1. The point to be decided is whether the document, Exhibit I, executed by John Joseph Brito on the 18th February, 1913, is to be taken as a will or as a deed of settlement. If it is a will then the appellants, who are his children, are his legal representatives, and their two-thirds share in his properties can be proceeded against in execution of decrees that have been obtained against him by the respondents. If, however, it is a deed of settlement, by which a present estate was conferred upon the appellants during their father's life-time, then the properties cannot so be proceeded against in execution.
2. The Trial Court held that Exhibit I was a deed of settlement, but on appeal the District Judge of South Kanara held that it was a will, and this finding has been upheld by Curgenven, J., on second appeal. In their view the main purpose for which the document was executed by J. J. Brito was to make arrangements for the disposal of his property after his death. It is pointed out that the wife is to get one-third of the property which is the share which she would receive in the case of an intestacy and that it is the wife who is to divide the properties among the children just as if she were an executrix; but most emphasis is laid on the fact that the document provides for the children's share to be divided, not only among the four children then living, but also among other children whom the wife might in the future bear to the executant; so that the share which each child was to have would not be ascertained till after the executant's death.
3. Exhibit I is styled as a deed of settlement and has been stamped and registered as such. A will need not be written on stamp, neither need it be registered, while its registration costs less than the registration of a deed of settlement. Had the executant intended the document to be a will, he would hardly have undergone this extra expenditure, besides which it has been laid down in Mahadeva Iyer v. Sankarasubramania Iyer : (1908)18MLJ450 and reiterated in Gangaraju v. Somanna : AIR1927Mad197 that where an instrument is a deed in form there must be something very special in the case to justify its being treated as testamentary in character. Now a primary test of whether any particular document is a will or not is whether or no it is revocable. If it is irrevocable, then it cannot be a will. This has been pointed out in Rajammal v. Authiamnial I.L.R. (1909) Mad. 304 : 20 M.L.J. 519 and Musstt. Sita Koer v. Munshi Deo Nath Sahay 8 C.W.N. 614 . Another test is that of whether a document confers an immediate right to property as has been pointed out by the Privy Council in Muhammad Abdul Ghani v. Fakhr Jahan Begam (1922) L.R. 49 IndAp 195 : I.L.R. 44 All. 301 : 43 M.L.J. 453 . Even the reservation of a life-estate by the settlement does not render the instrument the less a settlement as is remarked in Rajammal v. Authiammal I.L.R. (1909) Mad. 304 : 20 M.L.J. 519 already referred to. 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 it clear that he is retaining no right of ownership in these items as the document 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 this deed of settlement are alienated debts, etc., incurred on 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 that it was to be irrevocable. It is contended for the respondents that the provision as against alienations was only against alienations by way of security for debts and not as against other possible alienations,' but that is not the way in which it runs while the contention is against the whole tenor of the document. I take it that the proper view is, that, having disposed of his properties, the executant wished to show how absolute that disposition was by setting out that he could not even incur debts on their security. Curgenven, J., has felt a difficulty about this provision but has got over it by remarking 'It may be said that the perialty which the executant imposed upon himself was in the circumstances very unlikely to be enforced and was of little practical importance compared with the dispositions of a testamentary character'. I do not think that such a very clear provision can be brushed aside so lightly. Reference has been made by the learned advocate for the respondents to the Privy Council decision in Udai Raj Singh v. Bhagwan Bakhsh Singh (1910) L.R. 37 IndAp 46 : I.L.R. 32 All. 227 : 20 M.L.J. 458 in which it was held that a document which had been registered as a deed was in fact a 'will in spite of a clause in it that the executant had relinquished all rights and proprietorship. That clause was explained away on the ground that it was probably to guard against the interference of certain relatives with whom, it was said, he had a blood feud. In like manner it is suggested that the provision against alienation in Exhibit I was meant merely to protect the property against creditors but it is not shown that this suggestion has any basis. I find it clear that the document not only makes an immediate disposition of the executant's properties but also that it was by its terms irrevocable.
4. Thus Exhibit I satisfies the main tests by which it can be seen whether any document is a will or a document of some other character. On the other hand the point of its making provision for children that may be born in future is not one of such importance by way of a test. It is conceded that provision for unborn children can be made in a deed of settlement and there was such a provision in the document which was found in Musstt. Sita Koer v. Munshi Deo Nath Sahay 8 C.W.N. 614 to be not a will but a deed of settlement. The fact that the wife has to perform functions such as might be performed by an executor under a will is not, by itself, enough to make the document a will. It is pointed out that recitals in Exhibit I show that the executant apprehended that he might not live much longer, but this apprehension would be as good a reason for his wishing to make an immediate disposition of his property as for his wishing to dispose of it by will.
5. No doubt a document may be a will even if it is not so styled. Decisions have been quoted as to this: Lakshmi v. Subramanya I.L.R. (1889) Mad. 490 Udai Raj Singh v. Bhagwan Bakhsh Singh (1910) L.R. 37 IndAp 46 : I.L.R. 32 All. 227 : 20 M.L.J. 458 and Fielding v. Walshaw (1879) 27 W.R. 492. In the last mentioned case the executant had expressly told the writer of the document that he had no intention of making a will. In none of these cases does there appear to have been any provision as to irrevocability. Nor was there any such provision in the document in question in the Privy Council case, to which Curgenven, J., has referred, in Thakur Ishri Singh v. Thakur Baldeo Singh . The reason why that document was held to be a will was that it was registered as a will, though styled as a 'tamilknama' (deed of assignment) and stamped as such albeit not correctly; that it provided for the contingency of a child being born when as yet there was no child; and that it did not purport to give anybody any possessory or present interest until the death of the donor. The circumstances of that case are very different from those of the case now under notice. In the same decision it is remarked that, of course, if the document affects the property in the lifetime of the executant, it cannot have a testamentary character.
6. In my opinion Exhibit I is not a will but a deed of settlement. The appeals must, therefore, be allowed with costs to the appellants on this appeal and on the first and second appeals and the orders of the Trial Court must be restored with the modification that execution may proceed against the one-third share of the properties allotted to the wife who was a party to the decree.
Horace Owen Compton Beasley, Kt., C.J.
7. I agree.