Section 126 in The Transfer of Property Act, 1882
126. When gift may be suspended or revoked.—The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. Illustrations
(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.
Entire relevant judgment is reproduced;
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Madras High Court
Poongavanam vs Perumal Pillai And Anr. on 1 October, 1996
Equivalent citations: (1997) 1 MLJ 169
Author: Raju
JUDGMENT Raju, J.
1. The above second appeal has been filed by the plaintiff in O.S. No. 313 of 1977 on the file of the District Munsif Court at Kallakurichi, against the judgment and decree of the learned Subordinate Judge, Vridhachalam, dated 28.8.1982 in A.S. No. 153 of 1991, reversing the judgment and decree of learned trial Judge dated 27.1.1981 in O.S. No. 313 of 1977.
2. The plaintiff has filed the suit for declaration of her title to the suit properties, for a directions the 2nd defendant to deliver possession of the suit properties to the plaintiff and for mesne profits.
3. The case of the plaintiff before the trial court was that the properties belonged to the 1st defendant, Pappathi Ammal who was in possession and enjoyment of the same that the plaintiff is the daughter of the maternal uncle of the 1st defendant and the 2nd defendant is the son of the maternal uncle of the 1st defendant. The 1st defendant was stated to have had no issues. The 2nd defendant was said to have obtained a deed dated 7.3.1972 from the 1st defendant fraudulently and that he has also-agreed to pay 3 bags of paddy and Rs. 50 per annum, till the death of the 1st defendant, and inspite of the same, the 2nd defendant had not paid anything to the 1st defendant till 1977 and the 2nd defendant came to know later on that what was got from her executed in favour of the 2nd defendant, was not a will but in the form of a settlement and that therefore, she issued a notice to the 2nd defendant on 19.1.1977, expressing her intention to revoke the said document, that the 2nd defendant sent a reply containing false allegations and thereafter, the 1st defendant executed a revocation deed on 5.9.1977 and consequently/executed a settlement deed in favour of the plaintiff on 5.9.1977 itself and thus, the plaintiff has become absolutely entitled to the suit properties. The plaintiff demanded possession of the suit properties and since the 2nd defendant declined, asserting title to the same, the necessity for the suit arose for the reliefs as noticed supra.
4. The 1st defendant filed a written statement contending that the 2nd defendant got a deed executed by the 1st defendant on 7.3.1972 fraudulently as a deed of settlement which she came to learn about only subsequently that it was in the form of a settlement deed that the document deed dated 7.3.1972 was not proved to be true and valid and that it had not come into force also, that the same was revoked by a revocation deed dated 5.9.1977, and thereafter, a settlement was executed in favour of the plaintiff and she also delivered possession to her and the 2nd defendant appears to have trespassed into the suit property and therefore the suit may be decreed as prayed for.
5. The 2nd defendant filed a written statement contending that the 1st defendant executed only a settlement deed dated 7.3.1972 voluntarily and with intention of conferring title upon the 2nd defendant, that he has been in possession and enjoyment of the suit properties, that the plaintiff has poisoned the 1st defendant and using undue influence over her, has made her to deny the validity of the settlement and1 got it revoked and further got the properties settled in her favour. It was contended further that the 1st defendant had not reserved any right to revoke the settlement and therefore, the plaintiff could not derive any right under the document in her favour.
6. On the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence. On the side of the plaintiff, she got herself examined as P.W. 1 and on the side of the defendants, the 1st defendant got herself examined as P.W. 1 and the 2nd defendant was examined as D.W. 2, in addition to one other third party witness examined as P.W. 3. The learned trial Judge, after considering elaborately the oral and documentary evidence on record and the documents exhibited i.e., the document executed by the 1st defendant in favour of the 2nd defendant, original marked as Ex.B-5 and copy marked as Ex. B-1, as also Ex. B-13 an unregistered agreement executed by the 2nd defendant in favour of the 1st defendant on 7(3.1972 itself, came to the conclusion that the document dated 7.3.1972 (Exs. B-5 and B-1) was only in the form and nature of a will and not a gift deed and that the 2nd defendant had also obtained it by fraud. Consequently, the revocation was held to be valid and in view of the settlement executed on 5.9.1977, the plaintiff's claim came to be accepted and decree passed as prayed for.
7. Aggrieved, the 2nd defendant filed an appeal before the Sub Court, Vridhachalam, in A.S. No. 153 of 1981. The learned Subordinate Judge has chosen to reappreciate the evidence in a different manner and while construing the document Ex. B-5 he came to the conclusion that it was only a settlement and therefore the revocation deed was not valid, since, according to the first appellate Judge, the settlement was absolute and no power of revocation was also reserved. The learned first appellate Judge was also of the view that after executing Ex.B-5 which was accepted and acted upon by the 2nd defendant, the 1st defendant had no title to the suit property and therefore Ex. A-1 settlement deed cannot confer any title upon the plaintiff. On that view, the learned first Appellate Judge allowed the appeal by setting aside the judgment and decree of the trial judge and dismissed the suit. Aggrieved the plaintiff has filed the above appeal.
8. Mr. R. Mohan, learned Counsel for the appellant contended while reiterating the substantial questions of law formulated in the appeal at the time of admission that Ex. B-5 cannot be said to be a settlement deed at all and that having regard to the nature of disposition contained therein, it answers the characteristics of a will only. Argued the learned Counsel further that Ex. P-5 has not been properly proved in accordance with law, inspite of the denial by the 1st defendant and that the first appellate court has miserably failed to keep into account the relevant principles of law governing an adjudication of such dispute and the judgment of the first appellate court suffers from serious infirmities and therefore it is liable to be set aside. There is no representation for the respondents, learned Counsel for the appellant also placed for my consideration the decisions reported in Ramaswami Naidu v. Gopalakrishna Naidu and Ponnuchami Servai v. Balasubramanian as also Jagat Singh v. Dungar Singh , in addition to inviting my attention to the relevant documents marked as Exs. B-5, B-13, A-1 and A-2. Learned Counsel also invited my attention to relevant evidence, which has been specifically adverted to and noticed by the learned trial Judge and which has not been according to learned Counsel, properly adverted to and analysed or appreciated by the learned first appellate Judge in drawing different conclusions deviating from that of the learned trial Judge. The document, marked as Ex.B-5, even assuming for purposes of consideration to be a settlement deed, would in the light of Ex. B-13, would fall within the purview of Section 126 of the Transfer of Property Act. At any rate, the 1st defendant would be entitled to and was well within her rights in revoking the same.
9. I have carefully considered the submissions made by learned Counsel for the appellant in the light of the materials referred to supra, to which my attention was invited. The decision in Ramaswami Naidu's case is that of V. Ramaswami, J. as the learned Judge in analysing the principles governing the adjudication as to whether a particular deed was a will or gift, held as follows:
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 prassenti 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 documents are only a guide to find out whether there was an immediate divestitute of the interest of the executant or whether the disposition was to take effect on the death of the executant' In Ponnuchami Servai's case , V. Sethuraman, J. also had an occasion to deal with a similar issue. The learned Judge adverted to the earlier two Division Bench Judgments and held as follows:
The question whether a particular document is a testamentary or a non-testamentary instrument has been gone into in several cases. It is enough to mention two of the latest Bench decisions namely, (1) Commissioner of Gift Tax, Madras v. C. Thiruvenkata Mudaliar and (2) Ramasami Naidu v. M.S. Velappan (1979)2 Mad. L.R. 88. Though the second decision does not refer to the first, to which I was a party, still the principles enunciated in both the decisions are not materially different. Normally speaking, every document has to be construed with reference to the language it contained and therefore, a decision construing one document cannot be an authority for construing another document except to the extent that the said decision may lay down certain principles or guide lines. The principles enunciated in this class of cases is that a testamentary bequest is revocable as the interest contemplated therein is intended to pass only after the lifetime of the testator, while a settlement or a gift which comes into operation immediately is irrevocable. Even if a will contains a Clause that it is not revocable, the law makes it revocable whereas in a gift or settlement, if there is a Clause that the settlor or donor can revoke it, still it will remain irrevocable under the law, because the donee obtains his interest in the property on the execution of the document itself. Consequently, whether a particular document contains a provision as to whether it is revocable or irrevocable is not decisive of the question whether it is a will or a gift, similarly the caption or the nomenclature given by the parties to the transaction is again not decisive of the question as to whether it is a will or a gift. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a will, it would operate only as a gift. Similarly, if a document contains provisions which showed that the disposition would come into existence only on the death of the executant of the document, even if the parties call it a settlement, it would be only a will. The fact of registration alone would not render the document a settlement if it, in other respects, is a will. Thus, the real and the only reliable test for the purpose of finding out whether the document constitutes a will or a gift is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended transfer of interest in favour of the beneficicary only on the death of the executant.
The principles laid down in the above two decisions succintly indicate the approach to be adopted and the tests to be applied in determining the character of a document, as to whether a particular document in dispute is a settlement deed or merely a will. So far as the document in question, marked as Ex. B-5 is concerned, it is seen from the recitals contained therein that the 1st defendant had executed the said document in favour of the 2nd defendant, he being the son the maternal uncle of the 1st defendant and that she had no other issues out of sheer love and affection. So far as the relevant portion relating to the disposition part of the deed is concerned, it is found recited as follows:
10. The recitals extracted above only indicates that the property given under the settlement could be^ enjoyed by him without any rights of alienation and. it is only after the lifetime of the executant viz., the I st defendant, he (2nd defendant) shall acquire absolute rights in respect of the property with rights to sell and encumber the property by assuming absolute control and enjoyment of the property. The above recitals would go to show that not only the document was a crisp one and that there is no specific or clear and absolute instant disposition and transfer of interest in praesenti in favour of the beneficiary under the document but equally, there is absolutely no complete divestation of the right, title or interest of the executant on the date of the execution of the deed, such conferment of rights are postponed till the lifetime of the 1st defendant. The recitals them - selves, in my view, are sufficient in law to show that it is only in the nature of a will and at any rate not a settlement absolute, the document thus being tested in the light of well-settled principles and often reiterated by the courts.
11. This finding by itself is sufficient in law to justify the decree granted by the learned trial Judge. That apart, the learned trial Judge has adverted to the other aspect also, which in my view, is not only relevant but also a vital factor going to the root of the very case, pleaded and asserted by the defendants. The 1st defendant is an illiterate lady and a marks woman not knowing to sign her name also. She had come up with the positive case of misrepresentation and fraud played upon her about the document she had executed, representing it to be a will and not a settlement. Even in the teeth of such a claim, the 2nd defendant has not chosen to properly prove the document by examining any one of the witnesses, though as found recorded in para 8 of the judgment of the learned trial Judge, the attestors were present in court also. This omission, taken together, with the conduct of the 2nd defendant, having got such a document executed in his favour by executing Ex. P-13, though an unregistered document, would only go to show that the understanding between the parties to the document dated 7.3.1972 as to the nature and character of the transaction, though the 2nd defendant was reckless enough to dispute his signature found in Ex. B-13, and apart from D.W. 1, the 1 st defendant, one of the attestors to the said document has also been examined as D.W. 3 to prove the same decides the above, the vital circumstances that the stamp papers, on which the document, Ex. B-13 was found to be engrossed, was also found to have been purchased, in the name of Pappathi Ammal, the 1st defendant with continuous serial numbers, connecting from 2612 to 2619, of which, Ex. B-5, was found engrossed on stamp papers bearing serial Nos. 2612 to 2617 and Ex. B-13 found engrossed on stamp papers bearing serial Nos. 2618 and 2619. All these relevant aspects have been adverted to by the learned trial judge to come to the conclusion that the 2nd defendant got Ex. B-5 executed by the 1st defendant fraudulently and that taking into account the peculiar circumstances under which it came to be executed as also the nature of the recitals, the same was not and could not be considered to be a settlement absolute in terms and therefore, it has to be considered as a will. The learned first Appellate Judge has not only miserably failed to advert to and give effect to such vital and relevant facts, noticed by the learned trial Judge, but adopted a summary method of consideration, which is superficial in nature and without also making any reference to the relevant principles to be kept into consideration in adjudicating the character of the document of the nature in question or the issue before the court, viz., the dispute between the competing claimants being as to whether it was a settlement or a will. Viewed from any angle, viz, the contents and recitals contained in Ex. B-5 itself or the surrounding circumstances and the lapse on the part of the 2nd defendant in properly providing Ex. B-5, the document Ex. B-5 has been rightly construed by the learned trial Judge and the construction placed by the first appellate court cannot at all be coutenanced in law. The first appellate Judge has wholly misconstrued the relevant principles of law governing the same and misdirected himself, besides misconstruing the evidence on record in arriving at his conclusion to disturb the well merited findings recorded by the learned single Judge.
12. Further as rightly pointed out by the learned Counsel for the appellant, even for the purpose of construction and as to how the document Ex. B-5 has to be considered, the nature of the transaction has to be considered in the light of Ex B-13, contemporaneously executed by the 2nd defendant in favour of the 1st defendant, as forming part of one and the same transaction resulting in the execution of Ex. B-5 and viewed thus, the failure on the part of the 2nd defendant to adhere to the conditions stipulated in Ex. B-13 would entitle the 1 st defendant to legitimately revoke Ex. B-5 and the principles of law contained in Sections 31 and 126 of the Transfer of Property Act will definitely come to the rescue of the 1st defendant to revoke the document Ex. B-5, as has been done by her. The said claim of learned Counsel for the appellant is sought to be justified by relying upon the decision reported in Jagat Singh v. Dungar Singh . It is useful to refer to the headnote itself, which is clear and succintly brings put the ratio of the said decision set out in the following terms:
One D executed a deed of gift in favour of one J which was registered. On the same day, the donee executed an unregistered deed of agreement by which it was agreed that the donee would maintain the donor till his death and that if he failed to do so, the donor might revoke the deed of gift or in the alternative obtain maintenance allowance, Held, that the deed of gift and the agreement formed part of the sale transaction. The transac1 tion read as a whole fell within the purview of Sections 31 and 126, Transfer of Property Act. The omission to make the payment of the donee agreed upon would constitute the happening of the specified event mentioned in Section 126 and also the happening of the specified uncertain event mentioned in Section 31. The agreement as to the condition upon which the donor was given the right to revoke the deed of gift did not require registration. It was enough that the deed of gift was registered. The donor was therefore entitled to revoke the deed of gift on the donee's failure' to maintain him.
I am in entire agreement with the principles laid down by the learned Judge in the above decision and the case on hand is ad idiom similar to the one considered by the learned single Judge of the Allahabad High Court. Applying the said ratio also it has to be held that the transaction, read as a whole, falls within the purview of Sections 31 and 126, Transfer of Property Act, 1882 as also Section 127 thereof and in view of the omission and lapse committed by the 2nd defendant to adhere to his part of the obligations the 1 st defendant was well within her rights to revoke the deed, marked as Ex. B-5 consequently, once the revocation made under Ex. A-2 dated 5.9.1977 is held to be valid, the settlement under Ex. A-1 executed on the same day of Ex. A-2 is equally valid and the learned trial Judge was right in sustaining the claim of the plaintiff and decreeing the suit as prayed for and the judgment and decree of the learned first appellate judge, which suffers from serious infirmities, as noticed supra, are hereby set aside and that of the learned trial Judge restored. The second appeal is allowed, with costs in the second appeal.
