TMI Blog2001 (3) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... nd recovery of possession of the suit property. O.S.No.2986 of 1986 was presented on 30.8.1985 before this Court and then transferred to the City Civil Court. O.S.No.2987 of 1986 was filed on 9.3.1988 in this Court and then transferred to City Civil Court. Both the suits were heard together by The III Assistant Judge, who dismissed them. Aggrieved thereby, A.S.No.151 of 1998 (O.S.No.2986 of 1986) and A.S.No.150 of 1998 (O.S.No.2987 of 1986) were filed. A.S.No.150 of 1998 was dismissed confirming the decree of the Trial Court. A.S.No.151 of 1998 was partly allowed with regard to the National Savings Certificate alone, in other respects, the decree of the Trial Court was confirmed. Thus the above two second appeals have been filed. S.A.No.806 of 1999 is against A.S.No.150 of 1998 and S.A.No. 127 of 1999 is against A.S.No.151 of 1998. 3. The final decision in the second appeals will depend upon whether the deed dated 5.6.1970 was a gift and whether it came into effect. For this purpose the crucial recitals of this deed will have to be seen. Clause (1) : The settlor settles the property described in Schedule A on the first beneficiary herein, who shall be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a family settlement deed which was executed by Varadaiya Chetty in favour of Arunachalam and Jamuna Bai, to appellant herein. This has been executed on the same date as the deed in dispute in Ex-A1. Under Ex-A20 another property, which is at Arumugham. Street is dealt with. Both were intended to come into effect immediately. The counsel also referred to Ex-A30 which is a sale deed executed by the first respondent herein disposing of certain property which had come to her husband. The learned counsel referred to Ex-A30 which is a sale deed executed by the first respondent herein disposing or certain property which had come to her husband. The learned counsel referred to this deed to show that there was a partition in the family and Ex-A30 would show that the partition had been given effect to and the properties allotted to each party and enjoyed by them separately. He referred to the relevant clause in Ex-A1. He submitted that the word hereby in clause 1 would show that there was a transfer in praesenti and it cannot be construed as a Will. He submitted that clauses 1, 2 and 3 should be read together. If so, it would show that the settlor namely Varadaiya Chetty intended the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lingam, where this Court has held that when a settlement deed had been accepted and acted upon there is no need or warrant to cancel the same. (3) A.Sreenivasa Pai and another v. Saraswathi Ammal alias G. Kamala Bai, AIR 1965 SC 1359 in which the Supreme Court considered the document to be a settlement deed and held that the death of the ultimate beneficiary during the life time of the life estate holder will not have the effect of defeating the right which had already vested on the beneficiary. (4) Govindammal and others v. Ammasi Rounder, 1998 (II) MLJ 267 in which this Court held that, So far as revocation of the settlement deed under Ex-B1 is concerned it is the established legal provision that unless power of revocation was reserved in the document itself, the power of revocation could not be exercised. When once Exs-A2 to A4 are held to be valid then the settlor would not have any right to deal with the properties of which she had divested herself. (5) R. Kumarasamy Kounder v. V. Ezhumalai Kounder, , in which this Court has held that, Since it is not an onerous gift, a very slight evidence is sufficient to prove acceptance. The circumstances them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of Property Act, 1882, Section 123 -- Gift -- Valid gift consists of voluntary transfer of immovable property by donor without consideration and acceptance of such transfer by donee -- Mother executing settlement deed in favour of her daughter by registered document attested by two witnesses --Daughter accepting such gift and raising loan by mortgaging part or gifted property -- Original sale deed in respect of property in possession of daughter -- Daughter has accepted and was in constructive possession of gifted property -- Gift complete and valid. 8. Finally, he placed great reliance on the decision reported in Namburi Basava Subrahmanyam v. Alapati Hymavathi and other, which according to him arose out of a case which was very similar to this case and in which the Supreme Court held that the recitals indicated that the settlement deed was intended to take effect on that very same day. Placing reliance on all these decisions as also on the facts of the case the learned counsel would submit that the recitals clearly show that the transfer was in presenti and that Ex-A1 was accepted since the beneficiaries were living together with the settlor and therefore, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of construction. (4) Kesava Kurup Raghava Kurup v. Thomas Idicula and another, where the Kerala High Court have held that acceptance being an essential factor if a validity or a girt must be proved or made out by the person relying on it. (5) P.S. Deivaprasad @ P.S. Veerabadran v. Dr. P.D. Balaji and eleven others, 2001 (1) CTC 520, wherein this Court has held that, Will -- Settlement -- Distinction -- Where, there is absolute and instantaneous transfer of interest in praesenti to beneficiary and where there is absolute or complete disinvestment of right, title, interest or executant on date of execution it is settlement -Absolute and instantaneous transfer of interest in favour of beneficiary is settlement -- Where conferment of right is postponed till life time of executant and beneficiaries will get interest after life time of executant it is Will -- Description of document is immaterial to determine whether particular document is in nature or Will or Settlement. Construction of documenl -Documents styled as Settlement Deed and registered -- Property given under document to be enjoyed by executant without any power of alienation and after life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property is only subject to Arunachalam's dying without any natural children. Clause 1 is very clear. It says that the property is settled on the first beneficiary namely Arunachalam after (Italics supplied) the life time of the settlor and the settlor was entitled to possess and enjoy the rent and profits during his lifetime. Therefore, so long as the settlor lived the first beneficiary got nothing. After the settlor's lifetime the first beneficiary got only a right to enjoy the income from the said property. Then after the first beneficiary's lifetime the vesting would be in the natural children of the first beneficiary failing which in Ajit Kumar. Therefore, a very plain reading of the document shows that no right vested in the first beneficiary on the date of Ex-A1. The passing of any right from the settlor to the first beneficiary, is after the life time of the settlor. The settlor may have called this deed anything. He may have intended that the property should devolve on the persons named thereunder in the manner described by him, but, he definitely did not intend to give anything to the first beneficiary on the date of the settlement deed. Now let u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to draw an inferenced of acceptance must be acts of positive conduct on the part of the donee or persons acting on his behalf and not merely passive acquiescence, such as standing by when the deed was executed or was registered. This shows that mere standing by when the deed was executed or registered will not be sufficient to prove acceptance. It is true as pointed out by the learned counsel for the appellant that it was extremely probable that Arunachalam was standing beside his father Varadaiya Chetty when Ex-A1 was registered. But that alone will not amount to acceptance. The learned counsel for appellant submitted that the title deeds were with the appellant, so this should prove delivery and acceptance. Even regarding the title deeds in the plaint the appellant had averred that Varadaiya Chetty had insisted and prevailed upon the plaintiff to give the documents of title relating to the suit property. From this the learned counsel wanted to draw the conclusion that custody of the title deed would show acceptance. However, in the evidence she has stated that, Therefore, even with regard to custody of title deeds the evidence and the pleadings are very unsatisfactory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring his life time which would only mean that the vesting of the life interest could take place and was intended to take place after the life time of the settlor. The use of the words revocable or irrevocable are also not determining factors. It is on the basis of a similar reasoning that in P.S. Deivaprasad @ P.S. Veerabadran v. Dr. P.D. Balaji and eleven others, 2001 (1) CTC 520, the document was held to be not a settlement. The decision relied on by Namburi Basava Subrahmanyam v. Alapati Hymavathi and other, in which the settlor settled the property to her daughter. after my death to be enjoyed by you with the absolute rights. It also had the following recitals: this deed of settlement got executed and delivered to you. In that case, the learned Judges of the Supreme Court rely upon certain recitals in the Schedule to the settlement deed to arrive at the conclusion that the deed is a settlement. What the recitals are is not made known in the judgment as reported, further the words delivered to you are also present which are not there in this case and also in that case the settlor retained the life interest and gave the absolute interest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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