S. Mohan, J.
1. The legal representative of the 2nd defendant is the appellant in the Second Appeal.
2. The short facts are as follows: One Ammani Samanra Goundar had a concubine by name Nachiammal who was the sister of one Gopala Goundar. Samanna Goundar had a son by name Dharmalingam, the husband of the plaintiff and they had three sons, defendants 3, 4 and 5. Gopala Goundar had two sons, the defendants 1 and 2. The suit property is a wet land of an extent of 791/2 cents out of 1-59 acres comprised in S.N. 94 in Ambalur village. According to the plaintiff, it belonged to Samanna Goundar and he settled the same on 5th April, 1940 in favour of the plaintiff and the defendants 3 to 5 with a direction to get possession after the lifetime of Nachiammal. The said Nachiammal died about 3 months before the filing of the suit and Gopala Goundar her brother also died and defendants 1 and 2 are in possession. Hence the suit for declaration of joint title of plaintiff and defendants 3 to 5 and also for recovery of possession.
3. In the written statement of the 1st defendant it was contended that he was not a necessary party since it is the 2nd defendant alone who was in possession and enjoyment.
4. The 2nd defendant contested the suit stating that the suit property was purchased by Nachiammal under Exhibit B-1 dated 21st February, 1929 and on 16th April, 1929 she executed under Exhibit A-2 a deed of gift wherein the property was bequeathed in favour of Samanna Goundar. Under Exhibit B-2 dated 26th November, 1942 Nachiammal ignoring the earlier deed sold the property in favour of Gopala Goundar who had settled the same under Exhibit B-3 dated 22nd August, 1949 in favour of the 2nd defendant. By reason of this transaction the 2nd defendant's title would be unimpeachable, and the plaintiff's claim is untenable.
5. The suit was originally decreed by the trial Court and was confirmed in appeal. In S.A. No. 1922 of 1964 when the matter came to this Court, by a Judgment dated 18th November, 1968, the matter was remanded for the limited purpose of deciding as to whether Exhibit A-2 dated 16th April, 1929 was a will or settlement, and the other findings were confirmed. After remand, the matter was taken up by the learned Additional District Munsif, Tiruppattur and he came to the conclusion that Exhibit B-2 was a settlement and not a will. On appeal the learned Subordinate Judge confirmed the findings and hence the present second appeal.
6. The Learned Counsel for the appellants submitted before me that the findings of the Court below relating to the construction of document Exhibit A-2 are incorrect and in support of the same he relies on Thakur Ishri Singh v. Thakur Baldeo Singh I.L.R. (1884) Cal. 792 Veerabhadrayya v. Seethamma and Ors. : AIR1940Mad236 , and Sellayya Pillai v. Devaraya Pillai : AIR1972Mad309 . The arguments of the appellants are met by the Learned Counsel for the respondent stating that no exception could be taken to the findings of the Court below relating to the construction of Exhibit A-2 and what was conferred upon Samanna Goundar was with immediate effect with a residue of life interest in favour of the settlor, viz., Nachiammal.
7. Before I advert to the various decisions cited by the Learned Counsel for the appellant, it would be useful to extract, Exhibit A-2 in full:
By a reading of this entire document three things emerge:
(1) the desire on the part of the executant to give the property in favour of her husband;
(2) an undertaking that the property would not be encumbered nor alienated during the lifetime of the executant and that she would enjoy only the income therefrom; and (3) after the lifetime of the executant possession is to be taker, by the legatee and to be enjoyed from generation to generation absolutely.
8. Mr. Gopal Ratnam, Learned Counsel for the appellant would submit that the fact that the executant was desirous of giving the property itself is suggestive that she did not want to give any immediate interest. The undertaking not to create encumbrance or alienate during the lifetime of the executant is of no consequence and such an undertaking cannot be enforced. The rule of absolute enjoyment including obtaining possession would be applicable only after the lifetime of the executant. All these would clearly go to prove that there was no immediate interest conferred upon the husband Samanna Goundar, notwithstanding Exhibit A-2 being styled as the gift deed (SIC). That being the position, it would amount only to a will, and therefore the claim Of the plaintiff has to be upheld. The above submission ignores, in my view, the vital clause in Exhibit A-2 whereunder not only the executant undertakes not to create encumbrance nor alienate the property during her lifetime, but it is categorically stated she would merely enjoy only the income from the suit property. This would abundantly go to show that the executant has reserved a life estate in her and that is made clear by the later clause wherein it is said that after the lifetime of the executant, possession was to be taken and to be enjoyed absolutely. So it is not correct to contend that no immediate interest is conferred upon the transferee. That the executant is desirous of giving the property is not conclusive. Moreover, the document itself is styled as gift deed. Of course that by itself cannot conclude the rights either way if the recitals are contrary to the nomenclature. But as seen above, the recitals are consonant with the description of the deed.
9. Thakur Ishri Singh v. Thakur Baldeo Singh I.L.R. (1884) Cal. 792, is a case where in the deed runs as follows:
I, Maharaj Singh, am the taluqdar of Kanhmow & C., in the Sitapur District. ' Whereas I hold and enjoy possession of any estate situate in the Sitapur District, of which the Government revenue is about Rs. 16,000. I while in the enjoyment of sound health and mind, without reluctance or coercion, assign (tamlik) the said property to my younger brother, Baldeo Singh, subject to the following conditions:
(1) That during my lifetime, I shall hold and enjoy possession of it; and that after my death my aforesaid brother, Baldeo Singh, shall hold and enjoy the same like myself;
(2) That whereas I am childless, should a legitimate and self-begotten child be born to me, it shall become the owner of one half of the estate, and Baldeo Singh shall be the owner of the other half;
(3) That after my death, Baldeo Singh shall be bound, like myself, to maintain and take care of my wife. Hence I have written out these few words in the way of a deed of assignment (tamliknama) so that it may witness in future. Dated 28th June, 1871.
10. In holding that this document is a will it was held thus:
The reasons for considering it to be a will are these: It answers the definition of a will which is contained in Section 2 of Act I of 1859. It was registered as a will; and though that may have been done at the instance of the Registrar, it certainly was done with the full knowledge and assent of Maharaj Singh. It provides for contingencies which are not ascertainable or may not be ascertained, until the death of the testator, for instance, the contingency of his having a child, which he had not at the time of the will, and the contingency of his leaving a widow surviving him. It does not purport to give to anybody any possessory or present interest until the death of Maharaj, the donor. And it makes a gift to the children of Maharaj, which, if it be a deed of transfer operating at once, cannot take effect, because no child was in existence; whereas, if it is a will, the gift may perfectly well take effect. All those are very strong indicia of a testamentary character; and the question is whether they are overborne by evidence tending in the opposite direction.
11. But the position here is different. No contingency whatsoever arises. As is clear from the above passage the document does not purport to give any possessory or present interest until the death of Maharaj. Hence, this decision has no application.
12. The next case on which reliance is placed is Veerabhadrayya v. Seethamma (1939) M.W.N. 1073 : A.I.R. 1940 Mad. The operative portion of Exhibit A in that case was to the following effect:
This and the inam land of the extent of 2 acres 89 cents bearing Survey No. 136 aforesaid in the village of Kovvur and the other jeroyati lands and building relating to this village and the inam lands relating to the other villages shall be enjoyed by me and my wife till our death; and after our death, you shall take possession of the lands, etc., of the above particulars and enjoy the same from son to grandson and so on in succession with powers of alienation such as gift, sale, paying the quit rent, etc., payable to Government. Besides, the debts already contracted on the said lands, I shall not incur any further debts, etc., hereafter.
It was held by Venkataramana Rao, J., 'It is clear from the language that the disposition in favour of Chinna Subbamma is to operate only in the future, that is, after the death of Veeravadhanulu and his wife. But it is contended that Veeravadhanulu reserved a life interest in his favour and after his death in favour of his wife and the disposition in favour of Chinna Subbamma is a vested remainder. But there is no direct gift in favour of his wife except a statement that it shall be enjoyed by her till her death. If the expression 'shall be enjoyed by me and my wife' were to be taken literally, it might mean that they were intended to take the property together, that is a joint life interest must be said to have been conferred on them both; but it is not contended that such an interest was conferred.
13. It may also be of interest to note that the learned judge referred to Thakur Ishri Singh v. Thakur Baldeo Singh I.L.R. (1884) Cal. 792, in coming to the conclusion that there was no divestiture of ownership or a transfer of ownership in praesenti in favour of any body and the only operative portion of the clause is that relating to Chinna Subbamma which is intended to take effect only after his death and is testamentary in its character. Thus this decision is not of any help to the appellant.
14. Sellayya Pillai v. Devaraya Pillai : AIR1972Mad309 , is a decision wherein Raghavan, J., laid down the following tests for determining whether the document is a will or settlement:
(1) the name by which the document is styled; (ii) the registration of the document; (iii) reservation of life estate in favour of the executant: (iv) express words as to when possession passed; (v) user of the present or future tense in the document; and (vi) reservation of the power of revocation.
15. In laying down these tests the learned Judge also referred to the two cases cited above, viz., Thakur Ishri Singh v. Thakur Baldeo Singh I.L.R. (1884) Cal. 792 and Veerabhadrayya v. Seethamma and Ors. : AIR1940Mad236 and applying those tests the learned Judge ultimately came to the conclusion that the document in question was a will, That decision does not in any way support the contention of the appellant.
16. One other judgment that may be usefully referred to in this connection is Ignatia Brito v. Rego : AIR1933Mad492 wherein a Division Bench categorically held that even the reservation of a life-estate by the settlement does not render the instrument any the less a settlement. In that case it was further held at page 652:
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 the deed of settlement are alienated or 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'.
17. This decision lends great support to the contention of the Learned Counsel for the respondent. It is unnecessary for me to multiply the authorities because in each case it is the recitals of the document that have to be carefully analysed to find out the true nature.
18. The result is, I am unable to see any error in the judgment of the Courts below and the second appeal will stand dismissed with costs. No leave.