JUDGMENT Dinesh Gupta,J. This second appeal is preferred against the judgement dated 15th September, 1980 passed by IInd Civil Judge, Varanasi in Civil Appeal No.404 of 1979 arising out of judgement dated 31st August, 1979 passed by Munsif, Hawali, Varanasi in Original Suit No.565 of 1975. 2. The brief facts, which give rise to this appeal are that the plaintiffs-appellants (hereinafter called as the "appellants") filed Original Suit No.565 of 1975 against the defendants-respondents (hereinafter called as the "respondents") for the relief of cancellation of gift deed dated 16.7.1975. 3. The allegations made in the plaint were that the plaintiff no.1 was son of Bharosh and plaintiff no.2 was the son of Khemai. The respondent no.1 Smt. Umrai was widow of Mangroo and the respondent no.2 was the daughter of respondent no.1 Smt. Umrai. The plaintiff no.1 and the father of the plaintiff no.2 were sons of one Bharosh, who expired about 32-35 years before filing of the suit and after the death of Mangroo, a family settlement arrived at between the plaintiffs and the respondent no.1 Smt. Umrai to this effect that the plaintiff will remain the owner of ancestral properties left by Mangroo and the respondent no.1 Smt. Umrai will have right of maintenance alone, even the share of Mangroo and she would have no right to transfer the share of Mangroo. Later on a family settlement reduced into writing and was registered on 5.8.1967. 4. It was further alleged that in spite of said family settlement, the respondent no.1 Smt. Umrai executed a gift-deed in favour of her daughter on 16.7.1975. The plaintiffs have no option left but to file the suit for cancellation of above gift-deed dated 16.7.1975. 5. The suit was contested by the defendants on the ground that in fact no family settlement was arrived at between the parties and the family settlement deed dated 5.8.1967 is a forged document and the respondent no.1 Smt. Umrari was full owner of 1/3rd share of Mangroo and her name was recorded there that she had every right to execute the impugned gift deed in favour of the respondent no.2. 6. After considering the evidence available on record, the trial court decreed the suit of the plaintiffs and cancelled the gift deed dated 16.7.1975 executed by respondent no.1 in favour of the respondent no.2. 7. 6. After considering the evidence available on record, the trial court decreed the suit of the plaintiffs and cancelled the gift deed dated 16.7.1975 executed by respondent no.1 in favour of the respondent no.2. 7. Feeling aggrieved, the respondents preferred an appeal, which was registered as Civil Appeal No.404 of 1979 and was transferred to the court of IInd Civil Judge, Varanasi, who allowed the appeal and dismissed the suit of the appellants vide its order dated 15th September, 1980. 8. Feeling aggrieved, the appellants preferred this second appeal before this Court. 9. At the time of admission of the appeal, the following substantial questions of law was framed by this Court: (i) Whether on the terms and conditions imposed through registered family settlement dated 5th August, 1967 Ext.2, Smt. Umrai was entitled to transfer the property in dispute through gift-deed dated 16th July, 1975 in favour of respondent no.2? (ii) Whether bilateral document of family settlement dated 5th August, 1967 was misconstrued by the lower appellate court as will executed by Smt. Umrai and the entire judgement of the lower appellate court due to the aforesaid misconstruction of the title deed is vitiated by manifest error of law? (iii) Whether the family settlement dated 5th August, 1967 would be deemed to have been rescind by executing the gift-deed dated 16th July, 1975 by Smt. Umrai? 10. Notices were issued to the respondents and the lower court record was also requisitioned. 11. Heard Shri Ashok Kumar Singh, holding brief for Dr. V.K. Rai, learned counsel for the appellants and Shri Anil Kumar Aditya, learned counsel for the respondents. 12. Learned counsel for the appellants submitted that both the courts below have recorded a categorical finding that the registered agreement amounting to family settlement dated 5th August, 1967, was duly executed by Smt. Umrai respondent no.1, and therefore, the terms and conditions and restrictions imposed by the above deed, were binding on Smt. Umrai, respondent no.1, and respondent no.1 had no right to make any transfer of the property in dispute in her life time. The transfer made by the respondent no.1 Smt. Umrari was in contravention of terms and conditions of the aforesaid family settlement is apparently illegal. 13. The registered agreement dated 5th August, 1967 was a bilateral document executed between the appellants and respondent no.1 and could not be treated as a will. The transfer made by the respondent no.1 Smt. Umrari was in contravention of terms and conditions of the aforesaid family settlement is apparently illegal. 13. The registered agreement dated 5th August, 1967 was a bilateral document executed between the appellants and respondent no.1 and could not be treated as a will. The lower appellate court misconstrued the above said family settlement and wrongly treated as a will instead of family settlement. The respondent no.1 could not rescind the aforesaid document of the family settlement. The finding of the appellate court that by executing the gift-deed, the respondent no.1 has rescind the family settlement is quite illegal. 14. The terms and conditions of the family settlement dated 5th August, 1967 were binding on the respondent no.1, and therefore, she could not have executed any gift-deed in favour of the defendant no.2 by executing the gift-deed and the respondent no.1 violated the restrictions imposed by the gift-deed dated 5th August, 1967 . 15. The appellate court has taken-up a new case that the document dated 5th August, 1967 executed between the parties was in fact a will which is not a case of either of the parties. The case of the appellants throughout was that the document in question was a family settlement since it is a bilateral document executed between the appellants and the respondent no.1 and only allegation against the said document made by the respondents is denial of such execution of deed. It is not a case of respondent no.1 in fact the document was executed by respondent no.1 was of a nature of will. The respondent no.1 has totally denied the execution of the document and treated to be a forged document. Both the courts below have recorded a categorical findings that the document dated 5th August, 1967 was executed between the parties i.e. appellants and respondent no.1. Thus, the finding recorded by the appellate court that this document could be construed as a will and was executed between the parties i.e. the appellants and the respondent no.1 was totally erroneous and court had no right or jurisdiction to set a new case, which has not been taken either of the parties. 16. Thus, the finding recorded by the appellate court that this document could be construed as a will and was executed between the parties i.e. the appellants and the respondent no.1 was totally erroneous and court had no right or jurisdiction to set a new case, which has not been taken either of the parties. 16. Learned counsel for the appellants further submitted that since byway of family settlement, the respondent no.1 has voluntarily restricted herself from transferring the deed during her life time, and as such, in the family settlement that she will remain owner and will have no right to transfer the said property and after her death, the property will go back to the appellants. 17. Thus, the respondent no.1 could not execute any gift-deed during her life time in favour of the respondent no.2 or to any other person. 18. Thus, the gift-deed executed by the respondent no.1 in favour of the respondent no.2 was clearly in violation of terms and conditions of the family settlement arrived at between the parties and liable to be cancelled. 19. The trial court's finding in this regard were based on evidence of the parties and the appellate court has no right to reverse the finding and arrived at a new case treating the document as a will, which is not a case of either of the parties. 20. Learned counsel for the appellants further submitted that the appeal deserves to be allowed and the order passed by the appellate court is liable to be set aside and the decree passed by the trial court is liable to be restored. 21. Learned counsel for the respondents submitted that the order passed by the appellate court is fully justified and no interference is required by this Court. 22. Learned counsel for the respondents further submitted that the appellate court has arrived at a conclusion by considering the terms and conditions mentioned in the document dated 5th August, 1967 and considering the averments made in the documents, the appellate court had arrived at a conclusion that the said deed could be construed as a will and execution of gift-deed during life time by the respondent no.1 is a clear indication and intention of respondent no.1 to rescine the said Will. The respondent no.1 had power to rescine the will during her life time. 23. The respondent no.1 had power to rescine the will during her life time. 23. Learned counsel for the respondents further submitted that the appellants have not challenged the execution of the gift-deed. The execution was admitted by the respondent no.1, and as such, the only question was before the appellate court that the nature of the document dated 5th August, 1976 and the appellate court has rightly construed the document as a will and committed no illegality. 24. Argument raised by the learned counsel for the appellants have some force. 25. Since the execution of the gift-deed by the respondent no.1 in favour of the respondent no.2 has not been denied by the appellants. 26. Now only question remains before this Court to see whether in view of the document dated 5th August, 1967, the respondent no.1 had any right to execute the gift-deed in favour of her daughter respondent no.2 or not and what is the nature of said deed whether it is a family settlement as alleged by the appellants or a Will as explained by the first appellate court. 27. The appellants have come-up with a definite case that the document dated 5th August, 1967 was a family settlement deed and the respondents simply denied the execution of above said deed. There was no whisper in the written statement that the respondent no.1 executed this deed treating it to be a will. 28. Thus, the court has to see whether the document dated 5th August, 1967 is a family settlement deed or is a will as alleged by the lower appellate court. 29. While at the time of recording the finding in the above said family settlement deed, the appellate court only relying upon condition no.1 of the above deed, which contains the following words: "fuEufyf[kr Hkwfe rkg;kr Qjhd vCcy eq0 mejkbZ dh jgsxhA" 30. Relying on these words, the first appellate court finds that this document can be construed as a will. Since the executior had mentioned that till her life time, she will remain owner and on this ground, the appellate court construed the document as a will. 31. I am unable to accept the finding recorded by the appellate court for the following reasons: 32. First of all, it is not a case either of the parties that the document in question was a will. 33. 31. I am unable to accept the finding recorded by the appellate court for the following reasons: 32. First of all, it is not a case either of the parties that the document in question was a will. 33. Secondly, the respondents have simply denied the execution of the deed. However, both the courts below have recorded a finding that in fact the deed was executed between the respondent no.1 and the appellants. 34. Thirdly, the appellate court has only relied upon single line of one of the terms mentioned in the deed while in order to construe the document, the court has to read the document as a whole and has to infer the intention of the parties in executing the document. The most important thing is the intention of the parties. 35. Admittedly, the property in dispute originally belonged to one Bharos, who had three sons, namely, Mangroo, Kedar and Khemai. Respondent no.1 Umrai is widow of Mangroo. The alleged document family settlement has been executed between Kedar and Govardhan on one hand and Smt. Umrari on other hand. Mangroo had no lenient male descendants. 36. Thus, in order to save the property going in hand of female descendant and finally go to said family this deed was entered upon between them. Now going through the deed, which is exhibit-3 and is a registered document, the deed has been executed by Smt. Umrai as first part and Govardhan and Kedar on second part. 37. The document further stated that the property detailed in the deed belongs to the first part and with common ownership with second part and first part further described that she had no issue and both the parts belongs to one family and they agreed to execute this deed. Condition no.1, which has been relied upon by the appellate court, reads as under: ß1&;g fd fuEufyf[kr Hkwfe rkg;kn Qjhd vkSoy Qjhd vkSoy eq0 mejkbZ dh jgsxh A eq0 mejkbZ viuh ftUnxh rd fuEufyf[kr Hkwfe ij dkfct jgsa A mlds iSnkokj ls eqLrQhn gksos A ml ij [ksrh djsa A exj eq0 mejkbZ Qjhd vkSoy viuh ftUnxh esa fuEufyf[kr Hkwfe dk dgh fdlh rkSj ij fdlh ds gkFk eqUrfdy ugha djsxh vkSj u Qjhd vkSoy dh equkflo djus dk vf/kdkj gSAÞ 38. Appellate court in fact relied upon only some part of conditions and ignoring the remaining part of condition no.1, which clearly prohibits the first part to transfer the land during her life time. 39. In the second condition that they will not interfere in the possession of the first part and on the third condition was that during her life time, she will remain in possession over the property and after her death, 1.56 acre land will go to the second part Govardhan and remaining two acre land will go to Kedar. 40. Condition no.4 also dealt with right by which the first part has restricted her right to the life estate 41. Learned counsel for the respondents tried to argue in respect of condition no.5 of this agreement that there is a condition that in case either of the parties go against the condition of this agreement, the agreement shall be treated to be cancelled, and thus, tried to convince this Court that by executing the gift-deed, Smt. Umrari in fact cancelled that deed. This contention of respondents has no force. 42. Thus, from the perusal of this deed, clearly reveals that this is a bilateral document executed between two parties and in which one party restricted her rights to the life estate and only restrained herself from transferring the same during her life time and other party restrained from interfering in the possession over the property, which came in the share of first party. 43. From a perusal of the documents, it also appears that it is a document in the nature of family settlement and by no stretch of imagination this document can be treated as a will, as treated by the appellate court. This court mentioned earlier that intention of the parties while executing a document is a most important factor. 44. This document was executed in fact to save the property from going into the hand of female descendant and there is no prohibition that either of the party can curtail their rights. 45. Thus, this document is nothing but a family settlement deed and finding recorded by the appellate court that it could be construed as a will is without any substance or evidence available on record. 46. 45. Thus, this document is nothing but a family settlement deed and finding recorded by the appellate court that it could be construed as a will is without any substance or evidence available on record. 46. From a perusal of the judgement of the appellate court, it transpires that the appellate court simply treated the document to be as a will and further held that by executing the gift deed, the respondent no.1 rescind the document and cancelled the will, is against the law and cannot be sustained. 47. In view of the above, the appeal deserves to be allowed and the judgement passed by the appellate court is set aside and the decree passed by the trial court, is restored and the suit of the appellant is decreed. 48. Substantial question of law answered accordingly.