1. This Second appeal has been filed by the plaintiffs in 0. S. No. 1906 of 1973 in the court of the District Munsiff. Vridbachalam the suit properties belonged to one Ramaswami Reddiar. His first wife died about thirty years before suit leaving her only daughter,, Andal, who is married to one Narayanaswami Reddiar. The said Ramaswami Reddiar married one Jagadambal about 27 years prior to the suit. Jagadambal died on 6th April, 1968. She had two children but both of them predeceased her. Ramaswami Reddiar himself died on 20th September, 1973. Ramaswami Reddiar executed a settlement deed on 27th January, 1966 marked as Ex. A. 1 under which there is a description of the properties in three schedules. It would be necessary to go into the terms of the settlement deed later. But. according to the plaintiffs. the said Ramaswarni Reddiar had handed ever possession of the properties settled there under to Jagadambal's brother and sister. On 13th August. 1968, there is what purports to be a revocation deed of the said settlement by the same Ramaswami Reddiar. The plaintiff claimed that the said revocation deed was ineffective and void, as there was no power to revoke the earlier settlement, Ex. A. 1. The plaintiff's case was that the said Ramaswami Reddiar, married the first defendant in March, 1973, when he was more than 69 years of age and had brought about Ex. B 5 under the undue influence of the first defendant. The plaintiffs, therefore, filed the suit for declaration and for restraining defendants 1 and 2 from taking possession of the properties. The second defendant had in his favour what purports to be a sale deed dated 7th August, 1972, marked as Ex. B. 4.
2. The first defendant's case was that the document Ex. A. I was only a will and that it could be revoked at any time and that the subsequent transactions are all valid. The second defendant adopted the same stand.
3. The trial court went into the question of the nature of the document and came to the conclusion that Ex. A. 1, the original of which has been marked as Ex. B. 1, was a settlement and not a will. He, therefore, held that the plaintiffs were entitled to the relief asked for.
4. The first defendant filed an appeal and the learned Subordinate Judge of Chidambaram held that Ex. B. I was a will and not a settlement, that it was revoked by Ex. B 5 and that. therefore, the plaintiffs were not entitled to the reliefs asked for. -The plaintiffs, who have lost in the court below, have con forward with the present second appeal The said second appeal has been admitted on the following substantial question of law -
'Whether Ex. A. I deed or a will?'
Ex. B 1 the original. of which registration copy is Ex. A. I is on a stamp paper, the value of the document has been given as Rs. 10,000. It sets out the relationship of the three persons, on% the wife, the other her brother and the third her sister and also mentions that his only daughter has already married. It is stated that he had desired that the properties should be given to the, three individuals, on account of his love and affection to them, and that he had executed the document accordingly. The properties were to be taken by the three individuals after his lifetime. The properties are described M' the Schedules A, B and C and given to the respective persons. The relevant part of the document runs as follows-
(Translation of Tamil Portion)
'After my lifetime they should enjoy their respective share of the properties with full rights of alienation such as sale etc. Till my lifetime you should not in any manner alienate the under mentioned properties. Excepting to left and enjoy the income from under mentioned have any right do not cancel this settlement under circumstances., If it is done, it is valid. To this effect I am executing settlement deed. Patta should be in name. After my lifetime I agree to is a settlement the properties. I too do not to alienate the same. I any not this MY the respective parties getting transfer of the patta of the respective portions of the properties in - their respective names.'
Thereafter follow the schedules, The execution of this document cannot be open to dispute, as the document is duly registered. In fact, Ramaswami Ruddier- thought it necessary to cancel this deed by Ex. B. 5. If it was not executed by him, there was no need for its revocation under Ex. B. 5. On these facts. the short question is whether Ex. B. 1 has to be construed as a will settlement.
5. This problem has engaged the attention of the courts on. a number of occasions. There are very early decisions starting from Ishri Singh (Thakur) v. Saldeo Singh (Thakur) (1884) ILR 10.r792. There are also decisions of this the earliest appears to be in Rajmmal v. Authiammal, (1909) ILR 33 ad 304. These decisions have been applied in later decisions. Though there is question of binding precedent with reference to the interpretation of the judgment, the decided cases furnished ,guidanance as to the principles to be applied in a matter of construction.
6. In Ignatia Brito v. T. P. Rego 64 M LJ 605: AIR 1933 Mad 492 in considering the question whether the particular document was to be taken as a will or as a deed of settlement, the following principles were enunciated
1. The primary test of whether any particular document is -a will or not is whether or not it is revocable. If it is irrevocable, then it cannot be a will
2. Another, test is whether a document confers an immediate right to the property; and ,
3. Even the reservation of a life estate by the settlement does not render the instrument the less a settlement.
7. 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 docu ment to be a will, he would hardly I have undergone this extra expenditure.
8. In some of these cases a caution has been administered 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.
9. In Commissioner of Gift-tax, Madras v. C. Thiruvenkata Mudaliar : 107ITR661(Mad) to which I was a party, Ismail, J. as he then was, brought out the features to be considered in similar context. At p. 665 (of ITR): (at p. 1190 of Tax LR) it was observed as follows:
'In the case of a will. the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand, in the case of a gift, the provision becomes operative immediately and a 'transfer in praesenti is intended and comes into effect From the very nature of the case. a will is revocable because no interest is intended to Dass during the 1981 Mad./23 XIT
lifetime of the owner. of the property, and, therefore, even if a will contains a clause that it is irrevocable, the law makes it revocable. Similarly, in the case of a gift, because it comes into operation immediately, even if it contains a clause that the settler or the donor can revoke it, still it will remain irrevocable under the law because the done obtains his interest in the property on the expectation of the document Itself. Consequently, whether a particular document contains a provision as to whether it is revocable or- irrevocable is not decisive of the question whether it is a will or a gift. Equally, the caprtion or the nomenclature given by the parties to the transaction- is again not decisive of the question as to whether -it is a will or a gift. If a particular document provides for immediate transfer of the interest from the original owner to somebody else, notwithstanding the fact that the parties called it a will, it will operate only as a gift. Similarly, it a document contains provisions which indisputably show that the disposition must come Into existence only on the death of the executants of the document, even if the parties call it a settlement it will be only a will. Therefore, the nomenclature given by the parties to the transaction in question is again not decisive. Similarly, a will need not necessarily be registered. But if the parties take the trouble of having it registered for certain purposes particularly with a view to avoid any dispute about the execution of the will. later, the fact of registration alone will not render the document a settlement if it, in other respects, is a will. so also with regard to a gift, since the law of registration requires a gift to be registered and on that account the, transaction -may become void if it is not registered, the want of registration itself will not show that the parties did not intend the transaction to be a settlement.'
Ultimately, the reliable test was stated to be whether the disposition made under the document transferred any interest in praesenti or intended to transfer interest in favour of the settlee only on the death of the settlor. In the later Bench decision rendered by Ramaprasada Rao, C. J. and Ratnam, J. in Ramaswami Naidu v. Velappan : (1979)2MLJ88 , though there is no reference to the decision immediately cited above, the principles to be applied have been more or less similarly expressed. There is also a judgment of V.Ramaswami, J. in Ramaswami Naidu v. Gopalakrishna Naidu : AIR1978Mad54 , which, adopts the same line about the test to be applied.
10. In the present case the crucial circumstances brought to my notice on behalf of the respondents was that the transfer of patta was not to be effected during the lifetime of the settlor. I do not consider that this circumstance by itself is decisive of the point in favour of the respondents. In fact, this itself shows that there was an immediate vesting of the property in favour of the settlees, and that the settlor, for some reason or other, wanted the safeguard of the patta not being transferred during his lifetime. if there was no transfer in praesenti, there is no question of any prohibition 'about the patta being transferred. The condition regarding any non-alienability of the properties during the lifetime of the settlor also emphasises that he intended a present I settlement of the properties in favour of the respective individuals mentioned in Ex. B. 1. If - there was no present settlement of the properties, there was :no question of any ban on alienation by the settlor. Rightly or wrongly at the time when he executed the document the settlor intended to reserve for him Itself only a life estate and passed on the absolute estate in favour of the three individuals, subject to their not having any. power of alienation during his lifetime. The various circumstances attending this document viz., its being inscribed on stamp papers, its being registered, the intention to rest in presenting (sic) the several terms therein are all pointers to show that the settlement. I was intended as a present one. In these circumstances the plaintiffs were entitled to the reliefs asked for on the basis that Ex. B. 5 could not have revoked a valid settlement executed earlier ' Ex. B. 5 would not be valid, as Ramaswami Reddiar had no power to deal with the property after he executed Ex. B. 1.
11. The result is that the suit as decreed by the trial court is restored. The appeal is accordingly allowed. There will be no order as to costs.
12. Appeal allowed.