- (1.) THE second defendant in O. S. No. 176 of 1980, District Munsifs Court, valangiman at Kumbakonam, is the appellant in this second appeal. That suit was instituted by the first respondent herein against the second respondent and the appellant praying for partition and separate possession of her half share in the suit properties and for recovery of mesne profits till the date of delivery of possession.
(2.) BRIEFLY stated, the case of the first respondent is as follows: The suit properties originally belonged to one Bagirathiammal. She had a younger sister of the name of Parvathathiammal, who was married to one vaidyanatha Sastrigal. Par-vathathammal and Vaidyanatha Sastrigal had three sons, viz. , Ramachandran, Viswanathan (the husband of the first respondent) and san-thanaraman (the second respondent) and two daughters, viz. , the appellant herein and one Kamalathammal, Bagirathiammal executed a document on 25. 1. 1937. Thereunder, she directed that her sister Parvathathammal should enjoy'a' schedule properties for her lifetime and after her lifetime, her sons ramachandran,'viswanathan and Santhanaraman were directed to take the properties. Under the same document, Bagirathiammal had provided that kamalathammal, one of the daughters of Parvathathammal and Vaidyanatha sastrigal, should enjoy'b'schedule properties for her lifetime and thereafter, her issues were to take that property. It was also further provided that in the event of Kamalathammal dying without issues the property should devolve upon the sons of Parvathathammal. The document further provided that bagirathiammal. had the right to enjoy the income from the properties for her lifetime and thereafter, the income must be enjoyed by Parvathathammal and kamalathammal respectively for their lifetime and it was only after their lifetime, the properties were to be taken by the sons of Parvathathammal and the children of Kamalathammal, in case she had issues. According to the case of the first respondent, the document came into operation immediately and was also acted upon, though Bagirathiammal had made a provision for enjoyment of the income from the properties during her lifetime. The further case of the first respondent was that after the lifetime of Parvathathammal,'a'schedule properties vested in the sons of Parvathathammal, viz. . the husband of the first respondent and the second respondent herein, as the other son ramachandran had predeceased Parvathathammal. Kamalathammal had died issueless and under the terms of the document dated 25. 11. 1937, according to the case of the first respondent, her husband and the second respondent became entitled to a half share in'a'and'b'schedule properties and that on the death of the husband on 4. 5. 1958, she became entitled to a half share in'a'and'b' schedule properties. It was on the aforesaid basis that the first respondent claimed that she is entitled to the reliefs prayed for in the suit set out earlier. In the written statement filed by the appellant, which was adopted by the second respondent, she claimed that the document dated 25. 11. 1937 was only in the nature of a testament and not a deed of gift and that late Bagirathiammal cancelled the document dated 25-ll-1937 by another registered document dated 9. 3. 1968 and had also executed a will bequeathing the suit properties in favour of the appellant and the second respondent. The appellant also pleaded that Bagirathiammal was in a sound disposing state of mind at the time of the execution of the will and that as the first respondent had left the family soon after the death of her husband, she cannot now pray for any share in'a'and'b'schedule properties in the suit. The appellant and the second respondent, therefore, prayed for the dismissal of the suit. Before the trial Court, on behalf of the first respondent, Exhibits A-1 to A-3 were marked and the first respondent examined herself as P. W. I, while, on behalf of the appellant and the second respondent, exhibits B-1 to B-4 were filed and D. Ws. l to 3 gave evidence. On a consideration of the oral as well as the documentary evidence, the learned district Munsif found that the document in question executed by Bagirathiammal was only a deed of settlement and not a will, that under the terms of the settlement, the interest in the properties had already been vested with the settlees and thereafter, the settlor was not competent either to cancel it or to make a disposition contra, that the purported cancellation of the settlement deed was invalid and, therefore, the first respondent was entitled to a preliminary decree for partition and separate possession of her half share in the suit properties. Aggrieved by this, the appellant herein preferred an appeal in A. S. No. 3 of 1982, Sub Court Kumbakonam. The lower appellate Court, however, confined the decree granted in favour of the first respondent to'a' schedule properties and vacated the decree in so far as'b'schedule property is concerned, while relegating an enquiry into mesne profits regarding'a' schedule properties to proceedings under Order 20,rule 12, Code of Civil procedure. It is the correctness of this that is questioned by the appellant in this second appeal. The principal and the only contention urged by the learned counsel for the appellant in support of this second appeal is that the document Exhibit A-1, dated 25. 11. 1937 is only a will and not a settlement, as there was no disposition in praesenti in that document. The further contention of the learned counsel is that Exhibit A-l had been revoked under Exhibit B-3 dated 9-3 by Bagirathiammal and thereafter, she had executed a will under exhibit B-4 on the same day in favour of the appellant and the second respondent and, therefore, the first respondent is not entitled to claim any share even in'a'schedule properties. Reliance was also placed in this connection upon the decision reported in Ranwswami Naidu v. Gopalakrishnan 90 l. W. 430. On the other hand, learned counsel for the first respondent submitted, referring to the terms of Exhibit A-l, that though Bagirathiammal had reserved to herself a life interest in the properties dealt with thereunder, she had provided for the immediate vesting of the properties in favour of the sons of parvathathammal and also the children of Kamalathammal and such a disposition took effect immediately. Strong reliance was also placed upon the preamble portion of the document Exhibit A-l to contend that it partook the character of only a settlement and not a will, especially when there was no provision for the revocation of that document as is normally found in the case of wills. Reliance was also placed by the learned counsel for the first respondent upon the decision reported in Ramaswami Naidu v. Velappan, (1979)2 M. L. J. 88. Exhibit A-l is dated 25-11-1937. That document is styled as a deed of settlement, though that cannot be determinative of the nature of the document. The following recital occurs in the document: The aforesaid recital, after referring to the properties owned by Bagirathiammal, purports to create an interest in favour of parvathathammal and the daughter Kamalathammal. The further recital in the document is to the effect that Parvathathammal and Kamalathammal should enjoy the income from the properties for their lifetime and after the lifetime of parvathathammal, the properties, the income from which hadbeen given to her, should be taken by her sons. Likewise, in relation to'b'schedule properties given to Kamalathammal, she had also been directed to enj oy the income from the properties for her lifetime and thereafter, the properties were directed to be taken by her santhathis. A further provision has also been made that in the event of Kamalathammal dying without issues, the properties should be taken by the male santhathis of Parvathathammal. A careful consideration of the recitals occurring in Exhibits A-1 shows that Bagirathiammal had reserved to herself the right to enjoy the income from the properties for her lifetime and had likewise provided for such enjoyment of income with reference to two schedules by parvathathammal and Kamalathammal and had in praesenti vested the remainder in favour of the sons of Parvathathammal in so far as the properties given to parvathathammal are concerned and the issues to be born to Kamalathammal with reference to the properties given to her, with a further provision that in the event of Kamalathammal dying without issues, the properties should be taken by the male heirs of Parvathathammal In other words, under the document executed by Bagirathiammal, apart from reserving a life interest in her favour and in favour of Parvathathammal and Kamalathammal, Bagirathiammal had vested the remainder even on the date on which she had executed the document in favour of the sons of Parvathathammal and the issues of Kamalathammal. There is, therefore, no scope for contending that there is no vesting of any interest in praesenti under the document and, therefore, it would only be in the nature of a will. Apart from this, it is significant that there is no provision in exhibit A-1 for revoking the document. Ordinarily, a will is revocable, whether it is stated so in it or not. However when the document in question is a deed of settlement, in the absence of reservation of powers of revocation, it cannot be revoked. The document in question, viz. , Exhibit A-l has also been stamped and registered only as a settlement deed as noticed earlier, there is no provision for its revocation. The document had also taken effect, for, in the exercise of her right to enjoy the income from the properties for her lifetime, bagirathiammal had also purported to lease out the properties in favour of one durairaja Mannayyar, as could be seen from Exhibit B-2, dated 23. 7. 1952. The right to enjoy the income from the properties for her lifetime by bagirathiammal need not necessarily be exercised only by personal cultivation, but the properties could also be leased out and the income realised by that could be enjoyed. Only that had been done by Bagirathiammal by the execution of exhibit B-2. Though decisions dealing with the interpretation of the recitals in individual documents may not be of great assistance in ascertaining the true character of a document, yet, the important tests laid down to ascertain the nature of the document can be applied and the real nature of the document in question can be found out. In Ramaswami Naidu v. Velappan, (1979)1 M. L. J. 88, a division Bench of this Court, to which I was a party, had occasion to lay down some of the important tests in this connection. The nomenclature used by the settlor in styling the document, the express dispositive words used which touch upon the time when the vested interest is created; the reservation of the power of revocation in the instrument, the effect of the reservation of a life estate in favour of the executant under the instrument and the registration of the document under the appropriate law have been pointed out to be some of the tests which can be applied. It has also been laid down that it is the substance of the instrument that should determine the real nature of the document and not the form adopted. The nomenclature used by the settlor, the dispositive clauses, the absence of reservation of the power of revocation and the registration of the document have already been referred to. It now remains to consider whether the reservation of a life estate in favour of the executant under the instrument would in any manner detract from the document being a deed of settlement. It is in this connection that the recitals referred to already become important. The dispositive clauses referred to already create an interest in prasesenti. The life estate is created in favour of Bagirathiammal in respect of the properties dealt with and thereafter, in favour of parvathathammal and Kamalatham-mal with reference to the properties given to them also, a life interest is created. Thereafter, the vested interest is disposed of in favour of the sons of Parvathathammal and the children of Kama-lathammal, with a further provision for the devolution of the interest of Kamalathammal, in the event of her dying without issues. Thus, the dispositive clauses in the settlement deed create not only an interest in praesenti, but also provide for the vesting of the remainder in favour of other persons. It may be that the vested interest becomes vested after the lifetime of Bagirathiam-mal, parvathathammal and Kamalathammal, but that would not make the instrument any the less a settlement. This aspect of the matter has been pointed out by the division Bench at page 93 of its judgment in the following terms. These two dispositive Clauses create an interest in praesenti. The question is whether the postponement of such proprietory rights already vested in Velappan and his heirs, to the lifetime of Meenakshi Ammal, would make any difference. The Explanation to section 19 of the Transfer of property Act, providing that a vested interest is not defeated by the death of the transferee before he obtains possession, makes the legislative intent clear that such a vested interest, merely for the reason that it becomes vested after the lifetime of the settlor, would not make it a settlement not being in praesenti. We are therefore unable to agree with the contention that the interest that Velappan, the plaintiff, obtained under the instrument is not a vested one and that it could be defeated because it is postponed till after the lifetime of Meenakshi Ammal. Viewed in the light of the above observations of the Division bench, the reservation of a life interest by the executant Bagirathiammal in her favour or in favour of Parvathathammal and Kamalathammal would not militate against the document being a settlement deed, especially when the remainder had been vested in the sons of Parvathathammal and the children of Kamalathammal though it may be that possession stood post-Doned till after the extinction of the lifes of Bagirathiammal, Parvathathammal and Kamalathammal. The reliance placed by the learned counsel for the appellant on the decision in Ramaswami naidu v. Gopalakrishnan Naidu, 90 L. W. 430 does not in any manner advance the case of the appellant. On the terms of the recitals found in the document, it was interpreted by this Court to be a Will, and not a settlement deed. However,as pointed out earlier, on the recitals in this case, it is clearly seen that the executant of Exhibit A-1 had intended only to execute a settlement deed and had also created a life interest in favour of some persons and also vested the remainder in favour of others in praesenti. Under those circumstances, it follows what the document under Exhibit A-l has to be considered only as a deed of settlement and not a will. It, therefore, follows that the revocation of the settlement deed by Bagirathiammal and the execution of a will in favour of the appellant and the second respondent would be of no consequence is so far as the claim of the first respondent to a half share in the properties is concerned. The lower appellate Court was, therefore, right in granting a decree as it did in favour of the first respondent. Consequently, the second appeal fails and is dismissed with the costs of the first respondent. ;