The above second appeal has been filed by the defendants 9,10, and legal heirs of the 13th defendant in O.S.No.211 of 1977 on the file of the Additional Sub Court, Tirunelveli. This suit was filed by a certain Gomathiammal for partition of her 1/3 share in the first schedule properties and 1/4th share in items 1 to 12 and 5/8th share in items No.13 and 14 of the 2nd schedule property. The said suit was decreed by the Trial Court with regard to 1/4th share in the first schedule property and 1/4th share in item Nos.1 to 12 and 1/8th share in item Nos.13 and 14 of the 2nd schedule property.
2.The decree of the Trial court was challenged by the defendants 3 and 4 in A.S.No.27 of 1984 before the 2nd Additional District Court, Tirunelveli. A cross objection was filed by the plaintiff in I.A.No.58 of 2000. Both the appeal and the cross appeal were heard together and both of them were dismissed by the first appellate court.
3.The admitted facts arising out of the above second appeal are as follows: The first schedule properties are the absolute properties of Sankaralinga Mudaliar and the 2nd schedule properties are the absolute properties of his wife Nedungiammal. The plaintiff and the defendants 1 and 3 are the daughters of Sankaralinga Mudaliar and the 4th defendant is the husband of defendants 2 and 3. The defendants 5 to 14 are the purchasers from the 3rd and 4th defendants.
4. It is case of the plaintiff that the defendants 3 and 4 have fraudulently obtained a settlement deed executed jointly by Sankaralinga Mudaliar and his wife Nedungiammal under Ex.A-236 on 27.09.1968. After coming to know about the fraud committed by defendants 3 and 4, Sankaralinga Mudaliar cancelled the settlement deed on 15.10.1968 under Ex.A-2. Thereafter, Sankaralinga Mudaliar had executed a gift deed jointly in favour of the plaintiff, defendants 1 and 3 on 17.10.1968 under Ex.A-1 for all the items in the first schedule property. Based upon the above said averments the plaintiffs claimed partition in the 1st schedule property as well as the 2nd schedule property because of the death of her mother Nedungiammal.
5.On the other hand the defendants 3 and 4 contended that the settlement deed Sankaralinga Mudaliar and his wife Nedungiammal was executed in their favour voluntarily and no fraud was committed by them. The Trial Court after considering the oral and documentary evidence came to the conclusion that the settlement deed jointly executed by Sankaralinga Mudaliar and her wife Nedungiammal under Ex.A236 on 27.09.1968 has been fraudulently obtained. Apart from that the Trial Court also came to the conclusion that the plaintiff has not proved the settlement deed under Ex.A1 dated 17.10.1968. The appellate court confirmed the said findings after dismissing the appeal as well as the cross objection filed by the defendants 3 and 4 and the plaintiffs respectively.
6.Aggrieved over the same S.A.No.1196 of 2001 has been filed by the defendants 9, 10 and legal heirs of the 13th defendant. The 3rd and 4th defendants have filed a separate second appeal in S.A.No.1461 of 2001. One of the purchasers from the 3rd and 4th defendants has preferred a second appeal S.A.No.904 of 2013. All the above second appeals are taken together.
7. The S.A.No.1196 of 2001 was admitted and at the time of admission the following substantial of questions of law have been framed by this Hon?ble Court:
a.Whether the Lower Appellate Court erred in law and misdirected themselves in holding that Ex.C1 settlement deed is a void document as if the same was obtained by framed and misrepresentation merely because one of the executants issued legal notice (Ex.A.220 and made paper publication Ex.A222) despite the definite finding of the Trial Court that the said notice and paper publication could not have been issued and made by the said Sankaralinga Mudaliar and when the said plea of fraud and misrepresentation was not proved by concrete and convincing evidence?
b.Whether the courts below erred in law and misdirected themselves in holding that Ex.A2 cancellation deed was validity executed after holding that Ex.A1 gift deed was not validity executed when Ex.A1 and A2 were executed under the very same circumstances with an interval of two days and attested by the very same persons?
c. On the face of Ex.B65 executed by one of the settlers viz., Nedungiammal are the courts below correct and justified in not upholding the title of the defendants 12 and 13 pertaining to items 10 and 11 of the suit properties, even assuming though not admitting that the settlement deed is not true?.
8.The Learned Senior Counsel appearing for the appellant in S.A.No.1196 of 2001, has fairly placed before this Hon?ble Court a judgment reported in 1990 (1) LW page 475. In the reported judgment one of the purchasers from the defendants 3 and 4 based upon the settlement deed dated 27.09.1968 has filed a suit for declaration of title and recovery of possession in O.S.No.85 of 1974 before Sub Court, Tuticorin. The Trial court decreed the suit as prayed for and the first appeal in A.S.No.541 of 1977 filed before the High Court was confirmed by the Hon?ble Single Judge. LPA No.117 of 1982 was filed before the Division Bench. The Hon?ble Division Bench in para No.12 has held that the settlement deed dated 27.09.1968 has not been proved and further held in para No.24 that the said document is a void document which need not be set aside.
9.The Division Bench of our Hon?ble High Court has already held that the settlement dated 27.09.1968 said to have been jointly executed by Sankaralinga Mudaliar and Nedungiammal under Ex.A236 was void and not enforceable in the eye of law. Hence, the finding of the Division Bench operates as resjudicata as against the appellant herein and hence the said finding is binding upon the defendants 9, 10 and legal heirs of the 13th defendant who are the appellants herein. Since the settlement deed is void, Sankaralinga Mudaliar and Nedungiammal will be at liberty to deal with their respective properties.
10. On 17.10.1968 after cancelling the settlement deed dated 27.09.1968, Sankaralinga Mudaliar had executed a gift deed in favour of the plaintiff, the defendants 1 and 2 under Ex.A1 for the first schedule properties. The Trial court as well as the first appellate court have arrived at a concurrent finding that the settlement deed under Ex.A1 has not been proved. As against the same no appeal has been preferred either by the plaintiff or by the defendants 1 and 2.
11.It is submitted that final decree proceedings are pending and the purchasers under defendants 3 and 4 shall move the Court before which the said proceedings are pending and the said Court may consider allotting the plots purchased by such purchasers of defendants 3 and 4 within the specific plots that may be allotted to defendants 3 and 4 and work out the equities to the extent possible without disturbing their possession.
12. In the result, the Second Appeal in S.A.No.1196 of 2001 is disposed of. The Second Appeal in S.A.No.904 of 2015 is disposed of. The Second Appeal in S.A.No.1461 of 2001 is dismissed. No costs.
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