VENKATASUBRAMANIYA IYER Vs. SRINIVASA IYER

JUDGEMENT

(1.) The main point for decision in this second appeal is whether the document Ex. C is a settlement or a will. A question of that kind is one that has to be decided primarily on the terms of the document itself. It was executed by a widow, the mother of the plaintiff, and is styled a settlement in favour of the plaintiff. It recites certain family arrangements by which certain moveables are divided between the widow and the plaintiff, and the widow retains certain immovable property for herself. It deals with property to an extent of over three velis left to her by her husband under his will absolutely and recites that, in respect of that on account of the request made to her by her son for the benefit of his minor son, the present defendant and out of favour to himself and in consideration of the arrangement that he would not during her lifetime encumber or alienate the rights that would come to him in the property after her death, she on her side undertakes to meet all her own expenses till her death out of the income and not to alienate the property. Thus the document prohibits both parties from alienating the rights retained or given thereby. It directs that after the widow's death, the plaintiff and his heirs shall enjoy the property with all absolute rights. It further provides that if the widow fails to pay the kist on the property, the plaintiff shall pay and may recover from her out of her income, and that the pattah for the property shall be transferred to the plaintiff. The document is styled a settlement and registered.

(2.) It is contended by the appellant that the document is a will since the only operative portion of it is that which bequeaths the property to the plaintiff and his heirs after the death of the widow. Both the lower Courts have rejected this contention and held the document to be a settlement. I think it is clear from the tenor of the document that it is not a will. It mentions considerable property which is not disposed of by it at all. It does more than bequeath property to the plaintiff after the widow's death. He obtains by it certain rights in presenti, for example, the right as covenanted with him that the widow will not alienate the property during her lifetime. He himself is given the right to recover the unpaid kists from her income and to have the pattah transferred to his name. There is no language indicating that the widow was retaining with her any power to revoke the document, while the surrender of her right to alienate during her lifetime indicates that she did not reserve any power to revoke. These points combined with the facts that the parties intended the document to be a settlement and styled it as such and that it was handed over to the plaintiff and not retained with the widow are sufficient to indicate that the widow was merely retaining a life-interest in the property and was transferring to the plaintiff the vested remainder. It is not of much help to refer to reported rulings in a case of this kind when the decision has to be based on the wording of a particular document, but documents of very similar wordings were held to be settlements and not wills in Rajammal V/s. Authiammal [1910] 33 Mad. 304 and in Gangaraju v. Somanna . These come nearer to the present case than those in Venkatachala Chetty v. Govindaswamy Naicker A.I.R. 1924 Mad. 605, Thakur Ishri Singh V/s. Baldas Singh [1884] 10 Cal. 792 quoted by the appellant. I can see no ground for holding that the lower appellate Court made any error of law in regarding Ex. C. on the face of it as a settlement and not a will.

(3.) It is further contended, however, that the subsequent transactions between the parties indicate that Ex. C. was not treated as a fixed settlement but rather as an arrangement which could be, and was, modified, and therefore must be regarded in the light of a revocable covenant. I am not satisfied that this is a legitimate method of interpreting the document, especially as these other transactions are not contemporaneous with Ex. C; but I will deal with the point, merely premising that one must prima facie, if possible, interpret the succeeding documents consistently with Ex. C. being a settlement, and the contention now put forward will have no force unless they cannot in any way be regarded as compatible with Ex. C. being a settlement. (Here the judgment considered subsequent transactions between the parties and concluding that they were compatible with Ex. C being a settlement proceeded). I am therefore in full agreement with the lower Court and the appeal must be dismissed and is dismissed with costs.