JUDGMENT : Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code, 1908, against the judgment and decree dated 27.09.2002 made in O.S.No.46 of 2000 on the file of the Court of the Additional District Judge, Karaikal. 1. This appeal filed by the plaintiff, who lost her suit for declaration of title in respect of the suit properties mentioned in Schedule A and B of the plaint and for mandatory injunction directing defendants 1 to 3 to surrender vacant possession of the A schedule property after removing the superstructure and also to declare the sale deeds dated 07.07.1997 and 08.01.1998 as null and void. 2. The brief facts of the case as found in the plaint is that as part of suit schedule property was originally owned by one Nagammal, which she donated to her daughter Kamatchi Ammal under a deed of donation dated 01.04.1931 and the remaining portion of the suit property was purchased by Kamatchi Ammal under deed dated 07.02.1936. The said Kamatchi Ammal had no issues. On 16.11.1970 she executed an Inam Settlement in favour Ramamirthathammal, who is the wife of Kamatchi Ammal's cousin Gnanasundaram Pillai. This deed of Inam Settlement was later cancelled by Kamatchi Ammal by deed dated 22.12.1971 captioned as “Inam Settlement Cancellation Deed” and also by another deed dated 16.01.1972 capationed as “Will Cancellation Deed”. Thereafter, Kamatchi Ammal sold the suit property to the plaintiff on 10.04.1972. After purchase of the suit property from Kamatchi Ammal, the patta of the property was transferred in the name of the plaintiff and she is in possession and enjoyment of the same. Due to close relationship, the plaintiff allowed her vendor Kamatchi Ammal, continue to reside in the house mentioned in the schedule. This fact is reiterated by Kamatchi Ammal in her Will dated 14.04.1978 while disposing her movables and instruction regarding her last rites. Defendants 1 to 3 misusing the permissive occupation had changed the patta in their names. Also they have sold a portion of the vacant land to an extent of 2 acres 41 cani or 18-1/64 kuzhies to the fourth defendant vide registered sale deed dated 07.07.1997. The fourth defendant has sold the said portion of the property to the fifth defendant and sixth defendant vide, sale deed dated 08.01.1998. Also they have sold a portion of the vacant land to an extent of 2 acres 41 cani or 18-1/64 kuzhies to the fourth defendant vide registered sale deed dated 07.07.1997. The fourth defendant has sold the said portion of the property to the fifth defendant and sixth defendant vide, sale deed dated 08.01.1998. Those sale deeds are void documents, since defendants 1 to 3 had no right or title over the suit property. The plaintiff not being a party to the document, those two sale deeds are not binding on her. Hence, she prays for declaration of title and to declare those two documents dated 07.07.1997 and 08.01.1998 as null and void. 3. Defendants 1 to 3, in their written statement contended that, the Inam Settlement Deed of Kamatchi Ammal dated 16.11.1970 is a valid registered document and irrevocable. Kamatchi Ammal settled the property to Ramamirthathammal, wife of Gnanasundaram Pillai the cousin brother of Kamatchi Ammal. Due to love and affection, she gifted the property to Ramamirthathammal on condition to enjoy the property till her life, without right of disposing it and after her life, vesting absolutely with the defendants 2 and 3. In the deed, it has been specifically stated that Kamatchi Ammal was living along with Ramamirthathammal in the said property and the settlement was in praesenti. Therefore, the subsequent cancellation deeds dated 22.12.1971 and 16.01.1972 are void documents. The subsequent sale deed alleged to have been executed by Kamatchi Ammal in favour of the plaintiff dated 10.04.1972 is non est in law. These documents are not genuine documents. It is created by the plaintiff fraudulently to defeat the right of the defendants. Few other averments in the plaint as well as in the written statement are not relevant and necessary to decide the appeal. Hence, they are not extracted. 4. The trial Court framed the following issues: (1) Whether the settlement deed dated 16.11.1970 executed by Kamatchi Ammal can be revoked? (2) Whether the deed dated 16.11.1970 is the settlement deed or Will? (3) Whether the settlement cancellation deed dated 16.01.1972 is true and valid and whether it will bind the settlor? (4) Can settlement deed be cancelled unilaterally without leave of the Court? (5) Whether the plaintiff is residing in the suit property as a permissive occupant? (2) Whether the deed dated 16.11.1970 is the settlement deed or Will? (3) Whether the settlement cancellation deed dated 16.01.1972 is true and valid and whether it will bind the settlor? (4) Can settlement deed be cancelled unilaterally without leave of the Court? (5) Whether the plaintiff is residing in the suit property as a permissive occupant? (6) Whether the suit is barred by limitation and whether the defendants have perfected the title by adverse possession? (7) Whether the plaintiff is entitled for Mandatory Injunction against the defendants? (8) Whether the plaintiff is entitled for the relief sought? 5. Additional Issues: (1) Whether the sale deed dated 10.04.1972 in favour of the plaintiff is valid and binding? (2) Whether the relief against defendants 1 to 3 to hand over A schedule property and remove the superstructure in the B schedule property and handover the property to defendants is sustainable? 6. Before the trial Court, two witnesses were examined on behalf of the plaintiff and 26 documents were marked as Exs.A1 to A26. 1 witness was examined on behalf of the defendants and 12 documents were marked as Exs.B1 to B12. 7. The trial Court, after going through the recital found in the settlement deed and two cancellation deeds, held that the document dated 16.11.1970 is a settlement deed gifting immovable property in preasenti. So it cannot be revoked. As a consequence, the subsequent cancellation deeds and the sale deed in favour of the plaintiff are not valid. Therefore, dismissed the suit holding that the plaintiff is not entitled for any relief. 8. Learned Senior Counsel appearing for the appellants submitted that the Court below erred in appreciating the documents. Ex.A2-Settlement deed is not transfer in praesenti. The recital say it will come into force only after the death of the author Kamatchi Ammal. The possession of the property was retained by her. Therefore, she had every right to cancel the same and she had duly cancelled it through the registered document Ex.A3. She, on her own wish, sold this property to the plaintiff and in her Will-Ex.A8 she has referred about the disposition of her immovable property. When the intention of the author was not to settle the property in preasenti, but to take effect after her death, the said instrument is only a Will even if it is named as an irrevocable settlement deed. 9. When the intention of the author was not to settle the property in preasenti, but to take effect after her death, the said instrument is only a Will even if it is named as an irrevocable settlement deed. 9. In support of this argument, the learned Senior Counsel appearing for the appellants referred the following judgments: (i) P. Venkatachalam Chetty v. P.S. Govindaswami Naicker reported in AIR 1924 Madras 605 : (1924) 19 LW 434 (ii) Ramaswami Naidu and another v. Gopalakrishna naidu and others reported in (1977) 90 LW 430 (iii) Ponnuchami Servai v. Balasubramanian @ Suresh & Ors. reported in (1981) 94 LW 796 (iv) Poongavanam v. Perumal Pillai and another reported in (1997) 2 LW 234 (v) Rev.FR.M.S. Poulose v. Varghese & Ors. reported in 1995 Supp (2) SCC 294. 10. In alternate, he also contended that even if ExA2 is a settlement deed and Ex.A3 and Ex.A11 cancellation deeds and Ex.A4 Sale deed are void and invalid, the defendants cannot defend the suit, without seeking relief within the limitation period to cancel Ex.A3 and Ex.A11 cancellation deeds and Ex.A4 the sale deed. In support of his argument, he referred the judgment of this Court in Lakshmi Ammal (died) and another v. Mariammal and another in S.A.No.470 of 2005 dated 05.03.2020. 11. It was contended by the learned Senior Counsel appearing for the appellants that there is no material to show that respondents 1 to 3 were living along with Kamatchi Ammal in the suit property. While cancelling the earlier deed Ex.A2 through Ex.A3, serious accusation were made by Kamatchi Ammal against DW1. The evidence of PW-2-the scribe to the document has not been properly appreciated by the trial Court, which has led to vitiate the judgment. The reasons attributed by the trial Court for holding Ex.A2 as a settlement are incorrect and contrary to the intention of the executor and the recital contained in Ex.A2. The failure of the plaintiff to take immediate action to vacate the defendants from the suit property cannot be a ground to reject the claim, especially when the parties are close relatives. 12. Per contra, the learned counsel appearing for the respondents 1 to 3 would submit that Kamatchi Ammal with her full consent gifted the property to the 2nd and 3rd defendants reserving the life interest to the first defendant. 12. Per contra, the learned counsel appearing for the respondents 1 to 3 would submit that Kamatchi Ammal with her full consent gifted the property to the 2nd and 3rd defendants reserving the life interest to the first defendant. She made her intention clear that she will not revoke the settlement deed and she gifts the property out of love and affection. The subsequent cancellation of the settlement deed Ex.A2 not only impermissible under law but on facts, it was not done at free will of Kamatchi ammal. Therefore, the trial Court has rightly held that Ex.A2 is a settlement deed gifting the property in preasenti. Further, learned counsel appearing for the respondents 1 to 3 would submit that the explanation given by the plaintiff for not taking action for recovery of possession was not a plausible explanation and rightly rejected by the trial Court. 13. Point for consideration: Whether the recital found in Ex.A2- settlement deed reveals the intention of the settlor to gift the property in preasenti or not? 14. Before adverting to the other points, it is pertinent to note the sequence of the dates and events. On 01.04.1931, one Nagammal gifted certain properties to her daughter Kamatchi Ammal and Narayanasamy Pillai @ Gnanasundaram Pillai. Certain properties were given absolutely to Kamatchi Ammal and few other properties was given to her for life and after her life to Narayanasamy Pillai @ Gnanasundaram Pillai. The suit properties are the properties which Kamatchi ammal got through the deed dated 01.04.1931 marked as Ex.A1. 16.11.1970 Ex.A2 Kamatchi ammal executed deed document captioning it as Inam Settlement to Ramamirthathammal. The said document was cancelled by a registered deed dated 22.12.1971(Ex.A3) 16.02.1972 Ex.A11 Kamatchi ammal executed the document captioning cancellation of Will. In this case, the document was cancelled the earlier instrument dated 09.12.1970. 10.04.1972 Ex.A4 Sale deed executed by Kamatchi ammal in favour of Sulochana. 14.04.1978 Ex.A8 Kamatchi ammal executed a Will in respect of her movables and she appointed her brother's son Radhakrishnan to do her last rites and inherit her movables. 15. On 19.04.1982, the plaintiff issued a notice through her counsel to one Rengasamy the son in law of the first defendant claiming rent for the suit property stating that she purchased the property from Kamatchi Ammal on 10.04.1972. 15. On 19.04.1982, the plaintiff issued a notice through her counsel to one Rengasamy the son in law of the first defendant claiming rent for the suit property stating that she purchased the property from Kamatchi Ammal on 10.04.1972. Thereafter, the vendor entered into a tenancy agreement with her in respect of the suit property for a monthly rent of Rs.50/- but she has defaulted to pay the rent from 01.07.1975. Therefore, she has obtained a decree for eviction against Kamatchi ammal on 06.09.1976 under Section 10(2)(i) of Pondicherry Buildings Lease and Rent Control Act. Thereafter, Kamatchi ammal paid the entire arrears of rent and continued in possession of the property, till her death on 21.11.1978. In the notice, the said Rangasamy was called upon to pay the rental arrears or to face eviction. The said notice was replied through Advocate on 24.04.1982 (Ex.B10). After exchange of the notice, the suit for declaration and recovery of possession presented on 12.07.1999 and taken on file on 28.06.2000. 16. To find out whether the document is a Will or a Settlement, the fundamental and only reliable test is whether under the deed, interest is transferred in preasenti or the disposition is to take effect on the death of executant. If it is in preasenti, it is settlement. If transfer is to take after death of executant, it is a Will. Therefore, it is not only the nomenculture assigned to the document, but the content of the document and the intention of the executant is important to decide the character of the document. Therefore, the recital found in Ex.A2 has to be examined. Ex.A2-Inam Settlement Deed is extracted below: “Tamil” 17. The learned counsel appearing for the appellants referring the phrase that “after my lifetime, you should take the property and enjoy it without any encumbrance till your life and thereafter, it should devolve upon your daughter Anbazhagy and and Nagabushanam”. This is to the effect that the transfer will come into effect, only after the life time of the executant and therefore, it is only a Will. The executant also had clarified this in the subsequent document while cancelling the said will. Therefore, emphasised that since disposition is not in preasenti, Ex.A2 is not a settlement. Moreso, it has lost the value after the cancellation of the said document. 18. The executant also had clarified this in the subsequent document while cancelling the said will. Therefore, emphasised that since disposition is not in preasenti, Ex.A2 is not a settlement. Moreso, it has lost the value after the cancellation of the said document. 18. Per contra, the learned counsel appearing for the respondents would submit that the settlement deed Ex.A2 carry all the trappings of the settlement. The life interest vested to Ramamirthathammal not to be construed as postponing disposition. In fact, in the said document, it is clearly stated that Kamatchi ammal and Ramamirthathammal were living together in the same premises and Ramamirthathammal taking care of Kamatchi ammal. Being an issueless lady and having brought up Gnanasundaram Pillai, who is the husband of Ramamirthathammal, she has gifted this property, out of love and affection in preasenti and also expressed that the settlement deed is irrevocable. 19. Same document i.e. the settlement deed Ex.A2 has been cancelled twice by Kamatchi ammal first she has treated the dcoument as settlement deed and cancelled it on 22.12.1971 and got it registered as cancellation of settlement deed. Again, she has executed the other document with caption “cancellation of Will” with the very same effect. On reading of these two cancellation deeds, we find, the reason attributed for cancelling the settlement deed is due to the some unpleasant incident happened in the family of Kamatchi Ammal. 20. In view of this Court, the settlement deed which expressly indicates transfer in preasenti, cannot be cancelled unilaterally. In this case, the subsequent cancellations are done unilaterally. The registered settlement deed gifting a property in preasenti and accepted by the settlee cannot be revoked unilaterally as it is done in this case. Further more, from the evidence, it could be seen that under Ex.B9, the plaintiff has caused notice to evict. This notice is dated 19.04.1982 i.e after 10 years of the alleged purchase of the suit property. There is no piece of evidence to show that after alienation, Ramamirthathammal the occupant of the building, had attorned tenancy in favour of the plaintiff. Though there is some reference about rent control proceedings in the notice Ex.B9, those documents are not marked in this suit for appreciation. There is no piece of evidence to show that after alienation, Ramamirthathammal the occupant of the building, had attorned tenancy in favour of the plaintiff. Though there is some reference about rent control proceedings in the notice Ex.B9, those documents are not marked in this suit for appreciation. From the conduct of the persons both Kamatchi Ammal, Ramamirthathammal and her daugher on one side and the plaintiff on the other side, it can be safely concluded that the sale deed relied by the plaintiff was not given effect to and not acted upon. The unilateral cancellation of the settlement deed recognised by the Court when the settlement deed itself not executed out of free Will. In this case, it is not that Kamatchi ammal exeucted the settlement deed on 16.11.1970 without free consent. It is the subsequent events which according to the cancellation documents, made her to revoke it and try to find out a substituted meaning for the recital in the settlement deed. Even assuming the document Ex.A2 is a Will and duly cancelled subsequently and the property was purchased by the plaintiff under Ex.A4 on 10.04.1972, the inaction on the part of the plaintiff even after causing notice to evict in the year 1982, but delayed for another 8 years to file the present suit disentitled him to seek recovery of possession. The settled possession of the defendants 1 to 3 hostile to the plaintiff leads to irresistible conclusion that the appellants/plaintiffs have no valid cause of action for the relief sought for. Therefore, this appeal has to be dismissed. 21. In the result, this Appeal Suit is dismissed. No order as to costs. Consequently, connected Miscellaneous Petition is closed.