Validity of settlement deed raised.

This is an appeal by the first defendant S.A. Fatima Bivi Ammal against the judgement and decree dated 12th day of July, 1979 in O.S. No. 29 of 1976 on the file of the Court of the learned Subordinate Judge, Kumbakonam granting a preliminary decree declaring that the plaintiff S.A. Fatima Bivi is entitled to 1/8th panga in respect of the suit Items 1 and 2, half share in respect of suit Items 3 to 12 and for delivery of possession of suit Items 13 to 18, given in the plaint schedule. The division by metes and bounds and the ascertainment of future m6sne profits were relegated to the final decree proceedings. One month's time was granted for delivery of possession of Items 13 to 18 of the plaint schedule. In view of the relationship of the parties and in the special circumstances of the case, the parties were directed to bear their own costs in the suit.

2. The suit was laid by the plaintiff for partition for 1/8th pangu in respect of items 1 and 2. 1/2 share in items 3 to 12, for possession of items 13 to 18, for future profits and for costs of the suit.

3. The case of the plaintiff as put forward the plaint is as follows :- The suit properties originally belonged to one Hajee S.M. Abdul Kader Rowther, father of the plaintiff and the 1st defendant, and their mother Julaika Bivi Ammal, wife of the said Abdul Kader Rowther. Under a settlement deed dated 24-12-1968, the said properties have been settled on the plaintiff and the 1st defendant out of natural love and affection, and the said document was given to the plaintiff and possession also ceased to exist in the donors, and the donees accepted the gift, and the net income therefrom were shared by the plaintiff and 1st defendant. Since the house property shown as D. Schedule in the said settlement deed, is in possession of the plaintiff alone, she has not included the same in the suit. Due to misunderstandings between the plaintiff on the one hand, and the 1st defendant and their mother on the other, the plaintiff wanted partition and separate possession of her share in the suit properties. The first defendant was evading for such division. Without the consent of the plaintiff the first defendant sold lands in Vadakku Mangudi village to defendants 2 to 10 between Dec., 1974 and Mar. 1975. Since it is a collusive transaction, without the knowledge and consent of the plaintiff, the said sales are not binding on the plaintiff. The plaintiff is in joint possession of the suit properties with the first defendant. Items 1 and 2 are grama Samudayam lands, items 3 to 12 are common properties and items 15 to 18 belong to the plaintiff. The 1st defendant is bound to pay mesne profits from the date of plaint till delivery of possession. Hence the suit.

4. The first defendant/appellant herein filed her written statement containing the following contentions : The truth, validity and enforceability of the settlement deed dated 24-12-1968 is denied. It was not accepted as gift by the donees and they were not put in possession of the properties, nor the rights of the donors ceased thereafter. Abdul Khader settled the properties including the house on Julaika Bivi under a document dated 14-10-49. She has to enjoy the income till her life and after that, the plaintiff and the first defendant and their sons have to take the same. The settlement deed dated 24-12-1968 is not in terms with the prior settlement deed. A joint gift to two donees without division is invalid. Since this defendant did not accept the settlement of 1968, since the valuable house property has not been given to her, there was a panchayat by six persons in the middle of 1970 wherein it was decided that the house should go to the plaintiff and the entire lands in Vadakku Mangudi village should be taken by the 1st defendant, who has to pay off the loan incurred by her father for erecting filter point. The rest of the settlement properties were allowed to continue as before. This arrangement was accepted by the plaintif