KUNCHIYAN JANAKY Vs. MATHEVI NACHI

JUDGEMENT

(1.) THE 1st defendant is the appellant. THE properties described in the plaint schedule originally belonged to one Kali Mathevi and sons, Raman Kesavan and the 2nd defendant. THEy executed a Settlement deed Ext. I or A dated 28. 3. 1100. According to the plaintiff, this deed conveyed title to her over the plaint schedule properties, subject to a life interest reserved in favour of the executants. Raman Kesavan died in the year 1107 and after his death, Kali Mathevi and the 2nd defendant executed a deed of cancellation Ext. II dated 16. 12. 1108, cancelling Ext. I. On the same day, they sold under Ext. III, the properties to the 1st defendant who is the wife of the 2nd defendant. Kali mathevi died on 12. 9. 1119. THE plaintiff's case is that she performed the funeral rites of Raman Kesavan and Kali Mathevi as stipulated in Ext. I. After kali Mathevi's death, the 1st defendant attempted to take the yield from the properties and the plaintiff filed a criminal complaint against her. It was during the pendency of the same that the plaintiff came to know of Exts. II and iii. She accordingly instituted this suit for cancellation of Exts. II and III on the ground that Kali Mathevi and the 2nd defendant were not competent to execute the deeds, in view of Ext. I. THE 2nd defendant died during the course of the suit and defendants 1 and 3 to 7 were impleaded as his heirs. THE 1st defendant resisted the suit contending that Ext. I was not a gift but was only a will and that even if it was a gift it was not accepted by the plaintiff and it had not come into effect. THE trial court upheld the defendant's contentions and dismissed the suit holding that Ext. I was not accepted by the plaintiff. THE plaintiff's appeal to the District Court was allowed reversing the decree of the trial court and decreeing the suit as prayed for.

(2.) THE first point raised on behalf of the appellant is that Ext. I is a Will and not a transfer inter vivos. Though this contention was raised in the written statement, it does not appear to have been pressed in the courts below. However as the point was raised in the written statement and was argued at some length, the same may be considered. Various decisions were cited by both sides as to the construction of such deeds. It has to be stated that these decisions are helpful only to show the grounds which appealed to courts in construing such documents one way or other. THE question whether a certain document is testamentary or a transfer inter vivos depends on the intention gathered from the document itself in the light of the surrounding circumstances. Some of the tests which have been applied by courts are, the name by which a document is styled, the registration of it, the reservation of a power of revocation, the use of the present and future tense, possession of the deed and possession of the properties. THE decision of these cases depended on the construction of the particular documents in each case.

(3.) RELIANCE was also placed on the fact that possession of the properties, the right to take the yield and the right to get mutation of names were not given to the plaintiff straightaway. The fact that possession of the original deed Ext. I was with the 1st defendant was also stressed and it was contended that it could not have been handed over to the plaintiff.