The questions of law formulated in the second appeal on which learned counsel on both sides were heard read as follows:

1. Whether the courts below were right interpreting Ext.A1 as a gift deed?

2. Whether the suit had not abated as a whole when the petition to implead the legal heirs of the 1st plaintiff was dismissed?

After hearing the learned counsel on both sides at length I feel that both questions are substantial questions to be considered in the appeal.

Question No.1

2. The facts of the case are not in dispute. The first defendant Kalyani was the admitted owner of the plaint schedule property. Kalyani has no issues. The plaintiffs are the children of Kalyani’s sister and defendants 3 and 2 are the son and daughter-in-law respectively of Kalyani’s brother. Ext.A1 is the alleged gift deed executed by Kalyani in favouor of plaintiffs. Ext.A3 is the cancellation deed of Ext.A1 by Kalyani and Exts.A2 and A4 are the sale deeds of portions of plaint schedule property to defendants 2 and 3 respectively by Kalyani.

3. If Ext.A1 has taken effect as a gift, Kalyani has no right to execute Exts.A2 to A4. If it was not a gift Exts.A2 to A4 cannot be challenged. Both courts have interpreted Ext.A1 as a gift deed. The first question to be considered is whether Ext.A1 is a gift deed or not. The document is styled as a gift deed. The relevant clause in the document reads as under:

4. The entire disposition is contained in one sentence. Translated into English it will read as follows:

“Since I have no children and you are the children of my elder sister and are living at my beck and call I have given the schedule property as gift on the basis of my love and affection to you for your enjoyment on mutation in revenue records and change of patta, so however that I will continue to keep possession and take income from the property and for valid necessity will be entitled to create simple mortgage of the property for a maximum of rupees seventy five without time limit and you have no right to object to it and after my life time you have to enjoy it with absolute right of transfer and the scheduled property is in Thandaper 4040 and approximately valued at Rs.100/-.

5. There is no dispute that while interpreting a document it should be read as a whole and a harmonious construction of various clauses has to be made. The nomenclature is also important though not conclusive. The intention of the executant as revealed from the words used in the document has to be ascertained. The question to be considered is whether there is absolute vesting of the property on the execute as on the date of the document or is it postponed till the death of the executant. Mere reservation of the right to enjoy the property during the life time of the donor will not make the document something other than a gift if there is transfer in presenti on the date of the execution of the gift deed. Bearing in mind the above principles the various clauses in the document can be examined.

6. The reason for executing the document is that Kalyani, the executant has no children. The plaintiffs are the children of her elder sister. They are at her beck and call and she has love and affection for them. Therefore the property is given to them as gift after relinquishing all her rights and liabilities. It is for their enjoyment on mutation in revenue records and transfer of patta. Kalliani will enjoy the property during her life time. She will have the right to encumber the property for amounts upto Rs.75/-. The total value of the property is Rs.100/-. After her life time the plaintiffs will have full right of alienation and enjoyment. This analysis will show that absolute right is given to the executes only after her life time and till then they are not given full right to deal with the property by transfer or otherwise. It is true that Kalyani has intended the plaintiff to enjoy the property after mutation in revenue records and change of patta. Admittedly, neither the mutation in