Ramaswami Naidu and Another vs Gopalakrishna Naidu and Others

V. Ramaswami, J.—The question that arises for consideration in this second appeal by the plaintiff''s is whether the deed dated 5-7-1962

executed by one Nachar Ammal is a will or a settlement. If it is construed as a will, the plaintiffs'' suit is liable to be dismissed, and if it is construed

as a settlement, the plaintiffs will succeed. Though the trial court held that it is a settlement deed, the lower appellate court held that it is a will and

dismissed the suit.

The document is styled as a settlement deed. It was also registered as such. In the preamble of the document, it is stated that out of natural love

and affection for the first plaintiff and his wife the second plaintiff who are the son and daughter-in-law of the executant''s paternal uncle and with a

view to make them absolute owners after her lifetime, she is executing the document. In the disposition clause, it was stated that after the lifetime of

the executant, the property will have to be taken and enjoyed absolutely with all rights of alienation by the plaintiffs and that the patta also will have

to be transferred in favour of the plaintiff after her lifetime. The document further provided that during her lifetime, the executant was entitled to

enjoy the income from the properties and without any power to encumber the property or in any way alienate the same. It was also stated that the

executant had no right to either change or revoke, the settlement deed for any reason.

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 settles 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 settle, 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. In such a case the clause prohibiting revocation will be contrary to

law and will be ineffective. If, on the other hand, the document is a settlement, merely because 3 right of revocation is given, it would not change

the character of the document as a settlement ''because such a clause will be against law and will be invalid. The nomenclature of the document nor

the fact that it had been registered also will not be of any assistance in most of the cases unless the disposition is very ambiguous and extraneous

mid is required to construe that clause.

In this case, one other important circumstance which calls for special mention and consideration is the clause to the effect that the executant was

to enjoy the income from the properties during her lifetime and that she will not have any right to encumber the property or in any way dispose of

the same during her lifetime. This clause is normally consistent with a document being a settlement and a transfer of an interest in praesenti but the

right to possession and the right to income being postponed to a future date. But as already stated, the fundamental and the only reliable test is to

find out whether under the main dispositive clause an interest in praesenti was transferred or the disposition is to take effect on the death of the

executant. If this is construed and we come to a conclusion that, there was no present disposition and that the disposition is to take effect on the

death of the executant, the clause relating to the enjoyment of the income and restraining the powers of alienation of the executant would be

ineffective and will not enlarge the disposition nor affect the rights available to the executant under law.

Since in the present case according to the main disposition clause, as I already pointed out, the plaintiffs have to take the properties only on the

death of the executant and that they have to enjoy the properties absolutely only after her death, the clause restricting the powers of the executant

would not enlarge their interest and make it a, disposition in praesenti. Though a document has to be construed with reference to the language used

in the document and the decisions rendered for the construction of other documents cannot be called in aid, it is useful to refer to some of the

decided cases where similar clauses were construed as a guide for the interpretation. In Halsbury''s Laws of England, Simonds Edn., Volume 39,

at page 844, it has been observed as follows-

The revocable nature of a will cannot be lost, even by a declaration that it is irrevocable or by a covenant not to revoke it.

At page 838 of the same edition, it has been observed as follows -

A will is of its own nature revocable, and therefore though a man should make his testament and last will irrevocable in the strongest and most

express terms, yet he may revoke it, because his own act and deed cannot alter the judgment of law to make that irrevocable which is of its own

nature revocable.

To the same effect is the decision in one of the earliest cases in Sagarchandra Mandal v. Digambar Mandal. (1909) 10 Cal LJ 644 , wherein it has

been observed as follows-

If therefore an instrument is on the face of it a testamentary character, the mere circumstance that the testator calls it irrevocable, does not alter its

quality, for as Lord Coke said in Vynior''s case, (1610) 8 Coke 82 (a). ""If I make my testament and last will irrevocable, yet I may revoke it for

my act or my words cannot alter the judgment of the law to make that irrevocable which is of its own nature revocable"". The principal test to be

applied is whether the disposition made takes effect during the lifetime of the executant of the deed or whether it takes effect after his decease. If it

is really of this latter nature, it is ambulatory and revocable during his lifetime.

On the clause relating to enjoyment of income by the executant during her lifetime and provision to the effect that the executant should not in any

way alienate the property during her lifetime, a Division Bench of this Court in T. C. No. 372 of 1970, dated 13-7-1976 : (reported in 1977 Tax

LR 1187) has held on almost similar facts, that those restrictive clauses do not in any way affect the disposition and that the document is a will. The

above decisions support the construction which I have placed on the document in question. I therefore hold that the document is a will and not a

settlement. The second appeal fails and the same is accordingly dismissed There will be no order as to costs.