The main legal point established in the judgment is the distinction between a settlement deed and a will, based on the intention of the parties, the recitals in the document, and the immediate transfer of property. The court emphasized the importance of considering the substance of the document and the circumstances surrounding its execution to determine the nature of the disposition.

The second defendant who suffered a decree before the Courts below has filed this Second Appeal.

2. The respondent/plaintiff filed a suit in O.S.No.387/1985 on the file of the District Munsif Court, Namakkal, for a declaration that the plaintiff is entitled to the suit property, after the lifetime of the 1st defendant and for possession of the same from the 2nd defendant. Even according to the plaintiff, as stated in the plaint filed in O.S.No.387/1985 on the file of the learned District Munsif Court, Namakkal, she is a concubine of the first defendant and with that relationship they lived together. So the 1st defendant has executed a settlement deed under Ex.A4, dated 25.2.1980 in favour of the plaintiff. On that basis, the plaintiff has come forward with the suit that she is the absolute owner of the said property pursuant to the said settlement deed, and the sale in favour of the 2nd defendant by the 1st defendant under Ex.B1 dated 27.9.1980, is sham and nominal, and the 1st defendant has no right to execute the said sale deed. It is stated that such a sale in favour of the 2nd defendant will not bind the plaintiff.

3. The 1st defendant contested the suit contending inter alia that the said document Ex.A4 was executed as a consideration of the plaintiff's living as a concubine of the 1st defendant. So, the said document cannot be enforceable in law. It is also stated that it is only a will and not a settlement deed and so the 1st defendant is entitled to cancel the said document, and, factually it was cancelled, and a sale deed was executed in favour of the 2nd defendant.

4.Pending suit, the 1st defendant died. The trial Court decreed the suit holding that Ex.A4 is a settlement deed and so the defendants cannot claim any right over the suit property on the basis of Ex.B1 sale deed. So, the 2nd defendant preferred an Appeal in A.S.No.189/91 on the file of the District Court, Salem. The learned District Judge also confirmed the judgment and decree of the trial Court, and dismissed the Appeal. Hence this Second Appeal by the 2nd defendant.

5.The Substantial questions of law that were framed in this Second Appeal are:-

`

(1) Whether the interpretation of the document Ex.A4 by the Courts below to hold that it is a settlement deed is correct in view of the contra decisions reported in 85 L.W. Page 152, page 430, 1977 I.T.R. page 661 and the unreported judgment in S.A.No.645 of 1968?

(2) Whether the lower Court is right in applying the decisions reported in 1947 Bombay page 49, 1979(1) MLJ page 88 and 1981 MLJ page 171 to hold that the document Ex.A4 is not a will?

6.From the pleadings, it is clear that the plaintiff was living with the 1st defendant as a concubine and as a consideration for the same, the 1st defendant had executed a document under Ex.A4, dated 25.2.1980 in favour of the plaintiff. Subsequently, the 1st defendant executed a sale deed under Ex.B1 dated 27.9.1980 with respect to the same property in favour of the 2nd defendant. The plaintiff claims right in the suit property on the basis that Ex.A4 is a settlement deed and thereby she got right in the property, and the 1st defendant has no right to execute the sale deed in favour of the 2nd defendant under Ex.B1. According to the 1st defendant, Ex.A4 is only a Will and that Ex.A4 was executed in consideration of the plaintiff's living as a concubine with the 1st defendant and so on the basis of the said document, the plaintiff cannot claim any right in the suit property.

7.Both the Courts below have concurrently found that the said document cannot be construed as illegal, merely because it was executed in favour of the plaintiff, the concubine. The Courts below have relied on the decision in Saradambal Ammal v. Natesa Mudaliar, 1984 L.W.330. With respect to the nature of the said document, both the Courts below have concurrently found that it is a settlement deed and cannot be construed as a Will and so the plaintiff is entitled to claim right in the said prop