Deed executed to be treated as will.

The above second appeal has been filed by the plaintiff in O.S. No.313 of 1977 on the file of the District Munsif Court at Kallakurichi, against the judgment and decree of the learned Subordinate Judge, Vridhachalam, dated 28. 1982 in A.S. No. 153 of 1991, reversing the judgment and decree of learned trial Judge dated 21. 1981 in O.S. No.313 of 1977.

2. The plaintiff has filed the suit for declaration of her title to the suit properties, for a directions the 2nd defendant to deliver possession of the suit properties to the plaintiff and for mesne profits.

3. The case of the plaintiff before the trial court was that the properties belonged to the 1st defendant. Pappathi Ammal, who was in possession and enjoyment of the same that the plaintiff is the daughter of the maternal uncle of the 1st defendant and the 2nd defendant is the son of the maternal uncle of the 1st defendant. The 1st defendant was stated to have had no issues. The 2nd defendant was said to have obtained a deed dated 3. 1972 from the 1st defendant fraudulently and that he has also agreed to pay 3 bags of paddy and Rs.50 per annum, till the death of the 1st defendant, and inspite of the same, the 2nd defendant had not paid anything to the 1st defendant till 1977 and the 2nd defendant came to know later on that what was got from her executed in favour of the 2nd defendant, was not a will but in the form of a settlement and that therefore, she issued a notice to the 2nd defendant on 11. 1977, expressing her intention to revoke the said document, that the 2nd defendant sent a reply containing false allegations and thereafter, the 1st defendant executed a revocation deed on 9. 1977 and consequently, executed a settlement deed in favour of the plaintiff on 9. 1977 itself and thus, the plaintiff has become absolutely entitled to the suit properties. The plaintiff demanded possession of the suit properties and since the 2nd defendant declined, asserting title to the same, the necessity for the suit arose for the reliefs as noticed supra.

4. The 1st defendant filed a written statement contending that the 2nd defendant got a deed executed by the 1st defendant on 3. 1972 fraudulently as a deed of settlement which she came to learn about only subsequently that it was in the form of a settlement deed that the document deed dated 3. 1972 was not proved to be true and valid and that it had not come into force also, that the same was revoked by a revocation deed dated 9. 1977, and thereafter, a settlement was executed in favour of the plaintiff and she also delivered possession to her and the 2nd defendant appears to have trespassed into the suit property and therefore the suit may be decreed as prayed for.

5. The 2nd defendant filed a written statement contending that the 1st defendant executed only a settlement deed dated 3. 1972 voluntarily and with intention of conferring title upon the 2nd defendant, that he has been in possession and enjoyment of the suit properties, that the plaintiff has poisoned the 1st defendant and using undue influence over her, has made her to deny the validity of the settlement and got it revoked and further got the properties settled in her favour. It was contended further that the 1st defendant had not reserved any right to revoke the settlement and therefore, the plaintiff could not derive any right under the document in her favour.

6. On the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence. On the side of the plaintiff, she got herself examined as P.W. 1 and on the side of the defendants, the 1st defendant got herself examined as P.W. 1 and the 2nd defendant was examined as D.W.2, in addition to one other third party witness examined as P.W.3. The learned trial Judge, after considering elaborately the oral and documentary evidence on record and the documents exhibited i.e., the document executed by the 1st defendant in favour of the 2nd defendant, original marked a