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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     8197      OF     2012   [Arising out of SLP (Civil) NO.13385 OF 2009]

Mathai Samuel & Ors. .. Appellant(s)

Versus

Eapen Eapen (dead) by Lrs. & Ors.        .. Respondent(s)

J     U     D     G     M     E     N     T   

K.     S.     Radhakrishnan,     J.   

1. Leave granted.

2. We are, in this appeal, called upon to determine the question  

whether the recitals in exhibit A1 concerning item No.1 of schedule  

No. 8 therein (item No. 1 of the plaint schedule) discloses a

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testamentary disposition or a settlement creating vested rights in  

favour of the plaintiffs and defendant Nos. 1 to 3 though possession  

and enjoyment stood deferred until the death of the executants.

3. O.S. No. 169 of 1990 was instituted before the court of  

Subordinate Judge, Thiruvalla by the original plaintiffs and one  

Eapen for partition and separate possession of various items of  

properties, of which, we are in this appeal concerned only with item  

No. 1 of the plaint schedule.  The trial court passed a preliminary  

decree giving various directions, however with regard to the above  

mentioned item which relates to 3 acre 40 cents, it was held that  

exhibit A1 document did not preclude the executants’  rights for  

disposing the same during their lifetime.   Consequently, the trial  

court held that so far as item No.1 in schedule No. 8 of exhibit A1 is  

concerned, the same has the characteristics of a testamentary  

disposition, therefore not available for partition.  The court held  

that B3 sale deed executed in favour of 3rd defendant in the year  

1964 by Sosamma Eapen was valid so also B1 sale deed executed  

in the year 1978 by the 3rd defendant in favour of 4th defendant.

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4. The plaintiffs took up the matter in appeal as A.S. No. 62 of  

1991 before the court of District Judge, Pathanamthitta, which was  

allowed vide judgment dated 26.03.1994 and the decree and  

judgment of the trial court was modified and a preliminary decree  

was passed allowing partition and possession of 3/6th share of  

various items including sub-item 1 of schedule No. 8 of exhibit A1  

document.  The Appellate Court took the view that the above item  

was settled by exhibit A1 in favour of the original plaintiffs and  

defendant Nos. 1 to 3 jointly though its possession and enjoyment  

were deferred till the death of the executants.  It was also held that  

the assignment deed, executed by one of the executants and later  

by 3rd defendant, was not binding on the plaintiffs.

5. Defendant Nos. 3 and 4 then filed Second Appeal No.  

686/1994 before the High Court.  The High Court affirmed the  

judgment of the lower appellate court vide judgment dated  

12.03.2009.  While the appeal was pending before the High Court,  

the 3rd defendant died and his legal heirs got themselves impleaded.  

The High Court took the view that disposition with regard to the  

above mentioned item was not ambulatory in quality or revocable in

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character during the lifetime of the executants and held that the  

disposition of the plaint item No. 1 is a settlement though  

possession and enjoyment were deferred.  It was held that the  

executants had no right of disposal of that item and hence the  

transfer in favour of defendant No.3 and the subsequent  

assignment in favour of defendant No.4 were invalid.  Aggrieved by  

the same, these appeals have been preferred.

6. Shri T. L. Viswanatha Iyer, learned senior counsel appearing  

for the appellants submitted that exhibit A1 does not postulate any  

transfer of ownership or title over 8th schedule by the executants to  

their sons so also schedule Nos. 7 and 9.  Learned senior counsel  

submitted that items in schedule Nos. 7, 8 and 9 were under their  

absolute control of the executants and they had the full freedom to  

deal with those properties.  Learned senior counsel referring to the  

various recitals in exhibit A1 agreement submitted so far as  

schedule Nos. 1 to 6 are concerned, the transfer of interest was  

absolute in character and settled on all the sons equally and rest of  

the three items of the schedule, the executants had retained those  

items to themselves and to that extent exhibit A1 operated only as a

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Will.  Learned senior counsel pointed out that so far as schedule  

Nos. 7 and 9 are concerned, the courts found that they are  

testamentary in character and the same reasoning should have  

been applied in the case of items in schedule No. 8 as well.  Learned  

senior counsel has laid considerable emphasis on the Malayalam  

words ‘adheenadha’  (control) and ‘swathanthryam’  

(liberty/freedom).  Learned senior counsel submitted those words  

clearly indicate that the intention was to keep items in schedule  

Nos. 7 and 9 to the executants in their control with full freedom  

subject to certain stipulations.  Learned senior counsel also pointed  

out that exhibit A1 clearly indicates that items in schedule No. 8  

would devolve on his sons only after the executants’  lifetime, if  

available.  Learned senior counsel submitted that in the absence of  

any words/recitals of disposition/transfer of items in schedule No.8  

in exhibit A1 conferring title in praesenti on the sons, the High  

Court was not justified in holding that exhibit A1 was not a Will in  

respect of that item.

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7. Shri Aljo K. Joseph, learned counsel appearing for the  

respondents on the other hand contended that the recital in the  

document relating to schedule No.8 is in the nature of a settlement  

bestowing vested rights in equal shares to all the children of late  

Shri Eapen and late Smt. Sosamma.  Learned counsel submitted  

that the specific language of the recital in the agreement relating to  

schedule No.8 itself clearly indicates that rights are created in  

praesenti and at the most the enjoyment thereof was only  

postponed.  Learned counsel submitted that while reading the  

agreement as a whole, the inevitable conclusion is that the  

document, particularly recital relating to schedule No.8, is in the  

nature of a settlement conferring vested rights on the sons of  

executants equally.  Learned counsel submitted that the High Court  

was, therefore, justified in holding so, which calls for no  

interference by this Court in this appeal.  Learned counsel also  

made reference to the judgments of this Court in P. K. Mohans  

Ram v. B. N. Ananthachary and Others (2010) 4 SCC 161 and  

Rajes Kanta Roy v. Shanti Debi and Another AIR 1957 SC 255.

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8. We are, in this case, concerned only with the question whether  

the recitals in Exhibit A1 document concerning the disposition of  

schedule No. 8 disclosed a testamentary disposition or is a  

settlement of that item in favour of the original plaintiffs and  

defendant Nos. 1 to 3 deferring its possession and enjoyment until  

the death of the executants.

9. Exhibit A1 is written in Malayalam language, the English  

version of that document is given below:

“  Agreement     dated     2  nd     day     of     Thulam     1125     M.E.   –   Ext     A1   

The agreement executed on this the 2nd day of Thulam  one thousand one hundred and twenty five by (1) Eapen  s/o Chandapilla aged 58 years, house hold affairs of  Perumbral, Vennikkulam Muri of Kallooppara Pakuthi  and wife (2) Sossamma of Perumbral, Vennikkulam Muri  of Kallooppara Pakuthi Christian woman, house wife  aged 54 years, in favour of (1) Cheriyan, Agriculturist  aged 35 years (2) Chandapilla, Bank Job aged 30 years  (3) Eapen, Agriculturist aged 28 years (4) Geevargheese,  Agriculturist aged 25 years, (5) Chacko, Agriculturist  aged 22 years and (6) Mathai aged 18 years student.

We have only the six of you as our sons and Kunjamma,  Mariyamma and Thankamma as our daughters,  Kunjamma and Mariyamma have been married off as per  Christian custom and had been sent to the husbands  houses.  Accordingly, they have become members and

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legal heirs of the said husband’s family and are residing  there.  Thankamma remains to be married off.  No.2 and  3 among you are married and the dowry amounts  received thereby have been used for the needs of the  family.

The properties described in the schedules have been  obtained as per partition deed No. 1933 of 1069 ME of  the Sub Registrar Office, Thiruvalla and under other  documents.  They are held, possessed and enjoyed by us  jointly, with absolute rights (word in Malayalam is  “Swathanthryam”) and dealing with the same with all  rights and paying all taxes and duties thereon.  There are  some amounts to be paid off by us by way of debt,  incurred for conducting the family affairs.

This agreement is executed in as much as all of you have  attained majority and since we are becoming old, it was  felt that it will be to the benefit of all and to avoid future  family disputes and for the purpose of discharging the  debt, to execute this agreement to divide the properties  separately subject to the conditions specified below.  The  parties are to act accordingly.

The properties have been divided into schedule No. 1-9.  The properties described as schedules 1, 2, 3, 4, 5, 6 are  absolutely settled respectively on numbers 1 to 6 among  you.  Schedule 7 is required for the marriage and dowry  purposes of Thankamma, schedule 8 for the purpose of  discharging the debt due to Land Mortgage Bank.  Schedule 9 for the purpose of meeting our needs of  maintenance and they are retained by us in our full  control (adheenadha) and freedom (swathanthryam).  You shall separately possess and enjoy item 1 to 6  subject to the conditions specified in this agreement,  paying taxes and discharging your duties acting as per  our desires.  Since item No.2 in schedule No. 2 property  and item no. 5 in Schedule No. 3 property have been  added additionally in consideration of dowry amount  received from the marriage of party Nos. 2 and 3 among

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you, the responsibility for the dowry amount of the wife  of the 2nd party has to be borne by the 2nd party, and the  responsibility for the dowry amount of the wife of 3rd  party is to be borne by the 3rd party among you and if any  default occurs on their part, the respective party and the  respective partitioned properties shall be liable.  The right  and responsibility of the dowry amount that parties Nos.  1, 4, 5 and 6 might receive when they get married shall  lie on them only.  The marriage of the said Thankamma  shall be conducted by us, in our responsibility, during  our life time, by creating for the purpose any kind of  transactions as we desire on the property in schedule 7.  If the said Thankamma is not married off during our life  time, the property in schedule 7 shall, after our life time,  belong absolutely (word used in Malayalam is  “Swathanthryam”) on Thankamma with complete  possession, title and right, and Thankamma shall pay  taxes, redeem the mortgage and enjoy the property.  We  are keeping possession of schedule No.8 utilizing the  income derived by us directly, or by leasing out, to  discharge the amounts due to the Bank without default  and after the clearance of the debt, the income from  schedule 8 property shall be utilized for our  maintenance.  After our life time, No. 2 in schedule 8 will  below separately and absolutely (word used in Malayalam  is “Swathanthryam”) to the 3rd among you and No.1 and  3 will belong to all of you absolutely (word used in  Malayalam is “Swathanthryam”) in equal shares and  accordingly you may hold and enjoy the properties  paying the taxes thereon.  Schedule No. 9 property shall  be possessed by us and income there from be taken  directly or by leasing out and if need be, by executing  such documents as we desire on schedule No.9 property  and matters carried out, and after our life time if the  property is left, you all take it in equal shares.  We will  have the absolute (word used in Malayalam is  “Swathanthryam”) right of residence in the house  situated in schedule No.6 during our life time.

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If any transaction or debt is to be generated on the  properties apportioned to each of you, the same has to be  done jointly with us also, and if anybody acts contrary to  the aforesaid, the said transaction or debt shall not be  binding on those properties, and we shall have the right  and authority to act on those properties allotted to the  person causing such transaction.  If any one of you dies  issueless, if it is during our lifetime, that apportioned  property shall be in our absolute possession with all title  and freedom and such property shall vest in you equally  if the death is after our life time, and if any widow is  alive; she shall have right only for maintenance from the  profits of the property, and if the widow is remarried or if  the dowry is received back by her, she shall have no right  for any maintenance.

Schedule and description omitted except Schedule No.8.

Schedule     No.8   

(1) In the said Kavumgumprayar Mury, West of  Valiyaparambu property, East of Memalpadinjattumkara  property and canal and South of Memalapadi farm land  and Chelakkal Canal, do type 1 acre and 64 cent in  survey No. 689/1A do ‘B’  1 acre and 50 cents and 26  cents in survey No. 689/2 totalling 3 acres and 40 cents  of farm land.

(2) In the said Muttathukavanal farm land, that is  described in the 3rd schedule, excluding those added in  the said schedule one the southern side, 87 cents of farm  land.

(3) In the Lakkandam Kaithapadavu land, that is  described in the 4th schedule, half in the south part,  measuring 47 cents of farm land.

Sd/-

Executants”

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10. Exhibit A1 document is composite in character having special  

features of a testamentary disposition and a settlement in respect of  

items and properties covered in the Schedules.  Before examining  

those special features and characteristics, let us examine the legal  

principles which apply while interpreting such a composite  

document.

Settlement     and     Testamentary     Disposition   

11. We have already indicated that exhibit A1 document has both  

the characteristics of a settlement and a testamentary disposition.  

Let us examine the basic and fundamental difference between a  

testamentary disposition and a settlement.  Will is an instrument  

whereunder a person makes a disposition of his properties to take  

effect after his death and which is in its own nature ambulatory and  

revocable during his lifetime.  It has three essentials:

(1)It must be a legal declaration of the testator’s intention;

(2)That declaration must be with respect to his property; and

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(3)The desire of the testator that the said declaration should  

be effectuated after his death.

12. The essential quality of a testamentary disposition is  

ambulatoriness of revocability during the executants’ lifetime.  Such  

a document is dependent upon executants’ death for its vigour and  

effect.

13. Section 2(h) of the Indian Succession Act says “Will”  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”.  

In the instant case, the executants were Indian Christians, the  

rules of law and the principles of construction laid down in the  

Indian Succession Act govern the interpretation of Will.  In the  

interpretation of Will in India, regard must be had to the rules of  

law and construction contained in Part VI of the Indian Succession  

Act and not the rules of the Interpretation of Statutes.

14. Gift/settlement is the transfer of existing property made  

voluntarily and without consideration by one person called the

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donor to another called the donee and accepted by or on behalf of  

the donee.  Gift takes effect by a registered instrument signed by or  

on behalf of the donor and attested by at least two witnesses.  

Section 122 of the Transfer of Property Act defines the “gift”  as a  

voluntary transfer of property in consideration of the natural love  

and affection to a living person.

15. We may point out that in the case of a Will, the crucial  

circumstance is the existence of a provision disposing of or  

distributing the property of the testator to take effect on his death.  

On the other hand, in case of a gift, the provision becomes operative  

immediately and a transfer in praesenti is intended and comes into  

effect.  A Will is, therefore, revocable because no interest is intended  

to pass during the lifetime of the owner of the property.  In the case  

of gift, it comes into operation immediately.  The nomenclature  

given by the parties to the transaction in question, as we have  

already indicated, is not decisive.  A Will need not be necessarily  

registered.  The mere registration of ‘Will’  will not render the  

document a settlement.  In other words, the real and the only

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reliable test for the purpose of finding out whether the document  

constitutes a Will or a gift is to find out as to what exactly is the  

disposition which the document has made, whether it has  

transferred any interest in praesenti in favour of the settlees or it  

intended to transfer interest in favour of the settlees only on the  

death of the settlors.

Composite     Document:   

16. A composite document is severable and in part clearly  

testamentary, such part may take effect as a Will and other part if it  

has the characteristics of a settlement and that part will take effect  

in that way.  A document which operates to dispose of properly in  

praesenti in respect of few items of the properties is a settlement  

and in future in respect of few other items after the deeds of the  

executants, it is a testamentary disposition.  That one part of the  

document has effect during the life time of the executant i.e. the gift  

and the other part disposing the property after the death of the  

executant is a Will.  Reference may be made in this connection to  

the judgment of this Court in Rev. Fr. M.S. Poulose v. Varghese  

and Others.  (1995) Supp 2 SCC 294.

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17. In a composite document, which has the characteristics of a  

Will as well as a gift, it may be necessary to have that document  

registered otherwise that part of the document which has the effect  

of a gift cannot be given effect to.  Therefore, it is not unusual to  

register a composite document which has the characteristics of a  

gift as well as a Will.  Consequently, the mere registration of  

document cannot have any determining effect in arriving at a  

conclusion that it is not a Will.  The document which may serve as  

evidence of the gift, falls within the sweep of Section 17 of the  

Registration Act.  Where an instrument evidences creation,  

declaration, assignment, limitation or extinction of any present or  

future right, title or interest in immovable property or where any  

instrument acknowledges the receipt of payment of consideration  

on account of creation, declaration, assignment, limitation or  

extinction of such right, title or interest, in those cases alone the  

instrument or receipt would be compulsorily registrable under  

Section 17(1) (b) or (c) of the Registration Act.  A ‘Will’  need not  

necessarily be registered.  But the fact of registration of a ‘Will’ will

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not render the document a settlement.  Exhibit A1 was registered  

because of the composite character of the document.

Intention   –   Guiding     Factor:   

18. The primary rule of construction of a document is the  

intention of the executants, which must be found in the words used  

in the document.  The question is not what may be supposed to  

have been intended, but what has been said.  We need to carry on  

the exercise of construction or interpretation of the document only  

if the document is ambiguous, or its meaning is uncertain.  If the  

language used in the document is unambiguous and the meaning is  

clear, evidently, that is what is meant by the executants of the  

document.  Contemporary events and circumstances surrounding  

the execution of the document are not relevant in such situations.

19. Lord Hale in King v. Meling (1 Vent. At p. 231), in construing  

a testamentary disposition as well as a settlement, pointed out that  

the prime governing principle is the “law of instrument”  i.e. the  

intention of the testator is “the law of the instrument”.  Lord Wilmot,  

C.J. in Doe Long v. Laming (2 Burr. At pp. 11-12) described the

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intention of the testator as the “pole star” and is also described as  

the “nectar of the instrument.  In Re Stone, Baker v. Stone [(1895)  

2 Ch. 196 at p. 200]  the Master of the Rolls said as follows: “When  

I see an intention clearly expressed in a Will, and find no rule of law  

opposed to giving effect to it, I disregard previous cases.”  Coleridge,  

J. in Shore v. Wilson [9 Cl. & F. 355, at p. 525] held as follows:

“The intention to be sought is the intention which is  expressed in the instrument, not the intention which  the maker of the instrument may have had in his  mind.  It is unquestionable that the object of all  expositions of written instruments must be to  ascertain the expressed meaning or intention of the  writer; the expressed meaning being equivalent to the  intention …  It is not allowable …. To adduce any  evidence however strong, to prove an unexpressed  intention, varying from that which the words used  import.  This may be open, no doubt, to the remark  that although we profess to be explaining the  intention of the writer, we may be led in many cases  to decide contrary to what can scarcely be doubted to  have been the intention, rejecting evidence which  may be more satisfactory in the particular instance to  prove it.  The answer is, that the interpreters have to  deal with the written expression of the writer’s  intention, and courts of law to carry into effect what  he has written, not what it may be surmised, on  however probable grounds, that he intended only to  have written.”

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20. In Halsbury’s Laws of England, 4th Edn., Vol.50, p.239, it is  

stated:

“408. Leading principle of construction.- The only  principle of construction which is applicable without  qualification to all wills and overrides every other rule  of construction, is that the testator’s intention is  collected from a consideration of the whole will taken  in connection with any evidence properly admissible,  and the meaning of the will and of every part of it is  determined according to that intention.”

21. Underhill and Strahan in Interpretation of Wills and  

Settlements (1900 Edn.), while construing a will held that “the  

intention to be sought is the intention which is expressed in the  

instrument not the intention which the maker of the instrument may  

have had in his mind.  It is unquestionable that the object of all  

expositions of written instruments must be to ascertain the expressed  

meaning or intention of the writer; the expressed meaning being  

equivalent to the intention……….”

22. Theobald on Wills (17th Edn. 2010) examined at length the  

characteristics of testamentary instruments.  Chapter 15 of that  

book deals with the General Principles of Construction.  Referring to

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Lindley L.J. in Musther, Re (1889) 43 Ch.D. 569 at p.572, the  

author stated that the first rule of will construction is that every will  

is different and that prior cases are of little assistance.  Referring to  

Sammut v. Manzxi [2009] 1 W.T.L.R. 1834, the author notices that  

the Privy Council had approved the approach of considering wording  

of the will first without initial reference to authority, and commented  

that “little assistance in construing a will is likely to be gained by  

consideration of how other judges have interpreted similar wording  

in other cases.

Golden     Rule   

23. We, therefore, have to examine the composite character of  

exhibit A1 document and interpret the same in accordance with the  

normal and natural meaning which is discernible from that  

document.  In order to ascertain the intention of the testator, the  

point for consideration is not what the testator meant but what that  

which he has written means.  It is often said that the expressed  

intentions are assumed to be actual intentions.  This Court in A.  

Sreenivasa Pai and Anr. v. Saraswathi Ammal alias G.  

Kamala Bai   (1985) 4 SCC 85 held that in construing a document,

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whether in English or in any Indian language, the fundamental rule  

to be adopted is to ascertain the intention adopted from the words  

employed in it.  Reference may also be made to the judgment of the  

Privy Council in Rajendra Prasad Bose and Anr. v. Gopal  

Prasad Sen   AIR 1930 PC 242 and C. Cheriathan v. P.  

Narayanan Embranthiri and Ors.   (2009) 2 SCC 673.   

Exhibit     A1     -     Meaning     and     Effect   

24. We may now examine the meaning and effect of exhibit A1  

document.  Some of the expressions used in exhibit A1 need  

emphasis which are “absolutely settled”, “our lifetime”, “separately  

and absolutely”  and the Malyalam words “adheenadha (control)”  

and “swathanthryam (liberty/freedom)”.  The words which are used  

in a document have to be understood in its normal and natural  

meaning with reference to the language employed.  The words and  

phrases used in a document are to be given their ordinary meaning.  

When the document is made, the ordinary meaning has to be given  

to the document, which is relevant.  Executants have used the  

Malyalam words ‘adheendha’  and ‘swathanthryam’  which must be  

referable to the ordinary usage of Malayalam language at the time

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when the document was executed.  Words of usage, in Malyalam  

language, therefore be given their usual, ordinary and natural  

meaning or signification according to the approved usage because  

primarily the language employed is the determinative factor of  

legislative intention.  Consequently, the word ‘adheenadha’  means  

control, domination, command, manage etc.  ‘Swathanthryam’  

means liberty, freedom, independence etc.  Those words emphasize  

the fact that the executants had retained the entire rights over the  

property in question and not parted with.

25. We have indicated that exhibit A1 document is divided into  

schedule Nos. 1 to 9.  Properties described in schedule Nos. 1 to 6  

as per the terms of the document stood absolutely vested in  

praesenti and undoubtedly settled in favour of the executants sons.  

Evidently, therefore, that part of the document has the  

characteristics of a settlement.  Rest of the schedule Nos. 7, 8 and 9  

have different characteristics in contradistinction with schedule  

Nos. 1 to 6.    Schedule No. 7 of exhibit A1 document clearly  

indicates that the same is required for the marriage and dowry

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purposes of the daughter of the executants, by name Thankamma.  

The document clearly indicates that the marriage of their daughter  

would be conducted by the executants since it is their  

responsibility.  Further, it is also stipulated that if the daughter  

does not get married during their lifetime, the property in schedule  

No. 7 shall after their lifetime belong absolutely to their daughter.

26. So far as schedule No. 9 is concerned, the same would be  

retained by the executants in their full control (adheendha) and  

freedom (swathanthryam).  In other words, schedule No. 9 shall be  

possessed by the executants and the income therefrom be taken  

directly by leasing out, if need be, by executing such documents as  

desired.  Further, it is also stated with regard to schedule No. 9 that  

after “our lifetime” if the property is left, “you all” (all the sons) may  

take it in equal shares.

27. We are now to examine the crucial issue i.e. with regard to  

sub-item 1 of schedule No. 8 in exhibit A1.  With regard to that  

item, it has been stated in the document that the executants are

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keeping possession and would utilize the income derived from them  

directly or by leasing it out to discharge the amounts due to the  

bank and after its clearance, the income from schedule No. 8 would  

be utilized for “our maintenance”.  Further, it is also stated that  

after “our lifetime”, item No. 2 in schedule No. 8 will belong  

absolutely to third party and item Nos. 1 and 3 would belong to you  

“absolutely”  and “separately”  in equal shares and accordingly they  

may hold and enjoy the properties by paying tax thereof.  No rights,  

in praesenti, were created, on the other hand all the rights including  

possession were retained by the executants.  In other words, so far  

as item No.1 in schedule No. 8 of exhibit A1 is concerned, the  

executants had retained possession, full control as well as freedom  

to deal with it.  The contention of the respondent that the  

executants had consciously omitted the power of alienation with  

regard to Schedule No.8, unlike Schedule No.7, is not correct: The  

question is not whether the executants had retained any right but  

whether the executants had conferred any right on the  

beneficiaries.  Right, title, interest, ownership and the power of  

alienation of the executants were never in doubt and they had

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always retained those rights, the point in dispute was whether the  

property in question had been settled on the sons absolutely during  

their life time; barring possession and enjoyment. In our view, no  

right, title, interest, or ownership had been conferred when the  

document was executed or during the life time of the executants to  

their sons in respect of item No.1 of Schedule 8 of exhibit A1.   We  

have noticed that there is marked difference in the language used in  

respect of properties covered by Schedule Nos. 1 to 6 and rest of the  

Schedules.  Admittedly, Schedule Nos. 7 and 9 are testamentary in  

character and in our view, Schedule 8 also, when we examine the  

meaning ascribed to the various words used and the language  

employed.  The judgments in K. Balakrishnan v. K. Kamalam  

and Ors.   (2004) 1 SCC 581, Kale and Ors. v. Deputy Director of  

Consolidation and Ors.   (1976) 3 SCC 119 are, therefore,  

inapplicable to the facts of this case.    

Subsequent     events:      

28. Subsequent events or conduct of parties after the execution of  

the document shall not be taken into consideration in interpreting a  

document especially when there is no ambiguity in the language of

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the document.  But we may refer to those events also only to re-

enforce the fact that there is no ambiguity in the language employed  

in the document.

29. Subsequent conduct of Eapen and Sosamma has no bearing  

in understanding the scope of exhibit A1 document. The  

executants, it may be noted, had jointly executed a mortgage on  

12.11.1955 (exhibit B2) to one Mathew in which they had affirmed  

their right to execute such a mortgage and traced it to exhibit A1  

document.  Further, the executants had not parted with possession  

of item No.1 of 8th Schedule of exhibit A1 to their sons, at any point  

of time and retained ownership.  Exhibit B3 document was  

executed in favour of 3rd defendant on 18.07.1964 and later he sold  

the property to 4th defendant on 23.01.1978 (exhibit B1).  Now from  

1978 onwards, the 4th defendant, a stranger to the family, has been  

in exclusive possession and ownership of the property.   We may  

also point out even though Ext.B3 was executed on 18.07.1964, the  

suit was filed only on 6.2.1978, that is, after more than thirteen  

years.  It will also be unjust to deprive him of his ownership and  

possession at this distance of time.

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30. We, therefore, find that the right, title, interest, possession  

and ownership of item No.1 of 8th Schedule of Ex.A1 were with the  

executants and they had the full control and freedom to deal with  

that property as they liked unlike Schedule Nos. 1 to 6.  We have,  

therefore, no hesitation in holding that so far as that item is  

concerned, the document in question cannot be construed as a  

settlement or a gift because there is no provision in the document  

transferring any interest in immovable property in praesenti in  

favour of settlees i.e. their sons.   

31.  The judgment and decree of the lower appellate court,  

confirmed by the High Court, is, therefore, set aside and the  

judgment and decree of the trial court is restored.  The appeal is  

allowed as above and there will be no order as to costs.

…………………………………..J. (K.S. Radhakrishnan)

…………………………………..J. (Dipak Misra)

New Delhi, November 21, 2012