Substance of the document has to be read entirely.

1. Theunsuccessful defendants 1 and 2 have filed this second appeal.

2. The plaintiff on the basis Ex.A-2 settlement deed dated 27.3.1969 filed a suit for declaration and partition of his 1/17th share in the suit property. According to him, under Ex.A-2, one Perumal Iyer executed the settlement deed and thereby the plaintiffs is entitled to 1/17th share. The plaintiff is one of the sisters children of Ponnammal, who is the wife of Perumal Iyer. It is not in dispute that Perumal Iyer died issueless.

3. The defendants contested the suit contending inter alia that Ex.A-2 is not the settlement deed as alleged, but it is only a Will. According to them, the suit property originally belonged to Gopal Iyer, the 1st defendants grandfather. In the partition, Perumal Iyer got the suit property towards his share. Perumal Iyer died issueless. He executed a registered Will dated 30.7.1972 bequeathing the suit property to the defendants 1 and 2. This was with the knowledge of the relatives including the plaintiff and so the plaintiff cannot claim any right in the suit property. Referring to O.S.No.636 of 1972, the defendants have come forward with the plea that the plaintiff is precluded from suing the defendants 1 and 2 for the relief sought for, as the suit is barred by res judicata.

4. The trial Court accepting the case of the plaintiff decreed the suit as prayed for. The defendants 1 and 2 filed appeal in A.S.No.102 of 1982 on the file of the Sub Court, Madurai. The learned Sub Judge also concerned with the findings of the trial Court and dismissed the appeal, except granting costs. Hence this second appeal.

5. Thesubstantial questions of law that were framed in this second appeal are:

(1) Whether the suit is barred byO.2, Rule 2, the Code of Civil Procedure in view of the fact that the 1st respondent omitted to sue for all the reliefs on the earlier occasion since the case of action remains same in both the suits.

(2) Whether the deed styled as settlement is actually a Will having regard to the provisions contained therein.

6. On the basis of the arguments made by the learned senior counsel appearing on both sides, it has to be decided whether Ex.A-2 dated 27.3.1969 is a settlement deed or Will. If the case of the plaintiff that Ex.A-2 is a settlement deed is accepted, he is entitled to a share; If it is not a settlement deed, the defendants 1 and 2 are entitled to succeed in this second appeal.

7. So, we have to find out whether Ex.A-2 constitutes a Will or settlement. The main test is whether the disposition of the interest in the suit property in in praesenti in favour of the settles or whether it takes effect on the death of the executant. If it is on the death of the executant, it would be a Will. If the interest of the property is divested and the interest is vested in praesenti on the settlee, the document has to be treated as settlement. To find out the same, the substance of the document should read entirely, and it cannot be decided on the basis of the form of the nomenclature.

8. Though the Courts below have given importance the recitals in the document regarding the execution of Ex.A-2 to revoke the document, the lower appellate Court proceeds on the basis that since the document is irrevocable, it has to be construed as settlement.

9. To appreciate the said document it is beneficial to extract the relevant portion of the document itself. Ex.A-2 describes itself as settlement. The reason for executing the document was, the executant did not have any issues. The relevant portion relating to disposition on the part of the deed is concerned, it is stated as follows:

[Italics is applied]

It is further stated in the said document as follows:

From the recitals extracted above from the said document it is clear that the property mentioned therein should be enjoyed by the executant and the beneficiaries under the said document without any right of alienation, and after his lifetime, the beneficiaries Will acquire absol