MATHAI SAMUEL vs. EAPEN EAPEN (DEAD) BY LRS. .

1 REPORTABLE IN THE SUPREME COURT OF INDIA

JUDGMENT S. K. Radhakrishnan, J. 1. Leave granted. 2. We are, in this appeal, called upon to determine the question whether the recitals in exhibit A1 concerning item No.1 of schedule No. 8 therein (item No. 1 of the plaint schedule) discloses a Page 1 2 testamentary disposition or a settlement creating vested rights in favour of the plaintiffs and defendant Nos. 1 to 3 though possession

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 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 A1 document did not preclude the executants’ rights for disposing the same during their lifetime. Consequently, the trial court held that so far as item No.1 in schedule No. 8 of exhibit A1 is JUDGMENT concerned, the same has the characteristics of a testamentary disposition, therefore not available for partition. The court held rd that B3 sale deed executed in favour of 3 defendant in the year 1964 by Sosamma Eapen was valid so also B1 sale deed executed rd th in the year 1978 by the 3 defendant in favour of 4 defendant. Page 2 3 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

th was passed allowing partition and possession of 3/6 share of various items including sub-item 1 of schedule No. 8 of exhibit A1 document. The Appellate Court took the view that the above item was settled by exhibit A1 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 rd by 3 defendant, was not binding on the plaintiffs. 5. Defendant Nos. 3 and 4 then filed Second Appeal No. JUDGMENT 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 before the High Court, rd the 3 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 Page 3 4 character during the lifetime of the executants and held that the disposition of the plaint item No. 1 is a settlement though

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. 6. Shri T. L. Viswanatha Iyer, learned senior counsel appearing for the appellants submitted that exhibit A1 does not postulate any th transfer of ownership or title over 8 schedule by the executants to their sons so also schedule Nos. 7 and 9. Learned senior counsel submitted that items in schedule Nos. 7, 8 and 9 were under their absolute control of the executants and they had the full freedom to JUDGMENT deal with those properties. Learned senior counsel referring to the various recitals in exhibit A1 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 three items of the schedule, the executants had retained those items to themselves and to that extent exhibit A1 operated only as a Page 4 5 Will. Learned senior counsel pointed out that so far as schedule Nos. 7 and 9 are concerned, the courts found that they are

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 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 senior counsel submitted that in the absence of JUDGMENT any words/recitals of disposition/transfer of items in schedule No.8 in exhibit A1 conferring title in praesenti on the sons, the High Court was not justified in holding that exhibit A1 was not a Will in respect of that item. Page 5 6 7. Shri Aljo K. Joseph, learned counsel appearing for the respondents on the other hand contended that the recital in the

Shri Eapen and late Smt. Sosamma. Learned counsel submitted that the specific language of the recital in 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 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 JUDGMENT was, therefore, justified in holding so, which calls for no interference by this Court in this appeal. Learned counsel also made reference to 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. Page 6 7 8. We are, in this case, concerned only with the question whether the recitals in Exhibit A1 document concerning the disposition of

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 version of that document is given below: nd “ Agreement dated 2 day of Thulam 1125 M.E. – Ext A1 nd The agreement executed on this the 2 day of Thulam one thousand one hundred and twenty five by (1) Eapen 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 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. JUDGMENT 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 Page 7 8

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 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. 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. 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 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 JUDGMENT Page 8 9 you, the responsibility for the dowry amount of the wife nd nd of the 2 party has to be borne by the 2 party, and the rd responsibility for the dowry amount of the wife of 3

JUDGMENT Page 9 10

Schedule and description omitted except Schedule No.8. 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 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. JUDGMENT (2) In the said Muttathukavanal farm land, that is rd described in the 3 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 th described in the 4 schedule, half in the south part, measuring 47 cents of farm land. Sd/- Executants” Page 10 11 10. Exhibit A1 document is composite in character having special features of a testamentary disposition and a settlement in respect of

JUDGMENT 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: (1)It must be a legal declaration of the testator’s intention; (2)That declaration must be with respect to his property; and Page 11 12 (3)The desire of the testator that the said declaration should be effectuated after his death.

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 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 JUDGMENT 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 Indian Succession Act and not the rules of the Interpretation of Statutes. 14. Gift/settlement is the transfer of existing property made voluntarily and without consideration by one person called the Page 12 13 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

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 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 because no interest is intended JUDGMENT 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 mere registration of ‘Will’ will not render the document a settlement. In other words, the real and the only Page 13 14 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

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 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 JUDGMENT and in future in respect of few other items after 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 in Rev. Fr. M.S. Poulose v. Varghese and Others. (1995) Supp 2 SCC 294. Page 14 15 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

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 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 JUDGMENT instrument acknowledges the 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 registered. But the fact of registration of a ‘Will’ will Page 15 16 not render the document a settlement. Exhibit A1 was registered because of the composite character of the document. Intention – Guiding Factor: 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 of the document only if the 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. Contemporary events and circumstances surrounding JUDGMENT the execution of the document are not relevant in such situations. 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 instrument ”. Lord Wilmot, C.J. in Doe Long v. Laming (2 Burr. At pp. 11-12) described the Page 16 17 intention of the testator as the “ pole star ” and is also described as the “ nectar of the instrument. In Re Stone, Baker v. Stone [(1895)

opposed to giving effect to it, I disregard previous cases .” Coleridge, J. 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 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 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 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.” JUDGMENT Page 17 18 th 20. In Halsbury’s Laws of England, 4 Edn., Vol.50, p.239, it is stated:

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 instrument may have had in his mind. It is unquestionable that the object of all JUDGMENT expositions of written instruments must be to ascertain the expressed meaning or intention of the writer; the expressed meaning being equivalent to the intention…… ….” th 22. Theobald on Wills (17 Edn. 2010) examined at length the characteristics of testamentary instruments. Chapter 15 of that book deals with the General Principles of Construction. Referring to Page 18 19 Lindley L.J. in Musther, Re (1889) 43 Ch.D. 569 at p.572, the author stated that the first rule of will construction is that every will

the Privy Council had approved the approach of considering wording of the will first without initial reference to authority, and commented that “little 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 23. We, therefore, have to examine the composite character of exhibit A1 document and interpret the same in accordance with the JUDGMENT 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 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, Page 19 20 whether in English or in any Indian language, the fundamental rule to be adopted is to ascertain the intention adopted from the words

and “ swathanthryam (liberty/freedom)”. The words which are used JUDGMENT 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 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 Page 20 21 when the document was executed. Words of usage, in Malyalam language, therefore be given their usual, ordinary and natural

legislative intention. Consequently, the word ‘ adheenadha ’ means control, domination, command, manage etc. ‘ 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. 25. We have indicated that 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 JUDGMENT 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 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 Page 21 22 purposes of the daughter of the executants, by name Thankamma. The document clearly indicates that the marriage of their daughter

does not get married during their lifetime, the property in schedule No. 7 shall after their lifetime belong absolutely to their daughter. 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 schedule No. 9 that JUDGMENT 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 A1. With regard to that item, it has been stated in the document that the executants are Page 22 23 keeping possession and would utilize the income derived from them directly or by leasing it out to discharge the amounts due to the

after “our lifetime”, item No. 2 in schedule No. 8 will belong absolutely to third party 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 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 JUDGMENT executants had consciously omitted the power of alienation with 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 executants were never in doubt and they had Page 23 24 always retained those rights, the point in dispute was whether the property in question had been settled on the sons absolutely during

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 A1. We have 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 used and the language employed. The judgments in K. Balakrishnan v. K. Kamalam and Ors. (2004) 1 SCC 581, Kale and Ors. v. Deputy Director of JUDGMENT Consolidation and Ors. (1976) 3 SCC 119 are, therefore, inapplicable to the facts of this case. Subsequent events: 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 ambiguity in the language of Page 24 25 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.

in understanding the scope of exhibit A1 document. The executants, it may be noted, had jointly executed a mortgage on 12.11.1955 (exhibit B2) to one Mathew in which they had affirmed their right to execute such a mortgage and traced it to exhibit A1 document. Further, the executants had not parted with possession th of item No.1 of 8 Schedule of exhibit A1 to their sons, at any point of time and retained ownership. Exhibit B3 document was rd executed in favour of 3 defendant on 18.07.1964 and later he sold th the property to 4 defendant on 23.01.1978 (exhibit B1). Now from JUDGMENT th 1978 onwards, the 4 defendant, a stranger to the family, has been in exclusive possession and ownership of the property. We may also point out even though Ext.B3 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. Page 25 26 30. We, therefore, find that the right, title, interest, possession th and ownership of item No.1 of 8 Schedule of Ex.A1 were with the

therefore, no hesitation in holding that 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. 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. JUDGMENT …………………………………..J. (K.S. Radhakrishnan) …………………………………..J. (Dipak Misra) New Delhi, November 21, 2012 Page 26