Andhra Pradesh High Court - Amravati
Pinninti Anasuya vs Egala Surya Mohana Rao on 19 June, 2024
APHC010072982006
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
WEDNESDAY ,THE NINETEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
SECOND APPEAL NO: 83/2006
Between:
Pinninti Anasuya ...APPELLANT
AND
Egala Surya Mohana Rao and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. VENKAT CHALLA
Counsel for the Respondent(S):
1. P D TENNETI
The Court made the following:
2
Dr. VRKS, J
S.A.No.83 of 2006
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.83 of 2006
JUDGMENT:
This appeal is directed against the judgment dated
28.06.2005 of learned Senior Civil Judge, Bhimavaram in
A.S.No.4 of 1996. By the said appeal, the learned first appellate
Court set aside the judgment dated 31.01.1996 of learned I
Additional District Munsif, Bhimavaram in O.S.No.183 of 1993
and the suit was accordingly dismissed.
2. On 16.03.2006 a learned Judge of this Court admitted this
appeal under Section 100 C.P.C. formulating the following
substantial questions of law:
1. Whether the lower Appellate Court is right in holding
that the Ex.A.2 deed is a settlement deed but not a Will,
without considering the fact that there is no transfer in
praesenti during the lifetime of the settlor, but there is
transfer in future?
2. Whether the lower Appellate court is right in holding
that the disputed document Ex.A.2 is settlement deed
basing on the nomenclature of the document, without
going into the contents of the documents?
3. Whether the lower Appellate Court is right in holding
that the disputed document is a settlement deed, as
such it cannot be revoked?
Dr. VRKS, J
4. Whether the lower Appellate Court is right in
considering the fact that the Ex.A.2 is a Will and it can
always be revoked under Ex.A.3?
5. Whether the lower Appellate Court is right in holding
that the Ex.A.2 a settlement deed but not a Will, having
rightly held the right of possession and enjoyment of the
schedule property is postponed but it cannot be held as
a Will?
6. Whether the lower Appellate Court is right in holding
that since there is no recital in Ex.A.2, restricting the 1st
respondent/defendant's right to encumber the property,
it always creates a right to the respondent either to
alienate or encumber his property, during his lifetime?
3. Sri Challa Dhanamjaya, the learned Senior Counsel
appearing for appellant and Sri D.Krishna Murthy, the learned
counsel appearing on behalf of Sri Tenneti Prabhu Das, the
learned counsel for respondent No.1 submitted arguments.
4. An extent of 96 square yards site in R.S.No.418/19 in New
Ward No.13 of Bhimavaram Municipality, West Godavari District
belonged to Sri Egala Mutyalu. Under Ex.A.1-registered
settlement deed dated 16.10.1989 he gifted the property to his
second wife-Smt. Egala Venkayamma. During their wedlock they
had no children. However, Sri Egala Mutyalu through his first wife
Smt. Lakshmamma had two sons and one daughter. One son
died and the other son is Sri Sriramulu. The said Sri Sriramulu
has a son by name Sri Egala Surya Mohana Rao.
Dr. VRKS, J
5. Smt. Egala Venkayamma executed a gift settlement deed
dated 28.09.1992 vide Ex.A.2 and got it registered. Under this
document she gave her above referred property to her stepson's
son Sri Egala Surya Mohana Rao. Thereafter on 21.12.1992 she
executed a deed of revocation under which she revoked the
above referred gift settlement deed. Ex.A.3 is the registered
revocation deed. On 03.05.1993 she issued a lawyer's notice to
her stepson's son and thereafter filed O.S.No.183 of 1993 before
learned I Additional District Munsif, Bhimavaram praying for
cancellation of Ex.A.2-settlement deed dated 28.09.1992 and for
costs and such other reliefs. The said suit was laid as against her
stepson's son Sri Egala Surya Mohana Rao. In the suit it was
alleged by pleadings that she had fond hope that her grandson
would look after her and therefore she had executed Ex.A.2-gift
settlement deed. However, her stepson as well as his son failed
to look after her and necked her out and therefore, she seeks
cancellation of the gift settlement deed. It is alleged that out of
undue influence she had to execute Ex.A.2 and therefore it
deserves cancellation.
6. In the written statement filed by the sole defendant/settlee,
the allegation of undue influence was denied as false and further
pleaded as to how they have been looking after her. It is further
mentioned that as the plaintiff had mortgaged the property and
she was unable to repay the debt to the bank, the defendant and
his son cleared off the debts and thereafter out of love and
affection she had executed the gift settlement deed conferring
Dr. VRKS, J
vested rights with the defendant. In those circumstances the
plaintiff is not entitled to seek cancellation of the gift settlement
deed. He sought dismissal of the suit.
7. Learned trial Court settled the following issues for trial:
1. Whether the plaintiff executed settlement deed dt.
28.09.1992 under undue influence?
2. Whether the revocation deed dt. 21.12.1992 is valid
and enforceable under law?
3. To what relief?
8. Plaintiff testified as PW.1 and she got examined PWs.2 to 5
and got marked Exs.A.1 to A.5. Defendant testified as DW.1 and
got examined DWs.2 and 3 and got marked Exs.B.1 to B.8.
9. After considering the contentions raised on both sides and
the evidence placed on record, the learned trial Court examined
the first issue and analysed the facts and circumstances and
categorically held that Ex.A.2-registered settlement deed is a fair
and voluntarily executed document and it was not an outcome of
undue influence or fraud.
10. Learned trial Court then considered the recitals in the
settlement deed-Ex.A.2 and held that it could not be called as a
gift settlement deed and it was only a Will and there was no
vested interest created and in that view of the matter, it held that
the plaintiff was entitled to revoke it and therefore, it granted the
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prayer made in the plaint and directed cancellation of Ex.A.2-
registered settlement deed.
11. Aggrieved defendant appealed to learned Senior Civil
Judge, Bhimavaram in A.S.No.4 of 1996. During the pendency of
the appeal, Smt. Pinninti Anasuya got impleaded as respondent
No.2 claiming that she purchased the plaint schedule property
while the suit was pending before the learned trial Court. Before
the learned first appellate Court the contest remained between
appellant and this newly impleaded respondent. Smt. Egala
Venkayamma who was respondent No.1 in the first appeal
though made appearance did not contest the matter. Learned
first appellate Court settled the following points for its
consideration:
1. Whether the document Ex.A.2 dated 28.09.1992 can be
considered as settlement deed or as Will?
2. Whether Ex.A.2 was executed by undue influence of
the defendant?
12. While answering point No.2, it looked at the evidence
afresh and recorded that Ex.A.2-settlement deed was a valid
document and there was no undue influence exerted against
Smt. Egala Venkayamma either by her stepson or by her
grandson and upheld finding of the learned trial Court in that
regard. However, answering point No.1, it disagreed with the
findings of the learned trial Court. Learned first appellate Court
after a detailed analysis of recitals in Ex.A.2-settlement deed and
after considering the precedent cited before it held that it was not
Dr. VRKS, J
a Will and it was a settlement deed and rights were already
vested to the appellant/defendant under Ex.A.2 and therefore, it
could not be revoked. For those reasons it upturned the trial
Court judgment and consequently the suit laid by Smt. Egala
Venkayamma was dismissed.
13. Smt. Egala Venkayamma did not prefer any appeal.
However, the alleged subsequent pendente lite purchaser from
her preferred this second appeal under Section 100 C.P.C. and
the above referred substantial questions of law were formulated.
14. The principal question that arises in this case is to the true
purport Ex.A.2-registered settlement deed. The question is
whether under this document Smt. Egala Venkayamma created
vested right in praesenti. After referring to the recitals in Ex.A.2,
the learned counsel for appellant submits that since no vested
right in praesenti was created under Ex.A.2, Smt. Egala
Venkayamma was well within her power to seek cancellation of
the said document. In this regard, the learned counsel placed
reliance on Kokilambal v. N.Raman1. Taking strength from the
principles therein, learned counsel argued that the nomenclature
of the document by itself could not be a component to determine
the true nature and purport of the document. Learned counsel
urged that the first appellate Court committed an error as it got
influenced by its nomenclature and it led to incorrect conclusions.
Learned counsel also argued that the learned first appellate Court
did not give any positive finding that Ex.A.2 is a settlement deed
Dr. VRKS, J
and that it could not be cancelled. Since the learned first
appellate Court failed to record specific finding in this regard, he
prays either to set aside the judgment of the first appellate Court
or to remit the matter to the learned first appellate Court for
determination of the said aspect.
15. As against it, learned counsel for respondent No.1 submits
that as along as Smt. Egala Venkayamma being the original
owner of the property and executant of Ex.A.2-registered gift
settlement deed did not choose to file either an appeal or cross-
objections, it does not lie in the competence of the alleged
subsequent purchaser to seek a relief from this Court in this
second appeal. Learned counsel further argued that Ex.A.2
vested the property with respondent No.1/defendant and the
findings of the learned first appellate Court are perfectly valid on
facts and law and requires no interference and seeks dismissal of
the appeal.
16. That Ex.A.2-gift settlement deed is not a product of undue
influence or other vitiating circumstances is a finding concurrently
recorded by both the Courts below and that binds this Court. In
fact the appellant has not argued anything contrary to this.
17. Since the entire dispute revolves around the true purport
and the legal effect of Ex.A.2, the contents of it are required to be
noticed. It is a document written in Telugu language. Learned
first appellate Court detailed the contents of it in English language
(2005) 11 SCC 234
Dr. VRKS, J
and the correctness of it is not disputed in this appeal by both
sides. The same reads as below:
"The caption is stated as settlement deed. After
descriptive particulars of the settler and settlee the
following are the averments: "You are my son's son and
thereby you are my grand son. I brought up you with
love and affection since your childhood. Out of my love
and affection and also the same as consideration, I
intend to give you my property free of cost and hence I
am executing the settlement deed with respect of the
schedule property hereto appended. I am paying
municipal taxes and other taxes. During my lifetime,
without having the right of gifting, sale etc., I should
enjoy the property. After my lifetime, you must take
possession of the schedule property and you must
continue to pay the municipal and other taxes and you
are entitled to enjoy the property with rights of gifting,
sale and your progeny should also enjoy the property.
Thus, I executed the settlement deed. In case of any
litigation with respect of this property I will defend the
litigation with my own expenses. I did not alienate this
property or deliver possession of this property to any
others and after making you believe I am executing the
settlement deed. I have also taken steps for
incorporating your name in municipal records so as to
enable you to pay the municipal taxes. I got this
Dr. VRKS, J
property from my husband under settlement deed
Document No.3811/89 dated 16-1-1989 and it has been
in my possession. Thereafter the schedule of the
property is noted and even at the fag end also the
nature of the document is described as settlement
deed."
18. People in their lives execute documents and sometimes
there is absolute vesting and sometimes there is contingent
vesting. Sections 19 and 21 of the Transfer of Property Act, 1882
(footnote) define the legal aspects of vested interest and
contingent interest respectively.
"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
Dr. VRKS, J
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."
19. In order to ascertain the true intention of the settler, one
has to closely scrutinize the document to find out whether the
intention of the settlee was to divest the property in her own
lifetime or to divest the property contingently on the happening of
an event. The intention of the executant has to be gathered from
a comprehensive view of all the terms of the document. An
interest is said to be a vested interest when there is immediate
right of present enjoyment or a present right for future enjoyment.
Dr. VRKS, J
An interest is said to be contingent if the right of enjoyment is
made dependent upon some event or condition which may or
may not happen. On the happening of the event or condition a
contingent interest becomes a vested interest. The Court has to
find out whether the document confers any interest in the property
in praesenti so as to take effect inter vivos and whether an
irrevocable interest thereby, is created in favour of the recipient
under the document or whether the executant intended to transfer
the interest in the property only on the demise of the executant. lt
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
settlor's demise vide Namburi Basava Subrahmanyam v.
Alapati Hymavathi2. It is in the light of this legal position which
remained undisputed at the bar, Ex.A.2 has to be examined. The
document essentially speaks about the following:
a) possession of the property
b) payment of present municipal taxes
c) payment of future municipal taxes
d) about the executant's statement about rights of further
alienations
e) rights of easements
f) life estate
g) vested remainder rights
(1996) 9 SCC 388
Dr. VRKS, J
20. In the first page, the recitals are that it was out of love and
affection she wanted to confer the property on her grandson
without any consideration and considering the love and affection
as the sale consideration and she wanted to confer property
without any price. She has recited that from the date of that
execution itself the terms of the document shall take effect. In the
fourth page of this document, after describing the boundaries of
the property she has clearly recited that the 96 square yards of
site along with all easementary rights and right to way is now
settled in favour of her grandson. At page No.2 of this document
she has mentioned that in carrying out the intendment of this
settlement deed if any disputes arise for her grandson she has
undertaken that she would expend money and defend his rights.
In page No.2 she has also mentioned that she relinquished her
right to donate or sell this property to others.
With reference to possession of the property, she has
mentioned at page No.2 of this document that without holding any
other rights she keeps possession of this property and enjoys it
during her lifetime. She further mentioned that after her lifetime
her grandson would take possession of the property.
With reference to taxes to be paid, at page No.2, she has
mentioned that the municipal and other taxes would be paid by
her during her lifetime. After her death her grandson should pay
the municipal and other taxes.
She has recited that her grandson should enjoy the
property for generations together with all the powers of the title
Dr. VRKS, J
holder to sell or donate the property or enjoy the property with full
rights.
21. Thus, the above recitals disclose that the executant had no
further right of alienation of the property and that she had settled
the property along with easementary rights and that the terms of
the document shall come into force at once from the date of
execution by conferring the right on the settlee/grandson that he
holds full rights over the property which include his full enjoyment
of the property and confer rights of alienation. She recited that
she will not alienate this property to others. Thes recitals are all
clear indications to confirmedly say that she had created a vested
right on him. The right to possess the property alone was
postponed till her death. The right to possess the property and
enjoy it alone was retained by the executant during her lifetime.
Thus, it is a clear case of reserving mere right of enjoyment while
vesting the real interest in the property to the settlee at praesenti.
Therefore, the analysis and conclusions reached by the learned
first appellate Court are correct in terms of facts and law. In
Kokilambal's case (supra 1) of which the learned counsel for
appellant placed reliance, the recitals in the relevant document
therein indicated that the executant enjoys the property in her
lifetime and she had no right to alienate the property and any
alienation could be made jointly by her and the settlee. In the
light of such recitals, their Lordships observed that the power to
transfer the property was retained by the settlor jointly with the
settlee and that factor is decisive to say that interest in the
Dr. VRKS, J
property was not absolutely vested under the document and it
stand vested only on the death of the executant. This ruling does
not help the appellant since in the case at hand the contents of
Ex.A.2-gift settlement deed show that the recitals therein are
totally different from the recitals available in the cited ruling. In
the case at hand the settlor divested herself of all the rights to
encumber or alienate the property during her own lifetime and
that creates a clear differentiating factor from the facts in the cited
ruling. Moreover, the other recitals also clearly indicate that a
clear vested right in praesenti was created with the settlee. The
right of possession alone was postponed. In such a case it is
truly a gift settlement deed under which the right to property stood
transferred from the executant to the settlee.
22. For the contention that there was no finding on the part of
the learned first appellate Court about Ex.A2 as to whether it is a
settlement deed or not, one should see at page No.12 paragraph
No.16 of the impugned judgment wherein the learned first
appellate Court clearly recorded its finding that Ex.A.2 is a
settlement deed. Therefore, there is no occasion for any
remittance of the matter to the learned first appellate Court for its
fresh consideration.
23. While this appeal was filed in the year 2006, the original
settlor Smt. Egala Venkayamma died on 07.05.2009. No legal
representatives were brought on record and the appellant
contends that she being purchaser of this property she was
entitled to canvass for her rights in this appeal. As I could see
Dr. VRKS, J
from the judgment of the trial Court and the judgment of the
learned first appellate Court the present appellant Smt. Pinninti
Anasuya who claims to have purchased the property from the
original owner had not exhibited the document under which she
obtained the alleged title. She had the litigation before the first
appellate Court on the premise that she was a transferee
pendente lite but did not take any steps to disclose her title before
the first appellate Court through the document. The appendix of
evidence in the judgment of the first appellate Court shows that
no documentary or oral evidence was adduced before it. Thus,
the present appellant without even showing her alleged title has
been successfully prosecuting this appeal for such long number
of years and therefore she shall bear the costs of the litigation of
the respondents also. Hence, all the points are answered against
the appellant and in favour of the respondents.
24. In the result, this Second Appeal is dismissed with costs.
Consequently, the impugned judgment dated 28.06.2005 of
learned Senior Civil Judge, Bhimavaram in A.S.No.4 of 1996
stands confirmed.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 19.06.2024
Ivd
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Date: 19.06.2024
Ivd
