ORDER
1. The appellant in S.A.No.1778 of 1987 filed a suit in O.S.No.460 of 1984 on the file of the District Munsif Court, Udumalpet for declaration declaring his title to the suit property and for consequential permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the same. The 1st defendant Palaniammal is his
sister. The 2nd defendant is another sister of the plaintiff and the 3rd defendant is the husband of the 2nd defendant. The 1st defendant purchased the suit property in 1957 and by way of a registered settlement deed Ex.A2 dated 2.7.1958, the 1st defendant settled the suit property in favour of the plaintiff and gave possession. But, subsequently, the 3rd defendant, taking advantage of the misunderstanding between the plaintiff and the 1st defendant, ill-advised the 1st defendant who left the house of the plaintiff and started to live with defendants 2 and 3. Since the defendants started to give trouble on some imaginary rights over the suit property, the plaintiff has come forward with the above suit.
2. The 1st defendant filed a written statement stating that the suit property was never settled in favour of the plaintiff. The 1st defendant being the sister of the plaintiff intended to give the suit property to the plaintiff only after the 1st defendant’s life time. The 1st defendant never put the plaintiff in possession of the suit property and the 1st defendant alone was enjoying the suit property ever since the purchase. The 3rd defendant was cultivating the land as tenant pursuant to the lease deeds, Exs.B22 and B23 and so the plaintiff is not having any title to the suit property.
3. The 3rd defendant filed a separate written statement reiterating the defence taken by the 1st defendant. He has also stated that in 1972, he became a lessee pursuant to Exs.B22 and B23.
4. The trial court decreed the suit accepting the case of the plaintiff. So the 1st defendant filed appeal in A.S.No.81 of 1986 and the 3rd defendant filed another appeal in A.S.No.82 of 1986 on the file of the sub-court, Udumalpet. Though the lower appellate court has confirmed the finding of the trial court regarding the nature of the document holding that Ex.A2 is a settlement and not a will as alleged by the 1st defendant, the lower appellate court rejected the case of the plaintiff that he has been in possession of the suit property and thereby reversed the decree regarding injunction, and, ultimately, the lower appellate court allowed the appeals in part. So, the plaintiff filed S.A.No.1778 of 1987 and the 1st defendant filed in S.A.No.24 of 1989.
5. The 1st defendant died pending the second appeal. One Mrs.Jeevarathinam has been brought on record by an order passed in C.M.P.No.6890 of 1993, dated 22.6.93 as she claimed that she inherited the suit property of the said Palaniammal by a will executed by her. In the second appeal filed by the plaintiff, a memo has been filed to record the plaintiff and the 2nd defendant as heirs of the said Palaniammal. Though certain objections were raised by the learned counsel appearing for the 1st defendant, the said memo, I am not deciding the said controversy, and I am recording the said memo.
6. The substantial question of law that arises for consideration in these Second Appeals are:-
S.A.No.1778 of 1987: “Whether the lower appellate court is justified in reversing the finding of the trial court regarding the relief of injunction when the title of the appellant is upheld?
S.A.No.24 of 1989: “Whether the courts below were right in their interpretation of Ex.A2 that it is a deed of settlement?
7. In these cases we have to decide two issues. They are:-
(1) the nature of the document, namely, Ex.A2;
(2) Whether the plaintiff is in possession of the suit property so as to enable him to gel a decree for injunction?
8. According to the plaintiff, Ex.A2 is the settlement deed and thereby he got absolute right from the date of the document. According to the defendants, Ex.A2 cannot be construed as a settlement deed and it is only a will and so the plaintiff cannot claim any right on the basis of the said document. To appreciate these contentions, it is necessary to extract the recitals in the said document, which reads as follows:-
9. According to the recitals in the said document, it is seen that:-
(1) the document has been executed because the plaintiff is her brother and on the basis of the love and affection;
(2) possession had been handed over to the plaintiff on the date of execution of the said document;
(3) during the life time of the 1st defendant the suit property should not be encumbered or alienated;
(4) after her life time the suit property shall vest with the plaintiff;
(5) the1st defendant assured that the said document shall not be revoked.
10. On the basis of the abovesaid crucial recitals in the said document, we have to decide whether the said document is a settlement as alleged by the plaintiff or a will as alleged by the 1st defendant.
11. Though there is a recital that possession was given on the date of the execution of the document, it is the specific case of the 1st defendant that possession was not given to the plaintiff as set out in the said document. Even the trial court which granted injunction in favour of the plaintiff found that Exs.B1 to B21 would clearly establish that the 1st defendant had been in possession till 1971. The lower appellate court found that the plaintiff had not established possession as claimed by him. If the defendants are able to establish that the 1st defendant had been in possession of the suit property at least till 1971, it is for the plaintiff to establish as to when he took possession thereafter. It is the only case of the plaintiff that he took possession only pursuant to the document on 2nd July, 1958. From the abovesaid findings of the courts below, it is clear that possession was not given on the date of the execution of the document, namely, 2nd July, 1958 as recited in Ex.A2. Absolutely, there is no other evidence to show as to when the plaintiff took possession, after 1971. Moreover, the documents filed by the plaintiff to prove possession have been rightly rejected by the lower appellate court stating that they have been obtained just prior to the filing of the suit. Only Exs.A3, A4 and A6 can be relied on to establish such possession. The suit was filed on 24.8.1984. Exs.A3 and A6 were obtained after the filing of the suit, and Ex.A4 was obtained just prior to the filing of the suit. Apart from these documents, there is no other evidence available on record to prove such possession. Moreover, as found already, even the trial court has come to the conclusion that till 1971, the 1st defendant was in possession of the suit property. It is not the case of the plaintiff that he took possession thereafter. In view of the above, the case of the plaintiff that he is in possession of the suit property cannot be accepted.
12. Even with reference to the nature of the said document also, the case of the plaintiff cannot be accepted. As held by this Court in various decisions, to hold that to construe a document as a settlement, there should be a specific or clear and absolute instant disposition and transfer of interest in the property in prasenti in favour of the beneficiary under the document. While considering the similar recitals in the document, Raju, J. (as he then was) in the decision in Poongavanam v. Perumal_Pillai, 1997 (1) M.L.J. 169; following the decisions in Ramaswami Naidu v. Gopalakrishna Naidu, , and Ponnuchami Servai v. Balasubramanian, 1981 (2) M.L.J. 281, has held as follows:-
“10. The recitals extracted above only indicates that the property given under the settlement could be enjoyed by him without any rights of alienation and it is only after the lifetime of the executant viz., the 1st defendant, he (2nd defendant) shall acquire absolute rights in respect of the property with rights to sell and encumber the property by assuming absolute control and enjoyment of the property. The above recitals would go to show that not only the document was a crisp one and that there is no specific or clear and absolute instant disposition and transfer of interest in prasenti in favour of the beneficiary under the document but equally, there is absolutely no complete divestation of the right, title or interest of the executant on the date of the execution of the deed, such conferment of rights are postponed till the lifetime of the 1st defendant. The recitals themselves, in my view, are sufficient in law to show that it is only in the nature of a will and at any rate not a settlement absolute, the document thus being tested in the light of well-settled principle often reiterated by the courts.”
13. From the abovesaid decision, it is clear that the main test to find out whether the document constitutes a will or a gift is to see on the basis of the disposition of the interest in the property is in prasenti in favour of the settlees or the disposition is to take effect on the death of the executant. In the present case, there is no immediate disposition of interest in the suit property but it has to take effect on the death of the executant. In view of the settled principles of law in the abovesaid decision, the document in question can be construed only as a will and at any rate not a settlement absolute.
14. The learned counsel appearing for the appellant/plaintiff has also relied on the Division Bench decision of this court in Ramaswami Naidu v. Velappan, 1979 (II) M.L.J. 88. On the basis of the said decision, the learned counsel has submitted that merely the postponement of disposition of the interest cannot be construed that the document as a will. Though in the said decision the document marked as Ex.A1 was construed as a settlement, the ‘disposition of the interest in the property was to take effect on the death of the executant. The reason for arriving at such conclusion has been set put in para 10 of the said decision, which is as follows:-
“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 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 Animal, coupled with the fact that the suit properties were directed to vest in the first plaintiff had his heirs absolutely after the lifetime of Meenakshi Ammal, only with an obligation to perform the trust as delineated in Exhibit Al, clearly gives out the unambiguous intention of Meenakshi Ammal to create a vested interest in Velappan, though it was postponed for her life, so far as the actual enjoyment of the proprietary interest was concerned.”
15. The abovesaid decision has been referred to in the decision in (supra), which has been referred to in the decision of Justice Raju, in Poongavanam v. Perumal Pillai, 1997 (1) M.L.J. 169. Moreover, as held by the said Division Bench in the said decision, the intention of the parties should be derived to decide the nature of the transaction. In these cases, the executant herself has come forward with the plea that she has no intention to give the suit property absolutely from the date of execution of the said document. She had contested the case of the plaintiff. In view of the specific circumstances of the case before the Division Bench, the Division Bench of this Court has come to the conclusion that the document in question has to be treated as a settlement and so that said decision of the Division Bench cannot be relied on in support of the case of the appellants.
16. The learned counsel appearing for the appellants/plaintiff has submitted that the power to revoke the said document has not been reserved by the executant, and so it has to be construed as a settlement deed. While construing such argument, V. Ramasamy, J. (as he then was) in the decision in Ramaswami v. Gopalakrishna, , has held, relying on other decisions, that even if there is recital with reference to irrevocable nature of the document, the executant can revoke it as the restrictive clauses do not in any way affect the executant’s right.
17. Even with reference to the clause relating to the enjoyment by the executant during her lifetime without any power of alienation, following the abovesaid Division Bench decision of this court, the learned Judge, in the abovesaid decision Ramaswami v. Gopalakrishna, has held that those restrictive clauses do not in any way affect the disposition. In view of the abovesaid settled principles of law, the document in question can be construed only as a will and not as a settlement absolute. The courts below have not properly appreciated the said settled principles laid down in those decisions of this Court and decided the issue by applying incorrect proposition of law.
18. Since this Court has come to the conclusion that Ex.A2 under which the plaintiff is claiming right is only a will and not settlement, the plaintiff is not entitled for the decree as prayed for and so the judgments and decrees of the courts below are set aside insofar as they relate to the relief of declaration of the title of the suit property is concerned. In view of the discussions in paragraph 11 of this judgment, I am not disturbing the findings of the lower appellate court regarding possession of the suit property, and, therefore, the rejection of the plaintiffs prayer for injunction is also confirmed. Consequently S.A.No.1778 of 1987 is dismissed; S.A.No.24 of 1989 is allowed. No costs.