http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: NAMBURI BASAVA SUBRAHMANYAM

       Vs.

RESPONDENT: ALAPATI HYMAVATHI & ORS.

DATE OF JUDGMENT:       02/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (5)   330        1996 SCALE  (4)278

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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 L.P.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 1.12.1958. The  appellant is the husband of Vimalavathy, who died on  May 4,  1970. On  August  21,  1970,  Seshamma  had revoked the settlement deed Ex. B-1 and executed will Es. 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  that Ex.D-1  is a settlement deed and  that, therefore,  the will Ex. A-1 is not valid in law. Accordingly, the 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.      The only question is 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 documents  is not conclusive. 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  whether  the  document confers any  interest in the property in presenting so as to take effect  intra vinos and whether an irrevocable interest thereby, is  created in  favour of  the recipient  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 as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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      fro me  to live  long. You happened      to be  my daughter.  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      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  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 paying 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  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  settlement is got executed      and "delivered to you".      The Division  Bench on its reading of the said document has construed it to be a will. Unfortunately it did not read the recital  in the  Schedule to  the Settlement  deed.  The boundaries of  the properties  settled (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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

interest in  the property  in favour  of her second daughter but only  on her demise she was to acquire absolute right 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. lt is settled law that  the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the  property would  devolve on the settle with absolute rights on  settlor’s demise.  A  reading  of  the  documents together with the Schedule would give an indication that she had created  right and  interest in  presenting 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 right  to bequeath the same property in favour of  her daughter  Hymavathy. The  trial Court and the learned  single  Judge  rightly  negatived  the  claim.  The Division  Bench  was  not,  therefore,  correct  in  law  in interfering with the decree of the trial Court.      The appeal  is accordingly  allowed. The  decree of the trial Court stands confirmed. No costs.