Supreme Court of India
MATHAI SAMUEL AND ORS.versusEAPEN EAPEN (DEAD) BY LRS. AND ORS.
- Citation
- 2012 INSC 526
- Decided
- 21 November 2012
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
Exhibit A1 is a composite document and the provisions relating to Schedule 8, item 1, are testamentary in nature, not a present settlement or gift.
Summary
The appeal concerned whether the recitals in Exhibit A1, particularly item 1 of Schedule 8, created a testamentary disposition (a Will) or a settlement/gift that vested rights in the plaintiffs during the executants' lifetimes. The Supreme Court examined the nature of the composite document, distinguishing between testamentary dispositions, which take effect only on death, and settlements/gifts, which operate in praesenti. It held that Exhibit A1 is a composite instrument, and the provisions relating to Schedule 8, item 1, are testamentary, not a present settlement, because the executants retained full control and no present transfer of interest was effected. Consequently, the lower appellate and High Court decisions were set aside and the trial court decree restored. The appeal was allowed.
Issues considered
- Whether the recitals in Exhibit A1 concerning item 1 of Schedule 8 constitute a testamentary disposition or a settlement/gift creating vested rights in favour of the plaintiffs.
- How a composite document containing both testamentary and settlement characteristics should be interpreted.
- Whether registration of a composite document affects its characterization as a Will.
- Whether subsequent conduct of the parties can be considered in construing the document when its language is unambiguous.
Legislation cited
Subjects
Testamentary dispositionSettlementComposite documentWill interpretationIndian Succession ActTransfer of Property ActRegistration ActConstruction of documentsIntention of partiesProperty partition
Judgment
[2012) 10 S.C.R. 1098
A MATHAI SAMUEL AND ORS.
v.
EAPEN EAPEN (DEAD) BY LRS. AND ORS.
(Civil Appeal No. 8197 of 2012)
NOVEMBER 21, 2012
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Deeds and Documents - Testamentary disposition and
settlement - Difference - Held: The real and the only reliable
C test for the purpose of finding out whether a document ·
constitutes a Will or a gift is to find out as to what exactly is
the disposition which the document has made, whether it has
transfeffed any interest in praesenti in favour of the settlees
or it intended to transfer interest in favour of the settlees only
D on the death of the sett/ors.
Deeds and Documents - Composite document -
Interpretation of - Held: The composite character of a
document is to be examined and interpreted in accordance
E with the normal and natural meaning discernible from that
document - A composite document is severable and if in part
clearly testamentary, such part may take effect as a Will and
other part if it has the characteristics of a settlement and that
part will take effect in that way.
F Deeds and Documents - Composite document having
characteristics of a Will as well as a gift - Registration of such
document, if necessary - Held: In a composite document,
which has the characteristics of a Will as well as a gift, it may
be necessary to have that document registered otherwise that
G part of the document which has the effect of a gift cannot be
given effect to - Therefore, it is not unusual to register a
composite document which has the characteristics of a gift as
well as a Will - Consequently, mere registration of document
cannot have any determining effect in arriving at a conclusion
H 1098
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1099
(DEAD) BY LRS.
that it is not a Will - A Will' need not necessarily be registered A
- But the fact of registration of a 'Will' will not render the
document a settlement - Registration Act, 1908 - s. 17.
Deeds and Documents - Rule of construction - Intention
- Golden rule - Held: The primary rule of construction of a
8
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 - There is a need to carry on the exercise of
construction or interpretation of the document only if the C
document is ambiguous, or its meaning is uncertain - If the
language used in the document is unambiguous and the
meaning is clear, evidently, that is what is meant by the
executants of the document - The expressed intentions are
assumed to be actual intentions - Contemporary events and
circumstances surrounding the execution of the document are D
not relevant in such situations.
Deeds and Documents - Subsequent events or conduct
of parties - Effect - Held: Subsequent events or conduct of
parties after execution of the document not to be taken into E
consideration in interpreting a document especially when
there is no ambiguity in the language of the document - But
those events a/so may be referred to, only to re-enforce the
fact that there is no ambiguity in the language employed in
the document. F
Will - Essentials of - Discussed.
Will - Interpretation of - Held: In the interpretation of Will
in India, regard must be had to the rules of law and
construction contained in Part VI of the Indian Succession Act G
and not the rules of the Interpretation of Statutes - Indian
Succession Act, 1925 - s.2(h) and Part VI.
Transfer of Property Act, 1882 - s. 122 - Gift - Meaning
of.
H
1100 SUPREME COURT REPORTS [2012) 10 S.C.R.
A In the instant appeal, the question which arose for
consideration was whether in the suit in question filed for
partition and separate possession of various items of
properties, the recitals in exhibit A1 document (written in
Malayalam language) concerning item No.1 of schedule
B No. 8 therein (item No. 1 of the plaint schedule) disclosed
a testamentary disposition or a settlement creating
vested rights in favour of the plaintiffs and defendant Nos.
1 to 3, though possession and enjoyment stood deferred
until the death of the executants (who were Indian
c Christians).
Allowing the appeal, the Court
HELD:1. Exhibit A1 is written in Malayalam language.
From the English version of that document, it is clear that
D Exhibit A1 document is composite in character and has
both the characteristics of a settlement and a
testamentary disposition. [Paras 9, 10 and 11] [1112-D;
1115-H; 1116-C]
E P. K. Mohans Ram v. B. N. Ananthachary and Others
(2010) 4 SCC 161: 2010 (3) SCR 401 and Rajes Kanta Roy
v. Shanti Debi and Another AIR 1957 SC 255: 1957 SCR 77
- cited.
Settlement and Testamentary Disposition
F
2.1. There is a basic and fundamental difference
between a testamentary disposition and a settlement. Will
is an instrument whereunder a person makes a
disposition of his properties to take effect after his death
G and which is In its own nature ambulatory and revocable
during his lifetime. It has three essentials: (i) it must be a
legal declaration of the testator's intention; (ii) that
declaration must be with respect to his property; and (iii)
the desire of the testator that the said declaration should
H be effectuated after his death. The essential quality of a
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1101
(DEAD) BY LRS.
testamentary disposition is ambulatoriness of A
revocability during the executants' lifetime. Such a
document is dependent upon executants' death for its
vigour and effect [Paras 11, 12] [1116-C-F]
2.2. Section 2(h) of the Indian Succession Act says 8
''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". In the instant case,
the executants were Indian Christians, the rules of law
and the principles of construction laid down in the Indian C
Succession Act govern the interpretation of Will. In the
interpretation of Will in India, regard must be had to the
rules of law and construction contained in Part VI of the
Indian Succession Act and not the rules of the
Interpretation of Statutes. [Para 13] [1116-G-H; 1117-A]
D
2.3. Gift/settlement is the transfer of existing property
made voluntarily and without consideration by one
person called the donor to another called the donee and
accepted by or on behalf of the donee. Gift takes effect
by a registered instrument signed by or on behalf of the E
donor and attested by at least two witnesses. Section 122
of the Transfer of Property Act defines the "gift" as a
voluntary transfer of property in consideration of the
natural love and affection to a living person. [Para 14]
[1117-B] F
2.4. In the case of a Will, the crucial circumstance is
the existence of a provision disposing of or distributing
the property of the testator to take effect on his death. On
the other hand, in case of a gift, the provision becomes
operative immediately and a transfer in praesenti Is G
intended and comes into effect. A Will is, therefore,
revocable because no interest is intended to pass during
the lifetime of the owner of the property. In the case of
gift, it comes into operation immediately. The
nomenclature given by the parties to the transaction in H
1102 SUPREME COURT REPORTS [2012] 10 S.C.R.
A question is not decisive. A Will need not be necessarily
registered. The mere registration of 'Will' will not render
the document a settlement. In other words, the real and
the only reliable test for the purpose of finding out
whether the document constitutes a Will or a gift is to find
B out as to what exactly is the disposition which the
document has made, whether it has transferred any
interest in praesenti in favour of the settlees or it intended
to transfer interest in favour of the settlees only on the
death of the settlors. [Para 15] [1117-C-F]
C Composite Document:
3.1. A composite document is severable and if in part
clearly testamentary, such part may take effect as a Will
and other part if it has the characteristics of a settlement
D and that part will take effect in that way. A document which
operates to dispose of properly in praesenti in respect of
few items of the properties is a settlement and in future in
respect of few other items after the deeds of the
executants, it is a testamentary disposition. That one part
E of the document has effect during the life time of the
executant i.e. the gift and the other part disposing the
property after the death of the executant is a Will. [Para
16] [1117-G-H; 1118-A·B] '
3.2. In a composite document, which has the
F characteristics of a Will as well as a gift, it may be
necessary to have that document registered otherwise
that part of the document which has the effect of a gift
cannot be given effect to. Therefore, it is not unusual to
register a composite document which has the
G characteristics of a gift as well as a Will. Consequently,
the mere registration of document cannot have any
determining effect in arriving at a conclusion that it is not
a Will. The document which may serve as evidence of the
gift, falls within the sweep of Section 17 of the
H
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1103
(DEAD) BY LRS.
Registration Act. Where an instrument evidences A
creation, declaration, assignment, limitation or extinction
of any present or future right, title or interest in
immovable property or where any instrument
acknowledges the receipt of payment of consideration
on account of creation, declaration, assignment, limitation B
or extinction of such right, title or interest, in those cases
alone the instrument or receipt would be compulsorily
registrable under Section 17(1) (b) or (c) of the
Registration Act. A 'Will' need not necessarily be
registered. But the fact of registration of a 'Will' will not c
render the document a settlement. Exhibit A1 was
registered because of the composite character of the
document. [Para 17] [1118-C-F]
Rev. Fr. M. S. Poulose v. Varghese and Others. (1995)
Supp 2 SCC 294: 1995 (3) SCR 126 - referred to. D
Intention - Guiding Factor:
4. The primary rule of construction of a document is
the intention of the executants, which must be found in E
the words used in the document. The question is not
what may be supposed to have been intended, but what
has been said. There is a need to carry on the exercise
of construction or interpretation of the document only if
the document is ambiguous, or its meaning is uncertain.
If the language used in the document is unambiguous F
and the meaning is clear, evidently, that is what is meant
by the executants of the document. Contemporary
events and circumstances surrounding the execution of
the document are not relevant in such situations. [Para
18] [1118-G-H; 1119-A-B] G
King v. Meling (1 Vent. At p. 231); Doe Long v. Laming
(2 Burr. At pp. 11-12); Re Stone, Baker v. Stone (1895) 2
Ch. 196 at p. 200; Shore v. Wilson 9 Cl. & F. 355; Musther,
H
1104 SUPREME COURT REPORTS [2012] 10 S.C.R.
A Re (1889) 43 Ch.D. 569 and Sammut v. Manzxi [2009) 1
W.T.L.R. 1834 - referred to.
Halsbury's Laws of England, 4th Edn., Vol.50, p.239;
Interpretation of Wills and Settlements - by Underhill and
Strahan (1900 Edn.) and Theobald on Wills (17th Edn.
8
2010) - referred to.
Golden Rule
5. The composite character of exhibit A1 document
c is to be examined and interpreted in accordance with the
normal and natural meaning which is discernible from
that document. In order to ascertain the intention of the
testator, the point for consideration is not what the
testator meant but what that which he has written means.
0 The expressed intentions are assumed to be actual
intentions. [Para 23] [1120-H; 1121-A-B]
A. Sreenivasa Pai and Anr. v. Saraswathi Ammal alias
G. Kamala Bai (1985) 4 SCC 85: 1985 (2) Suppl. SCR 122
and C. Cheriathan v. P. Narayanan Embranthiri and
E Ors. (2009) 2 sec 673: 2008 (17) SCR 1239 - relied on.
Rajendra Prasad Bose and Anr. v. Gopal Prasad
Sen AIR 1930 PC 242 - referred to.
F Exhibit A1 - Meaning and Effect
6.1. Some of the expressions used in exhibit A1 need
emphasis which are "absolutely settled", "our lifetime",
"separately and absolutely" and the Malyalam words
"adheenadha (control)" and "swathanthryam (liberty/
G freedom)". The words which are used in a document have
to be understood in its normal and natural meaning with
reference to the language employed. The words and
phrases used in a document are to be given their
ordinary meaning. When the document is made, the
H
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1105
(DEAD) BY LRS.
ordinary meaning has to be given to the document, which A
is relevant. Executants have used the Malyalam words
'adheendha' and 'swathanthryam' which must be referable
to the ordinary usage of Malayalam language at the time
when the document was executed. Words of usage, in
Malyalam language, therefore be given their usual, B
ordinary and natural meaning or signification according
to the approved usage because primarily the language
employed is the determinative factor of legislative
intention. Consequently, the word 'adheenadha' means
control, domination, command, manage etc. c
'Swathanthryam' means liberty, freedom, independence
etc. Those words emphasize the fact that the executants
had retained the entire rights over the property in
question and not parted with. [Para 24) (1121-D-H; 1122-
A] D
6.2. Exhibit A1 document is divided into schedule
Nos. 1 to 9. Properties described in schedule Nos. 1 to 6
as per the terms of the document stood absolutely vested
in praesenti and undoubtedly settled in favour of the
executants sons. Evidently, therefore, that part of the E
document has the characteristics of a settlement. Rest of
the schedule Nos. 7, 8 and 9 have different characteristics
in contradistinction with schedule Nos. 1 to 6. Schedule
No. 7 of exhibit A1 document clearly indicates that the
same is required for the marriage and dowry purposes F
of the daughter of the executants, by name Thankamma.
The document clearly indicates that the marriage of their
daughter would be conducted by the executants since it
is their responsibility. Further, it is also stipulated that if
the daughter does not get married during their lifetime, G
the property in schedule No. 7 shall after their lifetime
belong absolutely to their daughter. [Para 25) [1122-8-D]
6.3. So far as schedule No. 9 is concerned, the same
would be retained by the executants in their full control
(adheendha) and freedom (swathanthryam). In other words. H
1106 SUPREME COURT REPORTS (2012] 10 S.C.R.
A schedule No. 9 shall be possessed by the executants and
the income therefrom be taken directly by leasing out, if
need be, by executing such documents as desired.
Further, it is also stated with regard to schedule No. 9 that
after "our lifetime" if the property is left, "you all" (all the
s sons) may take it in equal shares. [Para 26] [1122-E-F]
6.4. With regard to sub-item 1 of schedule No. 8 in
exhibit A1, it has been stated in the document that the
executants are keeping possession and would utilize the
C income derived from them directly or by leasing it out to
discharge the amounts due to the bank and after its
clearance, the income from schedule No. 8 would be
utilized for "our maintenance". Further, it is also stated
that after "our lifetime", item No. 2 in schedule No. 8 will
belong absolutely to third party and item Nos. 1 and 3
D would belong to you "absolutely" and "separately" in
equal shares and accordingly they may hold and enjoy
the properties by paying tax thereof. No rights, in
praesenti, were created, on the other hand all the rights
including possession were retained by the executants. In
E other words, so far as item No.1 in schedule No. 8 of
exhibit A1 is concerned, the executants had retained
possession, full control as well as freedom to deal with
it. The contention of the respondent that the executants
had consciously omitted the power of alienation with
F regard to Schedule No.8, unlike Schedule No.7, is not
correct: The question is not whether the executants had
retained any right but whether the executants had
conferred any right on the beneficiaries. Right, title,
interest, ownership and the power of alienation of the
G executants were never in doubt and they had always
retained those rights, the point in dispute was whether
the property in question had been settled on the sons
absolutely during their life time; barring possession and
enjoyment No right, title, interest, or ownership had been
H conferred when the document was executed or during
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1107
(DEAD) BY LRS.
the life time of the executants to their sons in respect of A
item No.1 of Schedule 8 of exhibit A1. There is marked
difference in the language used in respect of properties
covered by Schedule Nos. 1 to 6 and rest of the
Schedules. Admittedly, Schedule Nos. 7 and 9 are
testamentary in character and in the view of this Court, B
Schedule 8 also, when the meaning ascribed to the
various words used and the language employed is
examined. [Para 27) [1122-G-H; 1123-A-G]
K. Ba/akrishnan v. K. Kama/am and Ors. (2004) 1 SCC
581: 2003 (6) Suppl. SCR 1097 and Kale and Ors. v. Deputy C
Director of Consolidation and .Ors. (1976) 3 SCC 119: 1976
(2) SCR 202 - held inapplicable.
Subsequent events:
D
7.1. Subsequent events or conduct of parties after
the execution of the document shall not be taken into
consideration in interpreting a document especially when
there is no ambiguity in the language of the document.
But one may refer to those events also only to re-enforce E
the fact that there is no ambiguity in the language
employed in the document. [Para 28) [1123-H; 1124-A]
7 .2. The executants, it may be noted, had jointly
executed a mortgage on 12.11.1955 (exhibit 82) to one
Mathew in which they had affirmed their right to execute F
such a mortgage and traced it to exhibit A1 document.
Further, the executants had not parted with possession
of item No.1 of 8th Schedule of exhibit A1 to their sons,
at any point of time and retained ownership. Exhibit 83
document was executed in favour of 3rd defendant on G
18.07.1964 and later he sold the property to 4th defendant
on 23.01.1978 (exhibit 81). Now from 1978 onwards, the
4th defendant, a stranger to the family, has been in
exclusive possession and ownership of the property.
Even though Ext.83 was executed on 18.07.1964, the suit H
1108 SUPREME COURT REPORTS [2012] 10 S.C.R.
A was filed only on 6.2.1978, that is, after more than thirteen
years. It will also be unjust to deprive him of his
ownership and possession at this distance of time. [Para
29] (1124-8-E]
7.3. The right, title, interest, possession and
8
ownership of item No.1 of 8th Schedule of Ex.A1 were
with the executants and they had the full control and
freedom to deal with that property as they liked unlike
Schedule Nos. 1 to 6. Therefore, so far as that item is
concerned, the document in question cannot be
C construed as a settlement or a gift because there is no
provision in the document transferring any interest in
immovable property in praesenti in favour of settlees i.e.
their sons. [Para 30) (1124-E-G]
D Case Law Reference:
2010 (3) SCR 401 cited Para 7
1957 SCR 77 cited Para 7
1995 (3) SCR 126 referred to Para 16
E
(1 Vent. At p. 231 referred to Para 19
(1895) 2 Ch. 196 referred to Para 19
9 Cl. & F. 355 referred to Para 19
F
(1889) 43 Ch.D. 569 referred to Para 22
(2009) 1 W.T.L.R. 1834 referred to Para 22
1985 (2) Suppl. SCR 122 relied on Para 23
G AIR 1930 PC 242 referred to Para 23
2008 (17) SCR 1239 relied on Para 23
2003 (6) Suppl. SCR 1097 held inapplicable Para 27
H 1976 (2) SCR 202 held inapplicable Para 27
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1109
(DEAD) BY LRS.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
8197 of 2012.
From the Judgment & Order dated 12.3.2009 of the High
Court of Kerala at Ernakulam in SA No. 686 of 1994.
T.L. Viswanatha Iyer, T.G. Narayanan, Nair, K.K. Unni, K.N. B
Madhusoodhanan for the Appellants.
Amit George, George Thomas, R. Sathish, Omana
George, S. Geetha, Aljo K. Joseph, G.N. Reddy, Ranjan Kumar
for the Respondents. c
The Judgment of the Court was delivered by
K. S. RADHAKRISHNAN, J. 1. Leave granted.
2. We are, in this appeal, called upon to determine the o
question whether the recitals in exhibit A 1 concerning item No.1
of schedule No. 8 therein (item No. 1 of the plaint schedule)
discloses a testamentary disposition or a settlement creating
vested rights in favour of the plaintiffs and defendant Nos. 1 to
3 though possession and enjoyment stood deferred until the E
death of the executants.
3. O.S. No. 169of1990 was instituted before the court of
Subordinate Judge, Thiruvalla by the original plaintiffs and one
Eapen for partition and separate possession of various items
of properties, of which, we are in this appeal concerned only F
with item No. 1 of the plaint schedule. The trial court passed a
preliminary decree giving various directions, however with
regard to the above mentioned item which relates to 3 acre 40
cents, it was held that exhibit A 1 document did not preclude
the executants' rights for disposing the same during their G
lifetime. Consequently, the trial court held that so far as item
No.1 in schedule No. 8 of exhibit A 1 is concerned, the same
has the characteristics of a testamentary disposition, therefore
not available for partition. The court held that 83 sale deed
executed in favour of 3rd defendant in the year 1964 by H
1110 SUPREME COURT REPORTS [2012) 10 S.C.R.
A Sosamma Eapen was valid so also 81 sale deed executed in
the year 1978 by the 3rd defendant in favour of 4th defendant.
4. The plaintiffs took up the matter in appeal as A.S. No.
62 of 1991 before the court of District Judge, Pathanamthitta,
which was allowed vide judgment dated 26.03.1994 and the
8 decree and judgment of the trial court was modified and a
preliminary decree was passed allowing partition and
possession of 3/6th share of various items including sub-item
1 of schedule No. 8 of exhibit A 1 document. The Appellate
Court took the view that the above item was settled by exhibit
C A 1 in favour of the original plaintiffs and defendant Nos. 1 to 3
jointly though its possession and enjoyment were deferred till
the death of the executants. It was also held that the assignment
deed, executed by one of the executants and later by 3rd
defendant, was not binding on the plaintiffs.
D
5. Defendant Nos. 3 and 4 then filed Second Appeal No.
686/1994 before the High Court. The High Court affirmed the
judgment of the lower appellate court vide judgment dated
12.03.2009. While the appeal was pending befor~ the High
E Court, the 3rd defendant died and his legal heirs got themselves
impleaded. The High Court took the view that disposition with
regard to the above mentioned item was not ambulatory in
quality or revocable in character during the lifetime of the
executants and held that the disposition of the plaint item No.
1 is a settlement though possession and enjoyment were
F deferred. It was held that the executants had no right of disposal
of that item and hence the transfer in favour of defendant No.3
and the subsequent assignment in favour of defendant No.4
were invalid. Aggrieved by the same, these appeals have been
preferred.
G
6. Shri T. L. Viswanatha Iyer, learned senior counsel
appearing for the appellants submitted that exhibit A 1 does not
postulate any transfer of ownership or title over 8th schedule by
the executants to their sons so also schedule Nos. 7 and 9.
H Learned senior counsel submitted that items in schedule Nos.
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1111
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
7, 8 and 9 were under their absolute control of the executants A
and they had the full freedom to deal with those properties.
Learned senior counsel referring to the various recitals in
exhibit A 1 agreement submitted so far as schedule Nos. 1 to
6 are concerned, the transfer of interest was absolute in
character and settled on all the sons equally and rest of the B
three items of the schedule, the executants had retained those
items to themselves and to that extent exhibit A 1 operated only
as a Will. Learned senior counsel pointed out that so far as
schedule Nos. 7 and 9 are concerned, the courts found that they
are testamentary in character and the same reasoning should c
have been applied in the case of items in schedule No. 8 as
well. Learned senior counsel has laid considerable emphasis
on the Malayalam words 'adheenadha' (control) and
'swathanthryam' (liberty/freedom). Learned senior counsel
submitted those words clearly indicate that the intention was D
to keep items in schedule Nos. 7 and 9 to the executants in
their control with full freedom subject to certain stipulations.
Learned senior counsel also pointed out that exhibit A1 clearly
indicates that items in schedule No. 8 would devolve on his
sons only after the executants' lifetime, if available. Learned E
senior counsel submitted that in the absence of any words/
recitals of disposition/tiansfer of items in schedule No.8 in
exhibit A 1 conferring title in praesenti on the sons, the High
Court was not justified in holding that exhibit A 1 was not a Will
in respect of that item.
F
7. Shri Aljo K. Joseph, learned counsel appearing for the
respondents on the other hand contended that the recital in the
document relating to schedule No.8 is in the nature of a
settlement bestowing vested rights in equal shares to all the
children of late Shri Eapen and late Smt. Sosamma. Learned
counsel submitted that the specific language of the recital in G
the agreement relating to schedule No.8 itself clearly indicates
that rights are created in praesenti and at the most the
enjoyment thereof was only postponed. Learned counsel
submitted that while reading the agreement as a whole, the
inevitable conclusion is that the document, particularly recital H
1112 SUPREME COURT REPORTS [2012] 10 S.C.R.
A relating to schedule No.8, is in the nature of a settlement
conferring vested rights on the sons of executants equally.
Learned counsel submitted that the High Court was, therefore,
justified in holding so, which calls for no interference by this
Court in this appeal. Learned counsel also made reference to
B the judgments of this Court in P. K. Mohans Ram v. B. N.
Ananthachary and Others (2010) 4 SCC 161 and Rajes Kanta
Roy v. Shanti Debi and Another AIR 1957 SC 255.
8. We are, in this case, concerned only with the question
whether the recitals in Exhibit A 1 document concerning the
C disposition of schedule No. 8 disclosed a testamentary
disposition or is a settlement of that item in favour of the original
plaintiffs and defendant Nos. 1 to 3 deferring its possession
and enjoyment until the death of the executants.
9. Exhibit A1 is written in Malayalam language, the English
0
version of that document is given below:
"Agreement dated 2nd day ofThulam 1125 M.E. - Ext A1
The agreement executed on this the 2nd day of Thulam
one thousand one hundred and twenty five by (1) Eapen
E
s/o Chandapilla aged 58 years, house hold affairs of
Perumbral, Vennikkulam Muri of Kallooppara Pakuthi and
wife (2) Sossamma of Perumbral, Vennikkulam Muri of
Kallooppara Pakuthi Christian woman, house wife aged
54 years, in favour of (1) Cheriyan, Agriculturist aged 35
F years (2) Chandapilla, Bank Job aged 30 years (3) Eapen,
Agriculturist aged 28 years (4) Geevargheese, Agriculturist
aged 25 years, (5) Chacko, Agriculturist aged 22 years
and (6) Mathai aged 18 years student.
G We have only the six of you as our sons and Kunjamma,
Mariyamma and Thankamma as our daughters, Kunjamma
and Mariyamma have been married off as per Christian
custom and had been sent to the husbands houses.
Accordingly, they have become members and legal heirs
H of the said husband's family and are residing there.
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1113
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
Thankamma remains to be married off. No.2 and 3 among A
you are married and the dowry amounts received thereby
have been used for the needs of the family.
The properties described in the schedules have been
obtained as per partition deed No. 1933 of 1069 ME of
8
the Sub Registrar Office, Thiruvalla and under other
documents. They are held, possessed and enjoyed by us
jointly, with absolute rights (word in Malayalam is
"Swathanthryam") and dealing with the same with all rights
and paying all taxes and duties thereon. There are some
amounts to be paid off by us by way of debt, incurred for C
conducting the family affairs.
This agreement is executed in as much as all of you have
attained majority and since we are becoming old, it was
felt that it will be to the benefit of all and to avoid future o
family disputes and for the purpose of discharging the debt,
to execute this agreement to divide the properties
separately subject to the conditions specified below. The
parties are to act accordingly.
The properties have been divided into schedule No. 1-9. E
The properties described as schedules 1, 2, 3, 4, 5, 6 are
absolutely settled respectively on numbers 1 to 6 among
you. Schedule 7 is required for the marriage and dowry
purposes of Thankamma, schedule 8 for the purpose of
discharging the debt due to Land Mortgage Bank. F
Schedule 9 for the purpose of meeting our needs of
maintenance and they are retained by us in our full control
(adheenadha) and freedom (swathanthryam). You shall
separately possess and enjoy item 1 to 6 subject to the
conditions specified in this agreement, paying taxes and G
discharging your duties acting as per our desires. Since
item No.2 in schedule No. 2 property and item no. 5 in
Schedule No. 3 property have been added additionally in
consideration of dowry amount received from the marriage
of party Nos. 2 and 3 among you, the responsibility for the H
1114 SUPREME COURT REPORTS [2012) 10 S.C.R.
A dowry amount of the wife of the 2nd party has to be borne
by the 2nd party, and the responsibility for the dowry
amount of the wife of 3rd party is to be borne by the 3rd
party among you and if any default occurs on their part, the
respective party and the respective partitioned properties
B shall be liable. The right and responsibility of the dowry
amount that parties Nos. 1, 4, 5 and 6 might receive when
they get married shall lie on them only. The marriage of
the said Thankamma shall be conducted by us, in our
responsibility, during our life time, by creating for the
c purpose any kind of transactions as we desire on the
property in schedule 7. If the said Thankamma is not
married off during our life time, the property in schedule 7
shall, after our life time, belong absolutely (word used in
Malayalam is "Swathanthryam") on Thankamma with
complete possession, title and right, and Thankamma shall
D
pay taxes, redeem the mortgage and enjoy the property.
We are keeping possession of schedule No.8 utilizing the
income derived by us directly, or by leasing out, to
discharge the amounts due to the Bank without default and
after the clearance of the debt, the income from schedule
E
8 property shall be utilized for our maintenance. After our
life time, No. 2 in schedule 8 will below separately and
absolutely (word used in Malayalam is "Swathanthryam")
to the 3rd among you and No.1 and 3 will belong to all of
you absolutely (word used in Malayalam is
F "Swathanthryam') in equal shares and accordingly you
may hold and enjoy the properties paying the taxes thereon.
Schedule No. 9 property shall be possessed by us and
income there from be taken directly or by leasing out and
if need be, by executing such documents as we desire on
G schedule No.9 property and matters carried out, and after
our life time if the property is left, you all take it in equal
shares. We will have the absolute (word used in
Malayalam is "Swathanthryam") right of residence in the
house situated in schedule No.6 during our life time.
H
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1115
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
If any transaction or debt is to be generated on the A
properties apportioned to each of you, the same has to
be done jointly with us also, and if anybody acts contrary
to the aforesaid, the said transaction or debt shall not be
binding on those properties, and we shall have the right
and authority to act on those properties allotted to the B
person causing such transaction. If any one of you dies
issueless, if it is during our lifetime, that apportioned
property shall be in our absolute possession with all title
and freedom and such property shall vest in you equally if
the death is after our life time, and if any widow is alive; c
she shall have right only for maintenance from the profits
of the property, and if the widow is remarried or if the
dowry is received back by her, she shall have no right for
any maintenance.
Schedule and description omitted except Schedule No.8. D
Schedule No.8
(1) In the said Kavumgumprayar Mury, West of
Valiyaparambu property, East of Memalpadinjattumkara
property and canal and South of Memalapadi farm land E
and Chelakkal Canal, do type 1 acre and 64 cent in survey
No. 689/1A do 'B' 1 acre and 50 cents and 26 cents in
survey No. 689/2 totalling 3 acres and 40 cents of farm
land.
F
(2) In the said Muttathukavanal farm land, that is described
in the 3rd schedule, excluding those added in the said
schedule one the southern side, 87 cents of farm land.
(3) In the Lakkandam Kaithapadavu land, that is described
in the 4th schedule, half in the south part, measuring 47 G
cents of farm land.
Sd/-
Executants"
10. Exhibit A1 document is composite in character having H
1116 SUPREME COURT REPORTS [2012] 10 S.C.R.
A special features of a testamentary disposition and a settlement
in respect of items and properties covered in the Schedules.
Before examining those special features and characteristics.
let us examine the legal principles which apply while interpreting
such a composite document.
8 Settlement and Testamentary Disposition
11. We have already indicated that exhibit A1 document
has both the characteristics of a settlement and a testamentary
disposition. Let us examine the basic and fundamental
c difference between a testamentary disposition and a settlement.
Will is an instrument whereunder a person makes a disposition
of his properties to take effect after his death and which is in
its own nature ambulatory and revocable during his lifetime. It
has three essentials:
D (1) It must be a legal declaration of the testator's
intention;
(2) That declaration must be with respect to his
property; and
E (3) The desire of the testator that the said declaration
should be effectuated after his death.
12. The essential quality of a testamentary dispositron is
ambulatoriness of revocability during the executants' lifetime.
F Such a document is dependent upon executants' death for its
vigour and effect.
13. Section 2(h) of the Indian Succession Act says "Will"
means the legal declaration of the intention of a testator with
respect to his property which he desires to be carried into effect
G after his death". In the instant case, the executants were Indian
Christians, the rules of law and the principles of construction
laid down in the Indian Succession Act govern the interpretation
of Will. In the interpretation of Will in India, regard must be had
to the rules of law and construction contained in Part VI of the
H Indian Succession Act and not the rules of the Interpretation of
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1117
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
Statutes. A
14. Gift/settlement is the transfer of existing property made
voluntarily and without consideration by one person called the
donor to another called the donee and accepted by or on behalf
of the donee. Gift takes effect by a registered instrument signed B
by or on behalf of the donor and attested by at least two
witnesses. Section 122 of the Transfer of Property Act defines
the "gift" as a voluntary transfer of property in consideration of
the natural love and affection to a living person.
15. We may point out that in the case of a Will, the crucial c
circumstance is the existence of a provision disposing of or
distributing the property of the testator to take effect on his
death. On the other hand, in case of a gift, the provision
becomes operative immediately and a transfer in praesenti is
intended and comes into effect. A Will is, therefore, revocable D
because no inferest is intended to pass during the lifetime of
the owner of the property. In the case of gift, it comes into
operation immediately. The nomenclature given by the parties
to the transaction in question, as we have already indicated, is
not decisive. A Will need not be necessarily registered. The E
mere registration of 'Will' will not render the document a
settlement. In other words, the real and the only reliable test for
the purpose of finding out whether the document constitutes a
Will or a gift is to find out as to what exactly is the disposition
which the document has made, whether it has transferred any
F
interest in praesenti in favour of the settlees or it intended to
transfer interest in favour of the settlees only on the death of
the settlors.
Composite Document:
16. A composite document is severable and in part clearly G
testamentary, such part may take effect as a Will and other part
if it has the characteristics of a settlement and that part will take
effect in that way. A document which operates to dispose of
properly in praesenti in respect of few items of the properties
is a settlement and in future in respect of few other items after H
1118 SUPREME COURT REPORTS [2012] 10 $.C.R.
A the deeds of the executants, it is a testamentary disposition.
That one part of the document has effect during the life time of
the executant i.e. the gift and the other part disposing the
property after the death of the executant is a Will. Reference
may be made in this connection to the judgment of this Court
B in Rev. Fr. M.S. Poulose v. Varghese and Others. (1995)
supp 2 sec 294.
17. In a composite document, which has the characteristics
of a Will as well as a gift, it may be necessary to have that
document registered otherwise that part of the document which
C has the effoct of a gift cannot be given effect to. Therefore, it is
not unusual to register a composite document which has the
characteristics of a gift as well as a Will. Consequently, the mere
registration of document cannot have any determining effect in
arriving at a conclusion that it is not a Will. The document which
D may serve as evidence of the gift, falls within the sweep of
Section 17 of the Registration Act. Where an instrument
evidences creation, declaration, assignment, limitation or
extinction of any present or future right, title or interest in
immovable property or where any instrument acknowledges the
E receipt of payment of consideration on account of creation,
declaration, assignment, limitation or extinction of such right,
title or interest, in those cases alone the instrument or receipt
would be compulsorily registrable under Section 17(1) (b) or
(c) of the Registration Act. A 'Will' need not necessarily be
F registered. But the fact of registration of a 'Will' will not render
the document a settlement. Exhibit A 1 was registered because
of the composite character of the document.
Intention - Guiding Factor:
G 18. 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. We
need to carry on the exercise of construction or interpretation
H of the document only if the document is ambiguous, or its
'•
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1119
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
meaning is uncertain. If the language used in the document is A
unambiguous and the meaning is clear, evidently, that is what
is meant by the executants of the document. Contemporary
events and circumstances surrounding the execution of the
document are not relevant in such situations.
B
19. Lord Hale in King v. Meling (1 Vent. At p. 231), in
construing a testamentary disposition as well as a settlement,
pointed out that the prime governing principle is the "law of
instrument" i.e. the intention of the testator is "the law of the
instrumenr. Lord Wilmot, C.J. in Doe Long v. Laming (2 Burr.
At pp. 11-12) described the intention of the testator as the "pole C
star" and is also described as the "nectar of the instrument. In
Re Stone, Baker v. Stone [(1895) 2 Ch. 196 at p. 200] the
Master of the Rolls said as follows: "When I see an intention
clearly expressed in a Will, and find no rule of law opposed
to giving effect to it, I disregard previous cases." Coleridge, J. D
in Shore v. Wilson [9 Cl. & F. 355, at p. 525] held as follows:
"The intention to be sought is the intention which is
expressed in the instrument, not the intention which the
maker of the instrument may have had in his mind. It is E
unquestionable that the object of all expositions of written
instruments must be to ascertain the expressed meaning
or intention of the writer; the expressed meaning being
equivalent to the intention . . . It is not allowable .... To
adduce any evidence however strong, to prove an
F
unexpressed intention, varying from that which the words
used import. This may be open, no doubt, to the remark
that although we profess to be explaining the intention of
the writer, we may be led in many cases to decide contrary
to what can scarcely be doubted to have been the intention,
rejecting evidence which may be more satisfactory in the G
particular instance to prove it. The answer is, that the
interpreters have to deal with the written expression of the
writer's intention, and courts of law to carry into effect what
he has written, not what it may be surmised, on however
probable grounds, that he intended only to have written." H
1120 SUPREME COURT REPORTS [2012) 10 S.C.R.
A 20. In Halsbury's Laws of England, 4th Edn., Vol.SO, p.239,
it is stated:
"408. Leading principle of construction.- The only principle
of construction which is appficable without qualification to
all wills and overrides every other rule of construction, is
B that the testator's intention is collected from a
consideration of the whole will taken in connection with any
evidence properly admissible, and the meaning of the will
and of every part of it is determined according to that
intention."
c
21. Underhill and Strahan in Interpretation of Wills and
Settlements (1900 Edn.), while construing a will held that "the
intention to be sought is the intention which is expressed in
the instrument not the intention which the maker of the
0 instrument may have had in his mind. It is unquestionable
that the object of all expositions of written instruments must
be to ascertain the expressed meaning or intention of the
writer; the expressed meaning being equivalent to the
intention .......... "
E 22. Theobald on Wills (17th Edn. 2010) examined at length
the characteristics of testamentary instruments. Chapter 15 of
that book deals with the General Principles of Construction.
Referring to Lindley L.J. in Musther, Re (1889) 43 Ch.D. 569
at p.572, the author stated that the first rule of will construction
F is that every will is different and that prior cases are of little
assistance. Referring to Sammut v. Manzxi [2009] 1 W.T.L.R.
1834, the author notices that the Privy Council had approved
the approach of considering wording of the will first without
initial reference to authority, and commented that "little
G assistance in construing a will is likely to be gained by
consideration of how other judges have interpreted similar
wording in other cases.
Golden Rule
H 23. We, therefore, have to examine the composite
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1121
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
character of exhibit A 1 document and interpret the same in A
accordance with the normal and natural meaning which is
discernible from that document. In order to ascertain the
intention of the testator, the point for consideration is not what
the testator meant but what that which he has written means. It
is often said that the expressed intentions are assumed to be B
actual intentions. This Court in A. Sreenivasa Pai and Anr. v.
Saraswathi Ammal alias G. Kamala Bai (1985) 4 SCC 85
held that in construing a document, whether in English or in any
Indian language, the fundamental rule to be adopted is to
ascertain the intention adopted from the words employed in it. c
Reference may also be made to the judgment of the Privy
Council in Rajendra Prasad Bose and Anr. v. Gopal Prasad
Sen AIR 1930 PC 242 and C. Cheriathan v. P. Narayanan
Embranthiri and Ors. (2009) 2 SCC 673.
Exhibit A1 - Meaning and Effect D
24. We may now examine the meaning and effect of exhibit
A 1 document. Some of the expressions used in exhibit A 1
need emphasis which are "absolutely settled", "our lifetime",
"separately and absolutely" and the Malyalam words E
"adheenadha (control)" and "swathanthryam (liberty/freedom)".
The words which are used in a document have to be understood
in its normal and natural meaning with reference to the language
employed. The words and phrases used in a document are to
be given their ordinary meaning. When the document is made,
F
the ordinary meaning has to be given to the document, which
is relevant. Executants have used the Malyalam words
'adheendha' and 'swathanthryam' which must be referable to
the ordinary usage of Malayalam language at the time when the
document was executed. Words of usage, in Malyalam
language, therefore be given their usual, ordinary and natural G
meaning or signification according to the approved usage
because primarily the language employed is the determinative
factor of legislative intention. Consequently, the word
'adheenadha' means control, domination, command, manage
etc. 'Swathanthryam' means liberty, freedom, independence H
1122 SUPREME COURT REPORTS [2012] 10 S.C.R.
A etc. Those words emphasize the fact that the executants had
retained the entire rights over the property in question and not
parted with.
25. We have indicated that exhibit A 1 document is divided
into schedule Nos. 1 to 9. Properties described iri schedule
8 Nos. 1 to 6 as per the terms of the document stood absolutely
vested in praesenti and undoubtedly settled in favour of the
executants sons. Evidently, therefore, that part of the document
has the characteristics of a settlement. Rest of the schedule
Nos. 7, 8 and 9 have different characteristics in
C contradistinction with schedule Nos. 1 to 6. Schedule No. 7 of
exhibit A 1 document clearly indicates that the same is required
for the marriage and dowry purposes of the daughter of the
executants, by name Thankamma. The document clearly
indicates that the marriage of their daughter would be
D conducted by the executants since it is their responsibility.
Further, it is also stipulated that if the daughter does not get
married during their lifetime, the property in schedule No. 7 shall
after their lifetime belong absolutely to their daughter.
E 26. So far as schedule No. 9 is concerned, the same would
be retained by the executants in their full control (adheendha)
and freedom (swathanthryam). In other words, schedule No. 9
shall be possessed by the executants and the income therefrom
be taken directly by leasing out, if need be, by executing such
documents as desired. Further, it is also stated with regard to
F schedule No. 9 that after "our lifetime" if the property is left, "you
all" (all the sons) may take it in equal shares.
27. We are now to examine the crucial issue i.e. with
regard to sub-item 1 of schedule No. 8 in exhibit A 1. With regard
G to that item, it has been stated in the document that the
executants are keeping possession and would utilize the
income derived from them directly or by leasing it out to
discharge the amounts due to the bank and after its clearance,
the income from schedule No. 8 would be utilized for "our
H maintenance". Further, it is also stated that after "our lifetime",
MATHAI SAMUEL AND ORS. v. EAPEN EAPEN 1123
(DEAD) BY LRS. [K.S. RADHAKRISHNAN, J.]
item No. 2 in schedule No. 8 will belong absolutely to third party A
and item Nos. 1 and 3 would belong to you "absolutely" and
"separately" in equal shares and accordingly they may hold and
enjoy the properties by paying tax thereof. No rights, in
praesenti, were created, on the other hand all the rights
including possession were retained by the executants. In other B
words, so far as item No.1 in schedule No. 8 of exhibit A 1 is
concerr.ad, the executants had retained possession, full control
as well as freedom to deal with it. The contention of the
respondent that the executants had consciously omitted the
power of alienation with regard to Schedule No.8, unlike c
Schedule No. 7, is not correct: The question is not whether the
executants had retained any right but whether the executants
had conferred any right on the beneficiaries. Right, title, interest,
ownership and the power of alienation of the executants were
never in doubt and they had always retained those rights, the D
point in dispute was whether the property in question had been
settled on the sons absolutely during their life time; barring
possession and enjoyment. In our view, no right, title, interest,
or ownership had been conferred when the document was
executed or during the life time of the executants to their sons
in respect of item No.1 of Schedule 8 of exhibit A 1. We have
E
noticed that there is marked difference in the language used
in respect of properties covered by Schedule Nos. 1 to 6 and
rest of the Schedules. Admittedly, Schedule Nos. 7 and 9 are
testamentary in character and in our view, Schedule 8 also,
when we examine the meaning ascribed to the various words F
used and the language employed. The judgments in K.
Balakrishnan v. K. Kama/am and Ors. (2004) 1 SCC 581,
Kale and Ors. v. Deputy Director of Consolidation and Ors.
(1976) 3 sec 119 are, therefore, inapplicable to the facts of
this case. G
Subsequent even~:
28. Subsequent events or conduct of parties after the
execution of the document shall not be taken into consideration
in interpreting a document especially when there is no H
1124 SUPREME COURT REPORTS (2012] 10 S.C.R.
A ambiguity in the language of the document. But we may refer
to those events also only to re-enforce the fact that there is no
ambiguity in the language employed in the document.
29. Subsequent conduct of Eapen and Sosamma has no
bearing in understanding the scope of exhibit A 1 document. The
8
executants, it may be noted, had jointly executed a mortgage
on 12.11.1955 (exhibit 82) to one Mathew in which they had
affirmed their right to execute such a mortgage and traced it
to exhibit A 1 document. Further, the executants had not parted
with possession of item No.1 of 8th Schedule of exhibit A 1 to
C their sons, at any point of time and retained ownership. Exhibit
83 document was executed in favour of 3rd defendant on
18.07.1964 and later he sold the property to 4th defendant on
23.01.1978 (exhibit 81 ). Now from 1978 onwards, the 4th
defendant, a stranger to the family, has been in exclusive
D possession and ownership of the property. We may also point
out even though Ext.83 was executed on 18.07.1964, the suit
was filed only on 6.2.1978, that is, after more than thirteen
years. It will also be unjust to deprive him of his ownership and
possession at this distance of time.
E
30. We, therefore, find that the right, title, interest,
possession and ownership of item No.1 of 8th Schedule of
Ex.A1 were with the executants and they had the full control and
freedom to deal with that property as they liked unlike Schedule
Nos. 1 to 6. We have, therefore, no hesitation in holding that
F so far as that item is concerned, the document in question
cannot be construed as a settlement or a gift because there is
no provision in the document transferring any interest in
immovable property in praesenti in favour of settlees i.e. their
sons.
G
31. The judgment and decree of the lower appellate court,
confirmed by the High Court, is, therefore, set aside and the
judgment and decree of the trial court is restored. The appeal
is allowed as above and there will be no order as to costs.
H 8.8.B. Appeal allowed.
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