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Judgment
K. Govindarajan, J.—The defendants 1 and 2 having aggrieved by the judgment of the lower appellate Court has filed the above Second
Appeal.
The plaintiffs filed a suit in O.S.No.1837 of 1979 on the file of the District Munsif, Thiruvannamalai for partition of their 1/4th share each in the
suit properties. The first defendant is the mother, the second defendant is the brother and the third defendant is another sister of the plaintiffs.
The suit was resisted by the first defendant stating that the suit properties were not purchased by the father of the plaintiffs and the first
defendant. The settlement deed Ex.A-1 was not a valid document and so, the plaintiffs cannot have any right on the basis of the said settlement
deed. According to the defendants, item Nos.1 to 3 were already sold in court auction pursuant to the decree in O.S.No.440 of 1973. The first
defendant claims that she is the absolute owner of item No.4. In the additional written statement, it is stated that item Nos.22 to 26 are the absolute
property of the first defendant.
The trial Court, after appreciating the oral and documentary evidence, held that the plaintiffs are entitled to 1/10th share each in all the properties
except items Nos.1 to 4, 14 and 21. The second plaintiff filed an appeal in A.S.No.23 of 1988 on the file of the Subordinate Judge,
Thiruvannamalai. The learned Subordinate Judge modified the said decree holding that the second plaintiff was entitled to 1/10th share in item
Nos.1, 3 and 4 and 1/4th share in item No.14. With respect to other items, the lower appellate Court has confirmed the judgment and decree of
the trial Court. Hence, the defendants 2 and 3 filed the above Second Appeal.
The substantial questions of law that were framed at the time of admission of the Second Appeal are as follows:-
(1) Is the learned Subordinate Judge right in holding that items 1, 3, 4 and 14 of suit properties are available for partition when items 1 and 3 of the
suit properties are already sold in court auction in execution of a decree for the recovery of the family debts and items 1, 4 and 14 of the suit
properties are the separate properties of the 1st appellant who is the mother of the plaintiffs.
(2) Is not the 1st plaintiff stopped from claiming any right under the settlement deed Ex.B-11 when she obtained a decree in O.S.No.1097 of 1971
on the ground that the settlement deed is void?
The trial Court rejected the suit with respect to item Nos.1 to 4, 14 and 21. The trial Court found that item Nos.1 to 3 had been sold in the
court auction pursuant to the decree in O.S.No.440 of 1973. The said finding was arrived at on the basis of Exs.B-17, 18 and 19. With respect to
item No.4, the trial Court found that it is the absolute property of the first defendant. To establish that the first defendant purchased the said
property, she filed Exs.B-9 and B-10. But, the lower appellate Court, without even properly appreciating the documents, simply found that the
properties sold in court auction were item Nos.2 and 21. There is no basis for such a conclusion. It is also not stated as to how the trial Court was
wrong in holding that item Nos.1 to 3 were sold in court auction. Hence, the finding of the lower appellate Court that item Nos.2 and 21 were sold
in court auction cannot be accepted. Hence, it is set aside.
Even with respect to item No.4, as stated already, the trial Court found that it is the absolute property of the first defendant having purchased
under Exs.B-9 and B-10. Even the lower appellate has found that it is the absolute property of Govindammal and so, the plaintiffs cannot claim any
right in the said property. Such a finding has been given in para 11 of the lower appellate Court''s judgment. But, unfortunately, the lower appellate
Court has granted decree for partition even with respect to item No.4. Hence, the said portion of the judgment and decree is also set aside.
The remaining item is only item No.14. In the suit in O.S.No.1097 of 1971, a decree was given declaring title on the first defendant and the first
plaintiff with respect to the suit properties mentioned therein. It is not disputed before this Court that item No.14 also has been mentioned as one of
the items. When the title of the first defendant and the first plaintiff had been declared with respect to that item and when the settlement deed has
not been set aside specifically in the said suit in O.S.No.1097 of 1971, the lower appellate Court is correct in holding that the plaintiffs are entitled
to claim 1/4th share in item No.14 on the basis of Ex.A-1 settlement deed. The learned counsel appearing for the appellants has submitted that the
said settlement deed has been cancelled subsequently as per Ex.B-12. The lower appellate Court has dealt with Ex.B-12 cancellation deed and
held that once the settlement deed was accepted and acted upon, the cancellation deed cannot be relied on to show that the settles did not get any
right under the settlement deed.
In view of the above, in respect of item Nos.1, 3 and 4 the judgment and decree of the lower appellate Court are set aside and the judgment
and decree of the trial Court is restored and in other respects, the judgment and decree of the lower appellate Court shall stand. With the above
modification, the Second Appeal is partly allowed.