The main legal point established in the judgment is that when the title is disputed, it is necessary to seek the relief of declaration of title, and a co-owner has no right to execute settlement deeds for ancestral properties, rendering the deeds void.

1.

1. In a suit for injunction, based on possession, where the title itself is disputed, whether it is mandatory to include the relief of declaration of title, at all circumstances or declaration should be sought for only under certain specified circumstances?

2. Whether the executant of the document himself can challenge the validity of the document and if so, on what grounds?

3. When a document is challenged as a sham and nominal document, whether it is necessary to seek the remedy of setting aside the document?

- are the main issues raised in the second appeal.

2. The defendant is the appellant. Kosalai Ammal and one Balayya were the plaintiffs, who are the first and second respondents in this second appeal. On the death of Kosalai Ammal, Rajan and P. Thangamuthu have been impleaded as respondents 3 and 4, as legal representatives of the deceased first respondent.

3. The plaintiffs filed the suit for injunction before the learned District Munsif, Jayamkondan, in O.S. No. 301 of 1996. The suit was dismissed, vide judgment dated 31.07.1997. Challenging the dismissal, the plaintiffs filed the appeal in A.S. No. 44 of 1997. By judgment and decree dated 15.04.2004, the appeal was allowed and thereby, the judgment of dismissal and decree passed in O.S. No. 301 of 1996 came to be set aside. Aggrieved over the same, the defendant has filed this second appeal.

4. Facts:

The suit properties are located at Periyakrishnapuram Village, Ariyalur Registration District. The plaintiffs claim title to the suit properties by virtue of settlement deeds dated 18.06.1979 and 19.06.1979 (to an extent of 71 cents and 63 cents respectively). The defendant is the brother of the first plaintiff. The defendant executed those settlement deeds dated 18.06.1979 and 19.06.1979 in favour of the first plaintiff, Kosalai Ammal. These settlement deeds were accepted and acted upon. Patta was also transferred in the name of the first plaintiff and the first plaintiff has been paying kists to the suit property. In the U.D.R. scheme, patta has been issued in the name of the second plaintiff. The second plaintiff has also been paying kists. Thus, the suit properties were in possession and enjoyment of the plaintiffs.

4.1. The defendant wanted his daughter to be married to one of the sons of the first plaintiff. But, it did not happen. Aggrieved over that, the defendant wanted to interfere with the possession and enjoyment of the suit properties and that compelled the plaintiffs to file the suit for injunction.

5. The suit claim was resisted by the defendant on the following contentions:

1. The suit properties are ancestral properties;

2. The defendant had four children, out of whom three children were born prior to the execution of settlement and one was the son born after the execution of settlement;

3. In respect of the properties, which are the subject matter of settlement, the defendant’s children also had got a share over the properties. Therefore, the defendant had no right to execute the settlement;

4. The alleged settlement deeds are not valid; and

5. The suit properties are in possession and enjoyment of the defendant and not in possession of the plaintiffs.

6. On the above pleadings, the trial Court considered the issues relating to title and possession and came to the conclusion that the suit properties are ancestral properties of the defendant and the right of the plaintiffs is only to file a suit for partition and not to claim title by virtue of the settlement deeds. It was further pointed out by the trial Court that it is not proved that the properties covered under the settlement deeds are self-acquired properties of the defendant and that the defendant had right to execute the settlement deeds. Considering the fact that the first plaintiff herself has admitted during her evidence that the suit properties were the ancestral properties of her father, it was held that the defendant alone was not the owner of the properties and that the defendant’s sons were a