Judgment:
ORDER
1. This suit has been filed for a declaration that the plaintiff alone is entitled to the 1/2 share in the schedule mentioned property and that the Deed of Settlement dated 19.11.1979 in favour of the 1st defendant is void in law, for permanent injunction restraining the 1st defendant or his agents from collecting any rentals from the suit property from the 8th defendant or any other tenant, for rendition of accounts in respect of 1/2 share rental collectionsand pay over 1/2 share from the date of death of P.S. Sivabhushanammal viz. 13.4.1994 to the plaintiff and for costs.
2. The plaint averments are as follows:-
The suit property originally belonged to T.K.T. Nayagammal absolutely and she had two daughters viz. Sivabhushanammal and M. Kokilambal. Nayagammal executed a settlement deed dated 9.8.1940 in respect of the suit property. As per the Settlement deed, she reserved for herself the right to enjoy the suit property during her life time without any powers of alienation and after her life time, her two daughters shall take the suit property absolutely with full powers of alienation and after their life time, their respective sons and daughters shall take absolutely the share which devolves on the two daughters. Though the document is styled as a deed of settlement, it is only a Will. The clause in the settlement deed giving right to the sons and daughters of the two daughters alone would prevail and hence the plaintiff as the only legal heir of Sivabhushanammal, the first daughter of Nayagammal would be entitled to her share absolutely after the death of Sivabhushanammal. Nayagammal intended to give only a life estate to her two daughters and absolute rights in favour of their sons and daughters. Nayagammal died on 27.12.1989 and her second daughter M. Kokilambal also died on 21.10.1985. Sivabhushanammal died on 13.4.1994. The legal heirs of Kokilambal viz. defendants 2 to 7 on the death of Nayagammal would be entitled to 1/2 share in the suit property. Sivabhushanammal had only a life estate and whileso, she executed a deed of settlement dated 19.11.1979 at the instigation of her husband and father of the plaintiff P.L. Shanmugasundaram settling her right, title and interest over the suit property in favour of the 1st defendant, who is her grandson and son of the plaintiff. The said settlement deed is void in law since the settler herself did not have the right to make an absolute settlement. Even assuming that the settler had an absolute interest over 1/2 share of the suit property, the interest was only a contingent interest and the same becomes vested interest only on the death of Nayagammal. On the date of death of Nayagammal, Sivabhushanammal's right becomes absolute right. Even assuming she had an absolute interest, the right becomes vested right only on 27.12.1989, the date of death of Nayagammal. Therefore, the settlement deed dated 19.11.1979 is not valid and the 1st defendant cannot lay any claim to 1/2 share of the suit property. The 1st defendant has been collecting the rents from the suit property after the death of Sivabhushanammal. Defendants 2 to 7 filed a suit in C.S.No.1324 of 1991 for partition and the same is pending before this Court. The plaintiff and the first defendant were impleaded in the said suit as legal representatives of Sivabhushanammal. The 8th defendant is the tenant in respect of the premises and RCOP 122 of 1991 filed by the defendants 2 to 7 for fixation of fair rent is pending. The first defendant has been paying 1/2 of the rental income to defendants 2 to 7 and appropriating the other 1/2 of the rental income unauthorisedly. The first defendant cannot seek any right in the property under the said settlement, as the settlement itself could not have been executed by Sivabhushanammal. Hence the suit.
3. The first defendant in his written statement contended that the allegations in para 4, 7 and 8 of the plaint are denied. The plaintiff who isnone other than his father was through out inimical right from his birth. The plaintiff was most avarious in filing frivolous and vexatious suits against his father, mother and now the present suit against his own son. As per the settlement deed dated 9.8.1940, there is no reservation of right or interest curtailed insofar as Kokilambal Ammal and Sivabhushanammal are concerned. The clause with regard to devolution of the said property, after the life time of Kokilambal Ammal and Sivabhushanammal is repugnant to the clause conferring absolute right to them. Hence the latter clause will not have any sanctity and will not stand in the eye of law. When there is a specific right given to Kokilambal and Sivabhushanammal with absolute powers of alienation, the subsequent clause restricting the enjoyment or devolution will have no operation. After the settlement deed, both Kokilambal and Sivabhushanammal are possessed with the vested right in the suit property. Hence the contention of the plaintiff that Sivabhushanammal had only contingent interest is far-fetched. A person possessed with vested interest is open to execute any instrument in respect of the property to any one. The contention of the plaintiff that Kokilambal and Sivabhushanammal had only life interest will not stand in the light of the Clause that in case of the property to be sold, either one of them should offer the property to be sold. Therefore the document dated 9.8.1940 is only a settlement deed and not a Will. After the death of Sivabhushanammal, the first defendant is in absolute possession and enjoyment in respect of 1/2 share in the suit property as per the settlement deed, and has been collecting rents from the suit property and paying half of the rental share to the heirs of Kokilambal, the defendants 2 to 7. The plaintiff had absolutely no right to claim in the suit property. Hence the suit is liable to be dismissed with exemplary costs.
4. The defendants 2 to 7 filed a written statement with the following allegations:
After the death of Nayagammal, the half share in the suit property belonged to the children of Kokilambal, the defendants 2 and 3 and her deceased son's heirs defendants 4 to 7 absolutely. The validity of the settlement deed dated 19.11.1979 is the dispute between the parties. The first defendant who used to collect rents did not send the other half share due to them. After notice dated 13.8.1990, the other half share of rents were sent. They filed a suit for partition in CS No.1324 of 1991 against Sivabhushanammal. After her death, plaintiff and the 1st defendant were impleaded as defendants 2 and 3 in that suit. These defendants are not concerned with the reliefs sought for in this suit. They are entitled to half share in the suit property besides half of the rental income derived from the suit property. In the interest of justice, they shall be permitted to collect the rent from the suit property. There is no dispute regarding their half share in the suit property. They are not proper and necessary parties in this suit. Hence the suit may be dismissed with costs.
5. On the above pleadings, the following issues were framed:
(1) Whether the document dated 9.8.1940 executed by Nayagammal, is a settlement or Will ?
(2) Whether the Deed of Settlement dated 9.8.1940 conferred absolute right on her two daughters Mrs.Sivabhushanammal and Mrs.Kokilambal ?
(3) Whether the Deed of Settlement executed by Mrs. Sivabhushanammal is void in law ?
(4) Whether the plaintiff is entitled to declarations prayed for ?
(5) Whether the plaintiff is entitled to injunction prayed for ?
(6) Whether the 1st defendant is liable to render accounts of income in respect of 1/2 share to plaintiff for the period from 13.4.1994 ?
(7) Is the suit maintainable against defendants 2 to 7 ?
(8) To what relief are parties entitled to ?
6. Issues 1 to 8:- The plaintiff has filed this suit seeking for declaration that he is entitled to half share in the schedule mentioned property; that the Settlement Deed executed by Sivabhushanammal dated 19.11.1979 is void in law and consequential permanent injunction and rendition of accounts, alleging that the original owner of the suit property Nayagammal executed a registered settlement deed on 9.8.1940; that though the said document was styled as settlement, it was in effect only a Will; that Nayagammal reserved for herself the right to enjoy the property during her life time; that her two daughters viz. Kokilambal and Sivabhushanammal should take the property after her life time and that after their life time, their respective sons and daughters should take the property absolutely; that Nayagammal died on 27.12.1989; that as per the said document, the plaintiff as the only heir of the first daughter of the said Nayagammal viz. Sivabhushanammal would be entitled to half share in the property absolutely; that the mother of the plaintiff Sivabhushanammal died in the year 1994 and thus the half of the suit property has devolved on the plaintiff; that the said Sivabhushanammal who had no absolute interest over the suit property to the extent of half share during the life time of Nayagammal, has executed a registered deed of settlement at the instigation of her husband and in favour of the first defendant on 19.11.1979, which is void in law since the settler Sivabhushanammal herself did not have the right to make an absolute settlement and since she was enjoying only a life estate over the half of the suit property; that even assuming that the settler Sivabhushanammal had an absolute interest 'over the half share of the suit property as per the deed executed by Nayagammal, the interest was only a contingent interest and became vested only on the death of Nayagammal; that Sivabhushanammal executed the said settlement deed in favour of the first defendant even in 1979 i.e., during the life time of Nayagammal and hence even on that ground also the first defendant cannot claim any right in the half share of the suit property; that the first defendant has been unlawfully and illegally collecting rents from the suit property from the time of the death of Sivabhushanammal and hence the plaintiff should be granted a decree with all the abovestated reliefs.
7. The prime contention of the contesting first defendant is that the deed executed by Nayagammal dated 9.8.1940 would clearly reveal that it was onlya settlement and not a Will; that true spirit of the said settlement deed was to confer absolute right to the two daughters of Nayagammal viz. Kokilammal and Sivabhushanammal after the life time of the settlor and the other clauses which are repugnant to the earlier clauses conferring the rights over the sons and daughters of Kokilammal and Sivabhushanammal were of no consequence; that since the settler has given Kokilammal and Sivabhushanammal absolute powers of alienation, the subsequent clause restricting the enjoyment will have no operation in the eye of law and hence Sivabhushanammal possessed with vested right through the settlement deed executed by her mother has executed settlement deed in favour of the first defendant, which is valid in law and the first defendant has become the absolute owner and has been in absolute possession and enjoyment in respect of the half share of the suit property on the basis of the settlement deed executed by his grand mother and hence the plaintiff is not entitled for the reliefs asked for.
8. The plaintiff examined himself as P.W.1. He would depose that he has five sons and two daughters and the first defendant is his son. Nayagammal who was his maternal grand mother had two daughters Sivabhushanammal and Kokilammal. Defendants 2 to 7 are the heirs of Kokilambal. Registration copy of the document dated 9.8.1940 executed by Nayagammal is marked as Exp.1. Nayagammal died in 1989. Ex.P2 is the death certificate of Nayagammal. Registration copy of the settlement deed executed by Sivabhushanammal in favour of the first defendant on 19.11.1979 is marked as Ex.P3. Ex.P3 was executed at the instance of his father. There were disputes between P.W.1 and his father. Sivabhushanammal died in 1994. Ex.P4 is the death certificate of Sivabhushanammal. Sivabhushanammal had no right to execute any settlement during the life time of Nayagammal. A suit is pending between P.W.1 and his father regarding Pudupet property, which belongs to P.W.1. P.W.1 is entitled for a half share in the suit property, which is in possession of the tenant. First defendant is collecting the rent.
9. The admitted facts are that the suit property originally belonged to Nayagammal, who had two daughters viz. Sivabhushanammal, the mother of the plaintiff herein and Kokilammal whose legal representatives are defendants 2 to 7 herein. The said Nayagammal executed a registered deed as found under Ex.P1 on 9.8.1940. She died on 27.12.1989. Her second daughter Kokilammal died on 21.10.1985. Even during the life time of Nayagammal her first daughter Sivabhushanammal executed a registered deed of settlement on 19.11.1979 as found under Ex.P3. Sivabhushanammal died on 13.4.1994.
10. Arguing for the plaintiff, the learned Counsel would submit that the plaintiff is entitled to half share in the suit property in view of the deed executed by Nayagammal under Ex.P1 which was only a Will and not a settlement, because there was no vesting in praesenti; that as per the terms of the said Deed Nayagammal would be entitled to enjoy the property during her life time and thereafter her daughters Sivabhushanammal and Kokilambalwould take the property in equal shares and that after their life time, their children will be entitled to the respective half shares absolutely and thus the plaintiff, who is the only son of Sivabhushanammal is entitled to the half share and that the deed of settlement executed by Sivabhushanammal under Ex.P3 dated 19.11.1979 in favour of the first defendant could not convey any right or title to the first defendant since Sivabhushanammal had no right of alienation or making a conveyance during the life time of her mother Nayagammal. Added further the learned Counsel that even assuming that Ex.P1 deed executed by Nayagammal was the deed of settlement, what was given by her to her daughter Sivabhushanammal was only contingent interest and the said deed envisages that in the event of the death of any one of the daughters before her life time, the heirs of that daughter will get the half share attributable to that daughter and thus the plaintiff is entitled to the half share in the suit property. In support of his contentions, the learned Counsel for the plaintiff relied on the two decisions reported in Poongavanam v. Perumal Pillai and another, 1997 (2) LW 234 and Ramaswami Naidu and another v. Gopalakrishna Naidu and others, 1977 (90) LW 430.
11. Countering to the above contentions the learned counsel appearing for the contesting first defendant with vigour and vehemence would argue that the registered deed executed by Nayagammal under Ex.P1 was only a settlement and not a Will and this would be very clear that the settler has reserved for herself only the life interest for enjoyment and has clearly indicated that after her life time, the property should be given to her two daughters viz. Sivabhushanammal and Kokilambal absolutely and hence when the document is looked at as a whole, the same will clearly speak about the true intention of the settler to confer her daughters absolute right after her life time and hence Sivabhushanammal who was vested with the absolute interest in the property was well within her right to execute a settlement deed as found under Ex.P3 in favour of her grand son, the first defendant herein and that the latter clauses found in Ex.P1 that after the life time of Sivabhushanammal and Kokilambal the property would come to the grand sons and grand daughters, have no effect and consequence, since they were repugnant to the earlier clauses conferring rights on Sivabhushanammal and Kokilammal and contrary to the very intention of the settler. The learned counsel would further submit that the contention of the plaintiffs side that Sivabhushanammal had only contingent interest was unsustainable and untenable in law; that Sivabhushanammal who was vested with the interest in the property as per Ex.P1 had exercised her right in favour of the first defendant by executing a settlement as found under Ex.P3 dated 19.11.1979, which cannot be questioned by the plaintiff and thus the settlement executed in favour of the first defendant is valid in law, and the plaintiff is not entitled for the reliefs.
12. From the pleadings and rival submissions put forth, the whole controversy between the parties centers round a question whether the registered document executed by Nayagammal on 9.8.1940 is a settlement or a Will. In order to decide the said question, it would be more appropriate to reproduce the terms of the said document which runs as follows:
13. The recitals extracted above would clearly indicate that the property given under Ex.P1 could be enjoyed by Nayagammal without any power of alienation and it is only after her life time her daughters shall acquire absolute right. There is no absolute and instantaneous transfer of interest in praesenti to the beneficiaries viz. her daughters. It cannot be said that there was absolute or complete divestment of the right, title or interest of the executant Nayagammal on the date of the execution of the deed. But it is a case where the conferment of the rights were postponed till the life time of Nayagammal. A reading of the recitals would clearly reveal that they are sufficient to hold that the document is only in the nature of a Will and at any rate not a settlement.
14. A reading of the said document as a whole will clearly point to the intention of the executant that she desired the document to be a Will to come into force after her life time. In the instant case, it is true that the document itself has been styled as a settlement deed and it is also registered. It cannot be disputed that the accepted definition of a Will is that it is an instrument,whereunder a person makes disposition of his properties to take effect after his life time. In the instant case, after looking into the substance of the document under Ex.P1, the treatment of the property by the executant, the intention appearing both expressly in the instrument and by necessary implication, it would be clear that her intention was to execute a Will and not a settlement.
15. It is pertinent to note that there is also a clause in the document, wherein it is recited that the two daughters of Nayagammal would enjoy the property after her life time and they should pay the house tax in respect of their share and in case any one desired to alienate her half share, she would sell the share to the other daughter, who was entitled to the other half share. This would clearly indicate that what was given to the daughters was only a life interest. In view of the clear recital found in the said document that vesting of the property could take place only after the life time of Nayagammal, the contention of the defendant's side that the property has become vested on the daughters of Nayagammal on the execution of the settlement deed cannot be countenanced.
16. On a careful consideration of the available materials referred to supra, this Court is of the firm view that both the decisions relied on by the plaintiff's side reported in Ramaswami Naidu and another v. Gopalakrishna Naidu and others, 1977 (90) LW 430 and rendered by Justice Ramaswami, as he then was and reported in Poongavanam v. Perumal Pillai and another, 1997 (2) LW 234 and rendered by Justice Raju, as he then was, are squarely applicable to the present facts and circumstances of the case.
17. In Ramaswami Naidu and another v. Gopalakrishna Naidu and others, 1977 (90) LW 430, it had been held as follows:-
'The broad tests or characteristics as to what constitutes a Will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a Will or a gift is to see whether the disposition of the interest in the property is in praesenti in favour of the settlers or whether the disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of the executant, it would be a Will. But if the executant, diverts his interest in praesenti in the settlee, the document will be a settlement, the general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the documents are only a guide to find out whether there was an immediate divestitute of the interest of the executant or whether the disposition was to take effect on the death of the executant.'
18. In Poongavanam v. Perumal Pillai and another, 1997 (2) LW 234, it has been held thus:
'The recitals in the document indicate that the property given under settlement could be enjoyed without any power of alienation and it is only after the life time of the executant viz. the 1st defendant, the 2nd defendant shall acquire absolute right in respect of the property with right to sell and encumber the property by assuming absolute control and enjoyment of the property. The above recitals would go to show that not only the document was a crisp one and that there is no specific or clear and absolute instant disposition andtransfer of interest in praesenti in favour of the beneficiary under the document but equally, there is absolutely no complete divestment of the right, title or interest of the executant on the date of the execution of the deed, such conferment of rights are postponed till the life time of the 1st defendant. The recitals, themselves, in my view, are sufficient in law to show that it is only in the nature of a Will and at any rate, not a Settlement.'
19. Applying the test and the principles laid down by their Lordships in the above two decisions, covering the adjudication as to whether a particular deed was a Will or a gift, this Court has to necessarily hold that Ex.P1 is a Will or not a settlement. It is not disputed that the plaintiff is the only son of Sivabhushanammal, who died in the year 1994 and consequent to her death, her only son, the plaintiff herein will be entitled to get the half share in the suit property. When Ex.P1 is a Will, as rightly contended by the plaintiff's side, what was given to Sivabhushanammal, the mother of the plaintiff was only a life interest and hence she could not deal with the half share of the property during the life time of Nayagammal, and hence without any hesitation it can be held that the deed of Settlement dated 19.11.1979 under Ex.P3 executed by Sivabhushanammal i.e., even before the death of Nayagammal, who died on 27.12.1989 was void in law and cannot confer any right on the first defendant.
20. For all the reasons stated and discussed above, the Court has to necessarily hold that Ex.P1 deed dated 9.8.1940 executed by Nayagammal was only a Will and not a settlement; that Sivabhushanammal and Kokilammal were not conferred absolute rights under the said deed; that the settlement deed under Ex.P3 executed by Sivabhushanammal during the life time of Nayagammal in favour of the first defendant is void in law; and that the plaintiff who is the only son of Sivabhushanammal is entitled to the half share in the suit property.
21. Admittedly the 8th defendant is a tenant in the suit property. Since the plaintiff is entitled to half share in the suit property, he is entitled for a consequential permanent injunction restraining the first defendant from collecting the rental from the tenants occupying the suit property in respect of his half share. The first defendant has admitted in the written statement that after the death of Sivabhushanammal in the year 1994, he has been collecting the rents from the suit property. Since the plaintiff is entitled to half share in the suit property, he is entitled for rendition of accounts and payment of rental in respect of his half share in the rental collections made by the first defendant in the suit property from the time of death of Sivabhushanammal viz. 13.4.1994.
22. In the result, this suit is decreed as prayed for as against the first defendant with costs. However, the suit is dismissed as against the defendants 2 to 12 without costs.