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Pasungilia Pillai Vs. Isakkimuthu Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad349
AppellantPasungilia Pillai
Respondentisakkimuthu Pillai and ors.
Cases ReferredMahadeva Iyer v. Sankara Subramania Iyer
Excerpt:
- srinivasa aiyangar, j.1. the question that has been argued in these second appeals bears almost exclusively on the construction of a document bearing date '25th june 1908 and marked as ex. a in the case. the question is whether, having regard to the terms of the document and the various clauses therein, it must be held as a document made by the executant to have operation inter vivos and immediately and, therefore, irrevocable in its nature, or whether it was of an ambulatory character being merely a testamentary document and therefore revocable. we heard arguments at great length on both sides. we have also carefully considered all the terms and clauses in the document, the original of which is in the tamil language and character. it may at once be stated that the solution of the.....
Judgment:

Srinivasa Aiyangar, J.

1. The question that has been argued in these second appeals bears almost exclusively on the construction of a document bearing date '25th June 1908 and marked as Ex. A in the case. The question is whether, having regard to the terms of the document and the various clauses therein, it must be held as a document made by the executant to have operation inter vivos and immediately and, therefore, irrevocable in its nature, or whether it was of an ambulatory character being merely a testamentary document and therefore revocable. We heard arguments at great length on both sides. We have also carefully considered all the terms and clauses in the document, the original of which is in the Tamil language and character. It may at once be stated that the solution of the question is not entirely free from difficulty, but at the same time we can only do the best and arrive at the conclusion that appears to be the most reasonable, having regard not only to the (terms of the document, but to all the circumstances in which the document was brought about. After having carefully and anxiously considered the arguments on both sides, we have come to the conclusion that the document is of a testamentary character. We are aware that in this respect we differ from the conclusion arrived at by both the lower Courts; but in arriving at the conclusion we have not omitted to take into consideration any matter to which our attention has been drawn by the two learned gentlemen who argued the case on behalf of the respondents or any of the arguments put forward by them.

2. The first thing to be observed in connexion with such questions is undoubtedly that the entire document should be considered and not merely particular words, terms, or even clauses. No doubt this has to be done in the light of the surrounding circumstances to which we shall presently advert. With regard to such questions the argument has often been put forward in this case as well as similar cases which have come up before Courts of law that the name by which the instrument is called by the maker must be borne in 'mind and should not lightly be brushed aside. That is undoubtedly so. With regard to this Mr. Varadachariar has called our attention to the observations of the learned Judges in the case of Mahadeva Iyer v. Sankara Subramania Iyer : (1908)18MLJ450 . There the learned Judges have indicated that unless there were something specially in the document which compels the Court to adopt or come to the conclusion that it is substantially a document of a different kind to that which it calls itself by, no such conclusion should be accepted. That would undoubtedly be so. In this case it is no doubt true that the document is called by the maker a deed of settlement. As against this there is, however, this other feature or circumstance, namely that it is not a deed executed by the maker in favour of any particular person. Though no doubt the fact that it is called a deed of settlement has to be borne in mind, at the same time the particular feature in this document that it is not and does not purport to be executed in favour of any particular individual cannot be neglected from consideration and must be borne in mind in arriving at a conclusion. It is common knowledge that nearly all, if not all, documents probably without a single exception, executed by persons with the intention that they should come into operation immediately or documents containing dispositions made or purported to be made inter vivos always happen to be in favour of certain, particular, defined persons. Even a will-I have seen numerous cases-often comes to be executed probably in accordance with this practice in favour of some particular individual. But generally speaking it is a testamentary document that comes to be made not in favour of particular persons, but merely for the purpose of effecting the disposition therein contained.

3. The next consideration with regard to this document has reference to the use of the word 'now' or 'at once' and other words which are undoubtedly apt words for the purpose of indicating a document intended to take effect immediately, or an instrument by which a disposition of property inter vivos is purported. No doubt if the use of such words - and such words are used in two or three places in the document- stood alone that would lend considerable strength and support to the view taken by the lower Courts. But there is as against this in this document the distinct expression that the dispositions and directions contemplated by this document should take effect only after the lifetime of the maker. It is translated in the translation made by the officer of the Court as follows:

I thought that I should make some arrangement in respect of my properties after my life-time.

4. The next point for consideration with regard to this document is that it is shown to have been made by the executant just a few days before he actually made what is alleged to be an adoption by him of defendant-appellant 1 in second appeal No. 1779 of 1925. The learned vakil for the respondent strongly relied upon this circumstance as calculated to indicate that the real intention of the maker of the instrument must have been that it should take effect inter vivos and having regard to the circumstances he could not have merely contemplated a testamentary document. We were strongly impressed by this argument, but at the same time because the maker of the instrument was making the arrangement at that time, that, a few days before he was making, let us say for the purpose of the present discussion, an actual adoption, it does not follow that the form he went through for the purpose was necessarily a document which would have effect immediately. The sufficiency in the minds of ordinary persons in such circumstances of a mere testamentary document is shown as in the case of Lakshmi v. Subramanya [1899] 12 Mad. 490. Ordinarily speaking, if a person who was about to make an adoption wished to make dispositions or give directions which would not only be regarded as satisfactory by all parties concerned in the adoption to be made but also as binding on himself, then no doubt the suitable form would be a document which will have effect inter vivos. But there is no reason necessarily to suppose that the person who was making the instrument intended thereby to bind himself also permanently; and if the circumstances of the case were such that by indicating the dispositions in a testamentary document, he would be satisfying the parties who may be regarded as concerned in the adoption, then there is no reason to suppose why the latter form should not have been regarded also as suitable.

5. Then passing on to the properties which are the subject-matter dealt with in the document, there is, no doubt, a schedule in the document specifying the various properties. One conclusive test as to whether, in such cases the document was intended to take effect inter vivos or not, would be to see whether any irrevocable interest is thereby created immediately in favour of some other person. Undoubtedly the question can arise only in respect of documents where the property is directed to go to the donee after the death of the maker of the instrument. In the case of a will, as it speaks only from the death of the testator, the disposition could only begin to take effect from that time. But a disposition in presenti can be made vesting property in a third person on the death of the maker of the instrument, the distinction being that the interest in the latter case, though it comes into possession after the death of the maker, vests immediately. It may also be useful in connexion with such a question to consider whether the interest that the maker of the instrument reserves to himself should be regarded as reserved or retained by virtue of the instrument itself, or merely by reason of there not having been any disposition of the property. With regard to this the document has these provisions. Though, as already stated, there is a schedule of properties given in the document, still, when it comes to a question of the properties to be taken by the wife of the maker of the instrument, it is not only the properties described in the schedule but also all his future acquired properties. It cannot be argued that by an instrument operating inter vivos or a deed of settlement a person can validly dispose of even property which had not been acquired by him at the time, or that he could give directions with regard to his future acquired property. We must, therefore, also take it that having regard to this feature alone of the document it must be conceded that such a provision is more consistent with the document being of a testamentary character than with its being a settlement. But this could not be really regarded as conclusive of the matter because there may be oases of real settlements in which the settlors have by ignorance or otherwise sought to deal with the property to be thereafter acquired by them. However, in this case there is the further circumstance that when he speaks of his own enjoyment of the properties during the rest; of his life he lays down no limitations whatever over his power of enjoyment or disposal, but that soon after his death, when the property is directed to be taken and enjoyed by his wife, it is directed that she should enjoy it without making any alienations. The sentence translated runs thus:

After my lifetime my wife should without making any alienations enjoy the said undermentioned properties now in existence as well as the properties to be acquired by me hereafter.

6. The sentence previous to this runs thus:

The undermentioned properties worth Rs. 1500 belonging to me should continue to be in my enjoyment as they are at present.

7. The translation of this clause, however, is not altogether satisfactory. The clause in Tamil is:

En Sothukal eppozuthu en anubavathili-rinthu varugarapatiye inimelum irunthu varavendiathu;

and this clause is immediately succeeded by the other clause where his wife is directed to enjoy the property without any power of alienation. These two clauses taken in juxtaposition would seem undoubtedly to indicate that at any rate his intention was clear that during his own lifetime he contemplated no limitations whatever on his powers in respect of the property. No other construction in the face of these two clauses could be regarded as reasonable. It is also significant, though nothing finally turns on it, that he is contemplated to be in possession and enjoyment of the property for the rest of his life not by reason of this instrument or any interest newly carved by it, but because he is the absolute owner of the property which it is indicated he will continue to be for the rest of his life.

8. If therefore, on a proper consideration of these two clauses it should follow that under this instrument he contemplated having absolute powers of disposition over the property during the rest of his life, it must be regarded as absolutely inconsistent with any ulterior interest by way of remainder having been carved out of the property there and then and vested in the legatees or donees. If it were a will, no such difficulty could possibly arise, because, as a will speaks only from the death of a person, if certain properties which are given even by way of specific legacies cease to exist or form part of his estate at the date of his death, it follows merely they will not take effect. No doubt, as was pointed out very properly by Mr. Venkatasubramaniam, the learned Counsel for the respondent, there is in the same clause reference to the fact that the properties undermentioned, that is in the schedule, should be enjoyed without power of alienation by his wife after his death. The learned Counsel argued that if the maker of the instrument contemplated his having powers of disposition during the rest of his life over the property he could not at the same time have referred to the properties being taken and enjoyed without power of alienation by his wife after his death, and from such a provision a limitation on his powers of disposition during the rest of his life might also necessarily be implied. There is considerable force in that argument. But the argument would be seen not to be so insuperable if the document is looked at as a testamentary document. No doubt at the time a person makes a will he refers to the properties at the time in his possession and he makes also dispositions of the property, and in doing so he may lay limitations with regard to the powers of particular legatees. All the provisions of that character therefore a testator is including in a will must be regarded as being under laid by the supposition that these properties continue to form part of his estate at his death. As all clauses of a similar character in a will must be regarded as proceeding only on such supposition, there is no great difficulty in understanding this clause also as under laid by such a supposition because there is nothing strange or untoward in a testator, so far as he knows his mind at the time, contemplating those properties to continue to form part of his estate even at his death and being left by him as part of his estate and then of course the directions will be appropriate and have effect.

9. One other circumstance that was relied on behalf of the respondent as indicating the true nature of this instrument to be a settlement is that the maker has contemplated at least a few matters as taking place during his own lifetime and providing therefor or giving directions in respect of the same. Such are the matters relating to the residence and maintenance of Parvathi Ammal and the death of his own wife before his lifetime. If in respect of these two matters they could properly be regarded as dispositions of property to take effect even before the end of his life, the contention would undoubtedly seem almost insuperable; but having regard to their true nature it is clear that the references there are to what might possibly happen with regard to these matters before he himself dies and those references must be taken only as having been made for the purpose of providing the alternative arrangements set out in the document. As against this again there are in the document certain features which would go to show clearly that the document 'cannot be regarded as anything other than a testamentary paper. There is clear and undoubted reference to certain expenses being incurred from and out of the estate of the testator not only after his death but also after his wife's death. If, according to the directions contained in the document it should operate inter vivos as a settlement and vesting of the property in the particular donees, such dispositions taking effect the moment after his death, it is impossible to see where there can be any estate of his after his death from which these expenses directed by him could be met. The very reference to the estate even after his lifetime as his estate seems to my mind to be consistent only with the view that the document is a testamentary document and not a settlement inter vivos. If so far as his consciousness went all the property he had then and all his future acquired property was to be divided in a particular manner, we must take it that no provision was made by him with regard to the moneys to be found for these expenses directed by him; whereas on the other hand if it were a will, then it follows that the directions being only to the effect that the estate should be divided into two equal halves any direction for the payment of certain charges and expenses from the estate would have precedence and that only the residue should be regarded as having been directed to be so divided.

10. Though having regard to the consideration and discussion so far, the question may almost appear to be very nearly equally balanced, there is one consideration having regard to which it seems to us that the true view to take is that it is a testamentary document and not a settlement. We take it to be a well-established principle and rule of construction that a document should be construed if possible only in that manner or as being of that character in which it would be possible to give effect to all the directions contained in the document. If, regarded as a settlement, it turns out that many of the directions in the document could not be possible of being given effect to, but if, regarded as a will, effect could be given to all the directions and there would be no difficulty whatever in carrying out the intentions of the maker of the instrument in any manner, then it follows that the construction that it is a will and not a settlement should be the one that is accepted. In this case our attention has not been drawn to any direction or provision in the document which will offend against its being regarded as a will, whereas there are parts of the document which cannot be reconciled with its being a settlement inter vivos.

11. On all these considerations therefore, we have come to the conclusion, differing in' that respect from the conclusion arrived at by the lower Courts, that the document is really a will and not a deed of settlement. It is unnecessary, at this stage and having regard to the conclusion arrived at by us on a consideration of the terms and clauses in the document, to refer at any great length to the cases cited before us by the learned gentlemen on both sides. After all each document has to be construed having regard to the particular terms and language employed and it is a trite saying that no document is exactly like another. It follows, therefore, that the finding of the lower Courts to the effect that the document Exhibit A was a settlement must be reversed.

12. The only other matter that was argued by the learned vakil for the appellant-related to the improvements alleged to have been made by the first-defendant appellant in respect of one of the items of property. The claim with regard to this item as set out in the written statement is very meagre and altogether bare. No grounds are set out beyond the mere circumstance that he had made the improvements as showing how he is entitled to be reimbursed the amount thereof, or the share of the same by the other party. It could not possibly be stated that on a person showing merely that he has made improvements he becomes entitled to be paid the same whatever might have been the circumstances under which he came to effect them. It is a question largely dependent on facts. In order to entitle a person to be paid the value of the improvements effected by him he must show various circumstances in law or in equity which would entitle him to be reimbursed the same. None of these facts and circumstances have been set out here. At one stage we understood Mr. Sitarama Rao, the learned vakil for the appellant, to argue that the appellant was a sort of a co-tenant of the remainder in respect of the property which at that time was in possession and enjoyment of the wife of the deceased. If so, it is difficult to see what right he has at that time to make any improvements which could only be based on his rightful possession and enjoyment of the property. At another stage it was sought to be argued that he made these improvements believing bona fide that he was the adopted son of the deceased and therefore entitled to all the property without any reference to this document as a will which he treated, as merely containing the testamentary dispositions of a person incompetent to make any such disposition. If so, those facts must have been alleged and an opportunity afforded to the other side to show that at the time the appellant alleges he made these improvements he could not have bona fide believed the state of things in which according to him he did make the improvements. It is really a matter of pleading and we are satisfied that in this case the necessary facts have not been pleaded or proved. In these circumstances the claim so far as these improvements are concerned must be rejected.

13. In the view that we have taken of the document in this case it is obviously necessary that other questions between the parties should be gone into and determined. As regards the question of adoption raised by first defendant-appellant in the lower Courts, the same having been found against, no question has been raised before us and it must therefore be treated that for the purposes of the claim, the subject-matter of these proceedings, he is not the duly adopted son of the deceased. As the decree passed by the lower appellate Court entirely proceeded on the footing of the document Ex. A being a settlement, it would be necessary that the claim for partition now made by the plaintiff should be dealt with in the light of Ex. A being, as we have found, a will. For this purpose it would be necessary for the Court of first instance, namely the Court of the Subordinate Judge, to find and determine what the estate of the deceased consisted of at the time of his death, what were the debts due by him and whether any and if so, which of the debts have been paid off and by whom, what were the lawful charges and expenses incurred in connexion with the estate of the deceased since his death including funeral expenses found duly to have been spent either for the deceased or for his wife and directed to be paid out of the estate under the will, what provisions should be made for the purpose of the charity directed in the will and what the residuary estate would consist of after making allowance for all these charities and expenses and deductions. If any of the parties should be found to have paid off any debt due by the deceased or incurred any expenses properly payable out of the estate credit will be given for such amounts to the party concerned. The residuary estate will be divisible into two moieties between the plaintiff and defendant 1. In determining what the estate consisted of, of the deceased testator on his death all items will be excluded which have been not only alienated during his lifetime but also in respect of which he became bound by any adjudications binding on him. In making a partition of the residuary estate between the plaintiff and defendant 1, the Court will have regard to the equitable doctrine if possible of assigning to the share of the alienor in such cases items of property which he is found to have effected an alienation of in respect of strangers who are parties to this suit. As this suit is really in the nature of an administration suit, the decree passed by the lower appellate Court will be deemed to have been set aside not only with regard to the parties in this appeal but also with respect to defendants who were parties to the suit but have not preferred any appeal themselves and in respect of all persons who claim from any of the parties to this suit.

14. As regards costs we are satisfied that the whole of this litigation has been caused by the manner in which the testator chose to make the document under discussion and nobody can really be blamed for this litigation and the expenses it has involved. We, therefore, direct that all costs of the plaintiff and the defendant 1 throughout be paid out of the estate and that the residuary estate be determined only after making an allowance for such costs. As the case has been remanded on our decision on a point of a preliminary nature, the Court-fee paid into this Court by the appellants will be refunded.

Ananthakrishna Aiyar, J.

15. The first question that arises for our decision in this case is whether Ex. A evidences a deed of settlement in the proper legal signification of the term or is only a will. No doubt when a party uses a particular nomenclature in connexion with a document that he executes, I think the Courts are bound to start with the presumption that he knows the law as every man is supposed to know the law, though no doubt, there is no evidence that the document was drafted under professional advice. Starting with the presumption that the executant purports to call the document that he executes by a particular name, the Court should examine the principal terms of the document in the same light. No doubt the nomenclature put by the parties is not in any way conclusive; nor is the circumstance that the document bears any stamp at all or a particular denomination of stamp or is registered in Book No. 1 instead of in some other book of the registration office, conclusive with reference to the view that the Court should ultimately take of the real nature of the transaction. No doubt in cases of ambiguous transactions these circumstances may afford help more or less material in enabling the Court to come to a proper conclusion. But if it should be contended-and I must mention that it was not contended in this case-that the name given to a document should be taken as conclusive, I am decidedly of opinion that that contention should be overruled. There have been cases where Courts have held that documents which parties called by a particular nomenclature were really and legally documents of some other kind.

16. For example, in Laltshmi v. Subramanya [1899] 12 Mad. 490 the parties called the document in question in that case a vyavasthapathra and the Court held that it was a will. In Thahur Ishri Singh v. Thakur Baldeo Singh [1884] 10 Cal. 792, the parties called the document a tamliknama (translated as a deed of assignment). The Privy Council held that it was really a will. Similarly in Din Tarini Debi v. Krishna Gopal Bahchi [1909] 36 Cal. 149 a document styled sambandha nirnaya pathra was ultimately decided by the Courts to be really a will. So that, while I hold that the name given to a document should not at all be taken to be conclusive of its real legal nature, I agree with the learned Judges who decided the case of Mahadeva Iyer v. Sankara Subramania Iyer : (1908)18MLJ450 that ordinarily and in the first instance Courts should start the inquiry on the assumption that the party really meant to effect a transaction of the kind which the name that he gives to the document would indicate.

17. Now, if the name given to a document is not conclusive, then it is really the nature of the contents of the document that would guide the Court in deciding as to the real legal nature of the document. Coming to the document in question in the present case, I note that the last sentence of the preamble runs in these terms:

I thought I should make some arrangement in respect of my properties after my lifetime and I have now made the following settlement of my properties.

18. Except that the word 'settlement' occurs there the other portions of the recital would seem to be not in any way inconsistent with its being a will, though to my mind it seems that the other portions of the recital accord more with its being a will than with its being a settlement. But I do not think that one is concluded by such a recital. Clauses 1 and 4 to my mind decidedly indicate that this particular document is a will. In para. 1, it is mentioned as follows:

The undermentioned properties worth Rs. 1,500 belonging to me should continue to be in my enjoyment as they are at present.

19. I emphasize the words ' as they are at present.' I think that these words probably mean should be in my enjoyment as an absolute owner.' I am strengthened in this inference by the next sentence occurring in the same paragraph:

After my lifetime, my wife should without making any alienations enjoy the said undermentioned properties now in existence as well as the properties to be acquired by me hereafter.

so that while giving his widow power to enjoy the properties without alienating the same, when he in the first sentence speaks of his own rights, he says that the properties should be in my enjoyment as they are at present.' Again the last words of para. 1 which I have just now quoted namely as well as the properties to be acquired by me hereafter' coupled with the words occuring in para. 4 namely:

After the lifetime of myself and my wife the aforesaid Pasungilia Pillai and Iasakkimuthu Pillai shall absolutely take pessession of my properties and enjoy the same in equal shares,

strengthen, I think, the inference which I propose to make. Again para. 4 in the paragraph where the executant says 'these two gentlemen shall absolutely take possession of my properties.' I note that he does not state, ' the properties that I now own or the undermentioned properties' expressions which he has used in connexion with something else in some other portion of this document. These indications also afford some help to come to the conclusion that this document is. essentially of a testamentary nature. I asked the learned vakil for the respondent whether he could point out any portion of the document which should necessarily be taken as indicating a settlement only and not a will. The learned Counsel was able to point only to para. 4 of this document and not to anything else. No doubt he referred to some allowance given to some lady in para. 2, but that is not a matter which has any connexion with these particular claims. As I find there are certain definite dispositions in this document which are of an ambulatory nature, and as I am not able to find any particular disposition which is intended to take-effect in praesenti, I am led to the view that the document is really a will, and not a settlement intended to take effect in praesenti. My learned brother has given other indications in the document in support of the same conclusion. I do not propose to travel over the same ground. For the reasons I have given, I agree with my learned brother that the document in this particular case, Ex. A,. should be treated as a will. I agree with him also on the question of value of improvements claimed by the appellant.


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