ORDER

1. Leave granted.

2. We have heard the counsel on both the sides. One Ithara and his wife Annam had 7 acres and odd land. During their lifetime, Sosa, daughter of Mathew and her husband Varghese, the respondents herein, were looking after the old people. They executed a deed dated 5-3-1966, Ex. A-2. Thereunder they have given in consideration of the affection and the faithful service rendered by them, 70 cents of land absolutely to Sosa. For the rest of the lands, it was recited thus :

"We reserve our right during our lifetime to live according to our wishes in the building described along with you and if need be we have full rights and liberty to appropriate the entire income and profits from the properties except those set apart in the name of the second named amongst you. In the event during our lifetime it becomes necessary to mortgage or alienate the schedule property the same should be effected by you jointly with us and with the consent of all of us."

3. We are not concerned with rest of the terms of the document. During the lifetime of the old people, they cancelled this document under Ex. A-3, dated 11-3-1968. The respondents challenged the same. In the trial court they succeeded, but on appeal it was reversed. The High Court confirmed the same. The High Court construed that the document is a gift deed and that therefore, the donors, having divested their title to the properties had no right to cancel the same subsequently.

4. There was a dispute with regard to the recitals among the parties. Therefore, we have got officially translated the recital as extracted herein before. It indicates that the old people, the executants, have jointly reserved the right during their lifetime not only to live in the building and enjoy the entire income from the properties, but also reserved the right to alienate or mortgage the properties. In other words, they have not divested themselves from the title to the rest of the property completely, except 70 cents of the land given to the respondent Sosa in absolute terms. The High Court, therefore, was not right in its conclusion that it is a gift deed and the donors were divested of the title on execution of Ex. A-2 with effect from 25-3-1966. That part must be read to be a will.

5. The appeal is accordingly allowed. Since the appellant is the son of Skaria, brother of Ithara, and the respondents are daughter and son-in-law of Mathew, a brother of Annam, wife of Ithara, both the parties should, according to us, make partition and enjoy the properties in equal moiety. No costs.

For Citation: 1995 Supp(2) SCC 294