NAMBURI BASAVA SUBRAHMANYAMversusALAPATI HYMAVATHI AND ORS.

A                     NAMBURI BASA VA SUBRAHMANY AM
                                    v.
                       ALAPATI HYMAVATHI AND ORS.

                                     APRIL 2, 1996

B                 [K RAMASWAMY AND G.B. PATTANAIK, .I.I.]

              Docunzent :

         Deed of settlement-!11tc1prelalion of--Hind11 widow executing a settle-
C ment deed beq11eathing propeny in favo11r of her second da11ghler who was to
  acquire absolute 1igltt to e11joy111ent alienation etc. on the deniise of Iler
  1110the1~Recita/s ill deed illdicating settlement deed Lo take effect oil date of
  execution-After death ·of the da11ghter the widow executillg a will givi11g the
  said properties to the first daughte1~Hetd, the recitals in the documelll as also
  ill the Sched11/e thereto i11dicate that on the date of exec11tio11 1ight title alld
D interest in the prope1ties had been created in praesenti in favour of the second
    daughter-17ie docunient is to be constnu:d as a scttle111e11t deed and not as
    a will.

              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7599 of
                                                                                         •
E 1996.
          From the Judgment and Order dated 11.7.95 of the Andhra Pradesh
     High Court in LP.A. No. 124 of 1989.

              R. Sundaravardhan, Ms. Anjani Aiyagari for the Appellant.
F             Ms. K. Amareshwari and G. Narasimhulu for the Respondent.

              The following Order of the Court was delivered :

              Leave granted.

           We have heard the counsel on both sides. This appeal by special
     leave arises from the Judgment and order dated July 11, 1995 of the
     Division Bench of the Andhra Pradesh High Court made in LP.A. No.
     124/89. The undisputed facts are that Ch. Seshamma had two daughters,
     namely, Hymavathy and Vimalavathy. She had bequeathed her properties
     to her daughters by two settlement deeds executed and registered on
                                       1100
               N.B. SUBRAHMANYAM v. A. HYMAVATHI                          1101

1.12.1958. The appellant is the husband of Vimalavathy, who died on May           A
4, 1970. On Au1,'llst 21, 1970, Seshamma had revoked the settlement deed
Ex. B-J and executed will Ex. A-1 giving the properties gifted in favour of
Vimalavathy to her daughter Hymavathy. Seshamma died on January 26,
1976. Smt. Hymavathy filed O.S. No. 35/78 in the Court of Subordinate
Judge, Tenali. The trial Judge relying on the evidence of DW 1-3, .has held       B
that Ex. B-1 is a settlement deed and that, therefore, the will Ex. A-1 is
not valid in law. Accordingly, he dismissed the suit. The learned single
Judge by judgment and decree dated December 13, 1988 confirmed the
decree of the trial Court. The Division Bench, as stated earlier, in the
impugned judgment decreed the suit as claimed by Hymavathy. Thus this
appeal by special leave.                                                          C
      The only question ;., the interpretation of the deed Ex. B-1. It is true,
as rightly contended by Smt. K. Amareshwari, learned Senior counsel for
the respondents, that the nomenclature of the document is not conclusive.
This recitals in the document as a whole and the intention of the executent       D
and acknowledgment thereof by the parties are conclusive. The court has
to find whether the document confers any interest in the property i1t
praesenti so as to take effect inter vivas and whether an irrevocable interest
lhereby, is created in favour of the recipient under the document, or
whether the executent intended to transfer the interest in the property only
on the demise of the settler. Those could be gathered from the recitals in        E
the document as a whole. The settlement deed reads as under :

        "I am 78 years old by now. Since I have suffering from Nanju
        disease and breathlessness and Asthama and I feel that it would
        be difficult for me to live long. You happened to be my daughter.         F
        Out of great love and affection, I have for you, I, having felt strong
        desire got this settlement deed executed in your favour this day,
        settling the properties mentioned in the schedule hereunder i.e.,
        the property I had purchased on 21.11.1935 from Sharadappa wife
        of Damarla Anajaiah and Vejella Veeraiah and others which is my
        self-acquired property, and the land developed upon me out of the         G
        property of my husband under a decree passed by the Andhra
        Pradesh High Court and which has been in my absolute rights and
        enjoyment, to belong to you after my death to be enjoyed by you
        with absolute rights. Therefore, taking possession of the schedule
        land after my death you may enjoy the same freely and happily till        H
    1102                 SUPREME COURT REPORTS                  (1996] 3 S.C.R.

A           the sun and moon endure together with trees, water stones,
            treasures and treasure troves with all the rights with absolute
            powers of disposition by way of gift, mortgage, exchange, sale etc.,
            from your son to grand son and so on by saying the taxes of the
            municipality, Government etc., from then onwards. I, heirs of my
            successors shall never raise any dispute against you, your heirs or
B           successors in this behalf. Having assured your and made you to
            believe that the schedule mentioned properties have not been
            alienated and have not been subjected to any attachments of
            courts, securities etc., and are free from all encumbrances and
            which are in my absolute right and enjoyment, this deed of settle-
c           ment is got executed. and "delivered to you".

        The Division Bench on its reading of the said document has con-
  strued it to be a will. Unfortunately, it did not not read the recital in the
  Schedule to the Settlement deed. The boundaries of the properties settled
D (details of which are not material; hence omitted) through this settlement
  deed through which the rights were created in his favour.

         The said recital clearly would indicate that the settlement deed
  executed on that date is to take effect on that day. She created rights
  thereunder intended to take effect from that date, the extent of the lands
E mentioned in the Schedule with the boundaries mentioned thereunder. A
  combined reading of the recitals in the document and also the schedule
  would clearly indicate that on the date when the document was executed
  she had created right, title and interest in the property in favour of her
  second daughter but only on her demise she was to acquire absolute right
F to enjoyment, alienation etc. In other words, she had created in herself a
  life interest in the property and vested remainder in favour of her second       +
  daughter. It is settled law that the executent while divesting herself of the
  title to the property could create a life estate for her enjoyment and the
  property would devolve on the settlee with absolute rights on settlor's
  demise. A reading of the documents together with the Schedule would give
G an indication that she had created right and interest in praesenti in favour
  of her daughter Vimlavathy in respect of the properties mentioned in the
  schedule with a life estate for her enjoyment during her life time. Thus, it
  could be construed rightly as a settlement deed but not as a will. Having
  divested self thereunder, right and title thereunder, she had, thereafter, no
H right to bequeath the same property in favour of her daughter Hymavathy.
                  N.ll. SUBRAHMANYAM v. A. HYMA VATH!                    1103

    The trial Conti and the learned single .Judge rightly negatived the claim.   A
    The Division Bench was not, therefore, correct in law in interfering with
    the decree of the trial Courl.

          The appeal is accordingly allowed. The decree of the trial Court
    stands confinned. No costs.

    R.P.                                                    Appeal allowed.




+