PASUNGILIA PILLAI Vs. ISAKKIMUTHU PILLAI

JUDGEMENT

(1.) The question that has been argued in these second appeals bears almost exclusively on the construction of a document bearing date 25 June 1908 and marked as Ex. A in the case. The question is whether, having regard to the terms of the document and the various clauses therein, it must be held as a document made by the executant to have operation inter vivos and immediately and, therefore, irrevocable in its nature, or whether it was of an ambulatory character being merely a testamentary document and therefore revocable. We heard arguments at great length on both sides. We have also carefully considered all the terms and clauses in the document, the original of which is in the Tamil language and character. It may at once be stated that the solution of the question is not entirely free from difficulty, but at the same time we can only do the best and arrive at the conclusion that appears to be the most reasonable, having regard not only to the (terms of the document, but to all the circumstances in which the document was brought about. After having carefully and anxiously considered the arguments on both sides, we have come to the conclusion that the document is of a testamentary character. We are aware that in this respect we differ from the conclusion arrived at by both the lower Courts; but in arriving at the conclusion we have not omitted to take into consideration any matter to which our attention has been drawn by the two learned gentlemen who argued the case on behalf of the respondents or any of the arguments put forward by them.

(2.) The first thing to be observed in connexion with such questions is undoubtedly that the entire document should be considered and not merely particular words, terms, or even clauses. No doubt this has to be done in the light of the surrounding circumstances to which we shall presently advert. With regard to such questions the argument has often been put forward in this case as well as similar cases which have come up before Courts of law that the name by which the instrument is called by the maker must be borne in mind and should not lightly be brushed aside. That is undoubtedly so. With regard to this Mr. Varadachariar has called our attention to the observations of the learned Judges in the case of Mahadeva Iyer v. Sankara Subramania Iyer [1908] 18 M. L. J. 450. There the learned Judges have indicated that unless there were something specially in the document which compels the Court to adopt or come to the conclusion that it is substantially a document of a different kind to that which it calls itself by, no such conclusion should be accepted. That would undoubtedly be so. In this case it is no doubt true that the document is called by the maker a deed of settlement. As against this there is, however, this other feature or circumstance, namely that it is not a deed executed by the maker in favour of any particular person. Though no doubt the fact that it is called a deed of settlement has to be borne in mind, at the same time the particular feature in this document that it is not and does not purport to be executed in favour of any particular individual cannot be neglected from consideration and must be borne in mind in arriving at a conclusion. It is common knowledge that nearly all, if not all, documents probably without a single exception, executed by persons with the intention that they should come into operation immediately or documents containing dispositions made or purported to be made inter vivos always happen to be in favour of certain, particular, defined persons. Even a will-I have seen numerous cases-often comes to be executed probably in accordance with this practice in favour of some particular individual. But generally speaking it is a testamentary document that comes to be made not in favour of particular persons, but merely for the purpose of effecting the disposition therein contained.

(3.) The next consideration with regard to this document has reference to the use of the word "now" or "at once" and other words which are undoubtedly apt words for the purpose of indicating a document intended to take effect immediately, or an instrument by which a disposition of property inter vivos is purported. No doubt if the use of such words - and such words are used in two or three places in the document- stood alone that would lend considerable strength and support to the view taken by the lower Courts. But there is as against this in this document the distinct expression that the dispositions and directions contemplated by this document should take effect only after the lifetime of the maker. It is translated in the translation made by the officer of the Court as follows: I thought that I should make some arrangement in respect of my properties after my life-time.