JUDGMENT : This appeal has been filed challenging the judgment and decree passed in the first appeal filed under section 96 of the Code of Civil Procedure before the learned Addl. District Judge, Gajpati numbered as Title appeal No. 14 of 1998. Smt. Pattila Chinnamma @ Nancharamma as the original plaintiff had filed the suit i.e., T.S. No. 62 of 1993 in the court of learned Civil Judge, (Sr. Division), Parlakhemundi for declaration of right, title and interest over the suit house and for recovery of possession of the same from defendant no. 1 and 2 who are the respondent no. 1 and 2 in this second appeal and out of whom, the respondent no. 2 alone was the appellant before the first appellate court. It may be stated here that during pendency of the suit, original plaintiff having died, her daughter came to be substituted as plaintiff no. 1(a) and she has filed this second appeal being aggrieved by the judgment and decree passed by the first appellate court whereby the suit stood dismissed in reversal to the judgment and decree passed by the trial court, decreeing the suit. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Case of the plaintiff is that, she was the owner in possession of the suit house. Her eldest son having died, the daughter-in-law with her children left the house. The second son also died and the third son was working at Parlakhemundi when the daughter being given in marriage, the plaintiff was residing with the second daughter-in-law and her children in the suit house. Reposing confidence on them, she executed a registered deed of settlement in the year 1984 conferring absolute right over the suit house in favour of the children of defendant no. 2 besides the right of enjoyment of the same being also given to the defendant no.2. Subsequently the defendant no. 2 and her children went away with defendant no. 1 leaving the plaintiff uncared for and so anybody remained to look after the plaintiff. The daughter who has come up for substitution as plaintiff no. 1(a) and her son who was then alive came to her rescue. Subsequently the defendant no. 2 and her children went away with defendant no. 1 leaving the plaintiff uncared for and so anybody remained to look after the plaintiff. The daughter who has come up for substitution as plaintiff no. 1(a) and her son who was then alive came to her rescue. The plaintiff then in the year 1989 cancelled the said registered deed of the year 1984 by a registered document and as the plaintiff no. 1(a) and her son were taking all her care, she again executed another Willnama in the year 1991 bequeathing said property in their favour. It is alleged that sometime in the month of April 1992, the defendant no. 1 and 2 came and forcibly evicted the plaintiff from the suit house despite protest and they did not leave the possession of the same. So, the suit was filed. 4. The defendant no. 1 and 2 contested the suit. While traversing the plaint averments, in the written statement, they specifically pleaded that defendant no. 1 and 2 are not having the relationship of husband and wife at all. It is stated that the plaintiffs have executed a registered deed of gift in favour of defendant no. 2, gifting away the suit house and had delivered possession of the same to said defendant no. 2 who was living there with her children. Other allegations stood denied that they were not taking any care and for that reason, she was looked after by plaintiff no. 1(a) and her son etc. It is pleaded that plaintiff became insane in the year 1988 and, taking advantage of it, the plaintiff no. 1(a), her husband and son created all those subsequent documents including that Willnama. They asserted that since the defendant no. 2 and her children are having the right, title of the suit house by virtue of registered gift deed and as such are in possession, the plaintiff is not entitled to get the relief of declaration of her right, title and interest over the suit house as also the relief of eviction. 5. Faced with above rival pleading, the trial court framed in total six issues and has rightly taken up issue no. 1 concerning the right, title and interest of the plaintiff over the suit house as pleaded in the plaint. In going to decide the said issue, the claim of the defendant no. 5. Faced with above rival pleading, the trial court framed in total six issues and has rightly taken up issue no. 1 concerning the right, title and interest of the plaintiff over the suit house as pleaded in the plaint. In going to decide the said issue, the claim of the defendant no. 2 has also been dealt with. At the end, the answer has been rendered that the registered deed of the year 1984 is a Will and that has been subsequently revoked by another Will executed by the plaintiff. So, finally, it has been stated that the plaintiff no. 1(a) has the right, title and interest over the suit house by virtue of that subsequent Will executed by the original plaintiff which was her last Will which has been duly proved in accordance with law. This has practically led the trial court to decree the suit granting all the reliefs to the plaintiff no. 1(a) as prayed for. The defendant no. 2 being aggrieved by the said judgment and decree passed by the trial court carried the first appeal. Before the first appellate court, the main plank of argument was that the registered deed of the year 1984 executed by the original plaintiff which has been admitted in evidence and marked Ext. C is not at all a Will as held by the trial court practically inventing a third case beyond the pleading but it is a deed of gift. It was argued that the trial court had committed an error both in fact and law in holding it to be a Will and then going to say that it has no legal force as there has been execution of a subsequent Will which is her last Will. 6. The lower appellate court thus formulated that as one of the main point for determination. Having gone through rival case of the parties and examining the evidence on record, the final conclusion has been that this Ext. C is a registered deed of gift and not a Will as held by the trial court. Accordingly, it has been held that defendant no. 2 and her sons have been clothed with right, title and interest in respect of the suit house by virtue of the same which had been duly accepted by them. 7. C is a registered deed of gift and not a Will as held by the trial court. Accordingly, it has been held that defendant no. 2 and her sons have been clothed with right, title and interest in respect of the suit house by virtue of the same which had been duly accepted by them. 7. The appeal has been admitted on the following substantial questions of law:- Whether the finding of the lower appellate court that Ext. C is a deed of gift duly registered suffers from the vice of perversity and it ought to have been held to be a Will? 8. Learned counsel for the appellant submits that the lower appellate court is not right in upsetting the finding of the trial court that Ext. C was a Will and thus in view of the execution of the subsequent Will by the plaintiff, the defendant no. 2 and her children are not having any title in respect of the suit house. He also contends that the trial court was right in holding and answering the said issue no. 2 in favour of the plaintiff in decreeing the suit granting all the reliefs to the plaintiff no. 1(a) holding her to be the rightful owner entitled to possess the suit house in view of the Will executed by the original plaintiff in her favour in the year 1989 which has been duly proved and as such established particularly when grant of probate to the Will is not the condition precedent for the said Will being executed by the testatrix, a native of the district of Gajapati within the erstwhile district of Ganjam and in respect of the property situated in the part of the State, where the particular Chapter of Indian Succession Act has no applicability. Learned counsel for the respondents contends that the lower appellate court has rightly set aside the finding of the trial court by properly appreciating the evidence on record and viewing all other surrounding circumstances emanating from the evidence in the backdrop of the legal position standing well settled. 9. For addressing above rival submissions in order to answer the substantial question of law as above, first of all it is necessary to have a glance over the relevant averments of the plaint. The original plaintiff admits to have executed Ext. 9. For addressing above rival submissions in order to answer the substantial question of law as above, first of all it is necessary to have a glance over the relevant averments of the plaint. The original plaintiff admits to have executed Ext. C. The document which is claimed to be deed of gift by the defendant no. 2, whereas it is said to be a Will by the plaintiff no. 1(a). This document is a registered one. It has been stated in the plaint that said document was executed in the year 1984 intending that it would take effect after the death of the executant with the clear recitals that the children of the defendant no. 2 would have the absolute right over the suit house and the original plaintiff and the defendant no.2 would be having the right of enjoyment over the property. It is no where stated in the plaint nor even indirectly whispered that original plaintiff had executed a Will bequeathing the suit house in that way for the purpose. At this juncture, the relevant recitals of Ext. C need be gone through. It is recited therein that the original plaintiff in executing the deed of settlement gives the suit house to defendant no. 2 that both of them would jointly live in the house till the death of the original plaintiff and the defendant no. 2 is prohibited to transfer the property either by way of sale or gift and on the death of original plaintiff, her two grandsons would acquire absolute ownership over the property having the right to dispose of the same in any manner, they would like. On a plain and simple reading of the recitals, the intention of the executant gets clearly revealed that she intended to transfer ownership of the property in favour of her two grandsons who were then minors under the guardianship of their mother reserving the right of enjoyment unto herself and the mother of those two grandsons i.e., daughter-in-law of the original plaintiff who was admittedly then residing in the house till her death. It is true that, mere nomenclature of a deed is not decisive for holding the nature of the document. It is true that, mere nomenclature of a deed is not decisive for holding the nature of the document. For the purpose of coming to a conclusion on that aspect, the recitals if are clear and un ambiguous giving out the expression of the intention of the executant, those have the final say over the matter and only in the event those recitals are unclear and ambiguous from which it is difficult to cull out the intention of the executant, the court is left with no option but to decide the issue by evaluating evidence let in by the parties as also viewing the surrounding circumstances emanating from evidence as well as attending factors so as to take a final view in the matter. In the instant case, no where it finds mention that the very transfer under the deed would be effective only upon the death of the executant, when there is also no expression of her intention of reserving her right to revoke the same at any later point of time. 10. In case of K. Balakrishna Vs. K. Kamalan & Others; AIR 2004 SC 1257 which has been referred to by the lower appellate court, it is held that it is open to the donor to transfer by gift the title and ownership of the property and at the same time reserve its possession and enjoyment to herself / himself during his / her lifetime and that there is no prohibition in law that the ownership in property cannot be gifted without wholly parting with the possession and the right of enjoyment. In that very case, it has also been held that gift in favour of minor does not attract any legal prohibition. Here the original plaintiff appeared to have transferred the ownership of the property in favour of her daughter-in-law and minor grandsons reserving her right to possess and enjoy unto herself during her lifetime in further creating an interest in favour of the daughter-in-law for having the right of residence till then prohibiting her to transfer the property which has only been permitted thereafter to be done by those grandsons, if they so like. The deed thus is a gift conferring title at the ultimatum upon the grand sons with those aforesaid stipulations continuing to have their play in between. The deed thus is a gift conferring title at the ultimatum upon the grand sons with those aforesaid stipulations continuing to have their play in between. For the aforesaid discussion and reasons, I am unable to accept the submission that the finding of the lower appellate court that the Ext. C is deed of gift in any way to be a flawed one and so also the consequential finding that it is not revocable in the absence of having any conditions as laid down under section 126 of the T.P. Act which have not been shown to have been in existence. In view of that, the finding of the lower appellate court that the deed of settlement executed by the original plaintiff, vide Ext. 3/B has no legal effect is wholly defensible. The substantial question of law thus in view of the aforesaid reasons, stands accordingly answered which does not favour the case of the appellant. 11. In the result, the appeal stands dismissed. No order as to cost.