D.K.Seth, J. - (1.) This appeal arises out of a judgment and decree passed by the learned Subordinate Judge, Fifth Court at Alipore on June 12, 1978 in Title Suit No. 54 of 1974. 1. This suit was one for partition by the plaintiffs against defendants on the ground that the property belonged to one Pulin Behari Mukherjee, who happened to be the brother and uncle and granduncle respectively of the other plaintiffs. Pulin Behari got the property by inheritance as well as through self-acquisition. It was alleged that the properties were joint and that the defendant Nos. 1 and 2, who are the sons of the sister of Pulin Behari, threatened their right, title and interest in the property and that the other co-sharers refused to effect partition. The suit was contested by the defendant Nos. 1 and 2 whereas the other defendants supported the case of the plaintiffs but did not contest the suit though filed their written statements. The parties went to trial and adduced evidences.
(2.) It appears that the facts are more or less admitted. The only question that falls for our consideration is as to the interpretation of the character of the deed of family settlement, as described by the settlor Pulin Behari, in favour of the defendant Nos. 1 and 2; viz. whether the said document has the effect of divestiture of interest and title of the settlor and vesting thereof in the beneficiaries; or in other words, whether by reason of the conditions contained in the document there was any restriction on the right of the beneficiaries or of the settlor which could, otherwise, negative the intent and purpose of the deed of settlement. 1. Both Mr. S. P. Roy Chowdhury, learned Senior Counsel, appearing for the appellant and Mr. Ashok Kumar Banerjee, learned Senior Counsel, appearing for the respondents had pointed out that the question of law with regard to the interpretation of the document is the only question which the Court is supposed to answer. On facts, there seems to be no dispute. 2.2. In Order to appreciate the situation, we are to examine in the context of the present case (1) whether there was immediate divestiture with the execution of the deed; (2) whether the retention of control by the settlor were such as to lead the Court to hold that there was no divestiture in fact; (3) whether conditional divestiture can be made; (4) whether there could be a valid divestiture and vesting and simultaneous retention of possession with certain reservation of rights through creation of trust in a combined document; (5) the nature and scope of settlement and its effect.
(3.) Mr. Roy Chowdhury and Mr. Banerjee had drawn our attention to the deed itself and the conditions contained therein and had pointed out in support of their respective contentions that either the document itself is, in fact, a deed of gift or family settlement, as the case may be, protected under Sections 122, 123, 126 and 197 of the Transfer of Property Act being a deed of settlement as defined in Section 2(24)(b) of the Indian Stamp Act or, according to Mr. Banerjee, it is neither a deed of gift nor a deed of settlement nor any other kind of deed which had the effect of divestiture of title or interest of the settlor immediately in favour of the defendant Nos. 1 and 2. According to Mr. Banerjee, there was no divestiture of or any vesting of the interest in the respective parties. Whether there was any divestiture of interest of the settlor :;