KANDASWAMI PANDURAR Vs. NATESAN ELATHIRIAR

JUDGEMENT

(1.) THE plaintiffs in the suit are the appellants herein.

(2.) THE plaintiffs filed the suit for partition and separate possession of their 3/4th share in the suit properties with the following averments. THE suit properties originally belonged to four brothers thangaiyan, Ramaswami, Marudhai and Natesan (First defendant ). THE properties were acquired by their father Sannasi. Marudhai had no issues and he had willed away his l/4th share to his brother's daughter Subbalakshmi. Thangaiyan died without issues. On 12. 7. 1974, the first defendant executed a settlement deed in favour of the plaintiffs, who are his sister's sons, in respect of his 5/8th share. THE settlement deed was duly accepted by the donees. Later, on 21. 10. 1974, Rama-swami and Subbalakshmi as one party and the first defendant and the plaintiffs as the other party entered into a partition deed and the properties covered by the settlement deed were allotted to the share of the plaintiffs and the first defendant. Under this partition dated 21. 10. 1974, the first defendant retained interest for enjoyment till his lifetime and after his lifetime, the property should go to the plaintiffs absolutely. Now, the first defendant-settlor and the plaitniff-settlee have fallen out on account of failure of some marriage negotiations. THErefore, the plaintiffs have filed the suit for partition of their 3/4th share and the first defendant is entitled to i/4th share for a life estate. Defendants 2 to 6 are the alienees of the suit properties from the first defendant during the pendency of the suit and therefore they are impleaded.

(3.) THE relationship between the parties as found in the geneology is not disputed. According to the plaintiffs, who are the sister's sons of the first defendant-settlee, the latter executed the settlement deed ex. A-1 in their favour in respect of 5/8th share. THE first defendant contends that this settlement deed who obtained from his while he was in a state of drunkenness and that he was not aware of the same. THE evidence in respect of the settlement deed Ex. A-1 is as follows: P. W. 1 in the first plaintiff and the other two plaintiffs are his younger brothers. He has given evidence that his maternal uncle (first defendant) has gifted his 3/8th share in the properties their favour with certain restriction which 1 will deal a bit later. According to P. W. 1 the first defendant who was living with the brother of his, Ramaswami, came and lived with the plaintiffs and that he voluntarily executed the settlement deed Ex. A-1 on account of love and affection towards his nephews. He has stated that the plaintiffs had taken possession of the properties in pursuance of the settlement deed. P. W. 2 is the attestor of Ex. A-1 and he is a resident of the same hamlet as the first defendant. According to P. W. 2 the first defendant directed the document writer P. W. 5 to write a settlement deed ex. A-1 and that P. W. 2 attested the same in the presence of the settlee who saw him attesting. P. W. 2 is also one of the identifying witnesses before the sub-Registrar at the time of registration. He further added that the first defendant is a literate and that he went through the document and executed the same voluntarily. P. W. 2 is a close relation of the first defendant and was aged more than 60 on the date of Ex. A-1 and then he is competent witness to attest the document executed by the first defendant.