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Rajammal Vs. Authiammal Alias Athi Lakshmiammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1910)20MLJ519
AppellantRajammal
RespondentAuthiammal Alias Athi Lakshmiammal and ors.
Cases ReferredIn Thakur Ishur Singh v. Thakur Baldeo Singh I.L.R.
Excerpt:
- - 'after my lifetime, both of you shall not only get the right due to me in the said lands and the said saltpans, but shall also divide and enjoy in equal shares the income derived therefrom. we are satisfied that exh......' the fact of registration as a deed appears to have been deemed almost conclusive against its testamentary character.' [see jarman on wills, 5th edn., vol. 1, page 22] without giving the same effect to registration in this country it is at least permissible to hold that that is also a circumstance to be taken into account. going to the provisions of the instrument, it is to be observed that there is no reservation of a power of revocation. it may be doubted whether the same importance should be attached here to the absence of a power of revocation as in england where testamentary instruments are generally drawn by solicitors. see, however, jeffries v. alexander.(1867) e.r. 562 the author of the instrument promises to transfer the putta for the lands and the license for the salt pans.....
Judgment:

1. The question in this case is whether the instrument, Exhibit A, is a settlement or a will. In form it purports to be an agreement executed by Nilakanta Pillai to his wife and his son's widow. This is a circumstance to be taken into account, although as observed in Rambhat v. Lakshmana Chintaman Mayalay I.L.R. (1881) B. 630 'this, per se, is not much.' It has been registered as a settlement. In Marjoribanks v. Hovenden (1843) Dru. 11, as observed by Jarman, ' the fact of registration as a deed appears to have been deemed almost conclusive against its testamentary character.' [See Jarman on Wills, 5th Edn., Vol. 1, page 22] Without giving the same effect to registration in this country it is at least permissible to hold that that is also a circumstance to be taken into account. Going to the provisions of the instrument, it is to be observed that there is no reservation of a power of revocation. It may be doubted whether the same importance should be attached here to the absence of a power of revocation as in England where testamentary instruments are generally drawn by solicitors. See, however, Jeffries v. Alexander.(1867) E.R. 562 The author of the instrument promises to transfer the putta for the lands and the license for the salt pans to the names of his wife and his son's widow. He provides for the kist of the lands being paid and the materials for the salt pans being supplied by both. He makes a gift of jewels to his wife and his son's widow or promises to do so. Above all he declares that his future debts shall not be binding on the properties. Some of these can be said to be provisions of an ambulatory character. The fact that some of these are expressed to operate in the future cannot affect the' character of the instrument as a settlement. As observed by Kekewich J. in Jonstone v. Mappin (1891) 64 LT 49: ' There is no magic in the use of the future tense which is frequently employed to express a present contract and if on the construction of the whole instrument the true conclusion is that a present complete settlement was intended, then I take it the intention must prevail notwithstanding it be expressed in inappropriate language.' The only problem is whether the instrument partakes of a testamentary character only by reason of the following clause: ' After my lifetime, both of you shall not only get the right due to me in the said lands and the said saltpans, but shall also divide and enjoy in equal shares the income derived therefrom.'' As observed by Sarjeant C.J. in Reference by the Collector and Superintendent of Stamps, Bombay (1895) 2 L.R 20: 'Even the reservation of a life estate by the settlement does not render the instrument less a settlement.' It is provided in Exh. A that Rs. 5 a head shall be paid during the period of the settlor's life-time, apparently out of the profits of the property. It was observed by Sir J. P. Wilde in In the goods of Robhinson (1867) 1 P.& D 384: ' The first difficulty that arises is, that the Court is asked to deal with a portion only of a document, and declare it to be testamentary. I have met with no case where that has been done, although I by no means say that it could not be done.' These remarks appear to us to be applicable to the present case in that there are clear provisions having an immediate operation.

2. One of the invariable tests in coming to a conclusion as to the testamentary character of a paper is whether the paper is revocable. We are satisfied that Exh. A is not. The decision in Lakshmi v. Subramanya I.L.R. (1889) M. 490 has no application. There the governing words with which the instrument begins are: ' What should be done by my adopted son and my wife after my life time.'

3. In Thakur Ishur Singh v. Thakur Baldeo Singh I.L.R. (1884) C. 729 their Lordships of the Judicial Committee set out at page 800 the indicia of a will in that case. This case does not apply either. We must reverse the decrees of the Courts below and remand the case to the District Munsif for disposal according to law. Costs will be provided for in the revised decree.


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