The second appeal has been filed challenging the judgment of the Subordinate Judge, Hosur, rendered in A.S.No.133 of 1996, dated 05.11.1997, confirming the decree and judgment of the Court of District Munsif, Hosur, made in O.S.No.418 of 1985, dated 22.08.1994.

2. The suit in O.S.No.418 of 1985 has been filed for the relief of declaration and injunction. The declaration is sought for in respect of two items of the suit property, namely, an extent of 4.5 acres in R.S.No.682 and an extent of 45 cents in R.S.No.683 at Kannathur Village, Hosur Taluk, totalling an extent of 4.92 acres. The plaintiff died during the pendency of the suit and plaintiffs 2 to 9 are added as legal representatives of the deceased first plaintiff.

3. The plaintiff claimed title based upon the settlement deed, dated 21.09.1976. The defendants disputed the title of the plaintiff on the ground that the settlement deed was not valid on three grounds, (i) the settlement deed was not accepted and acted upon; (ii) settlement deed was a nominal document and (iii) the settlement deed had been cancelled by the execution of cancellation deed by the executant himself.

4. The trial court has framed the following five issues:-

(i) Whether the plaintiff is entitled to declaration and possession?

(ii) Whether the settlement deed dated 21.09.1976 was nominal? and Whether the settlement deed was acted upon?

(iii) Whether the settlement deed has been revoked by the second defendant?

(iv) Whether the plaintiff is entitled to an order of injunction?

(v) To what other relief, the plaintiff is entitled to?

5. The trial court relied upon the following circumstances to come to the conclusion that the settlement deed has been accepted and acted upon:-

(i) There had been mutation of patta (Ex.A-2) in the name of the plaintiff in respect of Survey Nos.683 and 682.

(ii) The plaintiff has paid kists in respect of the suit properties.

(iii) The evidence of P.W.5, Nagappan and P.W.6, Ganesan was available to show that the property had been in possession and enjoyment of the plaintiff.

On these circumstances, the lower court came to the conclusion that the settlement deed ought not to have been nominal.

6. Finding that the executant has no right to cancel the settlement deed de hors the provisions of Section 126 of the Transfer of Property Act and also by relying upon the decisions reported in 1980 (II) MLJ 232 (Kasi Ammal v. Vellai Gounter & another) 1985 (I) MLJ 202 (Jayalakshmi & Others v. Kaliaperumal), the trial court held that the cancellation of the settlement deed is unsustainable. On these findings, the relief of declaration and injunction has been granted.

7. Aggrieved over the judgment and decree, defendants 1 and 2 filed an appeal in A.S.No.133 of 1996. Observing that the defendants / appellants have no right to cancel the settlement deed except by the way of filing a suit for cancellation of settlement deed, the first appellate court confirmed the decree and judgment of the trial court.

8. The concurrent findings of both the courts below are under challenge in the second appeal.

9. The second appeal was admitted under the following substantial questions of law:-

"1. Whether there is no valid gift deed under Ex.A-1 as per Section 122 of the Transfer of Property Act?

2. Whether the first defendant, who was the minor on the date of Ex.A-1, was not bound by the gift deed?"

10. The substantial questions of law raised are rephrased at the time of hearing the appeal:-

"1. Whether the settlement deed under Ex.A-1 is valid?

2. Whether the first defendant who was an attestor to Ex.A-1-settlement deed is bound by the settlement deed?

11. The first contention of the learned counsel for the respondent is that the execution of settlement deed having been accepted by the executant himself, the settlement deed is not open to challenge. According to the learned counsel, the cancellation of settlement deed can never improve the case of the appellant as the cancellatio