Decided on August 12,1955



- (1.) THE 2nd defendant 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 property with mesne profits, past and future, from the defendants.
(2.) THE facts of the case in so far as they are necessary for a determination of the appeal are summarized 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 proprietory rights over the properties vested in presenti 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 Anathasubbu Asari executed a sale deed in respect of both the plaint schedule properties in favour of the 1st defendant who in his turn executed another sale deed in favour of the 2nd defendant 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 as the rightful owner from the defendants". Ext. V is the document executed by Ananthasubbu Asari on 13. 1. 1110. The name of the document as given in the document itself is and the lower court has come to the conclusion that it is in form and substance nothing other than a deed of 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 Ext. 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 mere 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 ext. V is a deed of gift, the sale deed of 21. 8. 1121 (Ext. II) executed by ananthasubbu Asari in favour of the 1st defendant and the sale deed of 9. 2. 1122 (Ext. I) executed by the 1st defendant in favour of the 2nd defendant will be of no effect as contended by the plaintiff and found by the court below.
(3.) 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 another; and the creation of another man's right is completed on that other's 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 VI M. I. A. 526 (550) - a case of a Will - "in determining the construction of a Will what we must look to, is the intention of the testator. The Hindoo Law, no less than the English Law, points to the intention as the element by which we are to be guided in determining the effect of a testatory disposition; nor is there any difference between the one law and the other as to the material from which the intention is to be collected. Primarily the words of the Will are to be considered. The 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".;

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