A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
1
IN THE COURT OF VI ADDITIONAL DISTRICT JUDGE
KRISHNA, MACHILIPATNAM.
Present:-Sri T. Venkateswara Reddy, VI Addl. District Judge, Krishna, Machilipatnam.
Monday, this the 16th day of March, 2020.
A.S.No.150/2016
Between:
1. Talari Vana Kameswaramma, W/o Lakshmana Swamy, Aged about 77 years, C/o Boyana Durga Prasad, Resident of D.No.15/531-100, Resident of Panchayat Raj Employees Colony, Edepalli, Machilipatnam, Krishna District, within the limits of JCJC Machilipatnam. (died on 22.01.2019 and memo is filed on 11.02.2019)
2. Boyana Sai Padma Kumari, W/o Durga Prasad, aged 48 years, Properties, C/o Boyana Durga Prasad, Resident of D.No.15/551- 100, Resident of Panchayat Raj Employees Colony, Edepalli, Machilipatnam, Krishna District, within the limits of JCJC Machilipatnam.
3. Alapati Prakash, S/o Veera Venkata Rao, Aged about 50 years, Business, Resident of D.No.4/287, Resident of Godugupeta, Machilipatnam, Krishna District, within the limits of JCJC Machilipatnam.
4. Chintagunta Adiseshu, S/o Ramulu, Aged about 54 years, resident of Chittiguduru, Guduru, Machilipatnam, Krishna District, within the limits of JCJC Machilipatnam.
...Appellants/Defendants 1, 2, 4 & 5
And
1. Talari Satyanarayana, S/o Lakshmana Swamy, Aged about 54 years, Resident of S.T.O., Krishna, Collectorate Office, Machilipatnam, Krishna District, within the limits of JCJC Machilipatnam. (Plaintiff)
2. Yenuga Govinda Kumari, W/o Krishtafer, Aged about 47 years, Properties, Resident of D.No.10/12-2, Resident of Patamata, Vijayawada, Krishna District, within the limits of JCJC Vijayawada. (Defendant No.3)
...Respondents
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
2
ON APPEAL FROM THE DECREE & JUDGMENT DATED
13.10.2016 IN O.S.No.271/2007 PASSED BY THE PRINCIPAL
SENIOR CIVIL JUDGE, MACHILIPATNAM.
Between :
Talari Satyanarayana.... Plaintif
And
1. Talari Vana Kameswaramma.
2. Boyana Sai Padma Kumari.
3. Yenuga Govinda Kumari.
4. Alapati Prakash.
5. Chintagunta Adiseshu....Defendants
This Appeal Suit is coming on 10.02.2020 for final hearing
before me in the presence of Sri V.V.Varada Rajulu, Advocate for the
Appellants/defendants 1, 2, 4 & 5 and of Sri J.M.Prasad (J.P.) Advocate for 1st respondent/plaintiff and Sri O.S.A.Siva Kumar, Advocate for 2nd respondent/defendant No.3 and having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
1.This Appeal Suit is directed against the Judgment and
Decree dated 13.10.2016 in O.S.271/2007 on the file of Principal
Senior Civil Judge, Machilipatnam, wherein the suit filed by the
plaintiff for declaration of his title over the suit property and for recovery of possession of the same, has been decreed. Aggrieved by the said Judgment and decree, the unsuccessful defendants 1,2,4 and 5 in the suit preferred the present Appeal Suit.
2.Initially the plaintiff filed the suit against the defendants 1 to 3 and subsequently, the plaintiff got impleaded the defendants 4 and 5 as per orders in I.A.403/2014 dated 15.10.2014.
3.The appellants herein are the defendants 1, 2, 4 and 5 and the respondent No.1 herein is the plaintiff and the respondent
No.2 herein is the defendant No.3 in O.S.271/2007 on the file of
Principal Senior Civil Judge, Machilipatnam. For the sake of
convenience, the parties are hereinafter referred to as they are
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
3 arrayed in O.S.271/2007 on the file of Principal Senior Civil Judge,
Machilipatnam.
4.The case of the plaintiff as seen from the averments made in the plaint is to the following effect :
The plaintiff is the son and the defendant No.2 is the daughter of the defendant No.1. The defendant No.1 was the absolute owner of the suit property. The defendant No.1 gifted the suit property to the plaintiff out of love and affection under a registered settlement deed dated 25.06.1986 and it is mentioned in the said settlement deed that the defendant No.1 will enjoy the income of the suit property during her lifetime by paying the municipal tax and the suit property will devolve on the plaintiff on the death of the defendant No.1. Thus, vested rights over the suit property are created on the plaintiff under the settlement deed and title deed in respect of the suit property was also handed over to the plaintiff at the time of execution of settlement deed. The settlement deed dated 25.06.1986 was not a conditional settlement deed.
Subsequently, on 01.09.1986, the defendant No.1 executed a revocation deed revoking the registered settlement deed dated 25.06.1986 without the knowledge of the plaintiff. The settlement deed dated 25.06.1986 operates as a gift and the same became complete on the acceptance by the plaintiff. The defendant No.1 has no power or right to revoke the settlement deed dated 25.06.1986.
The defendant No.1 executed a registered gift deed on 13.04.2006 in favour of the defendant N.2 and the defendant No.2 executed a registered agreement of sale cum general power of attorney in favour of the defendant No.3 on 30.12.2007 with false recitals. The defendants 2 and 3 created sham and void document dated 09.11.2012 in the name of the defendants 4 and 5 for a consideration amount of Rs.6,53,000/-. In fact no consideration amount was passed under the said deed dated 25.06.1986 and the defendants 4 and 5 have no capacity to purchase the suit property.
5.The defendant No.1 filed the written statement. The case of the defendant No.1 as seen from the averments made in the
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
4 written statement filed by the defendant No.1 is to the following effect :
On 25.06.1986, the defendant No.1 executed a Will deed in favour of the plaintiff. Subsequently, in view of the conduct of the plaintiff, the defendant No.1 cancelled the said Will deed and the said fact was known to the plaintiff. The defendant No.1 as an absolute owner gifted the suit property to the defendant No.2 under a registered gift deed dated 13.04.2006. The defendant No.1 alone is in possession of the suit property. The plaintiff never in possession and enjoyment of the suit property. Since 01.09.1986 the plaintiff never made any claim over the suit property. From the date of execution of the registered gift dated 13.04.2006, the defendant No.2 has been in possession of the suit property and the defendant No.2 became the absolute owner of the suit property. The plaintiff is the son of the defendant No.1. The plaintiff used to abuse the defendant No.1 in filthy language and caused mental agony to the defendant No.1.
Taking advantage of the illiteracy of the defendant No.1, the plaintiff played fraud on the defendant No.1 and brought into existence of the document dated 25.06.1986.
6.The defendant No.2 filed the written statement. The case of the defendant No.2 as seen from the averments made in the written statement filed by the defendant No.2 is to the following effect :
There is no cause of action for the plaintiff to file the suit.
The plaintiff is not entitled for the relief of declaration of title and for recovery of possession of the suit property. On 13.04.2006 the defendant No.1 executed a registered gift deed in favour of the defendant No.2 and delivered possession of the suit property to the defendant No.2. The defendant No.2 executed a contact of sale cum general power of attorney in favour of the defendant No.3. The plaintiff has no locus standi to question the gift deed dated 13.04.2006 executed by the defendant No.1 in favour of the defendant No.2.
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
5
7.The defendant No.3 filed the written statement. The case of the defendant No.3 as seen from the averments made in the written statement filed by the defendant No.3 is to the following effect :
The defendant No.3 agreed to purchase the suit property for a consideration amount of Rs.4,00,000/- from the defendant No.2.
The defendant No.2 after receiving the total consideration amount of
Rs.4,00,000/-, executed a contract of sale cum general power of attorney in favour of the defendant No.3 on 30.04.2007 and delivered possession of the suit property to the defendant No.3. The suit of the plaintiff is barred by the period of limitation.
8.The defendant No.5 filed the written statement. The defendant No.4 filed a memo adopting the written statement filed by the defendant No.5. The case of the defendant Nos.4 and 5 as seen from the averments made in the written statement filed by the defendant No.5 is to the following effect :
The defendant No.1 clearly informed the defendants 4 and 5 that the defendant No.1 executed a Will in favour of the plaintiff and subsequently, the defendant No.1 revoked the said Will.
The defendant No.2 executed a power of attorney in favour of the the defendant No.3. The defendants 4 and 5 purchased the suit property for a consideration amount of Rs.6,53,000/- under a registered sale deed and they are in possession and enjoyment of the suit property.
The defendants 4 and 5 have no knowledge about the pendency of the suit at the time of their purchase of the suit property. The defendants 4 and 5 are the bonafide purchasers of the suit property.
The defendants 4 and 5 denied the allegations mentioned in the plaint which are not specifically admitted by the defendants 4 and 5 in the written statement filed by the defendant No.5.
9.On the above pleadings, the following issues were settled
before the Trial Court:
1. Whether the plaintiff is not entitled for the plaint schedule property in view of the cancellation of the Will
dated 25.06.1986 on 01.09.1986 as pleaded by
defendant No.1?
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
6
2. Whether the present suit is filed by defendants 1 and 2 in collusion with the plaintiff as pleaded by the defendant No.3?
3. Whether the plaintiff is entitled for declaration as prayed ?
4. Whether the plaintiff is entitled for future profits as payed?
5. To what relief?
10.During the course of trial of the suit before trial Court, the plaintiff got examined Pws.1 to 4 and got marked Exs.A1 to A12.
11.PW.1 is plaintiff. PW.2 is the son of the attestor of Ex.A1.
PW.3 is resident of Chilakalapudi. PW.4 is son of the attestor of Ex.A1.
12.Ex.A1 is settlement deed executed by 1st defendant in favour of plaintiff dated 25.06.1986. Ex.A2 is certified copy of the sale deed in favour of the 1st defendant dated 13.06.1959. Ex.A3 is certified copy of the registered revocation deed by the 1st defendant
dated 01.09.1986. Ex.A4 is certified copy of the registered gift deed
executed by the 1st defendant in favour of the 2nd defendant dated 13.04.2006. Ex.A5 is certified copy of the registered agreement of sale cum GPA executed by 2nd defendant in favour of the 3rd defendant dated 03.04.2007. Ex.A6 is registered notice got issued by plaintiff dated 19.06.2007. Ex.A7 is reply notice got issued by the defendant No.1 and defendant No.2 dated 25.06.2007. Ex.A8 is reply notice got issued by 3rd defendant dated 03.07.2007. Ex.A9 is sale deed in the name of the 4th defendant and 5th defendant dated 09.11.2012. Ex.A10 is notice dated 20.02.1990 issued by income tax department to pay gift tax. Ex.A11 is attested photocopy of the receipt showing payment of gift tax dated 04.02.1991. Ex.A12 is
Ration card of the plaintiff.
13.On the other hand, the defendants got examined Dws.1 to 4 and no documents are marked for the defendants.
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
7
14.DW.1 is the defendant No.1. DW.2 is defendant No.2.
DW.3 is attestor to registered gift deed dated 30.04.2006. DW.4 is defendant No.4.
15.After hearing the arguments submitted by the both side counsel, and after considering the oral and documentary evidence placed by both sides, the trial Court decreed the suit of the plaintiff under impugned judgment. Aggrieved by the same, the unsuccessful defendants 1,2,4 and 5 in the suit preferred the present Appeal Suit.
16.During the pendency of the Appeal Suit, the counsel for the appellants filed a memo stating that appellant No.1 expired on 22.01.2019. The same is recorded.
17.Heard the arguments submitted by the both side counsel.
Perused the grounds of Appeal.
18.Now the points that arise for determination in this Appeal
Suit are;
1. Whether the plaintiff is entitled for declaration of his title over the suit property?
2. Whether the plaintiff is entitled for recovery of possession of the suit property as prayed for?
3. Whether the suit of the plaintiff is barred by the period limitation?
4. Whether the impugned judgment and decree are sustainable on facts and law?
5. To what relief?
POINT Nos.1 & 2 :-
19.Since the plaintiff is asking the Court for declaration of his title over the suit property and also for recovery of possession of the same, the burden is on the plaintiff to establish that plaintiff is entitled for a declaration of his title over the suit property and for recovery of possession of the suit property under Ex.A1 during the lifetime of the defendant No.1. The plaintiff filed the suit during
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
8 lifetime of the defendant No.1 against the defendant No.1 and others for declaration of his title over the suit property and for recovery of possession of the suit property. Therefore, the burden is on the plaintiff to establish that the plaintiff is entitled for declaration of his title over the suit property and also for recovery of possession of suit property during the lifetime of defendant No.1 irrespective of the question whether the defendants have proved their case or not. It is well settled legal position that if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non suited.
20.The defendant No.1 is the mother of the plaintiff and the defendant No.2 is the sister of the plaintiff. The above relationship of the parties is not in dispute. Ex.A3 is copy of the registered revocation deed dated 01.09.1986 executed by the defendant No.1.
There is no dispute with regard to the execution of Ex.A3 by the defendant No.1. In Ex.A3, it is mentioned that the defendant No.1 executed a document in favour of the plaintiff in respect of suit property stating that the plaintiff shall enjoy the suit property with absolute rights after the demise of the defendant No.1. In view of this, it can be safely said that Ex.A1 is settlement deed executed by the defendant No.1 in favour of the plaintiff. This view of the Court is fortified by the decision of Hon’ble High Court of Judicature, Andhra
Pradesh at Hyderabad in Pagadala Bharathi and another v. J.Radha
Krishna reported in 2013 (3) ALT 467.
21.Now, it has to be seen whether the plaintiff is entitled for declaration of his title and for recover of possession of the suit property under Ex.A1 settlement deed during the lifetime of the defendant No.1 and whether the suit filed by the plaintiff for declaration of his title and for recovery of possession of the suit property during the lifetime of the defendant No.1 is maintainable.
The plaintiff is claiming title and also recovery of possession over the suit property on the basis of Ex.A1 registered settlement deed executed by the defendant No.1 in favour of the plaintiff. The recitals in Ex.A1 are as follows:
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
9 “
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
10
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
11
22.The Court perused the recitals in Ex.A1. As seen from the recitals in Ex.A1, it is very clear that the defendant No.1, who is the mother of the plaintiff, transferred the property in favour of the plaintiff with an intention that the plaintiff will enjoy the property as an absolute owner after the demise of the defendant No.1. Thus, the intention of the defendant No.1 is to transfer the interest over the suit property including possession of the suit property in favour of the plaintiff only after the death of the defendant No.1. The primary rule of construction of a document is the intention of the executants, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. The very recital in Ex.A1 that the plaintiff has to enjoy the property with absolute rights after the demise of the defendant No.1 is sufficient to come to a conclusion that the plaintiff will not acquire any title and possession over the suit property during the lifetime of the defendant No.1. Coming to the evidence of plaintiff. The plaintiff stated in his cross-examination as follows:
“1 st defendant is my natural mother, 2 nd defendant is my sister. I got issued legal notice prior to filing of the suit. It is true that I mentioned in the said notice that my mother delivered the possession under gift deed dated 25.06.1986 and since then I have been in possession and enjoyment of the same. As per
Ex.A1, I am in possession of the schedule property. My mother was aged about 54 or 55 as of Ex.A1. It is true that my mother can only put her signature in Telugu. It is my case as alleged in the plaint that I am in the possession of the schedule property.”
23.From the above evidence of the plaintiff in his cross- examination, the case of the plaintiff is that he is in possession of the suit property. But in fact, the very relief of the plaintiff for recovery of possession of the suit property is sufficient to come to a conclusion that the plaintiff is not in possession of the suit property. It is not mentioned in Ex.A1 that the defendant No.1 is to be continued in possession of the suit property with the permission of the plaintiff.
The recitals in Ex.A1 are not to the effect that the plaintiff permitted the defendant No.1 to be continued in possession of the suit property.
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
12
The recitals in Ex.A1 are very clear that the defendant No.1 herself retained possession over the suit property during her lifetime and after the demise of the defendant No.1, the plaintiff has to enjoy the suit property with absolute rights. Therefore, the contention of the plaintiff that the defendant No.1 is in possession of the suit property with the permission of the plaintiff, has no force and the finding of the Trial Court under impugned judgment that the defendant No.1 is in possession of the suit property with the permission of the plaintiff is not correct and the same is not supported by any valid reasons and evidence.
24.In a decision of Hon’ble Supreme Court in S.Sarojini
Amma vs. Velayudhan Pillai Sreekumar reported in 2018 0 AIR (SC) 5232 relied on by the plaintiff, their Lordships held that “Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker Vs. Pranivandas Maganlal Thakker and others (1997) 2 SCC 255. As further held by this Court in Naramadaben Maganlal Thakker “It would be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property.
A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.
In Reninkuntla Rajamma vs. K.Sarwanamma, (2014) 9 SCC 445 a Hindu woman executed a registered gift deed of immovable property reserving to herself the right to retain possession and to receive rent of the property during her lifetime. The gift was accepted by the donee but later revoked.
In Reninkuntla Rajamma, this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
13 must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance.
We are in agreement with the decision of this Court in Reninkuntla Rajamma’s case that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed.
In the instance case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. We are thus constrained to hold that there was no completed gift of the property in question by the appellant to the respondent and the appellant was within her right in cancelling the deed. The judgment and order of the High Court cannot, therefore, be sustained.”
25.Placing reliance on the above mentioned decision of
Hon’ble Supreme Court and in view of the recital in Ex.A1 to the
effect that the defendant No.1 retained possession of the property during her lifetime and the plaintiff can acquire title over the suit property and the plaintiff can have absolute rights over the suit property only after the demise of the defendant No.1, it is held that the alleged gift under Ex.A1 does not become complete during the lifetime of the donor i.e. the defendant No.1 and the title will remains with the defendant No.1. Therefore, the plaintiff is not entitled to ask for declaration of his title over the suit property and for recovery of possession of the suit property during the lifetime of defendant No.1.
The very case of the plaintiff is that the plaintiff acquired title over the suit property under Ex.A1. But as the recitals in Ex.A1 are to the effect that after the demise of the defendant No.1 only, the plaintiff can acquire right and possession over the suit property. Hence, it is held that the very suit of the plaintiff for declaration of his title and for recovery of possession over the suit property against the defendant No.1 and during the lifetime of the defendant No.1, is not maintainable and as such the plaintiff is not entitled for the declaration of his title and also for recovery of possession of suit property. When there is a clear recital in Ex.A1 that the defendant
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
14
No.1 retained possession over the suit property during her lifetime and title and possession over the property is not transferred to the plaintiff under Ex.A1 during the lifetime of the defendant No.1, the oral evidence of Pws.1 to 4 is not helpful to the case of the plaintiff.
26.The other contention of the defendants is that since the possession remains with the defendant No.1, the gift does not become complete and when the gift is incomplete under Ex.A1, the title remains with the defendant No.1 and the deed of gift might be cancelled. In support of the above contention the defendants relied on the following decisions
1. Decision of Hon’ble Supreme Court in Baby Ammal vs.
Rajan Asari reported in 1996 (8) Supreme 699.
In the above decision, their Lordships held that “’The recitals in the deed do indicate thus:
All the right to enjoy the property and the right to reside in the building will remain with me during my life time and Rajan Asari will derive the said rights with full freedom after my life time”.
A reading of the above would indicate that the appellant had retained the title to the enjoyment of the property during her life time as full owner with all rights. Section 122 of the Transfer of Property Act defines gift executed in the manner indicated thereunder divesting the title to and possession of the donor in the property and vesting the same in the donee under Section 123. These must be proof of delivery and acceptance of possession of the gifted property. In this case, both the title and possession in respect of the property remained with the plaintiff. There is no acceptance of possession by the respondent in the light of above recital. As a consequence, the appellant remained to be the owner during her lifetime. Under these circumstances, it cannot be construed to be a gift deed in favour of the respondents. At best, it would be only a license in favour of the respondent to remain in possession jointly with the appellant. Therefore, the High Court was not right in concluding that Ex.A1 is a gift deed and that the Mappellant has no title to the property for declaration as he had parted with possession.”
2. Decision of Hon’ble High Court of Judicature, Andhra
Pradesh, at Hyderabad in Kirala Venkatamma died per
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
15
L.R. vs. K.Munaswamy & Others reported in 2018 (4)
ALT 209
In the above decision, their Lordships held that “’The broad tests or characteristics 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 ground would not change the nature of the documents itself, if under the document there was no disposition in praesenti. In such a case the clause prohibiting revocation will be contrary to law and will be ineffective. If, on the other hand, the document is a settlement, merely because 3 right of revocation is given, it would not change the character of the document as a settlement ‘because such a clause will be against law and will be invalid. The nomenclature of the document nor the fact that it had been registered also will not be of any assistance in most of the cases unless the disposition is very ambiguous and extraneous mid is required to construe that clause”.
27.Coming to the present case, as seen from Ex.A1, it is very clear that the document came into force only after the demise of the executant that is the defendant No.1 and the possession of the property is to be taken by the plaintiff and thereafter, to enjoy the same as absolute owner. From the recitals in Ex.A1, it is clear that the plaintiff will become absolute owner only after the demise of the defendant No.1 and no interest over the property is transferred to the plaintiff under Ex.A1 during the lifetime of defendant No.1. Thus, the
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
16 dispositive rights in the suit property were postponed and provided to take effect by the beneficiary only after the demise of the defendant
No.1, but not in praesenti. In view of above all reasons, Ex.A1 is to be construed as ‘Will’ but not a gift settlement deed. Therefore, the defendant No.1 is entitled to revoke the Ex.A1 during her lifetime.
This view of the Court is fortified by the above mentioned decisions relied on by the plaintiff.
28.It is necessary for the plaintiff to establish that the plaintiff is having title over the suit property as on the date of filing of the suit in order to have the relief of declaration of the title of the plaintiff over the suit property. But in the present case, the plaintiff will not acquire any title and possession over the suit property under
Ex.A1 during the lifetime of the defendant No.1. Therefore, it is held that the plaintiff is not entitled for declaration of his title over the suit property and also for recovery of possession of the same for the reason that as on the date of filing of the suit, the defendant No.1 was alive. To the reasons best known to the plaintiff the plaintiff has not taken any steps for amendment of his pleading consequent to the death of the defendant No.1 during pendency of the Appeal Suit. The very pleading of the plaintiff is to the effect that the plaintiff became owner of the suit property under Ex.A1. But the recitals of Ex.A1 clearly shows that the defendant No.1 retained her title and possession over the suit property during her lifetime. Therefore, the very suit of the plaintiff for asking the relief of declaration of his title and for recovery of possession over the suit property during the lifetime of the defendant No.1, is against to the Ex.A1 and the very suit of the plaintiff is premature one. The plaintiff himself is responsible for dismissal of the suit as the very relief of the plaintiff in the present suit during the lifetime of the defendant No.1 is premature one. Ex.A1 is not out and out gift deed. Possession and title over the suit property will devolve on the plaintiff only after the demise of the defendant No.1. From Ex.A1, it cannot be said that the defendant No.1 retained her possession over the suit property with the permission of the plaintiff. The plaintiff can acquire right over the suit property on the demise of the defendant No.1. Therefore, the very suit of the plaintiff for declaration of the title of the plaintiff over
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
17 the suit property and for recovery of possession of the same during the lifetime of the defendant No.1 is premature one and the same is not maintainable.
29.It is not mentioned in Ex.A1 that possession of the suit property is delivered to the plaintiff. Ex.A1 is not intended to be operative immediately from the date of execution of Ex.A1. In the present case, the intention of the defendant No.1 is to transfer the property to her son, who is the plaintiff, after her demise only and there is provision under Ex.A1 that the disposition would come into existence only on the death of the defendant No.1. Hence, Ex.A1 cannot be treated as out and out gift deed. Since the intention of the defendant No.1 is very clear from Ex.A1 that the defendant No.1 intended to transfer interest over the suit property in favour of the plaintiff only on the death of the defendant No.1, the plaintiff is not entitled to ask for the relief of declaration of his title over the suit property and recovery of possession of the same against the defendant No.1 and during the lifetime of the defendant No.1.
30.In view of above all reasons, it is held that the plaintiff is not entitled for declaration of his title over the suit property and also for recovery of possession of the same. Hence, points 1 and 2 are decided against the plaintiff.
POINT No.3 :-
31.The plaintiff filed the suit for declaration of his title over the suit property on the basis of Ex.A1 dated 25.06.1986. The plaintiff filed the present suit in the year 2007. Admittedly, the plaintiff is not in possession of the suit property as on the date of filing of the suit.
There is no recital in Ex.A1 to the effect that the plaintiff was inducted into possession of the suit property under Ex.A1. However, the Court comes to a conclusion on points 1 and 2 that the plaintiff will not acquire any title over the suit property during the lifetime of defendant No.1 under Ex.A1. Therefore, the contention of the defendants that the very suit of the plaintiff filed during the lifetime of the defendant No.1 is barred by the period of limitation, is not accepted and this point is answered against the defendants.
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
18
POINT No.4 :-
32.In view of my findings on points 1 to 3, the impugned judgment and decree dated dated 13.10.2016 in O.S.271/2007 on the file of Principal Senior Civil Judge, Machilipatnam, are not sustainable on law and facts and this point is answered against the plaintiff.
POINT No.5:-
33.In view of my findings on points 1 to 4, the Appeal Suit is to be allowed.
34.In the result, the Appeal Suit is allowed. Consequently, the judgment and decree dated 13.10.2016 in O.S.271/2007 on the file of Principal Senior Civil Judge, Machilipatnam, are hereby set aside and the suit of the plaintiff in O.S.271/2007 on the file of
Principal Senior Civil Judge, Machilipatnam stands dismissed. In the
circumstances of the case, the parties to the Appeal Suit are directed to bear their respective costs involved in the Appeal Suit.
Typed to my dictation by the Stenographer Gr.II directly on computer, corrected and pronounced by me in the open court, this the 16th day of March, 2020.
VI-Addl. District Judge, Krishna, Machilipatnam.
APPENDIX OF EVIDENCE
Oral & Documentary Evidence --NIL--
VI-Addl. District Judge, Krishna, Machilipatnam.
A.S.No.150/2016 VI Addl.District & Sessions Judge’s
Dated 16.03.2020Court, Krishna, Machilipatnam.
19