A document will be construed as a settlement deed and not a will if it contains recitals indicating the settlor's intention to confer an interest in the property on the settlees, there is no reservation of power to revoke the document, and the interest in the property passes to the settlees immediately upon execution of the document.

The only question is whether Ex. B3 is a settlement deed or a Will, Learned counsel for the appellants contends that it is only a Will and not a settlement deed as it does not convey any interest in the property in praesenti . Learned counsel places reliance on judgments in Commissioner of Gift Tax, Madras II Madras v. G. Thiruvenkata Mudaliar Madras 1976 T.L.N.J. 325 and in Sadasivam v. Subramania Pillai 1986 T.L.N.J. 270. In the former case, a Division Bench of this Court had to consider a document, the provisions of which were as follows:

“(1) The settlors are to continue to enjoy both the items of properties during their life time. (2) The settlors will have no power to alienate or otherwise dispose of the property in any manner such as by way of gift, exchange, mortgage, etc. (3) After the death of both the settlors, one of the sons should enjoy the property during his lifetime without any power of alienation by way of gift, etc., and after his life time, his heirs should take and enjoy the said properties as full owners absolutely. (4 ) Similarly, another son is to take and enjoy another property during his lifetime without power of alienation and after his death, his heirs would take and enjoy the same as full owners. (5) The settlors have no right to revoke the document.”

2. Thus, it is seen that in the document, there was no conveyance of any interest in the property. But there was a restriction of the estate owned by the settlors themselves whereby they declared that they had no power to alienate or otherwise dispose of the property in any manner during their life time. The Division Bench had no difficulty in holding that the document did not constitute a settlement or gift as there was no provision at all in the document transferring any interest in the immovable property in praesenti in favour of the settlee.

3. In the second case, another Division Bench held that the document in question was a Will and not a settlement deed as it did not create an interest in praesenti . The relevant terms on which considerable reliance were placed were The Division Bench, on a reading of the entire document negatived the contention that the said expression meant that the settlor gave an interest in praesenti

4. In Rajammal v. Authiammal alias Authi Lakshmiammal 33 Madras 304 a Division Bench of this Court held that one of the invariable tests in coming to a conclusion as to the testamentary character of a document is whether the document is revocable, and if it is not revocable, the document is not a will. Their Lordships have also held that the intention of the party will be given effect to, though it is expressed in inappropriate language and that the reservation of a life interest does not of itself suffice to make a document testamentary. It was pointed out that where the document contains provisions which are not of an ambulatory character, the presumption will be against the testamentary nature of the document and the fact that such provisions are expressed to operate in the future will not affect the nature of the document.

5. Learned counsel for the respondents placed reliance on judgments in P. Somasundaram v. K. Rajammal 89 L.W. 151 and in Ram Mohan v. Lalitha Raghuraman 89 L.W. 175. The judgment in the earlier cases is followed by the same Division Bench in the latter case. Learned counsel for the respondents relies on the following observations found in the judgment in the earlier case.

“An interest is said to be vested when it is not subject to any condition precedent, when it is to take effect on the happening of an event which is certain, whereas an estate is contingent when the right to enjoyment depends upon the happening of an uncertain event which may or may not happen. A person takes a vested interest in property at the testators death when he acquires proprietary right in it at that time; but the right of enjoyment is only deferred till a future event happens which is certain to happen. But, a conting