P.K. MOHAN RAM versus B.N. ANANTHACHARY AND ORS.

15. In Venkatasubramaniya Iyer v. Srinivasa Iyer (supra), the question considered was whether the dt>cument marked G Exhibit – C is a Settlement or a Will. The learned Single Judge answered the question in the following words: " …. A question of that kind is one that has to be decided primarily on the terms of the document itself. It was executed by a widow, the mother of the plaintiff, and is P.K. MOHAN RAM v. B.N. ANANTHACHARY AND ORS. [G.S. SINGHVI, J.] styled a settlement in favour of the plaintiff. It recites certain family arrangements by which certain moveables are divided between the widow and the plaintiff, and the widow retains certain immovable property for herself. It deals with property to an extent of over three velis left to her by her husband under his will absolutely and recites that, in respect of that on account of the request made to her by her son for the benefit of his minor son, the present defendant and. out of favour to himself and in consideration of the arrangement that he would not during her lifetime encumber or alienate the rights that c would come. ta him in the property after her death, she on her side undertakes to meet all her own expenses till her death out of the income and not to alienate the property. Thus the document prohibits both parties from alienating the rights retained or giveh thereby. It directs that after the widow's death, the plaintiff and his heirs shall enjoy the property with all absolute rights. It further provides that if the widow fails to pay the kist on the property, the plaintiff shall pay and may recover from her out of her income, and that the pattah for the property shall be transferred to the plaintiff. The document is styled a settlement and registered. It is contended by the appellant that the document is a will since the only operative portion of it is that which bequeaths the property to the plaintiff and his heirs after the death of the widow. Both the lower Courts have rejected this contention and held the document to be a settlement. I think it is clear from the tenor of the document that it is not a will. It mentions considerable property which is not disposed of by it at all. It does more than bequeath property to the plaintiff after the widow's death. He obtains by it certain rights in presenti, fpr . example, the right as covenanted with him that the widow will not alienate the property during her lifetime. He himself is given the right to recover the unpaid kists from c SUPREME.COURT REPORTS (2010] 3 S.C.R. her income and to have the pattah transferred to his name. There is no language indicating that the widow was retaining with her any power to revoke the document, while the surrender of her right to alienate during her lifetime indicates that she did not reserve any power to revoke. These points combined with the facts that the parties intended the document to be a settlement and styled it as such and that it was handed over to the plaintiff and not retained with the widow are sufficient to indicate that the widow was merely retaining a life-interest in the property and was transferring to the plaintiff the vested remainder. It is not of much help to refer to reported rulings in a case of this kind when the decision has to be based on the wording of a particular document, but documents of very similar wordings were held to be settlements and not 1111ills in Rajammal v. Authiammal (191 O] 33 Mad. 304 and in Gangaraju v. Somanna A.1.R. 1927 Mad. 197. These ·come nearer to the present case than those in Venkatachala Chetty v. Govindaswamy Naicker A.l.R. 1924 Mad. 605, Thakur /shri Singh v. Baldas Singh [1884] 10 Cal. 792 quoted by the appellant. I can see no ground for holding that the lower appellate Court made any error of law in regarding Ex. C. on the face of it as a settlement and not a will." (emphasis supplied)

16. In Ramaswami Naidu v. Gopa/akrishna Naidu (supra), the High Court laid down the following broad test for construction of document: '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 settlees or whether the disposition is to take effect on the death of the execut8nt. P.K. MOHAN RAM v. B.N. ANANTHACHARY AND ORS. [G.S. SINGHVI, J.] 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 settlee, 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 c 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." (emphasis supplied)

17. In Ramaswami Naidu v. M.S. Velappan and others (1979) 2 M.L.J.88, the Division Bench of the Madras High Court referred to the documents which were subject matter of Cc)nsideration before it and observed: "In the instant case the first plaintiff was already in charge of the properties as trustee to perform the obligations created under it and continued them after the lifetime of Meenakshi Ammal. There are also positive words whereby it was made clear that the properties should be vested in Velappan and his ·heirs for them to enjoy the same absolutely …… . These two dispositive clauses create an interest in praesenti. The question is whether the postponement of H c such proprietary rights already vested in Velappan and his heirs, to the lifetime of Meenakshi Ammal, would make any difference. The Explanation to Section 19 of the Transfer of Property Act, providing that a vested interest is not defeated by the death of the transferee before he obtains possession, makes the legislative intent clear that such a vested interest, merely for the reason that it becomes vested after the lifetime of the sett/or, would not make it a settterrient not being in praesenti. We are therefore unable to agree with the contention that the interest that Velappan, the first plaintiff, obtained under the instrument is not a vested one and that it could be defeated because it is postponed till after the lifetime of Meenakshi Ammal. In the instant case the document itself is styled as a settlement deed. It has been registered. The right to enjoy the properties and secure the benefits and the temple honours as trustee under it have become a fait accompli even during the lifetime of Meenakshi Ammal. There is , therefore no ambulation in the matter of the vesting of the interest in the first plaintiff by any declaration or use of words either express or implied." (emphasis supplied)

18. In A. Sreenivasa Pai and another v. Sa~aswathi F · Ammal alias G. Kamala Bai (supra), this Court considered whether by virtue of Settlement Deed executed by appellant A. Sreenivasa Pai in favour of his mother-in-law Padmavathi Ammal, the latter became absolute owner of the properties described in the plaint 'A' schedule and upon her death, her G daughter S. Lakshmi Ammal acquired title to the said properties under the law of inheritance being the sole heir of the deceased. While dealing with the issue, the Court referred to the terms of Settlement Deed and held that A. Sreenivasa · Pai desired to give the properties to V. Sreenivasa Pai H absolutely subject to the life interest conferred on Padmavathi P.K. MOHAN RAM v. B.N. ANANTHACHARY AND ORS. [G.S. SINGHVI, J.] Ammal and he had no intention to give the properties to be enjoyed by Padmavathi Ammal and by her heirs from generation to generation.

19. In Namburi Basava Subrahmanyam v. Alapati J-iymavathi and others (supra), this Court observed that the nomenclature -0f the document is not conclusive and the Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby is created in favour of the ri:cipient, all those to be gathered from the recitals of the documents as a whole and observed: "The said recital clearly v:ould indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settler's demise. A reading of the documents together with the Schedule would give an indication that she had created right and interest in praesenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the Schedule with a life estate for her enjoyment during her lifetime. Thus, it could be construed rightly as a settlement deed but not as a Will. Having divested herself of the right and title thereunder, she had, (2010] 3 S.C.R. thereafter, no right to bequeath the same property in favour of her daughter Hymavathy. The trial court and the learned Single Judge rightly negatived the claim. The Division Bench.,was not, therefore, correct in law in interfering with the decree of the trial court."

20. In Vynior's case (supra) Lord Coke said "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." This C statement of law was relied upon by the Division Bench of Calcutta High Court in Sagar Chandra Manda/ v. Digamber Manda/ and others (supra). In that case, the court was called upon to consider the true character of the instrument which was . described as a Will. After noticirig the contents of the documents, th~ Division Bench referred to Vynior's case and D observed: "As to the true character of the instrument propounded by .the appellant we think there can be no reasonable doubt that it is a will. A will is defined in section 3 of the Indian Succession Act as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Section 49 then . provides that a will is liable to be revoked or altered by the maker of it, at any time when he is competent to dispose of his property by will. If therefore an instrument is on the face of it of 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. "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 P.K. MOHAN RAM v. B.N. ANANTHACHARY AND 9RS. [G.S. SINGHVI, J.] is ambulatory and revocable during his life. [Musterman v. Maberley, and in Bonis v. Morgan]. Indeed, the Court has sometimes admitted evidence, when the language of the paper is insufficient, with a view to ascertain whether it was the intention of the testator that the disposition should be dependent on his death. [Robertson v. Smith]. Tested in the light of these principles, there can be no doubt that the instrument now before us is of a testamentary character. It is described as a will and states explicitly that as after the death of the testator, disputes might arise among his relations with regard to the properties left by c him, he made the disposition to be carrie9 into effect after his demise. The terms and conditions are then set out, paragraph by paragraph, and in each p~ragra,ph the disposition is expressly stated to take effect after his . demise. Against all this, reliance is placed on the sixth paragraph, in which the testator says that he would be at liberty to mortgage the properties and not to sell them absolutely. Such a restraint as this upon his own power of alienation during his lifetime would be obviously void. It · does not indicate any intention to make the deed irrevocable."

21. In the light of the above, we shall now consider whether ttle trial Court and lower appellate Court rightly treated Ex. A-2 to be a Settlement Deed and the contrary finding recorded by the learned Single Judge of the High Court is legally unsustainable. A careful reading of Ex.A-2 shows that in the title itself the document has been described as Settlement Deed. By executing that document, Shri K. Perumal Iyer expressed his intention, in no uncertain terms, to settle the property in favour of 16 persons who were none else than his own relatives and declared that 'from this day onwards I and you shall enjoy the ·1and and house without creating any encumbrance or making any alienation whatsoever.' This was an unequivocal creation of right in favour of 16 persons in praesenti. Though, the beneficiaries were to become absolute owners of their A respective shares after the death of the settlor, the language of the document clearly shows that all of them were to enjoy the property along with settlor during his lifetime and after his death, each of the beneficiaries was to get a specified share. In the concluding portion, the settlor made it clear that he will have B no right to cancel the Settlement Deed for any reason whatsoever or to alter the terms thereof. The mere fact that beneficiary Nos. 1 and 2 and a°fter them their heirs were to receive honours at the temple or that shares were to be divided after disposal of the property cannot lead to an inference that · c Ex.A-2 was a 'Will'. If Ex.A-2 is read as a whole, it becomes clear that it was a 'Settlement Deed' and the trial Court and the lower appellate Courf:,~id not commit any error by recording , · a finding to that effect. As a sequel to this, it must be held that the High Court committed serious error by setting aside the ·D concurrent judgments and decrees of the two courts.

22. The judgments in Vynior's case and those of the Calcutta and Madras High Courts on which reliance was placed by the learned senior counsel for the respondents turned on their own facts and cannot be relied upon for declaring that Ex. E A-2 was a 'Will'.

23. Although, in their written statement respondent Nos.1 and 2 did plead that Ex. A-2 was executed by Shri K. Perumal Iyer due to fraud or misrepresentation, no evidence was led by F them to substantiate that allegation. Therefore, we do not find any valid ground or justification to entertain that plea.

24. In the result, the appeal is allowed. The impugned judgment is set aside and those of the trial Court and the lower appellate Court are restored. The parties are left to bear their · G own costs. c B.B.B. Appeal allowed.