AMMUKUTTY AMMA Vs. KRISHNAN NAIR

JUDGEMENT

(1.) In this Second Appeal by the 1st defendant, the only point urged on her behalf by her learned counsel was, that on the true construction of Ext. I, it is a will and not, as claimed by the plaintiff respondent, a deed of settlement, by which dispositions were made with respect to the suit property. The learned Munsiff held Ext. I to be a will, and therefore capable of revocation, while the learned District Judge on appeal, held it to be a deed of settlement. I am clearly of opinion, that the learned Judge was right in his conclusion.

(2.) The document is styled a Nischayapatram, and not a will or Maranasasanam, as in the Madras case cited before me in Kotayya v. Varadhamma, AIR 1930 Mad. 744 . The view was no doubt expressed in Govinda Menon v. Kochu Kunhi Amma XXV Cochin Law Reports 441, that the term Nichayapatram is not one of art, as the term theer or panayam, etc., is, and that it may mean a will or a settlement; this only implies, that the nomenclature of a document is not conclusive. At the same time it is a pointer to the intention of the party in entering into the transaction. It is also not without importance that consistently with this, Ext. I was registered as a deed of settlement and not as a will in book IV prescribed by the Cochin Registration Act; as held in Kunchiyan Janaki v. Mathevi Nochi, 1956 KLT 518 , the registration of the document as a deed of settlement and not as a will, has a bearing on its interpretation. There is a clear and specific provision in the document, that it is irrevocable. This is a very strong feature which distinguishes it from a will. In Krishna v. Sundarasiva AIR 1931 PC 109 and Sagore Chandra Mandal v. Digambar Mondal XIV Calcutta Weekly Notes 174, relied on by counsel for the 1st defendant, the absence of a provision in the document creating an interest in presenti, was taken to be an indication that it is a will and not a gift or settlement. But there are ample provisions in Ext. I by which rights were created to come into existence immediately. The plaintiff was directed to maintain the executant of Ext. I who was his father even from the date of the document, to redeem a mortgage standing on the property, and to enjoy the property in conjunction with him. In case, the father was unable to enjoy the property, the plaintiff was authorised to enjoy it himself. The fathers power of alienation was cut down and was restricted to a power jointly exercisable by both of them and it was even declared, that no alienation by the father alone, would be valid. These are certainly rights, which were created in presenti, rights which sprang into existence immediately upon the executant of Ext. I and in the fathers life-time. There was also a provision, that if the plaintiff predeceased his father, the rights vested in the former would revert to the latter; this certainly presupposes, that rights whatever they were had already passed under the document to the plaintiff.

(3.) As against these, the only provision in Ext. I which might remotely support the 1st defendants contention, is that which prescribed, that all the properties which the father died possessed of, not merely the suit property would devolve on the plaintiff after his life-time; surely the attempt of the learned counsel for the plaintiff to interpret this provision with reference to the letter part of this provision that the intention was only that the plaintiff may enjoy the suit property absolutely after the fathers life-time, cannot succeed. Granting that the provision, is more in keeping with a will than with a settlement, I consider that it cannot prevail over the other considerations which have been adverted to. I therefore come to the conclusion, that Ext. 1 is a deed of settlement, and not a will.