(GARAPATI) GANGARAJU Vs. PENDYALA SOMANNA

JUDGEMENT

(1.) The plaintiff in this case is the daughter's son of one Kristnamma and the 2nd defendant is his sons's son. The 1 defendant is the 2nd defendant's father-in-law. The 1 defendant brought a suit upon a promissory note against Kristnamma and the 2nd defendant and attached the family property before judgment. Subsequently, but during the pendency of the suit, Kristnamma died. The 2nd defendant was brought on record as his legal representative and a decree was passed against the family property in his hands. In the course of the execution proceedings the plaintiff filed a claim petition asserting his right to a portion of the property on the strength of a conveyance deed executed by Kristnamma on 27 February 1917. The first question arising in this second appeal is whether the said deed is a Will or a conveyance reserving a life-estate.

(2.) The document on the face of it is of a non-testamentary character. It was so stamped and so registered. It is called a dakal dastaveju, which means a conveyance or settlement deed. It is true that a document which is not a Will in form, may yet be a Will in substance and effect; but as was held in Mahadeva Iyer V/s. Sankarasubramania Iyer [1908] 18 M. L. J. 450. if an instrument is a deed in form, in order to hold that it is testamentary or in the nature of a Will, there must be something very special in the case; and unless there are circumstances which compel the Court to treat an instrument in the form of a deed as a Will, the Court will not do so. The leading argument of the appellant is that the document created no estate in prsenti. A more literal translation of the fourth sentence in para. 2 of the document is: Therefore, on account of my affection for you, I have arranged that after my death the property shall belong to you.

(3.) It is certainly very difficult to derive from these words any immediate interest created in favour of the plaintiff. But the line between a Will and a conveyance reserving a life estate is a fine one, and it would be hard to define in some cases where the document has been held to be non-testamentary, wherein the personal interest which was transferred consists. A more easily applied test is that of revocability. There is nothing in the suit document to show that Kristnamma reserved the right to revoke it. On the contrary there is an undertaking not to alienate any part of the property during his lifetime. I consider that this is equivalent to a promise not to revoke the instrument, because if the executant intended to reserve that right he could not consistently have parted with the right to alienate. The same intention to give finality to the deposition is suggested by Ex. 3, which is a conveyance of a portion of the property executed jointly by Kristnamma and the plaintiff. The fact that the plaintiff was required to join is significant, and in the schedule the property is described as that which was conveyed by Kristnamma to him. This document seems also to lend some colour to the view that an immediate conveyance of interest was intended in Ex. F. I think that Kristnamma had the intention not to revoke the conveyance and this has always been regarded as one of the most important tests.