred to clause 6 of the deed, which conveyed the Schedule B property to the third beneficiary

who is the 2nd respondent and demonstrated that Ex-A1 had come into effect, by referring Ex-A50, which is a sale deed executed by the second

respondent during the life time of Varadaiya Chetty. Though Varadaiya Chetty had also executed the document alongwith the second respondent,

the learned counsel submitted it would show that the right to the property as per the admission of Varadaiya Chetly himself had transferred to the

second respondent herein.

The learned counsel therefore, said that it is not open to the respondent to contend that clause 1, or Ex-A1 operated as a Will and clause 6 of

the document operated as a settlement. The learned counsel submitted that since it was not in dispute that Ajit Kumar and Arunachalam, the two

beneficiaries under Ex-A1, were living in the same house as the settlor there is no necessity to prove any act or acceptance. He also pointed out to

the fact that Ex-A1 and Ex-A20 a family arrangement were executed on the same day at about the same time before the same Registrar and

Arunachalam, the immediate beneficiary under Ex-A1 was present to execute Ex-A20 and therefore, since he was standing by while Ex-A1 was

being executed he is deemed to have accepted the settlement. The learned counsel therefore submitted that since Ex-A1, settlement deed had

come into effect the settlor had no right to execute any deed of revocation or settle the same properties again on any other person. Therefore, Ex-

B1, the cancellation deed and B2, the subsequent settlement are void.

The learned counsel relied on the following judgments:

(1) Maulii Muhammad Abdul Nayeem v. Jhonti Mahton and another 41 Ind.Cas 389, in which the Patna High Court had held that acceptance

shall be presumed unless dissent is signified, citing from Halsbury''s Laws of England that express acceptance is not necessary to complete a deed.

(2) J. Kuppuswami Mudali and Others Vs. Mahalingam, where this Court has held that when a settlement deed had been accepted and acted

upon there is no need or warrant to cancel the same.

(3) A.Sreenivasa Pai and another v. Saraswathi Ammal alias G. Kamala Bai AIR 1965 SC 1359 in which the Supreme Court considered the

document to be a settlement deed and held that the death of the ultimate beneficiary during the life time of the life estate holder will not have the

effect of defeating the right which had already vested on the beneficiary.

(4) Govindammal and others v. Ammasi Rounder, 1998 (2) MLJ 267 in which this Court held that,

So far as revocation of the settlement deed under Ex-B1 is concerned it is the established legal provision that unless power of revocation was

reserved in the document itself, the power of revocation could not be exercised. When once Exs-A2 to A4 are held to be valid then the settlor

would not have any right to deal with the properties of which she had divested herself.

(5) R. Kumarasamy Kounder Vs. V. Ezhumalai Kounder, , in which this Court has held that,

Since it is not an onerous gift, a very slight evidence is sufficient to prove acceptance. The circumstances themselves may speak of acceptance.

Normally when a person gifts a property to another and it is not an onerous gift, one may expect the other to accept such gift when once it comes

to his knowledge, since normally any person would be willing to promote his own interest. May be in particular cases, there would be peculiar

circumstances which may show that the donee would not have accepted the gift. But they are rather an exception to the rule. It is only normal to

assume that the donee would have accepted the gift. Mere silence may be indicative of acceptance, provided it is shown that the donee knew

about the gift. For proving acceptance, there need not be any direct evidence. It can be express or implied, It can also be inferred from the facts

and surrounding circumstances attending the transaction of gift. An acceptance can also be had before the registration of the document. It can be

properly registered if it is accepted by the donee or on his behalf.

(6) P. Ram Mohan v. Lalitha Raghuraman and others, AIR 1976 Mad. 333, wherein this Court has stated that,

Where a settlor by a deed of settlement created a life interest in favour of himself, his wife, his foster son and his wife and the remainder to the two

sons of the foster son of the settlor, it was held that the two sons of the settlor acquired a vested interest in the property on the date of execution of

me deed.

(7) Narayani Bhanumathi v. Lelitha Bhai ILR 16 Cal. 1973, wherein it was held that,

There may be cases where slightest evidence or such acceptance would be sufficient. There may be still cases where the circumstances

themselves eloquently speak to such acceptance. Normally, when a person gifts properties to another and it is not an onerous gift, one may expect

the other to accept such a gift when once it comes to his knowledge, since normally, any person would be only too willing to promote his own

interests. May be in particular cases there may be peculiar circumstances which may show that the donee would not have accepted the gift. But

these are rather the exceptions than the rule. It is only normal to assume that the donee would have accepted the girt deed. Mere silence may

sometimes be indicative of acceptance provided it is shown that the donee Knew aboul the gift.

(8) S. Thiagarajan Vs. Saraswathy Kittu and 6 others, , wherein it was held that,

Transfer of Property Act, 1882, Section 123 -- Gift -- Valid gift consists of voluntary transfer of immovable property by donor without

consideration and acceptance of such transfer by donee -- Mother executing settlement deed in favour of her daughter by registered document

attested by two witnesses --Daughter accepting such gift and raising loan by mortgaging part or gifted property -- Original sale deed in respect of

property in possession of daughter -- Daughter has accepted and was in constructive possession of gifted property -- Gift complete and valid.

Finally, he placed great reliance on the decision reported in Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others, which

according to him arose out of a case which was very similar to this case and in which the Supreme Court held that the recitals indicated that the

settlement deed was intended to take effect on that very same day. Placing reliance on all these decisions as also on the facts of the case the

learned counsel would submit that the recitals clearly show that the transfer was in presenti and that Ex-A1 was accepted since the beneficiaries

were living together with the settlor and therefore, the settlement had taken effect on 5.6.1970 itself, and that it could not be revoked. Therefore,

upon the death of Arunachalam, the transfer in favour of Ajit Kumar''s heirs would take effect as per the recitals of Ex-A1. In the instant case

since, Ajit Kumar was not married, the appellant was the only heir as per the provisions of Hindu Succession Act and so she was entitled to the

property, and the appeal should be allowed.

Mr.R.Mohan, learned counsel for the respondent on the other hand submitted that the recitals of the document left no room for any ambiguity. It

was only a Will. He also submitted that if it was held to be gift, the requirements of a gift as per Section 122 and 123, the Transfer of Property Act

were not satisfied and therefore, no rights could flow from Ex-A1 and if Ex-A1 is void then the owner of the property namely the settlor was free

to deal with his property as he pleased. There was no need for any cancellation. He submitted that there was absolutely no evidence to show that

the gift had been accepted or that the settlement had been acted upon. The original of Ex-Al has not been filed. No witnesses had been examined

to prove, Ex-A1. He also pointed out that there was a marked difference between the language in clause 1 and clause 6 of Ex-A1, which itself

showed that the settlor had decidedly different intentions with regard to the manner in which the property under clause had to take effect and the

property under clause 6 had to take effect.

The learned counsel for the respondent also relied on several decisions.

(1) Ponnuchami Servai v. Balasubramanian alias Suresh (minor) rep. by next friend, Gomathi Ammal and others 94 LW 796 in which the Court

had held that unless there was a transfer in praesenti the document cannot be a settlement and that was the only real and reliable taste.

(2) Poongavanam v. Perumal Pillai and another, 1997 (2) MLJ 169 in which the learned Judge held that there was no specific or clear and

absolute instant dispossession. Therefore, it was in the nature of the Will and while deciding the issue had followed the decision mentioned above.

(3) Thayyil Mammo and Another Vs. Kottiath Ramunni and Others, . This decision was relied on for the purpose that the nomenclature of the

deed and the amount of the stamp paid on it though relevant are not conclusive on the question of construction.

(4) Kesava Kurup Raghava Kurup Vs. Thomas Idicula and Another, where the Kerala High Court have held that acceptance being an essential

factor if a validity or a girt must be proved or made out by the person relying on it.

(5) P.S. Deivaprasad @ P.S. Veerabadran v. Dr. P.D. Balaji and eleven others 2001 (1) CTC 520, wherein this Court has held that,

Will -- Settlement -- Distinction -- Where, there is absolute and instantaneous transfer of interest in praesenti to beneficiary and where there is

absolute or complete disinvestment of right, title, interest or executant on date of execution it is settlement -Absolute and instantaneous transfer of

interest in favour of beneficiary is settlement -- Where conferment of right is postponed till life time of executant and beneficiaries will get interest

after life time of executant it is Will -- Description of document is immaterial to determine whether particular document is in nature or Will or

Settlement.

Construction of documenl -Documents styled as Settlement Deed and registered -- Property given under document to be enjoyed by executant

without any power of alienation and after life time absolute right given to daughters -- Document should be read as a whole and substance of

document should be looked into -- Document though styled as Settlement is in the nature of Will -Intention of parties both express and implied is

only to execute Will and not settlement.

(6) Appadurai & others v. Mallinatha Nainar (died) & others 2001 TLNJ 52, in which the learned Judge had considered in detail the difference

between settlement and Will.

Finally, he relied on Ramaswami Naidu and another v. Gopalakrishna Naidu and others 1977 (90) L.W. 430 wherein the learned Judge held that

the document was a settlement deed.

The learned counsel for the appellant took great pains in referring to the various exhibits and the oral evidence to show that it was only a

settlement deed and not a Will. The fact that the deed was called a settlement deed the fact that it was registered were all pointed out to show that

the document will only be a settlement deed. He referred to the various recitals in Ex-B1 a cancellation deed and Ex-B2, the subsequent settlement

deed where the settlor had tried to explain why he was cancelling the document and drew support from that to show that it was only a settlement

deed. Whatever may have been the reason that prevailed upon the testator to cancel and subsequently, execute another settlement deed what we

are concerned with in the instant case is whether a settlement deed came into effect on 5.6.1970 under Ex-A1. There is absolutely no averment in

the plaint that the settlement deed was accepted and came into effect on the very day. In fact this is what it states:

The first defendant was enjoying his life interest in the property collecting the rental income accruing therefrom.

The first defendant is none other than the settlor. Even as per the recitals of clause 1, Arunachalam only had a life interest in the property

without any power of alienation. He could only enjoy the income from the property. Now it is the appellant''s own case that during the life time of

the settlor the settlor retained his life interest and also enjoyed the income from the said property. Therefore, what is it that Arunachalam got on that

date of the settlement deed ? It is needless to say that unless Arunachalam got a right under Ex-Al, Ajit Kumar will get nothing, because Ajit

Kumar''s right in the property is only subject to Arunachalam''s dying without any natural children. Clause 1 is very clear. It says that the property

is settled on the first beneficiary namely Arunachalam after (Italics supplied) the life time of the settlor and the settlor was entitled to possess and

enjoy the rent and profits during his lifetime. Therefore, so long as the settlor lived the first beneficiary got nothing. After the settlor''s lifetime the

first beneficiary got only a right to enjoy the income from the said property. Then after the first beneficiary''s lifetime the vesting would be in the

natural children of the first beneficiary failing which in Ajit Kumar. Therefore, a very plain reading of the document shows that no right vested in the

first beneficiary on the date of Ex-A1. The passing of any right from the settlor to the first beneficiary, is after the life time of the settlor. The settlor

may have called this deed anything. He may have intended that the property should devolve on the persons named thereunder in the manner

described by him, but, he definitely did not intend to give anything to the first beneficiary on the date of the settlement deed. Now let us compare

this with clause 6. Clause 6 is clear and it is seen that the property is settled absolutely on the third respondent on that day itself. The comparison of

the two clauses makes further dissertation unnecessary. In addition we have the recitals in Ex-B1 where Varadaiya Chetty, the settlor had stated

that bequest to Ajit Kumar was contemplated only after the other bequests came into force and on his death only to his children. Therefore, the

transfer in favour of Arunachalam was intended to come into force on a subsequent date and thereafter the transfer to Ajit Kumar would take

effect. Viewed at from any angle, there can be no doubt that there was no transfer of any right, title or interest on 5.6.1970 under Ex-A1 to

anyone.

The next question is assuming without admitting it was a settlement deed, whether there was any acceptance on that date. The legal provisions

regarding the gift is very clear. Section 122 of the Transfer of Property Act reads as follows:

Gift"" defined--""Gift"" is the transfer of certain existing moveable or immovable 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.

Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee

dies before acceptance, the gift is void.

Unless there is acceptance there can be no gift. In the judgment relied on by the learned counsel for the appellant in R. Kumarasamy Kounder Vs.

V. Ezhumalai Kounder, , there is a reference to the decision reported in Venkatasubbamna v. Narayanaswami, AIR 1954 Mad. 250.

If there is acceptance of the gift after execution of the deed, even though the registration was postponed to a later date, the gift would become

irrevocable. The fact that the deed was executed and registered would not make it irrevocable, if in fact there was no acceptance by the donee,

either before registration but after execution or even after registration. What the law requires is acceptance of the gift after its execution though the

deed may not be registered. Anterior negotiations or talks about the transfer of property by way of gift would not amount to acceptance of the

transfer of the property by gift. Acceptance may be implied but the facts relied on to draw an inferenced of acceptance must be acts of positive

conduct on the part of the donee or persons acting on his behalf and not merely passive acquiescence, such as standing by when the deed was

executed or was registered.

This shows that mere standing by when the deed was executed or registered will not be sufficient to prove acceptance. It is true as pointed out by

the learned counsel for the appellant that it was extremely probable that Arunachalam was standing beside his father Varadaiya Chetty when Ex-

A1 was registered. But that alone will not amount to acceptance. The learned counsel for appellant submitted that the title deeds were with the

appellant, so this should prove delivery and acceptance. Even regarding the title deeds in the plaint the appellant had averred that Varadaiya Chetty

had insisted and prevailed upon the plaintiff to give the documents of title relating to the suit property. From this the learned counsel wanted to

draw the conclusion that custody of the title deed would show acceptance. However, in the evidence she has stated that,

Therefore, even with regard to custody of title deeds the evidence and the pleadings are very unsatisfactory. But it must be remembered that it is

Arunachalam who ought to have accepted the settlement deed for the settlement deed to come into effect. On the date of the settlement deed Ajit

Kumar''s right was still depending upon Arunachalam not having any natural children of his own. If a son or daughter had been born to

Arunachalam, then the clause in the settlement in favour of the Ajit Kumar would have no effect. Therefore, what is crucial in this case is

acceptance by Arunachalam for the gift deed to come into effect. There is not an iota of evidence to show that Arunachalam had accepted the gift.

In the absence or pleadings and other evidence I do not think this Court sitting in second appeal can draw inference merely from the fact that

Arunachalam must have stood by at the time of the registration of Ex-A1 and arrive at the conclusion that the deed was accepted. In fact the Trial

Court holds as follows;

No document has been produced on the side of the plaintiff to prove the acceptance of the gift during the life time of the deceased Varadaiya

Chetty.

In the appeal also the learned Judge had held that there was no document to show that the property had vested in the name of Arunachalam.

Both the courts had therefore, held that the intervening interest in favour of Arunachalam had not come into effect.

The question regarding whether a document is a Will or a Settlement has been decided as seen from the decisions cited by both the counsel, in

various cases. Each case depends on the particular set of facts and the Court will have to consider the recitals in the particular document before it

and arrive at the decision. The decision reported in Ramaswami Naidu and another v. Gopalakrishna Naidu and others, 1977 (90) L.W.430 is a

very succinct one and the learned Judge has held that the nomenclature of the document or the fact that it had been registered will not be of any

assistance, unless the disposition is very ambiguous and extreneous aids are required to construe the clause. The question is whether the

dispossession is to take effect on the death of the executant. In this case, the absolute estate was given to Arunachalam''s heirs, in case, he gets

natural children of his own. Therefore, all that he can get under this document was only a life interest. The entire life interest was retained and

enjoyed by the settlor during his life time which would only mean that the vesting of the life interest could take place and was intended to take place

after the life time of the settlor. The use of the words revocable or irrevocable are also not determining factors. It is on the basis of a similar

reasoning that in P.S. Deivaprasad @ P.S. Veerabadran v. Dr. P.D. Balaji and eleven others, 2001 (1) CTC 520, the document was held to be

not a settlement. The decision relied on by Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others, in which the settlor settled the

property to her daughter.

after my death to be enjoyed by you with the absolute rights.

It also had the following recitals:

this deed of settlement got executed and delivered to you.

In that case, the learned Judges of the Supreme Court rely upon certain recitals in the Schedule to the settlement deed to arrive at the conclusion

that the deed is a settlement. What the recitals are is not made known in the judgment as reported, further the words ""delivered to you"" are also

present which are not there in this case and also in that case the settlor retained the life interest and gave the absolute interest to the settlee.

In this case, the settlor retained the life Interest and settled the life interest to the first beneficiary to be enjoyed by him after the settlor''s life

time and thereafter to the first beneficiary''s natural children, failing which it has to go to the appellant''s son. When the right of the first beneficiary

itself had not taken effect there can be no vesting of any right in favour of the appellant''s son and therefore, the appellant cannot claim any title to

the suit property, as is heir.

The questions whether the document is a settlement or a Will and whether the document was acted upon on the date of Ex-A1 have both been

answered against the appellant by both the Courts. For the reasons given by me above, I am of the opinion that they have decided correctly. There

are no merits in the second appeal. Both the second appeals are dismissed. But in the view of the relationship between the parties no costs.