JUDGMENT :

N. Sathish Kumar, J.

1. Aggrieved over the judgment of the first Appellate Court reversing the Trial Court judgment and decree in the suit filed for recovery of possession and damages, the present Second Appeal is filed.

2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.

3. The brief facts leading to the filing of this appeal are as follows:

3.1. The plaintiff has purchased the suit property from the husband of the first defendant, by name Baluchamy @ Santhanam on 10.11.2000. In pursuant to the sale deed, the tax assessment was also transferred to his name. The second and third defendants are the daughters of the said Baluchamy @ Santhanam. The husband of the first defendant has executed a document on 10.11.1963 in favour of the first defendant regarding the suit property with a hope that she will look after the welfare of the said Baluchamy @ Santhanam. But, contrary to his expectation, the first defendant did not care for her husband and deserted him and left the matrimonial home and settled at Dindigul with the second defendant. However, the property was continued to be in possession and enjoyment of Baluchamy @ Santhanam. Though the document dated 10.11.1963 is styled as a 'settlement', the recitals of the same will prove that it is only a 'Will'. It is stated in the document that it should come into effect only after the death of Baluchamy @ Santhanam. Hence, it is only a Will. The same was cancelled by the said Baluchamy @ Santhanam on 09.11.2000. The first defendant also created a settlement deed in favour of the defendants 2 and 3 on 27.12.2000 by anti-dating the same as 18.09.2000'. The settlement is void. The fourth defendant has trespassed into the property and is in possession. Hence, the suit.

3.2. It is the case of the defendants that the document dated 10.11.1963 executed by Baluchamy @ Santhanam in favour of the first defendant is only a settlement deed. The plaintiff is a close relative of Baluchamy @ Santhanam. The said Baluchamy had no right whatsoever to revoke or cancel the settlement deed. Even if it is done, it will not bind the defendants. Possession of the suit property was given to the first defendant in pursuant to the settlement deed dated 10.11.1963. Since then, she along with her husband was in possession and enjoyment of the property. The allegation that the first defendant has deserted her husband is denied. The cancellation deed dated 09.11.2000 is also invalid. Hence, the first defendant prayed for dismissal of the suit.

3.3. On the basis of the above pleadings, the following issues were framed:

"(i) Whether Ex.B.1 is a settlement or Will?

(ii) Whether the sale deed, namely Ex.A.1 in favour of the plaintiff is true, valid and binding upon the defendants?

(iii) Whether the plaintiff is entitled for recovery of possession? and

(iv) To what other reliefs?"

3.4. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.11 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Exs.B.1 to B.5 were marked.

3.5. On the basis of the evidence and materials, the Trial Court has decreed the suit in favour of the plaintiff holding that Ex.B.1 is construed only as a Will and the testator has cancelled the same and the plaintiff, being a purchaser, is entitled to recover the suit property, as against which, the appeal was filed before the First Appellate Court. The First Appellate Court allowed the appeal holding that Ex.B.1 dated 10.11.1963 is only a settlement deed and not a Will. As against the same, the present Second Appeal is filed.

4. At the time of admission of the Second Appeal, the following substantial questions of law were framed:

"(i) Whether the finding of the first appellate Court in deciding the issue with regard to Ex.A.3 or B.1 is a settlement deed on the foot of the nomenclature alone without reading the document in whole is maintainable?

(ii) Whether there is any right in praesenti is vested