Document is only a Will.

The defendants in O.S.No.1217 of 1988 on the file of District Munsif Court, Villupuram, against whom the first appellate court has passed a decree for declaration and injunction of the plaintiff's title by reversing the decree and judgment of the trial court in respect of its dismissal of the suit with respect to items 1 to 7, are the appellants herein.

2.The averments in the plaint are as follows:-

The plaintiff and the defendants are the sons of Kullappa Gounder, who, on 11.1.1980 had executed a settlement deed in favour of the plaintiff in respect of items 1 to 7 and the same was accepted and acted upon, the plaintiff was also in enjoyment thereof. On 27.2.1976, the plaintiff was assigned with item No.8 by the Government and items 9 to 11 were self acquired properties of plaintiff by right of purchase under sale deed dated 8.6.1972, 19.6.1972 and 26.2.1983. There was a prior suit in O.S.No.87 of 1984 on the file of the District Munsif Court, Villupuram, wherein the plaintiff filed a suit for partition of his 3/5th share. It was subsequently withdrawn on 11.7.1985. It is later on, the defendants apprehended for the possession of the plaintiff. Therefore, the suit was filed.

3. In the written statement of the second defendant, he has averred as follows:- It is untrue to say that the items 1 to 7 belong to plaintiff by a settlement deed said to have been executed by Kullappa Gounder. It was never accepted and acted upon and the plaintiff was not in possession. Irusammal, the mother of the parties have executed a settlement deed in favour of her husband, Kullappa Gounder, wherein the right of sale was restricted, but he was only given the right of enjoyment. There were two daughters for Kullappa Gounder, the non joinder of which will make the suit bad. The assignment of item 8 is only with the family and not to the individual as to the plaintiff.

4. On the above pleadings, the following issues were framed for trial:-

1. Whether the settlement deed in favour of the plaintiff is true and binding the defendants?

2. Whether the plaintiff is in possession of the lands mentioned in the settlement deed?

3. Whether Kullappa Gounder has any right over the suit same?

4. Whether the suit is bad for non joinder of necessary parties?

5. Whether the suit item 8 belongs exclusively to the plaintiff?

6. Whether the plaintiff has got right over the suit items 9 to 11?

5. The following additional issues were framed for trial:-

1. Whether Kullappa Gounder was entitled to the property mentioned under settlement deed by Irusammal?

2. Whether Kullappa Gounder was competent to execute a settlement deed in favour of the plaintiff?

6. The plaintiff and one Devendran were examined as P.Ws.1 and 2 and Exs.A1 to A17 were marked on his side. The defendants 2 and 3 were examined as Dws.1 and 2 and no exhibits was marked on their side. On consideration of the oral and documentary evidence, the trial Judge has dismissed the suit with respect to items 1 to 7 and decreed the suit with respect to items 8 to 11 and the first appellate court has decreed the suit in its entirety, against which the second appeal was preferred.

7. During the course of admission, the following substantial question of law was framed for consideration:- "Whether the lower appellate court is right in holding that Ex.P-2 was only a settlement and not a Will without examining the nature of disposition and ignored the clause against alienation?

8. The respondent/plaintiff and the appellants/defendants are brothers between themselves as they were born to one Kullappa Gounder and Irusammal. Sofar as suit items 1 to 7 are concerned, the plaintiff claims exclusive title under a registered settlement deed dated 11.1.1980, marked as Ex.A.1, whereby Kullappa Gounder had contended that those properties were got by him by virtue of a document dated 19.12.1963, marked as Ex.A.2, which purports to be a deed of settlement executed by Irusammal in favour of Kullappan. Thus, the respondent/plaintiff may get