Judgment:- The construction of a document which is termed a will executed by one Unnamalai Ammal on 2nd July, 1885 and marked as Exhibit A-1 in the case arises for consideration in this appeal. Exhibit A-1 purports to deal with certain immovable properties. One of the contentions is that though it is termed a will it is in effect a settlement transferring the properties in favour of the persons mentioned in the document, the other contention being that it is a testamentary disposition as description of the document indicates. Unnamalai Ammal, an young widow, had no issue but had only a step-daughter, that is, a daughter of her co-wife, by name Kuppammal whom she intended to marry to Murugesa Koundan. It is on the eve of that marriage the document came to be executed. After the execution of the will Kuppammal was married to Murugesa Koundan and they lived together with Unnamalai Ammal. Unnamalai Ammal lived up to a few years before the suits were filed in 1948. The relevant portion of the will Exhibit A-1 is as follows: “Whereas I have no male heir, whereas I belong to the aforesaid caste, whereas I have not any other person to look after me, whereas I have agreed to give in marriage Kuppammal, the aforesaid girl, to you Murugesa Koundan and have made arrangements therefor, both of you shall, during my lifetime, take care of me, shall perform at the time of my death, all the funeral rites, and shall hold and enjoy after my lifetime the undermentioned properties, with the powers of alienation such as gift, exchange, sale, etc., yourself being liable for all the liabilities and assets.” The will is executed in favour of two persons, viz., Murugesa Koundan and Kuppammal. Then the description of the properties are given and at the end of the document the following recital appears: “I have given possession to both of you of the aforesaid house, etc., you shall be in enjoyment of my one-fourth share in the well of brick and mortar situate in the land sold to Solai Goundan in Puthur village aforesaid.” The Document was registered on 7th August, 1885. Soon after the execution of the will the marriage took place and thereafter it is common ground that the properties came into the possession of Murugesa Koundan and the patta was also transferred in his name. Soon after the execution of the will the marriage took place and thereafter it is common ground that the properties came into the possession of Murugesa Koundan and the patta was also transferred in his name. On 10th June, 1928, Murugesa Koundan executed a mortgage over some of the properties in favour of Komarappa Reddiar under Exhibit B-1. On 4th February, 1933, Unnamalai Ammal brought into existence a gift deed Exhibit A-3 giving the properties which had already been dealt with under the will Exhibit A-1 to the daughters-in-law of Murugesa Koundan. The mortgagee died and his son Muthukonda Reddiar instituted a suit on the mortgage and eventually purchased the properties in execution of the mortgage decree obtained by him. In the proceedings for delivery of possession, the donees under Exhibit A-3 resisted delivery of possession. They were directed to be removed and they filed suits out of which these appeals arise to set aside the order directing their removal and delivery of possession of the properties. The question therefore that arises is whether Murugesa Koundan had obtained any interest in these properties under Exhibit A-1 or whether Exhibit A-1 was a will liable to be revoked at any time by Unnamalai Ammal enabling her to execute the gift deed. The decision depends on the construction of the document Exhibit A-1. Notwithstanding that the document is termed a will, still if the terms of the document show that a present demise was intended Murugesa Koundan and Kuppammal would be entitled to the properties as donees and not as legatees under a will. The circumstances under which the document came to be executed will also be relevant in construing the terms of the document. Unnamalai Ammal was an young widow. There was no body to look after her and the only nearest relation was the daughter of her husband by the second wife whom she intended to be married to Murugesa Koundan. And, being a woman she was apparently not capable of, at any rate not willing to be in possession and management of the properties and, with that view must have considered Murugesa Koundan to be the proper person to be married to her step daughter and also to take charge of the properties. Unnamalai Ammal was only anxious that she should be suitably maintained. All this is evident from the preamble of the document extracted above. Unnamalai Ammal was only anxious that she should be suitably maintained. All this is evident from the preamble of the document extracted above. She makes it clear that she has no male heir, that there is no other person to look after her and that she has agreed to give in marriage Kuppammal to Murugesa Koundan and that arrangements have been made for that purpose. For these reasons she says that during her lifetime they must maintain her. The Tamil words used are etc. and, at the time of her death they should perform all the funeral rites. The real words of disposition come in afterwards which are in the following terms: “Shall hold and enjoy after my lifetime the undermentioned properties, with the powers of alienation such as gift, exchange, sale, etc., yourself being liable for all the liabilities and assets.” If the document had stood at that there can be little doubt that her intention was, as could be ascertained from the languages of the dispositive clause, that the properties should go to the two individuals after her lifetime. But, there is the further recital which says that possession had been given to two persons of the properties described in the will and that they shall be in enjoyment of also the well. A will is defined in section 2 of the Indian Succession Act as follows: “‘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.” So in order to constitute a document a will the intention of a testator must be manifest that whatever directions he gives in respect of his property should take effect after his death. In the document what is to take effect after her lifetime is that the two individuals should hold and enjoy with powers of alienation such as gift, exchange, sale, etc. The right to enjoy the properties with powers of alienation, etc., is expressly made clear to take effect only after her death. The question then remains whether the interest in the properties was intended to pass during her lifetime. The right to enjoy the properties with powers of alienation, etc., is expressly made clear to take effect only after her death. The question then remains whether the interest in the properties was intended to pass during her lifetime. That could be found only from the other terms of the document, viz., that she directed that she should be maintained, which, if read along with the statement that possession of the properties had been delivered over to them and that they should be in enjoyment, certainly indicate that they should take possession of the properties and enjoy them and maintain her, perform her ceremonies and after her lifetime take the properties absolutely. The question still remains whether the taking possession of the properties could be in their capacity as agents or managers or in their own right. There is no indication that an agency is intended since she only desires that she should be maintained and does not stipulate for any other condition attaching itself to the possession and enjoyment of the properties. And, it is not likely that she expected them to maintain her without their having any interest in the properties and wait till her death with the remote chance of getting the properties absolutely. It is further to be noted whether there are any words or anything to indicate that she reserved to herself a power of revoking the devise in their favour. Except that it is described as a will there are no words reserving to herself a power of revocation. She could not have intended to retain such a power in the face of the express recitals in the document as to what she expected from out of the properties which was nothing else but a bare maintenance. It cannot therefore be said that a power of revocation could be implied though it is not expressed by the terms of the document. Apart from the construction of the terms of the document, the subsequent conduct in relation to the properties by Murugesa Koundan and Kuppammal will also be material in ascertaining the intention of Unnamalai in executing Exhibit A-1, whether she intended a present demise or only intended that it should take effect after her lifetime. Apart from the construction of the terms of the document, the subsequent conduct in relation to the properties by Murugesa Koundan and Kuppammal will also be material in ascertaining the intention of Unnamalai in executing Exhibit A-1, whether she intended a present demise or only intended that it should take effect after her lifetime. The possession of the properties having been taken it is common ground that the properties were enjoyed as if they belonged to Murugesa Koundan and that accounts for his executing the mortgage as owner under Exhibit B-1. The transfer of the pattas is also another strong circumstance to show that the document has been given effect to, that is, the persons mentioned in the document have obtained possession in their own right and not on behalf of Unnamalai Ammal. Mr.Jagadisa Ayyar urged that the mere transfer of possession does not affect a testamentary disposition since possession can be called back at any time as long as there is nothing in the document to suggest a present demise. But, in the present case, it is not the mere circumstance of possession being given to Murugesa Koundan after the document but possession having been directed to be taken as a prime condition of the bequest which shows that the lady intended to transfer the interest in the properties subject however to the two conditions, viz., that she should be maintained and that the beneficiaries would be entitled to absolute rights only after her death. Learned counsel referred to the observations of the Privy Council in Thakur Ishri Singh v. Baldeo Singh1. In that case it was held, “that an instrument which had been executed by a talukdar (reserving a life interest) for the purpose of effecting after his death a transfer of property to the respondent must, having regard to its substantial characteristics to its answering the definition of a will contained in section 2, Act I of 1869, and to its having been registered as a will, and setting aside mere technical expressions such as “tamlik,” be regarded as a will and not as a transfer operating inter vivos.” The following passage from the judgment of Sir Arthur Hobhouse is relied upon:- “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 these 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 he 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 to 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 decided preponderance over those which would lead them to hold it to be a deed.“ The above observations lend support to the contention that it is not the form that counts but the substance or what the party intended to pass under the document that should determine the real nature of the document. The judgment of their Lordships is of the year 1884 and the suit document is of the year 1885, and, at that time, as observed by the learned Judge, wills were comparatively new in any part of India, and the mere circumstance that the document was termed a will should not be given weight and the construction of the document should not therefore depend upon its nomenclature but upon the effect arrived at by examining its recitals. It is urged that so long as the previous purpose for which the document is brought into existence has not taken place till after the death it should be considered as a will. But, here the purpose is to place the properties in the hands of the beneficiaries immediately on the execution of the will and not till after her lifetime though absolute rights to the properties could only be obtained after her lifetime. An Irish case has been cited by Mr.Venkatarama Ayyar reported in In the goods of Nicholas Halpin1. In that case the document which was attested by two persons was in the following terms:- ”I, Nicholas Halpin, of Spiddal, on an agreement of marriage with my son James to Margaret Tate, that I fully and freely give them supreme command, and after my death he to be whole proprietor, and that his two brothers, whatever time they would think to leave, would receive the sum of £50, that is £25, that is my whole farm in the townland of Spiddal, that is James Halpin after my death. Dated 15th February, 1873, Nicholas Halpin. Witness present, Michael Lynch, John Tato“. The document is dated 15th February, 1873. His son was married on 19th February, 1873, to Margaret Tate. On 25th July, 1873, Nicholas Halpin died. An application was made on 19th December, 1873, for probate of the above instrument as a will and, the question that arose was whether the paper signed by the late Nicholas Halpin should be admitted to probate as will. It was held that the instrument could not be admitted to probate as a will. After referring to the definition of "will" in Jarman on his "Treatise on Wills" as being 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, the learned Judge observed as follows: "This definition suggests two tests to be applied to informal papers, executed according to the statute of wills, in order to determine their character as testamentary or not; one is whether the instrument is revocable, the other is whether it was intended not to take effect until the death of the donor ? These tests were so applied in the case of In the goods of Robinson1 , where Lord Penzance says, "One of those invariable tests is whether the paper is revocable;" and further on he adds, "it does not require the death of the alleged testator for its consummation." Applying these tests, the learned Judge further observed, " Firstly, it appears that the paper was the expression of an ante-nuptial contract; and, the contemplated marriage having been solemnized, I apprehend that the paper was absolutely irrevocable; secondly, although the gift of the farm was not to take effect immediately in full enjoyment, the postponed interest appears to me to have been vested immediately; and the words " I give them the supreme command" are words of present operation, and seem to have been correctly understood by the parties, for James Halpin says, " After our marriage we resided with my father, and we managed (i.e., took under our command) the farm for his benefit." The terms of the suit document appear to be similar to the one which was the subject of consideration in the Irish decision. Here the statement in the will that the properties have been reduced to the possession of Murugesa Koundan and Kuppammal shows that they have been given absolute control of the properties though the right to full ownership would accrue only after the death of Unnamalai Ammal. Notwithstanding that the proprietorship or the vesting of the absolute estate is put off after the lifetime, that would not deter against a transfer of the interest in praesenti in so far as such interest is only limited to one of enjoyment. On a careful examination of the terms of Exhibit A-1 and reading the several parts of the document together and taking into consideration the manner in which the properties were held after the execution of the document, the reasonable conclusion that could be arrived at is that the intention of Unnamalai Ammal in executing the document was to divest herself of any interest in the properties except to the extent of being maintained out of them. There is therefore agift in praesenti on the date of the execution of Exhibit A-1 and Murugesa Koundan had therefore the right and title to deal with the properties as he has done by mortgaging in 1928. There is therefore agift in praesenti on the date of the execution of Exhibit A-1 and Murugesa Koundan had therefore the right and title to deal with the properties as he has done by mortgaging in 1928. The document, though it is termed a will, is therefore really in effect a gift deed. The result is, the appeals are dismissed with costs in S.A.No.619 of 1950 only. R.M. ----- Appeals dismissed.