Andhra Pradesh High Court - Amravati
Kanala Srinivasa Reddy vs Kanala Subba Reddy on 17 October, 2022
THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL Nos.781 of 2019 and 4 of 2020
COMMON JUDGMENT:
SECOND APPEAL No.781 of 2019
The defendants are the appellants in above second
appeal. The above second appeal is filed aggrieved by the
judgment and decree dated 09.09.2019 in A.S.No.183 of 2014
on the file of II Additional District Judge, Guntur, reversing
the judgment and decree dated 11.11.2014 in O.S.No.68 of
2003 on the file of Senior Civil Judge, Bapatla.
2. For the sake of convenience, the parties to this
judgment are referred to as per their array in O.S.No.68 of
2003.
3. Suit O.S.No.68 of 2003 was filed initially by deceased
sole plaintiff Kanala Subba Reddy, died pending suit and his
wife was brought on record as 2nd plaintiff in I.A.No.449 of
2006 dated 02.11.2007. The relief sought for in the suit is to
declare that the plaintiffs are the absolute owners of plaint
schedule property as per the settlement deed dated
12.07.2000 executed by late Kanala Appireddy in favour of 1st
2
plaintiff and the said settlement deed is binding on the 1st
defendant and for consequential permanent injunction etc.
4. (a) The averments in the plaint, in brief, are that, 1st
plaintiff, Basivireddy and Appireddy are sons of Parasurama
Reddy. Basivireddy migrated family to Krishjamrajuvaripalem
in Prakasam District and has been living there. Appireddy
and his wife are living at Dandamudi with 1st plaintiff and his
family. The 1st defendant is the grandson of Basivireddy.
Appireddy married Punnamma and they had no issues.
Punnamma pre-deceased Appireddy and plaintiffs' family
looked after Appireddy. In or about 1996, 1st defendant came
to Dandamudi and lived for some time with plaintiffs' family.
Appireddy died on 18.06.2001 by executing a registered
settlement deed dated 12.07.2000 in favour of 1st plaintiff
reserving life interest for him and vested remainder to 1st
plaintiff.
(b) It was further stated that 1st defendant obtained
settlement deed dated 24.03.1999 by playing fraud and
misrepresentation and it was never acted upon. Appireddy
3
himself revoked the settlement deed dated 24.03.1999 and it
is an incomplete one.
(c) After execution of settlement deed in favour of 1st
plaintiff, late Appireddy delivered title deeds to 1st plaintiff
along with settlement deed. When 1st defendant attempted to
interfere with the possession and enjoyment of 1st plaintiff, he
filed suit O.S.No.156 of 2001 on the file of Junior Civil Judge,
Ponnur against the 1st defendant for injunction and later at
the instance of elders, it was withdrawn. Since the 1st
defendant started questioning right and possession of 1st
plaintiff, he was constrained to file suit for the relief stated
supra.
5. (a) 1st defendant filed written statement and contended
inter alia that Appireddy and Punnamma had no issues. 1st
plaintiff had two sons and two daughters. Late Appireddy
and his wife sought the help of 1st defendant, who is no other
than grandson of elder brother Basivireddy; that 1st
defendant was fostered by them; that out of love and affection
towards 1st defendant, two registered settlement deeds dated
16.07.1997 and 24.03.1999 were executed in respect of
4
plaint schedule property creating vested remainder in favour
of 1st defendant and after life time of donor and his wife as
regards item No.1 of plaint schedule property; that vested
remainder to 1st defendant as regards item Nos.2 to 4 of
plaint schedule property and the bequeaths were accepted by
1st defendant.
(b) It was further pleaded that 1st defendant opted to
marry the girl of his native village to the dislike of late
Appireddy and the marriage was solemnized on 16.05.2000;
that disputes arose between 1st defendant and late Appireddy
and 1st defendant was made to leave the house of Appireddy
at Dandamudi village; that taking advantage, 1st plaintiff
prevailed upon Appireddy and got executed registered
cancellation deeds dated 12.07.2000 and got executed
registered settlement deed dated 12.07.2000 in favour of 1st
plaintiff in respect of plaint schedule property. 1st defendant
in fact issued notice dated 24.07.2000 to late Appireddy, 1st
plaintiff and his two sons not to indulge in any fake or false
transactions.
(c) 1st plaintiff filed suit O.S.No.156 of 2001 for
permanent injunction against the 1st defendant on the foot of
5
registered settlement deed dated 12.07.2000 and sought for
interim injunction in I.A.No.292 of 2001, but no injunction
was granted, however a receiver was appointed to take
possession of the property. 1st plaintiff filed C.M.A.No.5 of
2002 and no order was passed in the said CMA and hence,
suit O.S.No.156 of 2001 was not pressed as also C.M.A.No.5
of 2002 by filing memos.
(d) It was further contended that the alleged
compromise between the parties is not true and correct. 1st
defendant being absolute owner of the properties by virtue of
two registered settlement deeds dated 16.07.1997 and
24.03.1999, on the death of settlor Appireedy got into
possession of plaint schedule property to the knowledge of
one and all. In view of litigation and troubles given by the 1st
plaintiff, 1st defendant sold away item No.1 of plaint schedule
property to Bhavanam Nagireddy (3rd defendant); item No.2 of
plaint schedule property to Gogireddy Prabhakara Reddy (2nd
defendant); item No.3 of plaint schedule property to Kanala
Srinivasa Reddy (4th defendant); item No.4 of plaint schedule
property to Bonthu Pushpalatha (6th defendant) and
Gogireddy Padmavathi (5th defendant) under registered sale
6
deeds dated 10.07.2003 and handed over possession and
documents to them. The said vendees came into possession
of respective properties and are enjoying the same. 1st
defendant also stated that registered settlement deeds dated
16.07.1997 and 24.03.1999 since were acted upon, cannot
be revoked unilaterally and eventually prayed to dismiss the
suit.
6. Defendants 2 to 6, purchasers, were brought on record
as per the orders in I.A.Nos.137 to 141 of 2004 dated
14.07.2004.
7. Defendants 2 to 6 filed separate written statements and
pleaded with regard to their purchase of properties and their
possession over the same and they also prayed the Court to
dismiss the suit.
8. Pending suit as stated supra, 1st plaintiff died and 2nd
plaintiff was brought on record basing on registered Will
dated 18.01.2006 executed by 1st plaintiff. Additional written
statements were filed by 1st defendant and defendants 2 to 6
denying the genuineness of registered Will dated 18.01.2006.
7
9. Basing on the pleadings, trial court framed the
following issues:
(1) Whether the suit is bad for non-joinder of necessary
party?
(2) Whether the settlement deed dated 12.07.2000 is
true and valid?
(3) Whether the plaintiff is entitled for declaration as
the absolute owner of the plaint schedule property?
(4) Whether the plaintiff is entitled for permanent
injunction?
(5) To what relief?
Following additional issue was framed on 07.12.2004:
Whether D-2 to D-6 are bonafide purchasers?
10. During the trial, 2nd plaintiff examined herself as P.W.1
and got examined P.Ws.2 to 6. Exs.A-1 to A-16 were marked.
On behalf of defendants, D.Ws.1 to 10 were examined and
Exs.B-1 to B-28 were marked.
11. Trial Court decreed suit O.S.No.68 of 2003 by judgment
dated 04.12.2009. Defendants filed A.S.No.524 of 2009 on
the file of II Additional District Judge, Guntur. Lower
Appellate Court partly allowed the appeal by judgment and
decree dated 11.04.2011 and remanded the suit to the trial
8
Court with a direction to give opportunity to both parties to
adduce evidence on the additional issues framed. The
findings of the trial Court on the issues already framed and
answered, were set aside. The issues framed are:
(1) Whether late Kanala Appireddy has got a right to
cancel the registered gift deeds executed by him in
favour of the first defendant which are dated
16.07.1997 and 24.03.1999?
(2) Whether the 1st defendant accepted and acted upon
the gifts covered under documents dated
16.07.1997 and 24.03.1999?
(3) Whether Kanala Appireddy executed two registered
gift deeds dated 16.07.1997 and 24.03.1999 under
misrepresentation or fraud by the 1st defendant?
(4) Whether the 1st plaintiff executed the Will of the
year 2006 in favour of 2nd plaintiff?
12. After remand, both parties' adduced evidence and the
trial Court vide judgment and decree dated 11.11.2014
dismissed the suit with costs. Aggrieved by the same, plaintiff
filed appeal A.S.No.183 of 2014 on the file of II Additional
District Judge, Guntur. Lower appellate Court allowed the
appeal by setting aside the judgment and decree of trial Court
9
dated 11.11.2014. Aggrieved by the same, the present second
appeal is filed.
13. Pending appeal, 3rd respondent died and his legal
representatives were brought on record as appellant Nos.7
and 8.
14. S.A.No.781 of 2019 was admitted on 07.01.2020 and
the following substantial questions of law were framed:
(1) Whether the Court below committed a grave error in
making out a case for the plaintiffs and holding that
the settlement deeds in question are Will deeds
though there is no foundation in the pleadings in
the above regard? And, if so, whether the decree
and judgment impugned are vitiated and are liable
to be set aside?
(2) Whether the appreciation of facts, law and evidence
(both oral and documentary) by the Court below is
perverse?
(3) Whether the Court below committed a grave error in
making out a case, which is not pleaded by the
plaintiffs, and placing reliance on the evidence,
which is unsupported by pleadings, contrary to the
settled principle that any amount of evidence
without a pleading shall not be looked into? And, if
so, whether the decree and judgment, which are
impugned, are liable to be set aside?
15. Pending second appeal, 7th appellant died and his legal
representatives were brought on record as appellants 9 to 11
in I.A.No.2 of 2021 dated 29.07.2021.
SECOND APPEAL No.4 of 2020
16. Plaintiff in the suit filed the above second appeal. The
above second appeal is filed aggrieved by the judgment and
decree dated 09.09.2019 in A.S.No.184 of 2014 on the file of
II Additional District Judge, Guntur, reversing the judgment
and decree dated 11.11.2014 in O.S.No.206 of 2011 on the
file of Senior Civil Judge, Bapatla.
17. Plaintiff in the above suit is 4th defendant in suit
O.S.No.68 of 2003.
18. Suit O.S.No.206 of 2011 was filed by the plaintiff
against the defendants for recovery of possession of suit
schedule property and, also for past mesne profits etc.
19. The averments, in brief, in the plaint are that plaintiff is
the absolute owner of the plaint schedule property; that
plaintiff purchased the same under a registered sale deed
dated 09.07.2003 for a valuable consideration; that vendor
got the property by virtue of registered settlement deed dated
24.03.1999 executed by his junior paternal grandfather by
name K.Appireddy; that misunderstandings arose between
the settlee K.Appireddy and vendor of the plaintiff regarding
the marriage of plaintiff; that younger brother of K.Appireddy
i.e. 1st defendant herein got the registered settlement deed
cancelled on 12.07.2000 and obtained registered settlement
deed dated 12.07.2000 in his favour; after death of Appireddy
1st defendant put forward his rival claim on the foot of
registered settlement deed dated 12.07.2000 and filed suit
O.S.No.156 of 2001 on the file of Junior Civil Judge, Ponnur;
that I.A.No.692 of 2001 was filed for grant of ad-interim
injunction; however learned Junior Civil Judge, Ponnur
appointed an advocate receiver on 11.02.2002; that he filed
C.M.A.No.5 of 2002 on the file of Senior Civil Judge, Bapatla
and sought for stay by filing I.A.No.384 of 2002 and
temporary injunction by filing I.A.No.425 of 2002; that by a
common order dated 08.04.2002 learned Senior Civil Judge
allowed the 1st defendant to continue in possession of item
No.4 of thatched house on payment of Rs.400/- per month;
that 1st defendant (plaintiff in O.S.No.156 of 2001) did not
prosecute proceedings further and walked out of litigation;
that the vendor of plaintiff pursuant to sale deed, delivered
possession to the plaintiff; that plaintiff effected repairs to
house for Gruhapravesam and moving between Repalle,
where his wife is working as teacher, and Dandamudi where
property is situated; that during the midnight of 15.07.2003
taking advantage of absence of plaintiff, defendants 1 and 2
trespassed into the plaint schedule property and hence, filed
the suit for recovery of possession of property.
20. Defendants 1 and 2 filed written statement and
contended interalia that neither the plaintiff nor his vendor
was in possession of the property; that suit O.S.No.68 of
2003 on the file of Senior Civil Judge, Bapatla was filed for
declaration of title, wherein plaint schedule property is part of
the suit schedule property; that defendants are real owners
and have been in possession of plaint schedule property and
prayed the Court to dismiss the suit.
21. Pending the suit, 1st defendant died and his legal
representatives were brought on record as defendants 3 & 4.
22. Basing on the pleadings, trial court framed the
following issues:
(1) Whether the plaintiff is owner and possessor of the
suit schedule property?
(2) Whether the defendants came into possession of the
suit schedule property as alleged by the plaintiff is
true?
(3) Whether the contest of the defendants is true?
(4) Whether the plaintiff is entitled for possession of the
plaint schedule property, past profits, mense profits
as prayed for?
(5) To what relief?
23. During the trial, plaintiff examined himself as P.W.1
and got examined P.W.2. Exs.A-1 to A-4 were marked. On
behalf of defendants, 3rd defendant examined herself as
D.W.1 and no documents were marked.
24. Trial Court by judgment dated 11.11.2014 decreed the
suit with costs directing the defendants 2 to 4 to deliver
possession of plaint schedule property within two months.
Trial Court further directed defendants 2 to 4 to pay an
amount of Rs.2,500/- towards past profits. Trial Court also
came to conclusion that mesne profits shall be determined on
separate application.
25. Aggrieved by the same, defendants filed appeal
A.S.No.184 of 2014 on the file of II Additional District Judge,
Guntur. Lower Appellate Court, being final fact finding Court
misinterpreting and misreading Ex.A-4, allowed the appeal
vide judgment and decree dated 09.09.2019. Assailing the
same, the present second appeal is filed.
26. S.A.No.4 of 2020 was admitted on 07.01.2020 and the
following substantial questions of law were framed:
(1) Whether the Court below committed a grave error in
construing exhibit A4 settlement deed as a Will
without a foundation in the pleadings of the
plaintiffs and in making out a case for the plaintiffs
which is not pleaded? And, if so, whether the decree
and judgment, which are impugned, are liable to be
set aside?
(2) Whether the appreciation of facts and evidence (both
oral & documentary) by the Court below is
perverse? And, if so, whether the decree &
judgment impugned are liable to be set aside?
27. Heard Sri Raja Reddy Koneti, learned counsel for
appellants and Sri N.Subbarao, learned counsel for
respondent.
28. Learned counsel for the appellants would submit that
Exs.B-16 and B-17 registered settlement deeds executed by
K.Appireddy in favour of 1st appellant Kanala Veerareddy
were acted upon. By executing those documents, right in
praesenti was created in favour of 1st appellant. He would
contend that the executant reserved life interest and vested
remainder was given in favour of 1st appellant and hence,
unilateral cancellation of Exs.B-16 and B-17 by way of
Exs.A-5 and A-6 by K.Appireddy is nonest in the eye of law.
He would further contend that Lower Appellate Court
construed Exs.B-16 and B-17 as Wills and the said finding is
contrary to the pleadings of both parties. Thus, he prayed to
allow the second appeal.
29. Learned counsel for respondent would contend that
Exs.B-16 and B-17 are Wills executed by late Appireddy in
favour of 1st appellant and no delivery was affected pursuant
to Exs.B-16 and B-17. Donor alone enjoyed the property. He
would contend that since deliver was not affected pursuant to
Exs.B-16 and B-17, donor got right to cancel the documents
and the donor himself cancelled those two documents under
Exs.A-5 and A-6 and executed Ex.A-4 registered settlement
deed in favour of 1st plaintiff and it was acted upon. Thus, he
contended that no substantial question of law involved in the
second appeal and he prayed to dismiss the appeal.
30. Perused the suit record and exhibits. Whether Exs.B-16
and B-17 are settlement deeds or Wills?
31. Whether a document is a Settlement Deed or Will, the
Court has to examine the document as a whole and to look
into the substance thereof and also to know the intention of
the parties. Form or nomenclature of the instrument is not
conclusive. One has to comprehend the meaning of the
document from the document itself. The words used in the
document are to be given literal meaning. In the event of
intrinsic and inconsistent words and language used in the
documents, the intention would prevail over the words used.
The intention of the parties has to be determined from the
attending circumstances leading to the transaction. Every
deed or document should be interpreted by considering the
implied terms. While considering the nature of document has
to be examined qua transfer of any interest in the property in
praesenti or after the death of executants.
32. Settlement deed is defined under Section 2 (14) of the
Specific Relief Act, 1963 which reads thus:
"(b) "Settlement" an instrument (other than a will or
codicil as defined by the Indian Succession Act, 1925 (39
of 1925) whereby the destination or devolution of
successive interests movable or immovable property is
disposed of or is agreed be disposed of;"
33. Will is defined under Sec 2 (h) of Indian Succession Act,
1925, which reads thus:
"(h) "Will" means the legal declaration of the intention of
a testator with respect to his property which he desires
to be carried into effect after his death."
34. Before further analyzing, a reference may be made to
Ramana Dayaram Shetty Vs. International Airport
Authority of India1, wherein it was held that, the rules of
interpretation are applicable alike to documents as to
statutes. It may be noted that in addition to the general
principles, while construing the documents like will Gift deed,
power of attorney and trust deed, abundant caution should
be exercised because more often than not these are the
documents, which are executed without active participation
of the other party to the documents, such as legatee, done or
trustee. By reason of this, these documents need to be
AIR 1979 SC 1628
strictly interpreted having regard to the context, the attending
circumstances and the subject matter and purpose of
executing each of these documents.
35. Whether a particular document is a Settlement Deed or
Gift or a Will? The Courts have formulated number of tests.
These are (i) the name by which the document is styled; (ii)
registration of the document; (iii) reservation of life estate in
favour of executant; (iv) express words as to when possession
passed; (v) use of the present or future tense in the
document; and (vi) reservation of the power of revocation (vii)
transfer of interest in praesenti or after the death of
executant.
36. The relevant portion of Ex.B-16 settlement deed is
extracted hereunder:
' క డ ,
మ మ . క ర ,
యనమ అ న మ పర కగ న .
న తన ం ం ద
ర . క వయ వ న , హ
యవల న సమయ ఆసన న . న
న ల . మ మడవ
యం గల శయ తఆ ంత ఆ
ంద య తలం క ప ఫలం ం
ప ఫల న దఖ పర ం ఖ
త ఆ న హ
కమం గల .2,00,000/- వ గల శన
సల అం గల తన ం 2వ
అ ట వ .2,00,000/- వగల
.67,000/- వగల
దఖ పర హ ల త క గ .
ఖ వ ల
త ల వర న ం వ
వ ం ఆ ం ం
వ ం గల అ
అ భ ం ం ఎ ం అ ంత
జ ంచగల డ జ ం న ఖ
వ నపర అప ం
సర ధ ప ం న కయ
సమస హ ల అ భ ం వల న . అ
నంతరం రస
ధ న కయ ర సమస హ ల
అ భ ం , , రస ధ , ,
రస ధ ల ఎవ , ఎన త
వ యగల ర . భ ష ఎ ం
త ఏ ధం వ న ట ం స ంత
ఖ ల ప ష ం ఈ ఖ టంకం
రపరచగల . ఈ ఎ ం అ ంత
య ద జ వ ఈ ఆ
ప త న ఏజ ల అ బంధ
సంసల ం న ద , అ
వ జ ం ండ ద , అ ం
అ న ద ఈ ఖ ర
జ ంచన న ం ఖ పర ."
37. The relevant portion of Ex.B-17 settlement deed is
extracted hereunder:
" 1వ క ర అ . 1వ
ఎ సం న . శ ం ల .
ఆ రణ న 2వ అన న బ
న ం అన
మ మ మ మ . ఆ రణ న
2వ తన న తనం ం
వ తన న వయ ం ం ద క
కన వ . వయ
న డ . సద యం గల
శయ త ంత ఆ ంద య
తలం క ఖ గడ . 27-2-51వ
న మం త ంకట వల కయం ం
ం స. . ఆ 1వ సకం, 559వ
ం, 461 ం.594/55 ష బ న
కయ ద తం ంద
హ క భవం గల వ
ఖ .29,000/- వ గల
యం గల మ ప ఫలం ం
దఖ పరచ ం ఖ హ ల
త క గ నం ం
ఖ త లం వర
న ం వ ం
ఎ ం అ ంత య ం అం
గల అ త అ భ ం .
నంతరం 1వ నపర
ఎ ం అ ంత య ం అం గ
అ అ భ ం వ
ం అ భ ం వల న . 1వ
నంతరం, 2వ నం
అప ం వ ం
న, క ర సమస హ ల
అ భ ం వల న . అ న ధం
అ భ ం ల రస
ధ ల , , రస ధ ఎవర
ఎన త వ లగ ర .
భ ష ఎ ం వ వ , ఏ ధం వ న
ట ం స ంత ఖ ల స ప ష ం ఈ
దఖ టంకం రప ."
38. In Venkatasubramaniya Iyer v. Srinivasa Iyer2, the
question considered was whether the document marked is a
Settlement or a Will. The learned Single Judge answered the
question in the following words:
"...A question of that kind is one that has to be decided
primarily on the terms of the document itself. It was
AIR 1929 MAD 670
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 as settlement and registered.
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 praesenti, 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. Authiammal (1910) 33 Mad.
304 and in Gangaraju v. Somanna A.I.R. 1927 Mad.
197. 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. 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."
39. In Ramaswami Naidu Vs. Gopalakrishna Naidu3, it
was held that:
"The broad tests or a characteristic as to what
constitutes a will and what constitutes a settlement
have been noticed in a number of decisions. But the
main test to find out whether the document constitutes
a will or a gift is to see whether the disposition of the
interest in the property is in praesenti in favour of the
settlees or whether the disposition is to take effect on
the death of the executant. If the disposition is to take
effect on the death of the executant, it would be a will.
But if the executant divests his interest in the property
and vests his interest in praesenti in the settlee, the
document will be a settlement. The general principle also
is that the document should be read as a whole and it
is the substance of the document that matters and not
the form or the nomenclature the parties have adopted.
The various clauses in the document are only a guide to
find out whether there was an immediate divestiture of
the interest of the executant or whether the disposition
was to take effect on the death of the executant."
"If the clause relating to the disposition is clear
and unambiguous, most of the other clauses will be
ineffective and explainable and could not change the
character of the disposition itself. For instance, the
clause prohibiting a revocation of the deed on any
AIR 1978 MAD 54
ground would not change the nature of the document
itself, if under the document there was no disposition in
praesenti." (Emphasis is mine)
40. In Ramaswami Naidu Vs. M.S.Velappan and Ors.4, the
Division Bench of the Madras High-Court referred to the
documents which were subject matter of consideration before
it and observed:
"In the instant case the first plaintiff was already in
charge of the properties as trustee to perform the
obligations created under it and continued them after
the lifetime of Meenakshi Ammal. There are also
positive words whereby it was made clear that the
properties should be vested in Velappan and his heirs
for them to enjoy the same absolutely....
These two dispositive clauses create an interest
in praesenti. The question is whether the postponement
of such proprietary rights already vested in Velappan
and his heirs, to the lifetime of Meenakshi Ammal,
would make any difference. The Explanation to Section
19 of the Transfer of Property Act, providing that a
vested interest is not defeated by the death of the
transferee before he obtains possession, makes the
legislative intent clear that such a vested interest,
merely for the reason that it becomes vested after the
lifetime of the settlor, would not make it a settlement
not being in praesenti. We are therefore unable to agree
(1979) 2 MLJ 88
with the contention that the interest that Velappan, the
first plaintiff, obtained under the instrument is not a
vested one and that it could be defeated because it is
postponed till after the lifetime of Meenakshi Ammal.
In the instant case the document itself is styled
as a settlement deed. It has been registered. The right
to enjoy the properties and secure the benefits and the
temple honours as trustee under it have become a fait
accompli even during the lifetime of Meenakshi Ammal.
There is therefore no ambulation in the matter of the
vesting of the interest in the first plaintiff by any
declaration or use of words either express or implied."
41. In Namburi Basava Subrahmanyam Vs. Alapati
Hymavathi and Ors.5, the Hon'ble Apex Court observed that
the nomenclature of the document is not conclusive and the
Court has to find whether the document confers any interest
in the property in praesenti so as to take effect intra vivos and
whether an irrevocable interest thereby is created in favour of
the recipient, all those to be gathered from the recitals of the
documents as a whole and observed:
"The said recital clearly would indicate that the
settlement deed executed on that date is to take effect
on that day. She created rights thereunder intended to
take effect from that date, the extent of the lands
mentioned in the Schedule with the boundaries
AIR 1996 SC 2220
mentioned thereunder. A combined reading of the
recitals in the document and also the Schedule would
clearly indicate that on the date when the document
was executed she had created right, title and interest in
the property in favour of her second daughter but only
on her demise she was to acquire absolute right to
enjoyment, alienation etc. In other words, she had
created in herself a life interest in the property and
vested the remainder in favour of her second daughter.
It is settled law that the executant while divesting
herself of the title to the property could create a life
estate for her enjoyment and the property would
devolve on the settlee with absolute rights on the
settlor's demise. A reading of the documents together
with the Schedule would give an indication that she
had created right and interest in praesenti in favour of
her daughter Vimalavathy in respect of the properties
mentioned in the Schedule with a life estate for her
enjoyment during her lifetime. Thus, it could be
construed rightly as a settlement deed but not as a Will.
Having divested herself of the right and title thereunder,
she had, thereafter, no right to bequeath the same
property in favour of her daughter Hymavathy. The trial
court and the learned Single Judge rightly negatived the
claim. The Division Bench was not, therefore, correct in
law in interfering with the decree of the trial court."
42. A perusal of Exs.B-16 and B-17 would indicate
that (1) settlor treated settlee as his fostered son (2)
settlee was brought up by settlor (3) interest was created
by setllor in favour of settlee on the date of execution of
documents i.e. right in praesenti was created (4) having
settled the properties in favour of settlee, settlor
restricted his right of alienation. Insofar as Ex.B-17 is
concerned, life interest was reserved onto himself and his
wife and vested remainder to settlee. Restricted, right to
alienate the schedule properties under Exs.B-16 and
B-17. Thus, under Exs.B-16 and B-17, settlor himself
settled the properties in favour of settlee on the date of
execution of deeds without his right of alienation. No
right was reserved to cancel the documents during his
lifetime by settlor. Thus, on a careful reading of these
documents, in the considered opinion of this Court,
Exs.B-16 and B-17 are to be construed as Settlements
deeds, but not Wills.
43. In the plaint, the plaintiff pleaded as follows:
"Plaintiff submits that he learns that defendant
obtained settlement deed on 24.03.1999 for vested
reminder in the schedule mentioned properties.
Plaintiff submits that the said settlement deed was
obtained by fraud and misrepresentation and the same
as not accepted and acted upon. As such, late
Appireddy by himself revoked the settlement deed dated
24.03.1999 in favour of defendant and it is an
incomplete one."
44. 1st Defendant in his written statement pleaded
execution of two registered settlement deeds dated
16.07.1997 and 24.03.1999 in respect of plaint schedule
property.
45. P.W.1 in his chief affidavit reiterated the plaint
averments and stated that "1st defendant obtained settlement
deed on 24.03.1999 for vested reminder for the schedule
mentioned property and the said settlement deed was
obtained by 1st defendant by fraud and misrepresentation".
P.W.1 in her cross examination deposed that D2 to D6
purchased the part of suit schedule property from 1st
defendant under the respective sale deeds. P.W.3 in her cross
examination admitted that D2 to D6 are in possession and
enjoyment of the schedule property. During the cross
examination of D.W.1, no suggestion was put to D.W.1 that
Ex.B-16 and B-17 are Wills but not settlement deeds. Thus,
parties to the litigation i.e. neither the plaintiff nor
defendants pleaded that Exs.B-16 and B-17 are Wills but not
settlement deeds. Even in Ex.A-4 settlement deed it was
recited about the execution of settlement deeds dated
16.7.1997 and 24.03.1999 and cancellation of those
settlement deeds. Exs.A-5 and A-6 cancellation deeds of
Exs.B-16 and B-17, it was referred to as cancellation of
settlement deeds.
46. Thus, a perusal of the pleadings, evidence of parties
and cross examination of the parties would indicate that
parties to the litigation never treated the documents
Exs.B-16 and B-17 as Wills. No plea was raised to that effect
and no evidence was let in.
47. However, for the first time, lower appellate Court came
to the conclusion that Exs.B-16 and B-17 are Wills, but not
Settlement deeds. Thus, the finding of the lower appellate
Court construing Exs.B-16 and B-17 as Wills is contrary to
the recitals in Exs.B-16 and B-17 as also the pleadings and
evidence on record.
48. Whether delivery of possession of property is essential
condition for valid settlement deed and, that the settlement of
vested remainder can be validly made keeping life interest
with the donor.
49. It is apt to extract Section 19 and 21 of Transfer of
Property Act which elucidate the expression vested interest
and contingent interest.
19. Vested interest.- Where, on a transfer of property,
an interest therein is created in favour of a person
without specifying the time when it is to take effect, or
in terms specifying that it is to take effect forthwith or
on the happening of an event which must happen, such
interest is vested, unless a contrary intention appears
from the terms of the transfer.
A vested interest is not defeated by the death of
the transferee before he obtains possession.
Explanation- An intention that an interest shall
not be vested is not to be inferred merely from a
provision whereby the enjoyment thereof is postponed,
or whereby a prior interest in the same property is given
or reserved to some other person, or whereby income
arising from the property is directed to be accumulated
until the time of enjoyment arrives, or from a provision
that if a particular event shall happen the interest shall
pass to another person.
21. Contingent interest. - Where, on a transfer of
property, an interest therein is created in favour of a
person to take effect only on the happening of a
specified uncertain event, or if a specified uncertain
event shall not happen, such person thereby acquires a
contingent interest in the property. Such interest
becomes a vested interest, in the former case, on the
happening of the event, in the latter, when the
happening of the event becomes impossible.
Exception. - Where, under a transfer of property,
a person becomes entitled to an interest therein upon
attaining a particular age, and the transferor also gives
to him absolutely the income to arise from such interest
before he reaches that age, or directs the income or so
much thereof as may be necessary to be applied for his
benefit, such interest is not contingent.
50. A reading of the plain language of the above reproduced
sections makes it clear that an interest can be said to be a
vested interest where there is immediate right of present
enjoyment or a present right for future enjoyment. An interest
can be said to be contingent if the right of enjoyment is made
dependent upon some event which may or may not happen.
On the happening of the event, a contingent interest becomes
a vested interest."
51. In Rajes Kanta Roy Vs. Santi Devi6, the Hon'ble Apex
Court observed thus:
"Although the question whether the interest created is a
vested or a contingent interest is dependent upon the
intention to be gathered from a comprehensive view of
all the terms of the document creating the interest, the
AIR 1957 SC 255
court while construing the document has to approach
the task of construction in such cases with a bias in
favour of vested interest unless the intention to the
contrary is definite and clear."
52. As indicated supra, a perusal of Exs.B-16 and B-17
would indicate that settlor settled the rights in property in
praesenti in favour of settlee and to enjoy the property after
the life time of settlor. The executant/settlor imposes self-
restriction with reference to the right to sell or create
encumbrances though he is in possession of the property
after execution of the document, the document is to be
construed as Settlement Deed but not Will.
53. The next question for consideration is whether the
settlor can cancels Exs.B-16 and B-17 unilaterally without
the consent of settlee.
54. It is settled legal position that when a valid transfer is
brought into existence in accordance with law, it cannot be
set at naught at the instance of one of the parties to it. If any
document is required to be cancelled, the only remedy is by
way of a civil suit for cancellation under Sec 31 of the
Specific Relief Act. No cancellation deed can be unilaterally
executed or registered. The person intending to cancel the
gift deed/settlement deed has to invoke the jurisdiction of the
competent civil Court for cancellation of the said deed.
55. This Court had an occasion to consider whether a gift
deed can be cancelled unilaterally in Chelluboyina Nagaraju
Vs. Molleti Ramudu alias Vijayalakshmi in S.A.No.216 of
2020 dated 13.04.2022. This Court came to the conclusion
that a registered document cannot be cancelled unilaterally.
This Court also placed reliance upon the judgment of this
Court in Kolli Rajesh Chowdary Vs. State of Andhra
Pradesh7. In that case, while dealing with the aspect whether
registration of deed of cancellation unilaterally is violative of
principles of natural justice and also contrary to the Rule
26(i)(k)(i), Hon'ble Court held that deed of cancellation/deed
of revocation is declared as null and void and it is of no
effect. There cannot be a unilateral cancellation of registered
document and that a cancellation deed cancelling a
registered document can be registered only after the same is
cancelled by a competent Civil Court, after notice to the
parties concerned, and that in the absence of any declaration
2019(3)ALD229
by a competent Court or notice to parties, the execution of
deed of cancellation as well as its registration are wholly void
and nonest.
56. Since Exs.B-16 and B-17 were acted upon by the 1st
defendant, unless they are cancelled by the competent Court,
the executant of the document cannot unilaterally cancel
those documents. Such cancellation is non-est in the eye of
law. They do not bind the settlee. The plaintiff filed the suit
for declaration basing Ex.A-4 settlement deed dated
12.07.2000 upon unilateral cancellation of Exs.B-16 and B-
17 under Exs.A-5 and A-6. Since this Court came to the
conclusion that the cancellation of Exs.B-16 and B-17 is not
valid in the eye of law, plaintiff cannot maintain the suit
basing Ex.A-4. Thus, the suit is liable to be dismissed.
57. This second appeal is filed under Section 100 of CPC.
The scope of Section 100 of CPC is no longer res integra.
While dealing with the scope of Section 100 CPC, the Hon'ble
Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann
(Dead) By Lrs. and Ors.8 held as follows:
8 (2001) 4 SCC 262
"Section 100 of CPC introduced a definite restriction
on to the exercise of jurisdiction in a second appeal so
far as the High Court is concerned. Needless to say
that the Code of Civil Procedure Amendment Act,
1976 introduced such an embargo for such definite
objectives and since we are not required to further
probe on that score, we are not detailing out, but the
fact remains that while it is true that in a second
appeal a finding of fact even if erroneous will generally
not be disturbed but where it is found that the
findings stands vitiated on wrong test and on the
basis of assumptions and conjectures and resultantly
there is an element of perversity involved therein, the
High Court in our view will be within its jurisdiction to
dealt with the issue. This is, however, only in the
event such a fact is brought to light by the High Court
explicitly and the judgment should also be categorical
as to the issue of perversity vis-à-vis the Concept of
justice. Needless to say however, that perversity itself
is a substantial question worth adjudication what is
required is a categorical finding on the part of the
High Court as to perversity."
58. The Hon'ble Apex Court in Yadavarao Dajiba
Shrawane Vs. Nanilal Harakchand Shah (Dead) and Ors.9
held thus:
"... The position is well settled that when the
judgment of the final Court of fact is based on mis-
2002 (6) SCC 404
interpretation of documentary evidence or on
consideration of inadmissible evidence or ignoring
material evidence the High Court in second appeal is
entitled to interfere with the judgment. The position is
also well settled that admission of parties or their
witnesses are relevant pieces of evidence and should
be given due weightage by Courts. A finding of fact
ignoring such admissions or concessions is vitiated in
law and can be interfered with by the High Court in
second appeal."
59. The Hon'ble Apex Court in Hero Vinoth Vs.
Seshammal10, held thus:
"19. It is not within the domain of the High Court to
investigate the grounds on which the findings were arrived
at, by the last court of fact, being the first appellate court.
It is true that the lower appellate court should not
ordinarily reject witnesses accepted by the trial court in
respect of credibility but even where it has rejected the
witnesses accepted by the trial court, the same is no
ground for interference in second appeal when it is found
that the appellate court has given satisfactory reasons for
doing so. In a case where from a given set of
circumstances two inferences of fact are possible, one
drawn by the lower appellate court will not be interfered
by the High Court in second appeal. Adopting any other
approach is not permissible. The High Court will, however,
interfere where it is found that the conclusions drawn by
the lower appellate court were erroneous being contrary to
the mandatory provisions of law applicable or its settled
AIR 2009 SC 1481
position on the basis of pronouncements made by the
Apex Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.
It was furthermore held:
23. To be "substantial" a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on
the decision of the case, if answered either way, insofar as
the rights of the parties before it are concerned. To be a
question of law "involving in the case" there must be first a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to
decide that question of law for a just and proper decision
of the case. An entirely new point raised for the first time
before the High Court is not a question involved in the
case unless it goes to the root of the matter. It will,
therefore, depend on the facts and circumstance of each
case whether a question of law is a substantial one and
involved in the case, or not; the paramount overall
consideration being the need for striking a judicious
balance between the indispensable obligation to do justice
at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (See Santosh Hazari v.
Purushottam Tiwari MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant
for this case, may be summerized thus:-
(i) ...
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a question,
answer to which affects the rights of parties to the suit)
will be a substantial question of law, if it is not covered by
any specific provisions of law or settled legal principle
emerging from binding precedents, and, involves a
debatable legal issue. A substantial question of law will
also arise in a contrary situation, where the legal position
is clear, either on account of express provisions of law or
binding precedents, but the court below has decided the
matter, either ignoring or acting contrary to such legal
principle. In the second type of cases, the substantial
question of law arises not because the law is still
debatable, but because the decision rendered on a
material question, violates the settled position of law."
60. In the light of the expression of the Hon'ble Apex Court
on the scope of interference of by the High Court in second
appeal, this Court while exercising jurisdiction under Section
100 of the CPC must confine to the substantial question of
law involved in the appeal. This Court cannot re-appreciate
the evidence and interfere with the concurrent findings of the
Court below where the Courts below have exercised the
discretion judicially. Further the existence of substantial
question of law is the sine qua non for the exercise of
jurisdiction. This Court cannot substitute its own opinion
unless the findings of the Court are manifestly perverse and
contrary to the evidence on record.
61. The findings recorded by the Lower Appellate Court, as
narrated supra, are basing on misreading and
misinterpretation of Exs.B-16 and B-17 and also without any
pleading. Thus, the substantial questions of law framed at
the time of admission are answered holding that Exs.B-16
and B-17 are Settlement Deeds. Settlor settled interest in
favour of settlee on the date of execution of document i.e right
in presenti was created in favour of settlee. Without any
pleading and evidence Lower Appellate Court, misreading the
contents of document and ignoring settled principles
concluded that Exs.B-16 and B-17 are Wills but not
Settlement Deeds. Thus, in view of substantial questions of
law S.A.No.781 of 2019 deserves to be allowed. Accordingly,
S.A. No. 781 of 2019 is allowed, however, without costs.
S.A.No.4 of 2020
62. In view of findings recorded by this Court in S.A.No.781
of 2019, wherein this Court concluded that findings of the
lower appellate Court treating registered settlement deeds
dated 24.03.1999 and 16.07.1997 Exs.B-16 and B-17 as
Wills is not correct and in fact, those documents are
Settlement Deeds; that Settlor transferred interest in
praesenti in favour of settlee and thus, the settlor unilaterally
cannot cancel the registered settlement deeds and that the
suit filed for declaration basing on registered settlement deed
dated 12.07.2000 is not maintainable, since no right was
accrued in favour of 1st plaintiff Kanala Subba Reddy.
63. Appellant in the above second appeal is claiming right
over the property by virtue of a registered sale deed executed
by K.Appi Reddy by virtue of registered Settlement Deed
dated 24.03.1999 Ex.B-16 in O.S.No.68 of 2003. In view of
the findings recorded in S.A.No.781 of 2019, S.A.No.4 of 2020
deserves to be allowed. Appellant is entitled to possession of
plaint schedule property in O.S.No.206 of 2011.
64. Accordingly, S.A.No.781 of 2019 is allowed setting aside
the judgment and decree dated 09.09.2019 in A.S.No.183 of
2014 on the file of II Additional District Judge, Guntur.
Judgment and decree dated 11.11.2014 in O.S.No.68 of 2003
on the file of Senior Civil Judge, Bapatla is restored and
confirmed. No order as to costs.
65. S.A.No.4 of 2020 is allowed setting aside the judgment
and decree dated 09.09.2019 in A.S.No.184 of 2014 on the
file of II Additional District Judge, Guntur. Judgment and
decree dated 11.11.2014 in O.S.No.206 of 2011 on the file of
Senior Civil Judge, Bapatla is restored and confirmed. No
order as to costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
_________________________
SUBBA REDDY SATTI, J
17th October, 2022
PVD
