Decided on September 27,1955



- (1.) THE 1st defendant is the appellant. THE properties described in the plaint schedule originally belonged to one Kali Mathevi and sons, Raman Kesavan and the 2nd defendant. THEy executed a Settlement deed Ext. I or A dated 28. 3. 1100. According to the plaintiff, this deed conveyed title to her over the plaint schedule properties, subject to a life interest reserved in favour of the executants. Raman Kesavan died in the year 1107 and after his death, Kali Mathevi and the 2nd defendant executed a deed of cancellation Ext. II dated 16. 12. 1108, cancelling Ext. I. On the same day, they sold under Ext. III, the properties to the 1st defendant who is the wife of the 2nd defendant. Kali mathevi died on 12. 9. 1119. THE plaintiff's case is that she performed the funeral rites of Raman Kesavan and Kali Mathevi as stipulated in Ext. I. After kali Mathevi's death, the 1st defendant attempted to take the yield from the properties and the plaintiff filed a criminal complaint against her. It was during the pendency of the same that the plaintiff came to know of Exts. II and iii. She accordingly instituted this suit for cancellation of Exts. II and III on the ground that Kali Mathevi and the 2nd defendant were not competent to execute the deeds, in view of Ext. I. THE 2nd defendant died during the course of the suit and defendants 1 and 3 to 7 were impleaded as his heirs. THE 1st defendant resisted the suit contending that Ext. I was not a gift but was only a will and that even if it was a gift it was not accepted by the plaintiff and it had not come into effect. THE trial court upheld the defendant's contentions and dismissed the suit holding that Ext. I was not accepted by the plaintiff. THE plaintiff's appeal to the District Court was allowed reversing the decree of the trial court and decreeing the suit as prayed for.
(2.) THE first point raised on behalf of the appellant is that Ext. I is a Will and not a transfer inter vivos. Though this contention was raised in the written statement, it does not appear to have been pressed in the courts below. However as the point was raised in the written statement and was argued at some length, the same may be considered. Various decisions were cited by both sides as to the construction of such deeds. It has to be stated that these decisions are helpful only to show the grounds which appealed to courts in construing such documents one way or other. THE question whether a certain document is testamentary or a transfer inter vivos depends on the intention gathered from the document itself in the light of the surrounding circumstances. Some of the tests which have been applied by courts are, the name by which a document is styled, the registration of it, the reservation of a power of revocation, the use of the present and future tense, possession of the deed and possession of the properties. THE decision of these cases depended on the construction of the particular documents in each case. The circumstances under which Ext. I was executed may be construed. Kali Mathevi and her sons partitioned their tarwad properties in the year 1108. It is seen from Ext. I that at the time of partition, certain properties were kept apart so that some provision could be made for looking for kali Mathevi. The plaintiff belonged to a collateral branch of the tarwad and was not entitled to a share in the properties partitioned. The properties kept apart in partition for this purpose were dealt with under Ext. I. Raman Kesavan and the 2nd defendant were both married before that time. Ext. I was executed at the time of the execution of the partition deed and the plaintiff not being a person having community of interest with the executants of the partition deed, could not join in the execution of the same. It was provided in Ext. I that during the life time of kali Mathevi she was to take the yield of the properties and on her death Raman kesavan and the 2nd defendant were to take the income jointly or according to their respective shares and that after their death, the plaintiff and her children were to get mutation of names effected in revenue records, to pay the tax and to enjoy the property with full rights. It was also stipulated that the plaintiff was to effect improvements in the properties from the date of execution of Ext. I, but that she could not take the income until after the death of the executants. She was also prohibited from committing any act of waste. It was also provided that she should look after Kali Mathevi as in the past and conduct the funeral ceremonies of the three executants of Ext. I. The preamble of the deed stated that the plaintiff was chosen as the person to whom the properties were to be conveyed as she was looking after Kali Mathevi in the past and as she belonged to a collateral branch of the tarwad. Learned Counsel for the appellant stressed the use of the word WLsljfgu in the earlier part of ext. I. The relevant passage is extracted below:-
(3.) RELIANCE was also placed on the fact that possession of the properties, the right to take the yield and the right to get mutation of names were not given to the plaintiff straightaway. The fact that possession of the original deed Ext. I was with the 1st defendant was also stressed and it was contended that it could not have been handed over to the plaintiff. If the defence contention that Ext. I is a will has to be accepted, it means that Kali Mathevi and her two sons jointly executed one will. Such a course cannot but be regarded as somewhat unusual. Though the name given by the parties to the deed is not by itself conclusive it is significant to note that they described the document as a settlement deed and paid stamp duty accordingly. If it were a Will, it need not have been written on stamp paper. The registration of the document was also as a deed of settlement and not as a will. No power of revocation was reserved in the deed. There is also the fact that the right of the executants to take the yield during their life time was reserved. This would have been unnecessary if the deed were to come into effect only on the death of all the executants. No doubt the Privy Council has pointed out in Thakur Ishri Singh v. Thakur Bal Deo Sinkh (ILR 10 Cal. 792) that much importance need not be given to such a reservation as it is a frequent thing in india to find documents which are Wills in fact making clear that the person disposing of the property reserved a life interest in the same. This dictum was given in the year 1884 when Wills were not well-known in India. It was expressly provided in the deed that the plaintiff could enter into possession and effect improvements.;

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