Right to encumber the property with consent of donee is not gift.

Defendants 2 and 3 in O.S.No.573 of 1984, on the file of the District Munsif’s Court, Nagercoil, are the appellants.

2. Material averments in the plaint may be stated as follows:

Plaint property, according to plaintiff, belonged to him and first defendant as per settlement deed dated 10. 1959, registration copy of which is marked as Ex. A-l. The property originally belonged to their father Daveed Nadar. It is the case of the plaintiff that on the basis of Ex.A-1, they obtained absolute title. It is a gift. In spite of various demands, defendants are not co-operating to effect a partition.

3. Second defendant is none other than their mother. Third defendant is also another daughter of late Daveed Nadar. It is further said that Daveed Nadar had another wife by name Chellammal, and third defendant was born in that marriage. It is further said that Ex.A-1 is not gift and the same has not come into effect, and it is only in the nature of a Will, and if the plaintiff wanted to claim any right on the basis of Ex.A-1, parties being christian, they have to obtain probate or letters of administration. The same not having been obtained, title claimed under that document is not maintainable.

4. Trial Court recorded evidence, both oral and documentary, on the basis of the above pleadings. P.W. 1 is the plaintiff. 3rd defendant got herself examined as D.W.I. Their mother (second defendant) was examined as D.W.2. Exs.A-1 to A-23 were marked on the side of defendants. Exs.C-1 and C-2 are respectively the Commissioner’s Report and plan.

5. Trial Court came to the conclusion that Ex.A-1 is only a will and not a gift, and plaintiff cannot claim any absolute right over the property. The suit was, therefore, dismissed.

6. When the matter was taken in appeal, the Lower Appellate Court took a different view. It held that Ex.A-1 constitutes a gift and the donees are plaintiff and first defendant. Plaintiff is, therefore, entitled to one half right in the plaint property. A preliminary decree was passed. It is, questioning the said judgment, defendant 2 and 3 have preferred this appeal.

7. At the time of admission of second appeal, the following substantial question of law was raised for consideration:

"What is the nature and effect of the document dated 10. 1979 which has been marked as Ex.A-1 in the trail Court and whether the judgment of the lower appellate court is correct?"

8. Only question that has to be considered is, what is the nature of right that was created under Ex.A-1. Whether the document is a will or gift,9. Relevant portion of the document is extracted below:

For better appreciation, 1 would like to give a translation of the above extract. It reads thus:

"Till now I have no male issues. Out of the properties belonging to me, in respect of the schedule items alone, I intend to make a settlement by virtue of this document, and that is the reason for executing this deed. Schedule items shall be under my lifetime and during my life, in case necessity arises I can encumber the property in any manner even without the consent of any one of you, and I am entitled to deal with the same. You are directed to effect mutation from this date and change patta in your name. You are also directed to pay kist. After my life, you are bound to maintain your mother, who is my wife Devasironmani, and during that period, you are entitled to take only the income therefrom. If both of you intend to encumber the property in any manner, that must be after my lifetime, and that too only on bom of you completing the age of 35 years, and thereafter you may enjoy the property in any manner you feel it fit and proper.“

From a reading of Ex.A-1, I do not find that late Daveed Nadar has bequeathed his right to any one. It is true that he has asked the donees to change the patta in their name and also to pay tax from the date of gift. But that must be on the basis of a transfer of title. I do not find that the executant has transferred his right. Along w