Subbammal vs Subramaniam and Others

Srinivasan, J.—This civil revision is filed by the first defendant in the suit. The first respondent herein has filed the suit for a decree declaring,

that the share of Alamelu Ammal in the plaint schedule properties belongs to him or in the alternative for specific performance of the agreement by

executing a gift settlement deed or release deed, as provided therein and have it registered. The averments in the plaint are as follows: The property

originally belonged to one Peria Subbiah Gounder the grandfather of the plaintiff. He had a son by name Natthi Gounder. The plaintiff and the

second defendant are the sons of Natthi Gounder. The first defendant (revision petitioner) is the daughter of Peria Subbiah Gounder. Peria Subbiah

Gounder died on 4.3.1962. After the death of Peria Subbiah Gounder, his wife Alamelu Ammal, son Natthi Gounder, plaintiff and the second

defendant continued to live jointly. Natthi Gounder died on 13.11.1967 The first defendant, (daughter) Subbammal had already released her right

in the joint family property in favour of the plaintiff and the second defendant, as per the release deed executed by her in their favour. The plaintiff

and the second defendant were in enjoyment of the properties without any division. The plaintiff was in possession of certain properties and the

second defendant was in possession of certain other properties. On 31.12.1983, Alamelu Ammal, the grandmother of the plaintiff and the second

defendant executed an agreement, in favour of the plaintiff, undertaking to convey her share in the properties either by a settlement deed or by

release deed. The agreement was produced along with the plaint. She agreed to convey her share is the properties within a year from the date of

agreement viz., 31.12.1983. Under the terms and conditions of the agreement, the plaintiff is entitled to enforce his right through court, in case she

had failed to comply with the terms of the agreement. Alamelu Ammal died on 20.8.1984. There is also a stipulation in the said agreement that in

case of her death before executing the settlement deed, her share in the property should go to the plaintiff and that he should enjoy the case

absolutely.

The suit was contested by the defendants. When the plaintiff sought permission to file the agreement, referred to in the plaint during the course of

evidence, the same was objected to by the defendants on the ground that the document required registration and it was not registered. The learned

trial Judge has taken the view that the first part of the document, in which the executant had agreed to convey the property to the plaintiff by way of

settlement or release was only an agreement and it did not require registration. However, the learned trial Judge has opined that the later part of the

agreement, which stipulates that in case of death of Alamelu Ammal, within one year, the property would go to the plaintiff, required registration, as

it conveyed a contingent interest in favour of the plaintiff. As against the said order of the learned trial Judge, this civil revision petition is filed by the

first defendant.

The contention of the revision petitioner, cannot be accepted, as no part of the document requires registration. On a reading of the document, it

is very clear that the executant Alamelu Ammal had only made a promise to execute a gift, settlement or release deed within one year and convey

the property to the plaintiff. Later she has said that in the event of her death within one year without executing the document, the property should

go to the plaintiff. That part of the statement in the document would only amount to a Will in favour of the Plaintiff and it does not create any

contingent interest or any interest in presenti in favour of the plaintiff. A will does not require registration. Thus no part of the document requires

registration. Consequently, the view taken by the trial court that the second part of the document requires registration and that it is not admissible in

evidence is incorrect.

No doubt this civil revision petition is filed by the first defendant-as against her. But, now I am seized of the matter u/s 115 of the CPC and I do

proposes to exercise my suo motu power under that section to set aside that part of the order which is in favour of the petitioner herein. It is not

necessary for me to direct action to the first respondent/plaintiff as my order in this civil revision petition is only going to be made in his favour. It is

only the revision petitioner/first defendant, who has filed the present civil revision petition, challenging that particular part of the order, referred to

earlier has to be heard. She has been heard.

In the circumstances the order of the lower court is set aside insofar as it holds that the second part of the document requires registration and

that it is not admissible in evidence. I direct the lower court to consider the entire document as admissible. However, the question relating to the

genuineness and the validity of the document in question can be raised by the defendants before the lower court and they have to be considered

and decided by the trial court. What all I have held in this civil revision petition in that the will does not require registration.

This civil revision petition is disposed of on the above terms. In view of the final disposal of this civil revision petition by this Court today,

C.M.P. No. 9366 of 1996 is dismissed.