Judgment : 1. Theunsuccessful defendants 1 and 2 have filed this second appeal. 2. The plaintiff on the basis Ex.A-2 settlement deed dated 27.3.1969 filed a suit for declaration and partition of his 1/17th share in the suit property. According to him, under Ex.A-2, one Perumal Iyer executed the settlement deed and thereby the plaintiffs is entitled to 1/17th share. The plaintiff is one of the sisters children of Ponnammal, who is the wife of Perumal Iyer. It is not in dispute that Perumal Iyer died issueless. 3. The defendants contested the suit contending inter alia that Ex.A-2 is not the settlement deed as alleged, but it is only a Will. According to them, the suit property originally belonged to Gopal Iyer, the 1st defendants grandfather. In the partition, Perumal Iyer got the suit property towards his share. Perumal Iyer died issueless. He executed a registered Will dated 30.7.1972 bequeathing the suit property to the defendants 1 and 2. This was with the knowledge of the relatives including the plaintiff and so the plaintiff cannot claim any right in the suit property. Referring to O.S.No.636 of 1972, the defendants have come forward with the plea that the plaintiff is precluded from suing the defendants 1 and 2 for the relief sought for, as the suit is barred by res judicata. 4. The trial Court accepting the case of the plaintiff decreed the suit as prayed for. The defendants 1 and 2 filed appeal in A.S.No.102 of 1982 on the file of the Sub Court, Madurai. The learned Sub Judge also concerned with the findings of the trial Court and dismissed the appeal, except granting costs. Hence this second appeal. 5. Thesubstantial questions of law that were framed in this second appeal are: (1) Whether the suit is barred byO.2, Rule 2, the Code of Civil Procedure in view of the fact that the 1st respondent omitted to sue for all the reliefs on the earlier occasion since the case of action remains same in both the suits. (2) Whether the deed styled as settlement is actually a Will having regard to the provisions contained therein. 6. On the basis of the arguments made by the learned senior counsel appearing on both sides, it has to be decided whether Ex.A-2 dated 27.3.1969 is a settlement deed or Will. (2) Whether the deed styled as settlement is actually a Will having regard to the provisions contained therein. 6. On the basis of the arguments made by the learned senior counsel appearing on both sides, it has to be decided whether Ex.A-2 dated 27.3.1969 is a settlement deed or Will. If the case of the plaintiff that Ex.A-2 is a settlement deed is accepted, he is entitled to a share; If it is not a settlement deed, the defendants 1 and 2 are entitled to succeed in this second appeal. 7. So, we have to find out whether Ex.A-2 constitutes a Will or settlement. The main test is whether the disposition of the interest in the suit property in in praesenti in favour of the settles or whether it takes effect on the death of the executant. If it is on the death of the executant, it would be a Will. If the interest of the property is divested and the interest is vested in praesenti on the settlee, the document has to be treated as settlement. To find out the same, the substance of the document should read entirely, and it cannot be decided on the basis of the form of the nomenclature. 8. Though the Courts below have given importance the recitals in the document regarding the execution of Ex.A-2 to revoke the document, the lower appellate Court proceeds on the basis that since the document is irrevocable, it has to be construed as settlement. 9. To appreciate the said document it is beneficial to extract the relevant portion of the document itself. Ex.A-2 describes itself as settlement. The reason for executing the document was, the executant did not have any issues. The relevant portion relating to disposition on the part of the deed is concerned, it is stated as follows: [Italics is applied] It is further stated in the said document as follows: From the recitals extracted above from the said document it is clear that the property mentioned therein should be enjoyed by the executant and the beneficiaries under the said document without any right of alienation, and after his lifetime, the beneficiaries Will acquire absolute right in respect of their property, and they have to sell the property for the purpose of doing some sevas in the temple. It is also stated that if anybody among the 16 persons died before selling the property, the remaining persons can sell the property. But, it is not stated therein that the legal representatives of the deceased have also to be included for the purpose of selling the said property. This Will clearly establish that there is no absolute instant disposition and transfer of interest in praesenti in favour of the beneficiaries under the said document. 10. While construing similar recitals of the document, D.Raju, J., as he then was, following the decisions in Ramaswami Naidu v. Gopalakrishna Naidu A.I.R. 1978 Mad. 54 and the decision in Ponnuchami Servai v. Balasubramanian A.I.R. 1982 Mad. 281 in the decision in Poongavanam v. Perumal Pillai (1997)1 MLJ. 169 has held as follows: “The principles laid down in the above two decisions succinctly indicate the approach to be adopted and the tests to be applied in determining the character of a document, as to whether a particular document in dispute is a settlement deed or merely a Will. So far as the document in question, marked as Ex.B-5 is concerned, it is seen from the recitals contained therein that the 1st defendant had executed the said document in favour of the 2nd defendant, he being the son the maternal uncle of the 1st defendant and that she had no other issues out of sheer love and affection. So far as the relevant portion relating to the disposition part of the deed is concerned, it is found recited as follows: 10. The recitals extracted above only indicates that the property given under the settlement could be enjoyed by him without any rights of alienation and it is only after the lifetime of the executant viz., the 1st defendant, he (2nd defendant) shall acquire absolute rights in respect of the property with rights to sell and encumber the property by assuming absolute control and enjoyment of the property. The above recitals would go to show that not only the document was a crisp one and that there is no specific or clear and absolute instant disposition and transfer of interest in praesenti in favour of the beneficiary under the document but equally, there is absolutely no complete devastation of the right, title or interest of th executant on the date of the execution of the deed, such conferment of rights are postponed till the lifetime of the 1st defendant. The recitals themselves, in my view, are sufficient in law to show that it is only in the nature of a Will and at any rate not a settlement absolute, the document thus being tested in the light of well-settled principles and often reiterated by the Courts. 11. In view of the abovesaid decision, the finding of the lower appellate Court that Ex.A-2 is a Will and so the plaintiff Will not get any right in the suit property cannot be sustained. Since I am reversing the judgment and decree of the lower appellate Court on the above said issue, I am not dealing with the other issues raised by the learned Senior Counsel appearing for the appellants. 12. For all the reasons stated above, the Judgment and decree of the lower appellate Court are set aside, and the judgment and decree of the trial Court are restored. Consequently, this second appeal is allowed. No costs. C.M.P.No.8137 of 1983 is closed. This case having been posted this day for being mentioned perusing to order of this Court dated. 14.2.2001 in the presence of aforesaid Advocates, the Court delivered the following JUDGEMENT: The order dated 14.2.2001 in Second Appeal No.1090 of 1983, this Court has allowed the second appeal by setting aside the Judgment and decree of the Courts below. In view of certain typograpahical mistakes in paragraphs 11 and 12, the learned counsel appearing for the appellants brought to my notice about the said mistakes. So, it is posted for being mentioned today. 13. In view of the mistakes found in paragraphs 11 and 12, they have to be read as follows in the place of paragraphs 11 and 12 in the original order. “11. In view of the above aid decision the finding of the Courts below that Ex.A-2 is not a Will and so the plaintiff Will get right in the suit property cannot be sustained. “11. In view of the above aid decision the finding of the Courts below that Ex.A-2 is not a Will and so the plaintiff Will get right in the suit property cannot be sustained. Since, I am reversing the judgment and decree of the Courts below and the above said issue, I am not dealing with the other issues raised by the learned Senior counsel appearing for the appellants. 14. For all the reasons stated above, the judgment and decree of the Courts below are set aside. Consequently, second appeal is allowed. No costs. C.M.P.No.8137 of 1983 is closed.”