AI Structured Summary
Not yet generated for this judgment
Judgment
Gangadhara Menon, J.—This is an appeal by the Defendant from the judgment and decree of the learned Addl. District Munsiff of Nagercoil in O.S. No. 492 of 1118 of his court.
The plaint items 1 to 4 and the mortgage rights over items 5 and 6 belonged to one Daivana Pillai deceased. She gifted the properties to the Plaintiffs under Ext. A on 4-11-1110 reserving to only a life-interest therein. Subsequenly through the undue influence of the Defendant Daivana Pillai executed two documents on 27-11-1115 one a deed Ext. II revoking Ext. A and the other a deed of gift Ext. III in favour of the Defendant for the properties covered by Ext. A. Thereafter, the Defendant with the junction of Daivana Pillai executed Ext. VI assignment of I the mortgage right over item 5 and obtained the money thereunder. Daivana Pillai was not competent to execute Exts. II and III and the documents are invalid. On the above allegations the Plaintiffs brought the suit for setting aside Exts. II and III and for recovery of plaint items 1 to 4 and 6 with mesne profits and also for the recovery of the mortgage money wrongfully recovered by the Defendant with interest thereon. The Defendant contended that Ext. A has not taken effect; that it was only a will and not a gift, that Daivana Pillai was competent to revoke it and execute Ext. III gift and that consequently Plaintiffs are not entitled to any relief. The learned Munsiff repelled these contentions and decreed the suit. The Defendant has therefore come in appeal.
The main question for decision is whether Ext. A is a deed of gift as pleaded by the Plaintiffs or whether it is only a Will as contended for by the Defendant. Ext. A is styled as a gift deed. No doubt the nomenclature of the document is not conclusive. But in ascertaining the true intention of the maker the name by which she called the instrument has to be borne in mind and must not be lightly brushed aside. Further, Ext. A is registered as a deed of gift. This too is not conclusive though it is undoubtedly one of the several tests to ascertain whether the document in question is a gift or a Will. It is also significant to note that in Ext. A the maker of the instrument does not reserve to herself any power of revocation. However the learned Advocate for the Appellant contends that the operative clause in the document indicates that the executants did not intend to transfer in praesenti any interest in the properties scheduled to the document and that all that she intended was that the executees should take the properties only after her death. It is therefore argued that the document was intended to speak not from the date at which it was executed but from a future date, namely, the date of death of the executant and has therefore to be construed as a will. Reliance is placed on the following passage in Ext. A for the purpose. Though the above clause taken by Itself may at first impression land itself to the meaning that the Appellant wants us to draw from It, on a close and careful reading of the entire document we do not think that we will be justified in drawing such an inference. It is clear from the terms stipulated in Ext. A that the executant intended to retain no right to deal with the properties as owner from the date of its execution but only to have for herself a right to enjoy the properties for life. In fact, it is expressly stated that she will not in any manner encumber the property from the date of Ext. A but will only enjoy them till death. In so far as a life interest is reserved by the executant, the full rights over the properties inclusive of the right to possession can devolve on the executees, only after the death of the executant. But this does not mean that no rights in the properties vested in praesenti in the executees. Subject to the life interest that was carved out by the executant for herself the rights in the properties should be deemed to have vested in the executees if the terms in the document were to be given full significance. The passage in the document relied on by the Appellant has to be read along'' with the terms specifically referred to in it, and reading the document in that light the inference is not that no present right in the properties vested in the executees but that they will have full and competent rights over the properties inclusive of the rights to possession only after the termination of the life estate. As long as Daivana Pillai reserved a life-Interest to herself it could not be otherwise. It is a well established rule that
"In construing a deed the entire document should be considered and not merely particular words, terms, or even clauses and this has to be done in the light of the surrounding circumstances". Vide - Pasungilia Pillai Vs. Isakkimuthu Pillai and Others,
Reading Ext. A as a whole, we are inclined to think that rights over the properties comprised therein vested in the executees from the date of the document subject to the life estate in favour of Daivana Pillai and that the document is therefore a gift and not a Will.
The circumstances surrounding the execution of Ext. A also strengthen the view that we have taken. On the self same date of execution of Ext. A, deceased Daivana Pillai executed three other gift deeds in favour of her other near relations in respect of other properties that stood in her name. They are Exts. B, C and D in the case. Ext. B is in favour of the Defendant. The wording in all the four documents in material particulars is more or less the same and under all of them Daivana Pillai reserved the enjoyment of the properties for herself for life. It is not the Defendant''s case that Exts. B, C and D documents have not taken effect as deeds of gift. Obviously the intention of Davana Pillai who was very old and had no children of her own was to gift her properties to her near relations keeping to herself only the right to enjoy the properties during her lifetime. It appears to us that it was in furtherance of this intention that she executed Exts A to D in favour of the different relations whom she wanted to benefit. The intention therefore as could be gathered from Ext. A and from the surrounding circumstances is in favour of the view that Ext. A was intended to be a gift and not a will. We do not therefore see any reason to differ from the conclusions of the learned Munsiff in respect of this matter.
It was also contended before us that the gift has not become complete since it had not been accepted by the donees before the death of Daivana Pillai. There is absolutely no substance in this contention. It is very clear that after signing the document Daivana Pillai handed it over to the donees for it is seen that it was the 2nd Plaintiff one of the donees that presented it for registration. We think that the donees receiving the document from the donor after due execution thereof, and presenting it for registration and getting it registered are sufficient indications of the acceptance of the gift.
It is next contended that the dories have not fulfilled the condition imposed in the gift deed that they should live with the donor and protect her by ministering to her needs and as such the gift ceased to have any effect and could validly be revoked by the donor. There is no doubt a wish expressed in the deed that the donees should live with the donor and look after her as before. But the words used do not indicate anything more than a pious hope. It is not possible to read in them anything that would import the idea that the gift was subject to a condition the non-fulfilment of which would entitle the donor to revoke it.
It follows that Ext. A is a valid gift and Daivana Pillai had no power to revoke it. Ext. II revocation deed and Ext. Ill gift deed pursuant thereto in favour of the Defendant are both invalid. The title to the plaint properties vests in the Plaintiffs under Ext. A gift and consequently they are entitled to the declaration and recovery of possession sought for in the plaint.
It is clear from Ext. VI that the Defendant has received the mortgage money over item 5. He has wrongfully received the amount and he is bound to reimburse it to the Plaintiffs with interest. The Appellant contends that it was Daivana Pillai that received the amount and that the Plaintiffs could only seek remedies against her assets. We are unable to accept this contention. Ext. VI clearly shows that it was executed both by the Defendant and Daivana Pillai and that the money under it was received by the Defendant before the Sub Registrar. He cannot therefore absolve himself from the liability to account for that amount to the real owners of the mortgage right. We do not therefore find our way to disturb the findings of the learned Munsiff in respect of this matter.
Ext. A provides that the 2nd Plaintiff should conduct the funeral ceremonies of Daivana Pillai at a cost of Fs. 2000/-. It is common ground that the ceremonies were conducted by the Defendant and that the amount expended is not less than Fs. 2000/-. In view of the provision in Ext. A the Defendant contends that in any case he is entitled to have the amount he spent be paid back to him before the properties are recovered. The case of the 2nd Plaintiff in respect of this matter is not that he had no liability. His case is that he contributed for the expenses in connection with the ceremonies. There is no reliable evidence for this. We are therefore of the view that the Plaintiffs are liable to pay the said amount of Fs. 2000/- to the Defendant before they recover possession of the properties. This amount is allowed to be set off against the mortgage amount allowed to be recovered by the Plaintiffs from the Defendant as on the date of suit and Plaintiffs will be given a decree for the recovery of only the balance amount of Fs. 4000 with interest thereon. The decree of the court below will be modified accordingly.
In the result subject to the modification indicated in paragraph 9 supra, the decree of the lower court is confirmed and the appeal is dismissed with costs.