Ramaprasada Rao, C.J.
1. This Letters Patent Appeal comes up before us, after leave has been granted by Sethuraman, J., permitting an appeal to be filed against his judgment in S.A. No. 81 of 1973. In the second appeal the learned Judge also considered an application filed by the plaintiff to amend the plaint, whereunder the plaintiff sought for possession of the suit properties. We shall reserve consideration of this part of the Judgment of the learned Judge, relating to the allowance of the application for amendment of the plaint, at a later stage.
2. The relevant facts which led to this appeal may briefly be stated. Alagiriswami Chettiar was the original owner of the suit properties. Under a will, dated 20th August, 1929 (Exhibit B-8), he bequeathed the suit properties in 'favour of his daughter, Kuppammal. Kuppammal, after she became the owner of the properties made a will, Exhibit B-9, dated 2nd August, 1933, in favour of her mother, Meenakshi Animal. Meenakshi Animal executed Exhibit A-1, dated 14th October, 1946, the terms and tenor of which are the subject-matter of this appeal. Under Exhibit A-1, Meenakshi Ammal, while styling the instrument as a 'settlement deed', inter alia, provided that she should enjoy the properties during her lifetime and that thereafter the properties should devolve upon Velappan, the first plaintiff, in the suit for life. She also set out in detail the immediate provocation which prompted her to settle the properties on the first plaintiff, Velappan Kuppammal, the daughter of the settlor under Exhibit A-1 brought up one Muniammal, who was the daughter of Kuppammal's co-widow and, according to Meenakshi Ammal, Kuppammal had expressed a desire that she should benefit Velappan, who had married Muniammal. It was to propitiate Kuppammal, who had bequeathed the property to her that Meenakshi Ammal purported to settle the properties on Velappan, the first plaintiff in the suit. In the course of our judgment, we shall refer to the specific recitals in Exhibit A-1, to bring out its true import and intendment. It appears that Meenakshi Ammal, just two days, before her death, revoked the settlement, deed, Exhibit A-1, which was not revokable as per its terms, and executed a will, Exhibit B-13, on 26th April, 1970. Under Exhibit B-13 she bequeathed the suit properties to the first defendant. The first plaintiff would aver that by virtue of the recitals in Exhibit A-1, he is entitled to the suit properties, that he was performing the charities as per the recitals in the deed, along with Meenakshi Ammal, when she was alive, thereafter by himself, that he leased out the suit lands to the second-plaintiff and that because of interference by defendants 2 to 5, who alleged that they had secured a lease of the suit properties from the first defendant, the first plaintiff, impleading also the second plaintiff, has filed the present suit for a declaration of the first plaintiff's title to the suit properties and for an injunction restraining the defendants from interfering with their possession and enjoyment of the suit properties.
3. The first defendant resisted the action on the ground that Exhibit A-1 was only a sham and nominal document, that, in any event, the said instrument, though styled as a settlement, was only a will, and that as Meenakshi Ammal revoked the said will under Exhibit B-13 dated 26th April, 1970, the later will, Exhibit B-13, would prevail as the last will and testament of Meenakshi Ammal. Regarding the possession of defendants 2 to 5, the first defendant and the other defendants would contend that the suit properties had been leased out to the second defendant as well as the fifth defendant's husband, that the fifth defendant continued in possession in that capacity on the death of her husband, that defendants 3 and 4 were the pannayals of the second defendant, that therefore the suit for injunction was not maintainable and that, even so, the suit for declaration of title in favour of the first plaintiff was not sustainable.
4. The learned District Munsif, who tried the suit, held that Exhibit A-1 was a settlement deed and not a will and that therefore Meenakshi Ammal had no capacity or right to execute Exhibit B-13, as the settlement deed, Exhibit A-1, was valid and binding and was in force, and could not be superseded by a later will, as the settlement deed was expressed to be not revokable, besides being registered. The learned District Munsif also held that the provisions in Exhibit A-1 restricting the absolute and vested interest in favour of the plaintiff could not impinge upon the other provisions in the instrument under which the first plaintiff was given an absolute right in the properties and that therefore the restrictions contained in Exhibit A-1 interfering with the absolute proprietorship of the first plaintiff in the suit properties were void. He accordingly granted a decree for declaration of title, but dismissed the suit in so far as it related to the relief of injunction, on the ground that defendants 2 to 5 were in possession of the suit properties, and that the first plaintiff had not proved such possession on the date of the action.
5. The plaintiffs preferred an appeal to the Subordinate Judge of Madurai, in so far as they were denied the relief of injunction. The first defendant filed a subsidiary appeal questioning the judgment and decree of the learned District Munsif granting a decree for declaration of title in favour of the first plaintiff.
6. The learned Subordinate Judge posed the following points for consideration:
1. Whether the document, Exhibit A-1, is a settlement, deed or a will?
2. If Exhibit A-1 is construed as a settlement deed, whether it is valid in law?
3. Whether the will, Exhibit B-13, executed by Meenakshi Ammal in favour of the first defendant is true and valid?
4. Whether the plaintiffs, namely, the appellants in A.S. No. 129 of 1972, are entitled for the relief of permanent injunction?
5. Whether the defendants 2 to S are-entitled for costs as claimed by them in their cross-objections in A.S. No. 129 of 1972?
7. The learned Subordinate Judge came to the conclusion that Exhibit A-1 was a will, and, confirming the finding of the trial Court on the question of possession, set aside fee judgment of the trial Court.
8. In second appeal Sethuraman, J., set aside the judgment and decree of the appellate Judge and restored that of the trial. Court. He allowed the second appeal and while so doing granted leave to appeal against his judgment.
9. The main point for consideration is whether Exhibit A-1 is a will or a settlement. It is convenient at this stage to refer to the terms of Exhibit A-1. Meenakshi Ammal was aware of the difference between a will and settlement for she has referred to the two wills of Alagiriswami Chettiar and her daughter Kuppammal. She also referred to the pious wish of Kuppammal, that she (Meenakshi Ammal) should bring up her foster daughter, Muniammal, after her death. This was borne in mind by Meenakshi Ammal, when she executed Exhibit A-1. Indisputably Meenakshi Ammal became the owner of the suit properties under Exhibit B-9. But in order to propitiate the soul of her husband and the wishes of her daughter Kuppammal, she, during her life time, charged the suit properties with the performance of certain trusts, incorporating a Clause in Exhibit A-1 as to the amount to be spent towards such s dharma or trust, which she started to propitiate the souls of her husband and daughter. It is appropriate to quote from the document the following relevant portion from Exhibit A-1:
10. With the background specifically referred to in Exhibit A-1, touching upon the wishes of Kuppammal, who apparently wanted to provide for her foster daughter, Muniammal, and contemporaneously some spiritual benefit to her kith and kin Meenakshi Ammal executed Exhibit A-1. She would refer to the very important provision, apart from the performance of the charity, wherein she admits that the first plaintiff was also involved in the performance of the said charity and that he, along with her, was enjoying the benefits of temple honours as such trustee even during her lifetime. Such an involvement and right given to the first plaintiff, even during the lifetime of Meenakshi Ammal, coupled with the fact, that the suit properties were directed to vest in the first plaintiff and his heirs absolutely after the lifetime of Meenakshi Ammal, only with an obligation to perform the trust as delineated in Exhibit A-1, clearly gives out the unambiguous intention of Meenakshi Ammal to create a vested interest in Velagpan, though it was postponed for her life, so far as the actual enjoyment of the proprietory interest was concerned.
11. Another element which has to be looked into for the purpose of interpreting the instrument is that Meenakshi Ammal, by her own voluntary statement, made it irrevocable. It is in the conspectus of such recitals that the restriction on the power of alienation of the property by Velappan, after it is vested in him, has to be considered, and its legal effect examined.
12. Mr. Venkataswami, learned Counsel for the first defendant-appellant, laid stress upon the fact that, as the operative portion of the instrument appeared to take effect only after the lifetime of Meenakshi Ammal and as there was a prohibition in Exhibit A-1 itself against Velappan and his heirs alienating the properties, the instrument should be read as a will or an instrument which was primarily of a testamentary character and that, in the absence of a disposition in praesenti under the same, the conclusion of the learned Judge was incorrect.
13. On the other hand, Mr. V. Krishnan, learned Counsel for the respondent-plaintiffs, would urge that the later Clauses in the settlement deed, restricting the absolute vested right in praesenti in Velappan could not conceivably be operative, and that they would be void, since the later interdict in the matter of the alienation of the property, which had been absolutely settled on Velappan even during the lifetime of the settlor, the vested interest merely being postponed during the lifetime of the settlor, was inoperative ab initio.
14. While interpreting an instrument, particularly to find out whether it is of a testamentary charater, which will take effect after the lifetime of the executant or whether it is an instrument creating a vested interested in praesenti in 'favour of a person, the question has to be examined with care, after looking into the substance of the document, the treatment of the subject by the settlor, the intention appearing both expressly in the instrument and by necessary implication, and the avowed intention of the settlor not to revoke the settlement at any time, making it also public by registering the document, under the appropriate law of the country. In Sellayya Pillai v. Devaraya Pillai : AIR1972Mad309 Raghavan, J., after referring to a series of decisions to wit;: Thakur Ishri Singh v. Thakur Basdeo Singh I.L.R. (1884) Cal. 792 : 11 I.A. 135 Reference by the Collector and Superintendent of Stamps, Bombay I.L.R. (1896) 20 Bom. 210 Rajammal v. Authiammal : (1910)20MLJ519 Venkatachalam v. Govindasami : AIR1924Mad605 Gangaraju v. Somanna : AIR1927Mad197 Md. Abdul Ghani v. Fakhir Johan Begum (1922) 43 M.L J. 453 : I.L.R. (1922) All. 301: A.I.R. 1922 P.C. 281 Ignatio Britt v. Rego : AIR1933Mad492 and Veerabadrayya v. Seethamma : AIR1940Mad236 summarised the acceptable tests laid down in those cases, to determine whether a document is a will or a settlement. Some of the important tests laid down therein appear to be--
(i) the nomenclature used by the settlor in styling the document;
(ii) the express dispositive words used which touch upon the time when the vested interest is created;
(iii) reservation of the power of revocation in the instrument;
(iv) the effect of the reservation of a life estate in favour of the executant under the instrument;
(v) registration of the document under the appropriate law.
15. We may also add that it is the substance of the instrument and the generous impulses which prompted a person to execute the document, and not the form adopted, which should determine the real nature of the instrument.
16. It is convenient at this stage to consider 'the question whether the interdict created on the right of the first plaintiff to alienate the property is by itself sufficient to make Exhibit A-1 a testatmentary instrument. Section 19 of the Transfer of Property Act, reads as follows:
Section 19. Vested interest: Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
17. A vested interest in not defeated by the death of the transferee before he obtained possession.
Explanation:An intention that an interest shall not be vested in not to be inferred merely from a provision whereby the enjoyment hereof is postponed or whereby aprior interest in the same property is given or reserved to some other persons, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
In Thimmi Chetty y. Govindan alias Muniappa Gounder (1978) 91 L.W. 570 a Division Bench of this Court (to which one of us was a party) had to consider the question in a case where a vested interest was created under an instrument, whether the follow-up recitals, which militated against such vesting of absolute title, would belittle the force and legality of such entitlement. No doubt, in that case, the deed provided that on and from the date of the instrument the settlee should enjoy the property absolutely and that possession of one half of the property was also delivered over to the settlee since the settlee was already in possession of the other half. This Court expressed the view that the terms used in a deed should be interpreted in their strict and primary acceptation and should not be viewed with reference to the secondary motives referred to by the settlor in an instrument of settlement. The Bench also reiterated the well known principle of interpretation that, when the terms of the deed were unambiguous and clear, the intention of the executant need not be searched for and that the Courts were bound to accept the primary words deployed by the donor of the executant, without any further probe into the motive for the execution of such instruments.
18. In the instant case the first plaintiff was already in charge of the properties as trustee to perform the obligations created under it and continued them after the lifetime of Meenakshi Ammal. There are also positive words whereby it was made clear that the properties should be vested in Velappan and his heirs for them to enjoy the same absolutely. The words used are:
These two dispositive Clauses create an interest in praesenti. The question is whether the postponement of such proprietary rights already vested in Velappan and his heirs, to the lifetime of Meenakshi Ammal, would make any difference. The Explanation to Section 19 of the Transfer of Property Act, providing that a vested interest is not defeated by the death of the transferee before he obtains possession, makes the legislative intent clear that such a vested interest, merely for the reason that it becomes vested after the lifetime of the settlor, would not make it a settlement not being in praesenti. We are therefore unable to agree with the contention that the interest that Velappan, the first plaintiff, obtained under the instrument is not a vested one and that it could be defeated because it is postponed till after the lifetime of Meenakshi Ammal.
19. In the instant case the document itself is styled as a settlement deed. It has been registered. The right to enjoy the properties and secure the benefits and the temple honours as trustee under it have become a fait accompli even during the lifetime of Meenakshi Ammal. There is therefore no ambulation in the matter of the vesting of the interest in the first plaintiff by any declaration or use of words either express or implied. In a very early case, in Rajammal v. Authiammal : (1910)20MLJ519 a Division Bench of this Court had to deal with the following facts. There was a deed which purported to be an agreement in form. It was a registered one. It contained no Clause of revocation, but it declared that the executant's future debts would not be binding on the properties; and the deed went on to provide:. after my lifetime both of you (wife and daughter-in-law) shall not only get the right due to me in the said lands, but also divide and enjoy in equal shares the income.
The Division Bench (consisting of Sir Ralph Benson, Officiating Chief Justice and Krishna-swami Iyer, J.), held that the instrument was a settlement and not a will. While dealing with the question, the learned Judges were of the view that the use of the future tense was not a conclusive test, when the intention was otherwise clear, nor even the reservation of a life estate would render a settlement the less so. They also held that one of the invariable tests for determining the question whether an instrument is testamentary or not is to see whether it is revocable. They referred to the ancillary requirement to find out whether an instrument is a will or a settlement and expressed themselves to the effect that the form of the instrument and the fact that it was registered, though matters to be taken into account, are not in themselves conclusive as to determination of the character of the instrument.
20. The decision of the Division Bench of this Court in Venkatachalam Chetty v. Govindaswami Naicker : AIR1924Mad605 is different. There the document itself was styled as a deed of gift and it purported to dispose of a part of a house to which the donor was entitled in the following terms:
You (donee) shall yourself, after my lifetime, use and enjoy the two rooms.... I shall myself enjoy the rent in respect of the two rooms as long as I may be alive. You shall yourself use and enjoy after my lifetime that rent and the two rooms from son to grandson with power of sale etc. To this effect is the gift deed executed and given in respect of the aforesaid two rooms.
The learned Judges held that the document was in fact a will, as it was purely a declaration of the intention of the donor and as mere was no disposal of any immediate right of possession or any immediate interest in the property. This is distinguishable from the facts of our case, because an immediate interest in fee property was already given to Velappan, the first plaintiff, since he was acting as a co-trustee of the property, besides there being a recital that after the lifetime of Meenakshi Ammal the property should vest in him. We are therefore of the view that in the instant case there has been a vesting of the property on the death of the settlor and even during her lifetime an interest in praesenti has become vested in the first plaintiff as trustee for the performance of the obligation of the trust as set out in the instrument.
21. One other factor which has a great impact upon the facts and circumstances of this case is that the instrument is expressly made not revocable. The accepted definition of a will is that it is an instrument where-under a person makes a disposition of his property to take effect after his decease and which is, in its own nature, ambulatory and revocable during his life. So far as the other condition which is also thought of while interpreting an instrument for the purpose of deciding whether it is a will or a settlement, namely, whether it was intended not to take effect until after the death of the donor, we have already referred to Section 19 of the Transfer of Property Act. Though the disposition may be postponed till the lifetime of the settlor and though prima facie it may appear that the disposition consummates only after his death, yet, such postponement not being illegal, if in a given instrument such as Exhibit A-1, there is a present disposition and a vesting of right in praesenti and if such a conclusion can be arrived at reasonably by reading the instrument as a whole, then a mere ambulation of interest during the lifetime of the settlor would not make it a testamentary one. Above all, the instrument is a registered one. Taking all the circumstances into consideration, Sethuraman, J., was right when he said that Exhibit A-1 was a settlement and not a will. Undoubtedly Meenakshi Ammal desired that the document shall be effective from the date of the instrument. She was aware of the distinction between a will and a settlement. She caused the instrument to be registered. She would specifically impose a restriction on herself that she had no power of revocation of that instrument, and, as we have been already, even during the lifetime of Meenakshi Ammal, Velappan, the first plaintiff had secured a benefit under the instrument. For all these reasons we uphold the judgment of the learned Judge in so far as it relates to the relief of declaration sought by the first plaintiff as owner of the properties.
22. At the second appellate stage the learned Judge allowed the application of the first plaintiff, permitting him to seek for the relief of possession of the suit properties and for the consequential reliefs arising therefrom. While doing so the learned Judge observed:
I think it proper to accept the petitions here directing the amendment of the plaint and restoring the suit for disposal on the question of the relief for possession in the trial Court.
What the learned Judge apparently meant was that, as the plaint had been amended at the second appellate stage and as a fuller enquiry was necessary as to the quality and quantity of the right of possession to which the first plaintiff would be entitled, he directed the restoration of the suit 'for disposal on the question of the relief of possession. As we lave accepted the first plaintiff's title to the suit properties and as the relief of injunction was refused on the ground that the first plaintiff was not in possession of the suit properties, it appears to us that the suit has to be tried again by the trial Court on the entitlement for possession as claimed by the plaintiffs at the second appellate stage by seeking an amendment of the pleadings. As the defendants did not have an opportunity to meet this part of the claim for possession, it is necessary that a fresh trial has to be held. But as the suit is of the year 1971, we are not inclined to remand the suit for fresh trial on the same pleadings. The plaintiffs shall be granted refund of the court-fee, if any, paid by them for securing the relief. In order to render justice, the plaintiffs are given liberty to file an independent suit for securing possession from the defendants or those at present in possession of the properties, on the basis of the declaration of their title as per the judgment of this Court.
23. With these observations this Letter Patent Appeal is dismissed. But, in the circumstances, there will be no order as to costs.