Latter adjustment executed by settler cannot convey title.

The third defendant is the appellant. The suit was filed by the 1st respondent-plaintiff for a declaration of his title to the suit property and for recovery of possession. The plaintiff claims title to the suit property under a deed dated 10th December, 1942, executed by the 4th defendant. The 3rd defendant-appellant on the other hand claims title to the very same property on the basis of another deed dated 7th July, 1966 executed by the same 4th defendant in favour of the 3rd defendant and her husband. The real question, therefore, for consideration is whether the deed dated 10th December, 1942 executed in favour of the plaintiff conveyed any present interest in the property so that she would have had no right of disposing the same subsequently under the deed dated 7th July, 1966. The deed dated 10th December, 1942 is styled as a settlement deed. After setting out the ownership of the property, the 4th defendant had stated in the document that since she is not in a position to manage the properly for living and with « view to make a provision out of love and affection to the settlee, who is her brother's son, she has executed the document. The document further recited that she had transferred and given possession of the property to the settlee. However, the document further stated that she is entitled to live in the house and that from the income from the property, the settlee shall maintain himself and the settlor. There was also a prohibition of alienation of the property by the settlee during her lifetime and that after her lifetime, the settlee is entitled to enjoy the property absolutely with all powers of alienation.

2. The learned counsel for the appellant contended that the document, though styled as settlement, is in the nature of a will the disposition under which is to take effect on the death of the executant and that, therefore, the latter document executed in her favour on 7th July, 1966 is valid and it superseded the earlier document dated 10th December, 1942. On the other hand, the learned counsel for the plaintiff-respondent contended that there is a present disposition of the property in favour of the settlee, though the settlor had retained to reside in the property and to enjoy the income therefrom.

3. The settlor was a party to the suit and she died only pending the suit. In the written statement filed by her she had stated:

“In about 1942, this defendant having become old, she out of natural love and affection and with a view to provide her brother's son, the plaintiff herein, who had been maintaining and helping her all along executed a registered settlement deed in his favour on 10th December, 1942 giving to him the suit property and an extent of 0.31 cents in Karanthai village, with a condition that he while enjoying the properties ought not to alienate the same during her lifetime but that he should from out of the income therefrom maintain her and after her death take the same absolutely. In pursuance of the said settlement deed, the plaintiff while accepting the condition and taking possession of the suit property and himself living in a portion of the same was letting out the rest to tenants, collecting the rents and maintain her as per the terms of the deed.”

In her evidence as D. W. 1 the 4th defendant stated that the house is in the possession of the plaintiff and that she executed the settlement deed in favour of the plaintiff only in respect of the lands and not in respect of the house. However, in cross-examination she stated that she gave the house and the lands to the plaintiff. She further stated that she was collecting the rent and enjoying the income from the property and even on some occasions when the plaintiff collected the rents, he had made them over to her. The recitals in the deed dated 10th December, 1942 and the written statement and the oral evidence of the 4th defendant clearly show that there was a present disposition of the property in favour of the plaintiff on the