P VENKATACHALAM CHETTY Vs. PSGOVINDASWAMI NAICKER

JUDGEMENT

(1.) This is an appeal from a Judgment of Kumaraswami Sastri, J. in which he found that a document dated November 10th, 1913, described as a gift deed was in fact a will. He found that it was duly executed and declined to go into the question whether certain property which passed under that document had been disposed of between the date of the will and the date of the death of the testatrix. There was ample evidence as to the execution of the document, three witnesses being called who swore that they saw the testatrix affix her mark in their presence. He believed that evidence and I can find no reason for suggesting that that decision is wrong. The (question whether the document is a will or a gift is more difficult. It is contended that it is in effect a deed of gift operating in present and not a will at all, and that as it is a deed of gift in respect of immoveable property which has not been registered, it is void and has no effect. A will is defined in Section 3 of the. Probate and Administration Act (V of 1881), as " the legal declaration of the intentions of the testator with respect to his property, which he desires to be carried into effect after his death. " This document which, as I have said, is described as a gift deed purports to dispose of part of a house. The relevant portions of the document are as follows: "You shall yourself after my life-time use and enjoy the two rooms built on the ground of the house Municipal No. 11... I shall myself enjoy the rent in respect of those two rooms as long as I may be alive. You shall yourself use and enjoy after my life-time that rent and that ground and the two rooms from son to grandson and so on in succession with power to gift, mortgage, exchange and sale. No one has any right to or interest in those rooms. To this effect is the gift deed document executed and given in respect of the aforesaid two rooms and their grounds. " In form it is a deed of gift and not a will, but in fact it is a declaration of the intentions of the donor with respect to her property which she desires to be carried into effect after her death, because there is no disposal of any immediate rights of possession or any immediate interest in the property. The fact that the document purports to reserve a life interest in the property to the donor is an argument against its being a will, but as was pointed out by the Privy Council in Thakur Ishri Singh V/s. Thakur Baldeo Singh ILR 10 Cal 792, 802, no great attention need be paid to that, because it is a frequent thing in this country to find documents which are in fact wills in terms making clear that the person disposing of the property reserves a life or immediate interest in the property. The various things to consider in arriving at a decision as to whether a document is a will or a gift are discussed in that Judgment in page 800. The document before their Lordships was very different to this, but there were certain matters in common between the two which were relied upon by their Lordships, and, in particular, the fact that the document in that case did not purport to give anybody to any possessory or present interest until the death of the donor. A clear instance of a document which should be held to be a gift or a deed of settlement, and not a will, is to be found in the case of Rajammal V/s. Anthiammal (1909) ILR 33 M 304 : 20 MLJ 519, where the donor gave to his wife and daughter-in-law, the latter of whom was claiming maintenance, some property and provided that that property during his life-time should be held by the donees for him, that they should receive Rs. 5 per month until his death and that after his death they should have the property absolutely. It was held that that was a deed of gift and not a will. We have to consider the proper interpretation of this document, and I have come to the conclusion that it is really a will and not a deed of gift, and I mainly base that view on the fact that the donee gets nothing until the death of the donor. It is true that the document was handed over to the donee, but I find nothing inconsistent with its being a will in that fact.

(2.) Lastly it is contended that the legacy granted by this will has been redeemed by reason of the property having been sold after the date of the will to the defendant. I am not clear on the judgment whether the learned Judge intended to give any decision on that point. It is said that it is covered by the sale deed, Ex. II, whereby the testatrix sold certain property to the defendant. I am not satisfied that it is covered by it; in fact on an examination of the documents and the further evidence, it seems clear that it is not. But that is a matter which it is not necessary to decide now. If and when the legatee tries to obtain possession of the property, there is nothing in this Judgment or in the Judgment of the Court below to prevent the defendant, if so advised, from setting up that this legacy has been in fact redeemed.

(3.) The appeal will be dismissed with costs. Waller, J.