S.R. Singharavelu, J.
1. The defendants in O.S. No. 1217 of 1988 on the file of District Munsif Court, Villupuram, against whom the first appellate court has passed a decree for declaration and injunction of the plaintiff's title by reversing the decree and judgment of the trial court in respect of its dismissal of the suit with respect to items 1 to 7, are the appellants herein.
2. The averments in the plaint are as follows:-
The plaintiff and the defendants are the sons of Kullappa Gounder, who, on 11.1.1980 had executed a settlement deed in favour of the plaintiff in respect of items 1 to 7 and the same was accepted and acted upon, the plaintiff was also in enjoyment thereof. On 27.2.1976, the plaintiff was assigned with item No. 8 by the Government and items 9 to 11 were self acquired properties of plaintiff by right of purchase under sale deed dated 8.6.1972, 19.6.1972 and 26.2.1983. There was a prior suit in O.S. No. 87 of 1984 on the file of the District Munsif Court, Villupuram, wherein the plaintiff filed a suit for partition of his 3/5th share. It was subsequently withdrawn on 11.7.1985. It is later on, the defendants apprehended for the possession of the plaintiff. Therefore, the suit was filed.
3. In the written statement of the second defendant, he has averred as follows:- It is untrue to say that the items 1 to 7 belong to plaintiff by a settlement deed said to have been executed by Kullappa Gounder. It was never accepted and acted upon and the plaintiff was not in possession. Irusammal, the mother of the parties have executed a settlement deed in favour of her husband, Kullappa Gounder, wherein the right of sale was restricted, but he was only given the right of enjoyment. There were two daughters for Kullappa Gounder, the non joinder of which will make the suit bad. The assignment of item 8 is only with the family and not to the individual as to the plaintiff.
4. On the above pleadings, the following issues were framed for trial:-
1. Whether the settlement deed in favour of the plaintiff is true and binding the defendants?
2. Whether the plaintiff is in possession of the lands mentioned in the settlement deed?
3. Whether Kullappa Gounder has any right over the suit same?
4. Whether the suit is bad for non joinder of necessary parties?
5. Whether the suit item 8 belongs exclusively to the plaintiff?
6. Whether the plaintiff has got right over the suit items 9 to 11?
5. The following additional issues were framed for trial:-
1. Whether Kullappa Gounder was entitled to the property mentioned under settlement deed by Irusammal?
2. Whether Kullappa Gounder was competent to execute a settlement deed in favour of the plaintiff?
6. The plaintiff and one Devendran were examined as P.Ws. 1 and 2 and Exs.A1 to A17 were marked on his side. The defendants 2 and 3 were examined as Dws. 1 and 2 and no exhibits was marked on their side. On consideration of the oral and documentary evidence, the trial Judge has dismissed the suit with respect to items 1 to 7 and decreed the suit with respect to items 8 to 11 and the first appellate court has decreed the suit in its entirety, against which the second appeal was preferred.
7. During the course of admission, the following substantial question of law was framed for consideration:-
'Whether the lower appellate court is right in holding that Ex.P-2 was only a settlement and not a Will without examining the nature of disposition and ignored the clause against alienation?
8. The respondent/plaintiff and the appellants/defendants are brothers between themselves as they were born to one Kullappa Gounder and Irusammal. Sofar as suit items 1 to 7 are concerned, the plaintiff claims exclusive title under a registered settlement deed dated 11.1.1980, marked as Ex.A. 1, whereby Kullappa Gounder had contended that those properties were got by him by virtue of a document dated 19.12.1963, marked as Ex.A. 2, which purports to be a deed of settlement executed by Irusammal in favour of Kullappan. Thus, the respondent/plaintiff may get exclusive title under Ex.A. 1 if only Kullappan the Settlor under Ex.A. 1 was competent enough to execute the same. Such of his competency would depend upon his derivation of title under Ex.A. 2. Much was spoken about the construction of Ex.A. 2 by the counsel on either side. It is therefore, appropriate to reproduce here under some important recitals thereon. They are as follows:.. .jh';fs; vd; g[Uc&d; MdgoahYk; j';fs; nghpy; , Uf;Fk; md;ig Kd;dpl;Lk; j';fSf;F brhj;J bra;a ntz;oa vz;zkpUg;gjhYk;...., e;j brl;oy;bkz;l gj;jpu K:ykha; j';fSf;Fbra;J , Uf;fpwgoahy; jh';fs; vd; $Ptjirf;F gpwF fPH;fz;l brhj;Jf;fis rh;tRje;juj;Jl;d jhdhjp tpf;fpua';fSf;F nahf;fpakha; Mz;L mDgtpj;J bfhs;s ntz;oaJ. Jh';fs; , e;j brl;oy;bkz;il vt;tpj guhjPdKk; bra;af;TlhJ. Ehd; vt;tpj fhuzj;ij Kd;dpl;Lk; , e;j brl;oy;bkz;il uj;J bra;tjpy;iy ...'
9. The learned counsel for the respondent/plaintiff contended that it should be construed only as a Settlement, while the counsel for the appellants/defendants contended that it should be construed as a Will bequeathing life estate.
10. Reliance was placed in the case of Appandainatha Nainar v. Appadurai : (2003)1MLJ805 in order to find as to whether a particular document is a sale or settlement. In the above case law, it was observed as follows:
'It is clear from the reading of various decisions that every document has to be construed on its own terms with reference to its contents, and the decisions relied upon lay down certain principles or guidelines to determine whether a particular document is a settlement or a Will. In Ramaswami Naidu v. Velappam : (1979)2MLJ88 , this Court held that the following are some of the important tests to determine whether a document is a Will or a settlement.
i) the nomenclature used by the settlor in styling the document;
ii) the express dispositive words used which touch upon the time when the vested interest is created;
iii)reservation of the power of revocation in the instrument;
iv)the effect of the reservation of life estate in favour of the executant under the instrument;
v) registration of the document under the appropriate law....
In other words, it is necessary to find out the nature of disposition in the document in question; whether there is transfer of any interest in praesenti in favour of the settlee or whether the document provides for the transfer of interest in favour of the beneficiary on the death of the executant'.....
The document in original which is in Tamil clearly shows that there was a transfer of interest in the properties in praesenti in favour of the settlees and the first defendant had only a right of enjoyment of income from the properties. Though the document provides that after the life time of the settlor, the properties should be enjoyed in equal shares by the existing and future grandsons, since there was a transfer of interest in praesenti in favour of the existing grandsons, they would hold the properties in trust for the future grandsons also and the document cannot be read to mean that the transfer would take place only on the death of the settlor'....
The dispositive clause in the document clearly points out that the first defendant has settled the properties in favour of the parties to the document and there was transfer of title in favour of them also. The latter clauses in the document speak only of possession and the possession of the properties was directed to be taken after the life time of the settlor by the existing grandsons and future grandsons through his sons in equal shares'......
The settlor, by virtue of the document, has virtually stripped himself of all his rights in the properties except the right to be in possession and enjoy the income from the properties during his life time'.
11. Reliance was also placed in Usha Subbarao v. B.E. Vishveswariah and others : AIR1996SC2260 , wherein the following observation was made:
'A1 though the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the Court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear (See Rajes Kanta Roy v. Santi Devi, : [1957]1SCR77 '
12. Thus, while making a comprehensive understanding of the entire recitals under Ex.A. 2, it would first be seen that although it was nomenclatured as settlement deed, the express dispositive words used which touch upon the time, when vested interest is created, would go to show that it is a Will because no rights in praesenti was found be vested. The relevant recitals are as follows:
jh';fs; vd; Iptjirf;Fg; gpwF fPH;fz;l brhj;Jf;fis rh;tRje;juj;Jld; jhdhjp tpf;fpua';fSf;F nahf;fpakha; Mz;L mDgtpj;J bfhs;s ntz;oaJ
13. This would mean vesting of interest would take place not at praesenti, but only after the death of executor. Again the reservation of power of revocation was also waived. Of course, the document was found registered.
14. Some other recitals were also found following the earlier one mentioned as above They are :
jh';fs; , e;j brl;oy;bkz;il vt;tpj guhjPdKk;
bra;af;TlhJ ....'.
15. By relying upon the decision of Nataraja Mudaliar v. Panduranga Mudaliar 90 LW 406 and Bole Naidu v. Kothandrama Pillai 100 LW 750, the learned counsel for the respondent/plaintiff who wanted to construe the document as a settlement contended that the above recitals are only repugnant as it contravenes earlier recitals in and by which vesting of interest was already created. In both the cases, Sec. 11 of Transfer of Property Act was dealt with. If is as follows:
'Restriction repugnant to interest created
Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction'
16. Reliance was also placed in Surendra Vikram Singh v. Munia Kunwar by the learned counsel for the appellants/defendants who had contended that in the event of construing Ex.A. 2 as a sale, Sec. 11 will never come for application. What was mentioned in the case law is as follows:
'The Transfer of Property Act does not relate to wills, and transfer is defined in the Oudh Estates Act as an alienation inter vivos. A will on the other hand is not in form a transfer, but 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'.
17. Thus, as the will involves no transfer and it is only a declaration of the intention of a testator, Sec. 11 of Transfer of Property Act will not come into picture because of the fact that the said provision will be applicable only in a case of transfer of property. We have already found that insofar as Ex.A. 2 does not create any interest in praesenti and whatever interest vested upon executee was only after the death of executor, it can be construed as a Will.
18. Upon construction of Ex.A. 2 as a Will then we have to deal with the repugnant clause contained therein to the effect that legatee should not make any encumbrance. In this connection, we find the following observation in para -10 in the case of Nataraja Mudaliar v. Panduranga Mudaliar 90 LW 406:
'In the will which came up for consideration before the Privy Council in the aforesaid decision, the testator bequeathed to his only son all his properties with the direction that he should solely enjoy them and he also added that if he or his son had no child, the property shall pass to Sri Subramania Swami at Tiruchendur. For the appellant-Temple it was argued before the Privy Council that the words 'If he or his son has no child, the said properties shall pass to Subramaniaswami at Tiruchendur' are a qualification, and if the will is read as a whole, they have the effect of creating a devise in favour of the Deity of the temple in the event of Picha Pillai dying childless. Their Lordships have observed:'Their Lordships are of the opinion that the additional words do not have this effect. S. 95 of the Indian Succession Act says that where property is bequeathed to a person he is entitled to the whole interest of the testator therein, unless it appear from the will that only a restricted interest was intended for him. It follows from what has already been said that their Lordships consider that a restricted interest was not intended here. They agree with the opinion of the High Court that the testator, as an afterthought wanted to determine the devolution of the property in case his son should die without issue, but not in any way to limit either the character of the estate that was given by the earlier bequest in favour of the son, or to make it conditional and liable to be divested at his death without issue. The testator had only one son and it was natural that he should desire that his estate should devolve upon him unconditionally'.
19. In the case of Bole Naidu v. N. Kothandarama Pillai and Others 100 LW 750, it was observed as follows:
'If the several statements made in a document are irreconcilable the earlier part of the document are entitled to preference over the latter part. In support of this contention reliance is placed upon the case reported in Sahebzada Mohammed Kamgar Shah v Jagdish Chandra Deo Dhabal Dee : [1960]3SCR604 , where it has been held as follows:'The intention of the parties to a dispositive document must be gathered from the words used by the parties themselves and they must be presumed to have used the words in their strict grammatical sense. If the statements made in the earlier part of the document were irreconciliable with those made in the latter part, the earlier part must prevail. In cases of ambiguity the Court should look at all the parts of the document to ascertain the intention of the parties. If ambiguity still remains, the court should interpret the document strictly against the grantor and in favour of the grantee'.
In the case reported in Ramkishore Lal v. Kamal Narain : AIR1963SC890 , the Supreme Court observed as follows:
The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used ...... Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given (See Sahebzada Mohd. Kamgar Shah v Jagdish Chandra Deo Dhabal Deo). It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void'.
20. Thus the subsequent repugnant recital found in Ex.A. 2 could have been made to enable the testator to enjoy the property till her life time and that is why a prohibiting clause was subsequently inserted upon that the executee should not encumber the property. By proper construction of the same such a meaning alone can be given. Otherwise, this clause should be considered as repugnant to earlier one and had to be eschewed.
21. Therefore, Kullappa Gounder will derive title under Ex.A. 2 so as to validly execute Ex.A. 1 in favour of plaintiff, who will be considered as entitled to suit items 1 to 7. It is because of his entitlement he was also issued patta to suit items 1 to 7 under Exs.A. 8 to A.10.
22. Among the remaining suit items 8 to 11, suit item 8 was shown to have been assigned in favour of the plaintiff. The contention of the appellants/defendants as if the assignment was made in favour of the plaintiff only as Head of Co-parcenery family cannot be accepted because ample evidence is available to show that plaintiff was employed and earning independently and nothing was shown that other brothers of plaintiff have also got any right over the assignment in respect of suit item 8. Similarly, Ex.A. 4 to A.6 are the documents of tile showing exclusive ownership in favour of plaintiff in respect of items 9 to 11. The plaintiff's possession was also proved under Ex.A. 15 to A.17. Thus all the items belong to plaintiff and the decree in entirety passed by the first appellate court is found proper.
23. Thus the second appeal is dismissed. No costs.