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2009 DIGILAW 1893 (MAD)

G. Kannan v. Rose Ammal

2009-06-23

M.DURAISWAMY

body2009
J U D G M E N T:-The above Second Appeal arises against the judgment and decree in A.S.No.11 of 1998 on the file of V Additional Judge, City Civil Court, Madras reversing the Judgment and Decree in O.S.No.1244 of 1987 on the file of VI Assistant Judge, City Civil Court, Madras. 2. The first defendant in the suit is the appellant in the above second appeal. Respondent 1 to 3 are the plaintiffs and the respondent 4 to 6 are defendants 2, 4 and 5 respectively. 3. The plaintiffs/respondents 1 to 3 filed a suit in O.S.No.1244 of 1987 against the defendants for the following reliefs: (a) Declaring that the plaintiffs are absolutely entitled to the schedule mentioned property and to collect the rent and income from the said property; (b) directing the 1st defendant to deliver vacant possession of the schedule mentioned property excluding the shop portions in the occupations of defendants 2 to 3 herein; (c) directing the 1st defendant to render an account of the income and rent collected from the tenants of the residential portion of the schedule mentioned property from 01.01.1982 till they deliver possession of the schedule mentioned property under clause (b) aforesaid to the plaintiffs and pay the amount ascertained out of income to the plaintiffs; (d) directing the 1st defendant to pay the mesne profits of Rs.7200/- for the portions in the schedule mentioned property occupied by him for a period of three years prior to this date; (e) directing the 1st defendant to pay mesne profits at Rs.200/- per month or at such other rate as may be fixed by this Court for the schedule mentioned property from this date till he delivers possession of the same to the plaintiffs; (f) directing the defendant to pay the plaintiffs the costs of the suit and (g) granting the plaintiffs such other relief or reliefs as this court may deem fit to grant in the circumstances of the case. 4. The brief facts of the case are as follows: - (i) According to the plaintiff, the suit property belong to one Mr.Natesa Naicker and his wife Bommiammal. The same have been purchased by them under a registered sale deed dated 4.10.1959. That the said Natesa Naicker died intestate in 1967 leaving behind his wife Bommiammal as his only surviving legal heir. The same have been purchased by them under a registered sale deed dated 4.10.1959. That the said Natesa Naicker died intestate in 1967 leaving behind his wife Bommiammal as his only surviving legal heir. That one K.Vijayan, who is the husband of the first plaintiff and father of the other plaintiffs and the sister's son of Bommiammal was brought up by the said Natesa Naicker and Bommiammal, who had no issues. (ii) According to the plaintiffs, the said Bommiammal settled the suit property in favour of the said K.Vijayan under the settlement deed dated 29.11.1978 to be taken by him absolutely after the life time of the said Bommiammal. The said K.Vijayan died intestate on 17.4.1980 leaving behind his wife, the first plaintiff a son and a daughter, who are the other plaintiffs as his legal heirs. Therefore, according to the plaintiffs, they became entitled to the suit property subject to the life interest in favour of Bommiammal. According to the plaintiffs, the said Bommiammal died intestate on 22.12.1981. Therefore on her death, the plaintiffs became absolute owners of the suit property. (iii) According to the plaintiffs, Bommiammal occupied a portion of the suit property and the remaining portions had been let out to the tenants for residential and non-residential purposes. After the demise of Bommiammal, the first respondent/appellant, who was the servant of Bommiammal had unauthorisedly occupied a portion of the suit property. The plaintiffs raised their objections for collecting rent by the first defendant. The defendants 2 to 4 are tenants of the suit property. The first defendant had also filed a suit in O.S.No.1015 of 1982 against the plaintiffs and the said suit was dismissed for default on 12.7.1984. The portion of the suit property, which is in occupation of the first defendant, according to the plaintiffs, would fetch a rent of Rs.200/- per month. The first defendant is liable to render account and also to pay past and future mesne profit to the plaintiffs. Therefore, the plaintiffs have come forward with the present suit for the relief of declaration, delivery of possession, rendition of accounts, past and future mesne profits. 5. The first defendant in his written statement admitted that the suit property originally belonged to the said Natesa Naicker and his wife Bommiammal and that they purchased the same under the registered sale deed dated 4.10.1959. 5. The first defendant in his written statement admitted that the suit property originally belonged to the said Natesa Naicker and his wife Bommiammal and that they purchased the same under the registered sale deed dated 4.10.1959. They also admitted the execution of the settlement deed dated 29.11.1978 in favour of the said K.Vijayan. The first defendant denied that the settlor, Bommiammal died intestate. According to the first defendant, she executed a Will dated 26.11.1980. According to the first defendant, he had filed suit in O.S.No.1015 of 1982 on the file of the XII the Assistant Judge, City Civil Court, Madras against the plaintiffs. In the said suit the first defendant averred about the execution of the Will dated 26.11.1980 allotting one half share in the plaint schedule property in favour of the first defendant. According to the first defendant, he is the foster son of the deceased Bomiammal and that he is not a servant of Bommiammal as alleged by the plaintiffs. The first defendant further stated that he looked after the said Bommiammal after the death of her husband Natesa Naicker till her death and he was the one who performed the obsequies of the deceased Bommiammal. That out of the love and affection developed in the mind of said Bommiammal, she executed a Will dated 26.11.1980 whereby, she allotted one share to the first defendant and another share to the second plaintiff. 6. According to the first defendant, during the life time of Bommiammal, the first plaintiff claimed absolute right in the suit property which prompted Bommiamal to institute a suit in O.S.No.6337 of 1981 for declaration that the plaintiffs cannot claim any right in the plaint schedule property based on the settlement deed. Bommiammal died pending that suit. The first defendant submitted that O.S.No.6337 of 1981 and O.S.No.1015 of 1982 could not be prosecuted since the executor of the said Will did not institute any proceedings for getting that Will probated. Therefore, the first defendant prayed for the dismissal of the suit. 7. Before the trial court, on the side of the plaintiffs, the first plaintiff was examined as P.W.1 and 41 documents Exs. A-1 to A-41 were marked. On the side of the defendants, first defendant was examined as D.W.1 and another witness as D.W.2 was also examined and no document was marked on the side of the defendants. 8. 7. Before the trial court, on the side of the plaintiffs, the first plaintiff was examined as P.W.1 and 41 documents Exs. A-1 to A-41 were marked. On the side of the defendants, first defendant was examined as D.W.1 and another witness as D.W.2 was also examined and no document was marked on the side of the defendants. 8. On the basis of the respective cases of the rival parties and after evaluating the oral and documentary evidence, trial court decreed the suit that the plaintiffs 2 and 3 are having 1/6th share in the suit property and dismissed the suit in respect of other reliefs sought for in the plaint. 9. Aggrieved over the judgment and degree in O.S.NO.1244 of 1987, the plaintiffs filed appeal in A.S.NO.11 of 1998 on the file of the V Additional City Civil Court, Madras. The lower appellate court after considering the materials available on record, allowed the appeal and decreed the suit as prayed for with costs. 10. Aggrieved over the judgment and decree in A.S.NO.11 of 1998, the first defendant had preferred the above second appeal. 11. Heard Mr.V.Bhiman, learned counsel appearing for the appellant, Mr.V.Seshan, learned counsel appearing for the respondents 1 to 3 and Mr.R.Vijayaraghavan, learned counsel for respondents 4 to 6. 12. At the time of admission of the above Second Appeal, following substantial questions of law were formulated for consideration:- "i)Whether in law has not the Lower Appellate Court failed to see that Ex.A6 is only a Will and not a settlement deed as the rights in praesenti have not be transferred? ii) Has not the Lower Appellate Court misconstrued Section 19 of Transfer of Property act by overlooking the intention of the executant? " 13. Learned counsel for the appellant submitted that Ex.A-6 dated 29.11.1978 executed by Bommiammal in favour of K.Vijayan is not a settlement and it can only be construed as a Will. Further, since the said Will was not probated, it has no legal effect confirming the title to the plaintiff. According to the learned counsel for the appellant, if the rights in praesenti are transferred, the document is a settlement otherwise, it is only a Will. Further submitted that in the case on hand, the rights in praesenti have not been transferred. According to the learned counsel for the appellant, if the rights in praesenti are transferred, the document is a settlement otherwise, it is only a Will. Further submitted that in the case on hand, the rights in praesenti have not been transferred. According to the learned counsel for the appellant, when there is no diversity of right, title or interest of the execution and such confirmation of right is postponed till the life time, the recitals would show that it is only a Will and not a settlement deed. 14. The learned counsel for the appellant also contended that even assuming Ex.A-6 is a settlement deed, it is only a conditional document and the condition not being performed, it does not take effect. The learned counsel also contended that the deceased Bommiammal executed a registered Will in favour of the first defendant/appellant and the second Will supersedes the first Will. 15. Countering the submissions made by the learned counsel for the appellant, the learned counsel appearing for the respondents 1 to 3 submitted that the document Ex.A6 is a settlement deed and it cannot be construed as a Will for the reason that vested interest was created in favour of the settlee. Therefore, according to the learned counsel for the respondents 1 to 3, the document is only a settlement deed. 16. Learned counsel for the respondents 1 to 3 also submitted that the first defendant/appellant was working as a servant under Bommiammal and he had no connection with the family affairs. Learned counsel also submitted that the first defendant/appellant is totally a stranger and he has no right to question the title of the plaintiffs. The learned counsel also submitted that the first defendant prays with regard to the construction of the document in his written statement and that since there is no averment in the written statement with regard to the document, the first defendant/appellant cannot now question the construction of the document. 17. Learned counsel for the respondents 1 to 3 relied on section 19 of the Transfer of Property Act with regard to vested interest. Learned counsel for the respondents supported the findings of the lower appellate court and prayed for dismissal of the above second appeal. 18. The first defendant in his written statement have admitted the execution of the document Ex.A-6. Learned counsel for the respondents supported the findings of the lower appellate court and prayed for dismissal of the above second appeal. 18. The first defendant in his written statement have admitted the execution of the document Ex.A-6. It will be appropriate to extract the recitals of the document in Ex.A6 which reads as follows: Other languge xxxxxxxx From the perusal of Ex.A6 document, the following could be elucidated from the recitals of the documents: a) The settle is the foster son of the settlor. b) The reason for executing the document was that the settlor wanted to make an arrangement for the settlee for better life in future. c) The document was executed by the settlor in favour of settlee towards love and affection. The document was registered immediately. d) The settlor shall enjoy the property till her life time paying property tax, etc. e) After the life of the settlor, the settle shall be entitled to the property absolutely. f) It was stated that the settlor have no right to revoke or alter the document. The settle shall perform the obsequies of the settlor as his son. 19. The learned counsel for the appellant argued that Ex.A6 is nothing but a Will. On the contrary, learned counsel for the respondents 1 to 3 argued that Ex.A6 is a settlement deed and not a Will. 20. Learned counsel for the appellant relied on a judgment reported in 2005(3) LW 736 (Kokilambal and others v. N.Raman ) which reads as follows: " 7. Settlement is one of the recognized modes of transfer of movable and immovable properties under Hindu law. The Courts have accepted such mode as legal and valid mode of transfer of properties. Courts have emphasized that in order to find out the correct intent of the settlor the settlement deed has to be read as a whole and draw their inference of its content . Therefore, it has always been emphasized that the terms of the settlement should be closely examined and the intention of the settlor should be given effect to. Some times there is absolute vesting and some times there is contingent vesting as contemplated in sections 19 and 1 of the Transfer of Property act, 1882. Therefore, it has always been emphasized that the terms of the settlement should be closely examined and the intention of the settlor should be given effect to. Some times there is absolute vesting and some times there is contingent vesting as contemplated in sections 19 and 1 of the Transfer of Property act, 1882. In order to ascertain the true intention of the settlor one has to closely scrutinize the settlement deed, whether the intrusion of the settlor was to divest the property in his lifetime or to divest the property contingently on the happening of certain event. In this connection, reference may be made to a deaccession of this court in the case of Rajesh Kanta Roy v. Santhi Debi reported in (1957) SCR 77. Their Lordships observed that the determination of the question as to whether an interest created is vested or contingent has to be guided generally by the principles recognized under sections 19 and 21 of the Transfer of Property Act, 1882 and Sections 119 and 120 of the Indian Succession Act, 1925. Their Lordships quoted a passage from Jarman on Wills (8th Ed., Vol II at page 1390 which states as follows: " So where a testator clearly expressed his intention that the benefits given by his will should not vest till his debts were paid, the intention was carried into execution, and the vesting as well as payment was held to be postponed". 12. Our attention was also invited o a decision of this Court in the case of Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. Reported in (1996) 9 SCC 388 . In this case also the ;question was whether the document is a will or settlement. Their Lordships held that the nomenclature of the document is not conclusive one. It was observed as follows: The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by the parties are conclusive. The court has to find whether the document confers any interest in the property in prasenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. The court has to find whether the document confers any interest in the property in prasenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole. The document in this case described as 'settlement deed' was to take effect on the date on which it was executed. The settlor created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the schedule with the boundaries mentioned there under. A combined reading of the recitals in the document and also the Schedule would clearly indicate that one the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation, etc. In other words, she had crated i herself a life interest in the property in praesenti and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settle with absolute rights on the settlor's demise. Thus the document in question could be construed rightly as a settlement deed but not as a Will. The settlor, having divested herself of the right and title there under, had, thereafter, no right to bequeath the same property in favour of her first daughter. 13. In this background, we have to examine the settlement deeds created by Kokilambal in favour of the deceased Vardan. The recitals of the settlement deeds i.e. A-1 and A-2 as reproduced above, clearly says that since Kokilambal had no son and her husband Manicka Mudaliyar during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has settled that the income derived from the properties i.e. Door No.43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life time and after her demise, it shall be enjoyed by Varadan absolutely. ... 14. ... 14. Learned counsel for the respondent has tried to interpret this document that since the appellant No.1 had already divested her right to alienate the property that should be enough to show that the entire property stood vested in favour of Varadan. Learned counsel for the respodnent tried to seek support from a decision in the case of Turlapaty Rajeswara Rao & Anr. v. Kamarajugadda rangamma & Ors. Reported in (1949) 1 MLJ 480 )Vol96) IN that case also it was observed that the wife got the life estate in the properties and the nephews got the vested interest in the same although they were postponed till her death. In this case also it ws held that the fundamental rule of construction of a will is that the intention of the testator should be gathered from a reading of the will as a whole. Learned counsel for the respondent also invited our attention to a decision in the case of P.Ram Mohan v. Lalitha Raghuraman & Ors. Reported in AIR 12976 Madras 333 = 89 L.W.175. In that case, on the facts their Lordships came to the conclusion that where a settlor by a deed of settlement crated a life interest in favour of himself, his wife, his foster son, it was held that the two sons of the settlor acquired a vested interest in the property on the date of execution of the deed. Therefore, this depended on the construction of the settlement deed. But in the present case we have quoted above the recitals in the settlement deeds i.e. A-1 and A-2 and have also interpreted the same that the settor Kokilambal had not completely divested her right in favor of the deceased vardan but it ws a contingent one that it would vest after her death. Therefore, the intrusion of the settlor was very clear that the settlement was to come into effect after the death of settlor, Kokilambal. 21. Learned counsel for the appellant also relied on a judgment reported in 2008(6) MLJ 1072 (K.J.Vaduvambal v. C.N.Umadevi and others) which reads as follows: 16.The learned counsel for the fourth defendant would drew the attention of this court to page No. 7 of Ex.A-1, the settlement deed and develop his argument that the versions found set out therein would unambiguously demonstrate that after the life time of the settlors viz. C.S.Subramaia Achari and his wife Sovdambal Ammal, their son Nagabushanam, D1 should take the suit property for his life and the absolute interest shall be with the children born to Nagaushanam. According to those recitals, only after the death of the Settlors, the vesting interest would come into operation and Nagabushanam would get his life estate and his children after the life time of Nagabushanam would get absolute interest in the suit property; the words "have and hold" in page No.7 of Exhibit A-1 would indicate that under exhibit A-1 transfer inter vivos of the rights in the immovable property were not intended to take place during the life time of the settlors. Whereas the learned counsel for the plaintiff would rely on the recitals in page No.9 of exhibit A-1 and advance his argument that those recitals would evince and evidence that after reserving life estate in favour of the Settlors, they parted with their right over the suit property during their life time itself and it got vested with the Settlees under exhibit A-1. Hence, it is just and necessary to extract hereunder the relevant pages in Exhibit A-1. "That after the life-time of the SETTLORS, the said NAGABUSHANAM, the First Settlee herein shall have and hold the property described in the Schedule thereunder without any powers of alienation, by way of sale, mortgage or gift or otherwise remain in possession enjoy and collect the rent and profits dues in respect thereof and also effecting necessary repairs thereto from and out of the rents and profits utilising the net proceeds during the remainder of his natural period of life. Then after his lifetime, the SETTLEES 2, 3 and 5 any other issues that may be born to the said NAGABUSHANAM shall have and hold the property described in the schedule thereunder the value of Rs.15,000/- and become fully and absolutely entitled thereto either solely or in equal shares or the case may be. Then after his lifetime, the SETTLEES 2, 3 and 5 any other issues that may be born to the said NAGABUSHANAM shall have and hold the property described in the schedule thereunder the value of Rs.15,000/- and become fully and absolutely entitled thereto either solely or in equal shares or the case may be. THE SETTLORS do hereby declare that except their right to continue to remain in possession and enjoyment and collect the rents and profits and subject to their liability to pay the taxes and other public dues to utilise the net collections, receipts and income for the SETTLORS maintenance upkeep and support during the remainder of either of the life of the SETTLORS the SETTLORS have no other right or interest, reserved to or in either or all the properties, described in the Schedule and the SETTLEES are entitled to the same as per the terms and conditions attached thereto." (emphasis supplied) A mere perusal of the recitals in page No.7 of Exhibit A-1 as set out supra, would make it clear that the settlors intended that after their life time only the vesting of the rights in the suit property should take effect in favour of the settlees. The words "have and hold" are having a special connotation of it own. At this juncture, I would like to refer to the BLACK's LAW DICTIONARY – Sixth Edition, which would define the term "have" and "have and hold" as under: "Have – Imports ownership, and has been defined to mean "to keep", "to hold in possession", "to own." To bear (children) Have and hold. A common phrase in convincing, derived from the habendum et tenendum of the old common law." 19.The learned counsel for the plaintiff would place reliance on the recitals in page No.10 and stress upon the fact that the Settlor get themselves divested of their rights over the suit property except life estate in their favour and nothing more. If such an argument has to be accepted, then the recitals in Page Nos.7 and 8 of Exhibit A-1 would be rendered otios. Documents such as "Will"/Settlement should be read as a whole so as to find the intention of the executant of such documents. If such an argument has to be accepted, then the recitals in Page Nos.7 and 8 of Exhibit A-1 would be rendered otios. Documents such as "Will"/Settlement should be read as a whole so as to find the intention of the executant of such documents. In Exhibit A-1, the settlement Deed, a scheme of action is contemplated, so to say, the testators intended that the Settlees shall have no role during the life time of the Settlors and only after their death, they can "have and hold" the properties, as set out supra. Had the Settlors intended that they should have no right as on the date of the execution of the settlement and registration of the same, they would have very easily added words such as settlors had no right of alienation or revocation during the Settlors lifetime. Whereas while conferring life estate on the part of Nagabushanam they have specifically, added the words Nagabushanam shall "have and hold" the property described in the schedule of the property without any power of alienation by way of sale, mortgage or gift or otherwise, if really, as pleaded by the plaintiffs in the written statement as well as in the deposition that the settlors after executing the settlement deed got themselves divested of their absolute ownership over the property but reserved their life estate only with them, then, they would have very well added similar words as they used relating to Nagabushanam while conferring life estate on him. But, they have not chosen to do so, in respect of themselves. It is a common or garden principle that while executing an "irrevocable" would find a place. But such a term is missing and they never stated that during their life time, they had no power to revoke the settlement as such. Hence, all these facts would go to show that the settlement deed is nothing but a "Will" in stricto sensu. 22. Learned counsel for the appellant relied on a judgment reported in 1997 (1) MLJ 169 (Poongavanam v. Perumal Pillai and another ) which reads as follows: "9. I have carefully considered the submissions made by learned counsel for the appellant in the light of the materials referred to supra, to which my attention was invited. 22. Learned counsel for the appellant relied on a judgment reported in 1997 (1) MLJ 169 (Poongavanam v. Perumal Pillai and another ) which reads as follows: "9. I have carefully considered the submissions made by learned counsel for the appellant in the light of the materials referred to supra, to which my attention was invited. The decision in Ramaswami Naidu's case A.I.R. 1978 Mad.54 is that of V.Ramaswami, J as the learned Judge in analyzing the principles governing the adjudication as to whether a particular deed was a will or gift, held as follows: "The broad tests or characteristics as to what constitutes a will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a will or a gift is to see whether the disposition of the interest in the property is in prassenti in favour of the settlees or whether the disposition is to take effect on the date of the executant. IF the disposition is to take effect on the death of the4 executant, it would be a will. But if the executant divests his interest in praesenti in the settlee, the document will be a settlement. The general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the documents are only a guide to find out whether there was an immediate divestiture of the interest of the executant or whether the disposition was to take effect on the death of the executant' In Ponnuchami Servai's case, A.I.R. 1982 Mad. 281 V.Sethuraman, J also had an occasion to deal with a similar issue. The learned Judge adverted to the earlier two Division Bench Judgments and held as follows: "The question whether a particular document is a testamentary or a non-testamentary instrument has been gone into in several cases. It is enough to mention two of the latest Bench decisions namely, (1) Commissioner of Gift tax. Madras v. C.Thiruvenkata Mudaliar, A.I.R. 1977 Mad. 53 1977 Tax. L.R. 1187 and (2) Ramasami Naidu v. M.S.Velappan (1979)2 Mad.L.R.88. Though the second decision does not refer tot he first, to which I was a party, still the principles enunciated in both the decisions are not materially different. Madras v. C.Thiruvenkata Mudaliar, A.I.R. 1977 Mad. 53 1977 Tax. L.R. 1187 and (2) Ramasami Naidu v. M.S.Velappan (1979)2 Mad.L.R.88. Though the second decision does not refer tot he first, to which I was a party, still the principles enunciated in both the decisions are not materially different. Normally speaking, every document has to be construed with reference to the language it contained and therefore, a decision construing one document cannot be an authority for construing another document except to the extent that the said decision may lay down certain principles or guidelines. The principles enunciated in this class of cases is that a testamentary bequest is revocable as the interest contemplated therein is intended to pass only after the lifetime of the testator, while a settlement or a gift which comes into operation immediately is irrevocable. Even if a will contains a clause that it is not revocable, the law makes it revocable whereas in a gift or settlement, if there is a clause that the settlor or donor can revoke it, still it will remain irrevocable under the law, because the donee obtains his interest in the property on the execution of the document itself. Consequently, whether a particular document contains a provision as to whether it is revocable or irrevocable is not decisive of the question whether it is a will or a gift, similarly the caption or the nomenclature given by the parties to the transaction is again not decisive of the question as to whether it is a will or a gift. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a will, it would operate only as a gif. Similarly, if a document contains provisions which showed that the disposition would come into existence only on he death of the executant of the document, even if the parties call it a settlement, it would be only a will. The fact of registration alone would not render the document a settlement if it, in other respects, is a will. Similarly, if a document contains provisions which showed that the disposition would come into existence only on he death of the executant of the document, even if the parties call it a settlement, it would be only a will. The fact of registration alone would not render the document a settlement if it, in other respects, is a will. Thus the real and the only reliable test for the purpose of finding out whether the document constitutes a will or a gift is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended transfer of interest in favour of the settlee or whether it intended transfer of interest in favour of the beneficiary only on the death of the executant. The principles laid down in the above two decisions sufficiently 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 of the maternal uncle of the 1st defendant and that she had no other issues out of sheet 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) share 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 the executant on the date of the execution of the deed, such conferment of rights are postponed till the life time 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." 23. Learned counsel for the respondents 1 to 3 relied on a judgment reported in 1979(2) MLJ 88 (Ramaswami Naidu v. M.S.Velappan and others) wherein, the Division Bench of this court carved out the following principles for testing the document as Will or a settlement. (i) The nomenclature used by the settlor in styling the document. (ii) the express dispositive words used which touch upon the time when the vested interest is crated. (iii) the reservation of the power of revocation in the instrument. (iv) the effect of the reservation of a life estate in favour of the executant under the instrument. (v) registration of the document under the appropriate law. 24. Learned counsel for the respondents also relied on a judgment reported in 1976 (1)MLJ 296 (Sakunthala Ammal and another v. Pattammal), which reads as follows: 16. One another judgment that may be usefully referred to in this connection is Ignatia Brito v. Rego, wherein a Division Bench categorically held that even the reservation of a life estate by the settlement does not render the instrument any less a settlement. In that case, it was further held at page 652: "In Exhibit I the executant has reserved to himself possession with rights of enjoyment of items 1 and 2 for his maintenance, but he makes ti clear that he is retaining no right of ownership in these items as the documents recites ' I have by this document established and given you right to items Nos. 1 and 2' and goes on to say that his retention of enjoyment, which is to be along with his wife, is to be 'without in any circumstances incurring debts on their security'. It further sets out that a right to his wife and children in those two items 'has been established by this document' while as to the properties generally it recites ' if the properties covered by the deed of settlement are alienated or debts etc., incurred on their security, you shall be entitle4d to their security, you shall be entitled to get possession of and enjoy them as you please according to the terms of settlement after getting cancelled such alienations and security bonds.' These recitals clearly indicate that the disposition of property was to take effect at once and that6 it was to be irrevocable." 19. Learned counsel for the respondents also relied on a judgment reported in 1988 (2)LW 675 (A.Alphonese and another) which reads as follows: " 6.The only issue which arises for consideration in this Second appeal is as regards the nature of the Settlement deed executed by Adaikala Mary under Ex.A-1. Both the courts have found that the recitals under the document only indicated that it was a Will and not a settlement deed. The learned counsel for the appellants took me through the recitals of the document under dispute, namely, Ex.A-1 and the question arises whether the recitals under the document justify the claim of plaintiffs to the effect that it is only a settlement deed and not a Will. Apart from the fact that the document was registered by the settlor as a Settlement deed, there are several recitals in the document which will show that by no stretch of imagination can the document be treated as a will. The settlor had declared that she has no power to set aside or revoke or modify the Settlement deed in any manner. It is further declared that the properties be thereby enjoyed by the settlees in equal shares. It is also further declared that in the event of one of the settlees being willing to purchase the property, the settlees after assessing the value of the property at the prevailing market rate, the parties willing to purchase the property, shall be half the value and take the whole property absolutely. It is also further declared that in the event of one of the settlees being willing to purchase the property, the settlees after assessing the value of the property at the prevailing market rate, the parties willing to purchase the property, shall be half the value and take the whole property absolutely. Therefore, a reading of the document clearly shows that the settlor had relinquished all her rights in the property and has also declared not to set aside or revoke or modify the settlement deed. Therefore, I am unable to sustain the finding of the Courts below that the document has to be treated as a Will. ." 25. Learned counsel for the respondents also relied on a judgment of the Apex Court reported in 1996 SC 2220 (N.B. Subrahmanyam v. A.Hymavathi) which reads as follows: "3. The only question is the interpretation of the deed Ex.B-1. It is true, as rightly contended by Smt.K.Amareshwari, learned Senior cousnel for the respondents, that the nomeclature of he document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by the parties are conclusive. The court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole. The settlement deed reads as under: "I am 78 years old by now. Since I have suffering from Nanju disease and breathlessness and Asthama and feel that it would be difficult for me to live long. You happened to be my daughter. Those could be gathered from the recitals in the document as a whole. The settlement deed reads as under: "I am 78 years old by now. Since I have suffering from Nanju disease and breathlessness and Asthama and feel that it would be difficult for me to live long. You happened to be my daughter. Out of great love and affection, I have for you, I having felt strong desire got this settlement deed executed in your favour this day, settling the properties mentioned in the schedule hereunder i.e., the property I had purchased on 21.11.1935 from Sharadappa wife of Damarla Anjaiah and Vejella Veeraiah and others which is my self acquired property and the land developed upon me out of the property of my husband under a decree passed by the Andhra Pradesh High Court and which has been in my absolute rights and enjoyment to belong to you after my death to be enjoyed by you with absolute rights. Therefore, taking possession of the schedule and after my death you may enjoy the same freely and happily till the sun and moon endure together with trees, water, stones, treasures and treasure-troves with all the rights with absolute powers of disposition by way of gift mortgage, exchange sale etc., from your son to grand-son and so on by paying the taxes of the municipality, Government etc. from then onwards. I heirs of my successors shall never raise any dispute against you, your heirs or successors in this behalf. Having assured you and made you to believe that the schedule mentioned properties have not been alienated and have not been subjected to any attachments of courts, securities etc., and are free from all encumbrances and which are in my absolute right and enjoyment, this deed of settlement is got executed and "delivered to you". 4.The division Bench on its reading of the said document has construed it to be a Will. Unfortunately, it did not read the recitals in the Schedule tot he settlement deed. The boundaries of the properties settled (details of which are not material; hence omitted) through this settlement deed through which the rights were created in his favour. 5. the said recitals clearly would indicate that the settlement deed executed on that date is to take effect on that day. The boundaries of the properties settled (details of which are not material; hence omitted) through this settlement deed through which the rights were created in his favour. 5. the said recitals clearly would indicate that the settlement deed executed on that date is to take effect on that day. She created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property and vested remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on settlor's demise. A reading of the documents together with the Schedule would given an indication that she had created right and interest in prasenti in favour of her daughter Vimalavathy in respect of the properties mentioned in the schedule with the life estate for her enjoyment during her lifetime. Thus it could be construed rightly as a settlement deed but not as a Will. Having divested self thereunder, right and title thereunder, she had, thereafter, no right o bequeath the same property in favour of her daughter Hymavathy. The trial court and the learned single Judge rightly negatived the claim. He d Division Bench was not, therefore, correct in law in interfering with the decree of the trial court. 26. It is also appropriate to extract section 19 of the Transfer of Property Act which reads as follows: 19.Vested interest:-Where, on a transfer of property, an interest therein is crated in favour of a person without specifying that tit is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before he obtains possession. 27. A vested interest is not defeated by the death of the transferee before he obtains possession. 27. In Ex.A-6 it is clearly stated that the settlee should perform the obsequies of the settlors, Bommiammal and after that settlee should take possession of the property. Further, it is recited in Ex.A6 that the settlor has no power to revoke the same. 28. It could also be seen that vested interest stands in favour of settlee, K.Vijayan. The first defendant/appellant is a stranger and he is not related to the deceased Bommiammal in any way. Whereas, the settlee K.Vijayan is the foster son of the deceased Bommiammal. Further, the execution of the document Ex.A6 was not disputed by the first defendant nor did he take a plea that the said document is not a settlement deed and it is only a Will in his written statement. Since the deceased Bommiammal did not have any issues, it is natural that she settled the property in favour of her foster son, K.Vijayan. 29. Further, the learned counsel for he respondents 1 to 3 also relied on a judgment reported in AIR 2003 SC 1905 (Bondar Singh and others v. Nihal Singh and others) which reads as follows: "7. As regards the plea of sub-tenancy (shikmi) argued on behalf of the defendants byt heir learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in re4lation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub-tenancy (shikmi) the defendants cannot be allowed to build up a case of sub-tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issues on the point. 30. From the above judgment of the Apex Court, it could be seen that in the absence of a clear plea in the written statement, defendant cannot build up a case on that ground. 31. We have perused the issues framed in the suit. There is no issues on the point. 30. From the above judgment of the Apex Court, it could be seen that in the absence of a clear plea in the written statement, defendant cannot build up a case on that ground. 31. By applying the principles laid down in the above REFERRED judgments, the following points emerge to decide whether the document is a settlement or Will. (i) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the phraseology used thereon. (ii) The nomenclature (settlement or Will) in the document is not a deciding factor. (iii) The registration of the document and the quantum of stamp paper used also have to be taken into consideration. (iv) The recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor with reference to the character of the document. (v) Though actual disposition can be postponed till the lifetime of the settlor or though prima facie it appears that disposition consummates after his death, if there is a present disposition and vesting of right in praesenti, the document has to be construed as a settlement and not as testamentary. (vi) If any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor, then the said document is only a testamentary and not a settlement. (vii) If the executant is entitled to be in possession of the property and enjoy the benefits during his lifetime with the power to encumber, the document has to be construed only as a will. (viii) If the executant imposes self-restriction and with reference to sale and encumbrance, though he is in possession of the property after execution of the said document, the document has to be construed only as a settlement and not as a will. 32. The settlee K.Vijayan predeceased the settlor. Since the vested interest of the settlee will not be defeated by his death under section 19 of the Transfer of Property Act, the plaintiffs can claim right, title and interest over the suit property. The suit property was jointly purchased by Natesa Naicker and his wife Bommiammal. Netesa Naicker predeceased his wife. Therefore, the half share of Natasa Naicker devolved to his wife Bommiammal. The suit property was jointly purchased by Natesa Naicker and his wife Bommiammal. Netesa Naicker predeceased his wife. Therefore, the half share of Natasa Naicker devolved to his wife Bommiammal. After the death of her husband, the said Bommiammal had executed Ex.A6 in favour of the first plaintiff and the father of the plaintiff 2 and 3. The settlee also died and therefore the plaintiffs, as the legal heirs of the settlee, have absolute right, title and interest over the suit property. 34. Therefore, by the principles laid down in the above referred judgments, I am of the view that document Ex.A6 dated 29.11.1978 is only a settlement deed and not a Will. Therefore, I find no ground much less substantial question of law to interfere with the findings of the lower appellate court. The above second appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there will be no order as to costs.