Judgment :- 1. Plaintiff and defendants 17, 20 and 24 are the appellants. The suit is for partition. The plaint schedule properties belonged to one Puravath, a Syrian Christian, who died on 1.4.1118, leaving neither wife nor children. He had four brothers, Kora, Cheria, Ittira and Paily, and two sisters, Mariam and Eliswa. Kora and Eliswa died before Puravath died, Paily, Ittira and Mariam died afterwards. Plaintiff is the daughter of Kora. Her brother, Mathai, also died before Puravath. The 8th defendant, Naithy, is the wife of Mathai. The 9th defendant, Annamma, is the daughter of Mathai and the 22nd defendant, Varghese, is the husband of the 9th defendant. Plaintiff had another brother, Poulose, and a sister, Eliswa, both of whom died before Puravath. Defendants 5,6 and 7 are the children of Poulose; and the 10th defendant is the husband of Eliswa. Defendants 11 to 15 are the children of Eliswa. First defendant, Cheria, is the brother of Puravath. Defendants 2 and 3 are the children of deceased Ittira, and defendants 16 and 17 are the children of deceased Paily. The 20th defendant is the husband of the 17th defendant. Mariam, the sister of Puravath, was unmarried and she died after the death of Puravath. Defendants 18 and 19 are the children of Eliswa, the other sister of Puravath. 2. Puravath had executed a will, Ext. XI, on 5.10.1103 bequeathing the plaint schedule properties to Mathai, the brother of the plaintiff. But, since Mathai predeceased Puravath the bequest became inoperative. It is, therefore, alleged that Puravath died intestate as regards the plaint schedule properties and the plaintiff claimed her share in the properties. 3. Defendants 8,9 and 22 representing Mathai's branch, defendants 17 and 20,18 and 19,16 and 10 to 15 filed written statements in the case. Defendants 8, 9 and 22 contended that the plaint schedule properties have been bequeathed by Puravath to the 9th defendant, the daughter of Mathai, under an oral will. They also contended that the plaintiff was not entitled to any share in the properties since she had been paid her streedhanam and that, in any case, plaint schedule items 1 to 3 had already been gifted by Puravath to Mathai on 10.7.1086 under a gift deed, Ext. IX. The other defendants supported the plaintiff. 4. They also contended that the plaintiff was not entitled to any share in the properties since she had been paid her streedhanam and that, in any case, plaint schedule items 1 to 3 had already been gifted by Puravath to Mathai on 10.7.1086 under a gift deed, Ext. IX. The other defendants supported the plaintiff. 4. Issue No.1 raised in the case related to the question whether the oral will set up by defendants 8, 9 and 22 was true. The court below found this issue in favour of defendants 8, 9 and 22 and dismissed the suit. In appeal filed by the plaintiff the Cochin High Court reversed this finding holding that the oral will was not proved, and remanded the case for decision of the other issues. After remand, the court below recorded its findings on those issues. The court found that the plaintiff has not been given her streedhanam. It also found that plaint items 1 to 3 have been gifted to Mathai under Ext. IX. Accordingly, the court passed a preliminary decree for partition of plaint items 4 to 6 only. Defendants 8 and 9 were ordered to pay the other sharers mesne profits of items 4 to 6 from the date of suit in proportion to their respective shares. They were not made liable for past mesne profits. Costs were ordered to be borne by the estate. 5. The main question argued in the appeal relates to the claim of defendants 8, 9 and 22 to plaint schedule items 1 to 3 under Ext. IX executed by Puravath in favour of Mathai. According to them, Ext. IX amounts to a gift; while according to the plaintiff it is only a will. The question turns on the construction of Ext. IX. It is styled. It was also registered in Book No. 4 pertaining to wills. The operative portion of the document is the following: The case of defendants 8, 9 and 22 is that the document conveyed to Mathai the properties mentioned therein subject to a life interest reserved with Puravath, while according to the plaintiff there was no transfer of any interest in presente in favour of Mathai and there was only a bequest in his favour to take effect on the death of Puravath. 6. 6. The line of distinction between a will and a deed of settlement reserving a life estate with the executant of the document is often a fine one. The real test is whether the disposition is revocable or not. "A will is an instrument by which a person makes a disposition of his property to take effect after his decease and which is in its own nature ambulatory and revocable during his life". (Jarman on Wills, 7th edition, Vol. I, page 29). In the Indian Succession Act, "Will" is defined as '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'. The characteristic features of a will are thus described in Halsbury's Laws of England: "The essential characteristics of a will are that, during the life of the testator, it is a mere declaration of his intention and that it may be freely revoked or altered in a prescribed manner. It is therefore ambulatory, or without a fixed effect, until the testator's death. Upon that event it crystalises, and may for the first time take effect as an appointment, disposition, or otherwise, according to its tenor, it requires the death of the testator for its consummation, and must be distinguished from a disposition made inter vivos, such as a voluntary settlement with a power of revocation, or an instrument which is final on its execution by the maker, although intended to take effect on some future event. An instrument, however, which, though in form a conveyance, is made on condition that it is to take effect only on the death, of the conveying party, is often testamentary in character. The revocable nature of a will cannot be lost, even by a declaration that the will is irrevocable, or by a covenant not to revoke the same. After revocation, however, the will may be revived in the prescribed manner". (Volume 34, page 10). In the case of a settlement or gift there must be a transfer in presente of interest in property in favour of the person in whose favour the document is executed. The transfer may be subject to a life estate reserved with the executant of the instrument. (Volume 34, page 10). In the case of a settlement or gift there must be a transfer in presente of interest in property in favour of the person in whose favour the document is executed. The transfer may be subject to a life estate reserved with the executant of the instrument. A good number of cases have been cited before us in which the distinction between a will and a deed of settlement or gift reserving a life estate with the executant of the document came up for discussion. But, as observed by the Privy Council in Sasiman v. Shib Narayan (1922 P.C. 63) it is always dangerous to construe the words of one document by the construction of more or less similar words in a different document adopted in another case. It is, however, useful to keep in view the guiding principles adopted in decided cases in determining the question whether a particular instrument is a gift or a will. The question whether an instrument containing a disposition of property with a reservation of life estate in favour of the executant thereof amounts to a will or a settlement came up for consideration before the Cochin High Court in Kochappu v. Kochurothamma (39 Cochin 75). After referring to various decisions on the question, Govinda Menon, J. observed: "The name given to the document by the executant thereof is, therefore, not a decisive factor. In spite of the name given by the parties to the document its true nature and effect have to be determined with reference to the intention of the executant disclosed by the provisions of the instrument itself. In other words, the real test to determine the true character of a document is to see whether by its execution the executant thereof intended to convey any right in presente to another or not". In Rajammal v. Authiammal (33 Madras 304), one of the cases referred to by the learned judge, it was held that "one of the invariable tests in coming to a conclusion as to the testamentary character of a paper is whether the paper is revocable". 7. In Rajammal v. Authiammal (33 Madras 304), one of the cases referred to by the learned judge, it was held that "one of the invariable tests in coming to a conclusion as to the testamentary character of a paper is whether the paper is revocable". 7. In Pasungilia Pillai v. Isakkimuthu (1928 Madras 349) Srinivasa Iyengar, J. observed: "One conclusive test as to whether, in such cases the document was intended to take effect inter vivos or not, would be to see whether any irrevocable interest is thereby created immediately in favour of some other person. Undoubtedly the question can arise only in respect of documents where the property is directed to go to the donee after the death of the maker of the instrument. In the case of a will, as it speaks only from the death of the testator the disposition could only begin to take effect from that time. But a disposition in presente can be made vesting property in a third person on the death of the maker of the instrument, the distinction being that the interest in the latter case, though it comes into possession after the death of the maker, vests immediately. It may also be useful in connexion with such a question to consider whether the interest that the maker of the instrument reserves to himself should be regarded as reserved or retained by virtue of the instrument itself, or merely by reason of there not having been any disposition of the property". Ananthakrishna Aiyar, J. the other learned judge who took part in the decision discussed the question in the following manner. "No doubt when a party uses a particular nomenclature in connexion with a document that he executes, I think the courts are bound to start with the presumption that he knows the law as every man is supposed to know the law, though no doubt, there is no evidence that the document was drafted under professional advice. Starting with the presumption that the executant purports to call the document that he executes by a particular name, the court should examine the principal terms of the document in the same light. Starting with the presumption that the executant purports to call the document that he executes by a particular name, the court should examine the principal terms of the document in the same light. No doubt, the nomenclature put by the parties is not in any way conclusive; nor is the circumstance that the document bears any stamp at all or a particular denomination of stamp or is registered in Book No.1 instead of in some other book of the Registration office, conclusive with reference to the view that the court should ultimately take of the real nature of the transaction. No doubt, in cases of ambiguous transactions these circumstances may afford help more or less material in enabling the court to come to a proper conclusion. But if it should be contended - and I must mention that it was not contended in this case - that the name given to a document should be taken as conclusive, I am decidedly of opinion that that contention should be overruled. There have been cases where courts have held that documents which parties called by a particular nomenclature were really and legally documents of some other kind. "For example, in Lakshmi v. Subramanya the parties called the document in question in that case a vyavasthapathra and the court held that it was a will. In Thakur Ishri Singh v. Thakur Baldeo Singh the parties called the document a tamlikama (translated as a deed of assignment). The Privy Council held that it was really a will. Similarly in Din Tarini Debi v. Krishna Gopal Bahchi a document styled sambandha nirnaya pathra was ultimately decided by the courts to be really a will. So that, while I hold that the name given to a document should not at all be taken to be conclusive of its real legal nature, I agree with the learned judges who decided the case of Madhava Iyer v. Sankara Subramania Iyer that ordinarily and in the first instance courts should start the inquiry on the assumption that the party really meant to effect a transaction of the kind which the name that he gives to the document would indicate. Now, if the name given to a document is not conclusive, then it is really the nature of the contents of the document that would guide the court in deciding as to the real legal nature of the document ". Now, if the name given to a document is not conclusive, then it is really the nature of the contents of the document that would guide the court in deciding as to the real legal nature of the document ". 8. In Khushal Chand v. Trimbak (1947 Bombay 49) Lokur, J. laid down the law thus: "The question whether a certain document is a gift or a will depends not merely upon the form of the document, but upon the intention gathered from the words used in the document itself. The usual tests are the name by which the document is styled, the registration of it, the reservation of the power of revocation, and the use of the present or future tense. All these are indications to find out the intention, taken singly or cumulatively. The mere reservation of a life estate does not necessarily indicate that the document is testamentary and that, therefore, the grant is revocable. Nor does the fact that the donor revoked it within a few months indicate that his intention was to make a will and not a gift. In construing the document the conduct of the parties subsequent to its execution should not be taken into consideration when there is no ambiguity in the words and expressions used in the document". 9. In Govinda Menon v. Kochukunhi Amma (25 Cochin 441) Sahasranama Iyer, J. said: "The question of the exact legal character of a transaction effected by an instrument is one to be determined upon the intention of the parties as gatherable from the terms of the instrument". That the true nature of a document is to be determined not by the name given to it but by its substantial and operative portion was the view taken by the Cochin High Court in other cases also (vide Padmanabha Menon v. Sivarama Menon (6 Cochin 460), Chennu Amma v. Ramankutty Menon (16 Cochin 202), and Theyyunni Menon v. Komu Menon (25 Cochin 674). 10. 10. It will thus be seen that the true test for determining whether a particular instrument is a gift or a will is to see whether the terms of the instrument purport to convey a right in presente in the property covered by it to the person in whose favour it is executed, or whether the instrument amounts only to a declaration of the intention of the executant to make a disposition of the property to take effect after his death. If the terms of the instrument are clear and unambiguous and they purport to convey a right in presente in the property the instrument will be a gift, and the fact that it is styled a will or that it is registered as a will can be of no consequence. It is only when it is not clear from the terms of the document whether the executant intended to convey a right in presente in the property to the person in whose favour the document is executed that factors like the nomenclature of the document, the manner in which it was registered and the conduct of the parties subsequent to the execution of the document can be looked into for ascertaining the real intention of the executant. In short, the question is really one of intention of the executant as disclosed by the terms of the document. We have, therefore, to see whether the terms of Ext. IX purport to convey to Mathai an interest in presente in the properties covered by it subject to a life estate reserved with Puravath. 11. The operative portion of the document extracted above clearly goes to show that Puravath intended to convey to Mathai the properties mentioned therein reserving a life interest in his favour. It says:- "The properties are to be in my possession till my death. After my death you may attorn to the jenmi and enjoy the properties with full rights. Since I have no sons to look after me I am giving you these properties out of live and affection". There can be no ambiguity about the meaning of these words. They amount to a transfer in presente of the properties to Mathai subject to the life interest reserved with Puravath. 12. Since I have no sons to look after me I am giving you these properties out of live and affection". There can be no ambiguity about the meaning of these words. They amount to a transfer in presente of the properties to Mathai subject to the life interest reserved with Puravath. 12. Learned counsel for the appellant referred to certain decisions to support his position that the document in question should be construed as a will and not as a gift. One decision is Thakur Ishri Singh v. Thakur Baldeo Singh (10 Calcutta 792 P.C.). In that case the document that came up for consideration contained the following provisions: "Whereas I hold and enjoy possession of my estate situated in the Sitapur District, of which the Government revenue is about Rs. 16,000, I, while in the enjoyment of sound health and mind, without reluctance or coercion, assign (tamlik) the said property to my younger brother Baldeo Singh subject to the following condition:- (1) that during my life-time I shall hold and enjoy possession of it; and that after my death my aforesaid brother, Baldeo Singh, shall hold and enjoy the same like myself; (2) that whereas I am childless, should a legitimate and self-begotten child be born to me it shall become the owner of one-half of the estate, and Baldeo Singh shall be the owner of the other half; (3) that after my death Baldeo Singh shall be bound, like myself, to maintain and take care of my wife. Hence I have written out these few words in the way of a deed of assignment (tamliknama) so that it may witness in future". The document was registered as a will. Their Lordships of the Privy Council construed the instrument as a will and not as a gift. The reasons given by Their Lordships are the following:- "It answers the definition of a will which is contained in S. 2 of Act I of 1869. It was registered as a will; and though that may have been done at the instance of the Registrar, it certainly was done with the full knowledge and assent of Maharaj Singh. The reasons given by Their Lordships are the following:- "It answers the definition of a will which is contained in S. 2 of Act I of 1869. It was registered as a will; and though that may have been done at the instance of the Registrar, it certainly was done with the full knowledge and assent of Maharaj Singh. It provides for contingencies which are not ascertainable, or may not be ascertained, until the death of the testator: for instance, the contingency of his having a child, which he had not at the time of the will, and the contingency of his leaving a widow surviving him. It does not purport to give anybody any possessory or present interest until the death of Maharaj, the donor. And it makes a gift to the children of Maharaj, which, if it be a deed of transfer operating at once, cannot take effect, because no child was in existence; whereas, if it is a will, the gift may perfectly well take effect. All those are very strong indicia of a testamentary character; and the question is whether they are over-borne by evidence tending in the opposite direction". Their Lordships further observed:- "Mr. Woodroffe in his argument relied very strongly upon the use of the word 'assign', and upon the reservation of a life interest to the donor. No doubt both those circumstances tend towards the conclusion to which Mr. Woodroffe wished to lead their Lordships, but they are by no means conclusive. If they had been the words of an English conveyancer preparing an English instrument, they would have afforded a very strong argument; but the instrument was prepared by Lal Sundar, and we must not construe with too great nicety, or assign too much weight to the exact words that the uses for a transfer of property, as if he were accurately weighing the difference between a testamentary instrument and one operating inter vivos. We must remember that wills are comparatively new in any part of India, and are of more recent introduction in Oudh in respect of this class of property. So with respect to the reservation of a life interest. We must remember that wills are comparatively new in any part of India, and are of more recent introduction in Oudh in respect of this class of property. So with respect to the reservation of a life interest. The will being not a very familiar instrument to the people who prepare it or who sign it, the testator often does express a great anxiety that he shall not be considered to have parted with anything in his lifetime, and their Lordships have seen here instruments which most unquestionably were wills, and intended to operate as such, in which nevertheless there have been expressions upon the face of them intimating that the testator intends to remain the owner of his property until he dies. Upon the whole, therefore, looking at what are the substantial characteristics of the document which have been referred to, setting aside mere matters of form and what may be considered as technical expressions, their Lordships think that the reasons for holding it to be a will have a decided preponderance over those which would lead them to hold it to be a deed". Although these observations lend some support to the contention of the appellant, we do no think that all the reasons that induced their Lordships to construe the document in question in that case as a will apply to the facts of this case. Here, Ext. IX does not provide for any contingencies which are not ascertainable or may not be ascertained until death of Puravath. According to their Lordships, the document in question in that case did not purport to convey an interest in presente in the properties to anybody. But Ext. IX, as stated already, does purport to convey the properties mentioned therein to Mathai subject to the life interest reserved with Puravath. Then again, no technical expression is used in Ext. IX the legal significance of which might not be known to a layman while in the Privy Council case the argument that there was a conveyance of the properties was based mainly on the use of the word 'tamlik' in the document. 13. Another case cited by learned counsel for the appellant is Veerabadrayya v. Seethamma (1940 Mad. 236). IX the legal significance of which might not be known to a layman while in the Privy Council case the argument that there was a conveyance of the properties was based mainly on the use of the word 'tamlik' in the document. 13. Another case cited by learned counsel for the appellant is Veerabadrayya v. Seethamma (1940 Mad. 236). In that case the operative portion of the document was to the following effect:- "This and the inam land of the extent of 2 acres 89 cents (etc.) shall be enjoyed by me and my wife till our death and after our death; you shall take possession of the lands (etc.) of the above particulars and enjoy the same from son to grand-son and so on in succession with powers of alienation such as gift, sale, paying the quit rent (etc.) payable to government. Besides the debts already contracted on the said lands I shall not incur any further debts hereafter". Venkataramana Rao, J. construed the document as a will and said: "In my opinion, there is no "divestiture of ownership or a transfer of ownership in presente in favour of anybody". We do not think that this decision also is of any help to us in construing Ext. IX, the provisions of which are not the same as those of the document construed in the case. 14. Reference was also made by learned counsel for the appellant to the following observation of the Privy Council in Md. Abdul Ghani v. Mt. Fakhr Jahen (1922 P.C. 281):- "Owing to the fact that there is in India no uniform or accurate system of conveyancing, and to the fact that deeds and wills are, in India, as a rule most inartificially drawn up frequently by persons not possessed of legal knowledge it is often difficult to ascertain with certainty what was precisely intended by the document, and in some cases, to ascertain whether the document was intended to operate as a deed of gift or as a will". Learned counsel argued that in the light of this observation of their Lordships too much importance should not be attached to the words used in Ext. IX which, if strictly interpreted, may have the effect of conveying an interest in presente in the properties to Mathai. Even if we interpret Ext. Learned counsel argued that in the light of this observation of their Lordships too much importance should not be attached to the words used in Ext. IX which, if strictly interpreted, may have the effect of conveying an interest in presente in the properties to Mathai. Even if we interpret Ext. IX bearing in mind the above observation of their Lordships we do not think that it is possible for us to come to the conclusion that the executant of the document did not intend to convey any interest in presente in the properties to Mathai. 15. Another decision of the Privy Council to which reference was made by learned counsel for the appellant is Shyan Pratap v. Collector of Etawah (1946 P.C.103). That also is of no assistance to us in deciding the question in dispute in this case. The wording of the document which came up for consideration in that case is entirely different from that of Ext. IX. 16. Upon the construction of the terms of Ext. IX we have no doubt that Puravath intended to convey to Mathai the properties covered by the document reserving to himself a life interest in them. After the execution of Ext. IX Puravath and Mathai together executed a kuri security bond, Ext. X, on 17.6.1098, charging seven items of properties. The third item in Ext. X is item No. 3 in Ext. IX. Item No. 4 in Ext. X is item No. 2 in Ext. IX, and item No. 5 in Ext. X is item No.1 in Ext. IX. In describing these properties this is what is stated in Ext. X: The document referred to is Ext. IX. If Mathai had acquired no right in the properties under Ext. IX, the above statement in Ext. X will have no meaning. Puravath being a party to Ext. X due weight has to be attached to the statement in that document as indicating his intention in executing Ext. IX. The fact that Ext. IX is described as a will, both in that document and in Ext. X, cannot be of such consequence in view of the admission of Puravath in Ext. X that Mathai had an interest in the properties even during the lifetime of the former. IX. The fact that Ext. IX is described as a will, both in that document and in Ext. X, cannot be of such consequence in view of the admission of Puravath in Ext. X that Mathai had an interest in the properties even during the lifetime of the former. It might be because Mathai was to have actual enjoyment of the properties only after the death of Puravath that the latter called the document a will. But his conception of a will cannot alter the real legal character of the instrument. So long as the words of the document, when interpreted according to recognised rules of interpretation of documents, amount to a conveyance of property inter vivos with a reservation of life interest in favour of the executant and so long as there is nothing in the document to show that it was intended to be revocable, there is no reason why the document should not held to be a deed of settlement or gift. We, therefore, agree with the view taken by the court below that Ext. IX amounts to a settlement of plaint schedule items 1 to 3 in favour of Mathai and that after his death those properties devolved on his heirs. 17. Another point argued for the appellant was that plaint schedule item No. 2 is not included in Ext. IX and that only items 1 and 3 are included in it. Plaintiff had no such case in the court below. Parties proceeded on the basis that Ext. IX covers plaint items 1 to 3. In the will, Ext. XI, executed by Puravath on 5.10.1103 he has stated that plaint items 1 to 3 are included in Ext. IX. Even in the appeal memorandum it is not expressly stated that plaint item No. 2 is not covered by Ext. IX. Ground No. 5 relating to this matter is to the following effect: "The lower court went wrong in finding that the entire items 1 to 3 were taken in by Ext. IX. In any view of the matter some portion of them ought to have been declared to be partible". It will be seen from this that even at the time of filing the appeal the plaintiff had no definite case that item No. 2 is not included in Ext. IX. IX. In any view of the matter some portion of them ought to have been declared to be partible". It will be seen from this that even at the time of filing the appeal the plaintiff had no definite case that item No. 2 is not included in Ext. IX. His case was that some portion of plaint items 1 to 3 was not included in the document. In the circumstances, we do not think that the appellant can be allowed to advance this argument at this stage. The argument is based mainly on the fact that'Ponginkunnu' purayidom which is the name of plaint item No. 2 is mentioned in Ext. IX as one of the boundaries of the second item in that document. But Ext. IX shows that the second item in it includes two parambas. The description of the plaint item No. 2 does not show that it consists of two parambas. Moreover plaint item No. 2 is described as: That shows that only a portion of 'Ponginkunnu' is comprised in plaint item No. 2. It may be that it is that portion of 'Ponginkunnu' which is not included in plaint item No. 2 that is mentioned as one of the boundaries of the second item in Ext. IX. We are, therefore, unable to accept this argument. 18. Yet another argument advanced for the appellant was that the court below went wrong in not awarding past mesne profits in respect of plaint schedule items 4 to 6. We do not think that the court below exercised its discretion improperly in refusing to award past mesne profits. It cannot be said that defendants 8 and 9 were in wrongful possession of these properties after the death of Puravath. This is what is stated by Ananthakrishna Iyer, C.J. in the judgment remanding the case to the court below: "I would have been extremely happy if I had been able to come to the conclusion that the oral will has been proved, because I believe that it would be in accordance with Puravath's desire that the 9th defendant should get the properties that were bequeathed by him under Ext. XI to the 9th defendant's father Mathai, because as I stated after Puravath's wife's death Mathai, his wife, and daughter were living with Puravath and after Mathai's death his widow, daughter and son-in-law were also living with Puravath as members of his family. Puravath was very fond of them and would have naturally liked that they should get the properties that he had bequeathed to Mathai". In the circumstances of this case, we are of opinion that the court below was justified in refusing to award past mesne profits in respect of plaint items 4 to 6. 19. No other point was argued in the appeal. 20. In the result, we confirm the judgment and decree of the court below and dismiss the appeal with costs. Dismissed.