Nomenclature of the document showing as a will.

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 plaintiff's 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