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Sreeraja Venkata Narasimha Appa Row Bahadur Vs. Sree Rajah Malraju Lakshmi Venkayamma Row Bahadur - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Contract
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.316
AppellantSreeraja Venkata Narasimha Appa Row Bahadur
RespondentSree Rajah Malraju Lakshmi Venkayamma Row Bahadur
Cases ReferredSee Breton v. Woollven L.R.
Excerpt:
trusts act (ii of 1882), sections 92, 94 - contract act (ix of 1872), section 2(d), (e), (h)--constructive trust, creation of--benefical interest--purchase with intention to gift property to another--contract-agreement--consideration residence with promise--whether constitutes consideration. - - the plaintiff's husband was evidently anxious about this village and after an unsuccessful attempt by raja ramachendra appa row to obtain a transfer in favour of the plaintiff, he wrote exhibit g to papamma row about the matter when she replied to him, exhibit k, that he need not trouble her about it, and when he pressed her again (exhibit g,) on the point told him that she would act according to her convenience. on this the plaintiff herself wrote to papamma row who replied that she would keep.....sankaran nair, j.1. this is an appeal from the judgment of the district judge of godavari holding that the village of. repudi was held by the late papamma row as trustee for the plaintiff subject to the condition that she was to retain possession of it till her death and that the plaintiff, therefore, was entitled to possession on her death. the appeal is confined to the appellant's alleged one-third share in the property. papamma row was a childless widow in possession of the zemindaris of nidadavole and medur, yielding an annual income amounting to lakhs of rupees. the defendants are the reversioners who have been held entitled to succeed her of her death.2. the plaintiff's maternal grandmother was the sister of papamma row's husband. her paternal grandmother was papamma row's sister......
Judgment:

Sankaran Nair, J.

1. This is an appeal from the judgment of the District Judge of Godavari holding that the village of. Repudi was held by the late Papamma Row as trustee for the plaintiff subject to the condition that she was to retain possession of it till her death and that the plaintiff, therefore, was entitled to possession on her death. The appeal is confined to the appellant's alleged one-third share in the property. Papamma Row was a childless widow in possession of the zemindaris of Nidadavole and Medur, yielding an annual income amounting to lakhs of rupees. The defendants are the reversioners who have been held entitled to succeed her of her death.

2. The plaintiff's maternal grandmother was the sister of Papamma Row's husband. Her paternal grandmother was Papamma Row's sister. Her father is the 1st defendant, the son of Papamma Row's sister. Her mother, the 1st wife of the 1st defendant, having died when she was only 4 years old, Papamma Row brought her up as her own daughter, gave her in marriage to Venknta Narasimha, ex-zemindar of Narasaraopet. Even after her marriage in 1886, she continued to live with Papamma Row till her death. It is the plaintiff's case that her husband and herself lived with Papamma Row, as she promised to give them properties of considerable value. She purchased the villages of Mutchanapalli and Gollamandala in 1890, and conveyed them to the plaintiff in 1892 by a, formal instrument. She purchased the village of Repudi in 1893; and the plaintiff contends that it was purchased for her benefit. Papamma, Row being only a trustee for her, and the lower Court has upheld her contention. There was no conveyance to the plaintiff by Papamma Row, Papamma Row had a Dewan, Veeakateswara Row, who was in the 1st defendant Rangayyappa Row's service from 1877 and. who continued to serve Rangayyappa Row oven after he entered Papamma Row's service. In fact Railwayyappa Row also was living with Papamma who made him an allowance which varied from Rs. 1,500 to 3,000 a month. It will, be remembered that the plaintiff was the daughter of Rangayyappa Row. It is necessary to bear these facts in mind when considering the evidence in this case.

3. Before the execution of the sale-deed to Papamma Row, a sum of Rs. 100 was paid to the vendor as an earnest money and in the receipt Exhibit E obtained from him there is a recital that the village was purchased to be given to the plaintiff, a recital which, according to Venkateswara Row, was inserted under instructions he received from Papamma Row. The day she received this receipt, she wrote to the 1st defendant reminding him of her previous order to purchase the village only in her name, which had been communicated both to him and Venkateswara Row and she wanted to know why it was disobeyed. The reply is not forthcoming. Vetikateswara Row now swears that Papamma Row changed her mind after giving him these instructions and sent a message which did not reach him to the effect mentioned in her letter. His evidence is not consistent with Exhibit II and cannot be relied upon. No reason is assigned for the recital in Exhibit K. The letter which insists upon the purchase being made in her name 'for the present' taken with Exhibit E suggests a possible intention of future transfer and. to that extent supports the plaintiff's oral evidence. The sale-deed, Exhibit L, was taken in Papamma Row's name. Venkateswara Row's explanation is that she wanted it to be known that the plaintiff was not the purchaser but that she had bought it out of her own funds and was going to give it to the plaintiff. Why she wanted that impression to be created is not explained. The position of the parties renders this evidence improbable and it is falsified by the persistent refusal of Papamma Row till her death to effect the transfer to the plaintiff and her order to Venkateswara Row, Exhibit H, not to divulge her intentions about this estate to others. The plaintiff's husband was evidently anxious about this village and after an unsuccessful attempt by Raja Ramachendra Appa Row to obtain a transfer in favour of the plaintiff, he wrote Exhibit G to Papamma Row about the matter when she replied to him, Exhibit K, that he need not trouble her about it, and when he pressed her again (Exhibit G,) on the point told him that she would act according to her convenience. On this the plaintiff herself wrote to Papamma Row who replied that she would keep the village with her for her life and give it to her to be enjoyed by her after her death (Exhibit D) also telling her that all the world knew it was purchased for the plaintiff. She confirmed this in a letter (Exhibit H) to the Dewan and in another letter (Exhibit P) to the plaintiff's husband. The oral evidence does not carry the case further than the documentary evidence and if it does, cannot be relied upon as being the evidence of interested witnesses. On this evidence, in my opinion, it cannot be held that any trust has been created. The purchase was not for the benefit of the plaintiff, 1 have pointed out there is no satisfactory explanation for the sale-deed not being taken in her name and the admission of the plaintiff that Papamma Row did not give the income of the village to her or her husband seems fatal to her contention that she had any beneficial interest in the property. It is true that Venkateswara Row explains that Papamma Row told him that she was utilizing the revenue even during her lifetime for some purpose or other for the plaintiff's benefit.' This is inconsistent with the plaintiff's own statement and Venkateswara Row's ignorance of the application of the revenue of the village is incredible. Her subsequent refusal to recognize the plaintiff's claim by a formal instrument also is remarkable. I must, therefore, find that the village was not purchased benami or in trust for the plaintiff.

4. Sections 92 and 94 of the Indian Trusts Act relied upon by the respondents' pleader do not apply nor does the proviso to Section 5 of the said Act apply to take the case out of the operation of that section as Papamma Row did not commit or attempt to commit any fraud. There was, therefore, no trust created by her at any time before her death.

5. The next question is whether there was any contract by Papamma Row to leave the property to the plaintiff at her death. The documentary evidence is conclusive to show that she told the plaintiff that the property would be left to the plaintiff on her death. It is necessary to examine the evidence in detail to see whether this was only the expression of a revocable intention or whether it was a promise made for consideration. Her case, as sworn to by her, is this : Papamma Row gave her in marriage to the zemindar of Narasaraopet who has his properties there. But when it was proposed to take her to her husband's house a month later she desired the plaintiff and her husband to remain with her at Senivarapet as she could not bear any separation from the plaintiff. She told both the plaintiff and her husband that besides maintaining them she would give the plaintiff jewels and lands. Some property was so given and after the purchase of Repudi, she promised the plaintiff to leave it to her, after Papamma's death. She swears if Papamma Row Garu had failed to enter into such an agreement in respect to Bepudi, myself and my husband would not have stayed there' i.e., with Papamma Bow at Senivarapet. She is corroborated in this generally by the other witnesses. But they are all interested and we have to see, therefore, how far the documentary evidence supports her contention. When the sale-deed for Repudi village was executed in Papamma Bow's name, the plaintiff's husband suddenly left her palace and returned to his own house at Narasaraopet. His evidence that his reason for leaving Senivarapet was to compel Papamma Bow to come to a distinct understanding about this village and certain other matters is not only corroborated by Raja Ramchandra Appa Bow and Yenkateswara Bow but also by the recitals in Exhibit F 2 and by what happened subsequently. On his return to Senivarapet to get a distinct promise from her, he wrote Exhibit G to her in which he stated that there were 'two matters which should be chiefly settled for my residing here', one of them being the question of this village and the other the preparation of a list of jewels given by Papamma to the plaintiff to avoid any future dispute. Her reply (Exhibit K) was not definite on these two points and he again wrote to her (Exhibit G) in which he told her you enquired in your chit (Exhibit K)...why I am going away at present. There should be reasons for staying here. They are not to be found in your chit.' It is clear from this taken with Exhibit G that he threatened to leave, unless she gave a satisfactory reply with reference to the two matters broached by him and he distinctly asks her again in the same letter to give the village to the plaintiff and when she stated in her reply that she would do what was necessary with the village at her convenience, the plaintiff herself asked her for an explanation and she wrote in these terms the reply (Exhibit D) 'Repudi was purchased on account of you only. Some more debts have to be paid off in respect of it, I shall pay off the debts, keep it under me during my life-time and then give it to you alone. Prom that time you can deal with it as you please. The whole country knows that I purchased it for giving it to you. Do not think even in your dream that I who maintained and brought you up from your childhood would do you wrong.' She also wrote to her Dewan to place formally on record her intentions with regard to this village. On the plaintiff communicating this to her husband, he wrote to Papamma Bow that he had heard from his wife that she would sign and seal a conveyance of the village, prepare the list and leave them in her box if we should stay here' looking after you and he adds 'I have no objection whatever to stay if it is done so.' The departure of the plaintiff's husband involved that of his wife the plaintiff, and Papamma was not willing to let her leave Senivarapet. These letters prove beyond all reasonable doubt that the plaintiff's husband made it a condition of their living with Papamma Bow that the village should be at least bequeathed to the plaintiff and thus confirm. the oral evidence. The plaintiff lived with Papamma and in consideration of that and their promise to live with her afterwards Papamma Row promised to leave the village to her. I am, therefore, of opinion that there was an agreement and it is a contract under the Indian Contract Act. See also the judgment of Stephen J. in Alderson v. Maddison L.R. 5 Ex. D. 293. It was further argued before us that the defendants are estopped from denying the plaintiff's claim. I do not think their is any estoppel. Papamma Row never denied the truth of any representation made by her to the plaintiff nor is the appellant doing anything of the kind. She did not do or say anything which would estop either her or the appellant from denying any state of facts. There is nothing in Exhibit D to prevent the appellant from contending that Papamma Row intended to give the village to the plaintiff but she never gave it. That plea does not contradict any assertion made by Papamma Row.

6. The next important question is whether Papamma Row made an oral bequest in favour of the plaintiff. Papamma Row had her Dewan, Venakteswara Bow, on a pay of Rs. 600 and Bangayappa Bow, the 1st defendant, with her, both of them clearly interested in the plaintiff. No explanation is forthcoming to account for their failure to secure a written will. Papamma Row has left a will (Exhibit A) and if she had intended to leave this property to the plaintiff by a will she would probably have added a codicil to it. She had sent for the minor Zemindar of Thelaprole and his mother the previous day for the purpose of adopting him. They had arrived on the morning of the day of her death and telegrams had been sent to the Court of Wards by her, asking permission to adopt the minor. Venkateswara Row swears that in the course of his discussion with her as to the telegrams to be sent about the adoption she expressed a desire to Execute a will after the adoption had taken place though she never gave him any directions for drafting the will. An oral bequest in the earlier part of the day is in the circumstances improbable. It appears from Raja Ramchandra Appa Row's evidence that a few days before her death he had asked her at the request of the plaintiff's husband why she had not executed a document for this village in favour of the plaintiff and she promised to execute one. And on the day of her death apprehending that she might die soon, the plaintiff's husband and himself requested Venkateswara Row to go to her and advise Papamma Row to execute a document in plaintiff's favour, he himself not caring to go and trouble her. It was in the course of his conversation with her, that she is reported to have told Venkateswara Row according to the plaintiff's witnesses that she had given away the village to the plaintiff and that possession with the title-deeds should be given to her. If this refers to the oral bequest in the morning to the plaintiff, it is remarkable that neither her husband nor Venkateswara Row refers to it. The evidence about this conversation is very suspicious. The evidence of Ramachandra Row and Venkateswara Row shows that the latter alone was present, while the plaintiff's husband swears he was present though he admits he never heard of the intended adoption or subsequent execution of the will. If she had intended to execute a will in favour of the plaintiff, there would have been no difficulty then in securing her signature to a will. The evidence as to the bequest in the morning consists of the statement of the plaintiff and of her mother that Papamma Row told the plaintiff not to feel sorry that she had purchased Repudi village on account of the plaintiff alone that she 'should take it after her death and also her jewels and other moveable property.' This shows that Papamma Row thought that the property belonged to the plaintiff.

7. If she expected the 1st defendant who had no son to succeed her, she may have thought a will unnecessary. If she expected all the three reversioners to succeed her then she would have left a will in writing and not made an oral bequest. The probability is that she wanted to adopt and then only execute a will.

8. In these circumstances, I am unable to hold that there was any will. On the finding that there was a contract to leave the property to the plaintiff, I would dismiss the appeal with costs.

9. Mr. Sundra Iyer requests me to note that he has also asked for the execution of a conveyance to him by the appellant.

Abdur Rahim, J.

10. The plaintiff in this case seeks to have her title declared to a village named Repudi and to recover possession of it from the defendants and she also asks that if it be held that she cannot recover possession without a conveyance of the village being first executed in her favour by the defendants that they may be directed to execute such a conveyance. The defendants Nos. 1, 2 and 3 claim to be the heirs of one Raja Papamma Row who was a rich Hindu widow in possession of large zemindaris belonging to the estate of her husband and they also claim to be the reversionary heirs of Papamma Row's husband. The first defendant is the father of the plaintiff and the 2nd and the 3rd defendants alone contested the suit. The 4th and 5th defendants are Receivers.

11. The village in question, was purchased by Papamma Row on the 24th March 1893 with her own money and she remained in possession of it until her death on the 5th December 1899. The deed of sale of which Exhibit L in a certified copy stands in her name. In the plaint the plaintiff thus sets out her case that Papamma Row was anxious that the plaintiff and her husband should live with her in her palace at Senivarapet and made a request to them to that effect, and she agreed that in consideration of the plaintiff with her husband consenting to live with her she would meet all the expenses of the plaintiff, treat her as her daughter and give her jewels and make adequate provision for her, that the plaintiff and her husband were accordingly living with Papamma Row and continued to do so till her death, that Papamma Row continued to treat the plaintiff in every way as her daughter and made large presents to her of jewels and other moveable properties from time to time and also purchased for her villages and lands, that in 1893 Papamma Row purchased with her own funds as a provision for the plaintiff the village of Repudi on behalf of and for the benefit of the plaintiff but in her own name and informed the plaintiff of the said purchase, that though Papamma Row remained in possession of the village she always acknowledged plaintiffs title to it and kept its accounts separate from that of the estate (paragraphs 9 to 11), that in a letter, dated about the 10th October 1893-that is according to the letter marked as Exhibit D-:Papamma Row acknowledged the plaintiff's title to the village and said that she would pay off the debts charged upon it and retain possession, of it during her lifetime and then give it to the plaintiff who might afterwards deal with it as she chose (paragraph 12) and that shortly before her death Papamma Row in the presence of respectable witnesses said that she had given away the village to the plaintiff and that she should be put in possession of the same after her death and that this amounted to an oral testamentary gift of the village to the plaintiff (paragraph 14).

12. Apart from the question of the alleged parol bequest, upon the above statements, if there was nothing else to consider it would be open to question whether the plaintiff has shown any title and whether her allegations do not disclose, as I read them, a case merely of an intended but imperfected gift. A number of issues was, however, framed for trial of which the 5th issue raises the question whether the purchase of Repudi by Papamma Row was not benami for the plaintiff. It is enough to say on this point that the purchase was made admittedly with Papamma Row's own money and the District Judge has, therefore, rightly held that no question of benami can be said to arise in the case. The 6th issue raises a contention on behalf of the plaintiff that the transactions referred to in paragraphs 9 to 11 of the plaint the substance of which I have already set out constituted a contract between the plaintiff and Papamma Row that the latter should buy and that she did in fact buy the village to be held by her in trust for the plaintiff as the beneficial owner and that Papamma Row contracted further that the possession of the village should be with her during her life and pass on her death to the plaintiff. The 7th issue is that assuming there was such a contract as is mentioned in the 6th. issue whether it is valid and supported by consideration. I think it is quite clear, however, that if paragraphs 9 to 11 give a correct account of the transactions referred to therein they do not show that the property was bought by Papamma Row in pursuance of any contract nor that she afterwards entered into a contract with respect to it. The question of an oral bequest of the village suggested by the 8th issue will be considered later. The 9th issue asks the Court to consider the legal effect of Exhibit I) the apparent suggestion being that apart from the title based on I rust and contract as alleged in issues 6 and 7 this document by itself served to confer a title on the plaintiff. I propose first of all to consider Exhibit D along with the other evidence bearing on the point and then consider what would be its legal effect if regarded independently. I might point out here that the genuineness of Exhibit I) was challenged by the defence. But the District Judge found it to be gennine and that finding has not been seriously impeached before us and I do not find sufficient ground for differing from the lower Court on this question. 1 should further observe that the 9th issue also asks the Court to ascertain the legal effect of the will dated the 27th August 1892 but it has not been suggested how that document supposing it to be genuine helps the plaintiff in her present case and 1 myself do not see how it does.

13. Upon the main question, that raised by the 6th, 7th and partly the 9th issues, the learned District Judge has held upon consideration of the evidence that Papamma Row entered into a binding contract with the plaintiff and her husband-the latter it should be observed is not a party to the suit-at or after their marriage to settle property on them in consideration of their living with her, that she purchased this village in pursuance of the contract and that under the circumstances disclosed in the evidence Papamma Row must be held to have held the village under a resulting trust in favour of the plaintiff bat that she was to retain possession of it till her death. He also finds that the plaintiff's allegation of an oral bequest has been made out. As regards the effect of Exhibit D he is of opinion that that latter by itself does not vest any title in the plaintiff. The 2nd defendant alone has appealed and his vakil contends that the lower Court's finding that there was a contract and a trust is wrong and that at the highest the evidence so far as it can be accepted establishes a case merely of an incomplete gift. On behalf of the respondent-plaintiff Mr. Sundaram Iyer so far as I have been able to follow him in this case-and I must admit that I found it rather difficult to appreciate the exact drift of some portions of is argument-has tried to support the lower Court's decree on the following grounds addition to those on which the District Judge based his judgment. He argues that Papamma Row having been proved to have admitted that she purchased the village for the plaintiff although with her own money and although the deed of sale does not state that the property was conveyed to her as trustee for the plaintiff this is sufficient to create a title in the plaintiff. I do not know of any principle of law to warrant such a contention nor have we been referred to any. Then it is said that Papamma Row's admission that she bought this property for the plaintiff, which only means, I take it, that she bought it with a view to give it to the plaintiff establishes an estoppel against her and against those who represent her estate. This argument is as unfounded in law as the one I have just mentioned. His other argument has no better justification, namely, his contention that the plaintiff's title might legally be supported on the basis of a compromise of a dispute between herself and her husband on the one hand and Papamma Row on the other, the dispute and its compromise being not that there was any actual or threatened litigation between them with respect to this village or anything else and that it was settled by transfer of this property to the plaintiff but that Papamma Row was not willing to convey the village to the plaintiff in her life-time and that, thereupon, the latter and her husband threatened to leave Papamma Row's palace but ultimately the matter was settled by Papamma Row promising that she would retain possession of the village during her life-time and that she would give it to the plaintiff to be enjoyed by her after Papamma Row's death. This is not a compromise of conflicting claims though it may be a different question whether it amounts to a contract.

14. I shall now consider whether any case of contract or executed trust has been established. In this connection there are certain well-established facts which may be taken to be undisputed for the purpose of this appeal as it has been presented to us. Papamma Row was very fond of the plaintiff who was closely related to her and brought her up as her daughter. She celebrated at her own expense the marriage between the plaintiff and her husband an ex-zemindar of Narasaraopet and a man of very fair means and as she wanted and was in fact anxious that the plaintiff should live with her till her death she consented to meet all the expenses of the plaintiff and her husband and to give to the plaintiff valuable jewels and settle considerable property on her. Papamma Row, as her evidence shows, in fact made an allowance of about Rupees 450 a month to the plaintiff's husband as long as she lived and made large presents to him and the plaintiff in other ways. The plaintiff also received jewellery of considerable value-it is said worth a lakh and a half-from' Papamma Row but it appears that the question has been raised in another suit whether it was given to the plaintiff absolutely. Papamma Row also purchased two villages for a sum of Rupees 29,000 for the plaintiff and duly transferred them to her. As I have said this case of the plaintiff is, as found by the District Judge, that all this was done in part fulfilment of a contract by which Papamma Row agreed to settle on her considerable property and the plaintiff and her husband in consideration thereof to live with her till her death and that the village in question was purchased by Papamma Row in pursuance of that contract. I shall first of all examine the case which the plaintiff makes in her examination-in-chief. Her pleader puts to her this question: Your husband is a man of property. You also should go there (meaning her husband's place) and live with your husband. Very well. Why did you agree to remain here at Sonivarapet (Papamma Row's residence)?' To that the answer is 'she (meaning Papamma Row) told me that she would assign some property to me.' Then she states that the reason why Papamma Row told her that she would give her some property and asked her to stay with her was that she was not able to bear the separation from her, and that Papamma Row gave her the other two villages in pursuance of her promise and promised to give her more immoveable property, that she said that she would purchase the village in question and give it to her and that the plaintiff agreed to Papamma Row purchasing the village for her and that she in fact purchased it for her, but got the sale-deed executed in her (Papamma Row's) own name. Thereupon she is put this question: How could you get it if is not conveyed to you in writing?' The answer is 'she thought of conveying it to me afterwards. Papamma Row told me like that.' Hearing of this, the plaintiff continues, her husband got angry and went away to his own place and that Papamma Row sent for him and when he returned certain correspondence ensued (alluding to Exhibits D and H). The next day plaintiff's examination-in-chief is continued, and she is taken over the same ground but fails to rise to any substantially higher case than she had made the first day. The result, in my opinion, is that the plaintiff in stating her own case in the witness box does not at all make out that any contract with respect to the village in question was ever entered into between Papamma Row and herself. In her cross-examination she says that she did not ask Papamma Row to give her Repudi or any particular immoveable property and that Papamma Row of her own accord told her that she would give her some more immoveable property at her convenience. Later on, however, in answer to a question put in cross-examination the plaintiff states that Papamma Row entered into a contract with her with respect to Repudi. But this statement was made several days after her examination-in-chief and I am not inclined to attach any importance to it. Besides, that assertion if understood in connection with the, facts narrated in her examination-in-chief does not really carry her case any further. The next important witness whose evidence requires to be considered is the plaintiff's husband (plaintiff's witness No. 8). It is to the effect that he did not want to live away from his own place, that he told Papamma Row that it would be considered a disgrace if he lived with his wife in Papamma Row's palace as he would be looked upon as an illatom son-in-law and that his own affairs would suffer detriment but he says that, as Papamma Row asked him to live with her and to look after her affairs and promised to give valuable jewels and large immoveable property to the plaintiff, the witness agreed to comply with her request and that in consideration of his so agreeing Papamma Row gave the two other villages and jewellery of considerable value to the plaintiff and promised to give Repudi to her as well. I might observe here that there is no evidence whatever that the plaintiff's husband in any way helped Papamma Row in the management of her zemindary or that he was presented by the fact of his living with her from looking after his own property In fact the plaintiff and her husband living with Papamma Row was, the evidence shows, a matter of unmixed advantage to them both. But supposing that Papamma Row and the plaintiff and her husband might if they so chose treat such a consideration as the basis of a contract, the question still remains whether they in fact did so apart from the question whether the law would regard mutual promises of the nature just stated as forming a contract at all. The plaintiff's husband continues in his examination-in-chief to say that Papapma Row never did anything definite about the transfer of Repudi to the plaintiff until the day of her death and that on that day she verbally bequeathed the village to the plaintiff. The other oral evidence, namely, that of Papamma Row's Dewan (plaintiff's witness No. 6) who appears to be a strong partisan of the plaintiff and was so even in Papamma Row's life-time and of the 5th plaintiff's witness a friend of the plaintiff's husband, does not, in my opinion, advance the case of the plaintiff to any extent.

15. I shall now consider the documentary evidence which I regard as the most reliable evidence in the case as containing contamporaneous record of what passed between Papamma Row on the one hand and the plaintiff and her husband on the other. Exhibit E (28th February 1893) which is a receipt given by the vendor for the advance of Rs. 100 paid by Papamma Row as earnest money states that she was going to purchase the property in order to give the same to the plaintiff as her dowry. But directly Papamma Row came to know of this recital she wrote to her Dewan (plaintiff's witness No. 6) who, evidently working in the plaintiff's interest or rather her husband's, had got it inserted in Exhibit E repudiating such recital and stating that she did not at the time intend that the village should be conveyed in the plaintiff's name. So when the deed of sale (Exhibit L dated the 24th March 1893) itself was executed we find no mention in it of the property being bought as dowry for the plaintiff. The plaintiff's husband who was trying every means through the plaintiff and the Dewan of Papamma Row to induce the latter to transfer the village to the plaintiff, also sought the help of Raja Ram-chandra Row (plaintiff's witness No. 5) his friend and a relation of Papamma Row to the same end. This gentleman writes to the plaintiff's husband on the 16th August 1893, (Exhibit F 2) that he would try and obtain a transfer of the village. The other letters, Exhibits El, E3 and F4, are also to the same effect. Next we come to Exhibit G, a letter written by the plaintiff's husband to Papamma Row herself on the 27th September 1893 with reference to what her Dewan had told him as the result of his intercession with her. The Dewan apparently could not induce his mistress to execute a transfer of the village to the plaintiff and the plaintiff's husband writing to Papamma Row assumes a tone of despair and says that he would not trouble her any more and seeks permission to go to his own village as his brother was ill. But at the same time he tells her that if she wants him to stay with her she must settle the question regarding the village and the jewellery. In reply Papamma Row writes (Exhibit K) that she does not want to be worried about these matters but that he need not go as there was nothing serious of the matter with his brother. These two letters show that Papamma Row was not willing to transfer the village to the plaintiff but the latter's husband in order to gain his object was putting pressure upon the old lady by playing upon her weakness towards the plaintiff. He again writes to Papamma Row (Exhibit G, 8th October 1893) much in the same strain as Exhibit G and he says, to use his own words, 'If the village was purchased for the purpose of giving it to her (meanings the plaintiff) and if it is intended to be given to her I do not see any objection to giving it also. However, all the people in the world are not equally wealthy and so my nature is to be content with what I have but it is not otherwise. By your favour God has favoured me also with property to get on happily.' Then Papamma Row writes Exhibit Q and again refuses to be harried. The letter (Exhibit G) as well as the other letters clearly shew that no one ever thought that Papamma Row bound herself by any contract or declaration of trust with respect to the village and that though she intended to make a gift of it to the plaintiff she was slow and reluctant to carry out her intention. The reason for her unwillingness will appear from the other letters which passed in connection with the matter. The plaintiff's husband having failed to create any favourable impression himself got the plaintiff to write to Papamma Row in order to assertain from her what her intentions were. In reply the old lady wrote Exhibit D. There she is more frank and says that she means to keep the village in her own possession during her life-time but that, she would give it to the plaintiff so that it will become her property after her death. At the same time Papamma Row writes to the Dewan (Kxhibit H) asking him to draw up a proper deed to carry out her intention as stated above but asks him also not to divulge this to others. She says that she had purchased the village for the benefit of the plaintiff but the reason why she had not executed any transfer so long was that she was afraid that directly she did, so the plaintiff and her husband would leave her. She, however, wanted the deed of settlement to be drawn up then as it was too important. In the end as happened it was not drawn up and apparently the plaintiff's husband hence forward thought it the best policy to wait in patience and in hope, satisfied in the meantime with the handsome allowance he was getting. It has been strenuously argued no doubt that Exhibits D and H settled the matter to the satisfaction of the plaintiffs and her husband and hence they did not re-open the subject. Not only the documents themselves bear witness to the contrary but the plaintiff's husband himself says in his examination-in-chief as I have pointed out that nothing definite was done by Papamma Row regarding Repudi until the date of her death. Exhibit I) reading it alone or with Exhibit H discloses merely an intention to make a voluntary settlement and nothing more. These documents, as the rest of the evidence, altogether negative the idea that Papamma Row entered into a contract with the plaintiff to convey the village to the plaintiff in her life-time or to bequeath it to her. I also think that these letters should be read not by themselves but along with the others in order to ascertain what actually took place and I would not seize upon an isolated expression to infer either a contract or a bequest or a trust if such an inference in the light of the other evidence would not accord with the writer's intentions. The only effect of the entire evidence is that no one concerned over thought during Papamma Row's life-time that she at any time entered into a contract with respect to this village with the plaintiff or her husband or both and that the latter on their part felt themselves legally bound because of such contract to live with her. The conclusion, to my mind, which the evidence clearly leads to is that the plaintiff and her husband were expecting a bounty which they might or might not have thought that they had a sort of moral right to expect. Their acts are referable to that expectation and not to any contract. This distinction is well-known in law see Maddison v. Alderson. 8 App. Cas. 467: 49 L.T. 303 Besides, even if the parties intended to enter into such a contract I do not think it would be one which the Court could enforce. I am also of opinion that the promise of Papamma Row upon which the plaintiff is relying in support of her case apart from its legal effect was extorted from her by the plaintiff's husband taking unfair advantage, as it seems to me, of her fondness for the plaintiff and I would be inclined to say that the promise made under such circumstances was really made under coercion. Nor does the evidence, in my opinion, at all shew that Papamma Row ever constituted herself a trustee of the property for the plaintiff or that she held the village in that capacity. It is not pretended that the plaintiff received the income of the village or any portion of it and the assertion that its revenue was in some shape or other utilised by Papamma Row for the benefit of the plaintiff is not only too vague to prove a trust but appears to be without any foundation in fact. Papamma Row might have had, and I think she had in fact an intention to make a settlement of the property sometime or other before she died for herself for her life and thereafter for the plaintiff. But an intention to create a trust is not sufficient unless some act is done to effectuate that intention. Further in relation to immoveable property the creation of a trust must be in accordance with the requirements of Section 5 of the Trusts Act. But it is argued that the case falls within the proviso to Section 5 because Papamma Row having intended and promised to the plaintiff to creat a trust in her favour, her failure to do so amounted to fraud. If that were so the section itself would be rendered nugatory altogether. No doubt if the village was purchased in pursuance of a contract to hold it in trust for the plaintiff, Section 92 of the Trusts Act would apply and Papamma Row must be taken to have held the property in trust for her. But I have found that no such case has been made out. It is also urged that Section 94 of the Trusts Act applies, but upon the evidence Papamma Row never parted with her interest in the property at all and I have found that she never entered into any contract which would limit her estate. In short all the argument on this part of the case, as in all such cases, amount to an effort on the part of the plaintiff to induce the Court to perfect a gift which has been left imperfect by the donor herself, either deliberately or through an accident or misconception of the law. This is what the Court cannot do, because it has no jurisdiction to do it as there is no equity in the Court to perfect an imperfect gift. See Milroy v. Lord 4 D.F. J. 264. Nor will the Court go out of its way to help a disappointed expectant of a bounty by converting a declaration of intention to give into a declaration of trust. See Breton v. Woollven L.R. 17 Ch. D. 410.

16. The case of the plaintiff based on a verbal bequest can be disposed of in a few words. Papamma Row died at about 2 p. M. and she is stated to have said to the plaintiff at about 10 A. M. on the same day and repeated the same afterwards to her Dewan and the plaintiff's husband at 12 noon that she had given the village to the plaintiff and that possession of it should be given to her after her death. The evidence of the plaintiff herself and other witnesses shows that from about 8 in the morning Papamma Row was breathing hard and the people round about her gave up all hope of her recovery. Under such circumstances very clear and strong evidence should be adduced to show that at 10 A. M. she was of a sound disposing mind. The doctor has not been examined and I am not at all satisfied that Papamma Row was in a fit condition to make a will. Further the words imputed to Paparnma Row refer to a past gift and it is admitted that she had not made any gift of the property and I think the evidence clearly establishes that Papamma Row as well as the plaintiff knew that the intended gift had not been perfected. This to my mind is an additional indication of the story of a bequest being false. I might further point out that the story is in consistent with the case of the plaintiff that Papamma Row had entered into a valid contract with respect to the property.

17. In my opinion, therefore, the case of the plaintiff fails and the appeal should be allowed and the plaintiff's suit dismissed with costs so far as it relates to the one-third share of the village with respect to which alone the appellant has preferred this appeal.

Sankaran Nair, J.

18. As my learned colleague disagrees with me, the appeal is dismissed with costs under Section 575, Civil Procedure Code.


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