JUDGMENT : 1. The defendants 2 and 3 in O.S.No.167 of 2004 on the file of the First Additional District Court, Tiruchirappalli, are the appellants in the above appeal. 2. The respondents 1 and 2 in this appeal are plaintiffs 1 and 2 in the suit and third respondent in this appeal is the first defendant in the suit. 3. The respondents 1 and 2 herein, as plaintiffs filed the suit in O.S.No.167 of 2004 for partition and separate possession of ½ share in the suit first item and for ½ share for the plaintiffs 1 and 2 in respect of items 1 to 3 and item 10 of suit properties. Insofar as first item is concerned, the plaintiffs also prayed for ½ share to the first defendant. The plaintiffs also prayed for alternative relief for division of properties item 1 to 3 and 10 of the suit properties into four equal shares and to allot two shares to the plaintiffs and ¼ share to the first defendant, in case, the Court comes to the conclusion that the Will relied upon by them is held to be not valid. 4. The first plaintiff is the daughter of second plaintiff who is the first wife of Late Dr. Jayaraman. The first defendant is none else than the sister of first plaintiff and the daughter of second plaintiff. The second defendant in the suit is the second wife of Late Dr. Jayaraman and she is also the sister of second plaintiff. The third defendant in the suit is the son of Late Dr. Jayaraman through the second defendant. 5. The case of the plaintiff is that the suit first item was purchased by Dr. Jayaraman by a registered sale deed dated 22.04.1981 and that he constructed a clinic in the suit first item and was running the same in the name and style of “Krithika Nursing Home”. It is further stated that Dr. Jayaraman executed a Will on 17.06.1986 bequeathing the suit first item to his two daughters, namely, the first plaintiff and the first defendant. It is not in dispute that Dr. Jayaraman died on 03.02.2002 in a road accident. 6. Though the suit was filed only in respect of suit first item, the contesting defendants namely defendants 2 and 3 raised a plea stating that all the properties of Dr. Jayaraman were not included in the suit. It is not in dispute that Dr. Jayaraman died on 03.02.2002 in a road accident. 6. Though the suit was filed only in respect of suit first item, the contesting defendants namely defendants 2 and 3 raised a plea stating that all the properties of Dr. Jayaraman were not included in the suit. Subsequently, the suit items 2 and 3 were included. Thereafter, the defendants filed a petition to include other properties in the suit, namely, items 4 to 9. Subsequently, item 10 in the suit schedule also included and the same is a car bearing registration No.TN-45-Q-3838. 7. The case of the plaintiffs is that the suit items 1 to 3 are the self-acquired properties of Dr. Jayaraman. The fourth item was included in the suit schedule. It is the specific case of the plaintiffs that the properties referred to in item 4 are the exclusive properties of the second plaintiff, namely, the first wife of Dr. Jayaraman. It is also the case of the plaintiffs that items 5 to 9 in the suit are the ancestral properties of Dr. Jayaraman, who got the same in a family partition and that the third defendant being the illegitimate son of Dr. Jayaraman through the second defendant whose marriage is void, is not entitled to any share in the ancestral properties. 8. The second defendant filed a detailed written statement which was also adopted by the third defendant. It is the case of the appellants that the third defendant along with second defendant is living in the suit first item and that therefore, the suit for partition between the plaintiffs and the first defendant, bye-passing the claim of third defendant is not maintainable, as the relief of partition must be preceded by a relief for recovery of possession from the third defendant. 9. It was further stated in the written statement that Dr. Jayaraman married the second defendant, as he had no male child through his first wife, namely, the second plaintiff. It is the case of the defendants 2 and 3 that Dr. Jayaraman was living with them at Manapparai in the suit first item ever since their marriage and that after the sudden and sad demise of Dr. Jayaraman, defendants 2 and 3 continued to live in the residential portion of suit first item whereas the plaintiffs and defendants 1 and 2 are living in Sakthi Nagar, Tiruchirappalli. 10. Jayaraman was living with them at Manapparai in the suit first item ever since their marriage and that after the sudden and sad demise of Dr. Jayaraman, defendants 2 and 3 continued to live in the residential portion of suit first item whereas the plaintiffs and defendants 1 and 2 are living in Sakthi Nagar, Tiruchirappalli. 10. It is also the further case of the defendants 2 and 3 that at the time of marriage between Dr. Jayaraman and second defendant, the second plaintiff, namely, the first wife of Dr. Jayaraman pressurised Dr. Jayaraman to settle the suit first item in her favour under threat, duress, intimidation and coercion and Dr. Jayaraman was asked to settle the entire hospital premises, namely, first item of suit property in favour of second plaintiff. The Will alleged to have been executed by Dr. Jayaraman on 17.06.1986 bequeathing the suit first item in favour of the plaintiffs and first defendant is specifically challenged by disputing the truth, validity, execution and attestation of the Will dated 17.06.1986. Stating that the Will dated 17.06.1986 is a concocted, fabricated and ante-dated document, it was contended that the Will had been specially invented to knock away the valuable properties from the hands of the third defendant. With regard to the execution of the Will dated 17.06.1986, the contesting defendants/appellants further relied upon the circumstances by which the petition for divorce was presented by Dr. Jayaraman as against the second plaintiff on 16.06.1986. It was specifically pleaded that there was no occasion for Dr. Jayaraman to execute the Will and further relied upon few circumstances under which the Will came into existence. Though a specific plea was raised by the appellants stating that the suit is bad for partial partition, by inclusion of other properties which were allotted to Dr. Jayaraman under a registered partition deed dated 28.02.1997, the said plea has now become irrelevant. 11. The trial Court though framed originally certain issues only in relation to the items 4 to 9, after hearing the arguments, framed the following issues: 1. Whether the document which is marked as Ex.A3 is a Will or settlement deed and whether it is validly executed by Dr. Jayaraman and further whether the execution of the document is true and genuine? 2. Whether the document which is marked as Ex.A3 is a Will or settlement deed and whether it is validly executed by Dr. Jayaraman and further whether the execution of the document is true and genuine? 2. Whether the 1st plaintiff and the defendants 1 and 2 are in joint possession and enjoyment of the item 1 of the suit properties nad in case if the Court decides that on 17.06.1986 document is a valid and enforceable then whether the plaintiffs have to file a separate suit for recovery of possession or not? 3. Whether the 2nd and 3rd defendants are entitled to share in the suit properties? 4. To what relief the plaintiffs are entitled to? 12. Having regard to the pleadings and the evidence, the trial Court observed that there is no dispute with regard to the character of suit first item, as the self acquired property of Dr. Jayaraman. Since the claim of ½ share by the first plaintiff and first defendant is only on the basis of the Will, the trial Court considered the issue whether the document, namely, the Will dated 17.06.1986, marked as Ex.A3 is a Will or settlement. Though the document is styled as a settlement deed, since there was no transfer in praesenti under the document, it was concluded by the trial Court that the document Ex.A3 is only a Will. After referring to several judgments on this issue, the trial Court observed that what was conveyed under Ex.A3 in favour of plaintiff and first defendant should go to them only after the death of Dr. Jayaraman. The trial Court found that Ex.A3 was executed as a Will, though it was styled as a document of settlement. The trial Court thereafter examined the truth and validity of the Will. Since the plaintiffs have examined P.W.2, one of the attestors of the Will, his evidence was believed by the trial Court, the trial Court had come to the conclusion that the Will under Ex.A3 had been duly executed and attested in accordance with the requirements of law. 13. The next question considered by the trial Court was regarding the maintainability of suit for partition. 13. The next question considered by the trial Court was regarding the maintainability of suit for partition. A specific plea was raised by the appellants stating that the suit for partition is not maintainable, as the property is admittedly in the physical possession of the appellants, who are not admitted as co-owners in respect of the suit first item. The plea of appellants was negatived on the ground that the appellants themselves have claimed ¼ share in the suit first item by assuming that they are in joint possession and that there is no necessity to file a separate suit for recovery of possession. As regards item No.4 of the suit property, the trial Court held that out of three plots, plot Nos.71 and 72 are the exclusive property of the second plaintiff and that plot No.73 is the property of Dr. Jayaraman. Since the appellants have not proved that the entire sale consideration came from Dr. Jayaraman, the plea of appellants was not accepted by the trial Court. Pointing out that Dr. Jayaraman is an income tax assessee and that if he had advanced money for the purchase of the property in the name of the second plaintiff, it could have been stated so in his accounts and that the non-production of such documents by defendants 2 and 3 would show that plot Nos.71 and 72 are the absolute properties of second plaintiff. Though the plaintiffs did not admit the right of appellants to claim share in items 5 to 9 on the ground that they are the ancestral properties of Dr. Jayaraman, in the plaint, they practically conceded before the trial Court. As a result, the trial Court found that in respect of items 5 to 9, the first plaintiff and first defendant are entitled to 5/12 share and the second plaintiff and third defendant are entitled to each 1/12 share. Since the claim for partition in respect of item No.10 was conceded, the plaintiff was not given any relief insofar as item No.10. Thus, the plaintiffs and first defendant were given ½ share in item No. 1 of the suit properties. Since the claim for partition in respect of item No.10 was conceded, the plaintiff was not given any relief insofar as item No.10. Thus, the plaintiffs and first defendant were given ½ share in item No. 1 of the suit properties. Thus, preliminary decree was passed granting ½ share each in favour of the first plaintiff and first defendant in respect of item No.1 and ¼ share each to the plaintiffs and first defendant in respect of items 2 and 3 of the suit properties and each 5/12 share in items 5 to 9 of the suit properties to the first plaintiff and the first defendant and 1/12th share each to the second plaintiff and third defendant. The suit is also dismissed as against item 4 and item No.10. Even though Plot No.73 is held to be the property of Dr. Jayaraman, no share is given to the third defendant. 14. Aggrieved by the preliminary decree for partition, the appellants, who are the defendants 2 and 3 in the suit, have preferred the above appeal. 15. Though the appellants have raised several grounds challenging the findings regarding all the items in the suit schedule and regarding the character of the document Ex.A3 and its truth and validity, the learned Senior Counsel appearing for the appellants submitted that he has not challenged any of the findings of the trial Court except the conclusion that the suit is maintainable, without seeking a relief of recovery of possession by paying ad valorem court fee. 16. The learned Senior Counsel appearing for the appellants submitted that the suit first item is not claimed to be a property in enjoyment of either the first plaintiff or the first defendant. The fact that the defendants 2 and 3 are residing in the suit first item is admitted even in the plaint. When the suit first item is claimed on the basis of the Will whereby suit first item is exclusively given to the first plaintiff and first defendant who are not in enjoyment it was argued by the learned Senior Counsel that the suit for partition cannot be sustained. Though the third defendant is recognised as the son of Dr. Jayaraman, through his second wife, for granting equal share to the third defendant in respect of the self-acquired properties of Dr. Though the third defendant is recognised as the son of Dr. Jayaraman, through his second wife, for granting equal share to the third defendant in respect of the self-acquired properties of Dr. Jayaraman, the failure to give any share in one of the plots, namely, Plot No.73 is not challenged before this Court by the learned Senor Counsel for the appellants. The learned Senior Counsel for the appellants submitted that the trial Court should have given 1/4th share to the first defendant in respect of items 5 to 9 as it was granted in respect of other items which are held to be self-acquired properties of Dr. Jayaraman. Since the Hindu Succession (Amendment) Act, 2005, came after the death of Dr. Jayaraman and the succession opens immediately upon the death of Dr. Jayaraman, a specific ground was raised in the appeal memorandum that the third defendant is entitled to 1/4th share in items 5 to 9. 17. In order to appreciate the submission of the learned Senior Counsel for the appellants as regards the maintainability of the suit for partition in respect of first item of suit property, the following facts are to be noted: (a) The suit first item was purchased by Dr. Jayaraman by a registered sale deed dated 22.04.1981 and it was the property in which he put up his own clinic under the name and style of “Krithika Nursing Home” and practising medicine successfully till his death. (b) Defendants 2 and 3 are residing only in the residential portion of the building which was in upstairs. (c) After the death of Dr. Jayaraman though it is stated in the written statement that the suit first item is in possession of the third defendant, the right of plaintiffs to claim a share in the property was not disputed. In other words, the defendants have not claimed any exclusive ownership over the suit first item. The third defendant's claim is that he is also entitled to ¼ share. 18. It is in the above background, the plea regarding the maintainability of the suit has to be considered. The case of defendants 2 and 3 is that they were living with Dr. Jayaraman in the residential portion of the clinic at first floor along with Dr. Jayaraman. 18. It is in the above background, the plea regarding the maintainability of the suit has to be considered. The case of defendants 2 and 3 is that they were living with Dr. Jayaraman in the residential portion of the clinic at first floor along with Dr. Jayaraman. D.W.1, namely, the second defendant even in her chief examination stated that her son, the third defendant, is entitled to ¼ share in all the suit properties. After the demise of Dr. Jayaraman, no doubt it is true that the appellants alone are in enjoyment of the entire property. However, having regard to their claim that the third defendant is entitled only to 1/4th share, their exclusive possession pleaded by them cannot be taken as a plea of a stranger claiming exclusive right over the entire property but as a joint owner. Though the property is settled in favour of first plaintiff and first defendant under the Will Ex.A3, the possession and enjoyment of the first item of property by the third defendant cannot be taken as one by a person who is entitled to be in possession as an exclusive owner. It was only because Dr. Jayaraman died, suddenly in a road accident, the property is in the enjoyment of third defendant as a person living along with Dr. Jayaraman during his life time and not as a person having independent title. Apart from the right of an illegitimate son, who is also entitled to have a share in the property of his father, the third defendant does not claim any other right. When the suit was filed in 2004, the third defendant was still a minor and the possession of appellants, in these circumstances, can only be treated as permissive. The right of plaintiff as a co-owner entitled to seek partition was never disputed by the third defendant. In such circumstances, the plea of appellants that the suit itself is not maintainable without asking for recovery of possession has no merits. 19. The learned Senior Counsel appearing for the appellants made an attempt to establish that the document Ex.A3 is not a Will but a settlement deed. A reading of the Will clearly discloses the fact that Dr. Jayaraman wanted the document to come into effect only after his life time. His intention was clear that the legatees under the Will do not get any right during his life time. A reading of the Will clearly discloses the fact that Dr. Jayaraman wanted the document to come into effect only after his life time. His intention was clear that the legatees under the Will do not get any right during his life time. It is not a case where there was mere postponement of enjoyment. There is no clause which confers any right in praesenti in favour of the legatees under the Will. Therefore, the submission of the learned Senior Counsel for the appellants has no merits. 20. It is true that the document Ex.A3 is a described as a settlement deed. It has been repeatedly held by this Court and the Hon'ble Supreme Court that the form or nomenclature of the instrument is not conclusive and that the Court is required to look into the substance of the document when an issue arises as to the character of the document whether it is a Will or a settlement deed or gift. In the case of P.K. Mohan Ram v. B.N. Ananthachary and others reported in AIR 2010 SC 1725 the Hon'ble Supreme Court has held in paragraph 13 as follows: “13. Having noticed the distinction between vested interest and contingent interest, we shall now consider whether Ex.A-2 was a Settlement Deed or a Will. Although, no strait-jacket formula has been evolved for construction of such instruments, the consistent view of this Court and various High Courts is that while interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the life time of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the Court has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject by the settlor/executant, the intention appearing both by the expressed language employed in the instrument and by necessary implication and the prohibition, if any, contained against revocation thereof. It has also been held that form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof.” 21. It has also been held that form or nomenclature of the instrument is not conclusive and the Court is required to look into the substance thereof.” 21. A Division Bench of this Court in the case of Arthur Mary Ammal v. Aruldoss Pillai (deceased by L.Rs.) and others reported in AIR 2004 Mad 57 has considered several judgments of the Hon'ble Supreme Court and this Court and approved the view that unless there is a disposition in praesenti, though a document is styled as settlement deed and registered as such, when the intention of the testator is very clear that the property can be enjoyed by the legatees only after the life time of testator, it can be termed only as a Will. 22. The findings of the trial Court that Ex.A3 is only a Will and not a settlement and that the due execution, attestation and validity of Ex.A3 is proved in accordance with law, has not been seriously argued before this Court. Hence, this Court has no hesitation to confirm the findings of the trial Court that the Will under Ex.A3 comes into effect only after the death of Dr. Jayaraman and that it has been validly proved as a genuine and valid Will of Dr. Jayaraman. With regard to the character of properties, namely, the three plots referred in item No.4 of suit schedule, as it has been held by the trial Court, except plot No. 73, other two plots, namely, plot Nos.71 and 72 are the exclusive properties of the second plaintiff and they are not available for partition. As pointed out earlier, items 5 to 9 of the suit properties are allotted to Dr. Jayaraman in a family partition and it has been held by the trial Court that they are his ancestral properties. After the death of Dr. Jayaraman in the year 2002, his two daughters are entitled to equal share as that of Dr. Jayaraman and as a result, the plaintiffs and first defendant are entitled to 5/12 share and the first wife of Dr. Jayaraman, namely, the second plaintiff and third defendant, the illegitimate son of Dr. Jayaraman are entitled to 1/12 share. This is by virtue of the State Amendment to the Hindu Succession Act, 1956. Jayaraman and as a result, the plaintiffs and first defendant are entitled to 5/12 share and the first wife of Dr. Jayaraman, namely, the second plaintiff and third defendant, the illegitimate son of Dr. Jayaraman are entitled to 1/12 share. This is by virtue of the State Amendment to the Hindu Succession Act, 1956. Having regard to the specific findings of the trial Court and the arguments of the learned Senior Counsel appearing for the appellants, this Court does not find any legal infirmity in the judgment and decree of the trial court, except plot No.73 described as part of item No.4. The conclusion of the trial Court is not reflected in the operative portion of the judgment. Hence, the judgment and decree of the trial Court is required to be modified by holding that the plaintiffs and defendants 1 and 3 are entitled to ¼ share in plot No.73 described as part of item No.4 of suit schedule. Regarding other aspects, the findings of the trial Court are supported by reasons and evidence let in by both the parties. As a result, this appeal is partly allowed. The plaintiffs and defendants 1 and 3 are entitled to equal ¼ share in Plot No.73. Hence, this judgment and decree of the trial Court is modified insofar as the suit item No.4. While the judgment and decree of trial Court is upheld in respect of Plot No.71 and 72 in suit item No.4, it is concluded that the plaintiffs and defendants are entitled to ¼ share each in respect of plot No.73 which is held to be the absolute property of Dr. Jayaraman. Hence, subject to the modification pointed out above, the judgment and decree of the trial Court is affirmed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.