JUDGMENT
1. By a registered deed, Exhibit A, one Ponnu Sankara Subbaiyar settled certain immoveable property on charitable trusts and appointed himself as hukdar for life and provided that after his death, his grandson, Sankara Subramania Aiyar, should, succeed him as hukdar, and that such grandson and every successive hukdar, should in turn select a successor in like manner. Subsequently, the settlor executed two deeds, Exhibits B and C, by one of which he purported to cancel the appointment of Sankara Subramania Aiyar as hukdar, while by the other, he appointed the present plaintiff. On the settlor's death, the plaintiffs took possession' but were subsequently deprived of possession in proceedings under section 145, Criminal Procedure Code, and then instituted the present suit. The District Munsif decided in his favour but the lower Appellate Court dismissed the suit on the ground that the settlor had no power to revoke the appointment, under Exhibit A, of the defendant. For the appellant, it is contended that that part of Exhibit A which appoints the defendant must be regarded as being of a testamentary character and so revocable. We are unable to accept this contention. It is not contended that the whole of Exhibit A is revocable and we see no reason why one portion of the deed should be held revocable rather than another. Further, it is well settled that if an instrument is a deed in form, in order to hold it testamentary or in the nature of a Will, there must be something very special in the case and that unless there are circumstances which compel the Court to treat an instrument in the favour of a deed, as a Will, the Court will not do so: Patch v. Shore 2 Dr. & Sm. 589 : 32 L.J. Ch. 185 : 9 Jur. (N.S.) 63 : 11 W.R. 142 : 7 L.T. 554 : 1 N.R. 157. There are no such circumstances in the present case. The deed appears to create a vested right in the defendant to take effect in possession. On the death of the settlor, the provisions as to the succession after the defendant's death may be open to objection, but this cannot affect the provisions as to the defendants' succession to which no objection be urged. It was, of course, open to the defendant, as to any other trustee, to disclaim the trust conferred on him, but he did not do so; and under these circumstances, we are of opinion that the right to the trusteeship which became vested in him at the date of the deed took effect in possession at the death of the settlor.
2. The second appeal is dismissed with costs.