B. Padmaraj, J.
1. Heard the arguments of the learned Counsel for the appellants as well as the learned Counsel for the respondent and carefully perused the entire case papers including the impugned judgment and decree made by the Trial Court, with their assistance.
2. The appellants herein were the defendants 1 and 2 respectively before the Trial Court and the respondent herein, was the plaintiff. On being aggrieved by the judgment and decree dated 25-8-1997 of the Trial Court, the appellants-defendants have preferred this appeal.
3. The respondent-plaintiff filed the suit before the Trial Court against the appellants for partition of plaint 'A' schedule property into 3 equal shares by metes and bounds and with reference to convenience of enjoyment and allot and deliver 2/3rd share to the plaintiff.
4. The case of the plaintiff before the Trial Court was that the suit property was owned by Sri Pudu, the father of the plaintiff and defendant 1 and that the mother of the plaintiff and the plaintiff were depending on the said Pudu and they were both residing with him and also were looking after him. According to the plaintiff, defendant 1 and the mother of defendant 2 were residing away from the above said Pudu. It was the further case of the plaintiff that on 4-10-1968, her father Pudu had executed the settlement deed in her favour and also in favour of her mother Smt. Maldi and the said settlement deed was registered. It was also averred that the father of the plaintiff had five children viz., Lin-gamma, Rama, Jaya, Susheela and Devaki and of them Rama and Jaya were bachelors at the time of their death and Susheela was having a son by name Ashoka, the second defendant. The parents of the plaintiff and the defendants are now no more and as per the settlement deed, the plaintiff is having 1/2 share in the property and her mother's 1/2 share equally devolves upon the plaintiff and the defendants. Thereby, the plaintiff will have 1/2 + 1/6th share i.e., 2/3rd share and the defendants are entitled for the remaining 1/3rd share in the property. On these and other averments made in the plaint, the plaintiff claimed 2/3rd share in the property. The defendants resisted the suit of the plaintiff by filing their written statement contending therein, inter alia that the mother of the plaintiff and the plaintiff were not depending on Sri Pudu and that they were both residing away from him. They also denied Sri Pudu having executed any settlement deed in favour of the plaintiff and her mother. According to them, no such document has been executed by the father of the plaintiff in favour of his wife and the plaintiff. They contended that the suit schedule property is to be divided into 3 equal shares and the defendants are entitled to 1/3rd share each in the said property. They, however, admitted that the suit property belongs to one Sri Pudu, who is the father of the plaintiff and the first defendant. Thus, they denied the claim of the plaintiff that she has got 2/3rd share in the property by virtue of the said settlement deed executed by Sri Pudu. On the basis of the pleadings of the parties, the Trial Court framed certain relevant issues and the parties at the trial adduced both oral and documentary evidence. On behalf of the plaintiff, she gave evidence as P.W. 1 and also got marked in evidence Exhibits P. 1 to P. 6. As against this, the defendants examined on their behalf, defendant 1 as D.W. 1 and got marked in evidence Exhibits D. 1 to D. 10. At the conclusion of the trial, the Court below on consideration of the entire evidence placed on record and after hearing the arguments on both sides by its impugned judgment and decree, has decreed the suit of the plaintiff. Hence, this appeal.
5. The learned Counsel for the appellants while assailing the impugned judgment and decree made by the Trial Court has, vehemently contended before me that the Court below has erred in holding that the plaintiff has successfully proved the deed of settlement Exhibit P. 1 setup by her. He contended that the finding of the Court below on Issue No. 1 is wrong and against the evidence on record. He further contended that the deed of settlement being a gift deed requires to be compulsorily attested and that if Exhibit P. 1 is a compulsorily attestable document, it is required to be proved as contemplated under Section 68 of the Indian Evidence Act. He contended that the plaintiff in order to prove the alleged settlement deed has not examined any of the attesting witnesses and hence, the settlement deed has not been proved in accordance with Section 68 of the Indian Evidence Act read with Section 123 of the Transfer of Property Act. He also contended that the Court below was not correct in holding that there is no specific denial with regard to the settlement deed. He further reiterated his contention that it was mandatory for the plaintiff to have proved Exhibit P. 1 in accordance with Section 68 of the Indian Evidence Act read with Section 123 of the Transfer of Property Act and the same having been not proved in accordance therewith, it is not admissible in evidence. He contended that though the document Exhibit P. 1 has been styled as a settlement deed, it in fact is a gift deed requiring attestation under Section 123 of the Transfer of Property Act. While elaborating his submission, he contended that when the alleged settlement deed-Exhibit P. 1 is without consideration, it clearly attracts the provisions contained in Section 123 of the Transfer of Property Act and it was required to be proved in the manner as laid down under Section 68 of the Indian Evidence Act. He contended that though the document-Exhibit P. 1 is labeled as a settlement deed, it is in fact a gift deed and hence, it cannot escape its proof in accordance with Section 68 of the Indian Evidence Act. He contended that the document-Exhibit P. 1 read as a whole would clearly indicate that it is a gift deed and not a settlement deed and that being so, it clearly attracts the provisions contained in Section 123 of the Transfer of Property Act and it should have been proved in the manner as laid down under Section 68 of the Indian Evidence Act. He contended that the finding of the Trial Court that Exhibit P. 1 is not a gift deed and it is a settlement deed and hence, it requires no attestation, is wrong and incorrect. He therefore, contended that the plaintiff has failed to prove the document Exhibit P. 1 in the manner as required under law and hence, it cannot be looked into. He also contended that even otherwise, the evidence on record would disclose that the executant of the document-Exhibit P. 1 was not in a disposing state of mind and he was also not in a position to move about. He contended that the deceased being admittedly an illiterate person, there is nothing on record to show that the deceased had understood the dispositions made under the deed-Exhibit P. 1. He contended that the plaintiff has not stated about the state of mind of the deceased when the document-Exhibit P. 1 has been executed by the deceased. He contended that even assuming that the document-Exhibit P. 1 is a settlement deed, but the same has not been proved as required under law. He contended that when the execution of such a document has been clearly denied by the defendants, it was incumbent upon the plaintiff to prove that not only the deceased had executed the said document but he was in a sound disposing state ofmind at the time of the execution of the said deed. He further contended that under the said document-Exhibit P. 1, the plaintiff does not derive any right in respect of the plaint schedule property. In support of his submissions, the learned Counsel for the appellants has relied upon the following decisions.-
1. Ramakka Shedthi and Anr. v. Anthayya Shetty and Ors., ILR 1980 Kar. 111, wherein it is concluded as under.-
'10. Before we turn to these provisions, we must return to the nature of the disposition made under Ext. D. 3. The deed is styled at the head as 'Vyavastha Pathra'. It begins with the particulars of the properties of the kutumba of which the executor was the pattedar. It then states that he has got an undivided 1/5th share in those properties as per the provisions of the Hindu Succession Act. It further narrates that his wife Ramakka had not given birth to any issue and there was no likelihood of her giving birth to any hereafter. It also states that since she owns properties of her own, she has no right to claim a share in his properties.
Then the deed refers to the physical and mental condition of the executor. It states that he was mentally sound though physically weak due to old age.
Then the deed follows in these terms:
'I shall enjoy the properties during my lifetime. After my death you shall enter into possession getting the patta transferred in your own name and enjoy it from generation to generation'. The deed concludes with a declaration that it is-
irrevocable and the executor reserves no other right in favour of him or his L.Rs in respect of the properties. It is clear from these recitals that Venkappa Shetty had reserved to himself the life interest in his undivided 1/5th share in the kutumba properties and settled the vested remainder on Subbanna Shetty apparently for no consideration.
11. We may not dispose off the two contentions urged by Sri Gopalakrishna Shetty, learned Counsel for the respondent relating to the nature of the disposition under Ext. D. 3. First, he said that Ext. D. 3 was for valuable or good consideration for the past services rendered by Subbanna Shetty and therefore, cannot be termed as a gift deed. Second, he urged that it was at any rate a deed of relinquishment by which Venkappa Shetty gave up all his interest in the kutumba properties. We do not think that we need explore the second contention and we did not also permit the Counsel to elaborate it. Such a contention was not taken either in the pleadings or at any stage of the trial of the suit. It was a common ground of the trial of the suit. It was in the Court below that Venkappa Shetty purported to have disposed oil his undivided interest in the kutumba properties and all parties before and subsequent to the suit have treated Ext. D. 3 as a disposition by Venkappa Shetty of his share in this suit properties. The learned Counsel cannot therefore, introduce a totally new and inconsistent plea at this stage to the prejudice of the appellants.
12. The ground on which Counsel for the respondents sought to support his first proposition was the past services said to have been rendered to the settler by Subbanna Shetty. Ext. D. 3 no doubt states that Subbanna Shetty had looked after the settler and the latter hoped that the former would continue to look after him also in future. Firstly, this appears to be a motive for settling the properties in favour of Subbanna Shetty and not a consideration for the disposition. 'Motive is not the same thing with consideration. Consideration means something which is of some value in the eye of the law, moving from the plaintiff'. Secondly, even if Subbanna Shetty had rendered some service, it was admittedly voluntary and not at the request of Venkappa Shetty and any such gratuitous service cannot serve as a consideration for the disposition in question.
13. Ext. D. 3 is apparently a settlement deed by which the settler distributed his undivided share in the kutumba properties in favour of a family member. Such a settlement is a well-recognized non-testamentary disposition of properties. Section 2(q) of the Karnataka Stamp Act, 1957 defines 'settlement' to mean 'any non-testamentary disposition in writing, of moveable or immoveable property made (i) in consideration of marriage, (ii) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or....'.
Having regard to the recitals in Ext. D. 3 coupled with the intention of the settler, it appears to us that Venkappa Shetty made a gift of his undivided interest in the kutumba properties'.
2. Banney Khan v. The Chief Inspector of Stamp, Uttar Pradesh, : AIR1976All475 , wherein it is observed as under.-
'It follows from the definition of lease that even if a transaction does not amount to a lease under Section 105 of the Transfer of Property Act, it may nonetheless be a lease for the purposes of Stamp Act. Thus, where by a document the Municipal Board granted to the highest bidder at auction sale of a right to collect tolls in its market area for a period of one year on payment of the bid amount in four monthly installments it was held that the instrument was a lease falling under Section 2(16)(c) and was chargeable with stamp duty under Article 35(b), Schedule I-B, Uttar Pradesh Stamp (Amendment) Act, 1962. The instrument was neither a licence, nor a bond within Section 2(5)'. 3. Atava Akkulamma (deceased) v. Gajjela Papi Reddy, : AIR1995AP166 , wherein it is observed as under.-
'7. The decree-holder and her mother-in-law Buddamma are said to have executed a registered settlement deed dated 5-1-1925 in favour of defendant 1. The documents marked during the trial of the suit do not find a place for the said settlement deed and there is no discussion or finding about the nature and the contents of such a document. The only finding is that there was a settlement deed between the parties. The settlement as a mode of transfer of property is not known under the law of properties. The Transfer of Property Act finds no place for such a transaction. Because defendant 1 had no share or right to share in the properties such a settlement can never be a partition or division of shares or the arrangement among the members of the joint family of which defendant 1 was an outsider. He had no pre-existing right or share in the suit properties to get it separated or allotted. There is no plea of relinquishment of the rights of decree-holder and Buddamma under the document in favour of defendant 1. Dictionaries have provided the meaning of 'settlement' as:
'the terms of which property is given to a person'. (page 1110 of concise Oxford Dictionary New Edition of 1990 re-printed in 1992)
The law appears to have given a texture or structure to a settlement under a settlement deed in the taxation laws under Section 2 of the Gift Tax Act as 'settling the property right or claim, conveyance or dispossession of property for the benefit of another' (Commissioner of Income-tax v. Ram Ckandra Gupta and Company, Calcutta, : [1968]69ITR254(Cal) ), and as 'dispossession and transfer including dispossession of trust, covenant, agreement or arrangement so as to use the transfer', (Commissioner of Income-tax, Gujarat v. Keshavlal Lallubhai Patel, : [1965]55ITR637(SC) ). Sometimes it can be construed as a gift for taxation having due regard to the contents of the document to style it as a settlement of immoveable property (Rajah Raghavaraju v. Controller of Estate Duty, Andhra Pradesh, : [1970]75ITR734(AP) ). Taking the guidance from such implications of a 'settlement', the worst or the best which can be put upon the consequences of the settlement in favour of defendant 1 could be an agreement or arrangement between the parties for the benefit of the owners perhaps, with some responsibilities to defendant 1. That is howsuch a settlement came to be challenged by defendant 5 in O.S. No. 11 of 1935 on the ground that no provision was made for her maintenance and that of the decree-holder. The fact that defendant 5 is not a party to the settlement deed signifies that the arrangement or agreement was not consensus or conclusive or binding on her. In other words, the pre-existing rights of the three ladies remained intact notwithstanding such a settlement. Even assuming that the settlement deed intended to transfer the properties held by the three ladies, it was repugnant to their restricted power of alienation conferring no right or title in defendant 1. Such an embargo against alienation could be relaxed only in the case of legal necessity or benefit of the estate or with the consent of the reversioner so as to pass absolute estate to the alienee to the same extent as an alienation made by a full owner (page 223 of Mulla's Hindu Law). Even assuming that by virtue of the settlement deed, the rights of the decree-holder were lost in favour of defendant 1, they came to be restored to her in view of the compromise decree in O.S. No. 11 of 1935 wherein half the share in the suit properties were given to the decree-holder, her daughter and defendant 5, to be enjoyed by them without the powers of alienation for them, the remaining half being left to defendant 1. However, there was a stipulation that such a share given to them would revert back to defendant 1 after her death. There is a finding of the Court and as is evident from Ex. B. 19, that half the share of the plaintiff and defendant 5 together was partitioned and they were put into their possession as per the report of the Amin Ex. A. 2 during the month of March 1959. In other words, the decree-holder and defendant 5 were in joint possession of half the share in the entire suit properties by virtue of the compromise decree in O.S. No. 11 of 1935. In other words, such a factum is traceable at least up to March 1959'.
6. While placing reliance upon the above decisions, he contended that the Transfer of Property Act does not recognise any other mode of transfer other than the one prescribed under the Transfer of Property Act and insofar as the deed of settlement as defined either under the Indian Stamp Act or under the Karnataka Stamp Act are only for the purpose of the said Act for collection of stamp duty thereon, and there could be no transfer of property by way of settlement which is not a recognised mode of transfer under the Transfer of Property Act. He therefore, contended that under the document-Exhibit P. 1, the plaintiff does not derive any right, title or interest in the suit property even if it is to be construed as a settlement deed. He further contended that the said document clearly reveals that it was a gift deed and the same having not been proved in accordance with the provisions contained in Section 68 of the Indian Evidence Act, it is inadmissible in evidence.
7. As against this, the learned Counsel for the respondent has contended that the Transfer of Property Act is not exhaustive and any transaction which is not provided under the Transfer of Property Act, cannot be said to be invalid. He contended that in the instant case, thefather of the plaintiff in order to provide successor to his dependents namely, his wife and daughter, settled the property in their favour and such a mode of transfer or settlement is recognised under law as could be seen from the definition of the settlement deed given under the Indian Stamp Act as well as the Karnataka Stamp Act. He therefore, contended that the settlement deed executed by the father in favour of the plaintiff and her mother was a valid document and that under the said document, he had settled the suit property in favour of the plaintiff and her mother and thereby, the plaintiff was entitled to 1/2 share and her mother was entitled to the remaining 1/2 share in the suit property and after the death of the mother, the plaintiff along with the defendants will be entitled to equal share in the 1/2 share to which the mother was entitled. He contended that the recitals of the deed Exhibit P. 1 would clearly indicate that it was executed for the purpose as specified under the definition of the settlement deed and hence, it cannot be construed to be a gift deed. With regard to the proof of this document is concerned, he contended that the evidence of P.W. 1 is very clear that the document-Exhibit P. 1 was prepared by her father's instructions and the same has been executed and registered. He contended that the evidence of P.W. 1 would clearly indicate that the deed-Exhibit P. 1 had been executed by her father and thereunder, he had settled the property in favour of herself and her mother. The learned Counsel for respondent while inviting my attention to Section 2(24) of the Indian Stamp Act and also to Section 2(1)(q) has contended that the father of the plaintiff had settled the property for the purpose of providing for his wife and daughter who were depending on him and hence, the document in question is a settlement deed which clearly conveys the right, title and interest of the deceased Sri Pudu in favour of the plaintiff.
8. While elaborating his submission he contended that the contents of the document should guide the Court and if the recitals of the document-Exhibit P. 1 are looked into, they will clearly indicate that the deceased had settled the property in favour of his wife and daughter for the purpose of providing sustenance to them as they were completely dependant upon him. He therefore, contended that under the said document Ex. P. 1, the plaintiff acquired 1/2 the share and after the death of her mother, the mother's 1/2 share will devolve upon her natural heirs namely, the plaintiff and the defendants in equal shares. He therefore, contended that the Trial Court was justified in holding that the document-Exhibit P. 1 to be a settlement deed and that further it was justified in decreeing the suit of the plaintiff. He contended that when once the document-Exhibit P. 1 is held to be a settlement deed and not a gift deed, it requires no attestation and hence, does not require to be proved in accordance with the provisions contained in Section 68 of the Indian Evidence Act. He contended that Exhibit P. 1 has to be proved like any other documents and the same has been proved through the evidence of P.W. 1. He therefore, contended that the impugned judgment and decree made by the Trial Court warrants no interference in the appeal by this Court.
9. Having heard the submissions on both sides and having carefully perused the material evidence on record, the short question that would arise for consideration in this appeal is 'Whether the impugned judgment and decree made by the Trial Court warrants any interference in the appeal by this Court'.
10. The crucial question is the interpretation of the deed-Exhibit P. 1. That is to say, the question I have to examine is whether the deed-Exhibit P. 1 is a deed of settlement or a deed of gift. In interpreting a document, the intention of the parties has to be ascertained, if possible from the expressions used therein. More often, than not, this causes no difficulty, but if difficulty is felt owing to inarticulate drafting or inadvertence or other causes, the intention may be gathered reading the entire document and if so necessary, from the other attending circumstances also. If through such a process, the intention of the parties can be culled out consistently with the rule of law, the Courts are required to take that course. Keeping these principles in mind, I shall proceed to consider the facts of the instant case in order to find out whether the document in question namely, Exhibit P. 1 is a deed of settlement or a deed of gift as sought to be contended on behalf of the appellants herein. It has to be stated that the recitals in the document as a whole and the intention of the executant and acknowledgement thereof, by the parties are conclusive. The Court has to find out whether the document in question confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient or the beneficiary under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document read as a whole. The contents or the recitals of the deed-Exhibit P. 1 as has been extracted by the Trial Court in its impugned judgment would show that the deceased Pudu settled the properties in favour of the plaintiff and her mother (the daughter and the wife of the deceased Pudu). It was to take effect on the same day. The deceased Pudu created rights thereunder, intending to take effect from that date. A reading of the document-Exhibit P. 1 would give an indication that the deceased Pudu while divesting himself of the title, created a right and interest in praesenti in favour of the plaintiff and her mother. Thus, by this deed-Exhibit P. 1, the deceased testator has settled his property in favour of his wife and daughter during his lifetime. The word 'settlement' has been defined in the Specific Relief Act, under Section 2(b) and it means an instrument (other than a Will or codicil as defined by the Indian Succession Act) whereby the destination or devolution of successive interests in movable or immovable property is disposed off or is agreed to be disposed off. It has to be stated that underlying the idea of settlement, there is to some extent the notion or conception of trust. Furthermore, the word 'settlement' as it is generally understood really refers to a disposition of successive interest in immovable property and is generally couched in the form of a trust and it is such a settlement, which is in the nature of disposition of property, movable and immovable either in consideration of marriage or for wantof some of the objects specified under Section 2(24) of the Indian Stamp Act or Section 2(1)(q) of the Karnataka Stamp Act, 1957. The definition of the word 'settlement' is the same in both the enactments. The word 'settlement' as defined under Section 2(24) of the Indian Stamp Act and Section 2(1)(q) of the Karnataka Stamp Act is a non-testamentary disposition, in writing, of movable or immovable properties made in consideration of marriage, for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or for any religious or charitable purpose and includes an agreement in writing to make such a disposition and where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms bf any such disposition. When the document is executed for any of the purposes mentioned in the above sections of the Indian Stamp Act or the Karnataka Stamp Act, then it could be called a 'settlement deed'. There is no doubt at all that in construing a document, one has to consider the document as a whole and to decide whether on a reading of the entire document, it amounts to a deed of settlement or a deed of gift and that the nomenclature given to the document cannot be a conclusive factor. It is equally well-settled that where a statute defines a term, it is that definition which must be applied for construing that term for the purposes of that statute. That is to say, where a particular term is defined by a particular statute, the Court has always recognised that it is highly dangerous to seek guidance from the definition given to that term in other statutes for limiting or enlarging the connotation of that term. It is with these principles in mind, one has to consider the relevant provisions of the above said two Acts which defines the term 'settlement'. Section 2(10) of the Indian Stamp Act defines the term 'conveyance' and it prescribes that the 'conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I. The term 'settlement' is defined in Sub-section (24) of Section 2 of the Indian Stamp Act, which means any non-testamentary disposition, in writing, of movable or immovable property made in consideration of marriage, for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him or for any religious or charitable purpose and includes an agreement in writing to make such a disposition and, where, any such disposition has been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition. Section 3 deals with instruments chargeable with stamp duty. Schedule I provide for proper stamp duty to be charged on the various documents referred to therein. Item 23 of Schedule I provides for the rate of stamp duty payable on a conveyance as defined in Section 2(10), not being a transfer charged or exempted under Item No. 62. Item No. 33 of Schedule I provides that stamp duty has to be paid on an instrument of gift, not being a settlement (Item No. 58) as on conveyance. It is to be seen therefore, that aclear distinction has been maintained between the two documents namely, the deed of gift and the deed of settlement under the Stamp Act and they are chargeable with different rate of duties. It is to be seen however, that both the documents are recognised under law as mode of conveyance. I therefore, do not accept the contention of the learned Counsel for the appellants that a deed of settlement as a mode of transfer of property is unknown to law. The very fact that there is a clear distinction between the two deeds and the very fact that the term 'settlement' has been defined both under the Stamp Act as well as under the Specific Relief Act, it is very clear that there is a clear distinction between the deed of settlement and a deed of gift and both the documents are recognised as the mode of conveyance of the property. No doubt, it was sought to be contended by the learned Counsel for the appellants that it is only for the purpose of stamp duty such a distinction has been maintained between the two deeds. But then, when the Stamp Act recognises the settlement deed as one of the conveyance and prescribes a different rate of stamp duty for the said documents, it has to be stated that it is also one of the recognised mode of deed of conveyance. Coming to the present case, it appears to me that a plain reading of the document-Exhibit P. 1 in question makes to clear that what the deceased did under the settlement deed-Exhibit P. 1 was to distribute his properties referred to in that deed to his wife and daughter for the purpose of providing for them who were dependent on him and were also the members of his family. Thus, the document in question namely, Exhibit P. 1 squarely falls within the term Clause (b) of Sub-section (24) of Section 2 of the Indian Stamp Act which Sub-section defines the term 'settlement' under the Indian Stamp Act and the same is the definition of the word 'settlement' under the Karnataka Stamp Act also. A perusal of the document-Exhibit P. 1 shows that the purpose of the same was to distribute or to settle the property of the deceased to his wife and daughter who were dependent on him. When once the document-Exhibit P. 1 falls within the definition of the term 'settlement' under the above said subsection, in my view it is clear that the said document-Exhibit P. 1 is a deed of settlement and not a deed of gift. As I have already stated, the purpose of the said deed-Exhibit P. 1 is to settle the property of the deceased settlor to his wife and daughter who were dependent on him. Having regard to the said nature of the document and having regard to the definition of the term settlement given under the Stamp Act as well as under the Specific Relief Act, I am of the clear view that the document in question amounts to a deed of settlement and not a deed of gift as sought to be contended by the learned Counsel for the appellants. Therefore, taking an overall view of the matter, I find that the document in question is a settlement deed and not a gift deed. Now, it would be useful to refer to a decision of the High Court of Madras in the case of S. Thirupathi Pillai v. Ganthimathi Ammal and Anr., (1966)79 Mad. L.W. 459, wherein, it is held that once the settlement deed is executed, then the settlor has no right to revoke the settlement deed except under certain circumstancesand that Lurched he has no legal capacity to execute the sale deed because he has no title to the property. That means, once a deed of settlement is executed in respect of certain property by the settlor, then the settlor will have no right in respect of the said property which has been settled in favour of some other person or persons. In the instant case, it is not in dispute that the deceased Pudu was the owner of the property in question and now, it has been established that the deceased had settled his property under Exhibit P, 1 in favour of his wife and daughter (the plaintiff) and when once the property has been settled in favour of the said two persons under a settlement deed Exhibit P. 1, the deceased had no right or interest therein, at the time of his death and hence, the defendant acquired no interest in the property of the deceased settlor. No doubt, it was sought to be argued by the learned Counsel for the appellants that the said document-Exhibit P. 1 has not been proved in accordance with law. It has to be stated at the outset, that the settlement deed-Exhibit P. 1 does not require to be attested and it has to be proved in accordance with Section 72 of the Indian Evidence Act. That is to say, the settlement deed-Exhibit P. 1 is not a document required by law to be attested. Section 72 of the Indian Evidence Act prescribes that an attested document not required by law to be attested may be proved as if it was unattested. It is true that the settlement deed-Exhibit P. 1 though not required by law to be attested, has been attested by attestors. But then under Section 72 of the Indian Evidence Act, it is not obligatory on the part of the person propounding the document to examine the attesting witness. The testimony of the attesting witness is not the only evidence by which a settlement deed can be established. It can be done by other kinds of evidence. In the instant case, it is not in dispute that the plaintiff was one of the beneficiary under the said settlement deed-Exhibit P. 1 and she gave evidence before the Trial Court as P.W. 1. She has stated in her chief examination that the plaint schedule property originally belonged to her father, who died about 20 years ago. After the death of their father, herself and her children continued in possession of the suit schedule property. Her mother died about 15 years back. Before the death of her father, he had executed a settlement deed dated 4-10-1968 in favour of herself and her mother in respect of the suit schedule property and that under the settlement deed 1/2 share was given to her and 1/2 share was given to her mother. After the death of her mother, she is entitled for 2/3rd share in the suit schedule property. Further, in the examination in chief, she has stated that the settlement deed executed by her father is at Exhibit P. 1. She has produced the RTC extracts in respect of the suit schedule property which is at Exhibit P. 2. Further in the cross-examination, she has stated that at the time of his death, her father was aged more than 75 years. She has denied the suggestion that her father Pudu had lost his vision and he was incapable of understanding the things. She has however, stated that her father was not in a position to go over to the bazaar, but he was capable of moving about. She has denied the suggestion that her father was in the habit of consuming drinks. She admits that her father was not in a position to read and write. She has furtherstated that the suit schedule property was a Government land granted to her father with regard to the deed of settlement Exhibit P. 1. It is elicited in the cross-examination of P.W. 1 on behalf of the defendants that Exhibit P. 1 was written by a writer who was staying at the Taluk Office and that in the presence of the document writer, her father had affixed his thumb impression to Exhibit P. 1. Out of the two attesting witnesses, one was by name Veerappa, resident of Kodialbail and the said Veerappa was called by her father. After affixing the thumb impression of her father, Veerappa and other witness signed the document Exhibit P. 1. Her father brought the stamp papers for the purpose of preparing Exhibit P. 1 to the Taluk Office. Exhibit P. 1 was prepared on the very same day when the stamp paper was purchased. Her father has not received any consideration for Exhibit P. 1. The document Exhibit P. 1 was registered at 2.00 P.M. The document writer presented the document for registration. She has specifically stated that Exhibit P. 1 was not executed at her instance and that her father got it executed on his own. Exhibit P. 1 was handed over to her and to her mother by her father. She has denied the suggestion that her father did not have the right to execute Exhibit P. 1, nor he executed the document. All these answers which are obtained by the defendants in the cross-examination would go to show that the document Exhibit P. 1 was executed by the deceased on his own and not at the instance of any other person. Thus, on a careful perusal of the entire material placed on record, it clearly indicates that the settlement deed-Exhibit P. 1 stands proved from the evidence of P.W. 1. Besides this, the said document Exhibit P. 1 is a registered document. It is no doubt true that the learned Counsel for the appellants sought to contend that the deceased was not in a position to move about and that further, he was an illiterate person and hence, in all probability, he could not have executed the settlement deed-Exhibit P. 1 with the full knowledge of its contents. I am unable to accept this contention of the learned Counsel for the appellants. In fact, the answers elicited in the cross-examination of P.W. 1 by the appellants themselves, would indicate that it is the deceased who got this settlement deed-Exhibit P. 1 prepared and registered at the office of the Sub-Registrar. Merely because, the deceased was not in a position to go to the bazaar etc., it cannot be said that he was not aware of the consequences of his act. That apart, as has been observed by the Trial Court, the defendants did not take any such specific contention in their written statement and it is only at the stage of evidence or trial, they sought to make out a case that the deceased was incapable of executing the said document. But, even in that attempt, they were unsuccessful. Therefore, having given my anxious consideration to the entire matter in issue, I am of the clear view that the learned Trial Judge was right in holding that the settlement deed-Exhibit P. 1 stands proved from the evidence on record. It was further urged on behalf of the appellants that in order to constitute a family settlement, it is necessary that there must be an agreement between the members of the joint family to settle any existing or possible disputes relating to rights in property and to adjust their mutual rights and a document, whereby, one party gives his propertywithout consideration to the other members of the family, cannot be regarded as a deed of settlement, but must be regarded as a deed of gift. But then, it has to be stated that it is open to a person to select the form of document to be entered into or to be executed and to word it appropriately. In the instant case, as I have already stated, the deed-Exhibit P. 1 is a non-testamentary disposition in writing and it relates to the immovable properties of the deceased and the purpose of that deed-Exhibit P. 1 is to settle the property of the deceased settlor to his wife and daughter, who were dependent on him and were also the members of his family. This is very clear from the recitals of the document-Exhibit P. 1. Thus, the document-Exhibit P. 1 squarely falls within the term of Clause (b) of Sub-section (24) of Section 2 of the Indian Stamp Act which sub-section defines the term 'settlement'. A perusal of the document-Exhibit P. 1 shows that the purpose of the same was to settle the property of the deceased to his wife and daughter, who were both dependant on the deceased. When once, the document falls within the definition of the term settlement under the said sub-section of the Indian Stamp Act, in my view it is futile to contend that it is not a settlement deed and that it is a gift deed. The facts and circumstances of this case would clearly indicate that the document in question was a deed of settlement and not a deed of gift. Thus, it was construed rightly as a settlement deed, but not as a gift by the Trial Court. Having divested self thereunder, the deceased Pudu had thereafter, no right so as to devolve upon his successors on his death. Under the settlement deed-Exhibit P. 1, the plaintiff acquired 1/2 the right in the property and also l/3rd of the 1/2 share belonging to her mother, as her natural heir along with the other heirs namely, the defendants. Thus, the plaintiff was entitled to 2/3rd share in the property. The Trial Court has rightly decreed the suit of the plaintiff to the extent of 2/3rd share holding the document-Exhibit P. 1, in question to be a settlement deed. Therefore, having given my anxious consideration to the entire matter in issue, I am of the view that the impugned judgment and decree made by the Trial Court warrants no interference in the appeal by this Court. I find no merit in any of the contentions urged on behalf of the appellants. With regard to decisions relied upon by the learned Counsel for the appellants, it has to be stated that there is no quarrel about the principles enunciated therein, but the difficulty is about the application of the said decisions to the facts and circumstances of this case. In my view, the said decisions have no application to the facts and circumstances of this case. In the instant case, the document in question clearly connotes that it is a deed of settlement and the same having been proved in accordance with the provisions contained in Section 72 of the Indian Evidence Act, the plaintiff was bound to succeed. I therefore, find that the appeal filed by the appellants is devoid of merits and it is liable to be dismissed.
11. In the result therefore, this appeal filed by the appellants is dismissed. But in the circumstances of the case, there is no order as to costs.
B. Padmaraj, J.
R.F.A. No. 18 of 1998
This regular first appeal preferred against the judgment and decree of the Court of the Principal Civil Judge (Senior Division), Mangalore in O.S. No. 112 of 1994 on its file dated the 25th day of August, 1997 coming on for hearing on the 5th day of February, 2002 in the presence of Sri Sanath Kumar Shetty, Advocate for the appellants and Sri G.K. Shevgoor, Advocate for respondent.
For the reasons stated in the judgment, it is ordered and decreed that, this regular first appeal be and the same is hereby dismissed.
And it is further ordered and decreed that there shall be no order as to costs in this appeal.
Given under my hand and the seal of this Court, this the 5th day of February, 2002.