THANDAVARAYAN Vs. JANAKI

JUDGEMENT

(1.) (Prayer: Second Appeal is filed against the judgment and decree of the learned Additional Subordinate Judge, Tindivanam in A.S.No.86/2003 dated 24.2.2005 confirming the judgment and decree of the learned Additional District Munsif, Tindivanam in O.S.No.72/98 dated 20.2.2003.) 1. The defendants 1 and 2, who failed before both the Courts below, have defendants 1 e preferred the present Second Appeal, challenging the concurrent findings rendered in their respective judgments.

(2.) THE plaintiffs 1 and 2/respondents 1 and 2 herein (mother and son respectively) filed a suit for declaration of title and injunction in O.S. No.72 of 1998 on the file of the learned Additional District Munsif, Tindivanam. THE 1st plaintiff is the wife of the 3rd defendant and the 2nd plaintiff is the son of both the 1st plaintiff and the 3rd defendant. In respect of the property owned by him, the 1st plaintiff's husband-the 3rd defendant had executed a settlement deed dated 22.7.1969-Ex.A1, in favour of the plaintiffs, vividly mentioning that the 1st plaintiff-wife of the 3rd defendant would enjoy life estate till her life time and after her death the said property would devolve upon the 2nd plaintiff-son, with absolute right over the suit property having an extent of 1.82 cents. After a long time, the 3rd defendant, by cancelling the settlement deed, dated 22.7.1969, executed a deed of cancellation, dated 01.7.1997-Ex.B.4 and, on the same date, the 3rd defendant/3rd respondent had executed a sale deed dated 01.7.1997-Ex.B1 selling half share in Item Nos.2,3,4,5,7 and 8 in favour of 1st defendant/1st appellant. By another sale deed dated 1.7.97 under Ex.B3, the 3rd defendant/3rd respondent sold Item No.1 in favour of the 2nd defendant/2nd Appellant. Aggrieved by the cancellation of the settlement deed and the sale of the joint family property by the 3rd defendant, the plaintiffs filed the suit for declaration of title and permanent injunction of the suit property on the ground that the suit property being joint family property of the 3rd defendant/3rd respondent herein and his son-2nd plaintiff/2nd respondent, after settling the suit property by way of settlement deed, the 3rd defendant-father of second plaintiff cannot alienate the property by unilaterally cancelling the settlement deed through cancellation. It was an admitted case of both the plaintiffs and the 3rd defendant before the trial Court that the suit property is a joint family property of the 3rd defendant and his son-2nd plaintiff. THE trial Court, after finding that the suit property was allotted to the 3rd defendant in a partition between him and his brothers, whereupon, the said property allotted to the 3rd defendant in the partition had become his separate property, concluded that the 3rd defendant is entitled to gift the same, however, after gifting the same in favour of the plaintiffs, when there is no specific clause for revocation in the settlement deed, the settlement cannot be revoked by cancellation through Ex.B4 dated 1.7.1997. Concluding thus, the sale of property in favour of 1st and 2nd defendants through Exs.B1 and B3 was rendered as invalid.

(3.) THE second appeal was filed in the year 2006. Notice to the respondents was ordered on 10.4.2006 including private notice. On 20.03.2006, M/s J.Ruth Nalini Vijaya Sekari took notice for the caveators. After four years, when the matter was taken up on 02.8.2010, there was no appearance on behalf of the respondents and the matter was ordered to be posted 'for final disposal on 04.10.2010'. On 12.1.2012 this matter was part-heard and for reply, the same has been posted on 18.1.2012 and on that day, orders were reserved.