P.K. MOHAN RAMversusB.N. ANANTHACHARY AND ORS.

            ·'·
                        [2010] 3 S.C.R. 401


                         P.K. MOHAN RAM                        A
                                 v.
                  B.N. ANANTHACHARY AND ORS.
                   (Civil Appeal No. 6412 of 2002)

                         MARCH 15, 2010
                                                               B
    [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

        Deeds and Documents - Deed executed in respect of
  suit property - Will or Settlement Deed - Held: The form, or
  nomenclature of the deed is not conclusive - Court has io C
  vel}' carefully examine the document as a whole, look into the
  substance thereof, treatment of the subject by setUorl
  executant, . intention appearing both by the expressed
  language employed in the document and by necessary
  implication and prohibition, if any, contained against D ·
  revocation thereof - On facts, by executing .the deed in
  question, the original owner expressed his intention, in no ·
  uncertain terms, to settle the suit property in favour of 16
  persons, in praesenti - The language of the deed clearly
  shows that all the beneficiaries were to enjoy the property E
· along with original owner during his lifetime and affer his .
  death, each of the beneficiaries was to get a specified share
 - In the concluding portion of the deed, the original owner also
 made it clear that he will have no right to ca~cel the Deed for ·
 any reason whatsoever or to alter the terms thereof.- Read F
 as a whole, it is clear that the deed in question. was a
 'Settlement Deed' and not a 'Will'.

     Transfer of Property Act, 1882- ss.19 and 21 - "Vested
interest" and "contingent interest" - Difference between -
Discussed.                                                     G

   The original owner of the suit property executed
document Ex. A-2, titled and described as "Settlement
Deed", in favour of the appellant, respondent nos.1 and
                          401                                  H
    402      SUPREME COURT REPORTS             [2010] 3 S.C.R.

A 2, and 13 others i.e. in total 16 beneficiaries.

       After the death of the original owner, the appellant
  filed suit for partition of his share in the suit property.
  Respondent nos.1 and 2 filed written statement
8 contending    that the appellant obtained the 'Settlement
  Deed' by playing fraud, and on discovery thereof, the
  original owner executed 'Revocation Deed' Ex. B-2 and
  then executed a 'Will' Ex. B-3 whereby he bequeathed the
  property in their favour.

C      Th~ trial Court passed preliminary decree in favour
  of appellant holding that Ex. A-2 was "Settlement Deed"
  and the same was not executed as a result of fraud or
  misrepresentation and that the settlor did not have the
  right to execute 'Revocation Deed' Ex. B-2 and 'Will' Ex.
D B-3. The judgment was upheld by the first appellate court.

      On second appeal, the High Court held that even
  though Ex.A-2 was titled and described as 'Settlement
  Deed', in reality it was a 'Will' and that the appellant had
E no right in the suit property because the settlor had
  bequeathed the same in favour of respondent Nos.1 and
    2.
       In appeal to this Court, it was contended by the
  appellant that the High Court misinterpreted Ex.A-2 as a
F 'Will' ignoring the specific stipulation contained therein
  that it was a 'Settlement Deed'. With reference to s.19 of
  the Transfer of Property Act, 1882, it was contended that
  the transfer of the property rights was in praesenti, which
  coupled with an unequivocal inhibition in Ex.A-2 against
G cancellation/amendment thereof, clearly shows that Ex.A-
  2 was a 'Settlement Deed' and not a 'Will'.
          Allowing the appeal, the Court

          HELD: 1. 1. Sections 19 and 21 of the Transfer of
H
  P.K. MOHAN RAM v. B.N. ANANTHACHARY AND              403
                    ORS.
Property Act, 1882 elucidate the expressions "vested A
interest" and "contingent interest" in the context of
transfer of property. A reading of the plain language of
the above sections makes it clear that an interest can be
said to be a vested interest where there is immediate right
of present enjoyment or a present right for future B
enjoyment. An interest can be said to be contingent if the
right of enjoyment is made dependent upon some event
which may or may not happen. On the happening otthe
event, a contingent interest becomes a vested interest.
[Para 10] [412-G; 413-H; 414-A-B]                           c
     1.2. Although, no strait-jacket formula has been
evolved, while interpreting an instrument to find out
whether it is of a testamentary character, which will take
effect after the life time of the executant or it is an
instrument creating a vested interest in praesenti in D
favour of a person, the Court has to very carefully
examine the document as a whole, look into the
substance thereof, the treatment of the subject by the
settlor/ executant, the intention appearing both by the
expressed language employed in the instrument and by E
necessary implication and the prohibition, if any,
contained against revocation thereof. The form or
nomenclature of the instrument is not conclusive and the
Court is required to look into the substance thereof. [Para
13] [418-G-H; 419-A-B]                                      F

     1.3. A careful reading of Ex.A-2 shows that in the title
itself the document has been described as Settlement
Deed. By executing that document, the orikiinal owner
expressed his intention, in no uncertain terms, to settle G
the property in favour of 16 persons who were none else
than his own relatives and declared that 'from this day
onwards I and you shall enjoy the land and house without
creating any encumbrance or making any alienation
whatsoever.' This was an unequivocal creation of right
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    404     SUPREME COURT REPORTS              [2010] 3 S.C.R.


A in favour of 16 persons in praesenti. Though, the
  beneficiaries were to become absolute owners of their
  respective shares after the death of the settler, the
  language of the document clearly shows that all of them
  were to enjoy the property along with settler during his
B lifetime and after his death, each of the beneficiaries was
  to get a specified share. In the concluding portion, the
  settler made it clear that he will have no right to cancel
  the Settlement Deed for any reason whatsoever or to alter
  the terms thereof. The mere fact that beneficiary Nos. 1
C and 2 and after them their heirs were to receive honours
  at the temple or that shares were to be divided after
  disposal of the property cannot lead to an inference that
  Ex.A-2 was a 'Will'. If Ex.A-2 is read as a whole; it becomes
  clear that it was a 'Settlement Deed' and the trial Court
  and the lower appellate Court did not commit any error
D by recording a finding to that effect. As a sequel to this,
  it must be held that the High Court committed serious
  error by setting aside the concurrent judgments and
  decrees of the two courts. [Para 21] [427-F-H; 428-A-D]

E       1.4. Although, in their written statement respondent
    Nos.1 and 2 did plead that Ex. A-2 was executed by the
    original owner due to fraud or misrepresentation, no
    evidence was led by them to·substantiate that allegation.
    Therefore, no valid ground or'-justification was found to
F   entertain that plea. [Para 23] [428-E-F]

      Sagar Chandra Manda/ v. Digamber Manda/ and others
  (1909) 9 CLJ 644; Ramaswami Naidu and another v.
  Gopc.lakrishna Naidu and others AIR 1978 Madras 54;
G Ponnuchami Servai v. Balasubramanian and others AIR 1982
  Madras 281 and Poongavanam v. Perumal Pillai and
  another (1997) 1 MLJ 169, distinguished.

       Rajes Kanta Roy v. Santi Debi 1957 SCR 77; Usha
    Subbarao v. B.N. Vishveswaraiah (1996) 5 SCC 201 and
H
  P.K. MOHAN RAM v. B.N. ANANTHACHARY AND             405
                    ORS.
Kokilambal v. N. Raman (2005) 11 SCC 234, relied on.          A

     A. Sreenivasa Pai and another v. Saraswathi Ammal
alias G. Kamala Bai (1985) 4 SCC 85; Namburi Basava
Subrahmanyam v. Alapati Hymavathi and others (1996) 9
SCC 388; Gangaraju v. Pendyala Somanna AIR 1927
                                                              B
Madras 197; Venkatasubramaniya Iyer v. Srinivasa Iyer AIR
1929 Madras 670 and Ramaswami Naidu v. M.S. Velappan
and others (1979) 2 M.L.J.88, referred to.

    Vynior's case Trin 7 Jae. 1Rot. 2629, (English Reports,
Vol. LXXVll, Kings Bench Division VI), referred to.           c
                   Case Law Reference:
    1957 SCR 77             relied on            Para 7
    (1985) 4 sec 85         referred to          Para 7       D
    (1996) 9 sec 388        referred to          Para 7
    AIR 1927 Madras 197 referred to              Para 7
    AIR 1929 Madras 670     referred to          Para 7
                                                              E
    Vynior's case Trin      referred to          Para 8
   7 Jae. 1 Rot. 2629
   (English Reports,
   Vol. LXXVll,
   Kings Bench Division VI)                                   F
    (1909) 9 CLJ 644        distinguished        Para 8
   AIR 1978 Madras 54       distinguished        Para 8
   AIR 1982 Madras 281      distinguished        Para 8
                                                              G
   (1997) 1 MLJ 169         distinguished        Para 8
   (1996) 5 sec 201         relied on            Para 12
   (2005) 11 sec 234        relied on            Para 12
                                                              H
    406       SUPREME COURT REPORTS                   [2010) 3 S.C.R.

A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6412 of 2002.

        From the Judgment & Order dated 27.2.2001 of the High
    Court of Judicautre at Madras in S.A. No. 1090 of 1983.
B         R. Sundaravaradhan T.R.B. Sivakumar, K.V. Vijayakumar
    for the Appellant.

        M.S. Ganesh, R. Ayyam Perumal, K. Seshachary, V.N.
    Raghupathy for the Respondents.
c         The Judgment of the Court was delivered by

         G.S. SINGHVI, J. 1. This is an appeal for setting aside
    judgment dated 27.2.2001 passed by the learned Single Judge ·
    of Madras High Court in Second Appeal No. 1090/1983 and
D   Civil Miscellaneous Petition No.8137/1983 whereby he
    reversed the judgments and decrees of the trial Court and the
    lower appellate Court and dismissed the suit filed by the
    appellant for partition of his 1/17th share in the suit property.

E        2. Shri K. Perumal Iyer, who owned the suit property,
    executed Settlement Deed dated 27.3.1969 in favour of the
    appellant, respondent Nos.1 and 2 and 13 others and declared
    that from the date of execution he and the beneficiaries shall
    enjoy the land and house etc. without creating any encumbrance
F or making any alienation whatsoever. He further declared that
    during his life, he will collect the rental income from the land and
    house and after paying the municipal taxes, remaining income
    wo_uld be spent by him according to his choice; that after his
    death, the property shall be sold at the prevailing market price
    by all 16 b~neficiaries and out of the sale proceeds, a religious
G trust should be created by paying Rs.4,000/- to Devasthanam.
    of Sri Prasanna Venkatesa Perumal in the office of the
  · Saurashtra Sabha at Madurai for the purpose of t~king out
    annual procession of Perumal in the sacred -streets on
    Amavasai day in the month of Margazhi; that the honors of the
H
   P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                     407
              ORS. [GS. SINGHVI, J.]
temple should be bestowed upon beneficiary Nos.1 and 2 and,            A
after them, upon their heirs; that from the sale proceeds, the
beneficiaries shall purchase an immoveable property of
 Rs.4,000/- in the name of Balu G. Perumal Iyer Feeding
 Charities and all 16 trustees shall provide for feeding of his
 relatives on the day of the procession of the deity (Perumal)         B
and that if there is delay in purchasing the immovable property,
 the beneficiaries shall be free to advance the money on interest
for the purpose of generating income which could be used for
 feeding; that his last rites shall be performed by beneficiary
 Nos.1 and 2 and all 16 persons shall together spend Rs.2000/          c
- from their personal funds for that purpose. The settlor also
indicated that he had mortgaged the land and house to
Ramaseshan and Co. vide Mortgage Deed dated 24.3.1969
for a sum of Rs.1500/- which shall be redeemed by him and in
the event of death before redemption, all 16 beneficiaries shall       D
discharge the debt. The settler further ordained that after
deducting Rs.8,000/- from the sale price, the balance amount
should be divided into 17 shares of which beneficiary Nos.1
and 2 shall take three shares and beneficiary Nos.3 to 16 shall.
take one share each. If any one of 16 beneficiaries was to die         E
before sale of the property, the remaining persons were to get
absolute right to sell the property. The settlor finally recorded
that he shall have no right whatsoever to. cancel the 'Settlement
Deed' for any reason whatsoever or alter .the terms thereof,

      3. Shri K Perumal Iyer died on 4.12.1972. After his death,       F
the appellant filed a suit (O·.S. No.626/1 ~72) for appointment
of receiver to carry out the direc;:tions mentioned in the
'Settlement Deed'. The trial Court decreed the suit, but on
appeal, the High Court reversed the decree of the trial Court
and.dismissed the suit with an observation that the same shall         G
not operate as res judicata against the fresh suit .which may
be filed by the plaintiff (a.ppellant herein). After disposal of the
appeal, the appellant filed O.S. No.858 of 1979 for partition of
his 1/17th share in the suit property and for grant of a
declaration that in view of the negative covenant contained in         H
      408        SUPREME COURT REPORTS                  [2010) 3 S.C;R.


 A the ·Settlement Deed', the settler had no right to execute
    Revocation Deed dated 27.2.1970 or Will dated 30.7.1972. In
    the written statement filed by defendant Nos.1 and 2
   (respondent Nos.1 and 2 herein), it was claimed that the
   appellant and his brothers and sisters obtained the 'Settlement
 B Deed' by playing fraud and on discovery thereof, Shri K.
   Perumal Iyer executed . Revocation Deed' and then executed
   the 'Will' whereby he bequeathed the property in their favour.
   They also pleaded that the suit filed by the plaintiff (appellant ·
   herein) is barred by Order II Rule 2 of the Code of Civil
 c Procedure (CPC) because _the earlier suit filed by him for
   appointment of receiver for carrying out the directions contained .
   in the ·settlement Deed' was dismissed by the High Court in
   A.S. No. 374/1974.
                            .           .         .     .
       4. On the pleadings of the parties, the trial Court framed
 D as many as 12 issues including the following:               ·

            1.    Whether the will in favour ofdefendants 1 and 2 is
                  valid and binding?

            2.
 E

            3.


 F          4.
            5.    Whether the suit is barred under Order II Rule 2 of ·
                  C.P.C.?

            6.    Whether the settlement deed was brought into
 .G               existence due to fraud and misrepresentation?

          5. After considering the pleadings and evidence of the· ·
     parties and hearing their advocates, the trial Court vide its
     judgment dated 24.4.1982 held that document marked Ex.A-2
. H 'was 'Settlement Deed' and not 'Will' and t hat the same was
                                                  1
                                                  1,.
   P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                     409
            · ORS. [G.S. SINGHVI, J.]
not executed as a result of fraud or misrepresentation and that A
the settler did not have the right to execute 'Revocation Deed'
Ex.B-2 and 'Will' Ex.B-3. The trial Court further held that the
second suit filed by the plaintiff is not barred by res judicata or
Order II Rule 2 CPC. In the end, the trial Court declared that ·
the plaintiff is entitled to partition of th.e suit property and . 8' ·
accordingly passed a preliminary decree in his favour.

      6. Respondent Nos.1 and 2 challenged the judgment and
decree of the trial Court in Appeal Suit No.102/1982, which was
dismissed by the lower appellate Court vide judgment and              C
decree dated 10.3.1983. However, the second appeal
preferred by them was allowed by the learned Single Judge,
who held that even though Ex.A-2 was titled and described ~s
'Settlement Deed', in reality it was a 'Will' executed by late Shri
K. Perumal Iyer. The learned Single Judge further held that the
appellant herein has no right in the suit property because the        D
settler had bequeathed the same in favour-of respondent Nos.1
and 2 herein.
                                                            '
      7. Shri R. Sundaravaradhan, learned senior counsel
appearing for the appellant submitted that the impugned E
judgment is liable to be set aside because the learned Single
Judge misinterpreted Ex.A-2 and held it to be a 'Will' ignoring
the specific stipulation contained therein that it was a
'Settlement Deed'. Learned senior counsel referred to Section
 19 of the Transfer of Property Act and argued that the transfer F
of the property rights in praesenti coupled with an unequivocal
inhibition against cancellation/amendment thereof clearly shows
that Exhibit A-2 was a 'Settlement Deed' and not a 'Will'. In
support of his arguments, Shri Sundaravaradhan relied upon
the judgments of this Court in Rajes Kanta Roy v. Santi Debi G
1957 SCR 77, A. Sreenivasa Pai and another v. Saraswathi
Ammal alias G. Kamala Bai (1985) 4 SCC 85 and Namburi
Basava Subrahmanyam v. Alapati Hymavathi and others
(1996) 9 SCC 388 and of Madras High Court in Gangaraju v.
Pendyala        Somanna        Al R   1927     Madras      197, · H
      410    SUPREME COURT REPORTS                  [2010] 3 S.C.R.

 A   Venkatasubramaniya Iyer v. Srinivasa Iyer AIR 1929 Madras
     670.

         > 8. Shri M.S. Ganesh, learned senior counsel appearing for
      the respondents supported the impugned judgment and argued
      that the learned Single Judge rightly treated Ex.A-2 as a 'Will'
 8
      because the settlor did not create any right in praesenti in
      favour of the appellant and the prohibition contained therein
      against cancellation/modification of 'Settlement Deed' was not
      inconsequential. Shri Ganesh emphasized that the rights
 C-   created in favour of the beneficiaries were contingent and were
      to become operative after the death of the settlor and, as such,
      the learned Single Judge rightly treated Ext. A-2 to be a Will.
      Learned senior counsel placed reliance on the judgment in
      Vynior's case, Trin. 7 Jae. 1 Rot. 2629 {printed in the English
      Reports, Volume LXXVll, King's Bench Division VI), as also the
 D   judgments of Calcutta and Madras High Courts in Sagar
      Chandra Manda/ v. Digamber Manda/ and others (1909) 9
     CLJ 644, Ramaswami Naidu and another v. Gopalakrishna
     Naidu and others AIR 1978 Madras 54, Ponnuchami Servai
      v. Ba/asubramanian and others AIR 1982 Madras 281 and
.E   Poongavanam v. Perumal Pillai and another (1997) 1 MLJ
      169 and argued that interpretation placed by the learned Single
     Judge on Ex.A-2 is in consonance with the law laid down by
     this Court and different High Courts. Shri Ganesh also referred
     to the judgment of this Court in Rajes Kanta Roy v. Santi Debi
F    (supra) and submitted that the contingent right, if any,, created
     in favour of the plaintiff-appellant could not be made basis for
     treating Ex.A-2 as 'Settlement Deed'.

       9. For deciding the question raised in this appeal, it will
G be useful to notice the contents of Ex.A-2. The English
  translation of the document produced by Shri M.S. Ganesh,
  learned senior counsel for the respondents, which was
  accepted by learned senior counsel appearing for the appellant
  as correct, reads thus:

H
                                                                         '
                                                                             '




 P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                      411
            ORS. [G.S. SINGHVI, J.]
                  "Document No. 75311969                             A
Settlement Deed of land and house property of the value
                     of Rs.20,0001-

    xxxxxxxxxxxxxxx
                                                                     B
      The settlement deed executed by me in respect of the
     land and house etc. in favour of these 16 persons is as
     follows: I did not beget any male or female issue. My wife
     Ponnammal died about 3 years ago. In accordance with
     the terms of the partition deed dated 29.1.1937, bearing        C
     Ramanthapuram R.0.1 162.43 to 48. 701/1937 between
     my brothers Balu K. Ramaswamy Iyer and Balu K.
     Nannaiyer and me, I got as my share the undermentioned
     land and house etc. valued at Rs.20,000/-. Since then I
     have been in uninterrupted possession and enjoyment of          o
     the same on payment of municipal taxes and so on. You
     16 persons being my relatives and considering your
    welfare and mine and out of my love and affection for you,
     I settle this property on you 16 persons by executing this
    settlement deed. From this day onwards I and you shall           E
    enjoy the under mentioned land and house etc. without
    creating any encumbrance or making any alienation
    whatsoever. During my lifetime I shall collect the rental
    income from the under mentioned land and house etc. and
    after paying the municipal taxes, with the remaining income
                                                                     F
    I shall spend my life as I wish till the end of my days. After
    my death, you 16 persons shall become eligible and have
    absolute right to sell the under mentioned land and house
  . at the prevalent market price. Out of the sale proceeds thus
    received, ·you should create a religious trust by paying
    Rs.4,000/- to the Devasthanam of Sri Prasanna                    G
   Venk~~esa Perumal in the office of the Saurashtra Sabha
   at Madurai for the purpose of taking out annual procession
   of Perumal in the sacred streets on Amavasai day in the
    month of Margazhi. The honors at the temple should be
   bestowed upon persons 1 and 2 among you and after them            H
    41'2     . SUPREME COURT REPORTS                (2010] 3 S.C.R.
                  ..
A        upon their heirs. Further, from the sale proceeds, you
       , shoCJld purchase an immoveable property for Rs.4,000/- in
         the name of Balu G. Perurnal Iyer Feeding Charities and
         you t6,p.ersons as trustees·should provide for feeding of
         my relations on the day of the procession of the deity
B        (Perumal). Should there be any delay in purchasing the
         immovable property, you 16 persons would be fully entitled
         to advance money on interest or by mortgage to generate
         income for the feeding. Upon my death, ,whoever among
         1 and 2 of you is present shall perform my last rites and
c        all you 16 persons shall together spend upto Rs.2,000/-
         from your personal funds for that purpose. During my life
         time, .1 myself shall redeem the mortgage of the
         undermentioned land and house which I had mortgaged
         to Rameseshan & Co. of Madurai by a mortgage deed
         dated 24.$.1969 for a sum of Rs.1500/-. In the event I die
D
         before redeeming the mortgage, you 16 persons -shall
         discharge that debt. As mentioned above, after deducting
         Rs.8,000/- from the sale price, the balance amount should
         be divided into seventeen shares. 1 and 2 among you shall
         take three $hares, 3 to 16 among you shall take one share
E        each. 1 and 2 among you shall divide the three shares
         equally between you. If anyone of you 16 persons dies
         before the sale of the property, the remaining persons
         excluding the deceased shall have the absolute right to sell
         the property. I shall have no right whatever to cancel this
F          settlement deed for any reason whatsoever or to alter
           these terms. I execute this settlement deed of my own
           free will."

                                               (emphasis supplied)
G
         10. Sections 19 and .21 of the Transfer of Property Act,
    1882 (for short, 'the 1fe2 Act') which elucidate the expressions
    "vested interest" an-a· "contingent interest" in the context of
    transfer of property read as under:

H          "19.        Vested interest.-Where, on a transfer of
P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                   413
          ORS. [G.S. SINGHVI, J.]

 property, an interest therein is created in favour of a person   A
 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.                                           B

       A vested interest is not defeated by the death of the
 transferee before he obtains possession.

 Explanation.- An intention that an interest shall not be
 vested, is not to be inferred merely from a provision            C·
 whereby the enjoyment thereof is postponed, or whereby
 a prior interest in the same property is given or reserved
 to some other person, 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      D
 event shall happen the interest shall pass to another
·person.

21.Contingent interest. - Where, on a transfer of property,
an interest therein is created in favour of a person to take E
effect only on the happening of a specified uncertain event,
or if a specified uncertain even shall not happen, such
person thereby acquires a contingent interest in the
property. Such interest becomes a vested interest, in the.
former case, on the happening of the event, in the latter,
when the happening of the event becomes impossible.
                                                             F

Exception. - Where, under a transfer of property, a person
becomes entitled to an interest therein upon attaining a
particular age, and the transferor also gives to him
absolutely the income to arise from such interest before          G
~El- reaches that age, or directs the income or so much'
thereof as may be necessary to be applied for his benefit,
such interest is not contingent."                         '

A reading of the plain language of the above reproduced           H
    414      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A         sections makes it clear that an interest can be said to be
          a vested interest where there is immediate right of present
          enjoyment or a present right for future enjoyment. An
          interest can be said to be contingent if the right of
          enjoyment is made dependent upon some event which
B         may or may not happen. On the happening of the event, a
          contingent interest becomes a vested interest.

          11. In Rajes Kanta Roy v. Santi Debi (supra), this Court
    considered the distinction between 'vested interest' and
C   'contingent interest' in the backdrop of dispute between the
    widow and two sons of Ramani Kanta Roy, who possessed
    considerable properties. Two suits filed by the parties in relation
    to the suit property ended in compromise decrees. On account
    of the alleged violation of compromise decree, Santi Debi filed
    an application for execution and prayed for issue of a direction
D   for release .of the arrears of her monthly allowances. She also
    prayed for attachment and sale of the immovable properties.
    Appellant, Rajes Kanta Roy filed objections under Section 47
    of the Code of Civil Procedure. The same were rejected by the
    Subordinate Judge. Appeal filed by him was dismissed by the
E   Calcutta High Court. One of the questions considered by this
    Court was whether the interest created by the deed executed
    by Ramani Kanta Roy was a vested or contingent interest. The
    Court referred to Sections 19 and 21 of the Transfer of Property
    Act and Sections 119 and 120 of the Indian Succession Act,
F   Williams on Executors and Administrators (13th Edition) Vol.2,
    p.658, Jarman on Wills (8th Edition) Vol.II, p.1390 and p.1373
    and observed:

          "Apart from any seemingly technical rules which may be
          gathered from English decisions and text-books on this
G
          subje6t, there can be no doubt that the question is really
          one of intention to be gathered from a comprehensive
          view of all the terms of a document. Learned Solicitor-
          General frankly admitted this, and also that a court has
          to approach the task of construction in such cases with a
H
  P.K. MOHAN RAM v. B.N. ANAN;y-HACHARY AND                   415
             ORS. [G.S. SINGHVI, J.]
    bias in favour of a vested interest unless the intention to       A
    the contrary is definite and clear. It is, therefore, necessary
    to consider the entire scheme of the deed of trust· in the
    present case, having regard to the terms therein, and to
    gather the intention therefrom."                 ·
                                                                      B
    The Court then referred to different portions of the deed
executed by Ramanai Kanta Roy and observed:
                                     '
     "Now, there can be no doubt about the rule that where the
     enjoyment of the properly is postponed but the present
     income thereof is to be applied for the benefit of the C
     donee the gift is vested and not contingent. (See
     Explanation to s.19 of the Transfer of Property Act,
     Explanation to s.119 of the Indian Succession Act. See
     also Williams on Executors and Administrators, 13th Ed., ·
     Vol.2, p.663, para.1010, and Jarman on Wills, 8th Ed., D
    Vol.II, p.1397). This rule operates normally where the entire
     income. is applied for the benefit of the donee. The
    distinguishing feature in this case is that it is not the entire
    income that is available to the donee for their actual use
    but only a portion thereof. But it is to be observed that E
    according to the scheme of the trust deed, th,e reason for
    limiting the enjoyment of the income to a specified sum
  . thereof, is obviously in order to facilitate and bring about
    the discharge of the debts. As already explained the
    underlying scheme of the trust deed is that the enjoyment F
    is to be restricted until the debts are discharged. Whatever
    may be said of such a provision where a donee is not
    himself a person who is under any legal obligation aliunde
    to discharge such debts, the position in this case is
    different. The two sons are themselves persons who, if the G
    settler died intestate, would be under an obligation to
    discharge his debts out of the properties which devolve .
    upon them. It is only the surplus which would be legally
    available for division between them. In such a case, the
    balance of the income which is meant to be applied for H
    416       SUPREME COURT REPORTS                [2010] 3 S.C.R.


A       the discharge of the debts is also an application of the .
        income for the benefit of the donees. It follows that the
        er.tire income is to be applied for the benefit of the donee
        and only the surplus, if any is available to the donees.
        Hence the provision in the trust deed that lots I to IV are to
B       devolve on Rajes and lot V on Ramendra and that the
        surplus income of each of these lots after the discharge
        of the debts is also to devolve in the same way, clearly
      _ operates as nothing more than the present allotment of
        these properties themselves to the donees subject to the
c       discharge of debts notionally in the same proportion. Thus,
        taking the substance of the entire scheme of this division
        between the two sons the position that emerges is as
        follows. (1) Specified lots are ear-marked for each of the
        two sons. (2) The present income out of those Jots is to
        be applied for the discharge of the debts after payment
D
        of specified sums therefrom by way of monthly payments
        to the two sons and presumably such application is to be
       notionally pro rata: (3) Any surpluses which remain from
        out of the income of each of the lots are to go to the vel}'
       person to whom the corpus of the Jot itself is to belong
E       on the termination of the trust. (4) In the event of any of
        the two sons dying before the termination of the trust, his
       interest in the monthly payments out of the income is to
       devolve on his·heirs. These arrangements_ taken together
       clearly indicate that what is postponed is not the vel}'
F      vesting of the property in the lots themselves but that the
       enjoyment of the income thereof is burdened with certain
       monthly payments and with the obligation to discharge
       debtt: ti'1erefrom notionally pro rata, all of which taken
       together constitute application of the income for his
G      benefit.

                It may be noticed at this stage that one of the ·
          features of a contingent interest is that if a person dies
          before the contingency disappears and before the vesting
H         occurs, the heirs of such a person do not get the benefit
   P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                    417
             ORS. [G.S. SINGHVI, J.]
     of the gift. But the' trust deed in question specifically        A
     provides in the case of Rajes - with whose interest alone
     we are concerned - that even in the event of his death it
     is his heirs (then surviving) that would take the interest. It
     has been urged that the provision in cl.12(a) in favour of
     the heirs then surviving is in the nature of a direct gift in    B
     favour of the heir or heirs who may be alive at the date
     when the contingency disappears. But even so, this would
     make no practical difference.' It is to be remembered that
     in this case the parties belong to the Dayabhaga school
     of Hindu Law - and this is admitted before us. It is also to     c
     be remembered that up to the third degree in the male line
     the principle of representation under the Hindu Law
     operates. The net result of the provision, therefore, is that
     whenever the alleged contingency of discharge of debts
     may disappear the person on whom the interest would              0
     devolve would, in the normal course, be the very heir (the
     lineal descendant then surviving or the widow) of Rajes.
     The actual devolution of the interest, therefore, would not
     be affected by the alleged contingency. That being so, it
     is more reasonable to hold that the interest of Rajes
     under the deed is vested and not contingent.                     E'

           This view is confirmed by the fact that under the
     compromise decree which is now sought to be executed,
     both the judgment-debtors, Rajes and Ramendra,
     created a charge for the monthly payment to Santi Devi · F
     and agreed to such charge being presently executable.
     This shows clearly that they themselves understood the
     interest available to them under the trust ris a vested
     interest."
                                                                      G
                                            (emphasis supplied)

    12. In Usha Subbarao v. B.N. Vishveswaraiah (1996) 5
sec 201, a two-Judge Bench was called upon to consider
whether the appellant is entitled to share of her husband in the
                                                                      H
    418      SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A properties left by her father-in-law, Dr. N.S. Nanjundiah on the
  basis.of a Will executed by him. The appellant pleaded that the
  respective shares of the sons of the testator including her
  husband vested in them as per the Will and after the death of
  her husband, she is entitled to the share of her husband. The
B trial Court held that the succession opened on the death of the
  testator by virtue of which all his sons became entitled to equal
  shares in the properties and the recital in the Will that the
  partition should take place amongst the surviving children after
  the death of Smt. Nadiga Nanjamma is really intended to refer
c to the children surviving the testator. This view of the trial Court
  was reversed by the High Court and the suit was dismissed.
  This Court referred to Sections 19 and 21 of the 1882 Act,
  Sections 119 and 120 of the Indian Succession Act and
  reiterated one of the propositions laid down in Rajes Kanta
D Roy v. Santi Devi (supra) by making the following
  observations:

          "Although the question whether the interest created is a
          vested or a contingent interest is dependent upon the
          intention to be gathered from a comprehensive view of
E         a// the terms of the document creating the interest, the
          court while construing the document has to approach the
          task of construction in such cases with a bias in favour
          of vested interest unless the intention to the contrary is
          definite and clear."
F
    The ratio of the above noted two judgments was followed in
    another two-Judge Bench in Kokilambal v. N. Raman (2005)
    11 sec 234.

       13. Having noticed the distinction between vested interest
G and contingent interest, we shall now consider whether Ex.A-2
  was a Settlement Deed or a Will. Although, no strait-jacket
  formula has been evolved for construction of such instruments,
  the consistent view of this Court and various High Courts is that
  while interpreting an instrument to find out whether it is of a
H
  P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                        419
             ORS. [G.S. SINGHVI, J.]
testamentary character, which will take effect after the life time       A
of the executant or it is an instrument creating a vested interest
in praesenti in favour of a person, the Court has to very carefully
examine the document as a whole, look into the substance
thereof, the treatment of the subject by the settlor/executant, the
intention appearing both by the expressed language employed              B
in the instrument and by necessary implication and the
prohibition, if any, contained against revocation thereof. It has
also been held that form or nomenclature of the instrument is
not conclusive and the Court is required to look into the
substance thereof.                                                       c
     · 14. Before proceeding further, we may notice the
judgments on which reliance was placed by learned counsel for
the parties. In Gangaraju v. Pendya/a Somanna (supra), the
learned Single Judge was called upon to construe deed datE;ld
27 .2.1917 executed by one Kristnamma. The learned Single                D
Judge referred to the contents of the document and observed:

       'The document on the face of it is of a non-testamentary
       character. It was so stamped and so registered. It is called
       a dakal dastaveju, which means a conveyance or                    E
       settlement deed. It is true that a document which is not a
      Will in form, may yet be a Will in substance and effect; but
      as was held in Mahadeva Iver v. Sankarasubramania Iyer
      (1 ), if an instrument is a deed in form, in order to hold th.at
      it is testamentary or in the nature of a Will, there must be       F
· ... something very special in the case; and unless there are
      circumstances which compel the Court to treat an
       instrument in the form of a deed as a Will, the Court will
      not do so. The leading argument of the appellant is that
      the document created no estate in praesenti. A more literal        G
      translation of the fourth sentence in para 2 of the document
      is:

            Therefore, on account of my affection for you, I have
            arranged that after my death the property shall
                                                                         H
    420
      I
              SUPREME COURT REPORrs                   [2010] 3 S.C.R.


A                belong to you.

          It is certainly very difficult to derive from these words any
          immediate interest crated in favour of the plaintiff. But the
          line between a Will and a conveyance reserving a life
B         estate is a fine one, and it would be hard to define in some
          cases where the document has been held to be non-
          testamentary, wherein the personal interest which was
          transferred consists. A more easily applied test is that of
          revocabi/ity. There is nothing in the suit document to
          show that Kristnamma reserved the right to revoke it. On
c         the contrary there is an undertaking not to alienate ·any
          part of the property during his lifetime. I consider that this
          is equivalent to a promise not to revoke the instrument,
          because if the executant intended to reserve that right he
          could not consistently have parted with the right to
D         alienate. The same intention to give finality to the
          depositio11 is suggested by Ex.3, which is a conveyance
          of a portion of the property executed jointly by Kristnamma
          and the plaintiff. The fact that the plaintiff was required to
          join is significant, and in the schedule the property _is
E         described as that which was conveyed by Kristnamma fo
          him. This document seems also to lend some colour to
          the view that an immediate conveyance of interest was
          intended in Ex.F. I think that Kristnamma had the
          intention not to revoke the conveyance and this has
F         always been regarded as one of the most important tests."

                                                 (emphasis supplied)

       15. In Venkatasubramaniya Iyer v. Srinivasa Iyer (supra),
  the question considered was whether the dt>cument marked
G Exhibit - C is a Settlement or a Will. The learned Single Judge
  answered the question in the following words:

          " ....A question of that kind is one that has to be decided
          primarily on the terms of the document itself. It was
H         executed by a widow, the mother of the plaintiff, and is
P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                      421
           ORS. [G.S. SINGHVI, J.]
 styled a settlement in favour of the plaintiff. It recites certain   A
 family arrangements by which certain moveables are
 divided between the widow and the plaintiff, and the widow
 retains certain immovable property for herself. It deals with
 property to an extent of over three velis left to her by her
 husband under his will absolutely and recites that, in               B
 respect of that on account of the request made to her by
 her son for the benefit of his minor son, the present
 defendant and. out of favour to himself and in
 consideration of the arrangement that he would not
 during her lifetime encumber or alienate the rights that             c
 would come. ta him in the property after her death, she
 on her side undertakes to meet all her own expenses till
 her death out of the income and not to alienate the
 property. Thus the document prohibits both parties from
 alienating the rights retained or giveh thereby. It directs          0
 that after the widow's death, the plaintiff and his heirs shall
 enjoy the property with all absolute rights. It further provides
 that if the widow fails to pay the kist on the property, the
 plaintiff shall pay and may recover from her out of her
 income, and that the pattah for the property shall be                E
 transferred to the plaintiff. The document is styled a
 settlement and registered.

 It is contended by the appellant that the document is a
 will since the only operative portion of it is that which
 bequeaths the property to the plaintiff and his heirs after F
 the death of the widow. Both the lower Courts have
 rejected this contention and held the document to be a
 settlement. I think it is clear from the tenor of the
 document that it is not a will. It mentions considerable
 property which is not disposed of by it at all. It does more G
 than bequeath property to the plaintiff after the widow's
 death. He obtains by it certain rights in presenti, fpr .
 example, the right as covenanted with him that the widow
 will not alienate the property during her lifetime. He
 himself is given the right to recover the unpaid kists from H
    422      SUPREME.COURT REPORTS                  (2010] 3 S.C.R.


A         her income and to have the pattah transferred to his
          name. There is no language indicating that the widow was
        retaining with her any power to revoke the document, while
        the surrender of her right to alienate during her lifetime
        indicates that she did not reserve any power to revoke.
B       These points combined with the facts that the parties
        intended the document to be a settlement and styled it as
        such and that it was handed over to the plaintiff and not
        retained with the widow are sufficient to indicate that the
        widow was merely retaining a life-interest in the property
c       and was transferring to the plaintiff the vested remainder.
        It is not of much help to refer to reported rulings in a case
        of this kind when the decision has to be based on the
        wording of a particular document, but documents of very
        similar wordings were held to be settlements and not 1111ills
        in Rajammal v. Authiammal (191 O] 33 Mad. 304 and in
D
        Gangaraju v. Somanna A.1.R. 1927 Mad. 197. These
       ·come nearer to the present case than those in
          Venkatachala Chetty v. Govindaswamy Naicker A.l.R.
          1924 Mad. 605, Thakur /shri Singh v. Baldas Singh
          [1884] 10 Cal. 792 quoted by the appellant. I can see no
E
          ground for holding that the lower appellate Court made any
          error of law in regarding Ex. C. on the face of it as a
          settlement and not a will."

                                                (emphasis supplied)
F
         16. In Ramaswami Naidu v. Gopa/akrishna Naidu (supra),
    the High Court laid down the following broad test for construction
    of document:

          'The broad tests or characteristics as to what constitutes
G         a will and what constitutes a settlement have been noticed
          in a number of decisions. But the main test to find out
          whether the document constitutes a will or a gift is to see
          whether the disposition of the interest in the property is
          in praesenti in favour of the settlees or whether the
H         disposition is to take effect on the death of the execut8nt.
  P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                    423
             ORS. [G.S. SINGHVI, J.]
    If the disposition is to take effect on the death of the         A
    executant, it would be a will. But if the executant divests
    his interest in the property and vests his interest in
    praesenti in the settlee, the document will be a settlement.
    The general principle also is that the document should
    be read as a whole and it is the substance of the                B
    document that matters and not the form or the
    nomenclature the parties have adopted. The various
    clauses in the document are only a guide to find out
    whether there was an immediate divestiture of the interest
    of the executant or whether the disposition was to take          c
    effect on the death of the executant."

    "If the clause relating to the disposition is clear and
    unambiguous, most of the other clauses will be ineffective
    and explainable and could not change the character of the
    disposition itself. For instance, the clause prohibiting a       D
    revocation of the deed on any ground would not change
    the nature of the document itself, if under the document
    there was no disposition in praesenti."

                                           (emphasis supplied)       E

    17. In Ramaswami Naidu v. M.S. Velappan and others
(1979) 2 M.L.J.88, the Division Bench of the Madras High Court
referred to the documents which were subject matter of
Cc)nsideration before it and observed:
                                                                     F
    "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        G
    Velappan and his ·heirs for them to enjoy the same
    absolutely ...... .

    These two dispositive clauses create an interest in
    praesenti. The question is whether the postponement of           H
    424       SUPREME COURT REPORTS                    [2010] 3 S.C.R.


A         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
B         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
          sett/or, would not make it a settterrient not being in
          praesenti. We are therefore unable to agree with the
c         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.

          In the instant case the document itself is styled as a
D         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
E         interest in the first plaintiff by any declaration or use of
          words either express or implied."

                                                  (emphasis supplied)

         18. In A. Sreenivasa Pai and another v. Sa~aswathi
F · Ammal alias G. Kamala Bai (supra), this Court considered
    whether by virtue of Settlement Deed executed by appellant A.
    Sreenivasa Pai in favour of his mother-in-law Padmavathi
    Ammal, the latter became absolute owner of the properties
    described in the plaint 'A' schedule and upon her death, her
G daughter S. Lakshmi Ammal acquired title to the said
    properties under the law of inheritance being the sole heir of
    the deceased. While dealing with the issue, the Court referred
    to the terms of Settlement Deed and held that A. Sreenivasa ·
    Pai desired to give the properties to V. Sreenivasa Pai
H absolutely subject to the life interest conferred on Padmavathi
   P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                   425
             ORS. [G.S. SINGHVI, J.]
Ammal and he had no intention to give the properties to be           A
enjoyed by Padmavathi Ammal and by her heirs from
generation to generation.

      19. In Namburi Basava Subrahmanyam v. Alapati
J-iymavathi and others (supra), this Court observed that the         8
nomenclature -0f the document is not conclusive and the Court
has to find whether the document confers any interest in the
property in praesenti so as to take effect intra vivos and whether
an irrevocable interest thereby is created in favour of the
ri:cipient, all those to be gathered from the recitals of the        C
documents as a whole and observed:

    "The said recital clearly v:ould indicate that the settlement
    deed executed on that date is to take effect on that day.
    She created rights thereunder intended to take effect from
    that date, the extent of the lands mentioned in the Schedule     D
    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        E
    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 and vested
    the remainder in favour of her second daughter. It is settled
    law that the executant while divesting herself of the title to   F
    the property could create a life estate for her enjoyment
    and the property would devolve on the settlee with absolute
    rights on the settler's demise. A reading of the documents
    together with the Schedule would give an indication that
    she had created right and interest in praesenti in favour        G
    of her daughter Vimalavathy in respect of the properties
    mentioned in the Schedule with a life estate for her
    enjoyment during her lifetime. Thus, it could be construed
    rightly as a settlement deed but not as a Will. Having
    divested herself of the right and title thereunder, she had,
                                                                     H
      426      SUPREME COURT REPORTS                      (2010] 3 S.C.R.


 A          thereafter, no right to bequeath the same property in favour
            of her daughter Hymavathy. The trial court and the learned
            Single Judge rightly negatived the claim. The Division
            Bench.,was not, therefore, correct in law in interfering with
            the decree of the trial court."
  B
          20. In Vynior's case (supra) Lord Coke said "if I make my
    .testament and last will irrevocable, yet I may revoke it, for my
     act or my words cannot alter the judgment of the law to make
     that irrevocable which is of its own nature revocable." This
  C statement of law was relied upon by the Division Bench of
     Calcutta High Court in Sagar Chandra Manda/ v. Digamber
     Manda/ and others (supra). In that case, the court was called
     upon to consider the true character of the instrument which was
   . described as a Will. After noticirig the contents of the
     documents, th~ Division Bench referred to Vynior's case and
  D observed:

            "As to the true character of the instrument propounded by
           .the appellant we think there can be no reasonable doubt
            that it is a will. A will is defined in section 3 of the Indian
  E         Succession Act 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. Section 49 then
,.·      . provides that a will is liable to be revoked or altered by
            the maker of it, at any time when he is competent to
  F         dispose of his property by will. If therefore an instrument
            is on the face of it of a testamentary character; the mere
           circumstance that the testator calls it irrevocable, does not
            alter its quality, for as Lord Coke said in Vynior's Case.
           "If I make my testament and last will irrevocable, yet I may
           revoke it, for my act or my words cannot alter the judgment
 G
           of the law to make that irrevocable which is of its own
           nature revocable." The principal test to be applied is,
           whether the disposition made takes effect during the
           lifetime of the executant of the deed or whether it takes
           effect after his decease. If it is really of this latter nature, it
 H
   P.K. MOHAN RAM v. B.N. ANANTHACHARY AND                    427
             9RS. [G.S. SINGHVI, J.]
     is ambulatory and revocable during his life. [Musterman A
     v. Maberley, and in Bonis v. Morgan]. Indeed, the Court
     has sometimes admitted evidence, when the language of
     the paper is insufficient, with a view to ascertain whether
     it was the intention of the testator that the disposition
     should be dependent on his death. [Robertson v. Smith]. B
     Tested in the light of these principles, there can be no doubt
     that the instrument now before us is of a testamentary
     character. It is described as a will and states explicitly that
     as after the death of the testator, disputes might arise
     among his relations with regard to the properties left by c
     him, he made the disposition to be carrie9 into effect after
     his demise. The terms and conditions are then set out,
     paragraph by paragraph, and in each p~ragra,ph the
     disposition is expressly stated to take effect after his
   . demise. Against all this, reliance is placed on the sixth D
     paragraph, in which the testator says that he would be at
     liberty to mortgage the properties and not to sell them
     absolutely. Such a restraint as this upon his own power of
     alienation during his lifetime would be obviously void. It ·
     does not indicate any intention to make the deed E
     irrevocable."

       21. In the light of the above, we shall now consider whether
ttle trial Court and lower appellate Court rightly treated Ex. A-2
to be a Settlement Deed and the contrary finding recorded by
the learned Single Judge of the High Court is legally                 F
unsustainable. A careful reading of Ex.A-2 shows that in the title
itself the document has been described as Settlement Deed.
By executing that document, Shri K. Perumal Iyer expressed
his intention, in no uncertain terms, to settle the property in
favour of 16 persons who were none else than his own relatives        G
and declared that 'from this day onwards I and you shall enjoy
the ·1and and house without creating any encumbrance or
making any alienation whatsoever.' This was an unequivocal
creation of right in favour of 16 persons in praesenti. Though,
the beneficiaries were to become absolute owners of their             H
      428      SUPREME COURT REPORTS                [2010] 3 S.C.R.


 A  respective shares after the death of the settlor, the language
    of the document clearly shows that all of them were to enjoy the
    property along with settlor during his lifetime and after his death,
    each of the beneficiaries was to get a specified share. In the
    concluding portion, the settlor made it clear that he will have
  B no right to cancel the Settlement Deed for any reason
    whatsoever or to alter the terms thereof. The mere fact that
    beneficiary Nos. 1 and 2 and a°fter them their heirs were to
    receive honours at the temple or that shares were to be divided
    after disposal of the property cannot lead to an inference that
· c Ex.A-2 was a 'Will'. If Ex.A-2 is read as a whole, it becomes
    clear that it was a 'Settlement Deed' and the trial Court and
    the lower appellate Courf:,~id not commit any error by recording , ·
    a finding to that effect. As a sequel to this, it must be held that
    the High Court committed serious error by setting aside the
 ·D concurrent judgments and decrees of the two courts.

        22. The judgments in Vynior's case and those of the
   Calcutta and Madras High Courts on which reliance was placed
   by the learned senior counsel for the respondents turned on
   their own facts and cannot be relied upon for declaring that Ex.
 E A-2 was a 'Will'.

           23. Although, in their written statement respondent Nos.1
      and 2 did plead that Ex. A-2 was executed by Shri K. Perumal
      Iyer due to fraud or misrepresentation, no evidence was led by
 F    them to substantiate that allegation. Therefore, we do not find
      any valid ground or justification to entertain that plea.

        24. In the result, the appeal is allowed. The impugned
    judgment is set aside and those of the trial Court and the lower
    appellate Court are restored. The parties are left to bear their
· G own costs.                                               c




      B.B.B.                                        Appeal allowed.