P.SHANMUGAM, J.

Plaintiff is the appellant in all the three appeals. A.S. No.101 of 1988 is an appeal filed against the dismissal of the suit in O.S. No.187 of 1983 for probating the will. Tr.A.S. No.375 of 2000 is filed against the dismissal of the suit O.S. No.73 of 1984 for declaration of the plaintiffs title and for a mandatory injunction and vacant possession. Tr.A.S. No.376 of 2000 is filed against the dismissal of the suit O.S. No.177 of 1985 for damages of Rs.800/- for the trees cut and removed.

2. The facts of the case are as follows :-

The parties are described as per their rankings before the trial court.

The plaint suit properties originally belonged to one Duraisamy Pillai. The said Duraisamy Pillai executed a document styled as trust deed (Ex.B.1 = Ex.A.17) on 8.7.1937 in favour of Aruldoss Pillai, the first defendant in the suit, dealing with a house, which is the plaint schedule property and three other businesses. Aruldoss Pillai filed a suit O.S. No.71 of 1945 against his father Duraisamy Pillai, mother Maria Bakiathammal and eldest brother S.D. Devadas Pillai. The suit was compromised as per the decision of the Panchayat held on 26.4.1945 and a decree was passed in terms of the said compromise under Ex.A.20. Thereafter, Duraisamy Pillai purported to cancel the trust deed dated 8.7.1937 by a cancellation deed, Ex.A.18 dated 5.5.1948, describing the document as his last will and testament. Duraisamy Pillai subsequently executed another will, Ex.A.3 dated 9.12.1960, the subject matter of O.S. No.187 of 1983. Duraisamy Pillai died on 7.8.1962 and thereafter, the suit property was sold in favour of the plaintiff by Maria Bakiathammal under Ex.A.2 dated 8.11.1979. The plaintiff filed the suit for the issuance of probate in respect of the will dated 9.12.1960. Earlier, the plaintiff filed a suit for declaration and injunction, O.S. No.180 of 1980 and when the defendant in that suit denied the truth and validity of the said will, the plaintiff had filed the above suit for probating the will. The learned Subordinate Judge, had considered all the three suits together and by a common judgment, dismissed all the suits. The Sub-court has held that the document dated 7.9.1937, Ex.A.17 = Ex.B.1 is a settlement; that the will dated 9.12.1960 has not been proved; and that Aruldoss Pillai is entitled to the properties conferred on him under Ex.A.17 = Ex.B.1. The Sub-court also held that Aruldoss Pillai has perfected title to the suit properties by prescription. The Sub-court further held that the plaintiff is not entitled for any damages. The unsuccessful plaintiff is the appellant before this Court.

3. Learned counsel for the appellant submits that Ex.A.17 is a testamentary disposition and not a settlement. According to him, it does not fulfill the crucial requirement of a settlement in that the document clearly contemplates disposition after the life time of the settlor and his wife and possession was also not given to the settlee. The findings of the court below, according to the learned counsel, inspite of this accepted position and the clear and unambiguous recitals in the document, that it is a settlement is illegal. He submits that even according to the first defendant, possession of the property was never handed over and it was always retained by the settlor till his life time. It is submitted that the conclusions of the learned Subordinate Judge are not only contrary to the facts and circumstances of the case, but are illegal. Learned counsel further submits that there is no acceptable oral or documentary evidence to establish that Ex.A.17 is a settlement. He contends that the suit filed by the first defendant and the cancellation of Ex.A.17 by way of Ex.A.18 by the settlor clearly indicates the intention of the settlor that Ex.A.17 was only a will and not a settlement. He also submits that till the life time of the settlor, all the records were in his name and only after the demise of the settlor, the first defendant had managed to change the tax receipts in his name since he was in a commanding position in the Panchayat Office. In any event, according to the learned counsel, mere possession of the house would not mean that the first defendant had ousted the rights of his mother and that he was enjoying the property to the adverse interest of his mother. According to him, the plaintiff is the bonafide purchaser of the suit property and is entitled to get the will probated and hence, his prayer for a declaration and injunction be granted.

4. Learned counsel appearing on behalf of the legal representatives of the first defendant submits that though Ex.A.17 was described as a trust deed, it was a settlement since the document was registered and stamped as a settlement. According to him, if the document is read as a whole, it would be clear that it was acted upon by the parties immediately, though the enjoyment of the property by the settlee was postponed. He submits that the expression, "bfhLj;J tpLtJ" would naturally mean immediate conveyance of the property and there was no reservation to cancel the said document. He further submits that in order to contend that Ex.A.17 is a will, there is no contemplation of death of the testator for giving effect to the recitals. According to the learned counsel, there is absolutely no legal justification for the revocation of Ex.A.17. He also submits that Maria Bakiathammal had recognised the right of the first defendant and did not interfere with his enjoyment of the property. He therefore prays that the judgment of the learned Subordinate Judge be sustained since the findings and conclusions reached by the learned Judge are legal.

5. We have heard the counsel and considered the matter carefully.

6. The main questions that would arise for consideration in these appeals are -

(i) Whether Ex.A.17 = Ex.B.1 is a Settlement or a Will

(ii) Whether Aruldoss Pillai has perfected title by prescription

7. Late Duraisamy Pillai had four sons, viz. (1) Dasan Pillai, (2) Dhanam Pillai, (3) Sellathurai Pillai and (4) Aruldoss Pillai; besides two daughters, viz. (1) Theresammal and (2) Mariammal from his first wife. The second wife Maria Bakiathammal did not have any issues. Duraisamy Pillai had executed a registered document describing it as a trust deed dated 8.7.1937.

8. The primary question that has to be decided is as to the nature of this document. The trial court has taken the view that this is a settlement. Consequently, the subsequent documents executed by Duraisamy Pillai, viz. the cancellation deed, Ex.A.18 and the will, Ex.A.3 have to be held invalid and discarded. However, if we are to hold that Ex.A.17 is a testamentary disposition, then Duraisamy Pillai shall have the right to cancel the said document and execute Ex.A.3, will dated 9.12.1960. However, Ex.A.3 has to be proved as per law. On the second question, the Sub-court has held that Aruldoss Pillai has acquired title by ouster against his mother Maria Bakiathammal and he has perfected that title. Consequently, the sale deed taken by the plaintiff from Maria Bakiathammal, Ex.A.2 will have no right to flow from it and the plaintiff/appellant cannot get any right in the other suits also.

9. Though Ex.A.17 is described as a trust deed, both the counsel have conceded that the said document cannot be a trust and that it is a misdescription. In the said document, Ex.A.17, Duraisamy Pillai has stated that he had educated his sons and married off his two daughters and they are well settled. However, Duraisamy Pillai felt that Aruldoss Pillai, who is the youngest of all his children, was living with his parents, assisting and helping them and since he had not been educated, in order to make a provision for him during the life time of Duraisamy Pillai, an arrangement is to be made. According to him, he had divided the business into three items, apart from the suit house property. Duraisamy Pillai desired that Aruldoss Pillai and his wife after the marriage of Aruldoss Pillai, had to live with them, viz. the father Duraisamy Pillai and his mother Maria Bakiathammal till their life time, and that after the life time of his father and the life time of his mother, Aruldoss Pillai had to get the house property and enjoy the same absolutely. Duraisamy Pillai has further stated that Aruldoss Pillai had to be the Manager of S.P.G. Vapour House business till the life time of Duraisamy Pillai and after his life time, he had to take the business to the exclusion of the other sons. The document also sets out the modes of utilization of the income from all the business concerns. According to it, the second item of business has to be under the sole proprietorship of Maria Bakiathammal; however, Aruldoss Pillai shall be the manager of the first, second and third items of business. By this deed, Maria Bakiathammal is given the right to utilize the income as well as to convey the second and third items of business to any one of the issues of her choice.

10. The above document makes it clear that Aruldoss Pillai is given absolute right over the house property after the life time of Duraisamy Pillai and Maria Bakiathammal. Aruldoss Pillai is also entitled to continue as manager in the first item of business and take it over after the life time of Duraisamy Pillai. Aruldoss Pillai has to manage the second and third items of business along with the first item of business and give the income as detailed therein to Maria Bakiathammal, who is given the right of conveying the second and third items of business to any one of the issues of her choice. The crucial words that are subjected to interpretation are as follows :

(emphasis added)

11. We have carefully considered this document as a whole and we gather the following important dispositions from the document :

(a) Duraisamy Pillai had desired to make certain arrangements for his last son Aruldoss Pillai who had not been educated like the other children and who had been assisting him in his business during his life time.

(b) Duraisamy Pillai had desired that Aruldoss Pillai should live with his parents, i.e. Duraisamy Pillai and his wife Maria Bakiathammal along with the wife of Aruldoss Pillai till his life time and take the house absolutely thereafter.

(c) Aruldoss Pillai has to be the manager of the first item of business till the life time of Duraisamy Pillai and after his life time, take over the said business.

(d) Maria Bakiathammal is to take the second and third items of business after the life time of Duraisamy Pillai and is also entitled to give the second and third items of business to any one of the issues of her choice.

12. From the above, we find that Duraisamy Pillai had not divested his right or title in respect of any of the properties and has clearly stated that Aruldoss Pillai shall get it only after his life time and the life time of Maria Bakiathammal. The only right that was conveyed immediately to Aruldoss Pillai was the right to manage the first and second items of business subject to certain further directions and he would acquire absolute rights over the business only after the life time of Duraisamy Pillai and his wife in reference to the house and after the life time of Duraisamy Pillai, insofar as the first item of business is concerned. As per the document, the first defendant, i.e. Aruldoss Pillai and his wife are given the right to live with them in the house and manage the business, but take the house only after the life time of the parents and the business after the life time of the father.

13. The learned Subordinate Judge, for the purpose of holding Ex.A.17 as a settlement, has rested his findings on the following grounds :

(a) Aruldoss Pillai is entitled to live in the house during the life time of the parents and after their life time, he is given the absolute right. The learned Judge has found that this shows that the enjoyment of the property insofar as Aruldoss Pillai has been postponed, but his right to live in the house has been conferred and therefore found that it is a settlement.

(b) Secondly, possession of the property had been handed over to the first defendant, i.e. Aruldoss Pillai.

(c) Thirdly, no reservation has been made in the document to cancel the said deed, which is normally found in a will.

(d) Fourthly, the first defendant is given an absolute right in the properties after the life time of his parents.

14. In our view, the approach of the learned Subordinate Judge is erroneous and legally unsustainable. The right of the parents had been retained till their life time and the first defendant is given permission to live with the parents along with his wife after his marriage and it is only after the life time of the parents, he could take possession of the property absolutely. Similarly, the first defendant had not been given absolute possession in reference to the first item of business, but had to continue as manager of the business and even for that business, he had to show the accounts and meet the family expenses and only after the life time of the father, he is entitled to take over the business absolutely. Therefore, we are clear in our mind that by this document, Duraisamy Pillai had not divested his interest and the first defendant had not been given absolute possession of the property immediately following the execution of the document nor has he taken possession of the same absolutely. There is no evidence whatsoever to establish the taking over of possession and enjoyment of the property by the first defendant.

15. It is true that the document neither provides for any reservation for cancelling it nor does it say that it is the last will and testament of Duraisamy Pillai. But, from the recitals, we find that the document is described as a trust deed and moreover, the preamble portion refers to the consideration of love and affection shown to Aruldoss Pillai for the purpose of making such an arrangement. However, that arrangement was intended to come into operation only after the life time of the parents. This document is registered, but there was neither transfer in praesenti nor taking over of possession consequently. It cannot also be stated that the first defendant had accepted the transfer. The intention of Duraisamy Pillai is evident on a careful reading and analysis of the document as a whole. It is clear that he wanted to make an arrangement for his youngest son, viz. the first defendant, but at the same time, he made it clear that whatever disposition he was making, it would come into operation only after the life time of the parents. Even in reference to the first item of business, he has specifically stated that the first defendant has to continue only as a manager of the business and take it over only after the life time of the father.

16. It is seen that Aruldoss Pillai, the first defendant, had left the house and had filed a suit against his father, mother and other brothers in O.S. No.71 of 1945 which resulted in a Panchayat and a compromise in pursuance to the said Panchayat, Ex.A.20. Thereafter, Duraisamy Pillai had executed a cancellation of the trust made earlier by a document, Ex.A.18 dated 5.5.1948. He had set out the reasons as to why he was cancelling the earlier trust deed. According to him, he had to cancel the earlier trust deed by which he had provided a house for Aruldoss Pillai after their life time, the reason being that Aruldoss Pillai had failed to comply with the condition set out in Ex.A.17 and tried to take away the business forcefully and that he had left the house, which is one of the important conditions set out under Ex.A.17. Ex.A.18, the cancellation deed, has further stated that since the first defendant, viz. Aruldoss Pillai had caused destruction of the main clause in Ex.A.17, the other provisions of the trust could not be given effect to and hence it had to be cancelled. Therefore, as per Ex.A.18, after the life time of Duraisamy Pillai and his wife, the suit property shall go to his grandson, the son of Devadas Pillai. The said document reserved the right of Duraisamy Pillai to cancel the will or encumber the property and it also stated that this will shall come into operation only after his and his wifes life time. By Ex.A.18, Duraisamy Pillai has made his intention in reference to Ex.A.17 very clear.

17. Ex.A.3 dated 9.12.1960 is the last will of Duraisamy Pillai in which he has stated that all his sons and daughters were settled and that he had no confidence that Maria Bakiathammal would be taken care of by his sons and therefore, he had decided that the house should go to her. As per this document, she is given the right to encumber or sell the property during her life time and after her life time, if the property is not encumbered, it would go to Bakiaraj, their grandson. It turns out that during her life time, Maria Bakiathammal had sold the property by Ex.A.2 to the plaintiff.

18. Ex.A.3 is questioned on the ground that it is not proved as required under Section 68 of the Indian Evidence Act. P.W.2, Bakiaraj, the grandson of Duraisamy Pillai, speaks about the will stating that he was present during the time of execution of the will. He has stated in the chief-examination that all the witnesses to Ex.A.3 were not alive. However, he has spoken as to the signature and the execution of the will. In the chief-examination, he has stated that his grandfather had made an endorsement on the back side of Ex.A.17 in his own handwriting setting out the reasons for cancelling Ex.A.17. He further says that he was assisting his grandfather and that since he is a beneficiary, he did not attest the document. He also says in the chief-examination that he was there when his grandfather signed the document and that the other witnesses were also there at that time. According to him, the witnesses Yesuvadian Nadar and Madhavadian Nadar saw his grandfather signing the document and thereafter, the witnesses also signed the document and he and his grandfather saw the witnesses signing the document as attestors. According to him, the scribe, Appavoo Nadar had also signed the document which was written on 9.12.1960 and registered on 10.12.1960. He further says that he had also gone to the Registrars office and that the witnesses also came and signed as attestors in the Registrars office. He says that his grandfather was hale and healthy at the time of execution of this document. P.W.2 has withstood the complete cross-examination and he has denied the suggestion that his grandfather was not well and that his grandfather did not sign the document. From the evidence of P.W.2, it is clear that Ex.A.3, will has been clearly proved. As stated earlier, once we come to the conclusion that Ex.A.17, taken as a whole, has to be construed only as a testamentary disposition, then, Duraisamy Pillai is entitled to cancel the same by Ex.A.18 and further write Ex.A.3, the last will.

19. We are unable to sustain the contentions of the learned counsel for the legal representatives of the first defendant. As we have seen above, Duraisamy Pillai has clearly and categorically intended that the document, viz. Ex.A.17 would come into operation only after his life time and Aruldoss Pillai, the first defendant, did not get possession of the property and there is no other documentary evidence to show that he was given the right over the property even during the life time of his father. Admittedly, the mother of the first defendant was alive. Though she was living with her first son, there is no evidence to show that the first defendant had enjoyed the property adverse to the rights of his mother. The payments of tax by the first defendant would not mean that the right of the mother, when she was alive, had been defeated. There is absolutely no evidence sufficient enough to prove the same. Further, the requirements necessary to establish ouster and adverse possession have also not been satisfactorily made out in this case.

20. Law on the question whether the deed is a Will or a Settlement :

In order to find out the requirement of a Settlement and a Will, we have to look into the definition of Gift under the Transfer of Property Act, 1882. A Gift has been defined under Section 122 of theas the transfer of certain existing movable or immovable property made voluntarily and without consideration and accepted on behalf of the donee. A transfer is effected, according to Section 125, by a registered instrument on behalf of a donor and attested by at least two witnesses in case of immovable property and in case of movable property, by a registered instrument or by delivery. Section 126 empowers the donor or the donee to agree that on the happening of any specific event, which does not depend on the will of the donor, a gift shall be suspended or revoked. Transfer has been defined under Section 5 of theas an act by which a property has been conveyed. Transfer as a verb would mean to convey or to move from one place or person to another by himself or hand over from one to another. In other words, transfer of property connotes the passing of the right in respect of the property from one person to another. The expression Settlement means settling the property, right or claim. A Will has been defined under Section 2(h) of the Indian Succession Act, 1925 as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. The question whether a particular document is a will or a settlement has been the subject matter of a series of decisions and pronouncements by this Court as well as the Apex Court. Some of the decisions can usefully be referred for our discussion.

21. In Commissioner, Gift Tax, Madras vs. Getty Chettiar [A.I.R. 1971 S.C. 2410], while construing Section 2(xxiv) of the Gift Tax Act 1958, the Supreme Court held that a reading of the said Section clearly goes to show that the words "disposition", "conveyance", "assignment", "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The dictionary gives various meanings for those words, but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. If so understood, it is clear that the words "disposition", in the context, means giving away or giving up by a person of something which was his own. "Settlement" means settling the property, right or claim - conveyance or disposition of property for the benefit of another. "Delivery" contemplates therein delivery of ones property to another for no consideration.

22. In Namburi Basava Subramaniam vs. Alappatti Hymavathy & Others [1996 (9) S.C.C. 388], the Supreme Court, while laying down the test to determine the question whether a document is a settlement or will, held that the nomenclature of the document is not conclusive. The recitals in the document as a whole, the intention of the executant and the acknowledgment thereof by the parties are conclusive. The court has to find whether the document confers any interest in the property in praesenti so as to take intra vivos and whether an irrevocable interest thereby is created in favour of the recipient under the document or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole. In that case, the document was held to be a settlement for the following reasons :

"The document in this case described as settlement deed was to take effect on the date on which it was executed. The settlor created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property in praesenti and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlors demise. Thus the document in question could be construed rightly as a settlement deed but not as a Will. The settlor, having divested herself of the right and title thereunder, had, thereafter, no right to bequeath the same property in favour of her first daughter. "

23. In Arunachala vs. Murugananda [A.I.R. 1953 S.C. 495], the Supreme Court held that if there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction, and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. Stress would certainly have to be laid on the substance of the disposition and not on its mere form. The material question which the court would have to decide in such cases is whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was an integral part of a scheme for partition etc.

24. Approving the above principle, in M.P.P. Karuppan vs. I.C. Commissioner etc., Madras [1975 S.C.C. 431], the Supreme Court, while answering the question as to whether on the facts and circumstances of the case the assessees status is that of a Hindu Undivided Family, had to consider the two deeds executed by Muthu Karuppan Chettiar. According to the appellant, the gift was really not to the sons absolutely, but to the respective family branches, of which they were the heads. There was no dispute that if the sons only were the donees, what they received by the gift would not be the ancestral property in their hands in view of the fact that the properties were the self-acquired assets of the donor. If, however, the donor wanted to confer a cumulative benefit on the respective family units of the three sons, the property gifted would be the property of the Hindu Undivided Family in each case. The Supreme Court, while disagreeing with the submissions made, held that it is clear from the deeds that the donors desire was to transfer the properties to the three sons whom he named and described as donees. It was not stated that the donees would take the properties as the heads of the family units. There is nothing in the two documents to suggest that the interest transferred to the sons was limited in any way. The surrounding circumstances following the gift were that returns were filed in the status of an individual and they were being assessed as such. Ultimately, the Supreme Court dismissed the appeals.

25. In Pyarelal vs. Rameswardas [A.I.R. 1963 S.C. 1703], the Supreme Court held that in construing a will, the court should try its best to get at the intention of the testator by reading the will as a whole. When there is some conflict in the will, the court must accept, if possible, such construction as would give to every expression, some effect rather than that which would render any of the effect inoperative. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which would not create any such hiatus. Another rule which may also be useful is that the words occurring more than once in a will shall be presumed to be used always in the same sense unless a contrary intention appears from the will. So too, all parts of the will should be construed in relation to each other. It is also a well recognised rule of construction that the court will look at the circumstances under which the testator makes his will such as the state of his property, of his family and the like.

26. In M. Masthan Rowther vs. Sulaika Beevi [1979 (1) M.L.J. 320], a learned Judge of this court has held that though a document styled as a settlement stamped and registered as settlement, when there is a specific clause creating interest in praesenti, while construing all the clauses together, there can be no doubt that the intention of the executant was to create an interest in praesenti.

27. In Ramakrishna Naidu vs. Gopalakrishna Naidu [1977 (90) L.W. 430], V. Ramasamy, J. (as he then was) has held that as per the main disposition clause in a document, the plaintiff had to take the properties only on the death of the executant and they have to enjoy the properties absolutely only after her death and that it was not a disposition in praesenti. It was further held that the terms of a document styled as a settlement deed and registered as such provided that after the life time of the executant, the property will have to be taken and enjoyed absolutely with all rights of alienation by the plaintiff and that patta also will have to be transferred in favour of the plaintiff after her life time and that during her life time, the executant was entitled to enjoy the income from the properties and without any power to encumber the property or in any way alienate the same. It was held that the document is a will and not a settlement.

28. In Ponnusamy Servai vs. Balasubramaniam Servai [1981 (84) L.W. 796], a learned Judge of this court has held that the real and the only reliable test for the purpose of finding out whether the document is a will or a settlement is to examine the nature of the disposition under the document to see whether it had transferred any interest in praesenti in favour of the settlee or whether it intended to transfer interest in favour of the beneficiary only on the death of the executant. In Daihiben vs. Vasanthji Kevalbhai [1995 Supplement (2) S.C.C. 294], the Supreme Court held that a land given absolutely amounted to a gift, but the executants having not divested themselves of the title of the remaining properties completely, that part must be read to be a will.

29. In Gopalakrishnan & 2 Others vs. Mangammal & 10 Others [1992 (2) L.W. 200], Srinivasan, J. (as he then was), while considering the question whether a particular document is a settlement deed or a will and holding that the said document was a settlement, set out the crucial circumstances to be considered as follows :

(1) There is no other nearer heir than the settlees and that the settlees have been attending to the needs of the settlor and the settlor believed that they would continue to do so.

(2) Secondly, the settlor expected the settlees to maintain and protect the setttlor without any difficulty.

(3) Thirdly, the property was handed over on the date of the document to the settlees.

(4) Fourthly, one of the settlees being a minor, the guardian of the minor shall take possession of the property and hand over the same on the minor attaining majority.

(5) Fifthly, there is an embargo on alienation by the settlees.

(6) Sixthly, the settlees were directed to discharge the debts due.

(7) Seventhly, the settlees shall perform the obsequies of the settlor after his life time and enjoy the properties with absolute right, just as the settlor was enjoying the same.

His lordship held that if the settlor did not intend to convey any interest in the property in praesenti to the setttlee, there was no necessity for the settlor to place an embargo on alienation. On a reading of the recitals in the documents, there is no doubt that the settlor intended to confer an interest in the property on the settlees.

30. In Poongavanam vs. Perumal [1997 (1) M.L.J. 169], D. Raju, J. (as he then was) has held that a deed settling certain properties on the settlee with condition attached to enjoy them without any right to alienate it till the life time of the settlor and to get the properties absolutely only after the death of the settlor was a will and not a settlement. The recital that the settlee shall acquire absolute rights in respect of the property with a right to sell and encumber the property by assuming absolute control and enjoyment of the property only after the life time of the executant would go to show that there is no specific or clear and absolute, instant disposition and transfer of interest in praesenti in favour of the beneficiary under the document. Besides, there is absolutely no complete divestiture of the right, title or interest of the executant on the date of the execution of the deed, such conferment of right is postponed till the life time of the first defendant in that case, the document itself was styled as a settlement deed.

31. In Sadhasivam & Others vs. Subramania Pillai [1986 T.N.L.J. 270], while interpreting the document whether it is a will or a settlement, a Division Bench of this Court held that on reading the entire document, the words, "vd; $Ptpaj;jpw;Fg;gpd; c;fs; $Ptndhghaj;jpw;F" would mean that the executant had intended to give the properties therein in favour of the beneficiaries under the document only after her life time. Nowhere in the document it is specifically stated that she has parted with the possession and handed over the same to the beneficiaries under the document. The expression "c;fSf;F bfhLj;njd;" would, when the document is read as a whole, mean that she was giving the property to the beneficiaries for their maintenance after her life time. Therefore, the word "bfhLj;njd;" would not mean that the testator had created an interest in praesenti. By giving in the property, in that case, there was no divestiture of possession, which was taken as another factor to hold that it was not a settlement.

32. K. Govindarajan, J., in Rajammal vs. Pappayee Ammal [2002 (4) C.T.C. 406], after tracing the decisions on this question, has set out the broad formula to be applied in order to find out the nature of the document in paragraph 32 of his judgment, which is as follows :

"From the above said decisions, we can formulate the following broad formula to be applied to find out the nature of the document :-

(1) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the phraseology used therein.

(2) The nomenclature (settlement or will) given in the document is not a deciding factor.

(3) The registration of the document and the quantum of stamp paper used also have to be taken into consideration.

(4) The recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor with reference to the character of the document.

(5) Though actual disposition can be postponed till the lifetime of the settlor or though prima facie it appears that disposition consummates after his death, if there is a present disposition and vesting of right in praesenti, the document has to be construed as a settlement and not as testamentary.

(6) If any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor, then the said document is only a testamentary and not a settlement.

(7) If the executant is entitled to be in possession of the property and enjoy the benefits during his lifetime with the power to encumber, the document has to be construed only as a will.

(8) If the executant imposes self-restriction with reference to sale and encumbrance, though he is in possession of the property after execution of the said document, the document has to be construed only as a settlement and not as a will."

33. Applying the law and the principles set out above, we are fully convinced that though the nomenclature of the document, Ex.A.17 styles it as trust, the intention of the executor is clear and unambiguous as could be seen from the following :

(a) Duraisamy Pillai retained his right, title and possession not only till his lifetime, but also till the lifetime of his wife in reference to the suit property.

(b) There is no disposition in praesenti of the suit property in favour of the first defendant.

(c) The first defendant is not capable of dealing with the property on the basis of the said document.

(d) A clear condition namely that after his marriage, the first defendant must live with the parents and that he should manage the other items of business and show the accounts would indicate that the right and title is still retained with the executor.

(e) In view of the first defendant filing a suit and subsequently agreeing for a compromise to take the first item of the suit property absolutely, thereby giving up his right of management in reference to the other items of property and going out of the family house, the executor had executed a subsequent document cancelling the earlier deed, thereby making his intention in reference to Ex.A.17 clear, i.e. it was only a will and not a settlement and that even assuming that it was a gift, it was agreed to be revoked.

(f) Ex.A.3, will is a registered document and has been proved as per the requirement.

(g) The conduct of the parties and the surrounding circumstances following the execution of Ex.A.17, viz. the retention of possession of the property and the assessment continuing in the name of the executor in the revenue records clearly indicates that the desire of the executor was not to transfer the suit property in favour of the first defendant.

(h) There is no clause saying that the said document should not be revoked.

34. It is not the case of the respondents that the registered will, Ex.A.3 is forged or created. P.W.2, who is a competent available witness, has clearly deposed as to the sound disposing state of mind of late Duraisamy Pillai stating that it was his last will and has also narrated the execution of Ex.A.3. As a matter of fact, D.W.1 had admitted that even three months prior to his death, the deceased Duraisamy Pillai was going to Ambasamudram and other places for conducting court cases. Learned counsel for the respondents fairly concedes that no sufficient documentary or oral evidence is available so as to claim ouster against the mother of the first defendant. There is no plea of ouster or evidence in order to establish the claim of adverse possession by the first defendant against his mother.

35. For all the above reasons, we set aside the judgment and decree of the Subordinate Judge and hereby decree the suit O.S. No.187 of 1983 filed for probating the will dated 9.12.1960 and allow A.S. No.101 of 1988. Consequently, we grant the decree as prayed for in O.S. No.73 of 1984 and allow Tr.A.S. No.375 of 2000 filed for declaration of the plaintiffs title, mandatory injunction and vacant possession. However, the plaintiff has not made out a case for the grant of a decree for damages as prayed for in O.S. No.177 of 1985 and therefore, Tr.A.S. No.376 of 2000 is dismissed. However, there will be no order as to costs. The connected C.M.Ps., if any, are closed.