Judgment : Defendants 2 and 3 in O.S.No.573 of 1984, on the file of the District Munsif’s Court, Nagercoil, are the appellants. 2. Material averments in the plaint may be stated as follows: Plaint property, according to plaintiff, belonged to him and first defendant as per settlement deed dated 10. 1959, registration copy of which is marked as Ex. A-l. The property originally belonged to their father Daveed Nadar. It is the case of the plaintiff that on the basis of Ex.A-1, they obtained absolute title. It is a gift. In spite of various demands, defendants are not co-operating to effect a partition. 3. Second defendant is none other than their mother. Third defendant is also another daughter of late Daveed Nadar. It is further said that Daveed Nadar had another wife by name Chellammal, and third defendant was born in that marriage. It is further said that Ex.A-1 is not gift and the same has not come into effect, and it is only in the nature of a Will, and if the plaintiff wanted to claim any right on the basis of Ex.A-1, parties being christian, they have to obtain probate or letters of administration. The same not having been obtained, title claimed under that document is not maintainable. 4. Trial Court recorded evidence, both oral and documentary, on the basis of the above pleadings. P.W. 1 is the plaintiff. 3rd defendant got herself examined as D.W.I. Their mother (second defendant) was examined as D.W.2. Exs.A-1 to A-23 were marked on the side of defendants. Exs.C-1 and C-2 are respectively the Commissioner’s Report and plan. 5. Trial Court came to the conclusion that Ex.A-1 is only a will and not a gift, and plaintiff cannot claim any absolute right over the property. The suit was, therefore, dismissed. 6. When the matter was taken in appeal, the Lower Appellate Court took a different view. It held that Ex.A-1 constitutes a gift and the donees are plaintiff and first defendant. Plaintiff is, therefore, entitled to one half right in the plaint property. A preliminary decree was passed. It is, questioning the said judgment, defendant 2 and 3 have preferred this appeal. 7. At the time of admission of second appeal, the following substantial question of law was raised for consideration: "What is the nature and effect of the document dated 10. A preliminary decree was passed. It is, questioning the said judgment, defendant 2 and 3 have preferred this appeal. 7. At the time of admission of second appeal, the following substantial question of law was raised for consideration: "What is the nature and effect of the document dated 10. 1979 which has been marked as Ex.A-1 in the trail Court and whether the judgment of the lower appellate court is correct?" 8. Only question that has to be considered is, what is the nature of right that was created under Ex.A-1. Whether the document is a will or gift,9. Relevant portion of the document is extracted below: For better appreciation, 1 would like to give a translation of the above extract. It reads thus: "Till now I have no male issues. Out of the properties belonging to me, in respect of the schedule items alone, I intend to make a settlement by virtue of this document, and that is the reason for executing this deed. Schedule items shall be under my lifetime and during my life, in case necessity arises I can encumber the property in any manner even without the consent of any one of you, and I am entitled to deal with the same. You are directed to effect mutation from this date and change patta in your name. You are also directed to pay kist. After my life, you are bound to maintain your mother, who is my wife Devasironmani, and during that period, you are entitled to take only the income therefrom. If both of you intend to encumber the property in any manner, that must be after my lifetime, and that too only on bom of you completing the age of 35 years, and thereafter you may enjoy the property in any manner you feel it fit and proper.“ From a reading of Ex.A-1, I do not find that late Daveed Nadar has bequeathed his right to any one. It is true that he has asked the donees to change the patta in their name and also to pay tax from the date of gift. But that must be on the basis of a transfer of title. I do not find that the executant has transferred his right. Along with the same, the previous sentence also makes it clear that the executant did not intend to bequeath the ownership. But that must be on the basis of a transfer of title. I do not find that the executant has transferred his right. Along with the same, the previous sentence also makes it clear that the executant did not intend to bequeath the ownership. That is why he said that even subsequent to the document and during his lifetime, if the property is to be encumbered in any manner, he is entitled to do so without obtaining their concurrence or consent. Even after the death of the owner, the absolute right of enjoyment given only after the donees complete 35 years, and, even after the death of the donor, during the lifetime of their mother, the donees are entitled only to enjoy the property. These are the only words which I find in Ex.A-I. I do not find any words by which a right is created inpraesenti. The words relating to mutation, to obtain patta and to pay revenue, cannot be implied as the words of transfer. It is only after the transfer is effected, patta could be obtained. Mere direction to obtain patta is of no consequence, since that will not confer ownership. The donor has not divested himself of the ownership to the donees as per Ex.A-1. 10. If the donor has a right to encumber the property in any manner without concurrence or consent of the donees, that itself is an indication that no right in presneti was created, nor was it intended to be created. 11. Before going to the relevant decisions, Sec.122 of the Transfer of Property Act; has to be considered. That section defines ‘gift’ as ‘the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee’. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. So, from the above definition of ‘gift’, it is clear that there must be an immediate transfer or certain existing movable or immovable property by one person called ‘donor’ to another person called ‘donee’. The same must also be accepted. If there are no words of transfer, there cannot be a gift. In Ex.A-1, there are no words of transfer. 12. The same must also be accepted. If there are no words of transfer, there cannot be a gift. In Ex.A-1, there are no words of transfer. 12. In Baby Ammal v. Rajan Asari (1996)8 Supreme 699 , their Lordship of the Supreme Court considered a similar question. There also the recital in the deed read as follows: ”All the right to enjoy the property and the right to reside in the building will remain with me during my life time and Rajan Asari will derive the said rights with full freedom after my lifetime.“ Considering the above sentence in the gift in question, In paragraph 4 of the judgment at page 700, their Lordships held thus: ”Sec.122 of the Transfer of Property Act defines gift executed in the manner indicated thereunder divesting the title to and possession of the donor in the property and vesting the same in the donee under Sec.123. There must be proof of delivery and acceptance of possession of the gifted property. In this case, both the title and possession in respect of the property remained with the plaintiff. There is no acceptance of possession by the respondent in the light of the above recital. As a consequence, the Appellant remained to be the owner during her lifetime.“ 13. In another decision of the Supreme Court reported in Gomtibai v. Mattulal, (1996)2 S.C.C. 681 , the case was regarding partition deed between two brothers. A recital was made that they intended to gift the land to their cousin sister Kasturibai, and a subsequent correspondence also shows that the land was allotted to Kasturibai. The question before the Supreme Court was, whether the earlier intention to execute a gift and the subsequent correspondence will amount to a gift. That was a document which came into, existence at a time when the Transfer of Property Act was not in force in the State of Hyderabad. But there was a similar provision under the Hyderabad Transfer of Property Act. Considering the same, in paragraph 4 of the judgment, their Lordships said thus: ”...it is seen that the gift of immovable property should be made only for transferring the right, title and Interest by the donor to the donee by a registered instrument signed by or an behalf of the donor and must be attested by atleast two witnesses. Considering the same, in paragraph 4 of the judgment, their Lordships said thus: ”...it is seen that the gift of immovable property should be made only for transferring the right, title and Interest by the donor to the donee by a registered instrument signed by or an behalf of the donor and must be attested by atleast two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee by operation of Sec.17 of the Registration Act only when the gift deed is duly registered and thereafter the donor would lose title to the property. It must also be proved that the donee had accepted the property gifted over under the instrument. In this case, though the transfer or gift was acted upon by Kasturibai as per the correspondence and evidence on record, but, admittedly, there is no written instrument executed by the donor, namely, the plaintiff and the defen-dant in favour of their cousin sister Kasturibai and it was got attested by atleast two witnesses and registered in accordance with the provisions of the Stamp Act and the Registration Act. Their Lordships were of the view that unless the property is legally transferred in favour of their cousin, here cannot be any question of gift though there may be a valid intention to gift. 13. In a still later decision of the Supreme Court reported in Narmadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, (1937)2 S.C.C. 255, paragraph 3 of the judgment gives the wordings of the gift, as in our case. There was also a direction to the donees to enjoy the property as exclusive owners of the same and they are entitled to enjoy, transfer, etc. But the gift further provided that the donor will continue in possession of the property and collect the Profits therefrom during his lifetime and that he had also retained the power to let out the building and to collect the rent therefrom. In spite of the above wordings, when the document was cancelled by a subsequent deed, and when litigation arose, their lordships held in paragraph 7 thus: "It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete, Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property. The question is, whether the gift in question had become complete under Sec.123 of the T.P. Act? It is seen from the recitals of the gift deed that; Motilal Gopalji gifted the property to the respondent, In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance, Similarly, he had specifically stated that the property would remain in his possession till he was alive alive. Thereafter, the gifted property would became his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the respondent/donee. The gift was to become operative after the death of the donor and he was to be entitled to have the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne profits." It would thus be seen that the donor had executed a conditional gift during his lifetime. Their Lordships considered the document not as a gift, but as a document which has to come into force on the death of the donor. If this is the interpretation that has to be given, on the basis of the decided cases, I can only hold that there was no right in praesanti created. 14. The interpretation given by the lower appellate Court that it is a gift is only for the reason that the donees were given the liberty to effect mutation and to pay tax. If there are no words of transfer, and! if it is absent in the document, the mere right to have the patta changed is of no avail. Probably, the donor might have intended to gift the property, but in effect mere was no gift. 15. Learned counsel for the respondents submitted that subsequent to Ex.A-1, there had been subsequent dealings of the property. Ex.A-2 is relied on for the said purpose. That is a sale deed executed by Daveed Nadar in favour of one Chellayyan. In mat document, the donees also joined as executant and there is also a recital that they are Jenmis of the property. A reference is also made to Ex.A-1 document. 16. Ex.A-2 is relied on for the said purpose. That is a sale deed executed by Daveed Nadar in favour of one Chellayyan. In mat document, the donees also joined as executant and there is also a recital that they are Jenmis of the property. A reference is also made to Ex.A-1 document. 16. According to me, if Ex.A-1 will not amount to a gift, the subsequent dealing of the property along with the donor wherein the plaintiff was declared as a Jenmi will be of no use. For interpreting a document, we have to interpret the document on the words used and not by the subsequent conduct. If the parties are not getting any title, to the property on the basis of the document, a mere subsequent statement that they have obtained title on the basis of the earlier document, will not create interest in them. In Odgers’ ‘Construction of Deeds and Statutes - Fifth Edition (1st Indian Reprint 1996) by G,Dworkin, at pages 28 and 29, the learned Author has considered how far the intention of the parties is relevant in interpreting a document. The relevant portion in those two pages reads thus: "..the intention of the parties must be discovered, if possible, from the expressions they have used. In the large majority of cases this causes no difficulty, but the reports show a very large number of cases where the expressions used by the parties to documents have caused difficulty of interpretation; i.e. of determining what the parties meant or their intention when they used certain words or made use of particular expression. As stated above, from these cases certain rules have been formulated and have been acted upon by the courts, many of them for very many years past. Lord Wenslaydale gave a warning of the distinction indicated above when he said: “the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions” Similarly Sir Gorrell Barnes P, said in a testamentary suit; “But what a man intends and the expression of his intention are two different things. He is bound and those who take after him are bound by his expressed intention. He is bound and those who take after him are bound by his expressed intention. If that expressed intention is unfortunately different from what he really desires, so much the worse for those who wish the actual intention to prevail.” So in a very old case it was said: “The Court cannot understand the true intent of the indenture but only by the words of the indenture.” “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke. They said that in construing instruments you must have regard, not to the presumed intention of the parties, but to the meaning of the words which have used.” One must consider the meaning of the words used, not what one may guess to be the intention of the parties, “ said Jessel M.R., which plainly shows that however much one may suspect that the parties intend one thing, yet if their words plainly import; another, the latter is the true Construction, as the” court deals with a deed to the clear intention of the parties appearing in the four corners of the deed itself.“ As Pearson, J, said: ”I conceive that all deeds are to be construed not only strictly according to their words, but so far as possible, without infringing any rule of law, in such a way as to effectuate the intention of the parties.“ 17. In A.Sreenivasa Pai and another v. Saraswathi Ammal alias G.Kamala Bai, (1985)4 S.C.C. 85 , then-Lordships held that ‘In construing a document, whether in English or in any Indian language the fundamental rule to be adopted is to ascertain the intention from the words employed in it. The surrounding circumstances may be considered for the purpose of ascertaining the intended meaning of those words, specially when there is some ambiguity in the words used in the document”. On the basis of this decision also, I do not think that the subsequent document can be made use of for interpreting Ex.A-1. The parties cannot create a right by executing a subsequent document declaring the effect of the earlier document. The lower Appellate Court has also relied on Ex.A-2, while interpreting Ex.A-1. This, according to me, is not the correct legal position. 18. If a document does not create a right in praesenti, plaintiff can claim his right as if Ex.A-1 is a will. The parties are Christians. The lower Appellate Court has also relied on Ex.A-2, while interpreting Ex.A-1. This, according to me, is not the correct legal position. 18. If a document does not create a right in praesenti, plaintiff can claim his right as if Ex.A-1 is a will. The parties are Christians. Without obtaining Probate or Letters of Administration under Sec.213 of the Indian Succession Act, he will not be entitled to maintain the suit. 19. In the result, I set aside the judgment of the lower appellate Court and restore O.S.No.573 of 1984, on the file of District Munsif Court, Nagercoil. Suit filed by the first respondent for partition is dismissed. I hold that Ex.A-1 does not create a right in praesenti as found by the lower appellate Court. The second appeal is allowed. Taking into consideration the close relationship, between the parties, I direct them to suffer their respective costs.