GEEVARGHESE GEEVARGHESE Vs. ISSAHAK GEORGE

JUDGEMENT

(1.) These three appeals relate to the same properties and are being fought between the same parties. The 1st defendant (I speak with reference to O. S. No. 106 of 1961) is the appellant and claims to be the mortgagee of the properties covered by S. A. No. 784 of 1967 and his wife, being the mortgagee of the properties covered by S. A. No. 785 of 1967 is the appellant therein. The 1st defendant is the donee under Ext. D7, to set aside which O. S. No. 106 of 1961 was brought, and S. A. No. 991 of 1966 relates to that suit. The properties covered by Ext. D7 gift were claimed by the donor, the 2nd defendant, to be her own and although she has died after filing her written statement, the 1st defendant sustains the same plea and stands to benefit by Ext. D7 being held valid. Himself and his wife being mortgagees in possession, resisted the actions for redemption brought by the plaintiff, on the ground that the plaintiff is not the owner of the equity of redemption under the will, Ext. P1 (original is Ext. D3).

(2.) Ext. D3 was jointly executed by the husband and wife, Daniel and the 2nd defendant, and at the threshold, one has to consider whether there are any dispositive words used in the deed so as to convey the rights covered by it. While there is considerable force in the contention of the appellant that there are no such words, I am not inclined to frustrate the purpose of Ext. D3 unless I am compelled to do so by the total lack of the necessary words of disposition. The following excerpt from Ext. D3 is useful to gather the intention of the executants.

(3.) If, as I have hesitantly held, there are operative words of transfer, the further question arises as to the nature of the deed. The Trial Court held it to be a gift but in appeal it was held to be a will. Full freedom has been given to dispose of the properties as he liked during his lifetime to the first executant and rights in others would arise only on his death. No other party who is supposed to derive rights has joined the execution of the document and no words of vesting of interest in praesenti in others are discernible. The result is that the construction of the learned District Judge that Ext. D3 is a will has to be preferred. I do so.