MUNIAMMAL Vs. VENKITAMMAL

JUDGEMENT

(1.) THREE questions, (1) Whether Ex.A-1 had the character of a testament alone a deed of settlement of rights and interests in the property of the executrix for life her death upon the plaintiffs and the defendants 3 to 5 and the heirs and representative of the deceased daughter of the executrix (defendants 6 to 9)" in O.S.No.156 of 1978 of the court of Subordinate Judge, Coimbatore, (2) whether the deed of cancellation (Ex.A-2) is valid and legal in the sense that it cancelled the rights and interests plaintiffs and the defendants 3 to 9 in the suit and (3) whether the suit filed beyond period of three years for a declaration that Ex.A-2 is null and void is maintainable, our consideration in this Letters Patent Appeal.

(2.) BEFORE we enter into the examination on the above questions, we may state briefly facts. It is the admitted case of the parties that the site or the land in dispute was name of the first defendant acquired under two documents, one dated 19.8.1931 and the other dated 3.6.1932 (Ex.B-2). According to the plaintiffs, the land was acquired the first defendant out of her own funds and the buildings thereon were also put up On 30.11.1970 as per Ex.A-1, a document purported to be a settlement deed was by her in favour of the plaintiffs and the defendants 3 to 5 in respect of the suit property. 17.3.1971, she (first defendant) executed a deed as per Ex.A-2 cancelling Ex.A 7.4.1971, the first defendant executed a fresh settlement deed in favour of the second defendant husband) in respect of the plaintiffs and thus they filed the instant suit for a declaration the alleged cancellation deed dated 17.3.1971 is null and void. Although the suit as framed sought declaration only, the plaintiffs preferred an amendment to the plaint stage of the appeal in the court below seeking for the declaration as above that they entitled to vested remainder in the plaint schedule property along with the defendants 5. as per the settlement deed (Ex.A-1).

(3.) COMING to Ex.A-1, one has to see what this document does? It is not unknown that absolute owner of a property decides either to leave a testament and convey in future his her right either for consideration or subject to the laws that govern such transactions. In case of a testament or a will, the conveyance is postponed until the death of the testator and devolves only when a probate is granted or letters of administration. In the latter case, however, it is more in the nature of recognition of a right and the right postponed for future date to accrue, but conveyance completed by way of a settlement or a family arrangement. (There is hardly any difference in the relief of declaration originally asked in the suit and the relief asked for in the amendment petition in the sense that in case validity of Ex.A-1 is upheld it will give nothing to the plaintiffs and other beneficiaries, defendants in the suit) except the vested remainder, the right which they shall get only the life time of the first defendant. The court below has treated the recitals in Ex.A the first defendant recognised who were the beneficiaries of her estate. There can be dispute that her exercise of disposition was not confined to her life alone. She held property absolutely and so she could encumber the property either absolutely or for life postpone the encumbrance to operate on a future date. That has always been the thrust we say so with respect that this view is not inconsistent with the view expressed by a of this Court Venkatachalam Chetty v. Govindasamy Naicker, (1924)46 M.L.J. 288. why we hold that Ex.A-1 has been misconstrued as a will. It is a deed conveying interests which the first defendant possessed in the property to the plaintiffs and the defendants. The approach taken by the court below thus that Ex.A-1 has got ignored and Ex.A-1 and the settlement deed dated 7.4.1971 executed by the first defendant in favour of the second defendant would survive is thus vitiated to the extent that can survive only if the first defendant still possessed such interests in the property that could cancel the transfer in favour of the plaintiff 's and some of the defendants under and the settlement deed dated 7.4.1971 would survive only when Ex.A-2 is held to be.