N.P. Saseendran vs N.P. Ponnamma & Ors.

128 – Indian Stamp Act, 1899 – Art. 33 – Kerala Stamp Act, 1959 – Art.31 – Registration Act, 1909 – s.17 – Specific Relief Act, 1963 – s.2(b) – Indian Succession Act, 1925 – Part VI – ss.2(h), 59, 61, 62, 63, 70, 89 – Respondent No.1 was the plaintiff (daughter) in O.S.No.27 of 1994 and the appellant was defendant No.2 (son) in the said suit – Respondent no.1 alleged that the suit schedule property was gifted by her father, who was defendant No.1 in the suit, vide registered deed dated 26.06.1985 – Respondent No.1/plaintiff filed the said suit for declaration of right, title and interest over the suit schedule property and also for a declaration that the cancellation deed and sale deed dated 19.10.1993 executed by the defendant No.1/father in favour of the appellant/defendant No.2 as null and void and for consequential injunction – The High Court upsetting the concurrent findings of the Courts below, granted a decree in favour of the plaintiff/respondent No.1 declaring her right, title and interest over the suit schedule property by virtue of Ext.A1 settlement deed dated 26.06.1985 and declared that cancellation deed (Ext.A2) dated 19.10.1993 and sale deed (Ext.A3) dated 19.10.1993 both executed by defendant No.1 would not bind the plaintiff as far as her right, title and interest over the suit schedule property is concerned – Correctness: Held: Ext.A1 document dated 26.06.1985 was executed by defendant No.1/father in favour of respondent No.1/plaintiff (daughter) – It was categorically stated therein that the suit schedule property belonged to defendant No.1/father and he was in possession and enjoyment of the same with full rights – The contents of the document would clearly reveal that there is consideration, conveyance, imposition of conditions and reservation of life interest by the executant, defendant No.1/father satisfying the requirements to classify the document as a “settlement” – The conditions to construct a house, to reside in the house, retention of life interest, the right of mortgage up to a sum of Rs.2,000/- and avail loan on that basis, cannot alter the gift, by which in unequivocal terms, the property stood vested in the plaintiff by earlier part – The condition, creating a life interest in favour of father and mother and the restriction regarding mortgage, would further imply that defendant No.1 had ceased to be the absolute owner – Defendant No.1 has also enabled the plaintiff to construct the house from then on and no outer time has been fixed for the construction of the house – Since the life interest was reserved in favour of defendant No.1 and his wife, defendant No.1 was only holding an ostensible possession and ownership as contemplated u/s.41, while the true owner being the plaintiff, after the clear conveyance by earlier clause – In the instant case, the clear and unambiguous language employed in the first part of Ext.A1 document dated 26.06.1985, reveals a clear disposition by defendant No.1/father to the plaintiff, by only retaining a life interest in the second part – Therefore, the instrument of 1985 is a gift by settlement – Now, as far as question that whether the gift was accepted and acted upon is concerned, it is not in dispute that the plaintiff has registered the instrument – Such registration by the plaintiff is possible only if the document was handed over by defendant No.1 – The factum of acceptance can be derived from the conduct of the parties – The plaintiff, when the suit was filed, was in possession of the original title deed – Even assuming that the original deed was returned after registration, the fact that it was already acted upon, cannot be altered – Once a gift has been acted upon, the same cannot be unilaterally cancelled – The receipt of the original document by the plaintiff and registration of the same, would amount to acceptance of the gift and the transaction satisfies the requirement of Section

122 of the Transfer of Property Act, 1882 – Once the document is categorized as a gift, in the absence of any clause or reservation to cancel, the executant has no right to cancel the same – The reasons for cancellation or revocation of gift have to be proved in a court of law – Therefore, the unilateral cancellation of the document is void and as a natural corollary, the sale deed dated 19.10.1993 executed by defendant No.1/father also, is invalid – Furthermore, the recitals in the document apparently demonstrate and satisfy the requirement to classify the document as a “settlement” – The Judgment of the High Court is confirmed. [Paras 15.1, 16, 18, 21] Gift – Settlement – Interplay between Gift and Settlement: Held: The primary difference between the Gift and the Settlement is the existence of consideration in the settlement – Consideration is nothing but the quid pro quo, that each party to a contract is to perform or render a part of their obligation under the contract – In view of the fact that a gift is a voluntary disposition, it is essentially not an agreement and hence, the element of consideration is taken away from it – Settlement on the other hand is always coupled with consideration as it is mostly executed in favour of a family member – The gift or settlement of an immovable property has to be registered as per Section 17 of the Registration Act – The conditions regarding acceptance, reservation of life interest and restriction on revocation are applicable to both “gift and settlement” – The vesting of the right also takes place in praesenti in both the cases – Therefore, there is an element of gift in every settlement. [Para 11.3] Gift – Will – Interplay between Gift and Will:

Held: A Will is the declaration of the intention of the testator to give away his property – Such will comes into force after the death of the testator – The most important requirement for a valid will is that it must again be a voluntary disposition in sound mind, which must be explicit from the instrument itself – Therefore, it can be concluded that every will also has an element of gift, with the difference being the disposition deferred until the death of the testator – Insofar as the revocation is concerned, the testator is at liberty to revoke or alter the will any number of times until his demise, but it is essential that he remains of sound mind while doing so. [Para 11.4] Gift – Will – Settlement – Interplay between Gift, Will and Settlement:

Held: The element of voluntary disposition is common to all the three deeds – The element of gift is traceable to both “settlement” and “will” – As settled in law, the nomenclature of an instrument is immaterial and the nature of the document is to be derived from its contents – While so, a voluntary disposition can transfer the interest in praesenti and in future, in the same document – In such a case, the document would have the elements of both the settlement and will – Such document, then has to be registered and by operation of the doctrine of severability, becomes a composite document and has to be treated as both, a settlement and will and the respective rights will flow with regard to each disposition from the same document – It is pertinent to mention here that the reservation of life interest or any condition in the instrument, even if it postpones the physical delivery of possession to the donee/settlee, cannot be treated as a will, as the property had already been vested with the donee/settlee. [Para 11.5]